Dear Young Lawyers Section Members:
Welcome to the latest edition of Electronically-In-Touch, the electronic newsletter of the NYSBA Young Lawyers Section! This is the second issue since our re-launch last month, and we are very excited about being able to regularly present news, updates, commentary and other insight regarding the law and its practice. In this edition, I am pleased to present two informative articles regarding legal practice and developments: an article by Ron Kurzman, Esq. regarding techniques behind the selection of juries in litigation, and an article by Dr. Hong Tang, Esq. concerning changes to the US Trade Adjustment Assistance (“TAA”) program as a result of recent Amendments to the legislation. I hope you enjoy both articles, and perhaps feel compelled to contribute future articles and insight to our publication!
Nilesh Ameen, Esq.
Time for the Family Reunion
Ah, the Fall. Time for the leaves to turn, the weather to get a little colder and wetter. Time for football and the pennant races.
More importantly, it is time for the family reunion – the family that is the Young Lawyers Section.
On October 21st and 22nd our Young Lawyers Section family gathered in Albany at the NYSBA’s headquarters for our Fall Meeting. It was widely received and attended and offered a great way to get to know the other members of the Section while also getting eight CLE credits.
Our business meeting took place on the 21st. We discussed the Section’s upcoming events and how we can be a part of shaping the Section for the future. That evening we went to Dale Miller, a restaurant with an outstanding view of Albany, for our networking reception with the Senior Lawyers Section.
James Barnes, our Chair-Elect and Fall Meeting Chairperson, put together an incredible selection of CLE topics on the 22nd. Attendees received 8 credit hours worth of seminars from some of the best lawyers in New York State.
This is the one annual event completely focused on the young lawyer. It was a great chance for us to meet our fellow Section members and to find out how we can all get more involved in shaping our future.
Young Lawyers Section Chair
The Art and Science of Jury Selection
by Ron Kurzman, Litigation Consultant
Any experienced litigator would agree that jury selection is an art and not a science. However, in order to be a good artist, it's extremely important to understand the science of a jury.
Recent studies on jury psychology have provided litigators with an invaluable look into the decision-making process of jurors. By studying countless mock jury verdicts and analyzing hundreds of actual post-jury verdict interviews, we understand that there are three main drivers that lead jurors to a verdict in a particular case: 1) Likeability; 2) Prior Experiences and 3) Preconditioning. It is an understanding of jurors' decision-making process that should guide you in your jury selection strategy.
First, jurors form decision in a case based upon likeability. Jurors will find for one side or another based upon how much those jurors like you and your client. This long-held belief by many trial attorneys about likeability is supported by a study conducted in Trial Diplomacy Journal. Sanito and Arnold reported on a study of 600 jurors who were interviewed after they had reached a verdict in different cases. The one issue that was similar amongst all 600 jurors interviewed as a reason for why they reached a verdict was that they "liked" the lawyer that they found for more than the opposing lawyer.
The second main factor that leads jurors to a verdict are jurors' prior experiences, attitudes, values and beliefs, and how these factors relate to your case. Again we know from our study of jurors that they enter the courtroom and then filter all information presented to them in the case through these factors. Therefore, jurors are not simply basing their verdict on the facts presented to them, but rather processing the facts through the filter of their prior experiences. For instance, jurors frequently in employment, personal injury or medical malpractice cases spend up to 50% to 60% of their time in deliberations talking about their own personal experiences.
Jury selection provides the opportunity to precondition jurors to the key issues in your case. We know from jury research that jurors start to form decisions about a case from the first moment that they hear about the case. Jury selection provides us the opportunity to precondition jurors to our case themes.
As mentioned, understanding the science of the jury's decision making is only half the battle. To be effective in jury selection one must apply the art of jury selection. Below are suggestions that are designed to assist in the art of jury selection.
Will they like me? We need to understand that most jurors experience a high level of stress during jury selection. A good jury selection artist will start the jury selection process by making the jury feel comfortable. Each lawyer has his / her own style, and we have seen everything from story telling and jokes, to divulging embarrassing stories about ones self to ease jurors' nerves. The key is that jurors need to feel comfortable before they divulge their feelings about a particular life experience. It is your job as the questioner to make jurors feel comfortable enough to answer your questions. Remember, its jury selection and not cross-examination.
- Talk to jurors, not at them, and listen to and care about the responses they provide. Subtly match jurors' body language, style of speech and tone. Use your personality in any way possible to win over the jury (don't be obvious about it!!!).
De-selection. A biased juror can sway an entire jury to his / her side of the case. You must use voir dire to ferret-out biased prospective jurors. Rather than relying on a person's demographic background as the sole indicator of whether he / she is good or bad for your case, it's much more telling to ask jurors open-ended questions to determine their prior experiences. Before you step into the courtroom, know what biases you are looking to expose. This can simply be done by understanding the issues in your case that will trigger a bias in a potential juror. When evaluating these issues in your case, take into account jurors' prior experiences, values, beliefs and attitudes. Remember, it is better to hear that a jury is biased before a verdict is entered, so don't worry about "tainting the jury pool" by asking a de-selection question.
- Open-ended questions: When asking a de-selection question, make sure that it is open-ended. Open-ended questions allow jurors to share their beliefs with you and hopefully divulge information that can assist in de-selection.
- Reinforce: Complement jurors for giving honest answers that reveal their biases. This will encourage other jurors to also give honest answers.
- Survey: Immediately after you reinforce, ask the other jurors whether they agree with a particular juror's response. Your goal in asking for jurors who agree is to identify jurors with similar biases. You should then ask these biased jurors to share their experiences.
- Confirm: Confirm jurors' biases and get jurors to commit to their bias. To successfully challenge a biased juror, you must highlight his or her prejudice for all to see.
- Eliminate: Once you confirm a juror's bias, they should be struck for cause immediately. Don't let biased jurors hang around.
Key Themes. When the opportunity presents itself, you should attempt to precondition jurors to the key themes in your case. This should not be done by lecturing the jury, but rather by embedding your themes in the voir dire questions. For instance, in a personal injury case where you are representing the defense and one of your main themes in the case is the plaintiff's failure to take responsibility for his / her own actions, you may precondition jurors to this theme by asking: Does anyone believe that a person should not have to take responsibility for their own actions? Most likely no one on the jury is going to agree with this question. In turn, you have preconditioned the jury to a key theme in your case.
- Indoctrinate: Remember what jurors told you during jury selection. Use their words, body language, analogies, and stories and reframe them in terms of the stories we want to tell on behalf of our client.
When you approach jury selection with the jury's psychology in mind, your artistic ability in selecting a jury will flourish. Remember and utilize the three keys to jury selection: 1) Likeability; 2) Prior Experiences and 3) Preconditioning, to give yourself the best chance at winning your case.
**This article previously appeared at ronkurzman.com and www.MangaLS.com
Ron Kurzman, Esq., is a Partner and Litigation Consultant at Magna Legal Services, LLC. He is an expert in assisting counsel in developing trial strategy for large, complex matters, based on behavioral research and jury analysis. As a litigation and trial consultant his activities include the development of trial strategy and tactics, jury selection and voir dire, implementing shadow juries, witness communication training, ordering of evidence, opening /closing statements, development of themes and arguments, demonstrative evidence preparation, and teaching persuasion techniques. He works with members of the trial team to develop themes and case strategies that will be persuasive to juries, judges and arbitration panels.
Ron Kurzman, Esq.,
Partner / Litigation Consultant
Magna Legal Services
The Newly Revised U.S. “Trade Adjustment Assistance” (TAA) Program Under the 2009 Amendments
By Dr. Hong Tang, Esq.
Under the weight of the world financial crisis, it has been an inarguable fact that the U.S. economy slowed down and, along with it, the domestic employment rate. Thousands of U.S. workers have lost their jobs. Although inextricably tied to the global financial crisis, a lot of people blamed American engagement in globalization as the impetus for domestic production and jobs being shifted to low-labor-cost nations, such as China.
Although not known by many people, there is an effective domestic “safe-net” for those U.S. workers that are negatively affected by U.S. international trade policy—the Federal “Trade Adjustment Program.”
The U.S. Trade Act of 1974 (19 U.S.C. § 2271 et seq.) established Trade Adjustment Assistance (TAA) to provide assistance to U.S. workers, firms, communities and farmers hurt by foreign trade. The Program has been in existence for about 36 years and has also been amended several times during this period. It provides both rapid and early assistance.
Under the TAA Program, U.S. workers, firms, communities and farmers may be eligible for a variety of TAA services and benefits if they were laid off as a result of increased imports (foreign trade) or if their companies shifted production out of the United States to certain foreign countries. The services and benefits available include, but are not limited to, job training, income support, job search and relocation allowances, a tax credit to help pay the costs of health insurance, and a wage subsidy to workers 50 years of age and older.
President Obama signed the Trade and Globalization Adjustment Assistance Act of 2009 on February 17, 2009. This new law was part of the American Recovery and Reinvestment Act of 2009 (the “Stimulus Bill”). The 2009 Act overhauls the TAA Program and expands TAA coverage to more U.S. workers and firms, while also improving workers’ opportunities for training, health insurance coverage, and reemployment. The 2009 Amendments amend the provisions of the 2002 Act in several substantial ways.
This new legislation has significantly improved the Program. One significant change/improvement resulting from the Stimulus Bill is that it extends the Trade Adjustment Assistance benefits to workers in the service sector and public agencies (originally only workers in private production sector were eligible for the Program).
Another more important change/improvement is that the new legislation eliminates the prior requirement that “workers [be] laid off as a result of increased imports or a shift in production to a country that is party to a free trade agreement with the United States, or a country that is named as a beneficiary under the Andean Trade Preference Act, the African Growth and Opportunity Act or the Caribbean Basin Economic Recovery Act.” In the criterion of “Group Eligibility Requirement,” the 2009 Amendments extend the benefits to those workers whose firm has shifted production to any foreign country (before the amendment, it had been limited to those countries that have a trade agreement with the United States and those least-developing countries accepting international aid from the United States). This means those workers who are hurt by an emerging economy’s exports and the outsourcing of service and production to an emerging country, and used to be ineligible for the benefits, are now able to file a Petition to seek benefits and services under the TAA Program.
The problems related to the limitations imposed by the previous criteria were evident in the case of China. As we all know, China is widely considered a “world factory.” In recent years, the import of goods from China has significantly increased, resulting in the layoff of U.S. workers, bankruptcy of U.S. firms, and decreasing/weakening of U.S. communities/industries and farmers in competing businesses. Because China is neither a party to a free trade agreement with the United States nor a named country under any U.S. Trade Aid Act, affected U.S. workers, firms, communities and farmers were not eligible for any TAA Petition/benefits.
Nevertheless, under the new legal norm established by the Stimulus Bill, those U.S. workers, firms, communities and farmers that are affected by increased imports from, or shift in production to, China are now eligible for TAA benefits and services.
TAA assistance is a U.S. Program primarily administered by the U.S. Department of Labor—Employment and Training Administration—Office of Trade Adjustment Assistance, in consultation with the U.S. Department of Commerce and the U.S. Department of Agriculture, with no cost to the negatively affected U.S. commercial companies or public agencies at all.
In qualifying for benefits and assistance, the injured U.S. workers, firms, communities and farmers, or their representing counsel, need to file a Petition with the U.S. Department of Labor. Once the Petition is filed, the U.S. Department of Labor will determine whether a significant number or proportion of the workers of the firm have become totally or partially separated or are threatened to become totally or partially separated, and whether imports or a shift in production of services to a foreign country contributed importantly to these actual or threatened separations and to a decline in sales or in production of articles or supply of services. Workers in public agencies (such as the USCIS) may also qualify for assistance where an agency has acquired from a foreign country services like, or directly competitive with, the services the agency supplies. (For example, some U.S. public agencies outsource part of their services to China, India, or South Africa, which results in the layoff of some of their workers/ officers in the agencies.)
The U.S. Department of Labor’s decision on a TAA petition is subject to the judicial review of the U.S. Court of International Trade (a U.S. Constitution Article III Court—a trial court that specializes in and has exclusive and nationwide jurisdiction on cases involving international trade and customs issues). A decision of the U.S. Court of International Trade is appealable to the U.S. Court of Appeals for the Federal Circuit (a U.S. Constitution Article III court—an appeal court that has exclusive and nationwide jurisdiction to hear cases decided by the U.S. Court of International Trade).
Section 1856 of the 2009 Amendments contains the sense of U.S. Congress as it applies the TAA program: “The Secretaries of Labor, Commerce, and Agriculture should apply the provisions of [trade adjustment assistance program] with the utmost regard for the interests of workers, firms, communities, and farmers petitioning for benefits.”
The TAA Program was created by U.S. Trade Act of 1974 and has been in existence since then to help U.S. workers, firms, communities and farmers affected by increased international trade. The U.S. Trade and Globalization Adjustment Assistance Act of 2009 further expands the benefits under this Program. It is a reasonable projection that with the further process of globalization and the involvement of the United States in the global economy, the needs for TAA benefits will also increase significantly and, correspondingly, more and more affected U.S. workers, firms, communities and farmers will file Petitions for TAA benefits.
**This article was reprinted with permission from: New York International Chapter News, Summer 2010, Vol. 15, No. 1, published by the New York State Bar Association, Albany, NY 12207.
Dr. Hong Tang is a practicing lawyer and scholar focusing on international law and policy. Dr. Tang received an S.J.D. from the Golden Gate University School of Law, and an LL.M. from the University of the Pacific, McGeorge School of Law. Dr. Tang has been admitted to the Bars of the State of New York and various Federal Courts. He is currently Chairman of the Subcommittee on Climate Change under the United Nations Committee at the New York City Bar, and the official representative of the New York City Bar to the United Nations. Dr. Tang is the Vice-Chair (2010-2011) to the U.N. & International Institutions Coordinating Committee and the International Environmental Law Committee of the American Bar Association (ABA International), and a Steering Group member (2010-2011) of the International Energy & Natural Resources Committee of ABA International. Dr. Tang is also an Executive Committee member of the Young Lawyers Section at the New York State Bar Association. Dr. Tang's research, practice and interests cover almost every area in international law and policy. Dr. Tang can be reached at email@example.com.
Coming Up from the Young Lawyers Section
Manhattan & Queens Districts of the Young Lawyers Section
“Fall Meet and Greet”
Tuesday, November 9, 2010
Join the New York State Bar Association's Young Lawyers Section for a Meet & Greet on Tuesday, November 9, 2010 at 6:30pm at The Hill, located at 416 Third Avenue (at 29th Street) in Manhattan. The event will be co-sponsored with the Asian American Bar Association of New York (Young Lawyers’ Committee) and the Society of Young Lawyer Entrepreneurs. Come meet future colleagues (and in some cases, opposing counsel) in a relaxed and enjoyable social setting. Complimentary hors d'oeuvres will be served and a cash bar will be available.
Please RSVP no later than November 8, 2010 to firstname.lastname@example.org.
Please note: Any New York State government lawyer who attends must pay the $5.00 per person cost because of the gift rules. You may pay when you check in at the event.
Save the dates for the following Young Lawyer Section Events
Annual Meeting ½ Day Morning Program
Wednesday, January 26, 2011
Hilton New York, New York City
Bridging the Gap
Thursday and Friday, January 27-28, 2011
Hilton New York, New York City
Young Lawyers Section Trial Academy
March 23-27, 2011
Cornell Law School, Ithaca
This 5-day trial techniques program will teach, advance and improve the courtroom skills of young lawyers and place an emphasis on direct participation. Each morning will feature a group lecture on an aspect of the trial process followed in the afternoon by small break-out groups to put the theory into practice on topics such as Jury Selection, Opening Statements, Evidence, Foundations and Objections and Closing Statements. Each break-out group will be lead by experienced Team Leaders that will be dedicated to your group throughout the week.
Young Lawyers Section United States Supreme Court Admissions Program
June 12-13, 2011
Hyatt Regency Hotel, Washington, DC
Spend two exciting days in our Nation’s Capital. To qualify for admission to the bar of the United States Supreme Court, you must have been admitted to practice in the highest court of a State, Commonwealth, Territory, Possession or the District of Columbia since at least June 12, 2008. Please plan on joining us for an exciting experience, culminating with your admission to the Supreme Court of the United States.
Save these dates for these programs and watch the mail for registration materials!
Electronically-In-Touch is the monthly electronic newsletter of the NYSBA Young Lawyers Section (YLS). It is a member driven publication, encouraging YLS members to write articles, and as such we would welcome submissions from members on any relevant topic, including practice tips, substantive legal articles, case updates, work/life advice, and information regarding upcoming meetings and events. Please submit articles to Nilesh Ameen, Esq., at email@example.com, no later than the 10th of the month.