I asked US District Court Judge John L. Kane (my interview of him from a few years back) what he thought of the article from The Jury Expert titled "Atticus Finch Would Not Approve: Why a Courtroom Full of Reptiles Is a Bad Idea." His e-mail response (posted with permission):
My comments may not be welcome. I have attended enough seminars and read papers and indeed books on neuropsychology and neruopsychiatry and the law to know this is merely a nascent attempt at understanding a developing area of science that is still speculative and at best experimental. I expect to have even more submissions by lawyers based on what amounts to a current fad of the avante garde. I don't think anyone's case is worth risking on the flimsy protocols of such undifferentiated speculations as "reptile theory." In fact the amount of hubris needed to call this a theory is in itself awesome.
Perhaps more to the point, I don't believe there is any cookbook or recipe approach to trying cases either to a jury or to a judge. Advocacy is an art and this sort of thing smacks of painting by the numbers in lieu of original, aesthetic thinking. I can say that in thirtytwo years as a trial judge I have seen the vast majority of cases poorly tried and only rarely have I seen a trial so well done that it would suffice to generate a nascent theory.
In a related field, one might ask, "What theory governs the presentation of a good play?" Even the best script will not save poor direction or bad acting. Nor is it possible to tie Sophocles, Euripides, Shakespeare, Ibsen, O'Neil and Williams into a neat package that teaches one and all how to write a play, much less produce one. Why would one think a better job could be done in trials which are unavoidably improvisational?
For that matter, the trial in "To Kill A Mockingbird" was not a trial at all and it fails both as an object lesson in trials and as a metaphor. It is a very well-constructed part of a work of literature and as such is the solitary creation of an imaginative and highly talented writer. Better one should compare a trial to a circus with its attendant distractions than to a focused product on one person's mind.
A trial is a circus of persuasions and if one wants to be the focus of attention in the center ring, one should attempt to master Aristotle's Rhetoric --- and stay there.
Perhaps more to the point, I don't believe there is any cookbook or recipe approach to trying cases either to a jury or to a judge. Advocacy is an art and this sort of thing smacks of painting by the numbers in lieu of original, aesthetic thinking. I can say that in thirtytwo years as a trial judge I have seen the vast majority of cases poorly tried and only rarely have I seen a trial so well done that it would suffice to generate a nascent theory.
In a related field, one might ask, "What theory governs the presentation of a good play?" Even the best script will not save poor direction or bad acting. Nor is it possible to tie Sophocles, Euripides, Shakespeare, Ibsen, O'Neil and Williams into a neat package that teaches one and all how to write a play, much less produce one. Why would one think a better job could be done in trials which are unavoidably improvisational?
For that matter, the trial in "To Kill A Mockingbird" was not a trial at all and it fails both as an object lesson in trials and as a metaphor. It is a very well-constructed part of a work of literature and as such is the solitary creation of an imaginative and highly talented writer. Better one should compare a trial to a circus with its attendant distractions than to a focused product on one person's mind.
A trial is a circus of persuasions and if one wants to be the focus of attention in the center ring, one should attempt to master Aristotle's Rhetoric --- and stay there.
Comments