Here’s a scenario we often see when watching deliberations in a mock trial: The subject of the defendant’s alternate damages number comes up, and jurors see it as a weakness...more
Here’s a welcome development: The state of Maryland has embarked on a pilot program to test out the effects of expanded voir dire. In many parts of the country (looking at you, Arizona) the ability of litigants to explore and...more
With the 2024 election now in the rearview mirror, many Americans are still processing the results. The Presidential contest between Donald Trump and Kamala Harris was widely seen as close by both pollster and pundit, and...more
Mediation is often guided by predictions made by each side, as well as by the mediator: if this case went to trial and faced a jury, what would that jury likely do with it? Naturally, each of these three actors will have a...more
Sometimes in civil cases, the plaintiff’s liability claim is opportunistic, wishful, or factually weak. Other times, it is real. Someone didn’t do their job, a danger was missed, or — in that Olympic champion of passive-voice...more
At last week’s Presidential debate, incumbent Joe Biden performed about as poorly as the worst predictions. In the panicked aftermath, calls have mounted for the 81-year-old President to gracefully exit his party’s nomination...more
As civil jury trials continue to become more scarce, the need to reasonably assess what result a jury would return in trial becomes even more important. Even when the trial does not happen — especially when it does not happen...more
How many times have you heard that a jury — especially a jury that is deliberating about damages in a civil case — is about as predictable as the lottery? The broad perception is that as jurors arrive at figures in the...more
Your typical mock trial might involve three juries, with a total of 30 or so mock jurors. The typical public opinion poll run by an organization like Gallup, however, can involve more like 1000 participants. So what is the...more
The adage, “If it ain’t broke, don’t fix it” carries a special meaning in litigation. It can be one of those classic “damned if you do, damned if you don’t” situations: After an injury or other tortious event, if you fix...more
I will admit up front that the title for this one might sound like someone trying to weasel out of something: Trying to gain the psychological benefit of “stepping up” without the legal liability that many might see as going...more
During a recent mock trial, there was one juror seated in the front, gamely struggling to keep her attention on the case. Before too long, however, we saw drooping eyelids, followed by some pretty loud snoring. Admittedly,...more
Most of those who work in civil litigation are now familiar with the “anchoring effect,” and know that suggesting a number has an influence when it comes to damages. But attorneys may not know just how powerful that effect...more
On the virtual pages of this blog, I’ve long been a proponent of the idea of treating audiences for legal persuasion as active, not passive. What I mean by that is that they’re not just receptacles for your arguments, they...more
A mock trial is not a crystal ball with access to the ultimate result you’re going to see in a real trial. There are too many differences between the research situation and the full trial setting for those results to be...more
By Dr. Ken Broda-Bahm: It is a jury’s first task: Pick a foreperson, someone who will lead the discussion, help the group walk through the evidence, and work their way to a decision. Who gets picked? The person who is...more
When you test a product to assess its performance and safety, of course you have very substantive reasons for doing that: You are aiming to check effectiveness, prevent harm, and protect the brand. When a trial occurs,...more
For those trained in the sciences, relying on illustrations or examples is not considered nearly as good as relying on data. If they call something “anecdotal,” then there is a good chance that the word “merely….” precedes...more
The instructions for jurors are clear: They are to take an issue that has no effect on them, listen dispassionately to the evidence and arguments, apply the facts to the law, and make a decision. That is the model, but in...more
Jurors are often put in the position of assessing the probability or risk of something at the time a decision was made, before the consequences can be known. “How likely is it that a given result will be the outcome from a...more
The core of most determinations of negligence is the question, “What would a reasonable person have done?” And, at least in theory, this “reasonable person” isn’t supposed to be an actual person whose deeds are recorded in...more
Recently, three of the most high-profile current defendants did what conventional wisdom says they shouldn’t do; They took the stand in their own defense. Kyle Rittenhouse, on trial for killings at a Kenosha, Wisconsin...more
A number of years ago, innovators searching for ways to take some of the pain, delay, and difficulty out of the jury trial hit upon the idea to boil it down, rein in the discovery, simplify the rules of evidence, and try it...more
From the time we were kids, most of us swiftly learned what was likely to get us punished: a spanking or — for more recent generations — a time out. Usually, that was brought out by something we did, or by the situation we...more
Based on a recent and extensive report from New York’s Attorney General, the state’s Governor, Andrew Cuomo, is now facing numerous credible claims of a pattern of sexual harassment, with his fellow Democrats, including the...more