Most litigators cringe at the idea of recognizing strengths in the other side’s case (or weaknesses in their own). It doesn’t seem right. Instead, it seems like a recipe for disaster, an acknowledgement that the other side might have a strong case. However, research suggests that recognizing the strengths of the other side’s arguments (or the weaknesses in your own) actually increases your persuasiveness. I went looking for this research after a recent experience in Seattle, Washington. The plaintiff attorney in this case chose to remain silent on a couple key weaknesses in his case. He didn’t even acknowledge them

One piece of advice for building a successful cause challenge – take it a step (or two) further than you think is necessary. One venue where this lesson is especially important is in Arizona courts, where beginning January 1, 2022, there are no longer peremptory challenges – only cause challenges. The courts of course made this change to eliminate attorney bias and to create a jury pool that more closely reflects the community. Thus, the only way to remove a juror is to establish they cannot assess the case even-handedly and to excuse them for cause. I recently selected a

It’s that time of year again when we all make resolutions, stick to them for about two weeks, then go back to our typical pattern and practice. Let’s make this year different! In the spirit of correcting past problems and forging new habits, here’s a list of litigation resolutions – from case intake to closing argument – to put your trial strategy either back on track or to keep it on track. Initial Case Strategy “I resolve to start thinking about my jury story BEFORE discovery even starts.”  Too often we see trial teams begin thinking about their jury story

Four plays and out. The year of hype; the coverage; the expectations – and with one play it’s over. Doesn’t matter if you’re a football fan, a Jets fan, or an Aaron Rodgers fan. That’s not the way it should have ended. But was it a possibility? Come on – you’d have to be crazy to not think that Rodgers could get injured, and you’d need a backup plan. Watching Eli and Peyton Manning on their Monday Night Football show, it was pretty obvious that they thought it was laughable that Zach Wilson was the backup plan – obvious because

Imagine you are asked to build something – you don’t know if it’s a car, a house, a playground, or any of the other endless things it might be. To build it, you are given one tool at a time, but you are only given the barest of instructions on how to use that tool, you’re not told which part it actually builds, and the instructions are not given in the logical order that would make most sense. As the days go by, you begin to get a general idea of what you’re building, but because there are two

Over the last year, the most popular question we have fielded from frustrated defense attorneys and general counsel is why damage awards have been rising since the pandemic. Verdicts in the hundreds of millions and billions are no longer the outliers they used to be, as legal news outlets such as Law 360 seem to report almost daily verdicts in these ranges. For many, the pandemic epitomizes a key turning point where our culture went from somewhat predictable to totally unpredictable. Yet, the research shows us that the reality remains the same, namely that jurors are predictably irrational, with new

An attorney once described emails as “the cockroaches of litigation” – they are pervasive, lurking in the dark to show their faces when you least expect it. And they refuse to die. They come out at the most inopportune times and leave a terrible impression on your jury. So, what do you do if you find yourself facing a few bad emails (and hopefully not much more)? There are a number of steps you can take to mitigate the impact of bad emails, and here are three. First, if one of your witnesses is associated with a troubling email, first

On a recent Armchair Expert podcast, host Dax Shepard paraphrased a quote by Herbert Simon, the gist being “…a wealth of information creates a poverty of attention…”  Wanting to get the quote just right, I looked it up and while the simple paraphrase is fantastic, there are too many gems in the full quote to not repeat it here: “In an information-rich world, the wealth of information means a dearth of something else: a scarcity of whatever it is that information consumes. What information consumes is rather obvious: it consumes the attention of its recipients. Hence a wealth of information

A funny Instagram post caught my eye the other day – a STOP sign with another sign immediately under it that said, “No stopping any time.” While surly there’s an explanation or with some thought, one could figure it out, it is still a bit of a head scratcher. It also made me think about all the times that jurors receive either contradictory or confusing messages during trial. With years of experience and knowledge about extremely nuanced details of the law, attorneys either do not notice or are not troubled by contradiction and confusion since those don’t really exist in

A favorite client sent me this link with this message, “Wouldn’t this be a fun case to work on!” Jury Selection in the Trump Organization Case a Trial of Its Own – The New York Times (nytimes.com)  As I read it I had many thoughts, but mostly just how impossible it would be to truly get a “fair and impartial jury” for any case involving Donald Trump. Love him or hate him, everyone has an opinion. And, to muck up the water even more, I’d be very suspicious of anyone who states that they don’t have an opinion at all.