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Nordstrom: Book disappoints seasoned jury consultant

Rodney Nordstrom
July 20, 2011
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Indiana Lawyer Commentary

When I first saw the flyer for this book, I immediately thought of the potential for application to trial work. The book’s catch phrase “It’s not what people hear. It’s what they repeat,” has natural application for use with a jury, or so I thought. I believed that anything that can enhance a trial lawyer’s communication effectiveness is worth studying. Unfortunately, after reading this book, I was disappointed.

nordstrom-book-review-cover4c-1colThe main point of this book is the author’s concept of the Dominant Selling Idea as it relates to marketing, selling, and politics. A DSI is a central proposition underlying the message much like a case theme. The concepts in the book are pretty much already obvious to the trial lawyer. The examples cited by the author are outdated and contrite. The author advocates making the DSI, or in trial parlance, case theme, simple and memorable like the oft-quoted phrase, “if the glove does not fit, you must acquit.” A DSI is generally a good idea to follow as it relates to developing a case theme. As the DSI model contemplates, it should sell your case in a simple short phrase. A DSI for a wrongful death of a child case might be: “For sale: Baby shoes. Never worn.”

The book introduces common terms like heuristics and metaphors. A heuristic is a mental shortcut that saves the brain from running thousands of algorithms leading to a quick conclusion. Think of it as a mental shortcut. Yes, juries use heuristics to help them analyze and decide a case and it is critical that trial lawyers identify naturally occurring case heuristics. That’s why focus groups are so critical. Once a heuristic is identified, it can be effectually incorporated into your trial strategy. The examples cited by the author are not really applicable for trial purposes.

Although the book is simple to read, in an hour or so, it offers little benefit to a seasoned trial attorney. Its nine chapters – 171 pages – are more aimed at a branding or a selling strategy: not as part of trial application. As a communication enhancing book it offers little insight from the lawyer’s perspective. In conclusion, perhaps I have unfairly compared this book to another book, “Winning with Stories” by Jim Perdue, which is a must-read for all trial lawyers.•

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 the author’s.

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  1. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  2. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  3. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  4. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  5. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

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