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Six “Talk Triggers” for Jury Deliberations

September 18th, 2019|

By Thomas M. O’Toole, Ph.D. Why do jurors talk about some testimony in deliberations, but not other testimony? Why do jurors start deliberations by talking about an issue that is not related to the first verdict form question? Why do they seem to want to talk about the one thing you repeatedly told them was irrelevant? These are important questions, and the answers may help attorneys exert greater control over what jurors spend their time talking about in deliberations. The strategic advantage that would come from this is difficult to overstate. After all, the cliché in our field is that

Examining Defense Strategy for the Upcoming Landmark Opioid Trials in Ohio

September 5th, 2019|

By Thomas M. O’Toole, Ph.D. Next month, the largest jury trial to date against opioid manufacturers, distributers, and sellers will take place in northeastern Ohio. The trial will involve the first case among the consolidated lawsuits brought by about approximately two thousand cities, counties, tribes, and others. In light of the recent decision in Oklahoma, in which a judge ordered Johnson & Johnson to pay $572M to the state, it is easy to understand why the stakes are significant. These cases are particularly interesting because of how they mirror the tobacco lawsuits filed by states years ago. The brilliant tactic

The Critical Importance of Practicing Your Voir Dire

August 15th, 2019|

By Thomas M. O’Toole, Ph.D. Despite what Allen Iverson might say (search “Allen Iverson” and “practice” on YouTube if you do not get this reference), practice is essential to the successful development of any skillset. In competition, competitors get better by practicing. This is why it is surprising to me that most attorneys do not practice their voir dire before the day of jury selection, particularly when so many also preach about primacy theory and the need to make a good impression right off the bat. Statistics indicate that fewer and fewer cases make it to trial, which means most

Juror Complaints Mirror Judge Complaints

August 8th, 2019|

By Jill D. Schmid, Ph.D. I was recently reading an article that was published a few years ago in our local bar journal about the common pet peeves of our local judges here in Portland, Oregon.  As I read the list, I was struck by the similarities to what jurors say are their top pet peeves. As a trial consultant, I’ve interviewed jurors for post-trial debriefings, shadow jurors, mock jurors, and watched and listened to jurors in countless jury selections. With this background, below is a list of what I’ve consistently heard from jurors; not surprisingly, what irks judges also

10 Practical Strategies for Changing Jurors’ First Impressions

August 1st, 2019|

By Thomas M. O’Toole, Ph.D. and Scott Herndon, M.A.  In 2016, Oxford Dictionaries chose “post-truth” as its word of the year. It defined it as “relating to or denoting circumstances in which objective facts are less influential in shaping public opinion than appeals to emotion and personal belief.” This concept has long been recognized in the fields of psychology and persuasion. Research has consistently shown that people tend to put beliefs before facts. In other words, decision-making often starts with what we want to believe, followed by efforts to seek out evidence that confirms what we want to believe, while

10 Indicators of Who Will Be Opinion Leaders in Deliberations

July 24th, 2019|

By Thomas M. O’Toole, Ph.D.  Jury selection is difficult. It is impossible to predict exactly how any one individual is going to decide the case. Instead, we look for indicators or glimpses into how a potential juror might decide the case. Some attorneys rely on the simple lifestyle choices of jurors, such as their news sources or what the bumper stickers on their cars say. Others use voir dire to explore jurors’ case-related attitudes and life experiences. While some methods are more reliable than others, they are all imperfect tools for trying to predict the future. These imperfections inevitably lead

Coping with Egocentric Jury Decision-Making

July 11th, 2019|

By Thomas M. O’Toole, Ph.D. We quickly learned that Richard was a horrible juror for us in the trucking accident case we were working on. We had decent evidence that the plaintiff had fallen asleep behind the wheel and veered into our truck, but Richard wasn’t having it. As soon as this issue came up in deliberations, he jumped in, stating, “I don’t care what he says. We have all been on the road with truck drivers and they routinely fly over into the other lane without any notice at all.” This quote was so powerful because what Richard was

Rare Insights from Jurors About Voir Dire

February 5th, 2019|

By Thomas M. O’Toole, Ph.D. This past Friday, I conducted our first ever all-day mock jury selection workshop in Seattle. Ten attorneys spent the day conducting voir dire and picking a jury to deliberate on the product liability fact pattern we put together ahead of time. Then the mock jurors actually deliberated so we could see how well the attorneys did in voir dire and their use of peremptory strikes. We tried to match everything we could to the actual jury selection process used by our local court. The attorneys had to come up with the right questions to ask,

The Importance of the Me Principle for Jury Strategy (or Those Darn Millennials!)

January 24th, 2019|

By Thomas M. O’Toole, Ph.D. Sadly, research on cultural changes in America over the past few decades show that we have become more of a narcissistic culture than ever before. Jean Twenge, professor of psychology at San Diego State University, wrote the following in an article in Time magazine: “Here’s the cold, hard data: The incidence of narcissistic personality disorder is nearly three times as high for people in their 20s as for the generation that’s now 65 or older, according to the National Institutes of Health; 58% more college students scored higher on a narcissism scale in 2009 than in

Understanding How Social Media is Changing Your Jurors

December 18th, 2018|

By Thomas M. O’Toole, Ph.D. One of the often-overlooked features of the social media revolution is how it has changed the consumer/product dynamic. In this era of Facebook, Twitter, YouTube, and the long list of other social media sites, we are no longer the consumers; we are the product. It is our information and attention that drives profit in these industries. Companies like Facebook observe our online conduct and sell that data to other companies. Consequently, incredible attention in recent years has focused on how to keep users engaged in information consumption, which is what we do when we visit