The word “contagious” these days likely evokes fears of the rapidly spreading coronavirus. The concept has long been applied to cognitive biases, as well. Influential attitudes and experiences can also, like a virus, be...more
“One of the saddest lessons of history is this,” Dr. Carl Sagan once wrote, “If we’ve been bamboozled long enough, we tend to reject any evidence of the bamboozle. We’re no longer interested in finding out the truth. The...more
Sometimes as a defendant, you find yourself in the position where you need to admit to at least some part of the plaintiff’s liability claim. The plaintiff really was injured, and there really was a step that was skipped on...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
Trial lawyers are used to persuading with their arguments and with their evidence. But what about the voice? It stands to reason that tone matters, but does it matter enough to influence persuasion? Some attorneys, even while...more
This past week, the U.S. Senate impeachment trial started in earnest, and the House Managers began laying out the arguments underlying the two Articles of Impeachment. While opinions are divided on the quality of the...more
Litigators are used to arguing, refuting, and persuading. When it comes to selecting jurors, they’re also used to uncovering bias. But what is “debiasing”? While my spellchecker continues to reject the term, academics have...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
The lawyer preparing their case likely goes through a long list of, “What will they think about…” questions, relating to the facts, the evidence, the arguments, and the law. Eventually, that attorney might get to the...more
Both theory and experience say that there are two kinds of thinking. One is focused thinking, zeroing in on a topic, analytically and systematically. The other is diffuse thinking, abstract and constrained only by association...more
The habit of sort of just filling in your speech with expressions of uncertainty, when you’re not really that uncertain, is probably a bad habit. I mean, I am fairly sure that these hedges cut down on your perceived...more
1/9/2020
/ Best Practices ,
Closing Arguments ,
Credibility ,
Cross Examination ,
Defense Strategies ,
Eyewitness Testimony ,
Jury Trial ,
Litigation Strategies ,
Opening Statements ,
Trial Practice Guidance ,
Trial Preparation ,
Young Lawyers
Harvey Weinstein goes to trial this week. Out of approximately eighty women accusing the former Hollywood mogul of sexual misconduct over the past few decades, two assault cases will be heard by a jury this week in Manhattan....more
1/6/2020
/ #MeToo ,
Bias ,
Criminal Prosecution ,
Defense Strategies ,
Jury Selection ,
Litigation Strategies ,
Questionnaires ,
Scandals ,
Sexual Assault ,
Sexual Harassment ,
Social Media ,
Trial Practice Guidance ,
Trial Preparation ,
Voir Dire
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
When we engage in arguments, perhaps on social media or even around the table at Christmas dinner, it is easy to notice that there is something different about those at the extremes. Extremists are so filled with confidence...more
Let’s say the client you represent in litigation did something wrong. And, let’s further say, that they understand that they need to admit it and ask a jury to get past it. There’s still a case to be tried: Maybe it focuses...more
Yesterday was an historic day in the U.S. House of Representatives. For more than eight hours, Democratic and Republican members of the body gave short alternating speeches for and against the motion, before impeaching Donald...more
Once, while I was monitoring a science-intensive agricultural contamination case, we asked permission for one of our expert witnesses to have the jurors peer into a dark box where they could see a petri dish with a bacteria...more
Every day, we are reminded that we live in a new age that can be called “post-truth.” We pay a lot of attention to external sources of misinformation, whether it is motivated public figures, partisan news networks or...more
There is one habit of attorneys that promotes precision in analytical thinking, but often interferes with the ability to clearly communicate with the audience. That habit is the tendency to divide points into sub-points, and...more
The arc of history has been moving, albeit in fits and starts, toward gender equality. In the business world, and a little less in the legal world, we see more female leaders at the top. But once a woman reaches that point,...more
12/6/2019
/ Bias ,
CEOs ,
Defense Strategies ,
Diversity ,
Ethics ,
Gender Equity ,
Jury Trial ,
Litigation Strategies ,
Trial Practice Guidance ,
Woman Board Members ,
Women-Owned Businesses
You’ve probably seen the claim, but is it really true that our attention spans are becoming shorter than that of a goldfish? Last year, the presentation software company called Prezi released its 2018 State of Attention...more
I remember once sitting in court early into the defense opening statement, and the attorney was busy thanking the jurors, again. Even though they had already heard the spiel from the other side, and from this attorney’s...more
You’re heading to trial and there is one last hurdle: the mandatory settlement conference that your judge is gunning for. He has signaled at every opportunity that he thinks this is a case the parties should resolve prior to...more
It looks like we are heading into another one of those times, like the OJ or Casey Anthony trials, when all of the nation’s attention will be fixated on an interesting and high-stakes legal process. As the impeachment inquiry...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