Tag Archives: emotion

The Important Connection between September 11, COVID-19, and Jury Decision-Making

By Thomas M. O’Toole, Ph.D.

As the country starts to re-open and jury trials resume, it is our job to research and understand what impact the pandemic and the stay-at-home orders that lasted over two months in some states will have on how jurors evaluate liability and damages going forward. There are many ways to approach this kind of research. For example, we just completed on of the largest surveys we have ever conducted in order to get specific answers to some of the questions we know attorneys and general counsel will have. We are currently in the process of analyzing all of that data.

It is also important to look back in history to other significant events for points of comparison. Everyone I talk to immediately draws comparisons to the 2008 recession, which makes a lot of sense given the economic parallels. When I have suggested looking at September 11, many brush off the suggestion, arguing that it is simply not comparable. However, delving behind assumptions, it becomes clear that there are some very important connections that are worth examination. Continue reading

The Illogical Truth About Jury Decision-Making: Jurors Don’t Follow the Law Even When They Follow the Law

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By Thomas M. O’Toole, Ph.D.

In many respects, success in litigation rests on the understanding and appreciation that the philosophy of the justice system and the rules of the game create and maintain a fiction that significantly departs from the reality of how decisions and verdicts are rendered.

The mistaken assumption is the Aristotelian ideal that logic and reason can and will save us. In this vein, the justice system, through trial courts, deploys a simple logical structure that presumes “evidence and testimony + the law  = verdict.” We go to great lengths to carefully manage this fiction, whether it be public oaths by jurors to follow the law, admonishments to jurors to pretend they didn’t hear something, or pretrial rulings that pretend it’s possible to splice out strong emotional components of a case. Continue reading