The “law of least effort” is an important principle for understanding jury decision-making. In short, if there are several ways of making sense of the evidence and testimony in a case, jurors will gravitate towards the one that is the least demanding for their brains. As Nobel-winning psychology Daniel Kahneman (who has spent his life studying human decision-making) states, “Laziness is built deep into our nature.”
In fact, research has consistently shown that we assign greater weight to information and ideas that are more easily accessible to us, regardless of whether that information or those ideas are accurate and reliable. It may be because the information or idea is familiar, easier to understand, makes more intuitive sense, or ties to something that is easier for our brain to access. Continue reading →
Sound Jury Consulting recently conducted a nationwide online survey in which we asked the following: If you were sitting as juror in a trial where your personal beliefs about the case were in conflict with the laws the judge told you to follow, how difficult do you believe it would be to set your personal beliefs aside and not let them influence your decision? 62% said it would be very or somewhat difficult. While the results highlight the importance of a sound jury de-selection strategy, they also speak to what many might call jury nullification. Continue reading →
One of the most popular strategies used and advocated by many plaintiff’s attorneys across the country is the “broken rule” strategy. The theory is that the most important strategy for any plaintiff is to establish a clear rule up front, and then prove that the defendant broke that rule. Some of the popularity of this theory comes from Reptile, written by David Ball and Don Keenan.
As I’ve written before, there are a variety of significant problems and shortcomings associated with the Reptile strategy, one of which is that the “science” that serves as the foundation for the theory has largely been disproven. However, just like some people still believe vaccinations lead to autism, many attorneys have brushed aside the problems with the science behind the Reptile strategy. So let’s set the science discussion to the side and take a closer look at the “broken rule” strategy. Continue reading →
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 →
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 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.
In episode 4 of The Sniper Defense – Podcast Playbook for Defense Attorneys, jury expert Thomas M. O’Toole, Ph.D. discusses the core factors that influence jurors’ motivation to award or not award damages in civil cases. Each factor is discussed along with mitigating factors.
In episode 3, I discuss the common psychological processes at play as jurors attempt to make sense of all of the information presented at trial, with particular focus on what this means for the development of an effective defense strategy.
I’m a relatively new user of Facebook – turns out my protest against it wasn’t working as there are now over 1.25 billion users. I finally gave in and joined as I was told that people use it to share pictures of their kids, dogs, and vacations. While that is somewhat true, I’ve also found that people use it to “share” and “like” their political, religious, and moral views about every subject under the sun. Now, don’t get me wrong, I have no problem sharing my opinion, but typically I like to do it in a face-to-face setting where we can engage in a discussion of the issue and where people can tell me I’m full of “it” right to my face – no hiding behind a computer screen.
My dislike for Facebook has become more intense recently. I’ve learned in the past couple of months that I’m going to have to take a hiatus from it until the political season is over. I was thinking about the posts and the feedback to those posts when an attorney friend posted the picture above.
This got me thinking about what I do – and how social media and the “sharing” of opinion as if it’s fact influences how people pay attention to, process, and remember information presented to them during trial. Continue reading →
Plaintiffs’ attorneys approach case development and presentation in a multitude of both predictable and unpredictable ways, but none is more dangerous to defendants than what I call the “referendum” strategy. In short, the “referendum” strategy is a clever strategy that, when successful, allows plaintiffs to sidestep their burden of proof under the law and instead, create what is essentially a reverse burden of proof for the defense. It shifts the focus of the case to the defense and forces defendants to cope with a barrage of seemingly-disorganized attacks. In reality, what can sometimes seem like disorganization and foolish decision-making by a plaintiff’s attorney is often a very calculated attack. The results can be devastating. The “referendum” strategy is often the source of headline-grabbing or record-breaking damage awards. Continue reading →