I never thought when I had Colin Cowherd’s The Herd on as a much needed distraction from all the political news, that there’d be a litigation strategy gem. Cowherd was interviewing Matthew McConaughey about his recent memoir, Greenlight, when they had an interesting exchange about the process McConaughey uses when working with writers/producers on a new project. Here’s a bit of the exchange:  Cowherd began, “Years ago I thought about writing a screenplay, so I read a book about it called Save the Cat by Blake Snyder and he says to name the film before you start writing it; because

I wanted to begin this column with the observation that the election is finally over, but your perspective on that probably depends on your political affiliation. Setting aside the outcome, it is notable that more people voted in the 2020 presidential election than in any other presidential election in United States history. While Biden received the most votes of any presidential candidate in history, Trump received the second most in history. What we learned most from this election and the continuing aftermath is that we are a deeply divided nation that can look at the same facts and arrive at

A few weeks ago, I wrote about the impact of emotional economy on juror decision-making. Research tells us that the emotional state of jurors has distinct impacts on the way they process and apply evidence and testimony at trial. We also know that in times of a national crisis, like the one we are currently experiencing with the COVID-19 pandemic, people’s emotional states are heightened and amplified. What this means is that you can gain a distinct advantage at trial by understanding how emotional states impact cognition, decision-making, perception of evidence, and your client. Effective plaintiffs can win massive damage

Millennial and Gen Z jurors. If you are a defense attorney, your blood pressure might already be rising at the mere mention of the emergence of these jurors. After all, millennial and Gen Z’ers are often cited as one of the primary causes of the rise of so-called nuclear verdicts. The narrative generally goes that they are anti-corporate, too idealistic, and, in some cases, too young to have any realistic concept of money. Some of them have weird tattoos. Some of them have unnatural colors in their hair. Many of them cannot enjoy a night out without staring at

As some of our readers may already know, King County Superior Courts in Seattle, Washington have resumed civil jury trials with a novel strategy for minimizing potential COVID exposure: jury selection over Zoom, followed by an in-person trial with a variety of social distancing and other protective measures in place. The King County judges and court staff deserve a great deal of credit for what they have accomplished. I was an early skeptic due to all of the potential complications, but the process they have put in place works incredibly well, with only a few minor bumps in the road.

During a recent mock trial, when a juror expressed an opinion that was directly refuted by the evidence in the case and a few other jurors tried to tell him that he was wrong, two other jurors shut them down by asserting, “No, come on, let him talk; he has a right to his opinion.” This is not an isolated incident. Over the years, we’ve heard mock jurors express this sentiment, but over the last couple of years, it is much more obvious and impactful. While we’ve frequently written about the fact that jurors make sense of a case by

The concept of anchors for damage awards at trial is nothing new. The research on the importance of anchors goes back decades. Numerous studies have shown that the amount of money awarded by juries is significantly impacted by the amount requested by the plaintiff. For example, in controlled studies where the facts remained exactly the same in both conditions except for the amount requested by the plaintiff, jurors on average awarded significantly more when the plaintiff asked for more. Consequently, many plaintiff’s attorneys have understandably been quick to embrace the strategy of asking for extraordinary amounts. After all, when a

In all of my days working predominantly for the defense in civil cases, my clients have openly longed for “intelligent” jurors who they believed would take the time to really understand the case and see that the plaintiff’s emotional appeals are hollow and that there is much more to the case than what the plaintiff’s attorney would lead them to believe. In short, the belief has always been that smart jurors will see through the nonsense. In Seattle, where I live, this has translated to the age-old tradition of plaintiffs’ attorneys automatically striking Boeing engineers who used to show up

“Six months into the pandemic, trial-by-video-jury – at least in the civil context – is beginning to morph from experiment to expectation. And while lawyers aren’t totally sold on the concept, a growing chorus of judges is making it clear that it may be the only way to keep their dockets moving” (Law.com). Clearly, with the Coronavirus continuing to ravage the country, the need to explore and utilize other options for civil trials is necessary. And, while there have been several “successful” Zoom trials, there have also been dozens of legitimate concerns and questions raised about everything from how to

One of the first memorable studies that I read about jury psychology in graduate school was the 1997 study by Neil Feigenson and colleagues on the relationship between injury severity and blameworthiness. This was early in my graduate studies when I was focused on the effects of injury severity, particularly on attributions of fault. My operating theory at the time, which was also a commonly held belief in the field, was that jurors were more likely to blame the defendant as the severity of the injury to the plaintiff increased, regardless of the strength of the liability evidence against that