Tag Archives: evidence

Jurors Don’t Let Facts Get In Their Way

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By Jill D. Schmid, Ph.D.

I’m a relatively new user of Facebook – turns out my protest against it wasn’t working as there are now over 1.25 billion users. I finally gave in and joined as I was told that people use it to share pictures of their kids, dogs, and vacations. While that is somewhat true, I’ve also found that people use it to “share” and “like” their political, religious, and moral views about every subject under the sun. Now, don’t get me wrong, I have no problem sharing my opinion, but typically I like to do it in a face-to-face setting where we can engage in a discussion of the issue and where people can tell me I’m full of “it” right to my face – no hiding behind a computer screen.

My dislike for Facebook has become more intense recently. I’ve learned in the past couple of months that I’m going to have to take a hiatus from it until the political season is over. I was thinking about the posts and the feedback to those posts when an attorney friend posted the picture above.

This got me thinking about what I do – and how social media and the “sharing” of opinion as if it’s fact influences how people pay attention to, process, and remember information presented to them during trial. Continue reading

A Simple Exercise for Effective Theme Development

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By Thomas M. O’Toole, Ph.D.

Libraries have shelves and shelves of books and articles full of clever tricks and tips for developing effective case theories and themes. Some are gimmicks. Some do not come close to accomplishing what they promise. I recall hearing one story about placing a bunch of case-related words in a jar and randomly picking them out. I have seen exercises that reminded me of the old Mad Libs books from my childhood years. One of the dangers in our profession is that the givers of advice can get a little too cute or “gimmicky” in their attempts to set themselves apart from others.

In my experience, the most important exercise for effective theme development is also one of the most simple, elementary, and non-gimmicky exercises out there: systematically listing out the case weaknesses and strengths. In case strategy sessions with my clients, we post those large 3M sheets up on the wall with one or two sheets a piece devoted to the weaknesses and strengths. We start with the depressing part and focus solely on the case weaknesses and vulnerabilities. Once we have listed off every weakness or vulnerability we can think of, we change gears and do the same for the case strengths. Having the list within visual reference is extremely helpful as we move into the theme development portion of the section.

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A Look at “Outside the Box” Trial Practices Endorsed by Courts, but Under-Utilized by Attorneys

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By Thomas M. O’Toole, Ph.D.

In 2007, the American Bar Association (ABA) released its updated Civil Trial Practice Standards. The ABA described the standards as an attempt to “to standardize and promote the use of these innovative trial techniques.” These standards contain recommendations for what many attorneys might describe as “cutting edge” trial procedures. Most important, these recommended trial procedures potentially provide attorneys with critical presentation opportunities to exert control over the trier-of-fact’s perception of the case and the key issues in dispute.

Yet, few attorneys are aware of the standards and express surprise at the suggestion that judges might allow any of the recommended trial procedures. I am not sure whether it is a product of the ABA’s failure to bring sufficient attention to them, attorneys’ general inattentiveness to trial issues not born out of case law, or a face-value rejection of anything that seems “outlandish.” Regardless of the reason, it is time for attorneys to start paying closer attention since the use of the recommended procedures may provide their clients a strategic advantage at trial. Continue reading