Mock trials are a popular tool for attorneys who want to learn how jurors will react to their cases. Mock trials have become so commonplace that some argue it is malpractice not to conduct one in a high-exposure matter. With the increased use of mock trials, there has been a corresponding increase in the number of misconceptions about the design and value of this type of jury research. Let’s take a look at four common misconceptions about mock trials. Continue reading →
Recently, I picked a jury in the Pacific Northwest where the judge provided the attorneys for each side limited time for attorney-conducted voir dire (20 minutes each). While the time allocations for voir dire vary from case to case and from judge to judge, most jury selections involve some sort of time limitations along these lines. In other words, in many case, attorneys probably need more time than they actually receive in order to conduct the kind of jury selection that they would prefer. This has important implications because it means that every choice an attorney makes in his or her voir dire is a trade-off. If an attorney spends time focused on one topic, it takes time away from another topic. Consequently, attorneys are put in the position of having to make some tough choices about how to spend their time. Continue reading →
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 this episode of The Sniper Defense, Podcast Playbook for Defense Attorneys, Thomas M. O’Toole, Ph.D. discusses strategies for defense attorneys to exert greater influence over the content and structure of jurors’ notes.
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.
After a brief hiatus, The Sniper Defense podcast is back with an all new episode. In this episode, Thomas M. O’Toole, Ph.D. discusses the common personality and interaction types that emerge during jury deliberations and how each can impact the final verdict.
Defense witnesses such as 30(b)(6) witnesses and key employees make or break the case. These witnesses serve a symbolic role that goes above and beyond the implications of the actual words that they say. Instead, they tell the jurors what kind of organization the defendant is. They serve as ambassadors for the defendant. If they are sloppy, disorganized, or come across as uncaring, the defendant will be perceived by the jury as sloppy, disorganized, or uncaring. In fact, the two most commonly discussed plaintiff strategies (Reptile and the referendum strategy) thrive on poor performances by key defense witnesses. The result is a frustrated jury that feels the need to “send a message” to the defendant that it needs to change the way it does business.
Fortunately, the solution is pretty simple: a witness prep session. Defense attorneys often have what they call “prep meetings” with their witnesses, but there are five common shortcomings of these sessions that undermine their effectiveness. Continue reading →
In this episode of The Sniper Defense, Podcast Playbook for the Defense, jury expert Thomas M. O’Toole, Ph.D. discusses the ten key turning points in jury deliberations that influence the momentum for one party or another.
“Voter turnout was not as high as I had wanted” – Sanders
“Trump takes Upstate as voter turnout exceeds expectations.”
“Cruz has a real shot of winning…but only if turnout doesn’t exceed the record in 2012…”
You can’t turn on the TV without hearing some kind of statement about voter turnout – some candidates want it, while others hope it stays low. You’re either a candidate who is hoping you can motivate those who are not regular participants in the political process to come out and vote or you are hoping that apathy reigns and only the established base shows up. While it might be politically advantageous for a few candidates to try to suppress the vote, generally, the best strategy is to not only engage your base, but to also do everything possible to motivate the wider voting public to get out and act.
The same is true of your jury. While you can hope that there might be a few on the panel you consider your “base” (i.e. those who have experiences and attitudes that favor your view of the case), more likely you have a group of “undecideds” and you are going to have to do whatever you can to engage and motivate them to not only support your position, but to actively and persuasively participate in deliberations. Think of it this way: there might be people who believe, “Hmmm, that Bernie Sanders seems like he’d be a great president.” Or “Never thought Trump could be President, but that makes sense!” However, if they sit at home and do not act on their belief, then these candidates cannot win. If you have a juror who was swayed to your point of view during the trial, but during deliberations sits back and lets opposing jurors who are more passionate lead the charge, then your efforts are all for naught. Continue reading →