The Advantage Blog – Tsongas Litigation Consulting

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Making Delivery an Equal Partner with Content

September 15th, 2018|

I was standing around a table with some lawyers after a CLE I had just spoken at where I had (apparently provocatively) stated, “Delivery is not the little sister of content in persuasive speaking, she’s the twin sister. In the litigation community these days delivery is jealous of her sister because content gets so much more attention!” When I was a Graduate Teaching Associate, one of our lesson plans was to have the Speech and Communication 101 student evaluate the persuasiveness of four different versions of the same speech. The versions were: Good delivery, bad content Good delivery, good content

Getting the Most Out of Shadow Jury Feedback

August 11th, 2018|

Decades before the O.J. Simpson trial, America had another Hollywood “Trial of the Century.” Errol Flynn, a handsome Australian actor at the height of his Hollywood career, was adored by fans from around the world. That was until 1942 when he was arrested for allegedly taking advantage of an underage girl at a party. When she filed a complaint, the District Attorney remembered a similar complaint made by another young girl, and subsequently pressed charges against Flynn. Flynn hired famed attorney to the stars Jerry Geisler to represent him. It was said that during jury selection, Geisler purposefully left 9

Improving Credibility in Litigation

June 2nd, 2018|

When we have the opportunity to talk with actual juries after a trial, we learn a lot. In a recent post-trial interview, the jurors revealed an influential dynamic that took place early in the deliberation. Their discussion began by going around the table and letting each juror share his or her initial impressions. The juror at the head of the table started first. He gave his overall view of the case. The next juror in line was no more than 30 seconds into her perspective when juror number 10 broke in: “I’m sorry to interrupt, but when that witness tried

Appealing to the Lazy Brain

May 19th, 2018|

Let’s face it, most trials are long and boring, especially in today’s sound bite era where most people’s attention spans no further than the time it takes to read a meme or social media post. Jurors are not used to sitting for long periods of time listening to evidence presented through a question-and-answer format. Yet we expect them to work hard to pay attention, understand, and retain the information. The trouble is, the human brain is naturally lazy. It doesn’t want to work harder than it has to in order to process information. As a result, our brains often rely

Knowing When to Eat Crow: Apologies in Litigation

May 5th, 2018|

Bad facts exist in every case. Particularly in this day and age when everything electronic has a footprint, a cringe-worthy document is bound to pop up. A client attorney of ours once referred to email as “the cockroaches of litigation” – they’re lurking in every case. So if you can’t avoid bad facts, what do you do about them? Use them to your advantage. Sometimes falling on your sword will go a long way to gain credibility with the jurors. There is certainly a fine line to walk when it comes to apologizing in a legal setting. Apologies can backfire

Witness Testimony as “Conversation with Forethought???

April 21st, 2018|

One of the most difficult challenges in preparing a witness for trial or deposition testimony is helping them understand the unique setting that is witness testimony.  It is unlike almost any other communication event. The question-and-answer format provides a certain amount of control to the questioner, making it a more one-sided event than many other settings. The obligation to respond to every appropriately made question and the inability to ask questions in return (save for a request for clarification) creates unique challenges for witnesses. Witnesses also have to be reminded that this is not like a lunchtime chat with friends

Stop Telling the Judge What He or She Cannot Do!

April 7th, 2018|

I was a member of the graduate student admissions committee at the UW Communication Department, and we were meeting to rate and rank applications. There is no need to go into all the details, but as we were moving around the applicant “cards,” with their names and summaries of the qualities – stacking, ordering, and reordering – the process was moving pretty fast. I called for a halt, trying to assess the latest moves that were made. I was uncomfortable with it, but was trying to understand why. The Chair grew impatient and said “you have to give me an

Confidence in the Courtroom

January 20th, 2018|

It’s not about what you say, but how you say it. Confidence is king. Fake it ‘til you make it. Across all arenas, confidence leads to more opportunities and credibility amongst peers. The courtroom is no exception, and confidence impacts jurors, witnesses, and attorneys within this context. Researchers have long been interested in leadership characteristics within jury deliberations. One fascinating study looked at which jurors were most likely to change their minds during deliberations. One would expect (or at least hope) to find that those with the most accurate memory would be least likely to change their minds, but that

The Drama of Persuasion: Story-Telling and Narrative Framing

January 6th, 2018|

One of the most interesting components of facilitating a mock trial is seeing how jurors actually reason during deliberations. Most jurors have no training in formal logic or argumentation or in the fields in which the trial evidence is being presented (law, medicine, intellectual property, workplace safety, etc.), so they are unfamiliar with the criteria that would be used by experts in these fields. The specific jury instructions have yet to be provided, and even if they had, jurors often have a hard time following the rules as given. This is not a totally unique situation for most people, as

Jury Selection: Logistics

December 9th, 2017|

So often we write about the social science and theory behind sound jury selection. But there is one element – not sufficient alone, yet necessary to a successful jury selection – that goes unnoted. It is jury selection logistics, the coordination of processes, people, information collection, and facilitation of appropriate decision-making. To oversimplify, jury selection is a critical process whereby a trial advocate and her team are identifying jurors’ experiences and attitudes in order to determine if they have a, or a series of, pre-dispositions that increase the chances that they will be resistant to the case story, themes, evidence, or witnesses. In the