Persuading a New Generation of Millennial Jurors

By Thomas M. O’Toole, Ph.D.

Over the past few months, I’ve celebrated my 40thbirthday, my 15thyear in the jury consulting industry, and the 5-year anniversary of Sound Jury Consulting. In short, I’m getting older, and as we grow older, the world around us changes. One of the more interesting changes in the world of juries is the increasing number of millennials serving as jurors. Recently, I looked at the venire information from 18 trials in which I picked a jury in King County, Washington (Seattle) over the past 3 years. The sample size was large — over a 1,000 potential jurors. Nearly all of these cases were set to last two or more weeks. Of the 1,000+ individuals who showed up for jury duty, 31% were millennials (i.e. 1 in every 3 people showing up for jury duty in King County is a millennial). Continue reading

The Jurors Hated It, But It Worked

By Thomas M. O’Toole, Ph.D.

An important lesson I have learned from observing jurors’ decision-making in mock trials is that jurors sometimes dislike strategies that nevertheless are quite effective. They may not like what they see, yet they are still persuaded by it. These moments can be tough to digest. Besides the gut-check, it is difficult to ignore the fact that several mock jurors are criticizing something you did. However, research has shown over and over again that persuasion does not always happen at a conscious level. In other words, what jurors verbally express about something does not necessarily reflect its actual effectiveness. Continue reading

How Johnny Depp Can Sell Jurors on Fiduciary Duty in His Lawsuit Against TMG

By Thomas M. O’Toole, Ph.D.

Last year, famed actor Johnny Depp filed a lawsuit against his management company for professional negligence, breach of fiduciary duty, fraud, and unjust enrichment among other things, essentially claiming that his management company, TMG, stole a significant amount of money from him. According to news reports, the case is expected to go to trial this coming August.

Sadly, the story of a management team ripping off its successful celebrity client has become all too common. We have consulted on a variety of these cases throughout the years, involving television and movie actors, famous musicians, and celebrity athletes. Our research has shown that these cases can be difficult for the celebrity victims, but there are significant opportunities to overcome many of the common hurdles. Continue reading

The Value of Serving a “Truth Sandwich” to Your Jurors

By Jill D. Schmid, Ph.D.

Lately I’ve been following the debate about how the media should cover Trump’s statements – whether via Tweet, rally, official statement, or press “conference.” Much of the debate comes down to how to cover what he says without reinforcing the “incorrectness” of the statements. I wrote about Trump’s ability to control the narrative when he was campaigning in the GOP primary. What was true then, and now, is that the mainstream media hasn’t learned how to regain control of the narrative. Too much of the message is a nuanced attack on the “truthfulness” of the statement, with no equally compelling articulation of the what’s really happening. Trump has learned there is power in repetition, not just his, but the media’s. Repetition is powerful (as my colleague Tom wrote about in this blog), but it becomes even more powerful if you can get others to repeat your message.

George Lakoff, a professor and author – and Trump critic, wrote recently that, “Trump knows the press has a strong instinct to repeat his most outrageous claims, and this allows him to put the press to work as a marketing agency for his ideas. His lies reach millions of people through constant repetition in the press and social media.” He goes on, “Language works by activating brain structures called ‘frame-circuits’ used to understand language. They get stronger when we hear the activating language. Enough repetition can make them permanent, changing how we view the world.”  And, here’s the heart of the message: “Even negating a frame-circuit activates and strengthens it…Continue reading

Flags, Focus, and the Importance of Shifting Jurors’ Attention to Favorable Messaging

By Jill D. Schmid, Ph.D.

When Colin Kaepernick first took a knee in 2016 during the National Anthem to protest police brutality against African-Americans, the controversy was almost immediate.  The why he was doing it didn’t matter much then, and it doesn’t seem to matter much now. Instead, the protest became about the flag, the military, or even Donald Trump. One survey in October of 2017 showed that while 57% of the respondents checked that “protesting against police violence” was “one” reason for the protests, respondents also checked other reasons: Donald Trump (26%), not sure (18%), something else (20%) and the flag (14%).

This morning, as I was watching yet another story about the “Flag protest,” I wondered if support and/or understanding of the protest would be different if the label was different. While changing the label might help (labeling it what the protest is really about, e.g., “Police Brutality Protest”), what seems to have happened with this protest is that the focus became the flag and anthem as opposed to police brutality and other injustices and inequalities in the African-American community. In other words, the manner over-shadowed the message – the focus was on the protest itself and not the reason for the protest. Continue reading

Litigating Sexual Harassment Claims in the Era of “Me Too”

By Thomas M. O’Toole, Ph.D.

The “me too” movement has become one of the most defining issues in American culture over the last year. We have seen a variety of celebrities and public figures lose their jobs, and the media coverage has been extensive. The movement itself seeks to raise awareness, increase dialogue, and change the way many people think about issues related to sexual harassment and abuse.

In the world of litigation, a common area where sexual harassment claims arise is in employment litigation, but I have seen little to no research into how the “me too” movement has influenced the way jurors think about and react to sexual harassment claims in employment lawsuits. Consequently, we decided to conduct a national survey to examine this issue. Some of the data came as no surprise, while other data points highlighted some concerns about the movement’s implications for the workplace. Respondents were evenly balanced along political lines, almost evenly divided between “conservatives” and “liberals,” with a large number of “moderates” as well. Continue reading

Filling the Experience Gap with Creative Associate Training Programs

By Jill D. Schmid, Ph.D.

In an article called “The Case of the Vanishing Trial Lawyer,” published in the Boston Globe,a veteran litigator, Edward McCarthy, makes a compelling case for the need for associates to gain more trial experience, while acknowledging that their ability to do so is slim since the number of cases going to trial has dwindled so significantly. “Today,” he writes, “Most trial lawyers can’t learn by doing,” and he goes on to discuss how most cases settle or are handled in arbitration. He writes that “The result is that part of the legal profession’s apprentice system is disappearing.”  McCarthy references that the judges of the Massachusetts Superior Court recognized the problem and asked law firms to “let less experience lawyers do something – argue a motion, examine a witness – at trial. ‘Without the chance to speak in a courtroom…future generations of litigators will be less equipped to represent their clients effectively.’” Continue reading

Does the Size of a Corporate Defendant Matter?


By Thomas M. O’Toole, Ph.D.

It probably comes as no surprise that corporate defendants face a disadvantage at trial compared to individual defendants. A long line of research has established this general corporate bias; however, there has been little attention given to how jurors view large versus small corporations, so we collected data on the subject in a 2017 nationwide survey of jury-eligible respondents.

The data generally revealed that larger corporations face greater bias than smaller corporations on both liability and damages. As support, let’s look at some interesting data points from our survey on how respondents’ beliefs might impact their views of liability in cases involving large corporations: Continue reading

Battling Confirmation Bias and First Impressions in Litigation

By Thomas M. O’Toole, Ph.D.

Confirmation bias refers to when people accept or reject evidence based upon what they want to believe as opposed to basing it on the actual merits of the evidence. In some ways, it is a psychological survival mechanism tied to our beliefs about how the world works. Challenges to these beliefs can cause a great deal of chaos and stress, so our brains are, essentially, pre-programmed to seek out evidence that reinforces those beliefs, while minimizing, explaining away, or outright rejecting evidence that challenges them. In fact, this explains the siloed media we have today where people tend to pick which news channels to watch based upon their political affiliation.

For lawyers, confirmation bias can be a significant problem at trial, especially when the first impressions favor the other party. As Nobel prize-winning psychologist Daniel Kahneman notes, “The sequence in which we observe characteristics of a person is often determined by chance. Sequence matters, however, because the halo effect increases the weight of first impressions, sometimes to the point that subsequent information is mostly wasted.” In other words, first impressions at trial often shape how jurors perceive the subsequent evidence and testimony at trial. A poor first impression of the defendant will likely lead jurors to place greater focus and emphasis on evidence and testimony that reinforces the negative view of the defendant and vice versa. Continue reading

Using Jury Instructions More Effectively in Closing Argument


By Thomas M. O’Toole, Ph.D.

One of the studies that I like to cite more than just about any is the old 3M study that showed that people remember only about 10% of what they are told three days after it is told to them. Apply this to a trial setting and the implication is that jurors will forget up to 90% of what they heard over the course of a trial by the time they reach the deliberation room. To put it a different way, by the time jurors reach the deliberation room, they are overwhelmed, do not remember the majority of what they just heard, and face the difficult task of having to sort through hundreds to thousands of exhibits, their largely disorganized notes, and a stack of jury instructions that can be difficult to decipher. Continue reading