A great deal of work goes into preparing an expert witness for trial. Typically, there are many hours of discussion and preparation before an expert ever sits for a deposition or submits an expert report. But often, most of those hours are spent with only one or two attorneys. And equally as often, those attorneys

Almost any attorney who has participated in a mock trial can provide an example of a mock juror’s off-the-wall logic or fundamental misunderstanding of the case facts. Unfortunately, a common reaction to such mock jurors can be skepticism of their worth and dismissal of their arguments. But simply dismissing arguments made by mock jurors because

For years, attorneys have questioned jurors about their political affiliation and tried to intuit how that affiliation would color their view of the case at hand. But political preference alone has never been a good indicator of juror leanings. Despite the persistent belief that a jurors’ political party must be a strong verdict predictor, no

Trials are centered around questions and answers. Attorneys have expectations based on their experience questioning witnesses—they ask precise questions and expect honest answers. They can anticipate the witness’ responses and prepare follow-up questions. And they can call attention to a witness’ biases if the witness is being evasive or misleading. But how does all of

Most of us have been in the dreaded situation where we are facing an allegation or piece of evidence in court that we simply have no good answer for. But what do you do in that situation? We have seen attorneys try to use vague language to evade or gloss over the issue. Or use

“It’s not what you say, it’s what they hear” is a useful guide for reminding ourselves that we may not be as clear in our communication as we think we are. We’ve seen attorneys deliver arguments about X, and then found, in post-trial interviews, that jurors reframed it as Y. We’ve also seen attorneys use

In most jury selections, attorneys on both sides ask as many questions about jurors’ case-related attitudes as they are allowed to. But how do you get at attitudes that jurors don’t even know are related until the trial starts? Although most attorneys would be sure to exclude any potential jurors who had suffered a fate

Many lawyers are unfamiliar with the use of supplemental jury questionnaires, and this unfamiliarity makes them skeptical of the questionnaire’s contents. The strong tendency of attorneys new to juror questionnaires is to resist questions that contain statements that are negative about their client (e.g., “Do you believe pharmaceutical companies are money-hungry?”). We recently observed an

A recent news story in a Cleveland, Ohio paper described the lawsuit that the state attorney general is launching against five companies that manufacture opioids, saying there were “6 things to know” about this litigation. One of those things was that it draws comparison to the multi-state litigation against tobacco, launched by state attorneys general,

Experienced attorneys, as soon as they begin hearing about a new case, begin analyzing it and planning that opening statement, “This is a case about…” Being able to provide jurors with a concise explanation of the case is vitally important, but what is that explanation based on? Typically, it is based on the attorney’s experience

Selecting experts for trial has always been a challenging task. The list of considerations—solid credentials, the ability to provide clear explanations and form strong connections with jurors, prior history of testifying, financial biases—is extensive. But once selected, their role as an expert was clear: to educate jurors about complicated subject matter and to convince jurors

Given our line of work, we find that people frequently reference brain models in conversation with us. Having heard about right/left brain thinking, some attorneys want to choose predominately left- (or predominately right-) brained jurors. Or they want to ensure that their presentations appeal to the appropriate side of the brain. Others, responding to fears

When someone says something false or misleading about us—You’re against broccoli—we’re very likely to deny it—No, I’m not! In court, where more than broccoli-hating is involved, attorneys are especially likely to respond with a strong denial, because there is a lot on the line and they don’t want the jury to conclude something is true,

Trial consultants often emphasize the importance of a clear and persuasive narrative. Stories have long been told as a way to explain why things happened as they did (Homer’s Iliad, e.g.) and psychologists have long understood the role stories play in processing and understanding events. Trial lawyers frequently study the science of storytelling and typically

As law students learn from their textbooks, “voir dire” comes from Old French and means “to speak the truth.” And as they learn from courses and colleagues, the point of voir dire is to find out if prospective jurors harbor a fixed bias against one’s client. Those notions are incredibly consistent with what we, as

Anyone with extensive trial experience understands the value of calling on that experience when entering into a new litigation or trying a new case. Good attorneys see patterns and commonalities across cases and recognize the benefits those patterns provide. Seeing patterns allows an attorney to quickly assess a new case, to figure out a good

During trial preparation, it is easy, and tempting, to hone in on the weaknesses in your opponent’s case and discount their strengths. Easy, because the weaknesses often highlight themselves and tempting, because developing arguments to expose such weaknesses comes quickly to experienced trial lawyers. While we would absolutely encourage you to capitalize on those weaknesses,

Are there jurors you believe are always risky picks? Is there a strategy you used before, but now avoid? Attorneys often tell us about a type of juror they’ve been burned by or a strategy they used that jurors hated, but in most cases, those conclusions are based on the results of the trial—and on

Mock trials are often a key part of preparation for trial. Although mocks can never exactly replicate a trial, they do provide valuable information about themes, arguments, and key pieces of evidence and witness testimony. The goal of any mock trial should be to learn as much as possible – both about your case and

As trial teams prepare for court, theme development is usually an early focus while witness preparation comes much later. And while attorneys typically approach these tasks separately, witnesses are expected to support the developed themes at trial. But often witnesses aren’t comfortable with the themes, and don’t believe the themes tell their story. Indeed, it’s

There are a few phrases that we hear frequently in jury selections—regardless of venue and across attorneys—but one phrase that we hear more than most is, “I will take your silence as agreement.” We say: Don’t. In most cases, silent jurors aren’t expressing agreement—or anything else. Their silence is simply silence and provides the attorney

A recent NY Times article examined the fact that Donald Trump polls better in online polls than in polls conducted with a live interviewer, most likely because embarrassment is preventing people from openly sharing their real opinions and preferences. Embarrassment about opinions that are generally perceived as socially undesirable, even taboo, is not confined to

In social science research, there’s something called the ecological fallacy—using data gathered at one level to infer attitudes or behavior at another level. Like using information about an aggregate of people to predict what one person will do. We often see this mistake made in discussions of jury selection and case presentation, usually involving assumptions

In most product liability trials, the plaintiff’s goal is to keep the focus squarely on the behavior of the defendant. They want to characterize that behavior as “bad” and try to elicit strong emotions, typically fear and anger, from jurors. Unfortunately, our clients have often given them something to work with, even if it’s only

In a perfect world, reason, analysis, and thoughtful discussion guide jury selection. Before jury selection begins, you have an idea of the type of juror you desire and the type who would cause you concern. Any jury research has been done and analyzed and, if allowed, juror questionnaires have been pored over and scored. A

If you have ever worked with us, then you know we have two mantras: 1) Look at juror attitudes and experiences, not demographics, and 2) Start jury research sooner rather than later. So it should come as no surprise that we believe strongly in learning about jurors’ relevant attitudes and experiences as early as possible

In litigation involving personal injury and prescription drugs, the plaintiff often claims that a doctor or other healthcare professional failed to warn him or her about the risks associated with the drug. Very often, the doctor in question claims that he/she did, in fact, warn the patient. Absent written documentation, it becomes the doctor’s word

In any disagreement, it’s incredibly tempting to only respond to the arguments that you think are persuasive and simply dismiss those that you find absurd. Unfortunately, as can be easily seen in any political debate, that often leaves both sides talking past each other – and never actually addressing the other side’s concerns. Unless and

When teachers want to explain a new concept to students, they often offer analogies: teaching fractions in terms of pieces of a pie or likening the brain to a computer for the body. Scientists rely on analogy to help themselves think: for example, Robert Boyle, the founder of modern chemistry, used analogy to conceptualize and