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The Jurors Hated It, But It Worked

August 6th, 2018|

By Thomas M. O’Toole, Ph.D. An important lesson I have learned from observing jurors’ decision-making in mock trials is that jurors sometimes dislike strategies that nevertheless are quite effective. They may not like what they see, yet they are still persuaded by it. These moments can be tough to digest. Besides the gut-check, it is difficult to ignore the fact that several mock jurors are criticizing something you did. However, research has shown over and over again that persuasion does not always happen at a conscious level. In other words, what jurors verbally express about something does not necessarily reflect

How Johnny Depp Can Sell Jurors on Fiduciary Duty in His Lawsuit Against TMG

July 6th, 2018|

By Thomas M. O’Toole, Ph.D. Last year, famed actor Johnny Depp filed a lawsuit against his management company for professional negligence, breach of fiduciary duty, fraud, and unjust enrichment among other things, essentially claiming that his management company, TMG, stole a significant amount of money from him. According to news reports, the case is expected to go to trial this coming August. Sadly, the story of a management team ripping off its successful celebrity client has become all too common. We have consulted on a variety of these cases throughout the years, involving television and movie actors, famous musicians, and celebrity

The Value of Serving a “Truth Sandwich” to Your Jurors

June 21st, 2018|

By Jill D. Schmid, Ph.D. Lately I’ve been following the debate about how the media should cover Trump’s statements – whether via Tweet, rally, official statement, or press “conference.” Much of the debate comes down to how to cover what he says without reinforcing the “incorrectness” of the statements. I wrote about Trump’s ability to control the narrative when he was campaigning in the GOP primary. What was true then, and now, is that the mainstream media hasn’t learned how to regain control of the narrative. Too much of the message is a nuanced attack on the “truthfulness” of the

Flags, Focus, and the Importance of Shifting Jurors’ Attention to Favorable Messaging

June 12th, 2018|

By Jill D. Schmid, Ph.D. When Colin Kaepernick first took a knee in 2016 during the National Anthem to protest police brutality against African-Americans, the controversy was almost immediate.  The whyhe was doing it didn’t matter much then, and it doesn’t seem to matter much now. Instead, the protest became about the flag, the military, or even Donald Trump. One survey in October of 2017 showed that while 57% of the respondents checked that “protesting against police violence” was “one” reason for the protests, respondents also checked other reasons: Donald Trump (26%), not sure (18%), something else (20%) and the

Litigating Sexual Harassment Claims in the Era of “Me Too”

May 31st, 2018|

By Thomas M. O’Toole, Ph.D. The “me too” movement has become one of the most defining issues in American culture over the last year. We have seen a variety of celebrities and public figures lose their jobs, and the media coverage has been extensive. The movement itself seeks to raise awareness, increase dialogue, and change the way many people think about issues related to sexual harassment and abuse. In the world of litigation, a common area where sexual harassment claims arise is in employment litigation, but I have seen little to no research into how the “me too” movement has

Filling the Experience Gap with Creative Associate Training Programs

May 16th, 2018|

By Jill D. Schmid, Ph.D. In an article called “The Case of the Vanishing Trial Lawyer,” published in the Boston Globe,a veteran litigator, Edward McCarthy, makes a compelling case for the need for associates to gain more trial experience, while acknowledging that their ability to do so is slim since the number of cases going to trial has dwindled so significantly. “Today,” he writes, “Most trial lawyers can’t learn by doing,” and he goes on to discuss how most cases settle or are handled in arbitration. He writes that “The result is that part of the legal profession’s apprentice system

Does the Size of a Corporate Defendant Matter?

May 1st, 2018|

By Thomas M. O’Toole, Ph.D. It probably comes as no surprise that corporate defendants face a disadvantage at trial compared to individual defendants. A long line of research has established this general corporate bias; however, there has been little attention given to how jurors view large versus small corporations, so we collected data on the subject in a 2017 nationwide survey of jury-eligible respondents. The data generally revealed that larger corporations face greater bias than smaller corporations on both liability and damages. As support, let’s look at some interesting data points from our survey on how respondents’ beliefs might impact

Battling Confirmation Bias and First Impressions in Litigation

April 17th, 2018|

By Thomas M. O’Toole, Ph.D. Confirmation bias refers to when people accept or reject evidence based upon what they want to believe as opposed to basing it on the actual merits of the evidence. In some ways, it is a psychological survival mechanism tied to our beliefs about how the world works. Challenges to these beliefs can cause a great deal of chaos and stress, so our brains are, essentially, pre-programmed to seek out evidence that reinforces those beliefs, while minimizing, explaining away, or outright rejecting evidence that challenges them. In fact, this explains the siloed media we have today

Using Jury Instructions More Effectively in Closing Argument

April 3rd, 2018|

By Thomas M. O’Toole, Ph.D. One of the studies that I like to cite more than just about any is the old 3M study that showed that people remember only about 10% of what they are told three days after it is told to them. Apply this to a trial setting and the implication is that jurors will forget up to 90% of what they heard over the course of a trial by the time they reach the deliberation room. To put it a different way, by the time jurors reach the deliberation room, they are overwhelmed, do not remember

The Power of Embracing Bad Facts

March 26th, 2018|

By Jill D. Schmid, Ph.D. On a recent episode of “All In,” Chris Hayes was discussing one possible approach the Trump team could take in regards to the Stormy Daniels mess. Similar to the approach John Edwards took in his lawsuit involving some of the same issues, the strategy is essentially go for broke by embracing and re-framing the “bad” behavior – “Sure I did it, but it wasn’t illegal.” For Edwards, he stated it this way: “There’s no question that I’ve done wrong, and I take full responsibility for having done wrong. I will regret for the rest of