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December 14, 2020


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Jennifer Hendricks

A personal note on how juries receive facts: I was on a jury in a murder trial a few years ago, and I was impressed by the power of the rule against discussing the case before trial concluded, even among the jury. (We spent many hours together in the jury room and had to find other things like to discuss, like the fashionable patterned socks worn by one of the lawyers.) I found this very frustrating at first. It seemed like it would be more efficient and accurate if we could discuss things while testimony was fresh in our minds. But I eventually realized that it was preventing me from becoming too attached to my conclusions before I'd heard all the evidence. I was definitely making judgments and conclusion all along the way, but because I wasn't articulating them fully, they stayed a bit amorphous. Also, it meant I hadn't "taken a stand" that I would have to back down from in order to change my mind.

Scott Fruehwald

Excellent analysis. I talk about judges and cognitive biases in my book How to Teach Lawyers, Judges, and Law Students Critical Thinking (2020).


Lawyers lie the same way the media does: selective reporting of facts.

The much maligned "alternative facts" was simply a way of pointing out that leaving something out might render what was said misleading.

Securities lawyers used to understand this concept. See, e.g., 10b5. Today, political zealotry being what it is (infecting every aspect of learning and objectivity) the academy is not so interested in teaching/modeling the difference between advocacy (e.g., MSNBC, Lubet) and the honest pursuit of truth.

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