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Nordstrom: Book offers advice on treatment of jurors

Rodney Nordstrom
March 14, 2012
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Indiana Lawyer Commentary

The theme of the book, “Twelve Heroes, One Voice,” is why should jurors care? Why should they care enough to let go of the natural tendency to do nothing? This question is at the heart of every trial. The answer is they all secretly want to become a Jungian archetypal “hero.” The book is about how to make jurors the center of the story. Trial consultants and good trial attorneys have searched endlessly for new ways to engage jurors in the trial story.

As the title suggests, the single most important goal of voir dire is to empower the jurors, to show them that, if chosen, they are going to wield enormous power – by putting a value on someone’s life or deciding what it would take to stop nursing home misconduct.twelve-heroes-cover-1col.jpg

The next most useful bit of advice by author Carl Bettinger is developing and telling your case using the story spine approach: “Once upon a time … And every day… Until one day… And as a result of that … Until, finally … And ever since then …” Our minds are pre-programmed to understand information that is presented in this format. By following this approach, you keep jurors’ attention and your focus on the case theme. Point of view is everything.

Bettinger reminds us that a courtroom is not a friendly place to most. What do jurors first see when they walk into the courtroom? Someone wearing a black robe, a bunch of people, obviously the lawyers, dressed in suits, staring at them as they come in, taking notes, whispering to one another as though inspecting prized cattle at an auction. It’s a very unfriendly, scary environment. The attorney should appreciate this and do whatever he can to ease the discomfort of jurors.

Bettinger makes a distinction between a “case” and a “story.” Your client has a story (not a case) and it is your role to communicate the story, using all the components mentioned above. All human beings yearn to take on the hero’s role and want to feel good (and confident) about their ultimate decision. Most good trial stories focus on a fight for survival and self-actualization. Good stories are about universal truths and must remind jurors of the greatest human accomplishments, not sadness, blame or shame.

He adds that at trial, your role as advocate is transformed into that of mentor, the defendant into a villain, the plaintiff into a brave victim, with the unwitting jury serving the role of hero. He quotes liberally from recent movies and the classics. He also uses transcript clips and illustrations.

Most lawyers fail to recognize that voir dire is not the time for advocacy. Voir dire is the time to show a genuine interest in other human beings simply because they are human beings who have been called upon to provide a great service. “And if you don’t show a genuine interest, if you try to fake it as though it’s a cheap date that you want for a one night stand, they’ll know that.”

Opening statement is time for you to define the story roles of everyone in the courtroom (presumably including the bailiff, court reporter, security, attorneys and judge). Cross- and direct examination furthers character development all the way to closing statement, which allows jurors to write the conclusion of the story allowing them to “save the day.”

This book contains 10 chapters and is 155 pages with appendix published by Trial Guides for $85. Chapter 1 introduces the “Hero-centric” storytelling model. Chapter 2 is about the importance of making the listener (jury) the center of the trial. Chapter 3 is making the trial story user-friendly and Chapter 4 is development and definition of the mentor, villain and victim character role. Chapter 5 is the application, with examples, of the story approach to both criminal and civil trials. Chapter 6 is devoted to dealing with case weaknesses in voir dire. Chapter 7 is opening statement and Chapter 8 is how to conduct direct and cross-examination using the “hero-centered” approach and sequencing witnesses. Chapter 9 is the closing statement: “Do you want just a song or do you want a hit?” Lastly, Chapter 10 is the closing thoughts and reasons to motivate jurors to adopt his approach to your cases.

The strength of the book is that it reminds me that we must continue to focus on giving jurors reasons to like our client and their story. It is a refreshing approach to jury selection where the juror, i.e., the listener, is the focus. It is about how to be a “total” lawyer, using psychology, literature and stories and is not about law books or legal theory. The book’s goal is to tell you how to make jurors want to listen and CARE through the art of effective storytelling. Although his approach is impressive, it is not a panacea in and of itself. It offers a much-needed adjunct to the existing body of work of David Wenner, Don Keenan, David Ball and Rick Friedman. Simply put, the book is all about transforming the jury into the hero.

This book is written for practicing attorneys. It does not offer fanciful legal advice or complex legal strategies and assumes you have those requisite skills by the time you become a trial lawyer. Bettinger, no stranger to big cases, is both a trial attorney and medical doctor; but, it is his understanding of the importance of storytelling that motivates the listener to want to vote for your client. His recent $54 million verdict in a nursing home case gives him credibility.•

Rodney Nordstrom, Ph.D., J.D., is a trial consultant with his company Litigation Simulation Services located in Peoria, Illinois. The opinions expressed in this column are those of the author.

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  1. California Sex Offender Management Board (CASOMB) End of Year Report 2014. (page 13) Under the current system many local registering agencies are challenged just keeping up with registration paperwork. It takes an hour or more to process each registrant, the majority of whom are low risk offenders. As a result law enforcement cannot monitor higher risk offenders more intensively in the community due to the sheer numbers on the registry. Some of the consequences of lengthy and unnecessary registration requirements actually destabilize the life’s of registrants and those -such as families- whose lives are often substantially impacted. Such consequences are thought to raise levels of known risk factors while providing no discernible benefit in terms of community safety. The full report is available online at. http://www.casomb.org/index.cfm?pid=231 National Institute of Justice (NIJ) US Department of Justice Office of Justice Programs United States of America. The overall conclusion is that Megan’s law has had no demonstrated effect on sexual offenses in New Jersey, calling into question the justification for start-up and operational costs. Megan’s Law has had no effect on time to first rearrest for known sex offenders and has not reduced sexual reoffending. Neither has it had an impact on the type of sexual reoffense or first-time sexual offense. The study also found that the law had not reduced the number of victims of sexual offenses. The full report is available online at. https://www.ncjrs.gov/app/publications/abstract.aspx? ID=247350 The University of Chicago Press for The Booth School of Business of the University of Chicago and The University of Chicago Law School Article DOI: 10.1086/658483 Conclusion. The data in these three data sets do not strongly support the effectiveness of sex offender registries. The national panel data do not show a significant decrease in the rate of rape or the arrest rate for sexual abuse after implementation of a registry via the Internet. The BJS data that tracked individual sex offenders after their release in 1994 did not show that registration had a significantly negative effect on recidivism. And the D.C. crime data do not show that knowing the location of sex offenders by census block can help protect the locations of sexual abuse. This pattern of noneffectiveness across the data sets does not support the conclusion that sex offender registries are successful in meeting their objectives of increasing public safety and lowering recidivism rates. The full report is available online at. http://www.jstor.org/stable/full/10.1086/658483 These are not isolated conclusions but are the same outcomes in the majority of conclusions and reports on this subject from multiple government agencies and throughout the academic community. People, including the media and other organizations should not rely on and reiterate the statements and opinions of the legislators or other people as to the need for these laws because of the high recidivism rates and the high risk offenders pose to the public which simply is not true and is pure hyperbole and fiction. They should rely on facts and data collected and submitted in reports from the leading authorities and credible experts in the fields such as the following. California Sex Offender Management Board (CASOMB) Sex offender recidivism rate for a new sex offense is 0.8% (page 30) The full report is available online at http://www.cdcr.ca.gov/Adult_Research_Branch/Research_Documents/2014_Outcome_Evaluation_Report_7-6-2015.pdf California Sex Offender Management Board (CASOMB) (page 38) Sex offender recidivism rate for a new sex offense is 1.8% The full report is available online at. http://www.google.com/url?sa= t&source=web&cd=1&ved= 0CCEQFjAA&url=http%3A%2F% 2Fwww.cdcr.ca.gov%2FAdult_ Research_Branch%2FResearch_ documents%2FOutcome_ evaluation_Report_2013.pdf&ei= C9dSVePNF8HfoATX-IBo&usg=AFQjCNE9I6ueHz-o2mZUnuxLPTyiRdjDsQ Bureau of Justice Statistics 5 PERCENT OF SEX OFFENDERS REARRESTED FOR ANOTHER SEX CRIME WITHIN 3 YEARS OF PRISON RELEASE WASHINGTON, D.C. Within 3 years following their 1994 state prison release, 5.3 percent of sex offenders (men who had committed rape or sexual assault) were rearrested for another sex crime, the Justice Department’s Bureau of Justice Statistics (BJS) announced today. The full report is available online at. http://www.bjs.gov/content/pub/press/rsorp94pr.cfm Document title; A Model of Static and Dynamic Sex Offender Risk Assessment Author: Robert J. McGrath, Michael P. Lasher, Georgia F. Cumming Document No.: 236217 Date Received: October 2011 Award Number: 2008-DD-BX-0013 Findings: Study of 759 adult male offenders under community supervision Re-arrest rate: 4.6% after 3-year follow-up The sexual re-offense rates for the 746 released in 2005 are much lower than what many in the public have been led to expect or believe. These low re-offense rates appear to contradict a conventional wisdom that sex offenders have very high sexual re-offense rates. The full report is available online at. https://www.ncjrs.gov/pdffiles1/nij/grants/236217.pdf Document Title: SEX OFFENDER SENTENCING IN WASHINGTON STATE: RECIDIVISM RATES BY: Washington State Institute For Public Policy. A study of 4,091 sex offenders either released from prison or community supervision form 1994 to 1998 and examined for 5 years Findings: Sex Crime Recidivism Rate: 2.7% Link to Report: http://www.oncefallen.com/files/Washington_SO_Recid_2005.pdf Document Title: Indiana’s Recidivism Rates Decline for Third Consecutive Year BY: Indiana Department of Correction 2009. The recidivism rate for sex offenders returning on a new sex offense was 1.05%, one of the lowest in the nation. In a time when sex offenders continue to face additional post-release requirements that often result in their return to prison for violating technical rules such as registration and residency restrictions, the instances of sex offenders returning to prison due to the commitment of a new sex crime is extremely low. Findings: sex offenders returning on a new sex offense was 1.05% Link to Report: http://www.in.gov/idoc/files/RecidivismRelease.pdf Once again, These are not isolated conclusions but are the same outcomes in the majority of reports on this subject from multiple government agencies and throughout the academic community. No one can doubt that child sexual abuse is traumatic and devastating. The question is not whether the state has an interest in preventing such harm, but whether current laws are effective in doing so. Megan’s law is a failure and is destroying families and their children’s lives and is costing tax payers millions upon millions of dollars. The following is just one example of the estimated cost just to implement SORNA which many states refused to do. From Justice Policy Institute. Estimated cost to implement SORNA Here are some of the estimates made in 2009 expressed in 2014 current dollars: California, $66M; Florida, $34M; Illinois, $24M; New York, $35M; Pennsylvania, $22M; Texas, $44M. In 2014 dollars, Virginia’s estimate for implementation was $14M, and the annual operating cost after that would be $10M. For the US, the total is $547M. That’s over half a billion dollars – every year – for something that doesn’t work. http://www.justicepolicy.org/images/upload/08-08_FAC_SORNACosts_JJ.pdf. Attempting to use under-reporting to justify the existence of the registry is another myth, or a lie. This is another form of misinformation perpetrated by those who either have a fiduciary interest in continuing the unconstitutional treatment of a disfavored group or are seeking to justify their need for punishment for people who have already paid for their crime by loss of their freedom through incarceration and are now attempting to reenter society as honest citizens. When this information is placed into the public’s attention by naive media then you have to wonder if the media also falls into one of these two groups that are not truly interested in reporting the truth. Both of these groups of people that have that type of mentality can be classified as vigilantes, bullies, or sociopaths, and are responsible for the destruction of our constitutional values and the erosion of personal freedoms in this country. I think the media or other organizations need to do a in depth investigation into the false assumptions and false data that has been used to further these laws and to research all the collateral damages being caused by these laws and the unconstitutional injustices that are occurring across the country. They should include these injustices in their report so the public can be better informed on what is truly happening in this country on this subject. Thank you for your time.

  2. Freedom as granted in the Constitution cannot be summarily disallowed without Due Process. Unable to to to the gym, church, bowling alley? What is this 1984 level nonsense? Congrats to Brian for having the courage to say that this was enough! and Congrats to the ACLU on the win!

  3. America's hyper-phobia about convicted sex offenders must end! Politicians must stop pandering to knee-jerk public hysteria. And the public needs to learn the facts. Research by the California Sex Offender Management Board as shown a recidivism rate for convicted sex offenders of less than 1%. Less than 1%! Furthermore, research shows that by year 17 after their conviction, a convicted sex offender is no more likely to commit a new sex offense than any other member of the public. Put away your torches and pitchforks. Get the facts. Stop hysteria.

  4. He was convicted 23 years ago. How old was he then? He probably was a juvenile. People do stupid things, especially before their brain is fully developed. Why are we continuing to punish him in 2016? If he hasn't re-offended by now, it's very, very unlikely he ever will. He paid for his mistake sufficiently. Let him live his life in peace.

  5. This year, Notre Dame actually enrolled an equal amount of male and female students.

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