Reviewing a recent book on persuasion trial trips based in science, Stefan Love’s conclusion is that the tips are in greater abundance than the science. True, there is much interesting science on the limits of human attention: for example, you can get a jury to remember a few things, but one too many and they forget it all. But does this mean you should ditch a particular piece of secondary evidence at trial? That, as ever, still comes down to discretion and common sense.
Stefan talks with Jeff Lewis and Tim Kowal about some of the other helpful trial advice in John Blumberg’s Persuasion Science for Trial Lawyers, and whether it is scientific, or just common sense. Advice like:
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Stefan Love 0:03
If your first and second strongest argument for an outcome, haven't convinced your reader, don't bother with the third one because it's probably not going to do it I've
Welcome to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal, and the California Supreme Court. And now your hosts, Tim Cole and Jeff Lewis.
Jeff Lewis 0:26
Welcome, everyone. I am Jeff Lewis.
Tim Kowal 0:29
And I'm Tim colwall, the California appellate law podcast as a resource for trial and appellate attorneys. Both Jeff and I split our time about evenly between trial and appellate courts. We're both appellate specialists and we try to give our listeners some legal news tips and perspectives that they can use in their practice.
Jeff Lewis 0:46
And a quick announcement this podcast is sponsored by case text case Tex is a legal research tool that harnesses AI to lightning fast interface to help lawyers find case authority fast. I've been a subscriber since 2019 and I highly endorse the service listeners of the podcast will receive a 25% lifetime discount available to them if they sign up at case Tech's dot com slash scalp. That's case text.com/ca LP
Tim Kowal 1:11
Today we welcome Stephen love to the show. Stephen is an appellate attorney at grinds Martin Stein in Richland. Before joining gmsr, Stephen clerked for Judge Paul J Watford at the Ninth Circuit, Stephen has published in law 360, the business lawyer, UCLA Law Review, and UCLA Journal of Law and technology. He graduated first in his class from the UCLA School of Law. Before Stephen became a lawyer. He was a professor of music theory holding a PhD from the Eastman School of Music. Stephen, welcome to the podcast.
Stefan Love 1:43
Thank you very much. Thank you.
Tim Kowal 1:45
I was I was very interested to read in your in your bio about your music background. And I wonder if you tell us a little bit about yourself and your practice.
Stefan Love 1:53
So I started out as a music professor, as you mentioned, and then my wife is actually a TV writer, and I was a music professor in Massachusetts. And my wife is a TV writer in LA and that wasn't working so great. So I sought out another career I came to LA came to UCLA School of Law. And I knew from my first moot court experience that appellate law was for me, I loved writing the briefs really just sinking my teeth into complex analytical issues and questions. And I love love, love oral argument. It's a lot like teaching, in that, you know, teaching is kind of a persuasive act, you have to bring your students around to your view of things. And it's also in the same way oral argument is actually an educational act in that you are educating the judges or justices about your case. So the commonalities between my former life as a professor and my current life as an appellate lawyer, are deeper than they might first appear so that it was at UCLA that I realized appellate law was for me. I spent a year after law school at a big law firm just doing trial litigation. And then I went and clerked for Judge Washford, as you mentioned, which was a transformative experience. He is an incredible judge and credible legal thinker. And I was very glad to get right out of that clerkship, my current position, as you mentioned at grayness Martin, the LA based appellate boutique,
Tim Kowal 3:25
and what are some, can you draw any commonalities between your music career and your legal career? I hear sometimes, you know, kind of behind the scenes conversations with songwriters about words and music. Do you write the words? First you write the music? First? I wonder if there's any similar themes with with brief writing or arguments? Do you come up with the the analytical logical arguments first? Or do you come up with a theme or story of the case? First?
Stefan Love 3:50
I tend to I tend to go arguments first, for sure. The other thing that strikes me as linking music theory to legal analysis, is there there's not and this will bring us actually to our topic a little bit. It's, you can't look up the right answer of how do you analyze this piece of music, really, you're taking certain analytical tools, and you're applying them to the piece of music and you're trying to convince your students or somebody reading your academic article, hey, I've got the right approach to this, but the music kind of stands on its own terms. The same goes with the facts of a case or an appeal. The facts are the facts and the legal theory, or theories that the different sides bring are kind of standing independent of those facts. So there isn't a kind of certain right answer the way there would be with a math problem or something like that. Really, you're trying to convince your jury or your judge that your connection between the theory and the facts is the right one, but it can't be It can't be definitively or deductively proven in the way it might In some other discipline
Tim Kowal 5:01
right now, that's the interesting thing about and we will get into this. We're going to talk about John Blumberg book about persuasion science for trial lawyers in your review of that in the recent California litigation magazine. And and we talked a little offline or over email about the difference between, you know, arguments that are or advice that is ScienceBase. And advice. That's just good sound advice. I don't know how you would go about proving it by science. But it's in talking about, you know, words and music and what makes what makes for a good argument analytically, and what makes for a good argument in a persuasive sense, and they're not always the same thing. I was reminded of an anecdote, I can't remember who the who the songwriter was, but it was a writer heard someone whistling the tune to a song he had wrote the lyrics for, and he said, Oh, you know, I wrote the lyrics for that. And he's, and the guy whistling a tune says, Yeah, but I wasn't whistling the lyrics, you know, sometimes it's the music, that it's memorable. And if you can get a you know, that's that's kind of what's persuasive, you have to find a way to persuade. And sometimes it's a little bit different from what, you know what the cold logic of the case is about. Absolutely. So so let's get it. Well, you know, I did want to want to ask you a couple other kind of background questions about you, in your experience as an appellate attorney, what is uh, do you think of any common mistakes that you see other attorneys making like, either trial attorneys or appellate attorneys?
Stefan Love 6:21
making too many arguments, too many different arguments? I see. The typical brief raises too many issues, pick your strongest arguments, pick your strongest issues and drop the rest, because you're distracting or, you know, irritating your reader by bringing in a lot of less effective issues.
Jeff Lewis 6:42
I usually find two to three is the magic number for briefs in terms of appellate briefs, I like to find my two or three strongest issues and then drop the rest Do you Do you sometimes file single issue appellate briefs,
Stefan Love 6:54
two or three is what I've tend to use as well. But I the case kind of dictates it because you know you can get if there's a complex procedural posture, you kind of have to tackle additional issues. But I guess maybe it's not even so many issues, as much as it is arguments. If your first and second strongest argument for an outcome, haven't convinced your reader, don't bother with the third one, because it's probably not going to do it either. You know, if you know it's your weakest, just save the words, save the time,
Tim Kowal 7:27
you ever be able to really struggle trying to trying to drop an argument, you know, you've got got it maybe got a third or a fourth argument, that's it's really quite strong, you're kind of partial to it, you know, that maybe objectively, it's not the strongest, but you just have trouble dropping it, or maybe your client doesn't want you to drop it.
Stefan Love 7:46
That's the it's the latter. I think that that is more of a struggle as a client has maybe a pet argument. And you know, in the appellate sector as well, this can be an issue, if something was a really important issue at trial argument at trial, it can be hard for the client or trial counsel to let that go on the appeal. But it might be just a loser argument. And that might not even be because of the substance of the argument. It might be, for example, if we're talking about a substantial evidence issue, you lost that issue at trial, you are not going to get that reversed 99% of the time. Yeah. So boy, you spent so many hours trying to work that one at trial, and you lost and probably you got to give it up. It's just not going to not going to change on appeal. And that can be hard, hard point to make, you know, to the client or trial counsel.
Tim Kowal 8:38
Yeah. I had an experience that I don't know if it confirms or disconfirms. The advice about, you know, about dropping the weaker arguments, I dropped an argument. That was because it was an abuse of discretion type of argument, it was that the trial judge erred because he should have bifurcated the accounting issue and held that first because their whole bunch of issues, legal errors on the accounting, gave it to the jury, that sort of thing. But I thought, Well, gosh, it's an abuse of discretion. It's going to be hard to win. I wound up so I dropped it. But I wound up winning on that issue. The Court of Appeal raised that issue sua sponte, and said that the trial court abused its discretion. I thought, wow, that's, that's interesting. So I didn't even raise that argument. Maybe it's because the way I drafted the procedural, you know, the statement of facts and procedural history, so that it really elevated that issue without me having to directly argue for it.
Stefan Love 9:28
I had the experience recently where I left an argument out of a brief after discussing it with my the other counsel for my firm on the case and with the client. And then and we were the appellant and then the respondent made a big deal. And they were in the respondents brief. They wave this argument, oh, they can't raise this on reply. And I thought, Oh, no. Should I have raised this like, Did did. Are they kind of so relieved that I didn't raise this because they were afraid that I would raise this that really gave me pause. about, gosh, maybe actually should have should have kept that one in. Yeah.
Tim Kowal 10:03
Okay. Last quick last personal question. Every appellate attorney, you know, has the favorite part of their practice to write the briefs. Do you have a favorite part of your practice other than writing briefs?
Stefan Love 10:15
I mentioned oral argument before and I like oral argument even better than, than writing the briefs. I was very fortunate to actually do an argument before the California Supreme Court about a month ago in a in a pro bono matter. And I love love preparing for it. And man, I love the argument. I just it's such a thrill. It was not a by video or in person. It was by video is remote. Yeah. Interesting.
Jeff Lewis 10:43
I've never I've never argued before the Supreme Court. I've never argued to a panel more than three justices. I imagine. Boy, the preparation for that is, is unbelievable. Did you do a moot for that? In advance of them?
Stefan Love 10:54
Yes. I did a move with three other lawyers from my firm. And they were it was it was like a three hour move. It was really, really involved. But I felt very prepared by the end of it. And of course, the real court was easier on me than the than the moving attorney Chapin. Yeah,
Jeff Lewis 11:10
I bet. Hey, before we jump into the California litigation article, I have a question. Do you ever in addition to writing appellate briefs and arguing cases, do you ever serve as embedded counsel for trials we ever sit and look across the trial? Lawyers shoulder and help them out to make sure they're preserving appellate issues?
Stefan Love 11:26
I haven't done it yet. But it's something that that my firm does pretty regularly.
Jeff Lewis 11:31
Tim Kowal 11:33
Okay, well, let's let's talk about your review of John Blumberg persuasion science for trial lawyers. As I mentioned, this, this article can of yours can be found in the spring edition of California litigation magazine. Blumberg book promises to go beyond mere anecdotes of how to do it in terms of persuading a judge or jury at trial, and to go into the science of how jurors are actually persuaded. And Stephen, your article tackles the question of whether Blumberg actually fulfills His promise of getting offering science backed advice to trial lawyers, if you would tell us a little bit about Blumberg book, and maybe just in general, how you rate it.
Stefan Love 12:15
So I thought Blum Berg's book was excellent as a compendium of trial tips and strategies, absolute Absolutely, strongly recommended in that way, I think as a compendium of science, it was a bit weaker. It's to kind of reiterate what you said, the way Blumberg positions. The book is, here's this advice. And he's a very experienced trial lawyer. But he's saying this isn't just based on my experience, and my talking to other lawyers. This is based on science. And so in that way, the book kind of slots into this popular science vein of, you know, some counterintuitive, eye opening suggestions are an analysis of everyday situations. That's really how Bloomberg is trying to position this book. And I found that sometimes the scientific angle fell short of that promise. One common weakness, I might say is that the science just turns out to confirm common sense. So for example, it's an evergreen writing tip, to write more simply avoid unnecessarily complex words, avoid long sentences, keep things simple, keep things direct, keep things plain. That's just every everyone who thinks about writing and who has tried to improve their writing has encountered that advice. And sure enough, there are scientific studies that prove supposedly that this is good advice. Do we need those studies to know that this is good advice? Personally, I don't think so. So for Blumberg to say, you know, in your strive for more simplicity in your legal writing, Oh, and here's the science that tells you, you should do this. It kind of feels like like painting the lily, like we know, this is good advice. We've heard this advice before. So fine, there's a study that confirms it. But it seems more like a matter of packaging something than actually using the science, the science isn't really doing any work. And then the other way that the science the science angle, sometimes fell short of the goal is where the scientific study might have even been distorted to serve Blumberg point. So let me give an example of this. There's a scientific finding that psychologically people strive to maintain the status quo of their beliefs. So we all you know, approach the world with certain assumptions about how it works. Just to give an example, somebody might have a view that corporations are big and evil, and they don't care about people. And this is a kind of bias or assumption somebody might bring to the world and when we learn something new or when presented with new information about the world according to the science, we try to conform that new information to our pre existing beliefs. So if I hear about corporation you know, there's a dangerous product of corporation put out I'm gonna that's confirms for me Oh corporations are bad, typical heartless Corporation. And maybe the story of this product hurting somebody also involves the person using the product might not have, you know, done so in the most intelligent way. But I'm going to read this I'm going to understand his story in the way that maintains my own biases. So that's what the science says we strive to maintain the status quo of our beliefs. But when Blumberg starts talking about this result in his book, he shifts it to be the real world status quo. And the example he gives is plaintiff's counsel trying to get a jury to award a verdict to the for the plaintiff, and award damages. And so Blumberg says, well, the plaintiff's lawyer is always because of this science is facing an uphill battle, because that award of damages that plaintiffs verdict that shifts the concrete state of the world that shifts money from the defendants hands to the plaintiffs hands, and that imposes liability on that defendant that takes the kind of pre trial status quo and seeks to alter it. And according to Bloomberg, this is more difficult because everybody's trying all the jurors are trying to maintain the status quo. But what Blumberg does here is conflate the status quo of our beliefs with the status the real world status quo. And it's true that a plaintiff's verdict does alter the real world status quo. It shifts money from the defendant to the plaintiffs, it imposes liability where there was none before. But if the if a juror on that jury approaches this case or trial already with beliefs that might favor a plaintiff's verdict, I believe that corporate and big corporations are evil and don't care about people a belief that, you know, the little guy is always getting screwed the little guy being the plaintiff, then actually that juror, Juror voting for a plaintiff's verdict is maintaining that juror status quo. So that plaintiff's lawyer is actually being helped by this bias of this juror, and any other juror have the same set of beliefs. So that in other words, the scientific finding that people strive to maintain their mental status quo can actually end up helping plaintiffs or defendants. But Blumberg is conflation of the real world status quo, with the psychological status quo leads him to kind of distort the significance of that research to the trial con,
Tim Kowal 17:46
right. And jurors might not have the same the same fascination with status quo as judges and attorneys do. We understand that, you know, the status quo or the status quo ante and judges are in the court system itself is parsimonious. They don't want to act unless they know that those certain legal thresholds are met. And jurors don't necessarily have those hang ups. They just like you say they might have some view their own personal view of the world that corporations are big and evil, and they ought to pay whenever someone is hurt within their Ambit, they ought to pay and they don't have any compunction against disturbing what lawyers and judges think of as the status quo.
Stefan Love 18:24
Right. So that illustrates, you know, another way that the science elements sometimes falls short in Blumberg book that the research might be distorted to make what might be a very valid piece of support what might be a very valid piece of advice, but it's not coming from the science at least,
Tim Kowal 18:41
right? Well, as I read the book, as well, after I read your your excellent review of the book, I thought, well, this, this book promises to have at least a lot of good tip, Stephen points out that maybe maybe some of them are backed by science, maybe not all of them are backed by science, but at least I'm gonna get some interesting tips. And I wrote them down and I thought maybe we could talk about them. And at a minimum, or our audience can hear about some of Blum, Blumberg steps and read them for them for themselves. I thought maybe we could discuss each one, whether whether they're backed by science, whether they're not backed by science, and whether, you know, regardless of whether they're backed by science, if if it's still a good tip, and how we can know it's a good tip if it's not actually backed by science. So here's the first one I wrote down. Excessive information can lead to worse, not better decisions. I don't know if you recall that from Bloomberg book. Do you recall it that is backed by science or not backed by science? As you can recall,
Stefan Love 19:38
I believe that one had some pretty good scientific backing. And you know, you can imagine the studies, and I'm sure Blumberg read them inside of them that support this kind of finding where somebody is kind of overwhelmed with information about a decision and they freeze or they take longer to make the decision or they make a worse decision. Sherman, and actually a few of a lot of Blumberg advice, I think actually comes from what is this core scientific finding about the limitations on people's attention. We can't hold on to that much information at one. And that's a kind of core failing of human psychology. And so trial lawyers, I think Blumberg is exactly right. Should should keep that in mind.
Jeff Lewis 20:22
Yeah. And and appellate lawyers, I can't tell you. I've been in cases where the other side files an application for an oversize brief. Are you kidding me? Yeah.
Tim Kowal 20:32
Application to make worse arguments exactly undermine my persuasive impact. I remember Bloomberg related to a story about a study where participants were asked to remember you know, certain number of numbers I think, and and then walk down the hall and report all the numbers they can remember to the other person with the clipboard at the end of the hall. And the first group did it and reported their numbers and did fine. And then the second group went down the hall, but right before they got to the person with the clipboard, they were confronted by another person who gave them another bit of information. And then they did much, much worse than the first group. So I think it goes to your, your initial tip, when we first started talking about don't throw the spaghetti at the wall don't make too many arguments. It undermines your, your persuasive impact.
Stefan Love 21:14
And sometimes I found myself actually digging in trying to come up with like the third nuance on some argument, I'm trying to make an A brief, like just kind of digging, digging, digging deeper, and I thought, okay, I can barely think of a way to write this down in a way that I'll be able to understand it two months later, maybe I shouldn't even say this, because there's basically zero chance that the person reading it is even gonna get what I'm saying. So an argument can be perfectly logical and correct. But it's a loser argument because it's too complex. And it gets to this point, yeah.
Tim Kowal 21:51
Okay, almost by think of it as, imagine if you could, you could talk underwater, trying to communicate to someone underwater while they're holding their breath. You know, get the get the key points out and then let that person get up for a gasp of air for heaven's sake. Okay, here's another point that Blumberg another bit of advice from Bloomberg. But there are really only two grades in the practice of law a or F. Basically, it's all binary, you're either going to persuade or failed to persuade is that scientific, scientific observation or not scientific?
Stefan Love 22:19
That doesn't sound like science to me. But But I do think it gets to really what what this is what Weinberg's point is, you either win or you lose? Whether it's the issue or the you know, the motion or the trial, you win, or you lose? And you know, these tips have succeeded or failed. The only way, you know, the only feedback you get that really counts is whether you win or you lose, you can watch the jury or watch the judge for signs of, you know, understanding or signs of agreement, but you really don't know till the end.
Tim Kowal 22:50
Yeah. Here's a tip that Blumberg relates from Robert F. Kennedy, on lessons that he learned during the Cuban Missile Crisis. And this this advice from Kennedy is do not humiliate your opponent, always leave your opponent away out. Is this science or not science and as a good advice, or regardless of whether it's scientific,
Stefan Love 23:11
I don't think it is science. I can't even imagine what this study would look like that would prove this. But it sounds to me like really good advice you face and saving face is really important in negotiations in trial. And you know, what I'm thinking of, as one application of this advice is when you're arguing that the trial judge if you're writing an appellate brief, and you're arguing that the trial judge made a mistake, don't pile on. Don't go too hard about that. And this isn't necessarily that the that the appellate justice, personally, you know, wants to save his or her own face, but they're going to be sensitive to the trial judge. And then if you are just tearing into this trial judge, oh, my gosh, this judge made was just so dumb. How could they make this error of live? So obviously, the Court of Appeal might actually be resistant to that kind of vicarious face saving on behalf of the trial judge, they're going to be maybe more inclined to hold that the trial judge made an error if you say, Hey, listen, this is there was an error here. Nothing too embarrassing about it. But that's it. This is just not what the law is. Right? So that kind of emotional dimension matters and a lot of times,
Tim Kowal 24:26
okay, next tip from Blumberg. Juries learn better with pictures, but avoid competition for resources. In other words, don't use written word and spoken word and pictures all at the same time because that tends to overload the jury's cognitive abilities. Is that science or not science? And is it good advice regardless,
Stefan Love 24:47
I love that advice. And I'm glad you brought it up and I think it is I think it's good science. I remember Blumberg citing a study or studies about that very point. And I remember finding that to be counterintuitive. But I was very gratified to learn it for that reason. But then I thought back to all of the times I've sat through a PowerPoint presentation, and the presenter pops up the slide. And there's a big block of text there. And the presenter is maybe reading the text or maybe paraphrasing it at the same time as it's up there. And maybe I'm ignoring the presenter because I'm just reading the text. And I thought, Gosh, this is this is spot on, give the juror give the judge give your listener, one thing to do at a time. Look at the picture, listen to your voice. Don't make them do all the things at once.
Jeff Lewis 25:36
I'm a big fan of using pictures in text. And did you notice in the Supreme Court decision involving prayer for the 50 year 50 yard line? The dissent by Sotomayor used not one, not two, but three photographs of the huddle at the 50 yard line I thought was very effective contrast to have the majority opinion author described. The prayer is very effective. Yeah, very striking.
Tim Kowal 26:02
Okay, next tip, and this is related but a little bit different. Blumberg says you should not present all the evidence at trial because it overloads the jury's cognitive capacity. And this is sometimes hard to this is a hard sell for trial attorneys because I got good evidence I want to put it all in front of the jury but Blumberg suggests you might be overloading the jury on on that score. What do you think science, not science. And as a good advice. Regardless,
Stefan Love 26:28
I think this is science to this gets back to what we were saying about the limits on attention and memory. And there's a lot of different kinds of research to back that up. And it strikes me as good advice as well. This is a kind of another version of the same problem we talked about earlier where you know, the temptation might be to raise every argument, you made a trial, also raise it on appeal. Similarly, if you've gone through all this discovery, if you've gathered all this evidence, before trial, you Boy, you really want to put all this in front of the jury to make all that work in your mind at least pay off. But ultimately think about what's gonna be most persuasive, the jury is going to remember the most compelling bits of evidence. And it's going to be only a very small percentage of the entire record. If you think about the record has all the discovery you you ever did. So the difficulty is selecting that most compelling subset of the evidence and really presenting that to the jury and emphasizing it again. And again, that's what's going to lead the jury to, you know, go to the jury room, and that's going to give them what they're going to be talking about when they reach a verdict.
Tim Kowal 27:38
Okay, continuing on that theme, Jeff and I on this podcast, we've discussed in brief writing how it's how important it is to have white space in your briefs that the eye craves that you need to see the end of paragraphs and the worst thing in the world is just see this page pages long blockquote that they have to read through without any indication of what is actually relevant to the case. Blumberg says it suggests something similar for a trial attorneys a trial trial lawyers should consider taking moments to stop talking allow the jurors to actually process the information they've been given. And Blumberg also I recall talks about how judges are a little bit some sometimes a little bit too ruthlessly efficient in their trials in the name of being considerate to the jurors and their function. They actually in their ruthless efficiency, they don't allow the jurors actually process the information. What do you think about that Stephen is that science or not science and is a good advice regardless,
Stefan Love 28:31
that strikes me as science, if I'm if I'm the arbiter of what is science that strikes me as science, again, getting to these, the limit on attention, this core limitation on human cognition. And it's good advice. The effect of the pause is sometimes underestimated, whether in an oral argument or in an examination of a witness or an opening or closing argument, both as a rhetorical tool and as a mental breathing space for your listener. When it comes with regard to efficient trials, I think we ought to be clear about what efficient means coming back to this point about not throwing all your evidence before the jury. Suppose the trial is going to take exactly the same amount of time. But you take, let's say, 10% of the evidence you were thinking of putting up and instead you use silence or repetition of the other 90% That's probably going to make for a more effective trial, then if you throw that additional evidence in there, that the trial might take the very same amount of time. So from one definition of efficiency, it's no more efficient, but but it is more efficient in terms of you're using less evidence to achieve a greater persuasive effect.
Tim Kowal 29:48
And what happens when the judge says counsel, you're being cumulative and duplicative? This is not an effective use of the court's time.
Stefan Love 29:56
I suppose you you stop and you move on. Yeah.
Tim Kowal 30:00
But yeah, we're just offered the the second tier evidence, I guess. Okay, next next tip from Bloomberg, and this is on the topic of expert examinations. Blumberg says that when it comes to expert examinations try to create immediate interest. And he talks about the normal routine of starting in with the experts qualification. But that's, you know, for most jurors, that's just that's just dole is watching paint dry instead, he gives us example assume your your experts name is Dr. Jones, Dr. Jones, I'm going to be asking you whether there's a connection between repeated concussions and permanent brain damage damage. And so now with that question that the jurors are suddenly asking in their own minds, I wonder what his qualifications are for answering that question. And so you've is that, that struck me is good advice. But is, is that science or not science and is a good tip. In your view,
Stefan Love 30:53
it seems like a good tip. I don't know if that precise tip could find much scientific footing. But, you know, this is kind of 1000s of year old advice. We try to grab your audience. Nobody likes to read a recipe. Nobody likes to hear a recitation of somebody's resume. They want to hear about something concrete that they can grasp. i Another example that Blumberg gives about a more effective expert examination is to say, you know, Dr. Jones, how many heart surgeries on young children did you perform in the last year? And all of a sudden, we're seeing Dr. Jones, and we're thinking, wow, hard surgeries on young children this person really, that's that's serious stuff. Oh, and you performed, you know, 20 heart surgeries on young children. Oh, my gosh, you must really understand, you know, the heart or an anatomy or whatever it is that this person is being put up here for then maybe after you've got the jury interested in this person, you can, you know, explore their actual credentials to the extent you even need to.
Tim Kowal 31:52
Yeah. Okay, and then here's your here's the last tip that I wrote down from Bloomberg to ask you about when people are told what to believe, they often reject it and strongly begin to consider the opposite. So Blumberg advice, advice is to avoid triggering what he calls the reactance attitude of you can't tell me what to do. So you know, don't say things like the evidence compels a verdict. You want to give an inoculation against reactants, such as, you know, telling the jury, the jury that the decision is up to you. Is that is that science? Do you recall that it's being backed by scientific evidence? Or is it not science? And just maybe good advice? Regardless,
Stefan Love 32:32
I don't think there's much science behind that precisely, I think you could offer some, some science that's adjacent to it, such as when we discussed about the status quo of our beliefs, people might be more willing to go along with a conclusion that has some dissonance with their own pre existing beliefs. If the conclusion isn't stated, you know, in the strongest possible terms, so if they can, if they're kind of permitted to reach the conclusion, rather than, you know, demanded that they do it. I mean, what this comes down to really is the ancient idea that people are stubborn, that nobody likes to be told what to do. So you know, that that is a truth about human nature. And maybe that transcends science. One thing I've caught myself doing more recently, that fits with this advice is, you know, you're writing headings of briefs, or you're writing always the first or last sentence, and you you could you have a choice, you could say, and this could be in a trial level brief or an appellate brief, but I'll give you an appellate example, this court must reverse the decision below. Or you could say this Court should reverse the decision below. And I've been really aiming to go for should reverse lately, and it feels a little risky, like, oh, but they really must. I've got to, I've got to make them make them do it. But ultimately, you can't make them do it. So even though saying, you know, the court should reverse or the decision below rested on legal error, you're not demanding that they do anything, you're just presenting to them to the Court of Appeal in this example, here's what happened. You make your own decision, but you should reverse. It goes that goes along with this advice, if you don't want to Court of Appeal doesn't want to be ordered around.
Jeff Lewis 34:23
Yeah, whether you're speaking to appellate justices or teenage kids, I found should works better.
Stefan Love 34:30
Or I have the toddler actually added a preschooler as well. And even though I could, you know, make him do whatever I want, it's so much smoother. If I say, could you please, you know, take your shoes off. He's gonna actually a lot more likely to do it than if I say take your shoes off this instance. So right.
Tim Kowal 34:49
So we've talked about several bits of advice. Some of it is backed by some science, some of it's probably not backed by science, maybe maybe couldn't possibly be backed by science. It's just based on its nature. But just about all of those tips, I think we all agree that that they are good advice. Yet, if it's not backed by science, you know, how do we know? How do we know things are good advice if they're not backed by science? And I wonder if that's something you could draw on. On your music background, I remember seeing something somewhere explaining why we say things like, tick tock, but we would never say tock tick, or, you know, we say there are certain language patterns that are just kind of innate to us. And I don't know, if we, I guess you could put our brains under an MRI and say, oh, yeah, the brain somehow resists you get different, you know, different colors or patterns emerge when you say tock tick, rather than tick tock so it's tick tock is obviously more soothing. But I don't know if we have an answer to why we can just, we can just describe it, these things work and these other things don't work. Do you have any, you have any, any personal standards of how you, we all hear writing advice and an art, you know, how to be persuasive, that type of advice all the time? How do you rate? What, what is good advice, in your view?
Stefan Love 36:08
I think there before you get to science, you get to simple observation of what works, what doesn't to achieve a result. And I wouldn't want to expand the definition of science to take in this very, you know, simple, like, suppose any, you're trying to achieve any particular result, cook a meal, you know, build, hammer a nail into the wall, you're just it's a very, it's a concrete result in the world you're trying to bring it about, and you're trying different things to make it happen. Well, I've cooked scrambled eggs a lot in my life. And I've learned, what are good ways of doing that. Is any of that science? No, it's just instrumental. It's bringing about a result. And I think persuasion is just like that. How do you know when your persuasive technique has worked? You persuaded your your listener, you don't have to understand maybe you couldn't understand maybe it would be a waste of time to try to understand exactly why neurologically, that result came about the important thing is that it did or didn't know when it comes to assessing advice without having the support of science. I mean, we've we've sat here and we all we have a feeling that Blumberg advice generally is is good advice. How do we know that? I don't even think about studies. When when I think is that good advice? I just think about does it jive with my experience? Have I found myself to be more persuaded? I mean, when when we talked about the words plus pictures example, I mentioned how, as I read that advice, I thought back to all the bad PowerPoint presentations I've seen where the presenter bombarded me with all the different, you know, media at the same time, and I thought, oh, that's probably good advice. I don't have a study, I'm just one guy. We don't have a study of 200 people, and they understood something better or worse, depending on what they were exposed to. I just had my own experience. But that's enough for me to draw on and say That's good advice. That's bad advice. Same with writing advice. I have been working a lot lately on using shorter sentences, I find very often something that's a long sentence should be and is much more effective. If it's split up into two or three sentences. Do I have a study to support that? Absolutely not. But I can think, Oh, when I read good writing, that's one thing and good clear writing on complex topics. That's something I noticed about it. And then I tried to apply that to my own writing. And I see, gosh, that sentence, what does it look like? If I take that sentence and I split it into two sentences? Oh, I like how that sounds that does. That's punchier. That's clear. I don't have a study to back it up. But I do have my own experience. And I do have my own experience of whether it worked on me or not going to get back to this idea of achieving a result.
Tim Kowal 38:57
Let me ask you this way. If you had a choice between if you had to pick a trial consultant to help you help advise your your strategy, what evidence to offer what story to tell the jury, would you rather have a very successful social scientists or a very successful television writer?
Stefan Love 39:17
Jeff Lewis 39:18
Your wife? Well, your wife won't be listening to this. Don't worry.
Stefan Love 39:23
I might go with the TV writer. If we're talking about what's his story. How will I frame this evidence into a story that persuades persuades the jury? I think I might go with the writer, the TV writer, because I do think that and I don't think that's scientific. I don't think that I think that you can be better or worse at telling a story. And a TV and a talented TV writer is going to be good at telling a story. But is that science? I'm not sure it's more like they they're they're good at engaging our attention with the beats of a narrative. I mean, we feel engaged when we hear the stories they tell? Yeah, it's it's achieving real world results, I think more than its sign.
Tim Kowal 40:07
Now, what's your answer, Jeff?
Jeff Lewis 40:08
Oh, TV, hands down a TV writer, because it's all about grabbing attention and using storytelling and
Tim Kowal 40:16
yeah, no, I think so too. I think Stephen makes the point that, you know, social science has become very popular. They sell a lot of books. You mentioned Jonathan Hite in your article, Malcolm Gladwell. There's a several several authors who have popularized social science and how to explain the world around us. But yeah, there's a popular television writers have succeeded in capturing our imaginations for a lot longer than social scientists have.
Stefan Love 40:45
I think that if lawyers were limited to using only the tactics that have support from science, they could they would end up doing very little, because he just couldn't possibly justify everything you do when you're running a trial through, you know, a study, you have to go on intuition about what what achieves end result.
Tim Kowal 41:06
Yeah. Okay. Just the last couple of observations from Blumberg book, we're running a little long, but I did want to ask this question about, he talked about jury instructions. And this is something that's occurred to me too, you mentioned that studies show that jurors don't understand jury instructions. So just, you know, reading, you know, the judge spending half a day reading jury instructions to jurors is really not effective. They're not going to be shaken at any rate from their lifetime experience of what common sense is just by listening to the judge read the law. So with that in mind, what is the purpose of jury instructions? Are they are they just ceremonial? Is it just just for us? Appellate attorneys benefits so that we can say, look, they were duly instructed with the law?
Stefan Love 41:48
Ah, I would say it's ceremonial. I wouldn't say it's just ceremonial. I think the fact that it's ceremonial matters. I mean, what's the alternative that we don't even that we just give up any pretense and say, okay, Jerry, who do you like more? I mean, we have to, at least, we have to, at least, you know, make make a deferential gesture to the law, even if we might be cynical about the jury's comprehension of it, and of how the the possibility that the judge reading jury instructions could ever provide comprehension where it wasn't there before.
Tim Kowal 42:28
All right, so we've covered we've covered a lot of tips. I'd like to end by asking you to share with us if you would, maybe a piece of writing advice that you particularly like, or maybe an author or piece of writing that kind of is your muse or helps shape your approach to writing or to or to giving arguments at oral argument.
Stefan Love 42:47
I have to cite Paul Wofford, my my judge for my clerkship, he is a phenomenal writer, very clear, manages to, you know, never sound managed to present difficult legal concepts in just plain terms. And in a way that I strive to emulate I probably never will. But he his writing was a big influence on me having my draft opinions be completely rewritten by him into something that I thought oh, this is just there's no way to untangle how confusing this is. Oh, no, there is actually and he just did it. So if you ever need writing inspiration, look at Jed Blackford opinions.
Tim Kowal 43:30
Excellent advice. All right, Stephen, love. Thank you for joining us today. We're going to Jeff, do we have a few news and tidbits to give to our audience today? And Stephen, you want to stick around and maybe just offer any any comments if you have any to the couple of the cases we're going to read about?
Jeff Lewis 43:47
Yeah, sure. I could start with talking about a case. It's not a California case. That's why I found super interesting. It's Arkansas times versus Mark Waldrip. Coming out of Arkansas, I'm not sure which circuit and in 2017, Arkansas passed a law requiring public contracts to include a certification that the contractor doesn't boycott Israel, and a local newspaper sued saying that law violates the First Amendment this requirement for certification and the district court dismissed the action and stay on board. The Court of Appeal reinstated the law say it doesn't violate the First Amendment. And I will put a link in the show notes to this but I find it interesting because California has a very similar provision in California law and it'd be issued. See, if somebody takes us up to SCOTUS,
Tim Kowal 44:36
does that fall on a commercial speech distinction? Is it because it's a business that they have less entitlement to free speech?
Jeff Lewis 44:42
I think it was more it was more about just being content neutral, believe it or not, as opposed to commercial versus non commercial distinction?
Tim Kowal 44:49
Yeah, that'll be interesting to follow. Because it's
Stefan Love 44:52
about something extrinsic to the I mean, it's a it's about what the business is doing, you know, not in a speech way more like their action. Yeah,
Jeff Lewis 45:01
that could be too. That could be too. It just, it wasn't regulating, I guess direct enough a direct regulation of speech. Yeah.
Tim Kowal 45:10
Okay. The next tidbit is there's some some more news about the Los Angeles District Attorney George Gascon and his his efforts to to not enforce the three strikes law. He has now George guests don't guess Cohen has now filed a petition for review in the Supreme Court. In his brief, he argues that, quote for more than 25 years, this Court has declined to provide a definitive answer on the question of whether the law, the three strikes law violates the separation of powers. The time has come for this court to step in. And quote, that's that's Georgia scones petition for review to the Supreme Court on the constitutionality of the three strikes law.
Jeff Lewis 45:51
And I predict by the way, the Supreme Court will take that app, it's an interesting set of issues. I wasn't really fully satisfied with how the Court of Appeal resolved it and I predict the supreme court's going to take it up.
Tim Kowal 46:00
Interesting, Stephen, any, you want to weigh in there?
Stefan Love 46:04
No great insights there.
Tim Kowal 46:05
Yeah, I don't either. I'm, I'm not I'm not sure. I would be surprised, but sometimes I'm surprised. Okay, and then another bid on Orange County Superior Court Judge Derek Hunt was admonished recently by the Commission on Judicial performance over his conduct in four cases in recent years. I read through the admonish admonishment and noticed in two of the instances, Judge hunt ruled without allowing counsel to argue, and although the commission admonished him judge hunt did in his inimitable way, offer counsel some good advice on briefing when plaintiff's counsel in a certain case asked if he could submit an opposition before the judge went ahead and granted a motion to dismiss the case judge hunt replied, Well, the way it works is file when you can I'm not going to turn it down. I start reading and when I get bored, I stopped reading so put the good stuff up front. So I thought not proper but still good advice
Jeff Lewis 47:07
science or not science.
Tim Kowal 47:11
Jeff Lewis 47:12
And the other tidbit when you're in front of Judge hunters by the way don't put your hands in your pockets ever is not like it when you go in his courtroom and argue with your hands in your pockets.
Tim Kowal 47:20
I believe he's find attorneys for hands in the pockets
Stefan Love 47:24
and they just want more eyes in their pockets. What's he find them whatever was in their pocket? Yeah,
Tim Kowal 47:32
yeah. So same advice is for a judgment debtor examination. Don't don't bring any cash with you.
Jeff Lewis 47:37
One other update I'll just kind of surprise to read this. In the potter handy case. This is the case where the LA and San Francisco da has joined forces to file a lawsuit against the potter handy law firm for EDA lawsuits contending they were Shakedown frivolous lawsuits in federal court, etc. But super surprised. See, the Callahan and Blaine in Orange County is representing Potter handy and they came back with a demurrer and not an anti slap. I could have bet money that Potter Handy was going to come out of the gates with an anti slap motion but anyway, they filed a demur I don't think there's been a ruling yet but on the issue see what Callahan Callahan and Blaine does with this case they are they're a good firm.
Tim Kowal 48:13
Yeah, that's an interesting one to follow. All right, well, that wraps up wraps up this episode again, and we want to thank case text for sponsoring the podcast each week we include links to the cases we discuss using case text and listeners of the podcast can find a 25% discount available to them if they sign up at case text.com/ca LP.
Jeff Lewis 48:34
And if you have suggestions for future episodes, please email us at info at Cal Pat podcast.com. And in our upcoming episodes, look for tips on how to lay the groundwork for an appeal when preparing for trial. And remember to always keep your hands out of your pockets.
Tim Kowal 48:48
See you next time.
You have just listened to the California appellate podcast, a discussion of timely trial tips and the latest cases news coming from the California Court of Appeal and the California Supreme Court. For more information about the cases discussed in today's episode, our hosts and other episodes, visit the California appellate law podcast website at Cao podcast.com. That's c a l podcast.com. Thanks to Jonathan Cara for our intro music. Thank you for listening and please join us again
Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at email@example.com or (714) 641-1232.
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