Tag Archives: jury selection

The Sniper Defense 002 – The Podcast Playbook for Defense Attorneys

In episode two of The Sniper Defense, Tom discusses how to craft an effective jury selection strategy.

It’s the Kicker’s Fault: Placing Blame for Litigation Losses

blairwalshBy Jill D. Schmid, Ph.D.

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

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

The Guide to Pre-Trial Jury Selection Discussions with Your Judge

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By Thomas M. O’Toole, Ph.D.

Jury selection is a critical part of trial. Varying theories of attorneys’ ability to win or lose a case in voir dire run rampant among lawyers and their clients, but discussion of those theories are for another day. This post focuses on the importance of communicating with the trial judge in advance about the process of jury selection and identifies key areas of inquiries for attorneys in that process.

Unfortunately, with so much going on in the weeks leading up to trial, focus on jury selection can fall by the wayside. In some instances, the important questions about the process are simply not asked. In other instances, attorneys make assumptions about what a judge will or will not do during jury selection, sometimes “informed” by a colleague who picked a jury in front of that particular judge in the past. Continue reading

Are Attorneys More Likely to Care About Demographics?

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By Thomas M. O’Toole, Ph.D.

Who do I want on my jury? Men or women? Are women too emotional for this case? Are African-Americans going to be a problem for my predominantly white corporate client? I’m pretty sure the woman in the front row is a lesbian…should I be concerned?  Should I have one of the female attorneys from our firm sit at the table during trial with us?

These are all very common questions that I hear from attorneys. Our society has always been strangely preoccupied with demographics. National news media are constantly flashing polls broken down by men, women, whites, African-Americans, Hispanics, etc. At times, it feels like it’s a national pastime to lump all women or African Americans together and draw hasty conclusions about “them.” As someone who devoted a lot of time to studying critical theory in college and graduate school, I wince every time the topic comes up. But that discussion is for another time. In fact, I tend to believe this rush to overgeneralize along the borders of demographics comes from a different place when we are talking about attorneys. Continue reading