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Repeating the Importance of Repeating


By Thomas M. O’Toole, Ph.D.

The value of repetition as a simple and practical strategy for persuasion at trial cannot be overstated. However, despite the fact that I repeatedly emphasize this point on repetition to clients at trial, the level of repetition is often insufficient. I have found that it is not uncommon for an attorney to believe that he or she is using repetitive language to make a point, but when reviewing transcripts, the use of this language is fairly limited. Saying something a couple of times over trial simply does not cut it. If a particular message is important, jurors need to hear it over and over again. In fact, the right amount of repetition usually exceeds attorneys’ comfort level, leaving attorneys feeling as if they are repeating arguments too much.

Sometimes, the repetition needs to be forced or creative. For example, sometimes it is important for attorneys to ask questions of witnesses that incorporate key language or facts even though the witness’s answer is not important. In other words, sometimes the question, and the repetition that is built into that direct or cross-examination question, is more important than the particular witness or that witness’s answer. In these moments, the sole purpose of asking the question is to give jurors an opportunity to hear it again. Continue reading

Do You Know What Question Your Jurors are Really Answering in Deliberations?


By Thomas M. O’Toole, Ph.D.

In his 2011 book Thinking Fast and Slow, famed psychologist and Nobel Prize winner Daniel Kahneman wrote this in his effort to explain the essence of intuitive heuristics: “When faced with a difficult question, we often answer an easier one instead, usually without noticing the substitution.”

While the fundamental concept in this quote is not particularly ground-breaking (at least in today’s world of psychological research), Kahneman’s phrasing eloquently hammers home a critical point for attorneys and how they think about their cases. Continue reading

Think of it as “Mock Deliberations” Instead of a Mock Trial

Mock Jury Deliberations
By Thomas M. O’Toole, Ph.D.

I had a very interesting experience recently on a case in New York. While we had worked with the client before, we had never worked with this particular group of attorneys. The stakes were significant and there were ongoing discussions about a potential mock trial. These discussions created an interesting dynamic where the client wanted to do a mock trial, but the client’s attorneys did not support the idea and questioned the value of such a project. Notably, the client, who we had worked with several times in the past, had never conducted a mock trial before, so while he was convinced that there was value to a mock trial, he could not necessarily articulate what the specific benefits of conducting one would be.

The end result was that the client made the decision to move forward despite his attorneys’ lack of interest. Afterwards, he was so impressed with the critical insights that we learned that the decision was made to conduct a second mock trial a month later in order to maximize the trial team’s intel for its strategy development and trial presentation decisions. Continue reading

3 Ways Our Brains Are Changing With the Times

By Thomas M. O’Toole, Ph.D.

Without a doubt, we are living in unprecedented times. Whether it is the leader of the free world firing off daily rants on Twitter or the mere fact that smart-phones leave us plugged in 24 hours a day and 7 days a week, technology and social media have profoundly changed the way we experience the world. The psychological and sociological research is finally catching up, offering an interesting glimpse into how all of these changes are impacting our brains. Here are three ways in which technology and social media are impacting your jury pool. Continue reading

Would you strike Barack Obama from the jury panel?

Obama arrives

Obama arrives.

By Jill D. Schmid, Ph.D.

Obama arrived this morning (11/8/17) at the Daly Center in Chicago for jury duty in Cook County, but he didn’t have to wait long to find out he had been dismissed. Guess the attorneys won’t have to decide if they would use one of their strikes on him. That, however, doesn’t make the question any less intriguing: Would you strike the former President? If so, why?

Seems like as good a time as any for a quick recap on five dos and don’ts of jury selection. Continue reading

Defining Your Fundamental Goal in Voir Dire

jury selection
By Thomas M. O’Toole, Ph.D.

It has been a busy few months of picking juries for our consultants at Sound Jury Consulting. I have picked three juries in the past three weeks alone and we seem to have had a record number of cases lately that have made it all the way to trial. This has led to a lot of opportunities to see how different attorneys approach voir dire. The different approaches fall generally into three categories: 1) Well-planned and thought-out; 2) Those with questionable goals; and 3) Those with no apparent purpose.

It is difficult to understate the importance of jury selection, regardless of which philosophy you embrace. These are the people who are going to ultimately decide your client’s fate. The problem is that voir dire time is limited, even under liberal conditions. Due to these time constraints, attorneys are often forced to make difficult choices about how to spend their limited opportunity to speak with potential jurors. So let’s look at these three categories in more detail. Continue reading

Four Fundamental Misconceptions About Mock Trials

Jury DeliberationBy Thomas M. O’Toole, Ph.D.

Mock trials are a popular tool for attorneys who want to learn how jurors will react to their cases. Mock trials have become so commonplace that some argue it is malpractice not to conduct one in a high-exposure matter. With the increased use of mock trials, there has been a corresponding increase in the number of misconceptions about the design and value of this type of jury research. Let’s take a look at four common misconceptions about mock trials. Continue reading

5 Common Ways Attorneys Waste Precious Voir Dire Time

Common ways attorneys waste time in voir dire.

Common ways attorneys waste time in voir dire.

By Thomas M. O’Toole, Ph.D.

Recently, I picked a jury in the Pacific Northwest where the judge provided the attorneys for each side limited time for attorney-conducted voir dire (20 minutes each). While the time allocations for voir dire vary from case to case and from judge to judge, most jury selections involve some sort of time limitations along these lines. In other words, in many case, attorneys probably need more time than they actually receive in order to conduct the kind of jury selection that they would prefer. This has important implications because it means that every choice an attorney makes in his or her voir dire is a trade-off. If an attorney spends time focused on one topic, it takes time away from another topic. Consequently, attorneys are put in the position of having to make some tough choices about how to spend their time.
Continue reading

Testimony and the Right Place for Righteous Indignation

Screen Shot 2016-07-14 at 1.18.26 AM

By Jill D. Schmid, Ph.D.

The other day I was watching FBI Director Comey’s testimony to Congress regarding the FBI’s Clinton email investigation and findings. It began as a test of my mental fortitude, but I found that I enjoyed watching how Comey handled the questions and delivered his responses. In particular, I admired the way he kept his composure while still being strong and, when necessary, a bit indignant.

Comey wasn’t angry or rude. Instead, when needed, he used righteous indignation. A good example of this came when Comey was being “asked questions” by Florida Representative John Mica. Towards the end of the allotted five minutes, Comey had had enough of the insinuations and thinly veiled attacks on his investigation and conclusions. He sat up a bit straighter, talked a bit louder and clearer, and he stated, “I hope what you’ll tell the folks in the café is ‘look me in the eye and listen to what I’m about to say. I did not coordinate that with anyone. The White House. The Department of Justice. Nobody outside the FBI family had any idea what I was about to say. I say that under oath. I stand by that….’” He ends by saying, “I want to make sure I was definitive about that.” You can watch his testimony here.
Continue reading

The Sniper Defense Episode 12 – Crafting Effective Opening Statements

In this episode of The Sniper Defense, Thomas M. O’Toole, Ph.D. discusses practical tips for crafting effective opening statements.