Tag Archives: litigation

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

The Power of Embracing Bad Facts

By Jill D. Schmid, Ph.D.

On a recent episode of “All In,” Chris Hayes was discussing one possible approach the Trump team could take in regards to the Stormy Daniels mess. Similar to the approach John Edwards took in his lawsuit involving some of the same issues, the strategy is essentially go for broke by embracing and re-framing the “bad” behavior – “Sure I did it, but it wasn’t illegal.”

For Edwards, he stated it this way: “There’s no question that I’ve done wrong, and I take full responsibility for having done wrong. I will regret for the rest of my life the pain and harm that I’ve caused to others. But I did not break the law, and I never ever thought I was breaking the law.” Continue reading

6 Common Reasons Why Defense Attorneys Lose Cases

Depressed tired businessman with hands on head

By Thomas M. O’Toole, Ph.D.

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

Who Are The Leaders During Jury Deliberations?

leadership

By Thomas M. O’Toole, Ph.D.

If you follow my blogs and publications, you know that one of my common phrases is, “a verdict is the product of what jurors choose to talk about during deliberations.” This is a critical point to consider during your case strategy development process. However, we can simplify this statement even more within the context of jury selection to something along the lines of, “a verdict is the product of who does the talking in deliberations.” Continue reading

Shifting the Perspective of the Case Theory to Present the Strongest Story

Perspective

By Thomas M. O’Toole, Ph.D.

Every successful strategy development session I have conducted with clients culminated in an “a-ha” moment, where we collectively came to some sort of realization about the case…a moment of clarity you might say…that fundamentally changed the way we presented the case at trial. These are the moments strategists live for and they are the difference makers when it comes to strategy development. The vast majority of these moments tend to result in a perspective shift for the case theory and story. In other words, the realizations usually result in telling the story from a different perspective within the confines of the case. These sort of perspective shifts can be devastating for an opponent. Perspective shifts can undermine or eliminate the offense for the other side and narrow the case in a manner that makes it difficult for the other side to prevail.

One of my favorite examples of the perspective shift in lawsuits came from attorney Mike Lewis, who was the main architect of the lawsuits brought by the States against Big Tobacco. Lewis worked for the plaintiffs in those cases. His strategy was a brilliant example of an effective perspective shift. Lewis was frustrated with the poor success rate plaintiffs had against Big Tobacco. While there was strong evidence about what Big Tobacco knew and hid from the public, Big Tobacco had a simple and powerful theme: personal choice. In other words, Big Tobacco had prevailed in so many cases because it would simply argue that the plaintiff made the choice to become a smoker. This created a simple and powerful focal points for jurors by drawing in the element of personal responsibility. This theme resonated with jurors across the country and led to low success rates for plaintiffs. 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).
Continue reading

Effective Strategy Development is About Case Focus

focus
By Thomas M. O’Toole, Ph.D.

“A verdict is a product of what jurors choose to focus on.” This mantra has been drilled into my head since my early days of working on my doctorate in Legal Communication and Psychology. The extraordinary simplicity of the statement causes it to teeter on the brink of cliché, but as my favorite author David Foster Wallace once said, “the most obvious, important realities are often the ones that are hardest to see and talk about.” Clichés are clichés for a reason: they speak to simple truths. Sometimes, however, these simple truths are so simple that they are easy to ignore, but to steal another line from Wallace, I’d ask you to “bracket for just a few minutes your skepticism about the value of the totally obvious.”

Jurors’ focus is zero-sum. If jurors are focused on one thing, they are not focused on something else. This is critical once you consider the research that suggest jurors remember as little as 10% of what they heard over the course of trial by the time they reach deliberations. Any given case has hundreds or thousands of pieces of information associated with it. This is true of even the simplest cases. It may not feel that way to the attorneys, but that is because the attorneys have already determined what he or she believes is important about the case (i.e. he or she has already established a focus). Consequently, many facts and a lot of testimony will be forgotten or ultimately have no impact on deliberations. Focus serves as the gatekeeper for what is considered important and unimportant, which plays a critical role in what is remembered and discussed during deliberations. Continue reading