I am a fan of the television show, The Profit . It’s entertaining and a wonderful resource for small businesses. Naturally, I was curious when I stumbled across deposition video of the show host, Marcus Lemonis, on YouTube.
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.
It is a scary proposition to hand a case that you have worked on for months or years over to a jury for final adjudication. With all that’s on the line, it’s actually quite preposterous when you think about it. It took you months or years to learn enough about the case to bring it to trial and present it. Now you’ll hand the fate of all that work over to a small group of random people, who probably knew nothing about the issues in the case before they showed up for jury duty. You have no clue what they will do. All you can do is wait and hope.
It doesn’t necessarily have to be this way. As I’ve discussed in previous blog posts, attorneys focus too much on strategies for persuasion at the expense of strategies for controlling deliberations. A persuaded juror is not necessarily an influential juror and this is important because the safest bet for any attorney is to assume there will be some division amongst the jurors when they enter that deliberation room. Strategies for persuasion do very little for the attorney in this scenario. Either they were persuaded or they were not. Now, the jurors need to figure out how to resolve the division and render a verdict. Continue reading →
Libraries have shelves and shelves of books and articles full of clever tricks and tips for developing effective case theories and themes. Some are gimmicks. Some do not come close to accomplishing what they promise. I recall hearing one story about placing a bunch of case-related words in a jar and randomly picking them out. I have seen exercises that reminded me of the old Mad Libs books from my childhood years. One of the dangers in our profession is that the givers of advice can get a little too cute or “gimmicky” in their attempts to set themselves apart from others.
In my experience, the most important exercise for effective theme development is also one of the most simple, elementary, and non-gimmicky exercises out there: systematically listing out the case weaknesses and strengths. In case strategy sessions with my clients, we post those large 3M sheets up on the wall with one or two sheets a piece devoted to the weaknesses and strengths. We start with the depressing part and focus solely on the case weaknesses and vulnerabilities. Once we have listed off every weakness or vulnerability we can think of, we change gears and do the same for the case strengths. Having the list within visual reference is extremely helpful as we move into the theme development portion of the section.
Jury selection is a critical part of trial. Varying theories of attorneys’ ability to win or lose a case in voir dire run rampant among lawyers and their clients, but discussion of those theories are for another day. This post focuses on the importance of communicating with the trial judge in advance about the process of jury selection and identifies key areas of inquiries for attorneys in that process.
Unfortunately, with so much going on in the weeks leading up to trial, focus on jury selection can fall by the wayside. In some instances, the important questions about the process are simply not asked. In other instances, attorneys make assumptions about what a judge will or will not do during jury selection, sometimes “informed” by a colleague who picked a jury in front of that particular judge in the past. Continue reading →