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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

The Value of Repetitive Question Structures in Direct and Cross Examination

March 22nd, 2018|

By Thomas M. O’Toole, Ph.D. I have previously written about how important repetition is to persuasion. I discussed how repetition increases retention, familiarity, and believability. In this post, I want to talk about one practical way of building repetition into your case presentation at trial. Direct and cross examination make up the vast majority of what happens over the course of trial. Yet we have found that this is the part of trial that jurors struggle with the most. Opening statements and closing arguments (should) have a clear beginning, middle, and end with clear transitions, points, and subpoints, all of

“Jury Nullification??? is a Greater Threat than You Think

March 8th, 2018|

By Jill D. Schmid, Ph.D. Sound Jury Consulting recently conducted a nationwide online survey in which we asked the following: If you were sitting as juror in a trial where your personal beliefs about the case were in conflict with the laws the judge told you to follow, how difficult do you believe it would be to set your personal beliefs aside and not let them influence your decision? 62% said it would be very or somewhat difficult. While the results highlight the importance of a sound jury de-selection strategy, they also speak to what many might call jury nullification.

Does your witness script match your witness’s communication style?

February 22nd, 2018|

By Jill D. Schmid, Ph.D. I’m sure you’ve written dozens perhaps hundreds. For each, you’ve painstakingly chosen every word, and gone over it with a fine-tooth comb. It’s a work of art. Therefore, come time to perform this masterpiece you’re shocked when it doesn’t go off as planned. What happened? Your witness happened. Witness scripts or outlines are a staple of any litigator’s trial playbook, as they should be for a variety of reasons. However, there are several critical mistakes or shortcuts that are often made that invite disaster on the witness stand, the biggest of which is that the

Dissecting the “Broken Rule??? Strategy Used by Plaintiffs

February 12th, 2018|

By Thomas M. O’Toole, Ph.D. One of the most popular strategies used and advocated by many plaintiff’s attorneys across the country is the “broken rule” strategy. The theory is that the most important strategy for any plaintiff is to establish a clear rule up front, and then prove that the defendant broke that rule. Some of the popularity of this theory comes from Reptile, written by David Ball and Don Keenan. As I’ve written before, there are a variety of significant problems and shortcomings associated with the Reptile strategy, one of which is that the “science” that serves as the

Deposition Performance Case Study: Marcus Lemonis

February 7th, 2018|

By Thomas M. O’Toole, Ph.D. I am a fan of the television show, The Profit . It’s entertaining and a wonderful resource for small businesses. Naturally, I was curious when I stumbled across deposition video of the show host, Marcus Lemonis, on YouTube. For background, this deposition appears to be related to a case in which a woman alleges that Lemonis and company conspired to unfairly push her out of participating in and sponsoring an equestrian competition in Florida. Lemonis presents as a likable, caring, and extremely intelligent communicator on his television show. Consequently, my initial assumption was that his

A Practical Guide for Developing Jury Selection Strategies

January 30th, 2018|

By Thomas M. O’Toole, Ph.D. I’m proud to announce that Jury Selection Handbook: The Nuts and Bolts of Effective Jury Selection, a book that I co-wrote with Ronald Clark from Seattle University Law School, was published this month by Carolina Academic Press and will be available soon on Amazon and at a variety of other online retailers. Seattle University Law School alum will tell you that Ron Clark is an outstanding professor who is a master at dissecting complex subjects for his students. This book is an extension of his approach. Ron and I dissect the jury selection process, break

Why Jurors Often Fail to Understand What’s Important…Even When It’s Obvious

January 10th, 2018|

By Thomas M. O’Toole, Ph.D. Before you read any further, watch the above 1 minute and 41 second video, which will provide incredible insights into your trial presentation strategy as discussed below. Did you pass or fail? As they tell you in the video, almost half of all of the people who watch this video (and have not seen it before) fail the test by not seeing the gorilla. Even more interesting, we learn that even those who have seen this kind of experiment before (and expect something odd to happen) failed to notice the second change, which was the

Repeating the Importance of Repeating

December 11th, 2017|

By Thomas M. O’Toole, Ph.D. The value of repetition as a simple and practical strategy for persuasion at trial cannot be overstated. However, despite the fact that I repeatedly emphasize this point on repetition to clients at trial, the level of repetition is often insufficient. I have found that it is not uncommon for an attorney to believe that he or she is using repetitive language to make a point, but when reviewing transcripts, the use of this language is fairly limited. Saying something a couple of times over trial simply does not cut it. If a particular message is

Do You Know What Question Your Jurors are Really Answering in Deliberations?

December 4th, 2017|

By Thomas M. O’Toole, Ph.D. In his 2011 book Thinking Fast and Slow, famed psychologist and Nobel Prize winner Daniel Kahneman wrote this in his effort to explain the essence of intuitive heuristics: “When faced with a difficult question, we often answer an easier one instead, usually without noticing the substitution.” While the fundamental concept in this quote is not particularly ground-breaking (at least in today’s world of psychological research), Kahneman’s phrasing eloquently hammers home a critical point for attorneys and how they think about their cases. To be clear, Kahneman’s book is not about juries or jury decision-making. It