Tag Archives: lawyers

A Practical Guide for Developing Jury Selection Strategies

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By Thomas M. O’Toole, Ph.D.

I’m proud to announce that Jury Selection Handbook: The Nuts and Bolts of Effective Jury Selection, a book that I co-wrote with Ronald Clark from Seattle University Law School, was published this month by Carolina Academic Press and will be available soon on Amazon and at a variety of other online retailers.

Seattle University Law School alum will tell you that Ron Clark is an outstanding professor who is a master at dissecting complex subjects for his students. This book is an extension of his approach. Ron and I dissect the jury selection process, break it down into all of its various steps, and discuss the kinds of strategic choices that attorneys have to make at each of those steps. Some of those choices may be obvious at times, but many others are choices that a lot of attorneys may not realize are available to them. Continue reading

“Tokenism” does not equal “Diversity”

Lawyer defending client with jury in court

By Jill D. Schmid, Ph.D.

A tweet from Bloomberg Law caught my eye: “#Gender gap persists Among Lead Trial Counsel.” The tweet was a reference to a recently released report titled, “First Chairs at Trial: More Women Need Seats at the Table.” The report was prepared by the ABA’s Commission on Women in the Profession and the American Bar Foundation (authors Stephanie Scharf and Roberta Liebenberg). The report is an excellent analysis of the lack of women in lead trial roles and what can be done about it. I urge anyone involved in the legal profession –law schools, corporations, firms – to read the report and look for ways to encourage diversity within trial teams.

While gender (as well as racial) diversity is optimal for a number of reasons, I hesitate to make this kind of statement without a quick follow-up: too often people think that means that the trial team simply needs to “add a woman.” That is absolutely not the answer – adding a “token” woman to the team to “appeal to women on the jury,” does not work. I would say the same thing if someone asked, “Do we need a man?” or “Do we need a minority?” or “Do we need a handicapped person?” I add that last one since we had a client ask us once if they should find a disabled expert since the plaintiff had a disabled expert. For all of these, the answer is “no.” (To be fair, I’d tell someone in a deposition to be quite careful using an unequivocal no….there can be exceptions. So go ahead and ask the question, but the answer is likely: “Still no.”) Continue reading

Thinking About The Dynamic of Deliberations

A Jury deliberation room in a USA Courthouse

By Thomas M. O’Toole, Ph.D.

Happy New Year to all of the readers out there! I hope 2015 brings everyone the best in their litigation practices. One of my New Year’s resolutions is to provide more frequent updates to the blog in an effort to continue providing reliable and practical advice for implementing strategy over the course of a lawsuit.

One critical issue that rarely receives the attention it deserves is the dynamic of jury deliberations. Consideration of the dynamic should significantly influence decisions about strategy development, yet this rarely occurs. I think sometimes the problem is that attorneys tend to focus on persuasion as their objective when it comes to the jury. While this is certainly an important part of the process, it is still only one part of the process. Persuaded jurors do not necessarily result in favorable verdicts. As ridiculous as this may sound, it is true and I have seen it happen frequently in the hundreds of mock juries I have observed over the years. While unanimous verdicts happen, they are not necessarily common. There is usually some sort of division amongst the jurors when deliberations begin (even when they ultimately reach an unanimous verdict).
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Jury Duty is So Much More Boring Than You Realize (And How It Impacts Your Presentation Strategy)

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By Thomas M. O’Toole, Ph.D.

It finally happened this past week. I was called for jury duty. I have spent my entire adult life studying jury behavior and decision-making. I spent years in graduate school and wrote a dissertation on juror sense-making to receive my Ph.D. in legal communication and psychology. I’ve read thousands of studies on juries. I’ve worked in the field for over a decade. I’ve watched hundreds of mock juries deliberate. Yet, I had never been called for jury duty.

There were many surprising things about the experience, but most surprising were the distractions and the boredom. I know jury duty can make life difficult for jurors. I know jurors sit around and wait a lot. I know the process can be quite boring. Yet, before this experience, I had not appreciated the reality of it. 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

The Guide to Pre-Trial Jury Selection Discussions with Your Judge

attorney judge

By Thomas M. O’Toole, Ph.D.

Jury selection is a critical part of trial. Varying theories of attorneys’ ability to win or lose a case in voir dire run rampant among lawyers and their clients, but discussion of those theories are for another day. This post focuses on the importance of communicating with the trial judge in advance about the process of jury selection and identifies key areas of inquiries for attorneys in that process.

Unfortunately, with so much going on in the weeks leading up to trial, focus on jury selection can fall by the wayside. In some instances, the important questions about the process are simply not asked. In other instances, attorneys make assumptions about what a judge will or will not do during jury selection, sometimes “informed” by a colleague who picked a jury in front of that particular judge in the past. Continue reading