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A Surprising Lesson From Voir Dire

December 12th, 2017|

I get excited when I am called for jury duty. After all, my entire 25-year professional career has been focused on persuading judges and juries. Serving on a jury is a rare opportunity to get a view from the inside. It allows me to confirm everything I routinely watch in mock trials and have learned. For example, see 10 Things Every Mock Jury Ever Has Said. When I get called, and yesterday was that rare day, I watch everything -- from how potential jurors are organized to the racial, ethnic, and gender composition of the pool, and every little choice the lawyers make,

Joint Defense Groups: The Good, the Bad and the Ugly

December 6th, 2017|

Quite frequently, defendants in major cases will decide to form joint defense groups. Joint defense groups are intended to provide defendants with significant efficiencies that result from common effort in facing a common adversary, whether in a patent case against the same patent holder, tort litigation against the same set of injured people, white-collar criminal actions against the government, antitrust litigation against the same plaintiff, and so on. But joint defense groups, which by their nature bring together several high-powered lawyers at a single defense table in the courtroom, can present unique challenges. Sometimes, joint defense groups will work as

The Top 21 Litigation Articles of 2017

November 29th, 2017|

Every year going back to the start of this blog in 2011, I have paused to look back over the past 12 months of articles and see which were deemed best by our readers. Some articles have been read 90,000 times while others, often surprisingly, are only viewed a few dozen times. In this method of article ranking, every reader view is a vote. This year's top 21 list is consistent with recent years. Articles about storytelling and voir dire are the most read. The #1 ranked article, in particular, was very popular because it was not only about storytelling but

How Early-Stage Focus Groups Can Help Your Trial Preparation

November 27th, 2017|

Many people are familiar with mock trials, which are full-blown exercises before a trial in which witnesses are presented and arguments made before mock jurors, who proceed to render a “verdict.” The results of mock trials, as we have discussed here before, can be extremely helpful to litigators who want to know how strong their case is, which arguments and testimony to pursue at trial, and which ones to forget about. As Slate magazine wrote in an illuminating article in 2005: Either side of a case can hold a simulated trial, and they're used in both civil and criminal cases.

12 Tips to Hire the Right Trial Technician for Your Trial

November 21st, 2017|

The trial technician, sometimes called the hot-seater, is the person who runs the courtroom technology so that a trial team does not have to do so. A trial tech typically uses programs like Trial Director to manage thousands of exhibits and has each at the ready to be displayed and highlighted. During opening, closing, and expert testimony, the trial tech runs the PowerPoint system to ensure flawless and well-choreographed presentations. The benefit of using a trial technician is that the trial team can focus on the law and the facts and can concentrate on connecting with the judge and jury rather

What Trial Lawyers Can Learn From Russian Facebook Ads

November 16th, 2017|

It turns out that a large number of Russian ads on Facebook that viewers did not know were Russian ads influenced the way people thought about various issues last year. They may have even influenced the 2016 presidential election to some degree. Rather than delve deeply into the appropriateness of these ads (in my view, they were wholly inappropriate), who exactly directed their placement, and how exactly they affected behavior, let's instead look at these ads from a trial lawyer’s perspective.   After all, if pictures and a few short phrases can be used to change the voting behavior of the

7 Times When Litigation Graphics Hurt You

November 8th, 2017|

We don't have a Hippocratic oath (i.e. do no harm) in the legal field, but when it comes to using litigation graphics at trial, maybe we should. You see there are some times when using litigation graphics does real damage to your overall persuasiveness. It is incorrect to assume that when using visual aids such as demonstrative evidence, scale models, trial boards, computer animation, or the ever-present PowerPoint presentation you are always doing good and helping your audience. Here are seven times when you would be better off changing your approach or not using litigation graphics at all: You are reading from your

Cialdini’s Principle of Persuasion: Liking — Part 3

October 18th, 2017|

Dr. Robert Cialdini has identified six basic principles of persuasion. One of them is liking. If people like you, they are more likely to say yes. Why is that important to a litigator? Quite simply, any litigator wants to persuade a jury, judge or other adjudicator to agree with her, and if the adjudicator likes her, she is more likely to win her case.  The key to getting someone to like you is to remember that it’s not just a momentary feeling but a sum of everything that the person thinks about you – and that the feeling is not

Find Your Own “Sputnik Moment” at Trial

October 4th, 2017|

On this day sixty years ago, a 34-foot-tall Soviet rocket lifted off the Earth from a Cosmodrome in present-day Kazakhstan.  Its payload -- a shiny silver globe with four external antenna masts to broadcast a repeating radio chirp back to Earth.  The Soviets called it Prosteyshiy Sputnik 1 -- “Simple Satellite 1.” The world’s first successful orbiting satellite was tiny, just 22 inches in diameter and weighing 184 pounds.  But its “beep-beep -- beep-beep” signal was rebroadcast everywhere and easy to pick up directly by shortwave radio.  Sputnik could also be seen in orbit by the naked eye, the sun

These Days, More Clients Are Hiring Law Firms, Not Lawyers

September 27th, 2017|

During the past three decades, I've heard many clichés about the legal industry. One of them is that companies hire the lawyer and not the law firm. I think this one is often still true, but, for the first time in my career, I am noticing that this cliché is no longer as applicable as it used to be. This change is happening both at law firms and at litigation consulting firms like ours. It's true there are some special lawyers out there, particularly trial lawyers. Many of them can be recognized by their first names only, like Beth, David, and Brendan. To