Why do jurors talk about some testimony in deliberations, but not other testimony? Why do jurors start deliberations by talking about an issue that is not related to the first verdict form question? Why do they seem to want to talk about the one thing you repeatedly told them was irrelevant? These are important questions, and the answers may help attorneys exert greater control over what jurors spend their time talking about in deliberations. The strategic advantage that would come from this is difficult to overstate. After all, the cliché in our field is that a verdict is a product of what jurors choose to talk about most in deliberations. What they choose to talk about creates momentum for and against the parties in the case, which can often drive the final verdict.
The fundamental idea here is that, when jurors go back into deliberations, they have dozens and dozens of things related to the case that they could potentially talk about. Regardless of what they choose, they are not going to talk about everything. It reminds me of a case not too long ago where I had the opportunity to interview the jurors after the verdict came in. It was a four-week trial and over 1,000 exhibits went into evidence. The jury deliberated for almost three days. After all that deliberation, I asked them how many exhibits they looked at. Eight! Out of the thousand exhibits that were entered, they looked at eight before arriving at their verdict. The discussion in deliberations is similar. When all is said and done, the jury will have only discussed a fraction of the issues they could or should have discussed during their deliberations. 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 →
Finding the little fact that changes the case narrative can feel like finding a needle in a haystack at times, which is why it is always good to have a fresh pair of eyes.
By Thomas M. O’Toole, Ph.D.
Some of the best case strategies that we have developed with our clients over the years resulted in the other side having to defend something at trial that they never realized they would have to defend…something they took for granted. This is a strategy I learned during my college debate career (yes, I was a college debate nerd…but you would be surprised how many of your peers in your industry were as well). In my days of college debate, one of the most effective strategies was something called a plan-inclusive counterplan, or a “PIC” for short. The idea was that after the first (affirmative) team made their argument to start the round, the other team agreed with everything that side said except for one small, but incredibly important detail, something they never realized they might have to defend…something they took for granted. 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 →
In this episode of The Sniper Defense, Podcast Playbook for Defense Attorneys, Thomas O’Toole, Ph.D. discusses a process that defense attorneys can use to develop effective defense strategies and themes.