Jury Selection in Labor and Employment Cases

March 3rd, 2023|

Jury selection in employment cases provide unique opportunities and challenges for litigators.  Employment cases differ from most other cases that come before a jury in that the majority of jurors come in with personal experience with employment.  They have been employees, employers or both.  In contrast to patent cases or securities litigation where we often hear juror concerns about being unqualified to render decisions, jurors in employment cases may actually overestimate their own qualifications for judging employment matters.  They can run the risk of letting their self-professed experience-based expertise outweigh the case facts and even the law in their

The White-Collar Defense Juror and the “Trump Effect”: An Empirical Analysis

December 8th, 2022|

For the last six years, litigators have pondered the question: Have jurors changed in the wake of the Trump era? Our nation underwent cataclysmic shifts in values and ideologies after Trump’s election in 2016 and became polarized on key social and political issues in unprecedented ways. As issues of racial, gender, and economic inequality rose to the forefront of our national consciousness, many wondered how these would affect the judgments that diverse groups of jurors make about white-collar defendants who are typically (though not always) White, male and wealthy. Do the assumptions about favorable defense jurors often held by white-collar defense lawyers continue

Reassessing Jurors’ Attitudes in Light of the Growing Uncertainty of Venue in Patent Litigation

September 7th, 2022|

Upended again, predominant venues for patent litigation have become increasingly difficult to predict. First, the 2017 TC Heartland decision effectively put an end to the dominance of Marshall’s Rocket Docket. Patent cases filed in the Eastern District of Texas dropped from 1,665 in 2016 to 505 in 2018. Then, following Judge Albright’s appointment in 2018, the Waco Division of the Western District of Texas became the new hub of patent litigation. In 2021, the number of patent cases in his courtroom totaled over 900, which comprised nearly 20% of all patent litigation filed in that year.[1] However, in July, an

Embracing the Gains of Virtual Trials – Part 2

June 9th, 2022|

In the first part of this series, I attempted to assuage our fears of what is lost by conducting jury selection virtually by identifying what we have gained from this new medium. In the second and final part of this series, I address the concern with jurors’ ability to evaluate the credibility of witnesses who testify remotely or are wearing masks (i.e., in a socially distanced courtroom), as well as to empathize with them and ensure due process (i.e., honor the presumption of innocence). Drawing again upon theory and anecdote, I demonstrate that our fears are much less palpable than originally

Embracing the Gains of Virtual Trials – Part 1

May 13th, 2022|

As pandemic restrictions start to ease up across the country, it is a good time to evaluate the way courts handled trials during the pandemic and what we can learn from that going forward.  While many trials were postponed, a small number of venues (particularly at the state and local levels) took the bold step of conducting virtual trials on civil matters during the pandemic. This experiment with virtual trials may feel like a temporary solution to what was a temporary problem. But should it be? One of the greatest concerns that attorneys, judges, and legal scholars have expressed in

Evaluating the Jury Questionnaire for the George Floyd Case

December 24th, 2020|

In a recent interview with WCCO News, I was asked to provide insight into the jury questionnaire recently distributed to potential jurors for the George Floyd case. In a high profile, media-saturated case involving racial issues, the jury questionnaire may be more helpful for the defense rather than the prosecution. First, it encourages people who favor the side of prosecution to speak too freely about their preconceived opinions on the case, which can serve to document why the person should be struck in a cause challenge. For instance, in this questionnaire, there are many questions about how one feels about

#MeToo, Political Affiliation, and Personal Experience Affect Jurors’ Attitudes About Discrimination and Harassment

June 25th, 2020|

July 25, 2020 – New York, NY – DOAR, the nation’s leading trial consulting company, today released important findings from a new study that measured the perceived prevalence of discrimination and harassment in the workplace and the effects on jurors’ attitudes toward employment cases alleging the specific wrongdoings. The results indicate overwhelmingly that many factors come to bear—including political beliefs, personal experience, and the #MeToo movement—on how jurors will evaluate the context in which employment lawyers advance case themes on their clients’ behalf. The study, “Implications for Litigating Employment Cases in a #MeToo World,” was conducted by the DOAR Research

“The Answer is Clear.” – A Victory for the LGBTQ Community Sets the Stage for Future Filings

June 17th, 2020|

In one of its most important and far-reaching employment decisions, Bostock v. Clayton County, Georgia, the Supreme Court of the United States held that Title VII’s “because of sex” language forbids discrimination in employment against transgender and gay individuals. Not since Obergefell v. Hodges has the LGBTQ community celebrated a decision of this magnitude. Not to mention, this decision is the first significant victory for transgender rights in history. In the opinion, Justice Gorsuch, a Trump appointee, unequivocally explains: The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or

An Insider’s Guide to the Operations and Methods of NPEs

May 15th, 2020|

NPEs are well-positioned to take advantage of the economic fallout on the patent market due to the impact of COVID-19. In Book One of our new e-book series, we look at the NPE acquisition outlook for 2020 in light of the ongoing financial crisis. Download the free e-book, “The Impact of Economic Distress on Patent Availability to NPEs.” The post An Insider’s Guide to the Operations and Methods of NPEs appeared first on DOAR.

5 Ways Attorneys Can Help Expert Witnesses Thrive During Trial

April 17th, 2020|

Expert testimony at trial presents unique challenges to both the expert and the examining attorney. The expert is tasked with teaching complex material to a group of “students” with widely varying levels of education, comprehension, pertinent experience and yes, interest. The students give no feedback, the consequences of a teaching mistake can be significant, and there are people waiting for the opportunity to attack at the first sign of weakness. The attorney’s job is to help the expert overcome and thrive in these challenges. It is no small task and the key is in proper preparation. Several strategies will help.