Home/Litigation Insights

Preparing Witnesses for the COVID Courtroom

December 16th, 2020|

Trials have resumed in courts around the country, ushering in an unprecedented era of changes in trial practice and in the physical setting of the courtroom to account for COVID-19. These changes are designed to help maintain a safe environment, but as we know, they have required litigants and court staff to adapt and adjust to a new normal. But witnesses, too, are stepping into the courtroom facing new unknowns. Safety measures such as the use of distance among all of the parties and the jurors in the courtroom, physical barriers such as plastic or glass dividers, and masks and

What Pandemic Misinformation Teaches Us About Improving Our Own Case Stories

November 10th, 2020|

At this point, one could make a strong argument that misinformation about the novel coronavirus has proliferated even beyond the virus itself. Unproven treatments, conspiracy theories, and the politicization of protective measures are but a few examples. Which probably shouldn’t surprise us. Misinformation is its own modern-day plague. Back in 2018 (those sweet, simple times), it was Dictionary.com’s “Word of the Year,” a reflection of its impact on our cultural climate. But when it comes to the current deadly pandemic, about which it is so imperative we are all on the same page, the prevalence of misinformation hits that much harder.

How to Improve Negotiations, Part 3: Communication Factors & Barriers

October 29th, 2020|

Communication in negotiations is complicated. Even when we think we’re making explicit offers and demands, we often send unintended messages that can hurt our bargaining position – whether regarding the flexibility of our offer, our motives, or our honesty. The opposing party can infer such messages based on our offers or concessions, what we say, and how we say it. Previously in this blog series, we covered tips for negotiation planning and strategy, followed by a discussion of three key psychological biases you can leverage. Now, we turn to the subtle communication strategies that can influence the direction of your

How to Improve Negotiations, Part 2: Psychological Tools

October 22nd, 2020|

The human brain is extraordinary, but it is limited in how much information it can process. Our minds simply cannot handle the effort necessary to take in everything we see, hear, or read. Because of this, we’re often influenced by cognitive biases when processing information and making decisions – even crucial ones; although research has shown that the brain will put forth great effort in especially important situations, cognitive biases will still likely play some part. So as we continue with our discussion of ways to improve our negotiation outcomes, it is worth examining how psychological biases can both hinder

Fear, Trust, or Loathing? Juror Attitudes Toward Respirators in the Time of COVID-19

September 24th, 2020|

In jury selections that involve workplace respirator use (either directly or indirectly) in the presence of toxic dusts, a key voir dire question has always been whether a juror personally has used a disposable respirator and, more importantly, whether they believe it protected them. So, as COVID-19 first trained its eye on the U.S., we saw an early opportunity to understand how this new virus might influence jury eligibles’ use of and trust in masks and respirators for protection, whether against viral transmission or potentially toxic dusts. After all, for future toxic tort cases, it is crucial we understand how

How Do You Save or Rehabilitate Jurors in Voir Dire?

September 17th, 2020|

We’ve written a fair amount about the importance of getting jurors to reveal bias in voir dire and subsequently admit they can’t be fair, with the goal of maximizing cause challenges and removing your riskiest jurors from the panel. But equally important is saving the jurors who are likely to support your case. When it comes to voir dire, there are three skills necessary for reducing the likelihood of having your best jurors kicked for cause:  Hiding Your Keeps, Rehabilitating Jurors, and Defending a Cause Challenge. Hiding Your Keeps The first stage of preserving your good jurors is not to

“Let Patients Choose”: Jurors’ COVID-Era Opinions of the Pharmaceutical Industry – Part 2

September 3rd, 2020|

Medical care should be between a doctor and a patient. Pharmaceutical companies should not have a say in what medications we are allowed to take or what medications are available to us. It should be our choice. They are taking away the choice from patients and doctors. – a recent mock juror We hear it over and over in our mock trials: Having a choice. The ability to make an informed decision. Individuals experiencing an illness or injury enter a world that can feel out of their control. If there is no one directly responsible for their pain, they may transfer

Savior or Scoundrel? Jurors’ COVID-Era Opinions of the Pharmaceutical Industry – Part 1

August 27th, 2020|

In recent years, “Big Pharma” has become a boogeyman of sorts in both online and public discourse. From the anti-vaccination movement to the persistent rumors that the medical and/or pharmaceutical industry have developed a cure for cancer and are withholding it from the general public,1 conspiracy theories around the pharmaceutical industry reach into many aspects of our lives. Whether minor or extreme, such attitudes have carried over into how jurors view pharma-related litigation. Of course, public distrust has been aggravated by a series of high-profile bad actors and investigations into the practices of various pharmaceutical companies. For example, in September

How Hollywood Can Inspire Your Courtroom Presentations

August 20th, 2020|

Name the last movie you watched. Can you remember how many times there were edits? How many transitions? What kind? Most of us have watched movies our entire lives without really attending to their cuts and transitions – but our brains still do. It’s why a great editor can be as important to a film’s effectiveness as its director or star actor (even if they’re significantly less celebrated). In fact, the story goes that the original Star Wars was “saved,” or at least significantly aided, by those who edited it. Whether we’re actively thinking about them or not, transitions offer

Considering Online Jury Research? Here’s What You Need to Know

August 8th, 2020|

Though many mock trials and focus groups have been put on pause in hopes of safely resuming to business as usual, we’re finding that some jurisdictions won’t be suitable for in-person research for quite some time. Yet, trial dates loom – with some already fast approaching – and we’ve received several inquiries about online jury research options on the grounds that something may be better than nothing. Indeed, online jury research is a valid option that can provide worthwhile results; but before deciding to move your research to a virtual format, it’s important to be aware of its strengths