One of the most important sayings in our industry is that a verdict is a product of what jurors choose to talk about and focus on most during deliberations. Focus in deliberations is zero sum. If jurors are talking about one thing, they are not talking about something else. Every case has several different focal points, and those focal points tell different stories about the case. Think about the example of the film Rudy about Rudy Ruttiger, the kid who desperately wanted to play football at Notre Dame. We could focus on the game itself, which tells a different story because of the fact that the game he played in was largely a meaningless game and the game was already over in terms of score by the time he entered the game. If we focus on the game, few powerful values emerge and it’s a story that no one would want to watch a movie about.
But if we focus on Rudy and his story of struggle, we get a very different kind of story. We get an underdog we can root for and a story of triumph that is hard to forget. In both of these situations, the facts are the same, but what we focus on to make sense of those facts changes.
This is why it is so important to think about your focal point before you do anything else in your case. What is it you want jurors talking about most in deliberations? What focal point creates the most momentum for you in deliberations? Once you answer these questions, you can develop your themes and story. Continue reading →
Next month, the largest jury trial to date against opioid manufacturers, distributers, and sellers will take place in northeastern Ohio. The trial will involve the first case among the consolidated lawsuits brought by about approximately two thousand cities, counties, tribes, and others. In light of the recent decision in Oklahoma, in which a judge ordered Johnson & Johnson to pay $572M to the state, it is easy to understand why the stakes are significant.
These cases are particularly interesting because of how they mirror the tobacco lawsuits filed by states years ago. The brilliant tactic by the plaintiff attorneys in the tobacco litigation was to make the states the plaintiffs rather than the individual smokers. Before that, when the plaintiffs were individual smokers, it was too easy for the tobacco companies to point the finger at the user and say that it was their choice to smoke. Those kinds of appeals to personal responsibility worked when the plaintiff was an individual user, but having the states as the plaintiffs significantly limited the tobacco companies’ ability to do that. It was hard to place any critical focus on the states, which is so important in jury trials. It is no coincidence that the same has happened here. Continue reading →
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 →
We quickly learned that Richard was a horrible juror for us in the trucking accident case we were working on. We had decent evidence that the plaintiff had fallen asleep behind the wheel and veered into our truck, but Richard wasn’t having it. As soon as this issue came up in deliberations, he jumped in, stating, “I don’t care what he says. We have all been on the road with truck drivers and they routinely fly over into the other lane without any notice at all.” This quote was so powerful because what Richard was really saying was, I don’t care what the evidence in this case is because I’m going to go with my own personal experiences instead. Fortunately, this was only a mock trial, but it highlights an important reality about jury decision-making: it is an ego-centric process, and the research shows it is only getting worse with the emergence of the millennial juror. 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 →
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 →
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 →
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 →
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. Continue reading →
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. Continue reading →