Monthly Archives: November 2013

The Illogical Truth About Jury Decision-Making: Jurors Don’t Follow the Law Even When They Follow the Law

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By Thomas M. O’Toole, Ph.D.

In many respects, success in litigation rests on the understanding and appreciation that the philosophy of the justice system and the rules of the game create and maintain a fiction that significantly departs from the reality of how decisions and verdicts are rendered.

The mistaken assumption is the Aristotelian ideal that logic and reason can and will save us. In this vein, the justice system, through trial courts, deploys a simple logical structure that presumes “evidence and testimony + the law  = verdict.” We go to great lengths to carefully manage this fiction, whether it be public oaths by jurors to follow the law, admonishments to jurors to pretend they didn’t hear something, or pretrial rulings that pretend it’s possible to splice out strong emotional components of a case. Continue reading

Don’t Fear the Reptilian Reaper: The Part 2 that Should Have Been Part 1

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By Thomas M. O’Toole, Ph.D.

In my last blog post, I discussed the merits of lobbying the court to preclude a plaintiff from engaging in “reptilian” tactics before the jurors. Following some lively discussion about the post among some thoughtful defense attorneys, it occurred to me that I might have put the cart before the horse. For example, one commenter reasonably suggested there is value in attempting to preclude “reptilian” tactics because it “throws the plaintiff off of their game.” The irony of course is that the defense’s fixation on the “reptilian” theory and the need to throw plaintiff “off of their game” suggests that it is the defense that has been thrown off of its game. This brought about the realization that more discussion is needed about what the “reptilian” approach really is and how it can be effectively dismantled.

Reptile has become a popular topic amongst some members of the defense bar. It is important to be aware of the so-called “Reptilian” approach, but the concern should not extend far beyond that awareness. The reality is that the strategies defendants should be deploying at trial, regardless of whether or not plaintiff is engaging in “Reptilian” tactics, are more than sufficient to counteract such tactics. Consequently, the effectiveness of “Reptilian” tactics may be overstated due to verdicts that are not a product of the strengths of plaintiff’s “reptilian” tactics, but rather the product of the defense’s failure to craft a trial strategy that provides the appeal and the tools for jurors to find for the defense. Continue reading