3 Common Defense Themes That Routinely Fail

April 26th, 2022|

“So, you’re telling me there’s a chance,” Lloyd happily declares in Dumb and Dumber as his dream girl clarifies that his chances of a relationship with her are “more like one in a million” than one in a hundred. It is this same absurd and unreasonably optimistic view that I imagine must drive defense attorneys who rely on the same old, failed defense themes over and over again. The best defense themes are the ones that grab jurors’ attention immediately and draw them in. They show jurors there is an entirely different world to the case than what they

What’s the Water Cooler Talk for Your Case?

March 29th, 2022|

This week, Will Smith delivered what the Oscars have desperately needed in recent years: something for people to talk about the next day. It’s hard to imagine a hotter topic around the water coolers this week. Plenty of jokes will be flying as evidenced by Conan O’Brien’s Tweet asking if anyone has a late night show he can borrow just for Monday. I’ve already heard the one about Smith immediately inking a deal to star in the “Pursuit of Slappyness.”  I know a lot of litigators who don’t care about the Oscars and probably find it silly (perhaps even annoying)

What to Do When Jurors Forget Your Arguments?

March 22nd, 2022|

A half-eaten bagel hurls across the room at the large screen of mock jurors deliberating in the next room. “I spent at least five minutes talking about that in my presentation!” insists the incensed attorney. Why don’t they understand the proximate cause defense? Were they listening to the attorney who is now half a bagel short of a fulfilling breakfast? Were they paying attention? Or are they just stupid? There are plenty of clichés that apply: A nickel for every time would make me rich; a drinking game would make me drunk. Sayings aside, this happens…a lot. An attorney gives

“Post Truth” as a Vivid Reminder of the Role of Narrative Thinking

January 20th, 2022|

I have purposely avoided writing about narrative and its importance for years since the industry of jury consulting is oversaturated with folks who advise, “You gotta tell a story.” While true, this advice never seemed helpful to me as it seemed akin to self-help books that tell you just to work harder, be happier, or visualize your goals. Too many times, I have seen attorneys embrace the advice to tell a story, only to struggle with what that actually means as they prepare for trial. Afterall, it is not like attorneys get to sit around a campfire with jurors and

Teaching Witnesses to Take Control of Their Answers

November 17th, 2021|

Outside of my traditional jury consulting work, I periodically work as an expert for change of venue motions, conducting original research and offering opinions based on the findings. As part of this work, I am sometimes deposed or asked to testify at court hearings. These experiences are incredibly helpful for when I work with witnesses to prepare them for their deposition. Of all the standard tips that consultants offer witnesses, most are easier said than done. It is one thing to sit across the table from a witness and tell him or her how to handle different scenarios, but it

A Practical Example of Teaching Science Through Narrative at Trial

October 14th, 2021|

One of my favorite non-fiction books of all time is Bill Bryson’s A Short History of Nearly Everything. The book tackles every major branch of science in its effort to explain our existence on Earth, and it is absolutely riveting. In fact, if you want to add thirty minutes of childlike awe to your day, spend a couple weeks reading this book. Early on in the introduction, Bryson explains why he wanted to tackle science with this book: “There seemed to be a mystifying universal conspiracy among textbook authors to make certain the material they dealt with never strayed too

Discovering the Two Personalities of Your Witness

September 30th, 2021|

There are generally two types of valuable information: 1) new information; and 2) old information conveyed in a new way to help you see it in a different light. This blog is intended to be the latter. I have talked ad nauseam about the importance of the performance of a key witness on the stand. There is little debate to be had on this issue, which is why I don’t put forth as much effort to make this point as I used to, but this creates a trained incapacity. It is so obvious to me that I take it for

Jury Lessons from the Great American Road Trip

September 8th, 2021|

Last week, I finished a three-week road trip with my family in which we drove over 3,000 miles, camped every night, and saw some of America’s most amazing offerings such as Rushmore, the Badlands, Devil’s Tower, and Yellowstone. Sadly, I had never before taken so much time off in my professional life, but doing so allowed me to step back and see the big picture of the work that we do. With all that time on the road, I started to see some important parallels between my trip and what we need to do in the courtroom. Here are five

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