This past Friday, I conducted our first ever all-day mock jury selection workshop in Seattle. Ten attorneys spent the day conducting voir dire and picking a jury to deliberate on the product liability fact pattern we put together ahead of time. Then the mock jurors actually deliberated so we could see how well the attorneys did in voir dire and their use of peremptory strikes. We tried to match everything we could to the actual jury selection process used by our local court. The attorneys had to come up with the right questions to ask, get up and ask them effectively to the large group of mock jurors, and then track that information, along with all of the answers provided during the other attorneys’ voir dire. The mock jurors filled out individual feedback forms and also participated in a group interview where they provided their thoughts about the mock voir dire that had occurred.
It made for a fun, interesting, and insightful day. While the mock jurors had a lot to say, there were some common threads throughout their feedback that attorneys should carefully consider when drafting their own voir dire. Here are three key observations from the day: Continue reading →
Sadly, research on cultural changes in America over the past few decades show that we have become more of a narcissistic culture than ever before. Jean Twenge, professor of psychology at San Diego State University, wrote the following in an article in Time magazine:
“Here’s the cold, hard data: The incidence of narcissistic personality disorder is nearly three times as high for people in their 20s as for the generation that’s now 65 or older, according to the National Institutes of Health; 58% more college students scored higher on a narcissism scale in 2009 than in 1982. Millennials got so many participation trophies growing up that a recent study showed that 40% believe they should be promoted every two years, regardless of performance. They are fame-obsessed: three times as many middle school girls want to grow up to be a personal assistant to a famous person as want to be a Senator, according to a 2007 survey; four times as many would pick the assistant job over CEO of a major corporation. They’re so convinced of their own greatness that the National Study of Youth and Religion found the guiding morality of 60% of millennials in any situation is that they’ll just be able to feel what’s right. Their development is stunted: more people ages 18 to 29 live with their parents than with a spouse, according to the 2012 Clark University Poll of Emerging Adults. And they are lazy. In 1992, the nonprofit Families and Work Institute reported that 80% of people under 23 wanted to one day have a job with greater responsibility; 10 years later, only 60% did.” Continue reading →
One of the often-overlooked features of the social media revolution is how it has changed the consumer/product dynamic. In this era of Facebook, Twitter, YouTube, and the long list of other social media sites, we are no longer the consumers; we are the product. It is our information and attention that drives profit in these industries. Companies like Facebook observe our online conduct and sell that data to other companies. Consequently, incredible attention in recent years has focused on how to keep users engaged in information consumption, which is what we do when we visit these technology platforms. Continue reading →
Finding the little fact that changes the case narrative can feel like finding a needle in a haystack at times, which is why it is always good to have a fresh pair of eyes.
By Thomas M. O’Toole, Ph.D.
Some of the best case strategies that we have developed with our clients over the years resulted in the other side having to defend something at trial that they never realized they would have to defend…something they took for granted. This is a strategy I learned during my college debate career (yes, I was a college debate nerd…but you would be surprised how many of your peers in your industry were as well). In my days of college debate, one of the most effective strategies was something called a plan-inclusive counterplan, or a “PIC” for short. The idea was that after the first (affirmative) team made their argument to start the round, the other team agreed with everything that side said except for one small, but incredibly important detail, something they never realized they might have to defend…something they took for granted. Continue reading →
The critical takeaway from any meaningful discussion about primacy theory and its role in persuading jurors is often the one that is least discussed. Those who tout the importance of primacy theory often talk about priming the jurors to achieve victory, but research shows the real takeaway should be to avoid the early mistakes that cost you the trial. In short, you cannot win your case in jury selection or opening, but you can lose it there.
Everybody knows first impressions are important, but some research shows that negative first impressions are much more powerful than neutral or positive first impressions. This is called the negativity bias and it has been investigated extensively by academic researchers. Specifically, negativity bias recognizes that negative experiences or perceptions have a greater effect on one’s psychological state than neutral or positive experiences. Continue reading →
Over the past few months, I’ve celebrated my 40thbirthday, my 15thyear in the jury consulting industry, and the 5-year anniversary of Sound Jury Consulting. In short, I’m getting older, and as we grow older, the world around us changes. One of the more interesting changes in the world of juries is the increasing number of millennials serving as jurors. Recently, I looked at the venire information from 18 trials in which I picked a jury in King County, Washington (Seattle) over the past 3 years. The sample size was large — over a 1,000 potential jurors. Nearly all of these cases were set to last two or more weeks. Of the 1,000+ individuals who showed up for jury duty, 31% were millennials (i.e. 1 in every 3 people showing up for jury duty in King County is a millennial). Continue reading →
An important lesson I have learned from observing jurors’ decision-making in mock trials is that jurors sometimes dislike strategies that nevertheless are quite effective. They may not like what they see, yet they are still persuaded by it. These moments can be tough to digest. Besides the gut-check, it is difficult to ignore the fact that several mock jurors are criticizing something you did. However, research has shown over and over again that persuasion does not always happen at a conscious level. In other words, what jurors verbally express about something does not necessarily reflect its actual effectiveness. Continue reading →
Last year, famed actor Johnny Depp filed a lawsuit against his management company for professional negligence, breach of fiduciary duty, fraud, and unjust enrichment among other things, essentially claiming that his management company, TMG, stole a significant amount of money from him. According to news reports, the case is expected to go to trial this coming August.
Sadly, the story of a management team ripping off its successful celebrity client has become all too common. We have consulted on a variety of these cases throughout the years, involving television and movie actors, famous musicians, and celebrity athletes. Our research has shown that these cases can be difficult for the celebrity victims, but there are significant opportunities to overcome many of the common hurdles. Continue reading →
Lately I’ve been following the debate about how the media should cover Trump’s statements – whether via Tweet, rally, official statement, or press “conference.” Much of the debate comes down to how to cover what he says without reinforcing the “incorrectness” of the statements. I wrote about Trump’s ability to control the narrative when he was campaigning in the GOP primary. What was true then, and now, is that the mainstream media hasn’t learned how to regain control of the narrative. Too much of the message is a nuanced attack on the “truthfulness” of the statement, with no equally compelling articulation of the what’s really happening. Trump has learned there is power in repetition, not just his, but the media’s. Repetition is powerful (as my colleague Tom wrote about in this blog), but it becomes even more powerful if you can get others to repeat your message.
George Lakoff, a professor and author – and Trump critic, wrote recently that, “Trump knows the press has a strong instinct to repeat his most outrageous claims, and this allows him to put the press to work as a marketing agency for his ideas. His lies reach millions of people through constant repetition in the press and social media.” He goes on, “Language works by activating brain structures called ‘frame-circuits’ used to understand language. They get stronger when we hear the activating language. Enough repetition can make them permanent, changing how we view the world.” And, here’s the heart of the message: “Even negating a frame-circuit activates and strengthens it…” Continue reading →
The “me too” movement has become one of the most defining issues in American culture over the last year. We have seen a variety of celebrities and public figures lose their jobs, and the media coverage has been extensive. The movement itself seeks to raise awareness, increase dialogue, and change the way many people think about issues related to sexual harassment and abuse.
In the world of litigation, a common area where sexual harassment claims arise is in employment litigation, but I have seen little to no research into how the “me too” movement has influenced the way jurors think about and react to sexual harassment claims in employment lawsuits. Consequently, we decided to conduct a national survey to examine this issue. Some of the data came as no surprise, while other data points highlighted some concerns about the movement’s implications for the workplace. Respondents were evenly balanced along political lines, almost evenly divided between “conservatives” and “liberals,” with a large number of “moderates” as well. Continue reading →