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Trial Consultants as Key Assets in Multidistrict Litigation

July 9th, 2020|

Managing the scope of multidistrict litigation (MDL) is a daunting task for attorneys and trial teams. The sheer number of cases, attorneys, and witnesses involved in the process creates significant challenges, especially when trying to keep everyone involved in the process “singing from the same sheet music.” Defining, designing, and modifying strategy and tactics based on data, insight, and feedback across cases and participants is critical to ensuring more predictable and successful outcomes. At Tsongas, we have been deeply involved in numerous, significant MDLs. As litigation and trial consultants, the aim of our approach is to promote the use of

Sharing Covid-19 Efforts Unlikely to Change Verdicts

June 19th, 2020|

Originally published in Law360, June 12, 2020 The COVID-19 pandemic has elicited a variety of responses by businesses trying to build or maintain good relationships with consumers. Anyone watching television has been bombarded with commercials from companies expressing that they “care” and that “we will get through this together.” Some businesses are going beyond expressions of support and taking steps to help the response to the pandemic, including donations of personal protective equipment and other support for health care workers. As trials begin again in the U.S., companies that defend themselves in front of juries will be confronted with a difficult

Who Might Not Be on Your Jury in the “New Normal” Trial?

June 11th, 2020|

As our country has started to reopen, we have heard a lot about the “new normal”. It appears inevitable that social distancing and mask wearing will be a part of our public events for a long time. Courts across the country have started to adopt new normal practices to reopen the justice system. Early in the pandemic, a New York juror participated in the deliberation via video while others were in person. In Portland, Oregon, criminal trials have resumed with restrictions on numbers and space. In Texas, a Summary Trial in a civil matter was held over Zoom. Trials everywhere

The American Jury Trial: The Way Forward

June 4th, 2020|

The courts closing all around the country was jarring to many of us in litigation and litigation support. Since our jury consulting firm opened in 1978, it had never happened. As of this writing, courts around the country are weighing their options on how they can get on with the essential process of delivering justice. Jury deliberations in New York have taken place with one of the jurors participating remotely. Socially distant jury trials are currently underway in Portland, Oregon, for criminal matters. In Texas, a Summary Trial was held in a civil matter and every participant was remote. The

The Truth Told Well and Medical Care Plus Medical Caring: Medical Malpractice Witness Preparation

May 21st, 2020|

I recently presented to a national medical insurance organization as part of a panel concerned with the explosion in medical malpractice jury verdicts in recent years. The panel, “Buckle Up for a Bumpy Ride…Navigat[ing] Social Inflation Turbulence,” focused on identifying some of the key influences behind the rise of these larger medical malpractice jury verdicts and providing insight on practical prescriptions to the problem. The consensus on the panel was that: (1) the social inflation in a medical malpractice verdict is not only trending, but rose sharply in 2019; (2) that the role of jury demography – and specifically

Don’t Forget About Ethos

May 8th, 2020|

Dr. Anthony Fauci has it all. From a standpoint of persuasion and credibility, he is the full package, whose presence at a podium jumps beyond his modest 5’ 8” frame. In a recent poll conducted by the University of Northern Florida, Dr. Fauci had the approval of 85% of registered Florida voters, nearly doubling that of the President’s approval as a reliable source of information. Dr. Fauci is straightforward but calm, expert but accessible, serious but pleasant, authoritative but likable. Just the other day, in the White House press briefing, he made a passionate appeal (pathos) about social distancing based

Preparing for a Remote Deposition

May 7th, 2020|

By now you have heard of, or even participated in, a deposition taking place remotely via a webcam-based platform. In cases where depositions could not wait, the legal community was forced to adapt to the changing rules limiting in-person meetings. While it seems like restrictions may ease by summer (at least enough to accommodate 6-8 people in a large conference room), the virtual medium may remain an appealing option for some, especially those where geographical distance between attorneys and the deponent is a factor. Remote depositions may be a new form of our work, but the rules for preparation are

Jury Research Amid COVID-19

April 23rd, 2020|

In early March, most of the business world was faced with the question, “How are we going to continue business as usual?” Today, the question seems to be, “Are we going to return to business as usual?” As of now, the answer to that question changes day to day. Although many trials have been put on standby, attorneys continue preparing for and attending mediations and settlement discussions. That means there are some research questions that cannot wait. As we watch to see how and when we return to normal, Tsongas has been actively working on adapting our small group jury

One Person’s Inference is Another Person’s Conjecture

April 1st, 2020|

Steven Wright observed that “there is a fine line between fishing and standing on the shore like an idiot.” And as David St. Hubbins (lead singer of Spinal Tap, the band chronicled in Rob Reiner’s Rockumentary This is Spinal Tap) notes, “It’s such a fine line between stupid, and…uh…clever.” Well, there is also a fine line, based on my observations of jury deliberations, between reasonable inferences and conjecture/speculation. Jurors struggle mightily with these issues and seldom know where that fine line is or where it should be drawn. As a former professor of communication specializing in persuasion and argument, observing

Trial Preparation in the Time of Covid-19: A Practical Approach

March 21st, 2020|

The rapid emergence of COVID-19 has imposed stark exigencies on litigation and trial practice. Many law firm offices have been emptied as staff and employees have been quickly adapting to remote work environments. Many courts have closed down, halting civil jury trials, trail to be rescheduled for still to be decided dates. Here is a useful resource to track and assess the widespread business interruption caused by the Court’s directives to socially distance. Most professionals are looking for a sense of normalcy in an abnormal time. How to remain productive and serve the needs of the client through useful and