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.
By Thomas M. O’Toole, Ph.D.
Defense witnesses such as 30(b)(6) witnesses and key employees make or break the case. These witnesses serve a symbolic role that goes above and beyond the implications of the actual words that they say. Instead, they tell the jurors what kind of organization the defendant is. They serve as ambassadors for the defendant. If they are sloppy, disorganized, or come across as uncaring, the defendant will be perceived by the jury as sloppy, disorganized, or uncaring. In fact, the two most commonly discussed plaintiff strategies (Reptile and the referendum strategy) thrive on poor performances by key defense witnesses. The result is a frustrated jury that feels the need to “send a message” to the defendant that it needs to change the way it does business.
Fortunately, the solution is pretty simple: a witness prep session. Defense attorneys often have what they call “prep meetings” with their witnesses, but there are five common shortcomings of these sessions that undermine their effectiveness. Continue reading
In this episode of The Sniper Defense, Podcast Playbook for the Defense, jury expert Thomas M. O’Toole, Ph.D. discusses the ten key turning points in jury deliberations that influence the momentum for one party or another.
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
By Thomas M. O’Toole, Ph.D.
Each year in the United States, juries award billions of dollars in damages to plaintiffs. In 2014, a jury in Florida awarded $23.6 billion to a single plaintiff. There are two possible explanations for these extraordinary numbers. First, for a variety of reasons, defense attorneys are often forced to take unwinnable cases all the way to trial. In these situations, they do the best they can, but cannot avoid the inevitable.
The second explanation is that defense attorneys are failing in some way to adequately try their cases. This is not intended to give insult to defense attorneys. In fact, it’s an overdue acknowledgement of the overwhelming burden that is placed at their feet. While the typical plaintiff’s case has a natural story and appeal that insulates it from even the most unskilled plaintiff attorneys, convincing a judge and jury to embrace a defense theory requires a delicate dance down a path that is fraught with danger at every turn. Continue reading
In episode 3, I discuss the common psychological processes at play as jurors attempt to make sense of all of the information presented at trial, with particular focus on what this means for the development of an effective defense strategy.
As I sit here preparing myself for tomorrow’s Seahawk game (e.g., lighting the candles, saying the prayers, finding my lucky shirt), I find myself still in shock that we (I’m #12, so yes “we”) won that game. I would imagine there are some Minnesota fans that wouldn’t say we won, but rather they lost – lost because Walsh’s 27-yard field goal with seconds left in the game sailed left. While it’s easy to blame the last thing that happened for the loss (our win), that’s too simplistic and short-sighted. After all, there was Russell Wilson’s spectacular scramble and pass to Tyler Lockett after a botched snap that led to Seattle’s touchdown (the ONLY touchdown of the game). There was also Adrian Peterson’s fumble due to Kam Chancellor’s deft strip. Truth is Seattle won for a lot of reasons and, yes, luck was probably one of them.
Placing blame got me thinking about what we blame for litigation losses. Here’s just a few we’ve heard over the years: “Jury was confused/dumb/in over their heads/not interested (take your pick),” “Judge made bad rulings,” “Didn’t get the jury instruction we wanted,” “Their expert was better,” “Plaintiff was really likable,” “We ran out of time in closing.” But again, the truth is, cases are lost for a variety of reasons. Rarely, if ever, can it be blamed on one thing – and especially the last thing (closing, jury instructions, jurors in deliberation). While a “Keys to success in litigation” is really more of a book subject than a blog subject, we’ve narrowed it down to a few keys that are over-looked and/or undervalued (from a jury standpoint, not a legal standpoint) that all contribute to litigation losses. It is not just one of these things; it is all of these things (among many others) that should be considered while creating your game plan. Continue reading