Tag Archives: jurors

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.

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

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.

The Sniper Defense Episode 7 – Common Personality Types in Jury Deliberations

After a brief hiatus, The Sniper Defense podcast is back with an all new episode. In this episode, Thomas M. O’Toole, Ph.D. discusses the common personality and interaction types that emerge during jury deliberations and how each can impact the final verdict.

5 Ways Defense Attorneys Fail to Adequately Prepare Their Key Witnesses

Defense witness
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

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

6 Common Reasons Why Defense Attorneys Lose Cases

Depressed tired businessman with hands on head

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

The Sniper Defense 003 – The Podcast Playbook for Defense Attorneys

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.