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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

An Effective Strategy For Changing the Narrative in Difficult Cases

December 13th, 2018|

Finding the little fact that changes the case narrative can feel like finding a needle in a haystack at times, which is why it is always good to have a fresh pair of eyes. By Thomas M. O’Toole, Ph.D. Some of the best case strategies that we have developed with our clients over the years resulted in the other side having to defend something at trial that they never realized they would have to defend…something they took for granted. This is a strategy I learned during my college debate career (yes, I was a college debate nerd…but you would be

Ease over Accuracy: Why “Yeah, but…” Defense Tend to Fail

December 4th, 2018|

By Thomas M. O’Toole, Ph.D. The “law of least effort” is an important principle for understanding jury decision-making. In short, if there are several ways of making sense of the evidence and testimony in a case, jurors will gravitate towards the one that is the least demanding for their brains. As Nobel-winning psychology Daniel Kahneman (who has spent his life studying human decision-making) states, “Laziness is built deep into our nature.” In fact, research has consistently shown that we assign greater weight to information and ideas that are more easily accessible to us, regardless of whether that information or those

Priming Jurors to Hate You and Your Client

November 27th, 2018|

By Thomas M. O’Toole, Ph.D. The critical takeaway from any meaningful discussion about primacy theory and its role in persuading jurors is often the one that is least discussed. Those who tout the importance of primacy theory often talk about priming the jurors to achieve victory, but research shows the real takeaway should be to avoid the early mistakes that cost you the trial. In short, you cannot win your case in jury selection or opening, but you can lose it there. Everybody knows first impressions are important, but some research shows that negative first impressions are much more powerful than

Preparing Witnesses to Pass the “Eyeball Test”

November 14th, 2018|

By Thomas M. O’Toole, Ph.D. One of the most commonly-cited statistics in communication studies is that verbal communication (i.e. the words that are actually said) constitutes only 7% of how the credibility of a message is determined. 38% is the vocal quality of the message (i.e. tone, etc.), and 55% is the nonverbal component. Some scholars have disputed how these numbers have been interpreted, but research has shown over and over again that how something is said is more important than what is actually said. Setting the research aside, anyone who has ever been in a serious relationship has lived

Faster is Better: Finding the Right Speaking Pace

November 7th, 2018|

By Thomas M. O’Toole, Ph.D.  What is the most appropriate pace of speech? A common belief among trial attorneys is that it is important to slow down in opening statement and closing argument, particularly when the issues in the case are complex and/or confusing. This belief makes sense since most of us have long been taught to slow down when someone is having difficulty understanding what we are saying. In fact, the term “fast-talker” has its own derogatory meaning, suggestive of a slick salesperson who is willing to say whatever is necessary to complete the sale. However, research in psychology

Persuading a New Generation of Millennial Jurors

September 27th, 2018|

By Thomas M. O’Toole, Ph.D. Over the past few months, I’ve celebrated my 40thbirthday, my 15thyear in the jury consulting industry, and the 5-year anniversary of Sound Jury Consulting. In short, I’m getting older, and as we grow older, the world around us changes. One of the more interesting changes in the world of juries is the increasing number of millennials serving as jurors. Recently, I looked at the venire information from 18 trials in which I picked a jury in King County, Washington (Seattle) over the past 3 years. The sample size was large — over a 1,000 potential

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