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Thinking Outside the Box About Those Inside the Box
Theodore Prosise, Ph.D. and Matthew McCusker
King County Bar Bulletin,
May 2010
Ted Prosise, Ph.D. and Matt McCusker discuss the problem with assuming that census data is an accurate predictor of who shows up for jury duty. They specifically explore data from King County and compare it to local census data and discuss the findings.
Download Document:
Thinking_outside_the_box_0510.pdf
Shadow Juries: A Unique Advantage in Civil Trials
Theodore O. Prosise, Ph.D.
Verdict (ABA Trial Practice),
Fall 2009
Ted Prosise, Ph.D. discusses the benefits, typical concerns, and methodology of shadow juries.
Download Document:
ShadowJuryArticle.pdf
Planning for Success: Three Ways to Better Manage Your Cases
Thomas M. O'Toole, Ph.D. and Jill Schmid, Ph.D.
King County Bar Bulletin,
October 2009
Tom O'Toole and Jill Schmid share three ways to better manage cases:
1) Use Your Narrative Framework to Guide Discovery;
2) Prepare Key Witnesses for Depositions, and;
3) Plan Ahead for Jury Selection.
Download Document:
Planning For Success.pdf
The Non-Testifying Expert in the Courtroom
Jill Schmid, Ph.D. & Thomas O'Toole, Ph.D.
King County Bar Bulletin,
September 2009
Jill Schmid and Tom O'Toole describe the many attitudes and experiences of jurors on employment cases. The authors discuss implications on the presentation of the case and jury selection.
Download Document:
The Non Testifying Expert in the Courtroom article.pdf
Juror Attitudes in Medical Malpractice Litigation
Thomas M. O'Toole and Bruce Boyd
King County Bar Bulletin,
June 2009
Tom O'Toole, Ph.D. and Bruce Boyd explore some of the most prevalent juror attitude variables in medical malpractice litigation.
Read Article On-line:
www.kcba.org/newsevents/barbulletin/archive/2009/09-06/article5.aspx
Article Commentary on, "How Jury Service Makes Us Into Better Citizens"
Eugene P. Deess & John Gastil
The Jury Expert,
May 2009
Chris Dominic responds to authors Eugene Deess and John Gastil in regard to their seminal research that shows a positive correlation between jury service and civic involvement.
Read Article On-line:
www.astcweb.org/public/publication/article.cfm/1/21/3/How-Jury-Deliberation-Makes-Us-Better-Citizens
Keys to Success in Arbitration
Jill D. Schmid, Ph.D., Theodore O. Prosise, Ph.D., Thomas M. O'Toole, Ph.D.
White Paper,
2009
The authors discuss several keys to success in Arbitration including:
1--The Case Strategy: Developing the Narrative and Case Themes;
2--Witnesses
3--Graphics;
4--The Opening Statement and Closing Argument.
Download Document:
KeysADR2009.pdf
Gender Differences in the Courtroom: Understanding and Capitalizaing on Factors that Impact Credibility
Laura Dominic & Jill Schmid, Ph.D.
Sue,
Apr/May 2009
Laura Dominic and Jill Schmid, Ph.D. discuss gender differences in the courtroom by exploring:
--The masculine/feminine communication continuum
--Nature versus nurture: The socialization of boys and girls
--The impact of gender on decision making - stereotypes and shortcut reasoning
--The impact of gender on credibility
--credibility and walking the thin line
--verbal communication
--nonverbal communication
Republished with permission by sue magazine (www.suemagazine.com)
Download Document:
SueMagazineAprMay2009.pdf
Persuasion Starts with Strategy
Chris Dominic and Bruce Boyd
Verdict: The Journal of the ABA Trial Practice Committee,
Vol. 23, No. 1, Winter 2009
Chris Dominic and Bruce Boyd discuss the problem of "doing a good job of executing the wrong strategy." The authors encourage trial attorneys to ask three key questions when determining their strategy.
Download Document:
PersuasionStartswithStrategy.pdf
Lawyer-Presidents in the Spotlight
Thomas M. O'Toole
King County Bar Bulletin,
March 2009
Tom O. Toole, Ph.D. reports on some interesting facts about the practices of former American Presidents who were also attorneys.
Read Article On-line:
www.kcba.org/newsevents/barbulletin/archive/2009/09-03/article9.aspx
Telling Your Client's Story in Eleven Sentences Leads to Better Trials
Thomas M. O'Toole, Ph.D. and Jill D. Schmid, Ph.D.
DeNovo,
February 2009
Tom O'Toole, Ph.D and Jill Schmid, Ph.D. address the importance and power of keeping even the most complicated cases as simple and clear as possible by prescribing eleven steps. The article can be found on pages 5-7.
Download Document:
denovo0209.pdf
S. Korea Begins Historic Transition to Jury System
Thomas M. O'Toole, Ph.D.
King County Bar Bulletin,
February 2009
Tom O'Toole, Ph.D. reports on South Korea's transition to the use of juries in criminal cases.
Download Document:
SKoreaJuryTrans0209.pdf
A Narrative Framework for Patent Litigation
Thomas M. O'Toole, Ph.D.
King County Bar Bulletin,
January 2009
Tom O'Toole, Ph.D. explores the themes and deep frames that make a difference in the story of a patent case. In this article Tom looks at: the american dream, the invention story, the marketplace, differences over similarities, the Patent and Trademark office (PTO), the first one ot the patent office wins, David vs. Goliath, and "Business is Business."
Download Document:
NarrativeFrameworkPatent0109.pdf
Anatomy of a Medical Malpractice Verdict
Thomas M. O'Toole, Ph.D., Bruce Boyd, Theodore O. Prosise, Ph.D.
Montana Law Review,
Winter 2009, v. 70, no. 1
Tom O'Toole, Bruce Boyd, and Ted Prosise explore, "Three key theories of juror decision-making and courtroom communication" in their article, "Anatomy of a Medical Malpractice Verdict."
The three theories explored include: A) Audienced-Based Communication; B) The Narrative Model; and C) Elaboration Likelihood Model.
Download Document:
AnatomyofaMedMalVerdict.pdf
What No One Teaches Lawyers About Communication
Thomas M. O'Toole, Ph.D. and Jill D. Schmid, Ph.D.
DeNovo,
December 2008
Tom O'Toole, Ph.D. and Jill Schmid, Ph.D. explore some of the fundamentals of communication and advocacy that are essential to litigation but not significantly covered in most law schools.
Download Document:
denovo1208.pdf
Article Commentary on "Using the Science of Persuasion in the Courtroom"
Chris Dominic
The Jury Expert,
September 2008
Chris Dominic provides commentary on Burkley and Anderson's article that takes empirical research on persuasion and applies it to the courtroom setting in the September 2008 edition of "The Jury Expert."
Download Document:
Burkley Sept 2008 TJE1.pdf
Legal Moves Target Credit Card College Marketing
Thomas M. O'Toole, Ph.D.
King County Bar Bulletin,
August 2008
Tom O'Toole, Ph.D. covers the recently changing laws on credit card marketing on college campuses.
Read Article On-line:
www.kcba.org/newsevents/barbulletin/archive/2008/08-11/article15.aspx
Lawyers Helping the Home Guard
Thomas M. O'Toole, Ph.D.
King County Bar Bulletin,
August 2008
Tom O'Toole, Ph.D. tells the story of Alex Straub, a public defender with the Associated Counsel for the Accused (ACA), who is currently on indefinite leave from the ACA because he was called back to active duty for the Washington National Guard, where he serves as a Judge Advocate, or JAG officer. Straub set up a program called Attorneys Assisting Citizen-Soldiers & Families, or AACF for short.
Read Article On-line:
www.kcba.org/newsevents/barbulletin/archive/2008/08-09/article2.aspx
Ten Key Questions: Evaluating the Quality of Mock Trial Research
Theodore O. Prosise, Ph.D.
For the Defense - DRI,
August 2007
Ted Prosise, Ph.D. presents a systematic method for assessing mock trial research to build confidence in the results and serve the client.
Download Document:
FTD-0708-ProsiseNew.pdf
Common Defense Errors
Chris Dominic
Oregon Association of Defense Counsel,
Winter 2006
Chris Dominic highlights some strategic errors that are commonly made and can be avoided. Some of the errors highlighted are:
--Choosing the technical case over the persuasive narrative;
--Using arguments your social group finds persuasive;
--Assuming that your witnesses will be interpreted the way you interpret them.
Download Document:
Common Defense Errors Winter 06.pdf
The Secret to Winning Over Jurors Away From Home: Just Be Yourself
Jill D. Schmid, Ph.D. and Chris Dominic
Oregon Association of Defense Counsel,
Spring 2006
Jill Schmid, Ph.D. and Chris Dominic discuss the temptation to over focus on source similarity issues when addressing juries outside of one's home venue. Five specific suggestions are made as an alternative.
Download Document:
Jurors Away From Home OADC 2006.pdf
Strategy, Planning Lead to Success
Theodore O. Prosise, Ph.D.
King County Bar Bulletin,
October 2005
Ted Prosise, Ph.D. discusses methods for getting an advantage in litigation. Specifically they discuss: Using a Courtroom Setting; Increasing Witness Comfort; Developing the Case Story Early; and Working with Consultants.
Download Document:
Strategy 1005.pdf
Managing the Message: Visual Case Presentation
Theodore O. Prosise, Ph.D.
King County Bar Bulletin,
November 2004
Ted Prosise, Ph.D. suggests how to make case presentations more persuasive and interesting wtih effective visual advocacy for both alternative dispute resolution and trial.
Download Document:
Visual Case Presentation 1104.pdf
Your Witness--Prepare Before Stepping Into the Sun
Theodore O. Prosise, Ph.D.
King County Bar Bulletin,
July 2004
Theodore O. Prosise, Ph.D. shares four principles that help you and your witness testify more credibly.
Download Document:
Your Witness 0704.pdf
Us and Them: A comparison of juror attitudes in Oregon and the Northwest
Chris Dominic
Oregon State Bar Bulletin,
December 2003
Chris Dominic compares Oregon juror attitudes with: Northwesterners; Washingtonians; as well as a comparison of urban to rural Oregon juror attitudes. The findings of the articles are reported from the Tsongas Litigation Consulting 2003 Northwest Juror Attitude Survey.
Read Article On-line:
www.osbar.org/publications/bulletin/03dec/jurors.html
What Washington Jurors Really Think
Chris Dominic
Washington State Bar News,
December 2003
Chris Dominic provides a broad overview of the findings of the Washington State elements of the Tsongas 2003 Northwest Juror Attitude Study. The study is the first, large sample size study of juror attitudes in the Northwest.
Read Article On-line:
www.wsba.org/media/publications/barnews/2003/dec-03-dominic.htm
Dealing with Damages
Chris Dominic
King County Bar Bulletin,
October 2003
Chris Dominic provides an overview of many of the factors involved in damages and juror decision making. The article briefly discusses the variables of: case characteristics, venue, motivation, individual juror attitudes, group dynamics, characteristics of the decision makers, and jury instructions.
Download Document:
Dealing With Damages 1003.pdf
Competitive Advantage: Five tips on the effective use of trial consultants
Bruce Boyd and Chris Dominic
Oregon State Bar Bulletin,
October 2002
The question put to Bruce Boyd and Chris Dominic was "how does an attorney work best with a trial consultant." They answer in this article with five tips on how to get the most out of working with jury/trial/litigation consultants.
Download Document:
Competitive Advantage 1002.pdf
The Powerful and Mysterious American Jury: Common Misunderstandings by Attorneys, Judges and the Public
Arthur D. Monson, Ph.D.
Washington State Bar News,
August 2002
Art Monson, Ph.D. sums up many of the common misunderstandings of juries that many have. The article was created from the combined 45 years of experience of the authors.
Read Article On-line:
www.wsba.org/media/publications/barnews/archives/2002/aug-02-powerful.htm
Juror Dynamics: The Pressure to Conform
The Advantage: 4.09: V.6, 1st edition
Jury Dynamics: The pressures to conform
“I have regrets that I caved in.” “I didn’t have anything sufficient to use as an argument against it, and once you have ten people arguing against you it’s pretty difficult to get anywhere.”
Wh ...
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A View From the Jury Box: Jurors From a Recent Trial Share Their Observations
The Advantage: 12.08: V.5, 3rd edition
We recently had the opportunity to talk with a group of jurors who served on a multi-week trial in a State court case. Six of the twelve jurors met with us to discuss their overall reactions to the trial process. Their observations about the evidence, ...
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Conquering the Invasion of the Bullet Points
The Advantage: 8.08: V.5, 2nd Edition
You’ve all been there – a boardroom presentation, lunchtime CLE, keynote speech at an awards banquet. The lights go dim, the screen comes down, and here it comes – the predictable march of the bullet points. You hope for just one slide with visual interest ...
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Keys to Success in Arbitration
The Advantage: 4.08: V.5, 1st Edition
With fewer cases going to trial, there has never been a better time to reconsider and redesign one’s litigation strategy. Although there are a number of tools and techniques gleaned from jury trial experience that should be applied to arbitration hearings, ...
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Sex in Court
The Advantage: 12.07: V.4, 3rd edition
Pants or dresses? Navy or gray? Heels or flats? Is this diamond too big? Too small? These questions skirt the issue, so to speak. What’s really being asked is “How can a woman lawyer best represent her client in a context that has been dominated by ...
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A View From the Bench: A series of informal interviews with the men and women who see the most courtroom action: our state and Federal Judges
The Advantage: 9.07: V.4, 2nd edition
A judge’s rulings on motions and objections can provide an immediate reading of the judge’s view of very specific issues. Occasionally, a judge will reveal opinions about the nature of trial or the conduct of counsel-- some of which may not be what you ...
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Shadow Juries: A Powerful Tool to be Handled With Care
The Advantage: 9.07: V.4, 2nd edition
A “Shadow Jury” can have several different meanings depending upon the attorney or the consulting firm using the term. Typically, Shadow Juries involve the use of four to six people who have been recruited from the trial venue and have been screened ...
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Jurors' Common Wisdom: "I don't know...I'm just the CEO"
The Advantage: 5.07: V.4, 1st edition
In our last “Common Wisdom” column, we told you that many jurors assume that plaintiffs’ attorneys take a third of the money awarded and often adjust the award accordingly. Another issue jurors insist they know as well as fee arrangements relates to ...
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Witness Credibility: A multi-dimentional construct
The Advantage: 5.07: V.4, 1st edition
Anyone who has tried enough cases has probably learned what is meant by the adage, “Even the best case can be lost when a witness fails on the stand.” The days following a trial where this has happened are often consumed with trying to assess what went ...
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Arming Your Jurors for Deliberation
The Advantage: 12.06: V.3, 3rd edition
Over the past fifty years, an extensive amount of literature has been devoted to an examination of the impact of “extra-legal” factors on a jury’s decision-making process. “Extra-legal” factors are those factors that lie outside the scope of what is ...
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Insider Tip: Meeting your consulting needs
The Advantage: 12.06: V.3, 3rd edition
As 2006 comes to a close, we reflect on the various work our firm has provided throughout the year. Of particular note is the number of seminars (CLE presentations, seminars for national and regional law organizations, etc.) that our consultants have ...
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Jurors' Common Wisdom: "Attorneys take a third"
The Advantage: 12.06: V.3, 3rd edition
As much as we’d like to think that jurors adhere to the Court’s instructions not to consider attorneys’ fees when discussing damages, jurors invariably do. Our firm has conducted over 400 mock trials (approximately 1200 mock jury panels), and with very ...
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Fundamentals of Opening Statement Preparation: Speech 101
The Advantage: 8.06: V.3, 2nd edition
Whatever else your opening statement might be, it is fundamentally “just a speech.” This is in no way meant to minimize the importance of an opening or make light of the pressure or anxiety felt when faced with the daunting task of writing one. It ...
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Industry Update: Trial consultants practicing more prior to ADR
The Advantage: 8.06: V.3, 2nd edition
On a recent case a lively discussion ended abruptly when a member of the trial team innocently asked, “What is our plan for mediation anyway?” Upturned mouths went straight and the silence became awkward as they realized that for all of their hard work ...
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How Will My Jury Arrive at Damage Figures?
The Advantage: 4.06: V.3, 1st edition
The sheer amount of information that jurors are asked to process in a trial is daunting for even some of the most sophisticated minds. Fortunately, humans seem to be pre-programmed for such tasks in their ability to cognitively store information by ...
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You Have More Important Things to Worry About
The Advantage: 4.06: V.3, 1st edition
A particularly common scenario for trial consultants involves an attorney that is about to present a case in front of a jury vexing over presentational details such as which suit to wear. These questions typically merit a simple response: “You have ...
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Indicators of Quality in Pretrial Small Group Research
The Advantage: 12.05: V.2, 3rd edition
All focus group and mock trial research is not created equal. With the growing prevalence of focus groups and mock trials as assessment tools prior to Alternative Dispute Resolution, it is important that attorneys are aware of what the indicators of ...
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Practice Tips: Fighting the defensiveness demon
The Advantage: 12.05: V.2, 3rd edition
“Attack Back!” – It’s usually a person’s first response to an attack. It is how the game is played—an offense and a defense. However, when you are looking to a jury or to the court for a win, simply defending against the opposition’s attacks does not ...
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Tsongas Expands Seattle Presence: Opens new office and state-of-the-art facility
The Advantage: 8.05: V.2, 2nd edition
The Mock Courtroom/Focus Group facility at Tsongas Litigation Consulting - Seattle is the only one of its kind in the Northwest, and one of the few in the nation specifically designed for conducting mock trials and other pretrial research. Tsongas’ ...
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A View From the Bench: Interview with the Honorable R.E. Jones, Senior Judge of the US District Court of Oregon
The Advantage: 3.05: V.2, 1st edition
Rulings on motions and objections provide an immediate reading of the judge’s view of very specific issues. Occasionally, a judge will reveal observations about the nature of trial or the conduct of counsel – some of those may not be what you wanted ...
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Voice of Experience: "Does closing really make a difference?"
The Advantage: 3.05: V.2, 1st edition
Does your closing argument really make a difference? Yes, but probably not for the reasons you think.
In our December 2004 issue of The Advantage, we explained that despite common wisdom, jurors do not make up their minds after opening stateme ...
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Debunking a Common Myth: Jurors DO NOT make up their minds after opening
The Advantage: 12.04: V.1, 3rd edition
A common myth among the legal community is that jurors make up their minds about a case at the end of opening statements. The origin of this myth can be traced largely to a misreading of the 1966 University of Chicago jury study by Kalven and Zeisel, ...
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Graphics Update: Frequently asked questions about graphics
The Advantage: 12.04: V.1, 3rd edition
1. Aren’t graphics expensive?
Good visuals can be used in every phase of litigation: to help illustrate your arguments brief or motions, to clarify your case strengths for the mediator, and/or to send a message to the opposition that you are ser ...
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Practice Tips: Starting Your Opening with the Silver Bullet
The Advantage: 12.04: V.1, 3rd edition
Our April 2004 Newsletter article, “The Case Story and Juror Reasoning,” explained why composing your opening in the form of a story is so important. We have long recommended condensing that story to a single, high impact paragraph we call a “Silver ...
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Voice of Experience
The Advantage: 12.04: V.1, 3rd edition
A common myth among the legal community is that jurors make up their minds about a case at the end of opening statements. The origin of this myth can be traced largely to a misreading of the 1966 University of Chicago jury study by Kalven and Zeisel, ...
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Practice Tips: "Do I need a focus group or a mock trial"
The Advantage: 4.04: V.1, 2nd edition
The term “focus group” is widely misused to describe any pre-trial jury simulation research. We often have clients asking for focus group research when what they really need is a mock trial. Tsongas, and many practicing trial consultants, make a clear ...
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The Case Story and Juror Reasoning
The Advantage: 4.04: V.1, 2nd edition
In a recent mock trial, learning jurors found two emails more persuasive than a statistically significant academic study surprised our clients. Both the emails and the study suggested the same thing. One might think scientifically based evidence would ...
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The Slippery Slope of Allowing Discovery of Attorney Work Product
The Advantage: 4.04: V.1, 2nd edition
Imagine that you are in your conference room, preparing a client for an upcoming trial, when your paralegal comes in to give you a message. Off the cuff, you ask him or her what a jury might think about the client’s appearance, as a witness. The next ...
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Incorporating Your Themes While Identifying Your Strikes
The Advantage: 1.04: V.1, 1st edition
So you want to “sell your case” in voir dire? Despite many attorneys’ desire to instill their themes during jury selection, Tsongas has long taken the position that lawyers need to minimize the time they spend talking and maximize the time the spend ...
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Industry News: Runaway Jury as a sign of the times
The Advantage: 1.04: V.1, 1st edition
There are a few arguments over when the field of “jury consulting” began. Most agree that the field as we know it began in the early 1970s when social scientists worked assisted attorneys in the Harrisburg Seven trial. Since then we have seen incremental ...
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Research Services Profile: Community Attitude Survey
The Advantage: 1.04: V.1, 1st edition
The community attitude survey is an extremely powerful social scientific tool that has proven to be quite useful in the world of litigation consulting. In its most common form, the telephone survey, it allows one to poll a large number of people, in ...
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