Trial Themes Posts

  • To Bifurcate or Not to Bifurcate? — that is the question.

    In my experience as a trial consultant, I’ve found that many attorneys have strong opinions on bifurcation — separating liability from damages. The most opinionated litigators on this subject have had their thoughts colored by personal experience; which while valid, …

  • Teeing it Up For Your Opponent: Refutation should not be so easy

    “As the longest-tenured owners in the NBA, the Sterlings have employed five African-American coaches, scores of African-American players, an African-American general manager who held that job for 22 years and staff….”   I was watching the latest installment of the …

  • Beware of the Unknowns in Your Story

    At the time of this blog, it’s been nearly two weeks since Malaysia Airlines Flight 370 went missing, and the attention paid to this story has grown exponentially over this period of time. I, like most people, find the mystery …

  • Confronting the “Reptile” Strategy with a Classical Human Perspective

    In the 1960s, neuroscientist Paul MacLean posited a model of the human brain consisting of three parts: the reptilian, the paleo-mammalian, and the neo-mammalian.  The “r-complex,” or the reptilian element, which includes the brain stem and the cerebellum, is the oldest part …

  • No, They Don't Have to Understand

    It’s only natural to believe that a concept must first be understood before it can be persuasive. A common mistake in the field of litigation is thinking that the trier of fact has to understand “our technology” to find for …

  • How the University of Miami “Kept the Damages Low”

     The University of Miami, after a long and possibly bumbled investigation by the NCAA, was hit with penalties this week due to a variety of violations, including “lack of institutional control.” Speculation about the ramifications of Miami’s actions had many …

  • What the "Game of Thrones" Novels (not the show) Teach Us about Juries

    One of the things that makes George R. R. Martin’s series of books, A Song of Ice and Fire (which the HBO show is based on) such a success is that each chapter is written from a single character’s point …

  • The Curse of Knowledge: You've Forgotten What You Didn't Know

    How can too much knowledge be a curse? Isn’t knowing more always better? Not when it interferes with your ability to teach what you’ve learned. The curse of knowledge is the idea that once you know something well, you have …

  • Attorneys Need to Keep it Interesting to Keep Jurors Awake

    One of the first bits of advice I always gave novice speakers when I taught public speaking courses was that you need to keep your audience interested in what you are saying.  It is important to have good evidence in …

  • Values and Principles Drive Verdicts as Much as Evidence or the Law

    Most jurors enter a trial with very little expertise on the particular topic at issue. They are unfamiliar with legal concepts like “burden of proof” or “standard of care,” or “proximate cause.” However, all jurors have a sense of what …

  • Stories Are More Powerful Than Data

    September 4th, 2012 I recently came upon a phrase in an article by Maggie Koerth-Baker in the New York Times entitled The Mind of a Flip-Flopper that was a refreshingly succinct way to say something I say (not quite as …

  • Competitive Advantage: Five tips on the effective use of trial consultants

    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 …

  • Dealing with Damages

    King County Bar Association Bulletin, October 2003 Chris Dominic and R. Craig Smith provide 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 …

  • What Washington Jurors Really Think

    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 …

  • Us and Them: A comparison of juror attitudes in Oregon and the Northwest

    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 …

  • Strategy, Planning Lead to Success

    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. Read the Full Article …

  • The Secret to Winning Over Jurors Away From Home: Just Be Yourself

    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. Read …

  • Common Defense Errors

    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 …

  • Article Commentary on "Using the Science of Persuasion in the Courtroom"

    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.”

  • What No One Teaches Lawyers About Communication

    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. Read the Full Article Here: http://tsongasit.wpengine.com/wp-content/uploads/2011/07/denovo1208.pdf

  • Anatomy of a Medical Malpractice Verdict

    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: …

  • Telling Your Client's Story in Eleven Sentences Leads to Better Trials

    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. …

  • Persuasion Starts with Strategy

    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 …

  • Gender Differences in the Courtroom: Understanding and Capitalizaing on Factors that Impact Credibility

    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 …

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