Avoiding the Chaos Hammer in Your Litigation Case Story

August 10th, 2021|

In the final episode of the first season of Ted Lasso, the Apple TV comedy starring Jason Sudeikis as an American football coach turned English Premier soccer coach, Ted tells the team that in order to beat Man City, they have to try something new, and that meant pulling out every trick play the players had ever come up with, in order to create “chaos and confusion.” Ted summarized that they were going to hit Man City with the “Chaos Hammer!” Besides providing an opportunity to reference my favorite show of all time, the “chaos hammer” made me think about

Juror Engagement Versus Juror Listening

July 27th, 2021|

Kathy was dead set on sticking it to our client, the defendant. She knew in her bones that things had happened just the way the plaintiff had described, and it made her angry. It was only a few years earlier that Kathy had experienced a similar situation in her workplace where she was passed over for a promotion. It marked the beginning of a year-long unraveling of her life and Kathy blamed it all on her employer. As she listened to the plaintiff’s story, Kathy could see it perfectly in her head, as if she was personally experiencing it all

Don’t Let Your Case Strategy Languish Amidst a Changing Jury Pool

July 13th, 2021|

Back in May, the New York Times published an outstanding piece about the “blah” feeling that many are experiencing as we transition from the pandemic and lockdowns back into whatever is “normal” moving forward. As the author wrote, “Languishing is a sense of stagnation and emptiness. It feels as if you’re muddling through your days, looking at your life through a foggy windshield. And it might be the dominant emotion of 2021.” Recently, I’ve spoken to many attorneys who have experienced this feeling of languishing in their cases. Some have commented that they are working hard but feel like they

The Importance of Narrowing Your Arguments at Trial

July 1st, 2021|

One of the most important components of jury strategy development is also the one that is talked about the least and that is momentum in deliberations. When you dig in and really start to understand and appreciate the critically important role of momentum in deliberations, it can have tremendous implications for your strategy at trial. I have written many times before that too many trial attorneys fail to appreciate that the great debate at trial is not the one that takes place in the courtroom between the opposing attorneys, but the one that takes place in the deliberation room between

“L” is for…Lions! The Peril of Blind Spots in Litigation

June 15th, 2021|

As a die-hard Seahawk fan, I have little trouble finding ways to ridicule other teams, but boy did the Detroit Lions make it easy for me the other day. Spot it? When you’re already one of the worst teams in the NFL, advertising it with a giant “L” for your logo doesn’t make a lot of sense.  It begs the question, who thought this was a good idea and why didn’t anyone stop them? There were probably a couple of factors at play, and those same factors could be contributing to poor decisions and outcomes like this one in your

Making the Damn Feather Weigh More: Reframing Common Burden of Proof Arguments By Plaintiffs

June 1st, 2021|

“If you end up saying to yourself, I just don’t know, but it might be, then we’ve met our burden.” While I’ve listened to both plaintiff and defense attorneys frame their take on the burden of proof for years, this one made me go “hmmmm.” While the feather on the scale and the claim that you only need to be one tiny decimal point above 50% to vote for the plaintiff are tried and true plaintiff framing devices, this one struck me differently. I realized it was the additional phrase, “I just don’t know.” If you stop at that point,

Persuading with Science in a Post-Fact World

May 20th, 2021|

We are living through a particularly difficult time for science. My colleague, Jill, has written in the past about the challenges of persuading juries in a post-trust/post-fact ecosystem. The politicization of fact is creating a notable backlash against expertise. Nowhere is this challenge more pronounced for trial teams than in cases that rely on scientific and technical data. This post-trust/post-fact ecosystem presents a serious threat to our ability to come to accurate conclusions that require someunderstanding of scientific or technical information. A 2017 National Academies Press study cuts to the core of the issue, noting that only 16% of Americans

Reptile or Rules of the Road: Why do Some Cases Go Nuclear?

May 4th, 2021|

Why do some cases go nuclear while other cases with similar fact patterns or injuries do not? Every jury is different of course, but that does not tell us much about the variations in jurors’ psychological reactions to cases. There have been numerous attempts to outline the magic formula for nuclear verdicts from the plaintiff’s perspective. Two of the more prominent theories out there that are routinely embraced by plaintiff attorneys are Reptile and Rules of the Road. Reptileproposes a fear-based approach to the case presentation while Rules of the Road suggests a more principle-based approach. So, which one is

Calming the Excited Mind of Your Client in Deposition

April 28th, 2021|

Surprisingly, the task that is often the most difficult to accomplish with witnesses is getting them to a place where they actually hear the question for what it is and answer only that question. Instead, so many witnesses deliver monologues after questions, going well beyond the scope of the question. These monologues can include an appearance of answering the question, but then go far beyond that by explaining why that answer is correct, playing defense on whatever they think (rightly or wrongly) the examining attorney is trying to accomplish, helping the attorney figure out what they really should be asking,

Implications of Facebook’s Famous Emotional Manipulation Experiment

March 10th, 2021|

In January 2012, Facebook conducted a controversial one-week experiment with approximately 700,000 users in order to determine how the Facebook news feed influenced the emotional state of the users who were unknowingly used as Facebook’s lab rats. An article in The Atlantic described the manipulation this way: “Some people were shown content with a preponderance of happy and positive words; some were shown content analyzed as sadder than average.” The study found that the manipulated news feed content influenced the users’ subsequent posts. More specifically, the study found that an increase in negative news items led to negative posts