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 →
In episode 8 of The Sniper Defense, podcast playbook for defense attorney, jury expert Thomas M. O’Toole, Ph.D. discusses the popular plaintiff strategy Reptile and its implications for defense strategy throughout discovery and trial.
Reptile has become a popular topic of discussion for attorneys across the country, perhaps because folks like myself continue to write about it. Most of us have witnessed the fall-out, whether it be panicked pleas for feedback on defense forums or pre-trial motions to preclude “Reptilian” tactics. I’ve written extensively on defense strategies to counteract Reptile, but the more important question is whether or not defense attorneys should even worry about it in the first place.
If we focus on the science alone, this discussion quickly ends. Keenan and Ball claim to have derived their theory from the work of Paul MacLean, a neuroscientist who did most of his work in the 1950s, 1960s, and 1970s. MacLean proposed the triune theory of the brain, a three-component theory of the brain. One of those components, under MacLean’s theory, is the reptilian complex, which houses our survival instincts. Unfortunately for MacLean, contemporary research has shown that many of his assumptions and conclusions associated with the triune brain theory are wrong. Continue reading →
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 →
“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 →
A nearly universal component of building a cause challenge in voir dire is some variation of the speech about how each party should “start off on the same foot.” The attorney developing the challenge often accompanies this explanation with hand gestures mimicking an evenly-balanced scale. If the venire member admits the scales are uneven or that one party starts off “just a little bit ahead,” it’s often enough to convince the judge to remove him or her for cause (although some judges will shame the venire member into saying he or she can be fair and follow the law).
I’ve always been troubled by this speech. It does not seem to accurately reflect the actual position of each party at the start of the trial and can create confusion (that benefits the plaintiff) over the burden of proof in civil trials. Continue reading →
In my last blog post, I discussed the merits of lobbying the court to preclude a plaintiff from engaging in “reptilian” tactics before the jurors. Following some lively discussion about the post among some thoughtful defense attorneys, it occurred to me that I might have put the cart before the horse. For example, one commenter reasonably suggested there is value in attempting to preclude “reptilian” tactics because it “throws the plaintiff off of their game.” The irony of course is that the defense’s fixation on the “reptilian” theory and the need to throw plaintiff “off of their game” suggests that it is the defense that has been thrown off of its game. This brought about the realization that more discussion is needed about what the “reptilian” approach really is and how it can be effectively dismantled.
Reptile has become a popular topic amongst some members of the defense bar. It is important to be aware of the so-called “Reptilian” approach, but the concern should not extend far beyond that awareness. The reality is that the strategies defendants should be deploying at trial, regardless of whether or not plaintiff is engaging in “Reptilian” tactics, are more than sufficient to counteract such tactics. Consequently, the effectiveness of “Reptilian” tactics may be overstated due to verdicts that are not a product of the strengths of plaintiff’s “reptilian” tactics, but rather the product of the defense’s failure to craft a trial strategy that provides the appeal and the tools for jurors to find for the defense. Continue reading →