Tag Archives: lawsuit

How Johnny Depp Can Sell Jurors on Fiduciary Duty in His Lawsuit Against TMG

By Thomas M. O’Toole, Ph.D.

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

Flags, Focus, and the Importance of Shifting Jurors’ Attention to Favorable Messaging

By Jill D. Schmid, Ph.D.

When Colin Kaepernick first took a knee in 2016 during the National Anthem to protest police brutality against African-Americans, the controversy was almost immediate.  The why he was doing it didn’t matter much then, and it doesn’t seem to matter much now. Instead, the protest became about the flag, the military, or even Donald Trump. One survey in October of 2017 showed that while 57% of the respondents checked that “protesting against police violence” was “one” reason for the protests, respondents also checked other reasons: Donald Trump (26%), not sure (18%), something else (20%) and the flag (14%).

This morning, as I was watching yet another story about the “Flag protest,” I wondered if support and/or understanding of the protest would be different if the label was different. While changing the label might help (labeling it what the protest is really about, e.g., “Police Brutality Protest”), what seems to have happened with this protest is that the focus became the flag and anthem as opposed to police brutality and other injustices and inequalities in the African-American community. In other words, the manner over-shadowed the message – the focus was on the protest itself and not the reason for the protest. Continue reading

Litigating Sexual Harassment Claims in the Era of “Me Too”

By Thomas M. O’Toole, Ph.D.

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

Battling Confirmation Bias and First Impressions in Litigation

By Thomas M. O’Toole, Ph.D.

Confirmation bias refers to when people accept or reject evidence based upon what they want to believe as opposed to basing it on the actual merits of the evidence. In some ways, it is a psychological survival mechanism tied to our beliefs about how the world works. Challenges to these beliefs can cause a great deal of chaos and stress, so our brains are, essentially, pre-programmed to seek out evidence that reinforces those beliefs, while minimizing, explaining away, or outright rejecting evidence that challenges them. In fact, this explains the siloed media we have today where people tend to pick which news channels to watch based upon their political affiliation.

For lawyers, confirmation bias can be a significant problem at trial, especially when the first impressions favor the other party. As Nobel prize-winning psychologist Daniel Kahneman notes, “The sequence in which we observe characteristics of a person is often determined by chance. Sequence matters, however, because the halo effect increases the weight of first impressions, sometimes to the point that subsequent information is mostly wasted.” In other words, first impressions at trial often shape how jurors perceive the subsequent evidence and testimony at trial. A poor first impression of the defendant will likely lead jurors to place greater focus and emphasis on evidence and testimony that reinforces the negative view of the defendant and vice versa. Continue reading

Dissecting the “Broken Rule” Strategy Used by Plaintiffs

By Thomas M. O’Toole, Ph.D.

One of the most popular strategies used and advocated by many plaintiff’s attorneys across the country is the “broken rule” strategy. The theory is that the most important strategy for any plaintiff is to establish a clear rule up front, and then prove that the defendant broke that rule. Some of the popularity of this theory comes from Reptile, written by David Ball and Don Keenan.

As I’ve written before, there are a variety of significant problems and shortcomings associated with the Reptile strategy, one of which is that the “science” that serves as the foundation for the theory has largely been disproven. However, just like some people still believe vaccinations lead to autism, many attorneys have brushed aside the problems with the science behind the Reptile strategy. So let’s set the science discussion to the side and take a closer look at the “broken rule” strategy.
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5 Common Ways Attorneys Waste Precious Voir Dire Time

Common ways attorneys waste time in voir dire.

Common ways attorneys waste time in voir dire.

By Thomas M. O’Toole, Ph.D.

Recently, I picked a jury in the Pacific Northwest where the judge provided the attorneys for each side limited time for attorney-conducted voir dire (20 minutes each). While the time allocations for voir dire vary from case to case and from judge to judge, most jury selections involve some sort of time limitations along these lines. In other words, in many case, attorneys probably need more time than they actually receive in order to conduct the kind of jury selection that they would prefer. This has important implications because it means that every choice an attorney makes in his or her voir dire is a trade-off. If an attorney spends time focused on one topic, it takes time away from another topic. Consequently, attorneys are put in the position of having to make some tough choices about how to spend their time.
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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.

Three Quick Lessons from Netflix’s Making of a Murderer

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By Thomas M. O’Toole, Ph.D.

For courtroom-drama lovers, Netflix’s Making of a Murderer is a must-see. I say this knowing that the number of “must-see” shows these days goes far beyond the available free time of just about any trial attorney. Whether it’s Breaking Bad, Homeland, Last Man on Earth or countless others, everyone seems to have a show at the top of their list that I haven’t had the chance to see. I’m just not a binge watcher, so I’m always left behind.

Making of a Murderer is the exception. I can’t recall another show in recent memory that led me to question just how much sleep I really needed as I stayed up late watching it. It is a totally riveting documentary series about Steve Avery, a Wisconsin man who spent 18 years in prison for a crime he didn’t commit, sued the County police that put him there for $36M, but found himself accused of being at the center of a heinous crime before the lawsuit could develop past the stages of the shocking depositions given by the key police officers. Was he framed? Did he commit the crime? Trying to answer these questions is like riding that roller coaster that’s just a little bit scarier than what you’re used to riding. Continue reading

Sound Jury Consulting’s Deposition Training Video for Witnesses

By Thomas M. O’Toole, Ph.D.

After receiving several requests from clients, we recently put together this 7-minute video for attorneys to share with key witnesses in their case before their depositions. It is always preferable for attorneys to meet with their key witnesses in advance of the depositions to spend time practicing the testimony. This helps familiarize witnesses with the common pitfalls of a deposition, can increase their comfort level, and give them an opportunity to fail in a mock setting so that they can succeed in the actual deposition. However, these practice sessions are not always possible. Consequently, we put this video together as a free tool for attorneys to send to their witnesses.

The goal of the video is to provide witnesses with the essentials for performing well in a deposition. While the video is certainly not comprehensive, the core principles and rules that are discussed will help witnesses navigate most of the hurdles they will face.

We have also posted the video on YouTube at: https://www.youtube.com/watch?v=ZhsVBRQezz0

For more information on effectively preparing witnesses for depositions, check out the publications section of our website.

The Effectiveness of the “Referendum” Strategy for Plaintiffs

Punishment

By Thomas M. O’Toole, Ph.D.

Plaintiffs’ attorneys approach case development and presentation in a multitude of both predictable and unpredictable ways, but none is more dangerous to defendants than what I call the “referendum” strategy. In short, the “referendum” strategy is a clever strategy that, when successful, allows plaintiffs to sidestep their burden of proof under the law and instead, create what is essentially a reverse burden of proof for the defense. It shifts the focus of the case to the defense and forces defendants to cope with a barrage of seemingly-disorganized attacks. In reality, what can sometimes seem like disorganization and foolish decision-making by a plaintiff’s attorney is often a very calculated attack. The results can be devastating. The “referendum” strategy is often the source of headline-grabbing or record-breaking damage awards.
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