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What Trial Graphics Belong in My Closing Arguments?

July 8th, 2019|

Imagine this:   The jury has just sat through two weeks of endless testimony with duplicative questions and answers throughout. You put together an excellent opening statement slide deck. You used effective video deposition clips and transcript pages to cross-examine your witnesses. You had an interactive map that your expert walked the jury through and he was crossed on. You used the latest trial presentation software to do annotations and callouts on at least 15 documents – per witness. And opposing counsel did the exact same thing. In other words, both sides were great at utilizing technology and trial graphics. Congratulations. It was perfect. To jurors, it

Is a Shadow Jury Worth the Risk?

June 17th, 2019|

Attorneys seem to be using the shadow jury (also called a “feedback jury” or “mirror jury”) less in recent years than they used to.  And that’s too bad.  Especially when the perceived risks of the technique are being given undue weight, scaring some clients away from one of the most vital sources of insight a trial team can utilize.  When words like “jury tampering” and “mistrial” get tossed around, it’s natural to get skittish about shadow juries.  But in our experience these fears are overstated and do not mirror reality.  After all, in our 25–year history of conducting shadow juries, we’ve never even had anyone call it out.  Meanwhile, we have always learned valuable information we could not have obtained otherwise.    In this blog, we want to wash away the exaggerated risks surrounding shadow

How to Use Counterfactuals to Combat (or Leverage) Jurors’ Hindsight Bias

May 24th, 2019|

Faced with the large amount of complex information being presented to them in trial, jurors will inevitably use “heuristics” – mental shortcuts – to help them keep up.  Sometimes, these shortcuts lead to perfectly reasonable judgments.  Other times, they create distorted perceptions and erroneous conclusions. One problematic heuristic is known as Hindsight Bias, or as it might be casually called, “Monday-morning quarterbacking.”  Trial is a retrospective process; jurors know the outcome of the events being discussed because they’ve already happened.  Jurors are instructed to set this knowledge aside when considering each party’s actions – but that doesn’t mean they can.  With the “benefit” of hindsight, it’s all too easy to view the events as a chain leading to an obvious conclusion.  Consciously or not, jurors can then place blame on one or

Does Humor Have a Place in the Courtroom?

April 30th, 2019|

Humor is a funny thing. A joke that works so well out of one person’s mouth can crash and burn out of another’s.  That same joke can cause hysterical laughter in one situation and groans of annoyance or gasps of affront in another.  Content, person, delivery, circumstance, audience – it’s a tough set of variables to juggle in a courtroom setting.  Here’s a cautionary tale we witnessed first-hand:  Plaintiff counsel came in quite late to a Los Angeles court one morning at the end of a month-long trial.  The full jury was already seated, and was being read the jury instructions.  Counsel says, “You’d think after a month I’d be used to LA traffic!”    The comment might have gotten a few chuckles (maybe) under different circumstances, but this jury just stared, very much unamused. 

How to Rehearse Your Closing Argument – Without Stumbling Over Your Slides

March 13th, 2019|

You know how to frame a great closing argument.  You know how to deliver it to a jury.  But in our experience, the real hurdle arises when you take that great argument and great delivery and try to incorporate technology.  Which you certainly should!  With juries these days, you need to channel a Steve Jobs product launch as much as a Perry Mason trial.  Yet, in doing so, you introduce potentially unpracticed skills and tools, and place your reliance on an extra variable: the tech itself.  Including slides changes the way you’ll need to prepare and rehearse your closing argument.  Think about Jobs revealing a brand-new product.  The cadence was so smooth, the

4 Major Defense Weaknesses in Health & Safety Products Liability – Part 3

February 28th, 2019|

No sugar-coating it:  the defense weaknesses we discussed in Part 2 are dangerous.  If you don’t have solid, convincing responses to them, you’re looking at significant challenges for your case outcome.  Finding the best solutions will, as always, depend on the specifics of your case.  However, because plaintiffs’ main arguments (and jurors’ reactions to them) are common and have broad applications, there are a number of important steps you can take every time:  Ask Yourself the Important Questions – and Answer Honestly 1. What are your case facts?  How thorough was your testing?  Was there evidence of a problem?  Did you warn sufficiently?   If there was an issue, how quickly did you respond?  What did

4 Major Defense Weaknesses in Health & Safety Products Liability – Part 2

February 25th, 2019|

Now that we’ve covered how jurors tend to think about health and safety products liability cases (Part 1), let’s examine the 4 common plaintiff themes that can cause major trouble for the defense:  1. You Favored Profits Over People This argument tends to be the crux of the plaintiff narrative.  And rightly so – these cases offer plentiful opportunities for plaintiffs to blur the lines between business and financial decisions.  Plaintiffs will suggest to jurors that money is the driving factor behind your client’s actions, not the safety of its consumers.  They can also point to less-than-ideal company documents (there always seem to be a few…) that discuss the

4 Major Defense Weaknesses in Health & Safety Products Liability – Part 1

February 20th, 2019|

When it comes to medical and safety products liability, the defense is inherently at risk.  While we’ve basically seen it all from plaintiffs, where human safety is concerned, a defendant tends to be vulnerable to a common set of plaintiff arguments.  But under the circumstances, in some ways this is actually good news.  At least if you know what to expect from your opponent and from jurors, you can try to do something about it.  The best way to begin to counter weaknesses in litigation is first to understand why the weaknesses exist.  So, here in Part 1, we’ll take a look at the elements that combine to give plaintiffs such an advantage in these cases.  Then, in Part

4 Major Defense Weaknesses in Health & Safety Products Liability – Part 1

February 20th, 2019|

When it comes to medical and safety products liability, the defense is inherently at risk.  While we’ve basically seen it all from plaintiffs, where human safety is concerned, a defendant tends to be vulnerable to a common set of plaintiff arguments.  But under the circumstances, in some ways this is actually good news.  At least if you know what to expect from your opponent and from jurors, you can try to do something about it.  The best way to begin to counter weaknesses in litigation is first to understand why the weaknesses exist.  So, here in Part 1, we’ll take a look at the elements that combine to give plaintiffs such an advantage in these cases.  Then, in Part

Why So Many Mediations Fail, and How You Can Up Your Success Rate

January 10th, 2019|

Over the last 23 years, I’ve attended plenty of mediations with clients to help them prepare and present their mediation presentation.  But from what I’ve seen, there’s not much actual mediation going on.  Instead, it usually goes something like this:  Mediator:  You never know what you’re going to get with some crazy jury, so your best bet is to settle this here with me.  Would each side like to make an opening statement?  Plaintiff:  We know what a jury will do.  We’re going to kick your butt.  Defense:  No, we know what a jury will do, and we’re going to kick your butt.  (Both sides adjourn to separate rooms and eat M&Ms.  Mediator’s corns get worse going