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 →
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.
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 →
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.
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. Continue reading →
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 →