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The California Appellate Law Podcast

Excessive information leads to worse, not better, arguments

Tim Kowal     March 30, 2023

You have an avalanche of evidence for your upcoming trial. Document after document, email after email, photo after photo, and witness after witness promise to bury your opponent.

But are you overdoing it? Appellate attorney Stefan Love, drawing on the lessons from John Blumberg’s Persuasion Science for Trial Lawyers, notes that “we can’t hold on to that much information at once.”

We also relate one of the studies in Blumberg’s book about some study participants who were given a series of numbers to remember and report to scientist with a clipboard at the end of the hall. The first group did fine, but the second group were confronted with one extra bit of information before they reached the fellow with the clipboard. With brains already filled to the brim, the last bit of information made the earlier information spill out.

Lesson: There is such a thing as too much evidence. Consider carefully what it is going to take to persuade, and then stop.

Watch the clip here.

 

This is a clip from episode 43 of the California Appellate Law Podcast. Listen to the full episode here.

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 CALpodcast.com, and publishes summaries of cases and appellate tips for trial attorneys. Contact Tim at [email protected] or (949) 676-9989.
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"It may be that the court is thought to be excessively legalistic. I should be sorry to think that it is anything else."

— Hon. Sir Owen Dixon, Chief Justice of Australia

Show neither partiality to the weak nor deference to the mighty, but judge your fellow men justly.

Leviticus

“It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?”

— James Madison, Federalist 62

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— Will Durant

"At common law, barratry was 'the offense of frequently exciting and stirring up suits and quarrels' (4 Blackstone, Commentaries 134) and was punished as a misdemeanor."

Rubin v. Green (1993) 4 Cal.4th 1187

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— Plato (427-347 B.C.)

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— Sir Thomas More in Robert Bolt's A Man for All Seasons

"Counsel on the firing line in an actual trial must be prepared for surprises, including requests for amendments of pleading. They cannot ask that a judgment afterwards obtained be set aside merely because their equilibrium was slightly disturbed by an unexpected motion."

Posz v. Burchell (1962) 209 Cal.App.2d 324, 334

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