A ‘Golden Rule’ argument is one that encourages jurors to put themselves in a party’s shoes and think about what they would or wouldn’t have done. It leads to an objection because it encourages the juror to embrace a personal...more
In any challenging communication situation, it is best to combine the visual with the verbal. This is good practice because pictures tend to make things more “truthy,” in the sense that claims that are accompanied by relevant...more
During the past year or so, when clients have scheduled witness meetings or focus group and mock trial research, we will at some point get to the common question: “So, are we doing this in person or online?” Increasingly, it...more
Juneteenth is now a federal holiday, and even as many would prefer action on voting rights protection, equal access to education and healthcare, and police reform, the symbol is still important. It highlights both the...more
As we enter Pride Month, it’s a good time to reflect on where we are. President Biden recently announced a renewed push for full legal equality for LGBTQ individuals, but that takes place against a background of continuing...more
Critics of the jury system, or simply those who are nervous about taking part, will sometimes characterize a jury’s result as a kind of crap shoot. The feeling is that they’re inconsistent, and subject to the idiosyncrasies...more
We’ve all heard the standard language in drug commercials: After a string of increasingly dire warnings about risks and side effects (a list that seems to nearly always end in “death”), a cheery voice will urge you to, “Ask...more
“We are not supposed to talk about this.” If you’re observing a mock trial, that is often something you hear from one of the mock jurors…just as they begin to talk about it: insurance coverage and attorneys’ fees. Strictly...more
In the case of any argument or persuasive appeal you are making, you can ask the question, “Who are you aiming at?” In a jury trial, your answer might be, “The jury, of course.” But who on that jury are you aiming at in...more
The damages category of “pain and suffering” is notoriously uncertain, at least in jurors’ estimation. The act of quantifying and monetizing a plaintiff’s subjective experience associated with a loss or an injury can be a...more
Looking at the question, “What does a federal judge expect from an Assistant United States Attorney (AUSA)?” U.S. District Court Judge Michael H. Simon of the District of Oregon, in a recent issue of the DOJ Journal of...more
We all know by now there were errors in the pre-election polls. While Joe Biden still scored a decisive win, there wasn’t the dramatic margin that many polls predicted. Part of the problem is that the task of sampling the...more
The 2020 election seems to be nearing the end of the vote-counting phase, with the final ballots in Nevada, Arizona, and Pennsylvania being tallied as I write. But one clear loser is already evident: the preelection polls....more
Recently, I heard about an in-person mock trial during the pandemic conducted by another consultant outside our group. At the beginning of the day, this consultant said, the jurors and the attorneys attending were all pretty...more
President Trump told the Wall Street Journal last week that Americans currently wearing face masks over their mouths and noses might be doing so, not so much to stop the spread of the virus, but to “signal disapproval” of him...more
In the past couple of months, I have heard of just a couple of in-person mock trials that have gone forward. They’ve done so with temperature checks, massive social distancing, sometimes masked mock jurors, and generally...more
The art of training legal advocates has a long and honorable history. For example, the Socratic method used in law school is still an unbeatable way to teach critical thinking. But what about trial advocacy? On that score,...more
Imagine that you have in front of you a Bernie Sanders supporter or a Donald Trump supporter. Go ahead and pick whichever one of those is opposite your own political views. Now, convince them that they’re wrong. Assuming that...more
Watching a mock jury deliberate about damages can give you the idea that when it comes to numbers, jurors can be a little random. For example, a jury might see a big difference between $500,000 and $1 million in one moment,...more
The chance to interview a juror is a precious opportunity. Whether it is a mock juror interviewed in the course of a focus group or mock trial, or an actual juror interviewed after they are dismissed at the end of trial, an...more
When you stand in front of a jury, laying out your opening story or closing your arguments, who are you talking to? “To the jury, of course.” Yes, but which jurors in particular? The conventional wisdom is that you should be...more
I spoke with some defense attorneys recently who were surprised to learn of existence of third- party litigation funding groups. These financial companies who will front cash for litigation and trial expenses in hopes of...more
There is a persistent belief among many mock jurors that I have seen in certain kinds of cases. The belief is that liability attaches automatically to possession, and jurors usually express it through the lens of home...more
10/11/2019
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Juror 1: “The next category is ‘pain and suffering.’ How are we supposed to get to get that number?”
Juror 2: “It is just whatever we want…there’s no guidance for it.“
Juror 1: “How are we supposed to do that? Put a...more
In the real world, disputes are often settled by someone with more or better knowledge, or at least someone claiming to have more or better knowledge. The courtroom, however, is different. It is a setting that is designed to...more