Defense witnesses such as 30(b)(6) witnesses and key employees make or break the case. These witnesses serve a symbolic role that goes above and beyond the implications of the actual words that they say. Instead, they tell the jurors what kind of organization the defendant is. They serve as ambassadors for the defendant. If they are sloppy, disorganized, or come across as uncaring, the defendant will be perceived by the jury as sloppy, disorganized, or uncaring. In fact, the two most commonly discussed plaintiff strategies (Reptile and the referendum strategy) thrive on poor performances by key defense witnesses. The result is a frustrated jury that feels the need to “send a message” to the defendant that it needs to change the way it does business.
Fortunately, the solution is pretty simple: a witness prep session. Defense attorneys often have what they call “prep meetings” with their witnesses, but there are five common shortcomings of these sessions that undermine their effectiveness. Continue reading →
Reptile has become a popular topic of discussion for attorneys across the country, perhaps because folks like myself continue to write about it. Most of us have witnessed the fall-out, whether it be panicked pleas for feedback on defense forums or pre-trial motions to preclude “Reptilian” tactics. I’ve written extensively on defense strategies to counteract Reptile, but the more important question is whether or not defense attorneys should even worry about it in the first place.
If we focus on the science alone, this discussion quickly ends. Keenan and Ball claim to have derived their theory from the work of Paul MacLean, a neuroscientist who did most of his work in the 1950s, 1960s, and 1970s. MacLean proposed the triune theory of the brain, a three-component theory of the brain. One of those components, under MacLean’s theory, is the reptilian complex, which houses our survival instincts. Unfortunately for MacLean, contemporary research has shown that many of his assumptions and conclusions associated with the triune brain theory are wrong. Continue reading →
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 →
With that headline, there are quite a few things I could write about. This blog, however, is about the Trump problem for the other seventeen GOP candidates. Watch any interview with a Republican candidate and what do the interviewers spend most of their time asking the candidate about? Trump. A few candidates are fairly good at deflecting and putting the focus back on their candidacy, but others buy in and spend their valuable network time talking about Trump.
Now, I’m not saying that Trump is going to win the nomination since Trump’s biggest problem is also Trump. But, when the other candidates only talk about Trump (whether “forced” by the media or by choice), they become another mouthpiece for him and his story, not their own. Even if they spend that time attacking him, they are still making it about him and, consequently, letting him control the dialogue and debate. Continue reading →
One of the greatest difficulties in any trial is coping with the uncertainty of the outcome. There is a sense (or at least an illusion) of control in just about everything leading up to the moment attorneys must present the issues to the trier-of-fact. And then there is uncertainty: How will the judge perceive the issues? How will the jurors perceive the issues?
This uncertainty, based on my experience, seems particularly vexing for attorneys. Attorneys seem built to control and this makes sense. Anyone who is passionate about strategy and argument is naturally going to have a strong need for control. In this respect, this need for control is healthy and positive. It drives attorneys to work hard and prepare the best case possible. However, there is also a downside to this need for control: it often causes attorneys to look too hard for any cues from the judge or jury about how he/she/they might feel about the case. Continue reading →
It finally happened this past week. I was called for jury duty. I have spent my entire adult life studying jury behavior and decision-making. I spent years in graduate school and wrote a dissertation on juror sense-making to receive my Ph.D. in legal communication and psychology. I’ve read thousands of studies on juries. I’ve worked in the field for over a decade. I’ve watched hundreds of mock juries deliberate. Yet, I had never been called for jury duty.
There were many surprising things about the experience, but most surprising were the distractions and the boredom. I know jury duty can make life difficult for jurors. I know jurors sit around and wait a lot. I know the process can be quite boring. Yet, before this experience, I had not appreciated the reality of it. Continue reading →
Jury selection is a critical part of trial. Varying theories of attorneys’ ability to win or lose a case in voir dire run rampant among lawyers and their clients, but discussion of those theories are for another day. This post focuses on the importance of communicating with the trial judge in advance about the process of jury selection and identifies key areas of inquiries for attorneys in that process.
Unfortunately, with so much going on in the weeks leading up to trial, focus on jury selection can fall by the wayside. In some instances, the important questions about the process are simply not asked. In other instances, attorneys make assumptions about what a judge will or will not do during jury selection, sometimes “informed” by a colleague who picked a jury in front of that particular judge in the past. Continue reading →