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“L” is for…Lions! The Peril of Blind Spots in Litigation

June 15th, 2021|

As a die-hard Seahawk fan, I have little trouble finding ways to ridicule other teams, but boy did the Detroit Lions make it easy for me the other day. Spot it? When you’re already one of the worst teams in the NFL, advertising it with a giant “L” for your logo doesn’t make a lot of sense.  It begs the question, who thought this was a good idea and why didn’t anyone stop them? There were probably a couple of factors at play, and those same factors could be contributing to poor decisions and outcomes like this one in your

Making the Damn Feather Weigh More: Reframing Common Burden of Proof Arguments By Plaintiffs

June 1st, 2021|

“If you end up saying to yourself, I just don’t know, but it might be, then we’ve met our burden.” While I’ve listened to both plaintiff and defense attorneys frame their take on the burden of proof for years, this one made me go “hmmmm.” While the feather on the scale and the claim that you only need to be one tiny decimal point above 50% to vote for the plaintiff are tried and true plaintiff framing devices, this one struck me differently. I realized it was the additional phrase, “I just don’t know.” If you stop at that point,

Persuading with Science in a Post-Fact World

May 20th, 2021|

We are living through a particularly difficult time for science. My colleague, Jill, has written in the past about the challenges of persuading juries in a post-trust/post-fact ecosystem. The politicization of fact is creating a notable backlash against expertise. Nowhere is this challenge more pronounced for trial teams than in cases that rely on scientific and technical data. This post-trust/post-fact ecosystem presents a serious threat to our ability to come to accurate conclusions that require someunderstanding of scientific or technical information. A 2017 National Academies Press study cuts to the core of the issue, noting that only 16% of Americans

Reptile or Rules of the Road: Why do Some Cases Go Nuclear?

May 4th, 2021|

Why do some cases go nuclear while other cases with similar fact patterns or injuries do not? Every jury is different of course, but that does not tell us much about the variations in jurors’ psychological reactions to cases. There have been numerous attempts to outline the magic formula for nuclear verdicts from the plaintiff’s perspective. Two of the more prominent theories out there that are routinely embraced by plaintiff attorneys are Reptile and Rules of the Road. Reptileproposes a fear-based approach to the case presentation while Rules of the Road suggests a more principle-based approach. So, which one is

Calming the Excited Mind of Your Client in Deposition

April 28th, 2021|

Surprisingly, the task that is often the most difficult to accomplish with witnesses is getting them to a place where they actually hear the question for what it is and answer only that question. Instead, so many witnesses deliver monologues after questions, going well beyond the scope of the question. These monologues can include an appearance of answering the question, but then go far beyond that by explaining why that answer is correct, playing defense on whatever they think (rightly or wrongly) the examining attorney is trying to accomplish, helping the attorney figure out what they really should be asking,

Implications of Facebook’s Famous Emotional Manipulation Experiment

March 10th, 2021|

In January 2012, Facebook conducted a controversial one-week experiment with approximately 700,000 users in order to determine how the Facebook news feed influenced the emotional state of the users who were unknowingly used as Facebook’s lab rats. An article in The Atlantic described the manipulation this way: “Some people were shown content with a preponderance of happy and positive words; some were shown content analyzed as sadder than average.” The study found that the manipulated news feed content influenced the users’ subsequent posts. More specifically, the study found that an increase in negative news items led to negative posts

Jury Pool Differences with Remote Jury Trials

February 23rd, 2021|

I was speaking with a prominent plaintiff personal injury attorney in Seattle recently about the remote jury trials that are taking place in King County. When I asked him his thoughts, he said they he likes remote jury trials because he feels like he is getting better jury pools. This comment intrigued me, so we looked at our own internal data to see if there are any differences in the make-up of remote trial jury pools compared to in-person trials. Does this shift to technology change the make-up of the jury pool and if so, how? We began by looking

11 Tips for Persuasive Zoom Presentations

February 3rd, 2021|

We are almost one year into the COVID-19 pandemic and Zoom (referring to both the specific platform and generically to all videoconferencing) has become the predominant method of professional communication. Attorneys attend hearings over Zoom, pitch their services to clients, and in some venues, even try cases to juries remotely. In this week’s blog, I want to explore the components of effective presentation over Zoom. Here are eleven tips that I developed with Dr. Mike Anderson, an expert in public speaking, to enhance the quality of your Zoom presentations. 1. Sit closer to the camera. One study examined the relationship

Strategies for Overcoming Anti-Fact and Anti-Expert Bias at Trial

January 26th, 2021|

Lately, we have been doing a lot of reading and writing about emerging “anti-fact” or “anti-expert” views and their impact on trial practice.  As we have discussed in previous blogs, people are much more inclined than in the past to use their own experiences as the only evidence needed for how the world works and the truth or falsity of particular events. A research article in the Journal of Political Psychology took this finding one step further and compared one’s willingness to accept scientific evidence to their political ideology. In a nutshell, conservatives were more likely to hold less favorable

INTERVIEW: A Judge’s Perspective on Remote Jury Trials

January 20th, 2021|

Hits: 6In the fall of 2020, King County Superior Court (Seattle) Judge David Keenan presided over a 15-day Zoom jury trial, making him one of only a small number of judges across the United States to have done so. The length of the trial is particularly notable given that most remote jury trials reported in news have been shorter in length by comparison. Judge Keenan now provides guidance to other judges as they order remote jury trials to help keep the wheels of justice moving during the pandemic. However, many trial attorneys remain anxious and uncertain about remote jury trials,