Monthly Archives: August 2019

The Critical Importance of Practicing Your Voir Dire

By Thomas M. O’Toole, Ph.D.

Despite what Allen Iverson might say (search “Allen Iverson” and “practice” on YouTube if you do not get this reference), practice is essential to the successful development of any skillset. In competition, competitors get better by practicing. This is why it is surprising to me that most attorneys do not practice their voir dire before the day of jury selection, particularly when so many also preach about primacy theory and the need to make a good impression right off the bat.

Statistics indicate that fewer and fewer cases make it to trial, which means most attorneys have had few opportunities to conduct voir dire. Even for experienced attorneys, it may have been years since the last time they picked a jury. Additionally, jury selection is not something that comes natural to most attorneys as it is the opposite of what most attorneys are used to doing – arguing as opposed to listening. Many attorneys admit that they do not like voir dire and that it is the one thing about trial that makes them nervous. The anecdote to all of this is PRACTICE.  Practice will make you better. Continue reading

Juror Complaints Mirror Judge Complaints

By Jill D. Schmid, Ph.D.

I was recently reading an article that was published a few years ago in our local bar journal about the common pet peeves of our local judges here in Portland, Oregon.  As I read the list, I was struck by the similarities to what jurors say are their top pet peeves. As a trial consultant, I’ve interviewed jurors for post-trial debriefings, shadow jurors, mock jurors, and watched and listened to jurors in countless jury selections. With this background, below is a list of what I’ve consistently heard from jurors; not surprisingly, what irks judges also irks jurors. Continue reading

10 Practical Strategies for Changing Jurors’ First Impressions

By Thomas M. O’Toole, Ph.D. and Scott Herndon, M.A.

 In 2016, Oxford Dictionaries chose “post-truth” as its word of the year. It defined it as “relating to or denoting circumstances in which objective facts are less influential in shaping public opinion than appeals to emotion and personal belief.” This concept has long been recognized in the fields of psychology and persuasion. Research has consistently shown that people tend to put beliefs before facts. In other words, decision-making often starts with what we want to believe, followed by efforts to seek out evidence that confirms what we want to believe, while downplaying, ignoring, or rejecting evidence that goes against those beliefs.

For this reason, misinformation is surprisingly resilient to correction and retraction. In fact, some studies show that efforts to correct misinformation actually reinforce the misinformation itself. This creates an interesting problem for litigants at trial. While it is primarily a problem for defendants, many litigants find themselves struggling to undue undesirable first impressions (or misinformation) that were created in opening or early in the trial. We do not intend to suggest that misinformation is synonymous with undesirable first impressions, but the resulting problem remains the same. Here are ten strategies for undoing undesirable first impressions or misinformation that we have identified from the research and our own experience working with hundreds of juries and mock juries across the country. Continue reading