By Thomas M. O’Toole, Ph.D. and Scott Herndon, M.A.
In 2016, Oxford Dictionaries chose “post-truth” as its word of the year. It defined it as “relating to or denoting circumstances in which objective facts are less influential in shaping public opinion than appeals to emotion and personal belief.” This concept has long been recognized in the fields of psychology and persuasion. Research has consistently shown that people tend to put beliefs before facts. In other words, decision-making often starts with what we want to believe, followed by efforts to seek out evidence that confirms what we want to believe, while downplaying, ignoring, or rejecting evidence that goes against those beliefs.
For this reason, misinformation is surprisingly resilient to correction and retraction. In fact, some studies show that efforts to correct misinformation actually reinforce the misinformation itself. This creates an interesting problem for litigants at trial. While it is primarily a problem for defendants, many litigants find themselves struggling to undue undesirable first impressions (or misinformation) that were created in opening or early in the trial. We do not intend to suggest that misinformation is synonymous with undesirable first impressions, but the resulting problem remains the same. Here are ten strategies for undoing undesirable first impressions or misinformation that we have identified from the research and our own experience working with hundreds of juries and mock juries across the country. Continue reading →
Sadly, research on cultural changes in America over the past few decades show that we have become more of a narcissistic culture than ever before. Jean Twenge, professor of psychology at San Diego State University, wrote the following in an article in Time magazine:
“Here’s the cold, hard data: The incidence of narcissistic personality disorder is nearly three times as high for people in their 20s as for the generation that’s now 65 or older, according to the National Institutes of Health; 58% more college students scored higher on a narcissism scale in 2009 than in 1982. Millennials got so many participation trophies growing up that a recent study showed that 40% believe they should be promoted every two years, regardless of performance. They are fame-obsessed: three times as many middle school girls want to grow up to be a personal assistant to a famous person as want to be a Senator, according to a 2007 survey; four times as many would pick the assistant job over CEO of a major corporation. They’re so convinced of their own greatness that the National Study of Youth and Religion found the guiding morality of 60% of millennials in any situation is that they’ll just be able to feel what’s right. Their development is stunted: more people ages 18 to 29 live with their parents than with a spouse, according to the 2012 Clark University Poll of Emerging Adults. And they are lazy. In 1992, the nonprofit Families and Work Institute reported that 80% of people under 23 wanted to one day have a job with greater responsibility; 10 years later, only 60% did.” Continue reading →
Over the past few months, I’ve celebrated my 40thbirthday, my 15thyear in the jury consulting industry, and the 5-year anniversary of Sound Jury Consulting. In short, I’m getting older, and as we grow older, the world around us changes. One of the more interesting changes in the world of juries is the increasing number of millennials serving as jurors. Recently, I looked at the venire information from 18 trials in which I picked a jury in King County, Washington (Seattle) over the past 3 years. The sample size was large — over a 1,000 potential jurors. Nearly all of these cases were set to last two or more weeks. Of the 1,000+ individuals who showed up for jury duty, 31% were millennials (i.e. 1 in every 3 people showing up for jury duty in King County is a millennial). Continue reading →
An important lesson I have learned from observing jurors’ decision-making in mock trials is that jurors sometimes dislike strategies that nevertheless are quite effective. They may not like what they see, yet they are still persuaded by it. These moments can be tough to digest. Besides the gut-check, it is difficult to ignore the fact that several mock jurors are criticizing something you did. However, research has shown over and over again that persuasion does not always happen at a conscious level. In other words, what jurors verbally express about something does not necessarily reflect its actual effectiveness. Continue reading →
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. Continue reading →
I’m sure you’ve written dozens perhaps hundreds. For each, you’ve painstakingly chosen every word, and gone over it with a fine-tooth comb. It’s a work of art. Therefore, come time to perform this masterpiece you’re shocked when it doesn’t go off as planned. What happened? Your witness happened.
Witness scripts or outlines are a staple of any litigator’s trial playbook, as they should be for a variety of reasons. However, there are several critical mistakes or shortcuts that are often made that invite disaster on the witness stand, the biggest of which is that the attorney did not consider the witness’s particularities. Simply talking with your witness is not sufficient to uncover those particularities; instead, the best way to assess them is through a mock direct examination. Here are three critical aspects of communication that you can glean from the mock examination and then address through the construction and editing of your witness examination script. Continue reading →
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 →
In episode 3, I discuss the common psychological processes at play as jurors attempt to make sense of all of the information presented at trial, with particular focus on what this means for the development of an effective defense strategy.
As I sit here preparing myself for tomorrow’s Seahawk game (e.g., lighting the candles, saying the prayers, finding my lucky shirt), I find myself still in shock that we (I’m #12, so yes “we”) won that game. I would imagine there are some Minnesota fans that wouldn’t say we won, but rather they lost – lost because Walsh’s 27-yard field goal with seconds left in the game sailed left. While it’s easy to blame the last thing that happened for the loss (our win), that’s too simplistic and short-sighted. After all, there was Russell Wilson’s spectacular scramble and pass to Tyler Lockett after a botched snap that led to Seattle’s touchdown (the ONLY touchdown of the game). There was also Adrian Peterson’s fumble due to Kam Chancellor’s deft strip. Truth is Seattle won for a lot of reasons and, yes, luck was probably one of them.
Placing blame got me thinking about what we blame for litigation losses. Here’s just a few we’ve heard over the years: “Jury was confused/dumb/in over their heads/not interested (take your pick),” “Judge made bad rulings,” “Didn’t get the jury instruction we wanted,” “Their expert was better,” “Plaintiff was really likable,” “We ran out of time in closing.” But again, the truth is, cases are lost for a variety of reasons. Rarely, if ever, can it be blamed on one thing – and especially the last thing (closing, jury instructions, jurors in deliberation). While a “Keys to success in litigation” is really more of a book subject than a blog subject, we’ve narrowed it down to a few keys that are over-looked and/or undervalued (from a jury standpoint, not a legal standpoint) that all contribute to litigation losses. It is not just one of these things; it is all of these things (among many others) that should be considered while creating your game plan. Continue reading →
Regardless of the merit of the vast majority of literature out there on jury persuasion, most of it tends to have one critical shortcoming. It focuses on a vast array of persuasive techniques, ranging from the cliché “tell a story” advice to discussions of psychological principles such as primacy or recency, but what it fails to recognize is that persuasion is only one small part of a trial. That may sound absurd, but it’s a subtle distinction that just so happens to be an important one. Continue reading →