Author Archives: Joe

Rare Insights from Jurors About Voir Dire

By Thomas M. O’Toole, Ph.D.

This past Friday, I conducted our first ever all-day mock jury selection workshop in Seattle. Ten attorneys spent the day conducting voir dire and picking a jury to deliberate on the product liability fact pattern we put together ahead of time. Then the mock jurors actually deliberated so we could see how well the attorneys did in voir dire and their use of peremptory strikes. We tried to match everything we could to the actual jury selection process used by our local court. The attorneys had to come up with the right questions to ask, get up and ask them effectively to the large group of mock jurors, and then track that information, along with all of the answers provided during the other attorneys’ voir dire. The mock jurors filled out individual feedback forms and also participated in a group interview where they provided their thoughts about the mock voir dire that had occurred.

It made for a fun, interesting, and insightful day. While the mock jurors had a lot to say, there were some common threads throughout their feedback that attorneys should carefully consider when drafting their own voir dire. Here are three key observations from the day: Continue reading

The Importance of the Me Principle for Jury Strategy (or Those Darn Millennials!)

By Thomas M. O’Toole, Ph.D.

Sadly, research on cultural changes in America over the past few decades show that we have become more of a narcissistic culture than ever before. Jean Twenge, professor of psychology at San Diego State University, wrote the following in an article in Time magazine:

“Here’s the cold, hard data: The incidence of narcissistic personality disorder is nearly three times as high for people in their 20s as for the generation that’s now 65 or older, according to the National Institutes of Health; 58% more college students scored higher on a narcissism scale in 2009 than in 1982. Millennials got so many participation trophies growing up that a recent study showed that 40% believe they should be promoted every two years, regardless of performance. They are fame-obsessed: three times as many middle school girls want to grow up to be a personal assistant to a famous person as want to be a Senator, according to a 2007 survey; four times as many would pick the assistant job over CEO of a major corporation. They’re so convinced of their own greatness that the National Study of Youth and Religion found the guiding morality of 60% of millennials in any situation is that they’ll just be able to feel what’s right. Their development is stunted: more people ages 18 to 29 live with their parents than with a spouse, according to the 2012 Clark University Poll of Emerging Adults. And they are lazy. In 1992, the nonprofit Families and Work Institute reported that 80% of people under 23 wanted to one day have a job with greater responsibility; 10 years later, only 60% did.” Continue reading

Understanding How Social Media is Changing Your Jurors

By Thomas M. O’Toole, Ph.D.

One of the often-overlooked features of the social media revolution is how it has changed the consumer/product dynamic. In this era of Facebook, Twitter, YouTube, and the long list of other social media sites, we are no longer the consumers; we are the product. It is our information and attention that drives profit in these industries. Companies like Facebook observe our online conduct and sell that data to other companies. Consequently, incredible attention in recent years has focused on how to keep users engaged in information consumption, which is what we do when we visit these technology platforms. Continue reading

An Effective Strategy For Changing the Narrative in Difficult Cases

Finding the little fact that changes the case narrative can feel like finding a needle in a haystack at times, which is why it is always good to have a fresh pair of eyes.

By Thomas M. O’Toole, Ph.D.

Some of the best case strategies that we have developed with our clients over the years resulted in the other side having to defend something at trial that they never realized they would have to defend…something they took for granted. This is a strategy I learned during my college debate career (yes, I was a college debate nerd…but you would be surprised how many of your peers in your industry were as well). In my days of college debate, one of the most effective strategies was something called a plan-inclusive counterplan, or a “PIC” for short. The idea was that after the first (affirmative) team made their argument to start the round, the other team agreed with everything that side said except for one small, but incredibly important detail, something they never realized they might have to defend…something they took for granted. Continue reading

Ease over Accuracy: Why “Yeah, but…” Defense Tend to Fail

By Thomas M. O’Toole, Ph.D.

The “law of least effort” is an important principle for understanding jury decision-making. In short, if there are several ways of making sense of the evidence and testimony in a case, jurors will gravitate towards the one that is the least demanding for their brains. As Nobel-winning psychology Daniel Kahneman (who has spent his life studying human decision-making) states, “Laziness is built deep into our nature.”

In fact, research has consistently shown that we assign greater weight to information and ideas that are more easily accessible to us, regardless of whether that information or those ideas are accurate and reliable. It may be because the information or idea is familiar, easier to understand, makes more intuitive sense, or ties to something that is easier for our brain to access. Continue reading

Priming Jurors to Hate You and Your Client

By Thomas M. O’Toole, Ph.D.

The critical takeaway from any meaningful discussion about primacy theory and its role in persuading jurors is often the one that is least discussed. Those who tout the importance of primacy theory often talk about priming the jurors to achieve victory, but research shows the real takeaway should be to avoid the early mistakes that cost you the trial. In short, you cannot win your case in jury selection or opening, but you can lose it there.

Everybody knows first impressions are important, but some research shows that negative first impressions are much more powerful than neutral or positive first impressions. This is called the negativity bias and it has been investigated extensively by academic researchers. Specifically, negativity bias recognizes that negative experiences or perceptions have a greater effect on one’s psychological state than neutral or positive experiences. Continue reading

Preparing Witnesses to Pass the “Eyeball Test”

By Thomas M. O’Toole, Ph.D.

One of the most commonly-cited statistics in communication studies is that verbal communication (i.e. the words that are actually said) constitutes only 7% of how the credibility of a message is determined. 38% is the vocal quality of the message (i.e. tone, etc.), and 55% is the nonverbal component. Some scholars have disputed how these numbers have been interpreted, but research has shown over and over again that how something is said is more important than what is actually said. Setting the research aside, anyone who has ever been in a serious relationship has lived this reality.

For this reason, one of the most important parts of a witness’s testimony is the “eyeball test.” In other words, does he or she look and sound like the kind of person he or she is being portrayed as? One of the most obvious examples of the eyeball test is in medical malpractice cases. So much of jurors’ opinions in medical malpractice cases boil down to them looking at the doctor as he or she testifies and asking themselves if he or she seems like the kind of doctor they would want treating them. If the answer is yes, the jurors will often explain away bad facts. If the answer is no, those bad facts become more salient. Reiterating this phenomenon, a 2018 national survey conducted by Sound Jury Consulting found that 59% of respondents believe they can tell if someone is a good doctor just by meeting him or her and having a conversation. Continue reading

Faster is Better: Finding the Right Speaking Pace

By Thomas M. O’Toole, Ph.D.

 What is the most appropriate pace of speech? A common belief among trial attorneys is that it is important to slow down in opening statement and closing argument, particularly when the issues in the case are complex and/or confusing. This belief makes sense since most of us have long been taught to slow down when someone is having difficulty understanding what we are saying. In fact, the term “fast-talker” has its own derogatory meaning, suggestive of a slick salesperson who is willing to say whatever is necessary to complete the sale. However, research in psychology and persuasion suggests this common belief may actually be misguided in some respects. Continue reading

Persuading a New Generation of Millennial Jurors

By Thomas M. O’Toole, Ph.D.

Over the past few months, I’ve celebrated my 40thbirthday, my 15thyear in the jury consulting industry, and the 5-year anniversary of Sound Jury Consulting. In short, I’m getting older, and as we grow older, the world around us changes. One of the more interesting changes in the world of juries is the increasing number of millennials serving as jurors. Recently, I looked at the venire information from 18 trials in which I picked a jury in King County, Washington (Seattle) over the past 3 years. The sample size was large — over a 1,000 potential jurors. Nearly all of these cases were set to last two or more weeks. Of the 1,000+ individuals who showed up for jury duty, 31% were millennials (i.e. 1 in every 3 people showing up for jury duty in King County is a millennial). Continue reading

The Jurors Hated It, But It Worked

By Thomas M. O’Toole, Ph.D.

An important lesson I have learned from observing jurors’ decision-making in mock trials is that jurors sometimes dislike strategies that nevertheless are quite effective. They may not like what they see, yet they are still persuaded by it. These moments can be tough to digest. Besides the gut-check, it is difficult to ignore the fact that several mock jurors are criticizing something you did. However, research has shown over and over again that persuasion does not always happen at a conscious level. In other words, what jurors verbally express about something does not necessarily reflect its actual effectiveness. Continue reading