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Finding Scrooge: Trial-Tested Tips for Seating a Defense-Friendly Jury

December 13th, 2017|

The holidays are a wonderful time of generosity, when we open our hearts and wallets to those we love, and sometimes, complete strangers. But in the legal industry, some litigants shy away from jury trials during the holidays, if for no other reason than to avoid a box filled with jurors who feel a tad indulgent. Civil defendants roll the dice each and every time they go to trial and risk of receiving a multi-million-dollar judgment. (Just ask J&J.) When it comes to money damages, defendants typically fare better when bleeding hearts are not seated on the jury panel –

How a Cold-Hearted Bully Illustrates the Importance of Theme Development

November 28th, 2017|

Remember when the name “Lance Armstrong” was synonymous with cycling, Tour de France, and über-athleticism? And remember how all that love came to a screeching halt in 2013 when Armstrong was essentially banned from competing in the sport for life due to his long history of using performance-enhancing drugs? What you may not remember is the post-doping lawsuits that were borne from various companies’ attempts to recover prize money, endorsements, and a host of other contractual issues. Enter: SCA Promotions, Inc. v. Lance Armstrong, et al. (DC-13-01564) in the 116th Judicial District Court of Dallas County, Texas. Although I did not personally

Anchoring Your Argument: How to Use The ‘Anchoring Effect’ to Persuade

November 8th, 2017|

I recently worked on a federal jury trial where our main objective was damage control: keeping the verdict as low as possible. Plaintiff counsel, of course, wanted to maximize damages, and thus needed the jury to buy in to his damage number as early as possible. The plaintiff lawyer (knowingly or not), attempted to benefit from the “anchoring affect” during his opening statement. A bit of background: The anchoring effect is a cognitive bias that causes us to rely on a reference point, or “anchor,” when making future decisions or evaluations. It’s a well-tested psychological phenomenon. We rely on the

Vacated J&J Verdict Offers Insight into Jury Deliberations

October 30th, 2017|

A recent ruling in California tossing a $417 million verdict against Johnson & Johnson provides trial lawyers with a priceless peek into how jurors think and what they take into consideration in awarding damages – even when they shouldn’t. The $417 million verdict against J&J was in one of several suits against the company alleging that their iconic baby powder, and other talcum powder products, causes ovarian cancer and that it failed to warn consumers about the risks of using their products. On October 20, however, the Superior Court of California issued an order granting defendants a new trial. The

4 More Myths About Juries

October 19th, 2017|

My recent post, Is There a Perception Problem with the American Jury System?, busted the most common myth about jury duty: that everybody hates it. In this blog post, I’d like to bust four additional myths about juries and jurors, all of which attempt to degrade the reputation of American jurors, and the justice system in general. I passionately believe it’s the best in the world, and that’s largely because Americans who serve on juries take their jobs very seriously. So, fasten your seat belts while I bust a few more myths.   Myth: Jurors do not want to participate Yes.

The Benefits (and Occasional Perils) of Using Statistics in Trial

September 20th, 2017|

A few weeks ago, one of my #TrialTwitter friends asked whether anyone had experience with using statistics in opening statement. It prompted an interesting conversation, but there’s only so much one can share in a 140-character tweet. Hence, this blog post (and the next one, too!). Are statistics ever appropriate for opening statement, witness testimony, a hearing, or even an MSJ? Absolutely. In fact, your presentation (or brief) can actually be more persuasive if it includes statistics. But a statistic isn’t persuasive or powerful simply because it exists. A statistic is persuasive and powerful because of the way it’s incorporated

Is There a Perception Problem with the American Jury System?

August 30th, 2017|

If you search for “jury duty” on social media, you’re likely to find more than a few posts of people whining about it. The litany goes like this: it’s boring, the pay is terrible, the room smells like feet and old cheese – it never ends. While most folks aren’t too keen on the disruption to their daily routine, the vast majority of jurors are committed to fulfilling their duty to serve, and are interested in learning more about the judicial process. The Pew Research Center conducted a study in April and asked respondents how they felt about jury duty. A vast majority — 67% —

Getting a Bigger Bang for Your Litigation Buck

August 7th, 2017|

Over the years, I’ve had the opportunity to work on hundreds of legal matters. From my perch as a Jury and Trial Strategy consultant, I’ve seen great lawyering and not-so-great lawyering, and I’ve seen legal teams that operate efficiently and teams that operated wastefully. My client and friend Charlie Armstrong, vice president and assistant general counsel at Flowserve Corp., can say the same. So the two of us put our heads together to compile our best advice to in-house counsel for controlling costs in complex litigation. The resulting article, Getting a Bigger Bang for Your Litigation Buck, was published in

Learning About Your Jury from Facebook Likes

July 11th, 2017|

If you’re a trial lawyer preparing for jury selection, it’s likely that the majority of your potential jurors will have a Facebook account. Facebook allows users to “like” just about anything. Musicians. Authors. Television shows. Actors. Books. Politicians. Restaurants. Nonprofit organizations. Political groups. You name it. And these simple “likes” can provide a wealth of information on your jury pool. A psychological sciences study claimed that a computer program could “predict” your personality based on what you “like” on Facebook. The authors stated: “…computers’ judgments of people’s personalities based on their digital footprints are more accurate and valid than judgments made by their close

Googling Your Jury (Part 2)

June 1st, 2017|

Trial teams around the country scour the internet for “jury nuggets.” And many — dare I say most — courts have accepted this practice. Our last blog post addressed ethical and professional standards that (should) guide any internet sleuthing, and Ben Hancock with The Recorder (ALM) recently published a fantastic article on some of the jurisdictional trends. But there’s a very important issue hanging in the air that has received very little attention: What on earth are we supposed to do if (or when) we discover something untoward about a potential juror or actual juror? After all, the information gleaned during an internet