Tag Archives: witness

The Effectiveness of the “Referendum” Strategy for Plaintiffs

Punishment

By Thomas M. O’Toole, Ph.D.

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

Nothing Brings “Story-Telling” to a Grinding Halt Like Laying Foundation

Witness Examination

By Thomas M. O’Toole, Ph.D.

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