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 →