Monthly Archives: September 2013

How Can Defense Advocates Prevail in Deliberations in the Jackson v. AEG Trial?

This is itBy Thomas M. O’Toole, Ph.D.

Jury deliberations began yesterday afternoon in the Michael Jackson wrongful death case after about five months of trial. According to media reports, jurors heard from 58 witnesses over the course of trial.  The number of trial exhibits does not appear to be reported anywhere, but one can presume the number is in the hundreds, if not thousands. And then of course, there are the jury instructions. There were over 60 pages of jury instructions read to jurors at the close of the trial. So the question is, after over five months of a constant bombardment of information, what narrative will jurors craft in the deliberation room and how will this shape the way they make sense of the evidence, testimony, and jury instructions? Additionally, in light of the damaging emails by AEG executives, what narrative can defense advocates push in deliberations to potentially drive a defense verdict?

Theme development and story provide what psychological experts might refer to as “a peripheral route” to persuasion. To momentarily venture off into the obscure world of academia, a 50 year-old theory of persuasion called “elaboration likelihood model” says people are persuaded in 1 of 2 ways: through the “central route” in which they engage the substance of the message and consider its merit; or through the “peripheral route” in which they use a peripheral cue to draw conclusions about the substantive message rather then evaluate the substantive message itself. In short, the central route is where someone buys Cheerios because they are nutritious and affordable whereas, with the peripheral route, someone buys Cheerios because Michael Jordan is on the box cover. Continue reading

Does That Sound Like Something You Might Be Interested In? The Dial Gimmick and Jury Research

DialsmithHandsBy Thomas M. O’Toole, Ph.D.

The weird house at the end of the street…everyone had one as a child. It was usually occupied by some odd person who kept to him or herself. It was always ripe for gossip amongst the neighborhood kids and even some of the adults. Didn’t someone die in that house? Was it murder? I heard the owner performs odd rituals in the basement every Tuesday night.

The unknown always produces some form of hysteria born out of intrigue, fear, hatred, or other emotions. It’s one of those defining characteristics of human psychology. It takes control out of our hands, which we generally do not like. Consequently, we are desperate to find certainty where it does not exist, with the strategies for doing so ranging from reasonable to ridiculous…anything that gives one a sense of control over things. Continue reading

The Federal Judge Who Dresses Up as Batman and Watches So You Think You Can Dance


by Thomas M. O’Toole, Ph.D.

Given the way many attorneys talk, I’ve always had this vision of our federal judges being bred in some special ivy league laboratory and raised on a special diet of Plato, Aristotle, Stephen Toulmin, Machiavelli, and others whose works are read only by those who accidentally get invited to dinner parties (i.e. “that guy”). I’ve always envision federal judges as the type who calmly walk away from a vending machine after their bag of chips get stuck in the E4 slot, experiencing no temptation to yell or show man’s physical superiority over machines. Then something amazing happened. A federal judge showed me a childhood picture of him in a Batman costume. Later in the conversation, he told me his wife and him watch So You Think You Can Dance (although, like me, his “watching” consists of sitting in the same room with his wife while it plays on the tele).

Then I read this blog ( by Federal Judge Richard Kopf out of Nebraska. My mind bent and melted in ways it hasn’t since my freshman college dorm-mate once said, “hey, try this.” For starters, Judge Kopf talks about situations where he might want to “bitch-slap” counsel in “slow motion,” references Urban Dictionary, and discusses his temptation to refer to some trial attorneys as “retarded.”  Reading further into the comments section of the post, Judge Kopf notes, “federal judges make mistakes all the time.”  Continue reading

What the Zimmerman Trial Teaches us about Decision-Making in America


by Thomas M. O’Toole, Ph.D.

Zimmermania is a national debate I’ve worked hard to stay clear of. Our fine mass media pundits have wrapped it so tightly in divisive opinions, leaving no speculative stone unturned in the process, that there is little to add. However, one important takeaway about the general state of American decision-making seems to have gone largely unnoticed. Millions of Americans have readily formed strong opinions about this case, rendering their own personal verdicts, despite having little in the way of actual facts about it.

Some folks may have followed the media coverage of the trial more closely than others, but media coverage is hardly reliable (Really KTVU? You really thought the Asiana Airlines pilot name was Sum Ting Wong?). The fact is, none of the millions of folks who have flooded news media comments sections and message boards or huddled around the office water cooler were at the trial. They did not hear the actual charges that were brought, the jury instructions related to those charges, and the evidence and testimony presented by each side on those charges. But if there’s one thing we Americans can be proud of, it’s that we refuse to let ignorance get in our way. Sure, we could educate ourselves and dig through the complexities of the law and evidence in the Zimmerman trial, but it’s so much easier to read those sexy CNN headlines or watch a three-minute segment on the case. For me, it’s like watching the NBA. Watching a game is not nearly as enjoyable as listening to Charles Barkley rant a bunch of provocative, albeit incoherent at times, commentary over the game.  Continue reading

Three Key Strategies for the Aaron Hernandez Defense Team


By Thomas M. O’Toole, Ph.D.

Check the trending news stories at any moment these days and it becomes clear that Aaron Hernandez’s legal troubles have the makings for the next big courtroom drama. This country loves its courtroom dramas (see OJ, Casey Anthony, Lindsay Lohan, MJ, Zimmermania, etc.). The best candidates have intrigue and controversy. Aaron Hernandez presents both of those. The media coverage has been extensive and has left no potential detail unreported. Unfortunately for Hernandez, this creates significant hurdles to receiving a fair trial.

A wealth of research over the last few decades has shown that pre-trial publicity can create significant bias in a jury pool.  I have seen (and worked on) cases where the media reported confessions that never occurred, key evidence that did not exist, and analysis designed to create strong impressions about the case. Maybe it’s irresponsible journalism. Maybe it’s just recognition that the media faces an impossible task of covering complex, detailed issues in the courtroom that simply cannot be encapsulated in a column or a three-minute nightly news segment. Regardless of the reason, the result is often a trial venue where significant portions of the jury have already pre-judged the case, making it extraordinarily difficult for someone like Hernandez to receive a fair trial.  Continue reading

Up in the Air: Jurors’ Perspectives of the Government’s Lawsuit Blocking the Merger Between American Airlines and US Airways


By Thomas M. O’Toole, Ph.D.

The United States Justice Department and six states recently filed an antitrust lawsuit in federal court seeking to block a merger between American Airlines and US Airways. The Justice Department argues the merger would reduce competition and drive up costs for consumers, noting the deal would result in 80% of the air travel in America being controlled by only four carriers.

While several analysts suggest a trial is unlikely, this case raises some interesting questions about how to effectively defend against antitrust claims in front of a jury. Let’s look at the story structure put forth by the government and explore the ways in which the airlines can make inroads and motivate jurors to advocate for them in deliberations.  Continue reading