The Persuasive Edge by Richard J. Crawford, Ph.D. and Charlotte A. Morris, M.A.

    The Persuasive Edge was a cool book about how to be persuasive to a judge or jury in trial, written by trial consultants who are experts in persuasion. There were a lot of really good lessons in it.

    For one, in a jury trial, an attorney needs to have a strategy that enables the person who agrees with him to make his case to those who don't. That means teaching the means of persuasion to those who are likely to use it to convince others. This means that a lot of the book, maybe a third or more, is about jury selection and developing the jury in voir dire. This is incredibly difficult, since selecting jurors based on how they answer questions relies on really good questions and very insightful understanding of the answers. The selection should start with knowledge of certain characteristics the attorney is looking for in jurors, and approach questioning in a funnel shape, starting broad, with open-ended questions, and working small, into more specific questions, before moving to another topic. At the end of questions, the lawyer can introduce the persuasion point, and try to develop connection with a juror that can be used in opening statement or closing argument, as well as in examination of witnesses. The book also talks about juror self-identity, and how a juror who sees herself as a leader is less likely to give in to another juror's opinion.

    The whole book is about entertainment. In discussing the opening statement, the authors say it's not best used as a time to preview the case, but as a time to sell the whole case, motivate the jury, and gain sympathy for your side. They emphasize using a narrative and making it interesting. In questioning witnesses, the sequence of events must be ordered to maximize the effect of the important part of the witness' testimony. The authors emphasize the anticlimactic over the climactic. Get the pivotal or essential point out early, and then fill in the background. Then, return to the most important thing to end the questioning. On cross-examination, let the members know that you are in control even when you're not. They tell the story of a lawyer who gets the opposite answer than they wanted, and instead of expressing shock, expresses a sense of victory, and declares, "Exactly!" and moves on to the next question quickly before anyone can realize the answer didn't help. That's a bold one. The authors come back to trust, competence, and likability. Everything a lawyer does in the courtroom should build or convey one of those three attributes. With the jurors believing that the lawyer is trustworthy, competent, and likable, they are more likely to find for their side. Moreover, that lawyer has hopefully used some of what the jurors said in voir dire to develop his or her themes for discussion of the case.

Miscellaneous:

• The authors point out that experts with experience in teaching are often the best at testifying in trial, when they need to teach the jury your view of the case.

Military Justice in America: The U.S. Court of Appeals for the Armed Forces, 1775-1980 by Jonathan Lurie

    I was honestly very disappointed by this book. I was looking for a well-researched history of the Court of Appeals for the Armed Forces with a focus on the development of the UCMJ and the case law of the court, but when I got was a history of the politics of political appointments. It was bizarre to me that Lurie would go through painstaking research, and obviously the book is well-researched, only to completely miss the forest for the trees. The interesting thing about CAAF isn't how Judge Latimer got appointed, the interesting thing about CAAF is how it developed jurisprudence out of a brand new code, the UCMJ, and had to do it to balance the needs of the military with the revolution that came with the UCMJ demanding that courts-martial be run like federal courts. Instead, Lurie focuses on minutiae that really don't matter.
     I found the discussion of Ansell and Crowder's debate within the Army JAG world about military justice during WWI to be interesting as a setup for the battles over the UCMJ in the 1940s, but Lurie was much more interested in personalities than policy. But I learned that without the movement that began with them, there really would not have been a true legal system in the military. Courts-martial were not really courts in any modern sense of the word until the UCMJ, since they didn't have judges, and often didn't even have lawyers. Lurie focuses in on the importance of appellate review: defendants didn't have recourse to appeal decisions to anyone but the JAG of his service, and then to the President. Creating CAAF was critical in ensuring real justice since there would be real review of the justice system. Ansell proposed obvious ideas like appointing a JAG for every general or special court-martial, and creating the basis for the modern Preliminary Hearing Officer/swearing to the charges with the concept that charges may not be referred without being reviewed for sufficiency by a competent JAG. 

    In the reforms that led to the UCMJ, Congress basically had six complaints post-WWII: the conviction rate was too high (88%), the punishments were excessive (resulting in reduction by later review boards in 75% of cases), there were wide discrepancies in punishments for the same offenses, rights of the accused were not protected during a court-martial proceeding, defense counsel was often incompetent, and sentences rendered by the court could be increased before the court-martial ended. These criticisms resulted from the increased scrutiny on military justice due to the massive exposure of Americans to military justice in WWII. During the war, over 1.7 million trials were held, more than a 100 executions were carried out, and 45,000 servicemembers were in prison at the end of the war. Above all, Americans were appalled by command influence corrupting courts-martial. Gerald Ford, who had been in the Navy during WWII, recalled sitting on boards where members asked "what's the Old Man [referring to the commander] want us to do? He testified to that effect while a Michigan congressman.

    The critical thing, Lurie points out, that developed military justice was not just the Code, but that the Code was paired with an appellate review process that could enforce the Code. CAAF has remained in a weird twilight zone as an Article I court with Article III properties, but has been critical in ensuring the administration of military justice in a way totally counter to the pre-Code era. I wish the book had focused more on how they actually did that.