Tag Archives: trial

Repeating the Importance of Repeating


By Thomas M. O’Toole, Ph.D.

The value of repetition as a simple and practical strategy for persuasion at trial cannot be overstated. However, despite the fact that I repeatedly emphasize this point on repetition to clients at trial, the level of repetition is often insufficient. I have found that it is not uncommon for an attorney to believe that he or she is using repetitive language to make a point, but when reviewing transcripts, the use of this language is fairly limited. Saying something a couple of times over trial simply does not cut it. If a particular message is important, jurors need to hear it over and over again. In fact, the right amount of repetition usually exceeds attorneys’ comfort level, leaving attorneys feeling as if they are repeating arguments too much.

Sometimes, the repetition needs to be forced or creative. For example, sometimes it is important for attorneys to ask questions of witnesses that incorporate key language or facts even though the witness’s answer is not important. In other words, sometimes the question, and the repetition that is built into that direct or cross-examination question, is more important than the particular witness or that witness’s answer. In these moments, the sole purpose of asking the question is to give jurors an opportunity to hear it again. Continue reading

Do You Know What Question Your Jurors are Really Answering in Deliberations?


By Thomas M. O’Toole, Ph.D.

In his 2011 book Thinking Fast and Slow, famed psychologist and Nobel Prize winner Daniel Kahneman wrote this in his effort to explain the essence of intuitive heuristics: “When faced with a difficult question, we often answer an easier one instead, usually without noticing the substitution.”

While the fundamental concept in this quote is not particularly ground-breaking (at least in today’s world of psychological research), Kahneman’s phrasing eloquently hammers home a critical point for attorneys and how they think about their cases. Continue reading

Think of it as “Mock Deliberations” Instead of a Mock Trial

Mock Jury Deliberations
By Thomas M. O’Toole, Ph.D.

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

3 Ways Our Brains Are Changing With the Times

By Thomas M. O’Toole, Ph.D.

Without a doubt, we are living in unprecedented times. Whether it is the leader of the free world firing off daily rants on Twitter or the mere fact that smart-phones leave us plugged in 24 hours a day and 7 days a week, technology and social media have profoundly changed the way we experience the world. The psychological and sociological research is finally catching up, offering an interesting glimpse into how all of these changes are impacting our brains. Here are three ways in which technology and social media are impacting your jury pool. Continue reading

Four Fundamental Misconceptions About Mock Trials

Jury DeliberationBy Thomas M. O’Toole, Ph.D.

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

5 Common Ways Attorneys Waste Precious Voir Dire Time

Common ways attorneys waste time in voir dire.

Common ways attorneys waste time in voir dire.

By Thomas M. O’Toole, Ph.D.

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

5 Reasons a Good Cross is Better than a Great Direct


By Thomas M. O’Toole, Ph.D.

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

The Sniper Defense Episode 11 – Strategies for Influencing Jurors’ Notes

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.

The Sniper Defense Episode 8 – Reptile and Its Implications for Defense Strategy

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.

The Sniper Defense Episode 7 – Common Personality Types in Jury Deliberations

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.