The “law of least effort” is an important principle for understanding jury decision-making. In short, if there are several ways of making sense of the evidence and testimony in a case, jurors will gravitate towards the one that is the least demanding for their brains. As Nobel-winning psychology Daniel Kahneman (who has spent his life studying human decision-making) states, “Laziness is built deep into our nature.”
In fact, research has consistently shown that we assign greater weight to information and ideas that are more easily accessible to us, regardless of whether that information or those ideas are accurate and reliable. It may be because the information or idea is familiar, easier to understand, makes more intuitive sense, or ties to something that is easier for our brain to access. 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 →
I had a very interesting experience recently on a case in New York. While we had worked with the client before, we had never worked with this particular group of attorneys. The stakes were significant and there were ongoing discussions about a potential mock trial. These discussions created an interesting dynamic where the client wanted to do a mock trial, but the client’s attorneys did not support the idea and questioned the value of such a project. Notably, the client, who we had worked with several times in the past, had never conducted a mock trial before, so while he was convinced that there was value to a mock trial, he could not necessarily articulate what the specific benefits of conducting one would be.
The end result was that the client made the decision to move forward despite his attorneys’ lack of interest. Afterwards, he was so impressed with the critical insights that we learned that the decision was made to conduct a second mock trial a month later in order to maximize the trial team’s intel for its strategy development and trial presentation decisions. Continue reading →
Many attorneys and academics love to debate when cases are won or lost. Some argue that cases are won or lost in jury selection. Others point to opening statements. Research has yet to offer a definitive answer, mainly because the answer is that it is a little bit of everything. However, cross-examination rarely gets mention in the debate. Cross-examination has long been the land of lost opportunities for attorneys, particularly defense attorneys. There is so much that can be accomplished in cross-examination, yet it rarely receives the necessary pre-planning that it requires. Sure, attorneys outline the key areas of questioning, but little attention is given to cross-examination in terms of the art of presentation to the jurors. As evidence of this, in all of the shadow juries I have conducted over my career, the most common complaint from shadow jurors each day after trial is that attorneys lacked organization and clarity in their cross-examinations. This left the shadow jurors struggling to understand not only what was actually relevant, but why it was relevant. This makes the information less memorable and less likely to exert influence in deliberations. Relevance is not always clear to jurors, even though it may feel painfully obvious to the attorneys who have spent months or years in the trenches of discovery working to understand every facet of the case. Consequently, attorneys need to give greater attention to the important role of cross-examination at trial. Here are five reasons a good cross-examination is better than a great direct-examination. Continue reading →
“Themes” and “story” have been the buzzwords of the jury consulting industry for nearly forty years. Judging from the vast majority of calls that I receive, these two items are what most defense attorneys believe are the missing pieces in their efforts to convince the jury to find for the defense. It can be challenging to develop a theme or a story. It sounds so simple, yet it can be unclear about how you go about developing them. Fortunately, there are experts like me who can assist defense attorneys with this process. However, for a variety of reasons, defense attorneys do not always have the ability to retain a jury consultant. With that in mind, this blog identifies five simple, but essential exercises for defense attorneys who are trying to develop powerful themes and stories for their case.
Seem a little silly? While no attorney has ever said something like this to me, from time to time, I have sensed that a client initially thought such exercises might be silly. Any hint of this quickly fades as we get into the exercise in our strategy sessions. Defense attorneys are often surprised by how helpful these simple and “silly” exercises help them in the strategy development process. Continue reading →
I’m a relatively new user of Facebook – turns out my protest against it wasn’t working as there are now over 1.25 billion users. I finally gave in and joined as I was told that people use it to share pictures of their kids, dogs, and vacations. While that is somewhat true, I’ve also found that people use it to “share” and “like” their political, religious, and moral views about every subject under the sun. Now, don’t get me wrong, I have no problem sharing my opinion, but typically I like to do it in a face-to-face setting where we can engage in a discussion of the issue and where people can tell me I’m full of “it” right to my face – no hiding behind a computer screen.
My dislike for Facebook has become more intense recently. I’ve learned in the past couple of months that I’m going to have to take a hiatus from it until the political season is over. I was thinking about the posts and the feedback to those posts when an attorney friend posted the picture above.
This got me thinking about what I do – and how social media and the “sharing” of opinion as if it’s fact influences how people pay attention to, process, and remember information presented to them during trial. Continue reading →
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 →