Tag Archives: law

Big Words Don’t Make You Sound So Smart


By Thomas M. O’Toole, Ph.D.

Most attorneys understand the obvious and immediate downside to using big words at trial. A key component of effective persuasion is comprehension. Audiences need to understand what you are saying. This drives action. People act on things that are easy to understand and re-articulate. Consider the results of one study where researchers found that consumers are more likely to buy products that describe features with simple language than they are products that describe features using complex language.

In another study, researchers found that the fluency (ease with which it is pronounced) of a company name impacts whether or not people are willing to buy stock in that company. The authors note “fluently named stocks robustly outperformed stocks with disfluent names.” Continue reading

Lessons Learned from SJC’s Newest Consultant

lessons learned

By Jill D. Schmid, Ph.D.

Let me first say I’m thrilled to be joining my former colleague, Tom, at Sound Jury Consulting. Tom and I worked together for over eight years. We share the same fundamental beliefs about our profession and how we can work with attorneys and their clients in bringing their cases to the most favorable conclusions possible. I look forward to meeting those already working with Tom, and to working with many others who are looking for a trial consulting team and firm.

Since this is could be your introduction to me, I thought I’d use my first blog to summarize a critical takeaway and some observations I’ve garnered from being a trial consultant for over a decade and a communication professor for nearly the same amount of time. What I’ve learned is that this is not rocket science; I firmly believe many of the tried and true effective communication principles that have been with us for thousands of years still apply. People might want a new fancy name or brain research to prove it’s true, but all of that doesn’t diminish the fact that people pay attention to, process, understand, remember, and apply messages that: 1) Fit with their understanding of the way the world works (i.e., their world view), and 2) Hang together (they simply make sense when taken as a whole). Continue reading

Primed to Decide: How Impactful are Opening Statements?

My Cousin Vinny

By Thomas M. O’Toole, Ph.D.

Primacy and recency are, by far, the most popular theories of persuasion that arise in my discussions with attorneys. I have never heard an attorney mention “elaboration likelihood model,” but references to primacy and recency seem to come weekly at times. Primacy refers to the idea that what is presented most remains the most salient and, consequently, impactful for the audience. Recency is the opposite idea that an audience is most impacted by what it heard last.

Applied to a litigation setting, the primacy/recency debate translates to a popular debate about whether opening statements or closing arguments are more important. The traditional belief among lawyers (and in some respects, this author) is that opening statements are the most important part of trial. Many attorneys take primacy to an extreme, embracing a statistic that has been passed down through the ages that 70-90% of jurors make up their minds about the case after opening statements. In other words, these attorneys go as far as arguing that trial is essentially over after opening statements. Hans and Sweigart[1] offer a rich discussion of this belief in their analysis of civil jurors’ perceptions of attorneys, suggesting that this belief originated with a 1940 study[2] where researchers assessed liability judgments at eighteen different points in a mock trial and concluded that the vast majority of final verdicts were consistent with judgments made right after opening statements. Continue reading

Does That Sound Like Something You Might Be Interested In? The Dial Gimmick and Jury Research

DialsmithHandsBy Thomas M. O’Toole, Ph.D.

The weird house at the end of the street…everyone had one as a child. It was usually occupied by some odd person who kept to him or herself. It was always ripe for gossip amongst the neighborhood kids and even some of the adults. Didn’t someone die in that house? Was it murder? I heard the owner performs odd rituals in the basement every Tuesday night.

The unknown always produces some form of hysteria born out of intrigue, fear, hatred, or other emotions. It’s one of those defining characteristics of human psychology. It takes control out of our hands, which we generally do not like. Consequently, we are desperate to find certainty where it does not exist, with the strategies for doing so ranging from reasonable to ridiculous…anything that gives one a sense of control over things. Continue reading

The Federal Judge Who Dresses Up as Batman and Watches So You Think You Can Dance


by Thomas M. O’Toole, Ph.D.

Given the way many attorneys talk, I’ve always had this vision of our federal judges being bred in some special ivy league laboratory and raised on a special diet of Plato, Aristotle, Stephen Toulmin, Machiavelli, and others whose works are read only by those who accidentally get invited to dinner parties (i.e. “that guy”). I’ve always envision federal judges as the type who calmly walk away from a vending machine after their bag of chips get stuck in the E4 slot, experiencing no temptation to yell or show man’s physical superiority over machines. Then something amazing happened. A federal judge showed me a childhood picture of him in a Batman costume. Later in the conversation, he told me his wife and him watch So You Think You Can Dance (although, like me, his “watching” consists of sitting in the same room with his wife while it plays on the tele).

Then I read this blog (http://herculesandtheumpire.com/2013/06/20/top-ten-legal-writing-hints-when-the-audience-is-a-cranky-federal-trial-judge/) by Federal Judge Richard Kopf out of Nebraska. My mind bent and melted in ways it hasn’t since my freshman college dorm-mate once said, “hey, try this.” For starters, Judge Kopf talks about situations where he might want to “bitch-slap” counsel in “slow motion,” references Urban Dictionary, and discusses his temptation to refer to some trial attorneys as “retarded.”  Reading further into the comments section of the post, Judge Kopf notes, “federal judges make mistakes all the time.”  Continue reading

What the Zimmerman Trial Teaches us about Decision-Making in America


by Thomas M. O’Toole, Ph.D.

Zimmermania is a national debate I’ve worked hard to stay clear of. Our fine mass media pundits have wrapped it so tightly in divisive opinions, leaving no speculative stone unturned in the process, that there is little to add. However, one important takeaway about the general state of American decision-making seems to have gone largely unnoticed. Millions of Americans have readily formed strong opinions about this case, rendering their own personal verdicts, despite having little in the way of actual facts about it.

Some folks may have followed the media coverage of the trial more closely than others, but media coverage is hardly reliable (Really KTVU? You really thought the Asiana Airlines pilot name was Sum Ting Wong?). The fact is, none of the millions of folks who have flooded news media comments sections and message boards or huddled around the office water cooler were at the trial. They did not hear the actual charges that were brought, the jury instructions related to those charges, and the evidence and testimony presented by each side on those charges. But if there’s one thing we Americans can be proud of, it’s that we refuse to let ignorance get in our way. Sure, we could educate ourselves and dig through the complexities of the law and evidence in the Zimmerman trial, but it’s so much easier to read those sexy CNN headlines or watch a three-minute segment on the case. For me, it’s like watching the NBA. Watching a game is not nearly as enjoyable as listening to Charles Barkley rant a bunch of provocative, albeit incoherent at times, commentary over the game.  Continue reading

Up in the Air: Jurors’ Perspectives of the Government’s Lawsuit Blocking the Merger Between American Airlines and US Airways


By Thomas M. O’Toole, Ph.D.

The United States Justice Department and six states recently filed an antitrust lawsuit in federal court seeking to block a merger between American Airlines and US Airways. The Justice Department argues the merger would reduce competition and drive up costs for consumers, noting the deal would result in 80% of the air travel in America being controlled by only four carriers.

While several analysts suggest a trial is unlikely, this case raises some interesting questions about how to effectively defend against antitrust claims in front of a jury. Let’s look at the story structure put forth by the government and explore the ways in which the airlines can make inroads and motivate jurors to advocate for them in deliberations.  Continue reading