Tag Archives: juries

Do You Know What Question Your Jurors are Really Answering in Deliberations?


By Thomas M. O’Toole, Ph.D.

In his 2011 book Thinking Fast and Slow, famed psychologist and Nobel Prize winner Daniel Kahneman wrote this in his effort to explain the essence of intuitive heuristics: “When faced with a difficult question, we often answer an easier one instead, usually without noticing the substitution.”

While the fundamental concept in this quote is not particularly ground-breaking (at least in today’s world of psychological research), Kahneman’s phrasing eloquently hammers home a critical point for attorneys and how they think about their cases. Continue reading

The Sniper Defense Episode 12 – Crafting Effective Opening Statements

In this episode of The Sniper Defense, Thomas M. O’Toole, Ph.D. discusses practical tips for crafting effective opening statements.

The Sniper Defense Episode 10 – 10 Common Mistakes that Lead to Losses

In this episode of The Sniper Defense, Tom discusses the 10 common mistakes made by defense attorneys that cause them to lose at trial.

The Sniper Defense Episode 9 – Cross Examination Strategy

In this episode of The Sniper Defense, Tom discusses practical strategies for defense attorneys to consider as they try to make the most of their cross examination opportunities during the plaintiff’s case-in-chief.

The Sniper Defense Episode 8 – Reptile and Its Implications for Defense Strategy

In episode 8 of The Sniper Defense, podcast playbook for defense attorney, jury expert Thomas M. O’Toole, Ph.D. discusses the popular plaintiff strategy Reptile and its implications for defense strategy throughout discovery and trial.

“Getting Out the Vote” in Deliberations

Voting booths at Hermosa Beach City Hall during California Primary

By Jill D. Schmid, Ph.D.

“Voter turnout was not as high as I had wanted” – Sanders
“Trump takes Upstate as voter turnout exceeds expectations.”
“Cruz has a real shot of winning…but only if turnout doesn’t exceed the record in 2012…”

You can’t turn on the TV without hearing some kind of statement about voter turnout – some candidates want it, while others hope it stays low. You’re either a candidate who is hoping you can motivate those who are not regular participants in the political process to come out and vote or you are hoping that apathy reigns and only the established base shows up. While it might be politically advantageous for a few candidates to try to suppress the vote, generally, the best strategy is to not only engage your base, but to also do everything possible to motivate the wider voting public to get out and act.

The same is true of your jury. While you can hope that there might be a few on the panel you consider your “base” (i.e. those who have experiences and attitudes that favor your view of the case), more likely you have a group of “undecideds” and you are going to have to do whatever you can to engage and motivate them to not only support your position, but to actively and persuasively participate in deliberations. Think of it this way: there might be people who believe, “Hmmm, that Bernie Sanders seems like he’d be a great president.” Or “Never thought Trump could be President, but that makes sense!” However, if they sit at home and do not act on their belief, then these candidates cannot win. If you have a juror who was swayed to your point of view during the trial, but during deliberations sits back and lets opposing jurors who are more passionate lead the charge, then your efforts are all for naught.
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The Sniper Defense Episode 5 – An Effective Process for Developing Defense Strategies

In this episode of The Sniper Defense, Podcast Playbook for Defense Attorneys, Thomas O’Toole, Ph.D. discusses a process that defense attorneys can use to develop effective defense strategies and themes.

5 Reasons Defense Attorneys Should Not Worry About The Reptile Strategy

Silhouette of dinosaur

By Thomas M. O’Toole, Ph.D.

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

The Sniper Defense Episode 4 – Three Factors that Drive Damages

In episode 4 of The Sniper Defense – Podcast Playbook for Defense Attorneys, jury expert Thomas M. O’Toole, Ph.D. discusses the core factors that influence jurors’ motivation to award or not award damages in civil cases. Each factor is discussed along with mitigating factors.