Confirmation bias refers to when people accept or reject evidence based upon what they want to believe as opposed to basing it on the actual merits of the evidence. In some ways, it is a psychological survival mechanism tied to our beliefs about how the world works. Challenges to these beliefs can cause a great deal of chaos and stress, so our brains are, essentially, pre-programmed to seek out evidence that reinforces those beliefs, while minimizing, explaining away, or outright rejecting evidence that challenges them. In fact, this explains the siloed media we have today where people tend to pick which news channels to watch based upon their political affiliation.
For lawyers, confirmation bias can be a significant problem at trial, especially when the first impressions favor the other party. As Nobel prize-winning psychologist Daniel Kahneman notes, “The sequence in which we observe characteristics of a person is often determined by chance. Sequence matters, however, because the halo effect increases the weight of first impressions, sometimes to the point that subsequent information is mostly wasted.” In other words, first impressions at trial often shape how jurors perceive the subsequent evidence and testimony at trial. A poor first impression of the defendant will likely lead jurors to place greater focus and emphasis on evidence and testimony that reinforces the negative view of the defendant and vice versa. 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 →
Before you read any further, watch the above 1 minute and 41 second video, which will provide incredible insights into your trial presentation strategy as discussed below.
Did you pass or fail? As they tell you in the video, almost half of all of the people who watch this video (and have not seen it before) fail the test by not seeing the gorilla. Even more interesting, we learn that even those who have seen this kind of experiment before (and expect something odd to happen) failed to notice the second change, which was the color of the curtain in the background.
Your first reaction may have been that this is an interesting little party trick kind of experiment that you can forward along to your friends, but upon further glance, this experiment provides critical insights into what happens at trial as jurors listen to your case presentation. Describing this experiment, Nobel Prize winning psychologist Daniel Kahneman noted that “intense focusing on a task can make people effectively blind, even to stimuli that normally attract attention.” 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, Tom discusses practical strategies for defense attorneys to consider as they try to make the most of their cross examination opportunities during the plaintiff’s case-in-chief.
Defense witnesses such as 30(b)(6) witnesses and key employees make or break the case. These witnesses serve a symbolic role that goes above and beyond the implications of the actual words that they say. Instead, they tell the jurors what kind of organization the defendant is. They serve as ambassadors for the defendant. If they are sloppy, disorganized, or come across as uncaring, the defendant will be perceived by the jury as sloppy, disorganized, or uncaring. In fact, the two most commonly discussed plaintiff strategies (Reptile and the referendum strategy) thrive on poor performances by key defense witnesses. The result is a frustrated jury that feels the need to “send a message” to the defendant that it needs to change the way it does business.
Fortunately, the solution is pretty simple: a witness prep session. Defense attorneys often have what they call “prep meetings” with their witnesses, but there are five common shortcomings of these sessions that undermine their effectiveness. 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.
Reptile has become a popular topic of discussion for attorneys across the country, perhaps because folks like myself continue to write about it. Most of us have witnessed the fall-out, whether it be panicked pleas for feedback on defense forums or pre-trial motions to preclude “Reptilian” tactics. I’ve written extensively on defense strategies to counteract Reptile, but the more important question is whether or not defense attorneys should even worry about it in the first place.
If we focus on the science alone, this discussion quickly ends. Keenan and Ball claim to have derived their theory from the work of Paul MacLean, a neuroscientist who did most of his work in the 1950s, 1960s, and 1970s. MacLean proposed the triune theory of the brain, a three-component theory of the brain. One of those components, under MacLean’s theory, is the reptilian complex, which houses our survival instincts. Unfortunately for MacLean, contemporary research has shown that many of his assumptions and conclusions associated with the triune brain theory are wrong. Continue reading →
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 →