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“Alexa” Hears Everything and Jurors See Everything

March 18th, 2017|

Recently there was quite a stir over the possibility that Alexa, Amazon’s highly successful and useful home device, could be listening to everything everyone says (it’s too late, she has already heard what you have said), and that it could actually be used as evidence in a criminal trial. After all, “she” must be listening, since she is voice activated. This is an interesting realization. So, Alexa hears everything: she is always “aware.” It reminded me also that in a jury trial, a jury “sees” everything, is always looking, always assessing, always evaluating, and potentially judging what they see. Jurors certainly listen

Helping Jurors Avoid “Alternative Facts”

March 4th, 2017|

Kellyanne Conway has introduced the concept of “alternative facts” into the political discourse with her defense of President Trump’s Press Secretary Sean Spicer’s assertions about crowd size at the presidential inauguration. Of course, this isn’t the first time this concept has been present in political discussions; in fact, the sales of George Orwell’s 1984 have skyrocketed since the inauguration as Americans reflect on some of the literature that introduces concepts like this. Laura Dominic and Alexis Knutson recently wrote about the potential presence of “alternative facts” in trials. Although these “facts” might not be appropriate, I have seen the introduction

The Less Than Perfect Client

February 18th, 2017|

The Radiolab spinoff podcast More Perfect recently aired an episode titled The Imperfect Plaintiffs, detailing the case of Lawrence v. Texas, a landmark Supreme Court case that evaluated the constitutionality of anti-sodomy laws. (If you haven’t heard of More Perfect, each episode uncovers the lesser-known details of a landmark Supreme Court case. Take a listen and test your knowledge.) The episode explains “test case litigation.” In test case litigation, the goal of certain individuals or groups of political activists is to overturn, or find unconstitutional, some law that’s currently on the books. However, in order to do so, they need

Alternative Facts Don’t Fly in the Jury Room

January 28th, 2017|

Alternative facts seem to be getting in the way a lot these days. Sean Spicer’s representation that President Trump’s January 20 inauguration audience “…was the largest audience ever to witness an inauguration, period, both in person and around the globe,” was quickly discounted given the aerial photograph posted by the Vox showing the opposite to be true. Kellyanne Conway’s attempt to explain that what Spicer claimed was not a “falsehood,” but rather simply “an alternative fact,” only made matters worse. The phrase “alternative facts” riddled headlines Monday morning, highlighting just how little tolerance the public has for twisting the truth.

In Memory of Joyce Tsongas: Honoring a Legacy in the Field of Trial Consulting

January 19th, 2017|

Joyce E. Tsongas, a pioneer in the field of jury consulting, passed away with her family by her side on January 15, 2017. Joyce paved the way for modern day trial consulting and will always be known as one of the influential leaders in our field. Joyce was the daughter of a speech teacher and college debater, so communication was in her blood. So much so, she was the first woman to graduate with a Master’s degree in Communication from Purdue University. She made legal communication her profession when she founded Tsongas & Associates in 1978. She frequently recalled the

Don’t Be a Corporate Mouthpiece in Your Opening Statement

January 14th, 2017|

One part of our case strategy sessions involves creating an outline of the case narrative. We call this the Case Story, and it typically entails outlining topics that serve as the segments of your overall case presentation. When working with attorneys representing corporate defendants, we often find ourselves suggesting an alternative strategy to the natural tendency to make the start of the story, “The Corporate History” or “The Good Work of the Company.” That tendency is natural and intuitive given that the plaintiff will have just completed an hour-long attack on your client’s conduct. It makes sense to want to

I “sort of” want you to stop saying that: A trial consultant’s rant about a vocal filler infiltrating our persuasive communication.

December 31st, 2016|

I “sort of” want you to stop saying that. No! I do want you to stop. Not kind of. Not sort of. I do want you to stop saying “sort of.” “Sort of” appears to have become the vocal filler of the year. As formal speech-making has become more casual, the use of vocal fillers has increased. You remember the rise of “valley girl” talk in the 80s. Parents cringed at the frequent insert of “like.” “Mom, Jenny and I are “like” going to go to the store.” Vocal fillers are interjections of words that fill what might otherwise be

Surprise! Time for the Post Trial Juror Interview

December 17th, 2016|

To say that some were surprised by the results of the Malheur National Wildlife Refuge standoff trial would be an understatement. And it didn’t just come as a surprise to the prosecution – it’s likely that attorneys on both sides of the issue were surprised by the verdict returned by the jury. One of the defense attorneys was quoted in the Seattle Times as saying, “This is off-the-charts unbelievable… I had been telling my client you can count on being convicted. You don’t walk into federal court and win a case like this. It just doesn’t happen.” Enter, the post

Speaking to Your Jurors’ Core: Core Trial Strategies for Success

December 5th, 2016|

The Holy Grail of trial persuasion is to speak to jurors in a manner in which they can adopt an advocate’s or witness’s words, language and themes when they think about the case and deliberate to a verdict. Language shapes our thoughts, justifies our feelings, directs judgment, and can be used to influence others. Try and make a judgment about a situation now that does not involve speaking to yourself, selecting words and phrases that account for a situation and justifies your judgment. In Case Strategy work we do for jury trials, clients often ask us to help them develop

Appealing to Millennial Jurors

November 5th, 2016|

With each passing year, more and more millennials begin to both be eligible for jury service and choose to show up for their day or days in court. As this cohort starts to make their presence felt in jury trials, how should attorneys react to their increased attendance? A few simple considerations can make this situation fairly manageable. First, it is important to define this group of individuals. Definitions vary, but the most common definition is those people born between 1980 and 2000. That means they range in age from 16 to 36. There was a time when it was rare