Monthly Archives: July 2019

10 Indicators of Who Will Be Opinion Leaders in Deliberations

By Thomas M. O’Toole, Ph.D. 

Jury selection is difficult. It is impossible to predict exactly how any one individual is going to decide the case. Instead, we look for indicators or glimpses into how a potential juror might decide the case. Some attorneys rely on the simple lifestyle choices of jurors, such as their news sources or what the bumper stickers on their cars say. Others use voir dire to explore jurors’ case-related attitudes and life experiences. While some methods are more reliable than others, they are all imperfect tools for trying to predict the future.

These imperfections inevitably lead to moments of uncertainty during jury selection where attorneys struggle to determine who, among a few possibilities, is the best choice for the use of a peremptory strike. Even when attorneys are confident in their identification of “bad jurors,” the situation often arises where they have fewer peremptory strikes than “bad jurors.” Continue reading

6 Common Reasons Why Defense Attorneys Lose Cases

by Thomas M. O’Toole, Ph.D.

Each year in the United States, juries award billions of dollars in damages to plaintiffs. In 2014, a jury in Florida awarded $23.6 billion to a single plaintiff. There are two possible explanations for these extraordinary numbers. First, for a variety of reasons, defense attorneys are often forced to take unwinnable cases all the way to trial. In these situations, they do the best they can, but cannot avoid the inevitable.

The second explanation is that defense attorneys are failing in some way to adequately try their cases. This is not intended to give insult to defense attorneys. In fact, it’s an overdue acknowledgement of the overwhelming burden that is placed at their feet. While the typical plaintiff’s case has a natural story and appeal that insulates it from even the most unskilled plaintiff attorneys, convincing a judge and jury to embrace a defense theory requires a delicate dance down a path that is fraught with danger at every turn. Continue reading

Coping with Egocentric Jury Decision-Making

By Thomas M. O’Toole, Ph.D.

We quickly learned that Richard was a horrible juror for us in the trucking accident case we were working on. We had decent evidence that the plaintiff had fallen asleep behind the wheel and veered into our truck, but Richard wasn’t having it. As soon as this issue came up in deliberations, he jumped in, stating, “I don’t care what he says. We have all been on the road with truck drivers and they routinely fly over into the other lane without any notice at all.” This quote was so powerful because what Richard was really saying was, I don’t care what the evidence in this case is because I’m going to go with my own personal experiences instead. Fortunately, this was only a mock trial, but it highlights an important reality about jury decision-making: it is an ego-centric process, and the research shows it is only getting worse with the emergence of the millennial juror. Continue reading