Deliberations

What Great Basketball Coaches Can Teach Us About Trial Prep

2012-01-24T09:40:25-08:00

Dean Smith, the hall-of-fame University of North Carolina basketball coach, was a master at preparing his players for opponents. I once heard a story that described a time when Coach Smith had to get his Tarheels ready for an opposing team that had significant height at numerous positions around the court. Rather than having a normal practice, he gathered brooms and mops from the janitorial closet and distributed them to defenders as arm extenders to block shots. If Coach Smith’s players could shoot over brooms, then they could certainly shoot over their upcoming vertically-enhanced opponents. Like many of the best...

Don’t Call Me Fluffy: One Perspective on Mock Trials

2012-01-18T19:20:42-08:00

As a profession, litigation consulting sometimes faces a fluctuating level of credibility within the legal community. At times, trial attorneys question the necessity and even the validity of some trial consulting techniques. Similar to the blowback psychologists encountered at the birth of their field, uninformed naysayers have readily utilized the terms “fluff science” and “voodoo” to describe our work. In my opinion, this is not an accurate description. While I have anecdotally heard of incidents of litigation consultants ignoring a full analysis of questionnaire results in favor of “the gut feel”, I believe that most would agree that carefully reviewing...

The Dangers of “Sending a Message” Through Damage Awards

2011-12-27T16:29:49-08:00

Colleen and Robert Middleton suffered an unspeakable tragedy. In 1998, their 8 year old son (Robbie) was allegedly set on fire by a sexual predator named Donald W. Collins. While he survived the initial attack, Robbie Middleton died 13 years later of cancer that originated from the skin grafts utilized to treat his burns. The criminal case inexplicably disintegrated (read more about it here) , so the Middletons sued Mr. Collins for wrongful death. After seeing videotaped testimony from the now deceased Robbie, a very emotionally charged jury found in favor of the plaintiff. However, they decided to “send a...

Religion, Politics, Sex (and Sports?): Remembering the Power of Emotions

2011-11-22T14:55:10-08:00

In a recent Psychology Today blog, Sam Sommers explores why Penn State fans would hold a pep rally on Joe Paterno’s lawn despite allegations suggesting he turned a blind-eye towards child rape. It is easy to dismiss these people as rabid football fans who have become soft in the head after years of keg stands and beer funnels. However, a closer examination suggests that this behavior is something we are all capable of. There is a long history of sports fan delusion. One can still see Atlanta Falcons fans who wear Michael Vick jerseys despite his dismissal from the team...

IN DEFENSE OF LITIGATION CONSULTING...

2011-11-03T10:54:46-07:00

Every so often, the field of Trial Consulting comes under attack. Despite our 35 year history, some in the legal field continue to believe that the use of consultants is equivalent to buying car seat warmers. Sure it feels good in the winter, but warm butts have nothing to do with getting you where you want to go. Everyone has the right to their opinion. However, things change dramatically when a judge or prosecutor tries to utilize the law to impose this opinion on parties to a case. Last year, Sonia Chopra and I (Matt McCusker) wrote an Amicus Brief...

Debating “.45-caliber lead cocktails” Instead of Death-Qualified Juries

2011-10-17T11:33:31-07:00

Florida State Representative Brad Drake recently introduced a bill that would change the State’s death penalty options from lethal injection, to firing squad or electric chair. Apparently, this would somehow speed-up the infamously long death penalty process. Drake noted: “I say let's end the debate. We still have 'Old Sparky.' And if that doesn't suit the criminal, then we will provide them a .45-caliber lead cocktail instead... If it were up to me we would just throw them off the Sunshine Skyway bridge and be done with it… In the words of Humphrey Bogart (sic), 'Frankly my dear, I don't...

Defending Corporate America In Court: Bigger Is Not Better

2011-10-10T11:23:07-07:00

As Wall Street zombies block the Brooklyn Bridge, the American public is struggling with an acute case of Dissociative Identity Disorder. (*Note: Possibly, my best opening line ever.) We don’t trust big corporations, but we need them to create jobs. We don’t trust big government, but we need it to protect us from the corporations. However, the many bailouts since 2008 have suggested there may be some connection between big government and big corporations (he said sarcastically). Small local companies seem to have genetic immunity to our vitriol, but who can tell what is small anymore (see Starbucks’ 15th Ave...

Legalese After-Math: When Jurors Forget to Carry the One

2011-09-21T11:11:26-07:00

The Indiana Court of Appeals recently ruled that a plaintiff was not entitled to several hundred thousand dollars that the jury allegedly thought it was awarding (but didn’t). According to a juror’s affidavit, the group became confused during the deliberation process and accidentally lowered the dollar figure. In addition to being bewildered by the jury instructions and verdict form questions, the jury had to request multiplication help from the judge in open court. As a result, they actually awarded $128,172, instead of the $464,472 that was claimed to be the intended award. Some might view this as another opportunity to...

Doggie Witness Prep (Coming To A Courtroom Near You?)

2011-08-16T13:24:38-07:00

Recently, a loveable dog named Rose (Rosie to her friends) sat next to a child witness in court while she gave testimony about the brutal rape and impregnation she endured at the hands of her father. Yes, a dog sat in the witness stand. Rosie is a service dog that can sense anxiety and was provided to the young witness to aid her in the process of testifying. At one point, the help was very evident when Rosie “nosed” the child during a particularly difficult bout of answers. While this is the first instance of “comfort dog” use during testimony...

A Juror Reminds Us That The System Works

2011-08-11T11:41:46-07:00

Last week, Ed Fletcher of the Sacramento Bee wrote a truly insightful piece about his jury service on a criminal trial. Not surprisingly, the story got little attention from media outlets around the country. (Apparently, only incite-ful jury pieces need apply.) The title of the column was “I voted to send another brother to prison.” Mr. Fletcher is a black man (as was the defendant). Mr. Fletcher is a journalist. Mr. Fletcher was leaning towards a not guilty verdict at the trial’s opening. Most importantly, Mr. Fletcher was the foreperson. To some prosecutors (and armchair lawyers), this would be a...

Legal Codes, Moral Codes & Nuclear Codes: Casey Anthony's Radioactive Fallout

2011-07-12T23:41:12-07:00

(Blogger’s Note: I am reticent to write a blog about the same subject two weeks in a row. However, an event like the Casey Anthony acquittal is an extraordinary occurrence. It has garnered a sustained media frenzy that can only be likened to lowering an elephant into a piranha tank. Moreover, rarely have we seen an episode that seemingly shakes the American public’s faith in the jury system. As a result, I am centering on Ms. Anthony’s case again in this blog. Next week: YouTube’s most popular furry animal video.) Watching cable news, the closest comparison to this trial (by...

The Real Danger from Casey Anthony's Trial: Scary Scientific Precedents

2011-07-04T11:45:43-07:00

A cause of death that cannot be determined by the State’s medical examiner, but can be asserted on the stand by an anthropologist who has never done an autopsy. The morphing of a projected child’s photo into a picture of her skull. The description of a colorless decompositional fluid (which is typically black). Air samples that contain "the smell of death." A phantom image of heart sticker that “disappeared” before the examiner could return to photograph it. These are some of the worst examples of “evidence” that the State has used to make its case against Casey Anthony. Most of...

The World's Most Expensive Real Mock Trial Points to Simplicity

2011-06-28T12:16:31-07:00

“The problem was with some of his explanations. It reminded me of a little kid who gets his hand caught in a cookie jar. He says, ‘Mommy I wasn’t taking the cookies. I was just trying to protect them and to count them.’” — Richard Kling, professor at Chicago-Kent College of Law who watched much of the trial, on Blagojevich’s testimony. The jury is back and Blago is guilty on 17 counts. The great State of Illinois can now proudly list four of its governors as convicts. This begs the question: What changed the second time around? I would argue...

Juries get it right 95% of the time?

2011-06-15T08:43:08-07:00

As a litigation consultant, it has been my pleasure to work with judges across the country to help spread the word about the benefits of well-designed voir dire that truly unearths bias. However, I have also run into friendly debates with judges who are not thrilled with my line of work. These individuals typically feel that the use of professionals to search for bias in potential jurors is more often utilized to manipulate the system, than to protect it. The evidence that I most often hear in support of this perspective is that (with or without litigation consultants)… “Juries get...

ASTC Annual Conference in Sunny Seattle Next Week!

2011-06-02T17:20:01-07:00

Given that Deliberations is now operated by the American Society of Trial Consultants (ASTC), I feel the need to pay homage to the great work the planning committee has done for next week's annual ASTC Conference in Seattle. The event is running from June 9th to 11th and promises to really deliver on the 30th Anniversary hype that it has generated. Thursday's session speaks to both new consultants and those who are more seasoned by offering a presentation track for each. Those who want to learn more about the field can take TC101 and get in-depth discussions about the basics....

How Does Nancy Grace Anger the French?

2011-05-23T12:15:26-07:00

Last week’s news cycle was dominated by two criminal cases: Dominique Strauss-Kahn (or “DSK” as some in the media have affectionately dubbed him to avoid linguistic effort) and Casey Anthony (if you haven’t heard of this case, welcome back from that research trip in Antarctica). Strauss-Kahn has been in the preliminary stages of being charged while the Anthony case has reached the exhausting challenge of jury selection, but both demonstrate a major conundrum within the U.S. Constitution: How does one balance freedom of the press with the right to a fair trial? The French are up in arms (not literally)...

Yo Quiero Taco Bell’s Legal Strategy

2011-04-21T14:33:07-07:00

“Hooooold me now. It’s hard for me to say I’m sorry. I just want you to stay (as a defendant).” - Chicago Yesterday, Taco Bell leveled a smackdown of epic proportions through an open letter to opposing counsel in a class action suit. It was witty, in-your-face and broadcast through newspapers across the land. The full page ads began with a giant-fonted question: “WOULD IT KILL YOU TO SAY YOU’RE SORRY?” (I highly encourage you to read the full ad here, it’s a riot.) Alabama plaintiffs’ law firm Beasley Allen recently decided to run for the border and withdraw the...

Ask Me No (voir dire) Questions, I’ll Tell You No Lies

2011-04-12T17:24:37-07:00

How far will someone go to avoid jury duty? While many suggest that pretending to be a racist is a common juror escape strategy, I question how many people are willing to take this route. Moreover, I tend to believe that anyone who is so unbalanced as to publicly present themselves as a devout racist (truthfully or not) would be a poor juror on any case. However, is punishing this behavior really a good idea? A Federal judge in New York thinks so. Judge Nicholas Garaufis was so angry at a woman for racist comments during voir dire that he...

Using Metaphorical Language Can Cure an Ailing Case (Research proves it!)

2011-02-28T16:33:15-08:00

We have all felt beaten down at one point or another while preparing for trial. We’ve been lost in the woods and unable to keep our heads up as we slowly sank into a seemingly inescapable abyss. Then suddenly, an idea landed out of nowhere. We grasped it and utilized the concept to climb out of the desperate circumstances. After a little sweat and tears, we freed ourselves from old themes and ran to victory with a new strategy. Okay, so going too metaphorical may be overkill. However, it is undeniable that the paragraph above relayed a palpable scene of...

Judicial Variability: To serve at the pleasure of the King (or Queen)

2011-02-07T04:34:00-08:00

Judge Valerie Vega (coincidentally out of Vegas) recently made news by ordering jurors in a murder trial to stay all-night to finish hearing and eventually deliberating the case at hand. In fact, the jury began deliberating at 3am (after 13 hours of trial) and finished at 7am. While juror overtime is not uncommon, this was extreme. After the sun rose, the jury ended up acquitting Victor Fakoya in the murder of a 2-year old child that was in his care. However, what made this story truly newsworthy was Judge Vega’s reasoning. Shockingly, she was set to start a two-week vacation...

Blue Chip Lawsuits: “We do what banks won’t.”

2011-01-25T11:08:16-08:00

Imagine a world where you could buy and sell a financial interest in a lawsuit like one does with shares of Microsoft or Ford. Picture yourself looking at the Wall Street Journal to what price your investment in the Jones v. Home Depot case was trading at. Does this sound crazy? Believe it or not, this is not as unlikely as one might think. When the Dow was in the tank, investors searched for new opportunities that escaped a beaten down and skittish market. One avenue that began to gain ground was the area of lawsuit investments. The upside is...

A Story of Social Media Enlightenment: It's not just for kids anymore

2010-12-08T09:44:26-08:00

(A big thank you for this Guest Blog from the ASTC Professional Visibility Committee written by Joe Rice.) I have watched the trial consulting industry evolve slowly over the past 22 years. However, like a scene from a Sci-Fi movie, I feel like some aspects of our field have moved at an incredible pace. Generally, these have been associated with technology. While some have seen me as being fairly progressive in my use and adoption of technology, there are a few areas that I have been reluctant to explore. For example, I have been slow to venture into the seemingly...

One Underwear Bomb = 10 Million Nudie Pics (The Question of Body Scanner Legality)

2010-11-10T14:45:53-08:00

“Opt out!” the TSA officer yelled at me in a startling manner as I stood in the security line at Reagan Washington National Airport. “Opt out!” I heard in the distance. “Opt out!” was yelled for a third time from another direction as my head swiveled and everyone seemed to be staring at me. Suddenly, my bags were swept off the X-ray machine and I was instructed to remove everything from my pockets (boarding pass, a gum wrapper, a crumpled Starbucks receipt), untuck my shirt, hike up my pants and “assume the position” for a disturbingly invasive frisking that seemed...

If Miss Cleo Couldn’t Predict a Jury Outcome, WHO CAN?

2010-10-22T12:47:49-07:00

In an end to an illustrious career, Miss Cleo and her Psychic Readers Network came to a landmark settlement with the Federal Trade Commission where the company sacrificed $500 million dollars in fees and paid a $5 million fine for deceptive business practices. This result brought three questions to my mind: A $500 million settlement! How much money was Miss Cleo Making? How much did she “psychically predict” a jury would award? This is just one example in a sea of settlements based on predictions of trial outcomes, I must ask: How accurate are these predictions? If I wore a...

Mississippi Healing: The Rise of Pro Bono Trial Consulting

2010-10-04T06:00:00-07:00

This post is by guest-blogger Edward Schwartz (The Jury Box), the Chair of the ASTC Pro Bono Committee. It coincides with the launch of the new sidebar link to the ASTC Pro Bono Initiative (look to your right). I have been assailed by the rigors of life and shall return next week with a new fun-filled episode. Thanks Edward! Did you know that you might be able to get free trial consulting for your next case? ASTC consultants have assisted in a pro bono capacity in a whole range of cases. From a simple eviction hearing to a case that...