Battling Confirmation Bias and First Impressions in Litigation

By Thomas M. O’Toole, Ph.D.

Confirmation bias refers to when people accept or reject evidence based upon what they want to believe as opposed to basing it on the actual merits of the evidence. In some ways, it is a psychological survival mechanism tied to our beliefs about how the world works. Challenges to these beliefs can cause a great deal of chaos and stress, so our brains are, essentially, pre-programmed to seek out evidence that reinforces those beliefs, while minimizing, explaining away, or outright rejecting evidence that challenges them. In fact, this explains the siloed media we have today where people tend to pick which news channels to watch based upon their political affiliation.

For lawyers, confirmation bias can be a significant problem at trial, especially when the first impressions favor the other party. As Nobel prize-winning psychologist Daniel Kahneman notes, “The sequence in which we observe characteristics of a person is often determined by chance. Sequence matters, however, because the halo effect increases the weight of first impressions, sometimes to the point that subsequent information is mostly wasted.” In other words, first impressions at trial often shape how jurors perceive the subsequent evidence and testimony at trial. A poor first impression of the defendant will likely lead jurors to place greater focus and emphasis on evidence and testimony that reinforces the negative view of the defendant and vice versa. Continue reading

Using Jury Instructions More Effectively in Closing Argument


By Thomas M. O’Toole, Ph.D.

One of the studies that I like to cite more than just about any is the old 3M study that showed that people remember only about 10% of what they are told three days after it is told to them. Apply this to a trial setting and the implication is that jurors will forget up to 90% of what they heard over the course of a trial by the time they reach the deliberation room. To put it a different way, by the time jurors reach the deliberation room, they are overwhelmed, do not remember the majority of what they just heard, and face the difficult task of having to sort through hundreds to thousands of exhibits, their largely disorganized notes, and a stack of jury instructions that can be difficult to decipher. Continue reading

The Power of Embracing Bad Facts

By Jill D. Schmid, Ph.D.

On a recent episode of “All In,” Chris Hayes was discussing one possible approach the Trump team could take in regards to the Stormy Daniels mess. Similar to the approach John Edwards took in his lawsuit involving some of the same issues, the strategy is essentially go for broke by embracing and re-framing the “bad” behavior – “Sure I did it, but it wasn’t illegal.”

For Edwards, he stated it this way: “There’s no question that I’ve done wrong, and I take full responsibility for having done wrong. I will regret for the rest of my life the pain and harm that I’ve caused to others. But I did not break the law, and I never ever thought I was breaking the law.” Continue reading

The Value of Repetitive Question Structures in Direct and Cross Examination


By Thomas M. O’Toole, Ph.D.

I have previously written about how important repetition is to persuasion. I discussed how repetition increases retention, familiarity, and believability. In this post, I want to talk about one practical way of building repetition into your case presentation at trial. Continue reading

“Jury Nullification” is a Greater Threat than You Think


By Jill D. Schmid, Ph.D.

Sound Jury Consulting recently conducted a nationwide online survey in which we asked the following: If you were sitting as juror in a trial where your personal beliefs about the case were in conflict with the laws the judge told you to follow, how difficult do you believe it would be to set your personal beliefs aside and not let them influence your decision? 62% said it would be very or somewhat difficult. While the results highlight the importance of a sound jury de-selection strategy, they also speak to what many might call jury nullification.
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Does your witness script match your witness’s communication style?


By Jill D. Schmid, Ph.D.

I’m sure you’ve written dozens perhaps hundreds. For each, you’ve painstakingly chosen every word, and gone over it with a fine-tooth comb. It’s a work of art. Therefore, come time to perform this masterpiece you’re shocked when it doesn’t go off as planned. What happened? Your witness happened.

Witness scripts or outlines are a staple of any litigator’s trial playbook, as they should be for a variety of reasons. However, there are several critical mistakes or shortcuts that are often made that invite disaster on the witness stand, the biggest of which is that the attorney did not consider the witness’s particularities. Simply talking with your witness is not sufficient to uncover those particularities; instead, the best way to assess them is through a mock direct examination. Here are three critical aspects of communication that you can glean from the mock examination and then address through the construction and editing of your witness examination script. Continue reading

Dissecting the “Broken Rule” Strategy Used by Plaintiffs

By Thomas M. O’Toole, Ph.D.

One of the most popular strategies used and advocated by many plaintiff’s attorneys across the country is the “broken rule” strategy. The theory is that the most important strategy for any plaintiff is to establish a clear rule up front, and then prove that the defendant broke that rule. Some of the popularity of this theory comes from Reptile, written by David Ball and Don Keenan.

As I’ve written before, there are a variety of significant problems and shortcomings associated with the Reptile strategy, one of which is that the “science” that serves as the foundation for the theory has largely been disproven. However, just like some people still believe vaccinations lead to autism, many attorneys have brushed aside the problems with the science behind the Reptile strategy. So let’s set the science discussion to the side and take a closer look at the “broken rule” strategy.
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Deposition Performance Case Study: Marcus Lemonis

By Thomas M. O’Toole, Ph.D.

I am a fan of the television show, The Profit . It’s entertaining and a wonderful resource for small businesses. Naturally, I was curious when I stumbled across deposition video of the show host, Marcus Lemonis, on YouTube.

For background, this deposition appears to be related to a case in which a woman alleges that Lemonis and company conspired to unfairly push her out of participating in and sponsoring an equestrian competition in Florida.
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A Practical Guide for Developing Jury Selection Strategies

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By Thomas M. O’Toole, Ph.D.

I’m proud to announce that Jury Selection Handbook: The Nuts and Bolts of Effective Jury Selection, a book that I co-wrote with Ronald Clark from Seattle University Law School, was published this month by Carolina Academic Press and will be available soon on Amazon and at a variety of other online retailers.

Seattle University Law School alum will tell you that Ron Clark is an outstanding professor who is a master at dissecting complex subjects for his students. This book is an extension of his approach. Ron and I dissect the jury selection process, break it down into all of its various steps, and discuss the kinds of strategic choices that attorneys have to make at each of those steps. Some of those choices may be obvious at times, but many others are choices that a lot of attorneys may not realize are available to them. Continue reading

Why Jurors Often Fail to Understand What’s Important…Even When It’s Obvious


By Thomas M. O’Toole, Ph.D.

Before you read any further, watch the above 1 minute and 41 second video, which will provide incredible insights into your trial presentation strategy as discussed below.

Did you pass or fail? As they tell you in the video, almost half of all of the people who watch this video (and have not seen it before) fail the test by not seeing the gorilla. Even more interesting, we learn that even those who have seen this kind of experiment before (and expect something odd to happen) failed to notice the second change, which was the color of the curtain in the background.

Your first reaction may have been that this is an interesting little party trick kind of experiment that you can forward along to your friends, but upon further glance, this experiment provides critical insights into what happens at trial as jurors listen to your case presentation. Describing this experiment, Nobel Prize winning psychologist Daniel Kahneman noted that “intense focusing on a task can make people effectively blind, even to stimuli that normally attract attention.” Continue reading