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 →
Welcome to the Sniper Defense, the podcast playbook for defense attorneys. In this episode, jury expert Thomas M. O’Toole, Ph.D. discusses the most effective strategies for preparing key defense witnesses for their depositions.
A while back I was interrupted by a doorbell as I was telling a group of friends a particularly riveting story. Once the person had left, I waited for someone to ask me, “What happened then?” I mean – weren’t they all dying to hear the rest? Turns out, the answers was no. The conversation resumed, but no one seemed to remember that I was in the middle of a story. Now, this doesn’t happen to me very often, so I of course stewed about it and tried to come up with a justifiable reason why they weren’t interested. All I could come up with was the painful truth – no one cared.
This situation stuck with me and since then I pay attention to what happens when someone is interrupted during a story: Do people ask questions to get the story-teller to continue? Does the conversation move on with no one remembering that someone was in the middle of a story? Does the story-teller take up where they left off even though no one seems to care? What I noticed in my non-scientific investigation is that it is fairly rare that someone asks the story-teller a question to get them to continue – the story must be particularly intriguing, or was only missing the big finale. When the person continues without being asked, most of the time you can sense the disinterest as people politely let the person finish. Often, everyone simply forgets someone was telling a story and they move to the next subject. Continue reading →
As I sit here preparing myself for tomorrow’s Seahawk game (e.g., lighting the candles, saying the prayers, finding my lucky shirt), I find myself still in shock that we (I’m #12, so yes “we”) won that game. I would imagine there are some Minnesota fans that wouldn’t say we won, but rather they lost – lost because Walsh’s 27-yard field goal with seconds left in the game sailed left. While it’s easy to blame the last thing that happened for the loss (our win), that’s too simplistic and short-sighted. After all, there was Russell Wilson’s spectacular scramble and pass to Tyler Lockett after a botched snap that led to Seattle’s touchdown (the ONLY touchdown of the game). There was also Adrian Peterson’s fumble due to Kam Chancellor’s deft strip. Truth is Seattle won for a lot of reasons and, yes, luck was probably one of them.
Placing blame got me thinking about what we blame for litigation losses. Here’s just a few we’ve heard over the years: “Jury was confused/dumb/in over their heads/not interested (take your pick),” “Judge made bad rulings,” “Didn’t get the jury instruction we wanted,” “Their expert was better,” “Plaintiff was really likable,” “We ran out of time in closing.” But again, the truth is, cases are lost for a variety of reasons. Rarely, if ever, can it be blamed on one thing – and especially the last thing (closing, jury instructions, jurors in deliberation). While a “Keys to success in litigation” is really more of a book subject than a blog subject, we’ve narrowed it down to a few keys that are over-looked and/or undervalued (from a jury standpoint, not a legal standpoint) that all contribute to litigation losses. It is not just one of these things; it is all of these things (among many others) that should be considered while creating your game plan. Continue reading →
When you were growing up did your mom or dad ever say that to you? Do you say it to your kids? My son is a pro at turning a relatively innocuous response into a mordant-laden one simply through his tone. The answer “We’re going to the movies,” reads innocent enough until tone is added by the 17-year-old who is completely taken aback that his mom would dare ask where he and his friends are going. He’s equally successful at adding a charming tone to any question asking for money, the car, or new Nikes.
For a wonderful example of the power of tone, look no further that this YouTube video of a 10-month old baby crying as he listens to his mom sing a moving and melancholic song. This sweet little baby isn’t responding to the words of the song (also moving); he’s responding to the tone — the way the words sound. He’s simply overtaken by the way she is singing, not what she is singing. Continue reading →
After receiving several requests from clients, we recently put together this 7-minute video for attorneys to share with key witnesses in their case before their depositions. It is always preferable for attorneys to meet with their key witnesses in advance of the depositions to spend time practicing the testimony. This helps familiarize witnesses with the common pitfalls of a deposition, can increase their comfort level, and give them an opportunity to fail in a mock setting so that they can succeed in the actual deposition. However, these practice sessions are not always possible. Consequently, we put this video together as a free tool for attorneys to send to their witnesses.
The goal of the video is to provide witnesses with the essentials for performing well in a deposition. While the video is certainly not comprehensive, the core principles and rules that are discussed will help witnesses navigate most of the hurdles they will face.
There is a popular 3M study that is often used to support the argument that attorneys should utilize more graphics in trial. The study found that audience members retained as little as 10% of the information three days later if the presentation was oral only; however, when presented the same information through both oral and visual presentation, the retention rate jumped to 65%. While this study is most often used to support the argument that presentations need a visual component, its implications can be applied to other areas of litigation. One that comes to mind is witness preparation for deposition. Many attorneys meet with witnesses a few days in advance of their depositions to review the relevant case documents and tell the witness what to do. In some instances, a jury consultant will participate to help the witness overcome barriers to effective communication.
One of the most common problems I have observed is information overload. To be more specific, many attorneys spend time in these sessions providing the witness with extensive tips on how to deal with different issues in the case, strategies that might be used by opposing counsel, and a variety of other random thoughts. This may appear reasonable since the attorney is simply trying to get the witness up-to-date and prepare him or her for all of the nuances of the case that may be addressed in the deposition. 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 →
I have been very fortunate to have had the opportunity to watch several longs trials from start to finish over the course of my career. Most of these have been in the context of conducting shadow juries, where four to six jury-eligible participants watch trial and provide feedback about each day’s proceedings. It is incredibly rare to receive this kind of data, uninhibited by the limitations of mock presentations and post-trial juror interviews. Every jury consultant should have the opportunity to have this experience because it forces the industry to reconcile its theories of jury-decision making with the practical limitations of courtroom proceedings. In other words, it is one thing to sit in a meeting months out from trial and feel good about the great “story” the attorney is going to tell at trial, but it is quite another thing to be able to help that attorney understand how to practically go about telling that story effectively at trial within the framework of courtroom procedures and all of the inherent limitations of the fragmented, nonlinear means of presenting evidence and testimony.
I just recently finished a shadow jury for a four-week trial and had an “aha” about one of the most prevalent, yet under-appreciated limitations that attorneys face at trial in their attempts to get “the story” out: Nothing brings “story-telling” to a grinding halt like having to lay foundation. Foundation slows down “story-telling” by essentially creating large gaps between the key pieces of evidence and testimony. Continue reading →