Monthly Archives: January 2016

The Sniper Defense 002 – The Podcast Playbook for Defense Attorneys

In episode two of The Sniper Defense, Tom discusses how to craft an effective jury selection strategy.

The Sniper Defense 001 – The Podcast Playbook for Defense Attorneys

Welcome to the Sniper Defense, the podcast playbook for defense attorneys. In this episode, jury expert Thomas M. O’Toole, Ph.D. discusses the most effective strategies for preparing key defense witnesses for their depositions.

Boring Jurors to Death in Your Witness Examinations

iStock_000002534066_Medium

By Jill D. Schmid, Ph.D.

A while back I was interrupted by a doorbell as I was telling a group of friends a particularly riveting story. Once the person had left, I waited for someone to ask me, “What happened then?” I mean – weren’t they all dying to hear the rest?  Turns out, the answers was no. The conversation resumed, but no one seemed to remember that I was in the middle of a story.  Now, this doesn’t happen to me very often, so I of course stewed about it and tried to come up with a justifiable reason why they weren’t interested. All I could come up with was the painful truth – no one cared.

This situation stuck with me and since then I pay attention to what happens when someone is interrupted during a story: Do people ask questions to get the story-teller to continue? Does the conversation move on with no one remembering that someone was in the middle of a story? Does the story-teller take up where they left off even though no one seems to care? What I noticed in my non-scientific investigation is that it is fairly rare that someone asks the story-teller a question to get them to continue – the story must be particularly intriguing, or was only missing the big finale. When the person continues without being asked, most of the time you can sense the disinterest as people politely let the person finish. Often, everyone simply forgets someone was telling a story and they move to the next subject. Continue reading

It’s the Kicker’s Fault: Placing Blame for Litigation Losses

blairwalshBy Jill D. Schmid, Ph.D.

As I sit here preparing myself for tomorrow’s Seahawk game (e.g., lighting the candles, saying the prayers, finding my lucky shirt), I find myself still in shock that we (I’m #12, so yes “we”) won that game. I would imagine there are some Minnesota fans that wouldn’t say we won, but rather they lost – lost because Walsh’s 27-yard field goal with seconds left in the game sailed left. While it’s easy to blame the last thing that happened for the loss (our win), that’s too simplistic and short-sighted. After all, there was Russell Wilson’s spectacular scramble and pass to Tyler Lockett after a botched snap that led to Seattle’s touchdown (the ONLY touchdown of the game). There was also Adrian Peterson’s fumble due to Kam Chancellor’s deft strip. Truth is Seattle won for a lot of reasons and, yes, luck was probably one of them.

Placing blame got me thinking about what we blame for litigation losses. Here’s just a few we’ve heard over the years:  “Jury was confused/dumb/in over their heads/not interested (take your pick),” “Judge made bad rulings,” “Didn’t get the jury instruction we wanted,” “Their expert was better,” “Plaintiff was really likable,” “We ran out of time in closing.” But again, the truth is, cases are lost for a variety of reasons. Rarely, if ever, can it be blamed on one thing – and especially the last thing (closing, jury instructions, jurors in deliberation). While a “Keys to success in litigation” is really more of a book subject than a blog subject, we’ve narrowed it down to a few keys that are over-looked and/or undervalued (from a jury standpoint, not a legal standpoint) that all contribute to litigation losses. It is not just one of these things; it is all of these things (among many others) that should be considered while creating your game plan.  Continue reading

The Legal Pad: Because There’s No Better Way to Share Funny Lawyer Anecdotes

By Thomas M. O’Toole, Ph.D.

Well, I’m entering my 13th year of providing jury consulting services to attorneys across the country. It’s inevitable that you see some funny stuff in the courtroom with as much time as I spend there. The Legal Pad is my attempt to share some of those funny, but somewhat educational moments. Enjoy!

SJ Motion

The Perils of Powerless Speech Part 2: There’s an App for That!

just not sorryBy Jill D. Schmid, Ph.D.

Good news! Now, you don’t need to re-read your emails looking for the subtle ways you might be undermining your authority – as the saying goes, “There’s an app for that!” Called “Just Not Sorry,” the app highlights the language choices that I wrote about in an earlier blog (e.g., hedges like “I think,” intensifiers like “really,” and other qualifiers like, “just” or “actually”).

Recently, author Christina Cauterucci interviewed Tami Reiss the CEO of Cyrus Innovation, a software development consulting firm that specializes in women-led companies and tech teams, and part of the team that developed the “Just Not Sorry.” She and others referenced in the article reinforce that these language choices are not only unnecessary filler, but can also undermine the sender’s authority. As I wrote about, these language choices are so ingrained in us (particularly women), that without something or someone pointing them out, we are left unaware of the unintended consequences – hence, the app.
Continue reading

Three Quick Lessons from Netflix’s Making of a Murderer

making-a-murderer-is-coming-to-netflix-just-in-time-for-christmas-754421
By Thomas M. O’Toole, Ph.D.

For courtroom-drama lovers, Netflix’s Making of a Murderer is a must-see. I say this knowing that the number of “must-see” shows these days goes far beyond the available free time of just about any trial attorney. Whether it’s Breaking Bad, Homeland, Last Man on Earth or countless others, everyone seems to have a show at the top of their list that I haven’t had the chance to see. I’m just not a binge watcher, so I’m always left behind.

Making of a Murderer is the exception. I can’t recall another show in recent memory that led me to question just how much sleep I really needed as I stayed up late watching it. It is a totally riveting documentary series about Steve Avery, a Wisconsin man who spent 18 years in prison for a crime he didn’t commit, sued the County police that put him there for $36M, but found himself accused of being at the center of a heinous crime before the lawsuit could develop past the stages of the shocking depositions given by the key police officers. Was he framed? Did he commit the crime? Trying to answer these questions is like riding that roller coaster that’s just a little bit scarier than what you’re used to riding. Continue reading