Tag Archives: persuasion

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

Using Jury Instructions More Effectively in Closing Argument


By Thomas M. O’Toole, Ph.D.

One of the studies that I like to cite more than just about any is the old 3M study that showed that people remember only about 10% of what they are told three days after it is told to them. Apply this to a trial setting and the implication is that jurors will forget up to 90% of what they heard over the course of a trial by the time they reach the deliberation room. To put it a different way, by the time jurors reach the deliberation room, they are overwhelmed, do not remember the majority of what they just heard, and face the difficult task of having to sort through hundreds to thousands of exhibits, their largely disorganized notes, and a stack of jury instructions that can be difficult to decipher. Continue reading

The Value of Repetitive Question Structures in Direct and Cross Examination


By Thomas M. O’Toole, Ph.D.

I have previously written about how important repetition is to persuasion. I discussed how repetition increases retention, familiarity, and believability. In this post, I want to talk about one practical way of building repetition into your case presentation at trial. Continue reading

“Jury Nullification” is a Greater Threat than You Think


By Jill D. Schmid, Ph.D.

Sound Jury Consulting recently conducted a nationwide online survey in which we asked the following: If you were sitting as juror in a trial where your personal beliefs about the case were in conflict with the laws the judge told you to follow, how difficult do you believe it would be to set your personal beliefs aside and not let them influence your decision? 62% said it would be very or somewhat difficult. While the results highlight the importance of a sound jury de-selection strategy, they also speak to what many might call jury nullification.
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Dissecting the “Broken Rule” Strategy Used by Plaintiffs

By Thomas M. O’Toole, Ph.D.

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.
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Why Jurors Often Fail to Understand What’s Important…Even When It’s Obvious


By Thomas M. O’Toole, Ph.D.

Before you read any further, watch the above 1 minute and 41 second video, which will provide incredible insights into your trial presentation strategy as discussed below.

Did you pass or fail? As they tell you in the video, almost half of all of the people who watch this video (and have not seen it before) fail the test by not seeing the gorilla. Even more interesting, we learn that even those who have seen this kind of experiment before (and expect something odd to happen) failed to notice the second change, which was the color of the curtain in the background.

Your first reaction may have been that this is an interesting little party trick kind of experiment that you can forward along to your friends, but upon further glance, this experiment provides critical insights into what happens at trial as jurors listen to your case presentation. Describing this experiment, Nobel Prize winning psychologist Daniel Kahneman noted that “intense focusing on a task can make people effectively blind, even to stimuli that normally attract attention.” Continue reading

Repeating the Importance of Repeating


By Thomas M. O’Toole, Ph.D.

The value of repetition as a simple and practical strategy for persuasion at trial cannot be overstated. However, despite the fact that I repeatedly emphasize this point on repetition to clients at trial, the level of repetition is often insufficient. I have found that it is not uncommon for an attorney to believe that he or she is using repetitive language to make a point, but when reviewing transcripts, the use of this language is fairly limited. Saying something a couple of times over trial simply does not cut it. If a particular message is important, jurors need to hear it over and over again. In fact, the right amount of repetition usually exceeds attorneys’ comfort level, leaving attorneys feeling as if they are repeating arguments too much.

Sometimes, the repetition needs to be forced or creative. For example, sometimes it is important for attorneys to ask questions of witnesses that incorporate key language or facts even though the witness’s answer is not important. In other words, sometimes the question, and the repetition that is built into that direct or cross-examination question, is more important than the particular witness or that witness’s answer. In these moments, the sole purpose of asking the question is to give jurors an opportunity to hear it again. Continue reading

Four Fundamental Misconceptions About Mock Trials

Jury DeliberationBy Thomas M. O’Toole, Ph.D.

Mock trials are a popular tool for attorneys who want to learn how jurors will react to their cases. Mock trials have become so commonplace that some argue it is malpractice not to conduct one in a high-exposure matter. With the increased use of mock trials, there has been a corresponding increase in the number of misconceptions about the design and value of this type of jury research. Let’s take a look at four common misconceptions about mock trials. Continue reading

The Sniper Defense Episode 12 – Crafting Effective Opening Statements

In this episode of The Sniper Defense, Thomas M. O’Toole, Ph.D. discusses practical tips for crafting effective opening statements.

“Getting Out the Vote” in Deliberations

Voting booths at Hermosa Beach City Hall during California Primary

By Jill D. Schmid, Ph.D.

“Voter turnout was not as high as I had wanted” – Sanders
“Trump takes Upstate as voter turnout exceeds expectations.”
“Cruz has a real shot of winning…but only if turnout doesn’t exceed the record in 2012…”

You can’t turn on the TV without hearing some kind of statement about voter turnout – some candidates want it, while others hope it stays low. You’re either a candidate who is hoping you can motivate those who are not regular participants in the political process to come out and vote or you are hoping that apathy reigns and only the established base shows up. While it might be politically advantageous for a few candidates to try to suppress the vote, generally, the best strategy is to not only engage your base, but to also do everything possible to motivate the wider voting public to get out and act.

The same is true of your jury. While you can hope that there might be a few on the panel you consider your “base” (i.e. those who have experiences and attitudes that favor your view of the case), more likely you have a group of “undecideds” and you are going to have to do whatever you can to engage and motivate them to not only support your position, but to actively and persuasively participate in deliberations. Think of it this way: there might be people who believe, “Hmmm, that Bernie Sanders seems like he’d be a great president.” Or “Never thought Trump could be President, but that makes sense!” However, if they sit at home and do not act on their belief, then these candidates cannot win. If you have a juror who was swayed to your point of view during the trial, but during deliberations sits back and lets opposing jurors who are more passionate lead the charge, then your efforts are all for naught.
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