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Retrial: If at First You Don't Succeed...Author(s): Russell Francis WolpertSource: Litigation, Vol. 22, No. 4, JUDGES JURIES JURISPRUDENCE (Summer 1996), pp. 37-42Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/29759871 .Accessed: 16/06/2014 14:47

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Retrial: If at First

You Don't Succeed...

by Russell Francis Wolpert

A day passed, then two, then three. For a while, I could ratio? nalize the fact?or hope?that, with over a hundred exhibits and lengthy jury instructions, the jury was simply being methodical.

Perhaps the jury just wanted to review all the material the court handed to them. Maybe they had a weak fore man who did not take charge and impose some order. Perhaps the jury just wanted to be democratic and give everyone an opportu? nity to discuss all the evidence and issues. Or maybe the

jurors simply were in no hurry to get back to their jobs, for which they were compensated in any event.

But as the jury arrived and departed each passing day, their mood of optimism and collegiality seemed to dampen. Omi?

nously, two members seemed to be coming and going together, quite apart from the others.

Then came the buzzing sound at the court clerk's desk, and the note to the judge, whose absence from the courtroom at the time only deepened the anticipation and anxiety. Finally, the announcement from the court?the jury could not reach a unanimous verdict. As the trial was in federal court, a nonunanimous civil verdict, in this case 6-2, meant a

hung jury?a mistrial. Like any trial, the grueling pace takes a lot out of you. The

many weekends and long nights of preparing for each day's examination and argument left me exhausted.

After the conclusion of the trial, the only place I wanted to

go was to some tropical island. Instead, I had to return to my law office and prepare for a retrial just a few weeks later.

Preparing for and trying a case before a jury is a taxing enough endeavor, although once the trial gets going, it's

actually fun. But imagine when you think it's all over, and when the adrenalin is all gone, to discover that you have a

hung jury and have to do it all over again. This is an experience that is becoming more common in

our society. The jury pools become less heterogeneous and more diverse, and may include jurors with disparate back

Mr. Wolpert is a shareholder in Stern, Neubauer, Greenwald & Pauly in Santa Monica, California.

grounds and views that affect their perception of appropriate and inappropriate behavior. This is particularly true as

peremptory challenges now have more of the characteristics of a challenge for cause, and as the courts restrict the right to exercise pure peremptory challenges.

It is possible to have a second trial even in a court trial, such as instances where a decision is appealed, reversed, and remanded, either to the original trial judge, or to a different one. But the focus of this article is on hung jury trials. These are more common?courts don't often decide that they com? mitted error on a motion for a retrial.

In addition, jury mistrials present the best opportunity for

flexibility in reshaping the new trial because the trier-of-fact will be entirely new and different and will likely have no idea that this is not the first time around the block for the litigants and their counsel.

In my case, what hurt the most was that after the jury was

polled, it turned out that the vote had been 6 to 2 in favor of

my client. With a very intelligent, articulate, and sympathetic party on the other side, represented by a very experienced, successful, and effective trial lawyer, and a disputed claim that was by its nature highly technical and did not have much inherent jury appeal on my side, I truly believed, at that

moment, that this was simply as close as anyone could come to victory for our side before a jury under the facts and cir? cumstances of the case.

It hurt all the more to come so close to victory without

achieving it. Worse yet, however, the court wanted to set the retrial in

two weeks. The last place that I wanted to be two weeks later was back in federal court picking another jury and retrying the same case, living in the same hotel, and eating the same

government food again. But that was what had to be, so I spent the next day or two

grieving about what might have been, and every other bit of time thinking about how I could get those extra two votes the next time around.

My first obstacle was entirely emotional. In my mind, I had done everything possible to win a jury trial in a case

Litigation Summer 1996 Volume 22 Number 4


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where we wanted a court trial and the other side demanded a

jury trial precisely because the issues that favored us were difficult to explain and simplify, and were technical in nature, while the issues that favored the other side were more

apparent and visceral. I had used all my imagination and diligence to present the

case in a manner that played as favorably as possible to the

jury. Being honest with myself, I knew there were some

potential jurors out there who were just predisposed in the other direction. I had given it my best try, and I had no desire whatsoever to pound my head against a wall again.

I knew that figuratively, I had to pick myself up emotion?

ally and do it all over again, with renewed enthusiasm, but at that moment, I simply did not have any.

From my experience, I knew that I felt emotionally drained and spent even after the most successful of trials, just because of what I call the deceleration rate, going from an

all-encompassing, 12-hours a day, seven-days a week trial

regimen, to the conclusion, in such a sudden fashion. I sus?

pected that because this was how I always felt after a suc? cessful trial, I certainly would not feel any better after a hung jury?particularly because I had come so close.

Therefore, I promised myself that I would give myself a

couple of days off in which I would not even think about the case, after which I would come back, renewed and refreshed, and rededicate myself to retrying the case to a successful conclusion.

That was the plan. But I had no illusions that the plan was easier to create than to execute.

I gave myself the several days that I promised to but, pre? dictably, transitioning back into the case was painful. When the case went to the jury, one way or the other, I believed that it was over?behind me. Now, it wasn't. It was like spending all week writing a term paper in the days before computers and floppy disks, only to have the dog?really?eat it just before turning it in to the professor. Only it was worse.

However, I knew that the trial, Part II, was coming yet again; I had to play the leading role in it, and if I didn't want to feel even worse next time around, I had better get to work.

Preparing for Retrial At first, it's not easy. In fact, it's depressing. I didn't see

what I could have done differently or better, and I believed that the other side would now be on to all my tricks and sur?

prises, and ready to counteract them. To the extent that I was

well-prepared the first time, I believed that there was not much more that I could do or say, and to the extent that the other side was not fully prepared last time, I was confident that they now would be.

In reality, however, I found that there was much that could be done to put on a more effective presentation based upon the information garnered in the first trial and the passage of time.

I broke this down into six essential categories: new devel?

opments that might affect the merits of the case; juror profile and selection; my own presentation of the case; witnesses and witness examination; documentary evidence; and court

response, reaction, and interaction. I looked at each of these areas from the perspective of my presentation of the case, as well as the likely adjustments that the other side would make to its case, and my response.

The preparation for the second trial really began before I even left the courthouse after the first trial. Lawyers some? times spend a fortune of their clients' money hiring consult?

ing firms and putting together mock juries, only to present vastly simplified and truncated versions of their case to those mock juries for reaction and comment.

However, I had the best mock jury in the world?a real

jury. This jury had heard not an abbreviated or bare-bones

presentation of the case, but the entire case; and they heard it

presented by the actual trial lawyers, not stand-ins mimick?

ing the other side. I spoke with every juror that I could contact, for as long as

they would talk to me. More importantly, I listened. And I did not listen primarily for praise. Of course, I did want to hear what worked the first time around, to make sure to pre? serve it in the second trial; and to defend against any strengthened attacks that might be made the second time.

But particularly, I listened to what the jurors believed to be the weak points in my case?especially the two jurors who voted against me. I asked everything that they felt and

thought, all their impressions and reactions, and I tried to determine what I could do differently next time.

Of course, I realized that the jurors who voted against me

might not be forthcoming?perhaps not even honest?in their communications with me, either because they might not wish to impart to me what they perceived as bad news face to face, or because they might not wish to help me.

Therefore, I also made an effort to find out from the jurors who voted for me what thoughts or arguments were

expressed by those jurors who didn't, and I made it clear that in this context, the more criticism, the better.




Moreover, because even those jurors who voted with me

may have harbored some doubts about my case (after all, this was a civil case, and I only needed to win by a preponderance of the evidence; thus, even jurors who voted with me could have had doubts or reservations), I tried to determine from them everything that I could, good and bad. What parts of my case did they like best? What parts of the

case did they think were strong, but were not presented with

enough emphasis or detail? Were there any parts of the case that they simply did not understand? What negatives did they see in the case? Could anything have been done to explain, reverse, or at least minimize the negatives? Were there any parts of the story that they felt were missing, or not pre? sented, which they were curious about, or which they felt were being kept from them?

Certain of the jurors' comments may have been idiosyn? cratic. In addition, particularly but not exclusively with

respect to the jurors who voted against me, their proffered explanations could have been rationalizations. Therefore, I did not uncritically accept all of the comments and sugges? tions of the past jury, but it was certainly a good and impor? tant starting place.

By talking to the jurors, I developed my best outline for how to retry the case.

I also totally re-examined my case.

Depending upon the period of time that has gone by between the first trial and the second, new facts may pop up which affect the merits of the case. The world did not grind to a halt just because I was in trial. Events occurred and

things changed, and some of them had significant implica? tions for my case in terms of damages, liability, or both.

By way of example, in my case there had been an agree? ment between the parties that my client would receive a cer? tain percentage of the revenues earned by the corporate defendant. After the relevant discovery was completed in the first case, however, the individual defendants?while legally maintaining the corporate defendant as a formally existing business entity?had formed an entirely new company which engaged in the same business practices that could eas?

ily have been run through the defendant corporation. In fact, the individual defendants functionally spent all

their time promoting and attempting to establish and increase revenue for the new corporation, abandoning the corporate defendant for all practical purposes.

This had obvious and negative implications for the

promises of the individual and corporate defendants that my client would receive a percentage of the revenue of the cor?

porate defendant, as it had essentially been abandoned to run the same revenue through a new company that did not have this contractual obligation.

It is not difficult to imagine the effect that this had. Not

only did this affect damages, it also reflected negatively on the defendants' credibility.

This occurred too late to be known and presented to the

jury in the first trial, but I decided to update all discovery to the extent possible in preparation for the second trial, and these facts were uncovered.

At least one of the reasons that this information played well in the second trial was precisely because the defendants did not know that I knew it, and were not fully prepared for it. Rather than assuming that anything was possible in the second trial, whether or not it was presented in the first, they

worked on fine-tuning their responses to damaging informa? tion brought out in the first trial, which is important, but not to the exclusion of also preparing for new points of attack.

Although each fact situation will of course be unique, such a situation is really not unusual. In many cases, the facts are often not completely set as of the time of trial. For example, damages, profits, and expenses are often increased or reduced as time goes by, and the passage of time will gener? ally shed more light on the nature and extent of the damages. This will usually be to someone's benefit and to someone else's detriment, but it is important information that should not be overlooked, and the extra time afforded by a mistrial allows it to be explored with the passage of time.

Issues of liability, defenses such as mitigation, matters of

credibility and veracity, and many other matters which could

The last place that I wanted to be two weeks later was

picking another jury and retrying the same case.

win or lose a trial may also play out in significant ways after the end of the first trial. The point to remember is that because cases do not land on their lawyers' desks in a static and completed fashion, they must update even their "com?

pleted" investigation, and the retrial of a case presents an

opportunity to do this. At some point, the factual investigation, or at least the

effectiveness of the factual investigation, comes to an end. Even as to investigations that one may conduct without for? mal discovery and formal discovery rights, it will become more difficult and limited as trial approaches. That may be

acceptable, or at least necessary, for the initial trial, where the period of time that elapses between the discovery cut-off deadline and the commencement of trial is often brief; but when that trial ends in a mistrial, resulting in a second trial thereafter, too much time may have passed. You will want to do whatever you can to get up-to-date.

It is certainly possible to conduct follow-up formal dis?

covery, although this may be discretionary with the court, and may require a motion. However, there is a lot that can be done informally.

In my case, a new, updated, country-wide search of online

corporate records with the offices of the Secretaries of State

provided the information I needed. Other cases will require other methodologies, but available information may allow

you to gain a pretty accurate picture of what has happened since formal discovery ended.

Another difference was the selection of jurors. I had spent a lot of time preparing a jury profile and determining pre? cisely what educational, economic, business, life experience, and other traits and characteristics would be favorable and unfavorable.

The problem is that there is always an interplay between the jury profile that you work up, and the visceral feeling that

you get from the jurors during voir dire. Occasionally, jurors




who fit the profile just don't seem to act and respond in a manner that gives you a high level of confidence that they will be favorably disposed to listen to your case with an open mind. Other times, jurors who do not fit within the profile seem to be right there with you every step of the way.

For these reasons, and because the profile is merely a con? tinuum that, hopefully, has a better than random chance of

predicting favorable jurors, but can never apply to every? one?particularly based on the information reasonably available in the jury selection process?at times, I was

tempted to go with jurors who seemed favorable even if oth? ers fit the profile more closely.

Picking Another Jury Although I had to use my peremptories on even more

unfavorable jurors in the first trial, one of the jurors who did not fit the profile, but seemed positive to my case, voted for the other side.

In the second trial, when I had more leeway because the

panel consisted of fewer clearly unfavorable jurors, I stuck

closely to my profile, even when there was not always a com?

plete congruence between that profile and my gut level feel?

ing. The profile had been 7-0-1 the first time around, and one of the significant benefits of an initial trial is the opportunity to determine how close your jury profile was to the voting record of the jurors.

Had there been a difference between the characteristics of the jurors that I wanted on the case and the way the jurors voted in the first trial, I would have certainly modified that profile.

Although such a modification was not required in this case, the

analysis was beneficial because it convinced me of the accu?

racy of the profile and led me to a conviction that I should resolve doubts in favor of the profile I had created.

This was very helpful, and gave me the discipline to rely more heavily on the profile in the second trial, which turned out to be 100 percent effective in the second trial, at least as to the jurors selected.

The trial strategy and tactics will themselves change. In all trials, we make hundreds, perhaps thousands of decisions, big and small, as to how to present our case. Each of these should be questioned and reconsidered in a bottom-up review of our trial approach. Keep what worked and, to the extent possible, change what didn't. Of course, the facts themselves cannot change, but their presentation, emphasis, inclusion and exclusion, etc., certainly can.

The first step is the witnesses themselves. In virtually every case that I have ever tried, there have been more per? cipient witnesses with knowledge of some arguably relevant fact than have been called to testify. Choices are always made. Those choices should be re-examined.

In retrying the case, I considered the strengths and weak? nesses of all witnesses that I called, and I also considered the universe of possible witnesses that existed, including those who were not called in the first trial.

This was one of the most difficult choices, because there were so many variables. One of the benefits of being the

plaintiff was my ability to control the order and sequence of the evidence?to put on my best points and witnesses when I wanted to, and to steal the thunder of the other side on any points where I felt vulnerable.

Now, I had the opportunity to see how the witnesses had

actually fared in an imposing courthouse, before a judge and

jury, cross-examined by a well-prepared and astute adversary. This was a big benefit, because no matter how many times

I practiced with cooperative witnesses in an office building, and, particularly, no matter how many times I tried to gauge the vulnerability of adverse witnesses based upon deposition performance or other factors, a trial is simply different, and more telling, than a practice run.

Therefore, after the experience of the first trial, and in

preparation for the second, I had to be honest with both

myself and, even more difficult, with my clients, in assessing which witnesses were strong and which witnesses were

weak, and making adjustments accordingly. This isn't always emotionally or politically easy, but it is

necessary. In some instances, there were points that I wanted to

make, which were not fundamental or critical but were pos? itive points in the case, but the cost was too high. In some

instances, I had to forego the witness on that point, or

entirely. On other occasions, where the point was very strong, it could be made more effectively by another witness.

To the extent that witnesses performed better or worse than anticipated, their role in the trial was enhanced or diminished accordingly. After seeing my witnesses take the witness stand under actual trial conditions, I wanted to keep some of my witnesses up on the stand longer than I had orig? inally planned; other witnesses were going to spend less time on the stand.

In making these decisions, I was aware that I was not the

only one who got to call and subpoena witnesses. The other side was doing the same thing that I was doing, making its own

adjustments, and I had to be aware of and prepare for that, too, but there were plainly moves I could make in this regard.

In the same fashion, certain defense witnesses came off

quite poorly, others were composed or likable, and others seemed good at first, and got worse the longer they were on

I made sure my witnesses knew they should not expect just a replay of the first trial.

the stand. I adjusted the scope and nature of my examination to keep these witnesses on the stand with this in mind.

I looked at the points as to which each witness testified, and the documents that were introduced through each wit? ness. I also reviewed my chart of the universe of facts and documents known to each witness and, wherever possible, shifted as many matters as possible onto my most favorable witnesses and the other side's weakest or least likable.

To the extent that my witnesses were strong and made a favorable impression on the jury, I told the story through those witnesses as much as possible, even where their per? sonal involvement may have been more attenuated than that of witnesses for whom the jury had less of an appreciation. The reverse applied to the defense witnesses.

I also obtained the trial transcript from the first trial and went over all of the examination with those witnesses that




I had access to so as to make sure that the witnesses under? stood the strong and weak points of their testimony, what

made them strong or weak, the lines of attack made by the defense, how they were vulnerable, and where?and

how?they could improve their testimony, consistent, of course, with the facts.

It was not only the witnesses who needed to learn from the first trial and make appropriate changes. I did as well. Rather than using the approaches of the first trial, I believed that it was best to switch to alternate approaches. This is true even if you have no substantial criticisms with

your initial trial approach?although it is inevitable that

you will learn from experience. My traps and surprises that were effectively used during

the first trial were sometimes switched to other witnesses who did not encounter them in the first trial, and would be less likely to be ready for them in the second trial. Other times, they were simply dropped, and sometimes, they were

supplanted by new ones, which are always possible after a review of all the testimony given in the preceding trial, and the investigation and document review that should follow it.

The more intelligent and the more prepared the hostile wit? ness, the more critical it was to vary the testimony sought to be elicited from that witness. Surprises may work once, but they are much harder a second time, particularly with an intelligent, prepared, and less than completely forthright witness.

Of course, impeachment through prior inconsistent testi?

mony is always possible and may be quite effective, but it is still helpful to keep the witnesses off-balance with new mat? ters and approaches. Certain witnesses, who had obviously contented themselves with preparing for the same thing all over again, were unprepared for and uneasy with this tactic.

When impeachment through prior inconsistent testimony given in the first trial was necessary, an arrangement was worked out with the judge ahead of time so that the incon? sistent information could be presented without giving the

jury any clue that there had been a first trial. I represented a very large entity. The defense tried to por?

tray itself as the sympathetic, hardworking, up-by-the-boot straps entrepreneurs who fell upon hard times through no fault of their own and, in fact, through our fault. The last

thing that I wanted the jury to hear was that a prior jury was

unwilling to return a verdict, but that we were still pursuing the defendants a second time around. Therefore, the court

agreed to require all counsel to refer to any testimony given in the prior proceeding by a reference that gave no indication of the fact that there had been an earlier trial.

I tried to avoid this same pitfall for my clients. I wanted these witnesses to understand just what they did that was

effective, and why they were so good, yet I did not want them wedded to certain responses to particular questions.

I explained to my witnesses what the jury and other court observers found to be likable, persuasive, or compelling about their testimony. I wanted to make sure that where these witnesses were effective, it was not a matter of accident or

happenstance or, if it were, that it would be repeated again. There are many verbal and nonverbal aspects of one's per?

sonality or presentation that make them liked or respected by the jury, and I tried to show each of my witnesses precisely what it was about their testimony that worked.

Of course, the best jurors are the ones who are natural and at ease. Therefore, I did not want my witnesses to become so

^^^^^^^ enamored or fixated with their prior testimony that they became more deliberate and less spontaneous, and this had to be guarded against.

Oftentimes, some of the best and most memorable phrases and moments at the trial were not ones which were practiced, rehearsed, or memorized. The spontaneous moments can also be among the most effective. Therefore, I very much

guarded against the testimony becoming routinized or stale.

Still, I did want the jurors to know, at least on a macro

level, what they did that was effective, and I tried to strike a balance between having the witnesses repeat what worked the first time, and improve upon it if possible, without

becoming inflexibly tied to that testimony. I knew that the other side would not pose its questions in

the same manner to the same witnesses either, and I certainly did not want my witnesses to walk into the second trial

merely well prepared for the first. The other side was

unlikely to simply sit back and do everything the same way with witnesses who had harmed them in the first trial. There? fore, I made sure my witnesses knew they should not expect simply a replay of the first trial.

Therefore, I analyzed all of the pitfalls of the first trial, including possible lines of cross-examination that were not undertaken, or cross-examination that was tried with other witnesses, and went over each of these with every witness.

It is obvious that there are various ways to tell a story and various people through whom it may be told, but anyone who has tried cases knows that you have surprises, both

pleasant and unpleasant, when it comes to the actual testi?

mony at trial, and it is simply not possible to predict all of them, even through the most precise analysis and careful and

prolonged trial preparation and rehearsal. The key in the sec? ond trial is to use all this information to reshape the trial.




Even though I thought that the evidence in the first trial was

effective, the overall result of the newly uncovered evidence, the expansion of evidence that was well received by the jury, the restriction of evidence which the jury found boring or

unpersuasive, and the emphasis and de-emphasis of certain witnesses resulted in a presentation that, while similar at its core, was notably different. It really was a different trial.

I also used the opportunity between the two trials to create new demonstrative evidence. Some of my graphics worked

very well, and I used these again. Of course, when all of the evidence was in, other graphics seemed less significant.

Because trial transcripts were ordered in the first trial, we also had the opportunity to blow up the favorable admissions

against interest made by the other side during the first trial. In addition, the jury instructions which the first jurors

found to be understandable and significant, and which

By talking to the jurors, I developed my best outline for how to retry the case.

favored us, were also highlighted by demonstrative evi?

dence, and were weaved into voir dire and closing argument as well based on juror interviews.

Another area helped by the second trial was the documen?

tary evidence. After going through the entire trial, I reviewed all of the documents produced in the case anew?not just those offered into evidence?and it was interesting what additional helpful documents were discovered.

In my case, a defense witness testified that my client made errors in a letter of credit issued years before, which made us look bad, and was calculated to make the jury want to vote for the defense, if for no reason other than to make up for the

alleged damage caused by this earlier act. This matter was a nonissue until after the trial started?it appeared nowhere in the pleadings that framed the issues, discovery, or the pre trial documents.

But here was a witness testifying about it at trial. Upon a review of all the thousands of pages of previously produced documents was a letter by this witness to another party to the letter of credit transaction, complaining that the mistake was in the shipment of nonconforming goods and the presentation of

incomplete paperwork, rather than anything our client did. No matter how precisely the documents are reviewed and

the case is worked up before trial, issues appear, disappear, and grow and shrink in importance during the trial, and a fresh review of all of the documentary evidence after the conclusion of the first trial will inevitably result in the dis?

covery of additional helpful matters. This was probably most true with respect to documents

which were helpful for impeachment. The elements and defenses of the case were well worked up, and documents

involving these matters were essentially all identified. How? ever, a lot of things were said during the course of the first

trial, thousands of pages of testimony were elicited, and, particularly with respect to impeachment and matters of

credibility, information contained in the documentation, when viewed in the light of all the evidence obtained during trial, yielded significant helpful material. The final matter was the response of the judge. This was a jury trial, but the

judge's involvement and view of the case was, of course, still critical.

Remember that in this time of too many civil cases for too few civil trial courts, a single jury trial represents a large and sometimes unwelcome commitment for the court, which often has many hundreds of other cases to manage. Imagine the court's feelings when all its time and energy result in a

mistrial and the necessity to do it all over again. On the one hand, to the extent that you have earned the

court's respect in the first trial, you will find that you are

actually in a much better position going into the second trial. On the other hand, the court will quite naturally want to put your case behind it, and may push you much harder to speed it up in the second trial. While the judge has heard it all before, the new jury has not,

and the very evidence that the judge may wish to fast-forward

through because it does not pertain directly to the core issues

may be significant in the case's jury appeal. It is important to

keep in mind the difference between what the judge knows and what the jury knows, and to push for your right to paint a full picture of the relevant circumstances of the case.

Also remember that motions in limine that were granted or denied in connection with the first trial may be renewed with the hindsight of how the entire trial played itself out. Before the first trial, the judge had only a paper brief to base a ruling on; he now knows the case intimately. Motion in limine rulings may well be different, and the same

applies for jury instructions.

The most important thing to remember is that while you are working on a blank slate as far as the jury is concerned, the court knows the prior evidence. While the court will

respect your strategy decisions to add to or delete from the facts

presented before, and even to emphasize or de-emphasize cer? tain facts, when it comes to evidence or arguments that try to

fudge or alter the facts themselves, this will have a natural and warranted negative effect.

Remember that the jury will look to the judge and take cues from him. There are many ways for a judge to commu? nicate his feelings to the jury. It's your choice to present as

many or few of the universe of facts as you believe appro? priate from whatever witnesses have knowledge of them, and to highlight or downplay those that you choose. Just don't try to change them.

All in all, the second trial was not at all a replay of the first. In a testament to the adjustments made by counsel or, per? haps, simply the differences in the jury, although the first

jury was out for days without being able to reach a unani? mous verdict, the second jury reached a unanimous verdict in just a few hours, and actually sent a note to the judge ask?

ing if they could award us more than we asked for.

Having sat through two jury trials in the case by that point, when the judge asked how I thought the court should

respond, I said no; we would happily accept what we

requested. The last thing I wanted was a reversal, remand, and third trial.

The jury finally announced its verdict. Then, I really did head directly for that tropical island. G




Article Contentsp. 37p. 38p. 39p. 40p. 41p. 42

Issue Table of ContentsLitigation, Vol. 22, No. 4, JUDGES JURIES JURISPRUDENCE (Summer 1996), pp. 1-68Front MatterOpening Statement: State Judges: Merit Selection, Not Partisan Politics [pp. 1-2, 63-64]From the BenchBatson and Jury Selection Revisited [pp. 3-4, 65-67]

Jury Nullification: The Top Secret Constitutional Right [pp. 6-14, 59-60]Voir Dire in Conservative Times [pp. 15-18, 59]Juror Misconduct or Juror Accountability? [pp. 19-26]Getting Paid [pp. 27-31, 61-62]Appealing Evidence [pp. 32-36, 64-65]Retrial: If at First You Don't Succeed... [pp. 37-42]Foreign Judgments [pp. 43-45, 58-59]Expert Reports [pp. 46-50]Legal LoreU.S. v. Kaskel: "You are the Doctor!" [pp. 51-54, 60-61]

Trial NotebookPicking the Right Fight [pp. 55-56]

Advance Sheet [pp. 57-58]Literary TrialsUncommon Law [pp. 68, 62-63]

Back Matter

judges · juries · jurisprudence || retrial: if at first you don't succeed

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