Tag Archives: facts

5 Simple & Essential Exercises for Defense Theme & Story Development


By Thomas M. O’Toole, Ph.D.

“Themes” and “story” have been the buzzwords of the jury consulting industry for nearly forty years. Judging from the vast majority of calls that I receive, these two items are what most defense attorneys believe are the missing pieces in their efforts to convince the jury to find for the defense. It can be challenging to develop a theme or a story. It sounds so simple, yet it can be unclear about how you go about developing them. Fortunately, there are experts like me who can assist defense attorneys with this process. However, for a variety of reasons, defense attorneys do not always have the ability to retain a jury consultant. With that in mind, this blog identifies five simple, but essential exercises for defense attorneys who are trying to develop powerful themes and stories for their case.

Seem a little silly? While no attorney has ever said something like this to me, from time to time, I have sensed that a client initially thought such exercises might be silly. Any hint of this quickly fades as we get into the exercise in our strategy sessions. Defense attorneys are often surprised by how helpful these simple and “silly” exercises help them in the strategy development process. Continue reading

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

Roger Goodell, the NFL, and the Importance of Central Facts

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By Thomas M. O’Toole, Ph.D.

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

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.

Continue reading