Tag Archives: trial strategy

6 Common Reasons Why Defense Attorneys Lose Cases

by Thomas M. O’Toole, Ph.D.

Each year in the United States, juries award billions of dollars in damages to plaintiffs. In 2014, a jury in Florida awarded $23.6 billion to a single plaintiff. There are two possible explanations for these extraordinary numbers. First, for a variety of reasons, defense attorneys are often forced to take unwinnable cases all the way to trial. In these situations, they do the best they can, but cannot avoid the inevitable.

The second explanation is that defense attorneys are failing in some way to adequately try their cases. This is not intended to give insult to defense attorneys. In fact, it’s an overdue acknowledgement of the overwhelming burden that is placed at their feet. While the typical plaintiff’s case has a natural story and appeal that insulates it from even the most unskilled plaintiff attorneys, convincing a judge and jury to embrace a defense theory requires a delicate dance down a path that is fraught with danger at every turn. Continue reading

Strategies for Influencing Jurors’ Note-Taking (Part 2)

note-taking 2

By Thomas M. O’Toole, Ph.D.

Last month, I wrote about the importance of juror note-taking and raised the question of how an attorney might exert influence over a juror’s note-taking through his or her trial presentation. The fundamental concern was that, despite numerous studies and opinions about the value of allowing jurors to take notes, little attention has been given to how the way in which jurors take notes impacts their use and value during deliberations. This concern stemmed from a recent shadow jury experience I had where I was able to watch the various ways in which the jurors took notes during trial. Some jurors’ note-taking appeared to be completely random with no observable pattern. These jurors appeared to take notes on issues that each side might agree were completely irrelevant. Conversely, they failed to take notes on issues that we felt were extremely important. Other jurors furiously took notes, accumulating their own little transcription of the trial.

The problem is that neither of these note-taking styles are helpful. The random approach provides no structure or map for jurors to draw on during deliberations. The transcription approach buries key issues in the multitude of pages, making it difficult for the juror to locate key items when he or she needs to defend against opposing advocates in deliberations. This can create momentum for the other side and change the course of deliberations. Continue reading

Attorneys’ Analogies Are A Lot Like My In-laws Dancing At Weddings (Or, Your “Metaphor” Is Actually A Simile)

wedding dancing










By Thomas M. O’Toole, Ph.D.

My aunt-in-law Josephine, a resident of a small town in southern Missouri (or “Missourah” as they say) that no one has heard of, loves weddings. The readings, the nuptials, the kiss…blah, blah, blah; who cares? But the dancing? Now we’re talking. Nobody gets as excited about the Electric Slide, YMCA, and Kool & The Gang’s “Celebration” as Josephine. When “it’s electric!” is finally shouted over the DJ’s speakers, Josephine takes to the floor showing all of those leadership skills that go unappreciated at the local hardware store where she works part-time. The pride puts a special gleam in her eye when she gets to show a newcomer (usually some sugared-up toddler) the dance’s routine. This is her glorious moment…she will repeatedly tell friends the same ole stories about this night (much to their dismay) until the next wedding comes along. Family members will watch and laugh, happily cheering her on, excited to see another happy soul living in the moment. Fortunately, for Josephine, the family has a heart: no one has ever broken the devastating news to her that she is a terrible dancer who “makes my feet sad” as Ralph from The Simpsons might say. But that’s the great thing about weddings: everyone is so happy (and/or drunk) that bad dancing flies under the radar.

Continue reading