The excerpts from Courts on Trial have two implications for law students. First, we must recognize that law school is premised on the myth of fact-finding. We do not study any factors that led a trial judge, much less a jury, to decide one way or the other on a given issue. We largely assume that the original court was correct and move on to an abstract consideration of the law. This may be terrible practical training for practice. Even if we accept the unspoken assumption that many of us will not practice in trial courts after graduation, we should still have some understanding of the factors that led to the decision up for review. Frank seems to suggest that our study of these factors should make us aware of our ignorance, but we could adopt a more practical approach that recognizes that jury consultants are considered essential and are highly paid. Law school ought to discuss factors influencing decisions on issues of fact.

Second, the application of the idea of legal magic to jury instructions seems like another under-explored subject. We read numerous decisions in which jury instructions are declared invalid, but we have not spent any time on studies examining how juries react to a given set of instructions. We ignore Frank’s point that “Anyone who has ever watched a jury trial knows that the rules often become a mere subsidiary detail, a part of a meaningless but dignified liturgy recited by the judge in the physical presence of the jury and to which the jury pays scant heed.” (54)

-- DavidHirsch - 05 Feb 2012