Every successful strategy development session I have conducted with clients culminated in an “a-ha” moment, where we collectively came to some sort of realization about the case…a moment of clarity you might say…that fundamentally changed the way we presented the case at trial. These are the moments strategists live for and they are the difference makers when it comes to strategy development. The vast majority of these moments tend to result in a perspective shift for the case theory and story. In other words, the realizations usually result in telling the story from a different perspective within the confines of the case. These sort of perspective shifts can be devastating for an opponent. Perspective shifts can undermine or eliminate the offense for the other side and narrow the case in a manner that makes it difficult for the other side to prevail.
One of my favorite examples of the perspective shift in lawsuits came from attorney Mike Lewis, who was the main architect of the lawsuits brought by the States against Big Tobacco. Lewis worked for the plaintiffs in those cases. His strategy was a brilliant example of an effective perspective shift. Lewis was frustrated with the poor success rate plaintiffs had against Big Tobacco. While there was strong evidence about what Big Tobacco knew and hid from the public, Big Tobacco had a simple and powerful theme: personal choice. In other words, Big Tobacco had prevailed in so many cases because it would simply argue that the plaintiff made the choice to become a smoker. This created a simple and powerful focal points for jurors by drawing in the element of personal responsibility. This theme resonated with jurors across the country and led to low success rates for plaintiffs. Continue reading →
Happy New Year to all of the readers out there! I hope 2015 brings everyone the best in their litigation practices. One of my New Year’s resolutions is to provide more frequent updates to the blog in an effort to continue providing reliable and practical advice for implementing strategy over the course of a lawsuit.
One critical issue that rarely receives the attention it deserves is the dynamic of jury deliberations. Consideration of the dynamic should significantly influence decisions about strategy development, yet this rarely occurs. I think sometimes the problem is that attorneys tend to focus on persuasion as their objective when it comes to the jury. While this is certainly an important part of the process, it is still only one part of the process. Persuaded jurors do not necessarily result in favorable verdicts. As ridiculous as this may sound, it is true and I have seen it happen frequently in the hundreds of mock juries I have observed over the years. While unanimous verdicts happen, they are not necessarily common. There is usually some sort of division amongst the jurors when deliberations begin (even when they ultimately reach an unanimous verdict). Continue reading →
The current NFL scandal surrounding Ray Rice and his wife, and the numerous subsequent incidents with other players (i.e. Greg Hardy, Adrian Peterson, etc.), offers a perfect example of the problem with the “storytelling” advice that pervades the jury consulting industry these days. In many respects, the story for the NFL was strong. It had all the components of apology that scholars recommend for corporate scandals. It indicated that change was imminent. In short, it was a good story and everyone probably (understandably) felt good about themselves when the team developed the story in some conference room somewhere.
The NFL is a lot like many corporate defendants. As Gregg Easterbrook argued in a piece for ESPN, the public has been waiting for an opportunity to criticize the NFL due to its arrogance in recent years, and the NFL had no reserve of goodwill to help it through the situation. Corporate defendants are similarly situated. Large portions of the American public have strong, negative opinions of corporations and their actions. When a corporation is named as a defendant in a lawsuit, there is rarely a reserve of goodwill at trial that softens the critical orientation of jurors. This poses a significant burden on the corporation as we have seen with the NFL. 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 →
Primacy and recency are, by far, the most popular theories of persuasion that arise in my discussions with attorneys. I have never heard an attorney mention “elaboration likelihood model,” but references to primacy and recency seem to come weekly at times. Primacy refers to the idea that what is presented most remains the most salient and, consequently, impactful for the audience. Recency is the opposite idea that an audience is most impacted by what it heard last.
Applied to a litigation setting, the primacy/recency debate translates to a popular debate about whether opening statements or closing arguments are more important. The traditional belief among lawyers (and in some respects, this author) is that opening statements are the most important part of trial. Many attorneys take primacy to an extreme, embracing a statistic that has been passed down through the ages that 70-90% of jurors make up their minds about the case after opening statements. In other words, these attorneys go as far as arguing that trial is essentially over after opening statements. Hans and Sweigart offer a rich discussion of this belief in their analysis of civil jurors’ perceptions of attorneys, suggesting that this belief originated with a 1940 study where researchers assessed liability judgments at eighteen different points in a mock trial and concluded that the vast majority of final verdicts were consistent with judgments made right after opening statements. Continue reading →