Tsongas Litigation Consulting, Inc.

Too Much Confidence, Tsongas Litigation Consulting Blog, July 8, 2008

The strongest attributes of any individual ofter produce their greatest strengths as well as their greatest weaknesses. Litigators are often lauded for their unshakable confidence. No doubt this is a key characteristic for anyone who is an advocate for others in an adversarial system. However, the liability that sometimes develops along with this asset is an attribution error most commonly referred to as Egocentric Bias.

Litigators see this judgment compromiser rear its ugly head when they have a client who has been very successful so they presume they are good at the attorney's job as well (i.e., I'm a smart person so I should trust my own judgment more than the trained specialist). Attorneys should consider this frustrating situation when they believe during jury selection that they can change the closely-held attitudes that jurors have formulated from their life experiences. There is simply too much research that demonstrates that most people, absent traumatic events in there life, just don't change very easily past a certain point in their life.

The odds don't favor a strategy intended to get a "tort-reformer" to be a "non-tort reformer" or someone who makes decisions with their heart over their head to suddenly be a pragmatist. A strategy with favorable odds is one that focuses on learning who your jurors really are and presuming they will be themselves. Anything short of this strategy risks putting yourself in Icarus's shoes.

Posted by Christopher J. Dominic.

Attorney Conducted Jury Research, Tsongas Litigation Consulting Blog, July 2, 2008

At the most recent American Society of Trial Consultants conference in Chicago there were multiple conversations in panels, and halls about the dangers of practicing attorneys conducting their own research. From the conversations I took away that there are three primary problems: 1) practicing attorneys rarely have the educational background to fully understand how to design and conduct jury research; 2) they don't have experience conducting quantitative or qualitative research; and 3) a little something called Confirmation Bias. To put it simply, it's the tendency for people to look specifically for something in the research to confirm their own suspicion as opposed to looking at all of the data and discovering the findings in their plainest, truest, sense.

Of course, this is dangerous. For attorneys and their clients. One consultant commented that it was the equivalent of one doing surgery on themselves. So why does this happen? A few reasons that some have speculated about are: overconfidence; a desire to keep "costs down;" and, the desire to have fees that are going out to consultants, going into their firm.

The reality is, contrarty to popular belief, there is a point where no research is better than some. The risk of developing a case based on dinner-party feedback from one's own social group can be extremely dangerous. There are other ways to develop a case that has a small litigation support budget that are more effective than trying to turn a "sow's ear into a silk purse." Many have found the article we published in December of 2005 Indicators of Quality in Pretrial Small Group Research to be helpful in educating others on what really matters in jury research.

Posted by Christopher J. Dominic.

Discomfort with Presentation Technology No Longer at Reasonable Excuse, Tsongas Litigation Consulting Blog, June 12, 2008

We’ve worked with attorneys over the years that have cited discomfort with technology as the reason they want to use a flip chart and pens in trial instead of more professionally constructed visual aids that are projected along with a key board or two, such as a timeline. While many attorneys believe that information clarity and retention will be improved (after all there have been a host of articles discussing the benefits), many of those same attorneys will reject methods they have not used in the past because they believe their unfamiliarity with the process will hamper their presentation to the extent that overall, they believe they would be less effective using modern presentation technology. This is a logical and reasonable argument. Sometimes we can persuade the attorneys anyway, sometimes we cannot.

After seeing several opening statements and closing arguments over the last year, I believe that the competitive disadvantage associated with older visual methods is so significant it should rarely be done, and only then for strategic, not competence reasons. The case I have been involved in most recently provided the starkest contrast in approaches. The attorneys were all in their 50s and 60s. Quite simply, the ones with the visuals generated the most juror note taking and attention. The ones that did not generated nearly zero note taking (I’m not exaggerating). After 45 minutes of speaking, the group looked distracted and few notes were taken.

Those uncomfortable with technology going forward will need more help from others to compensate. However, accepting presentation methods that clearly put one and their client at a competitive disadvantage simply don’t make sense.

Posted by Christopher J. Dominic.

Juror PTSD--Fair or Foul, Tsongas Litigation Consulting Blog, May 11, 2008

The discussion of juror stress resulting from getting up close and personal with disturbing and graphic images has been around for a while now. A recent story that was brought to my attention through a contact in the American Society of Trial Consultants got me thinking about where I stand on the topic. Is this all being blown out of proportion or have we been scarring jurors for hundreds of years? Of course, reality is probably somewhere in between and it (of course) depends on the juror. If nothing else, this line of thought had me recalling an interesting conversation I had with a reporter from a major metropolitan newspaper a few months back about possible juror misconduct in a murder case.

The reporter had called me to find out what I thought about the issue. Apparently one of the jurors was claiming the arguments from some jurors had crossed into coercive territory and that juror was upset about what they believed to be misconduct.

After laying down caveats that I was unfamiliar with the details of the case, I told the reporter that this sort of jury misconduct was often difficult to prove. The reporter seemed surprised and asked me why. I mentioned that while it was fairly easy to determine the sort of jury misconduct that comes from not following judge's orders (e.g., "Googling" about the case), "coercion" is often a misunderstood term. Coercion is simply to "achieve (a decision) by force or threat " and it is the good ol' alternative to actual persuasion.

I asked the lawyer if any threats had been made. The reporter said that he hadn't heard of any. I told the reporter that if they find a threat then they have found misconduct, other than that, he may be looking at something far more gray. For example, this could be the case of a passionately delivered argument by a juror that may have raised their voice or become otherwise emotional with a conflict-avoidant juror. I explained to the reporter that some people manage to avoid conflict for years only to be forced to face conflict during jury service. I found out this explanation described this case appropriately, some time later.

It occurred to me that this sort of conflict-avoidant juror was precisely the type of juror that may actually develop a disorder from jury service. Should conflict-aviodant, squeamish, or otherwise empathetic citizens not serve because of their dispositions? Of course not. While I don't believe Juror PTSD is the sort of thing that we need to overreact to. It is the sort of thing that we need to be responsible about. If someone feels that they could use some psychological assistance as they come off of a trial they found to be difficult, than the system ought to provide some reasonable assistance for them. However, the jury system we have in place must not ever become an avenue for additional litigation. The idea that a juror can sue the state or federal government for emotional damage is the sort of line that shouldn't be crossed.

Posted by Christopher J. Dominic.

Cheap Jury Research, Tsongas Litigation Consulting Blog, April 27, 2008

I'll confess to having a bias here. I'm not a big fan of what I refer to in the title as "Cheap Jury Research." However, it's not the "cheap" part that leads to my distaste. It's the limitations of the research that typically goes with the "cheap." If our clients have confidence in the findings of a research project, alter their strategy, and then go off to trial and get a big surprise--well, it's not good for anyone.

With this said, every project is different and sometimes it makes sense to not put as many resources into one portion of the project or another depending on the research goals. The key here of course, is that the client understand the limitations. The quickest way to learn what the list of factors are can be found in an excellent article entitled "10 Key Questions: Evaluating the Quality of Mock Trial Research" that was published in the August 2007 of DRI's Commercial Litigation issue. By actually using the 10 Key Questions as a checklist, the client can say "I'm okay with that limitation" or "I'm not okay with that limitation." This way, everyone involved in the project has more aligned expectations, the research is what it's supposed to be, and client satisfaction is better.

Posted by Christopher J. Dominic.

Overstated Claims on Shadow Juries, Tsongas Litigation Consulting Blog, April 1, 2008

Theres no doubt that when executed well, whats been come to be known as a Shadow Jury is a powerful tool that helps get good feedback to a trial team on how clearly and persuasively they gets their case out (click here for a relevant article). However, a colleague of mine recently directed me to the website of a company that claimed that they can predict the verdict at each stage of the trial from the reactions of the shadow jurors. This is a dangerous claim to make. Shadow juries are useful feedback tools and they can give an advocate a good sense of what is working and what is not. But this implies a perfect level of prediction and that just isnt possible. We have heard numerous praises from attorneys who have heard loud and clear from a group of shadow jurors that they didnt get the point that was trying to be made from a witness in Direct Testimony. The attorney then got confirmation the next day that she got the information in through another witness. This example shows one of the many ways this tool gets used most effectively. Posted by Christopher J. Dominic.

KEYS TO SUCCESS IN ARBITRATION, Advantage Newsletter, April 2008.

The fifth volume and first edition of The Advantage includes: --Keys to success in Arbitration; --Do's and Don'ts from the campaign trail; --Curious litigation facts about three American Presidents.

Do Cell Phones Hurt Jury Research?, Tsongas Litigation Consulting Blog, March 4, 2008

A common question we get when planning on recruiting mock jurors or setting up a community attitude survey is "Are you going to get through to people with cell phones?" The question comes from the fact that we use Random Digit Dialing (RDD) to make sure that representativeness in the venue is as well maintained as best possible.

With this background in mind it's not surprising that we often get an inquisitive look when we answer this question with a "no." The random numbers generated cover everyone with a land line which means it gets to people with unlisted numbers just like jury service would (it's legal because we are hiring, not selling). So, the ultimate question is, "Will not having participants who are 'cell-onlys' decrease the representativeness of our sample for jury research." So far, the answer to that is "no" as well. Attitudes are still not significantly different between the different groups. A Pew Research Center Publication that was released earlier this year provides support for the position.

Will this be true next year? That fact is unknown, this is the sort of change that everyone in the field has to continue to track. Posted by Christopher J. Dominic.

"What Women Lawyers Really Think of Each Other", Tsongas Litigation Consulting Blog, February 9, 2008

The ABA Journal came up with a compelling headline for their article "What Women Lawyers Really Think of Each Other" this month. This survey of over 4,000 respondents revealed some interesting findings. In particular, women over 40 who were also supervisors, "who said gender mattered to them preferred working with women. About 80 percent said female lawyers take direction better, take constructive criticism better (59 percent) and have more discretion (79 percent). But younger female attorneys who are following in the footsteps of that trailblazing generation don t hold their older colleagues in such high regard. Among female lawyers under 40 who thought gender matters, 58 percent said male supervisors give better direction, give more constructive criticism (56 percent) and are better at keeping confidential information private (64 percent)."

Author Stephanie Francis Ward does an excellent job of getting experts to weigh in on the study. There appears to be some consensus that the gender gap is a small window and that the difference between female lawyers under 35 and over 45 is significant.

This survey raises interesting questions about the possibility that this gender gap may apply in some degree to women professionals as a whole. Other possible implications are to employment cases involving women supervisors. Both, in regard to strategy and to the high risk juror profile.

Posted by Christopher J. Dominic.

Judges vs. Juries: Research v. Public Opinion, Tsongas Litigation Consulting Blog, January 23, 2008

Anecdotally, it seems like most people believe judges would give a more fair verdict than a jury. After all, it seems like many of the studies done to see how often juries "get it right" are done by comparing their decisions to judges with the underlying presumption that the judges got it right and the jury got it right if they decided the way the judge did. I've even had people say to me that juries are only around because of the Constitution and if we had to do it all over again we'd ditch the idea as a romantic nod to democracy created at an odd point in history.

Of course, those who look at research done on juries know to be true what storied researcher Neil Vidmar has stated after looking at scores of data, "Indeed, the data suggest that because jury verdicts result from the combined judgments of six or twelve persons, juries likely yield more consistent awards that would be obtained from judges or individual arbitrators."

So when the Harris poll came out the other day it was refreshing to see the results. A mere 23% believe that a Judge would give a more fair verdict, 27% state they are "not sure" (which is only fair), with half the population believing Juries give a more fair verdict. Furthermore, it was encouraging to see that 44% of Americans has reported to jury duty and 24% have been seated. Considering other research that says that serving as a juror increases civic duty, this is good news. Posted by Christopher J. Dominic.

Googling the Jury, Tsongas Litigation Consulting Blog, January 13, 2008

The podcast "Should I Google the Jury" from the ABA website addresses an issue that comes up occasionally with lawyers and litigation consultants. Some attorneys are big believers in "researching" their jurors this way. We've found that a well crafted set of attorney conducted questions and/or a good supplemental juror questionnaire are far more powerful tools. True, an Internet search could deliver interesting information but it's far more likely to give you information on par with learning what bumper stickers are on their car. Again, it's not useless, it's just usually not that useful. If you case involves a "word of mouth agreement" you might as well find out what your jurors think about "oral contracts." Many jurors don't believe that oral contracts are enforceable and are good cause challenge in many courts. Regardless of what you can get from the world wide web, it will not change the fact that learning specific the specific attitudes of your jurors is the best juror due diligence you can do. Posted by Christopher J. Dominic.

Juror Questions During Trial, Tsongas Litigation Consulting Blog, December 29, 2007

Florida will be the latest state to allow questions from jurors starting in January 1, 2008. Several have asked me to comment on the idea. I've come to the position that it can be a great benefit to the case and it can also be a disaster. If handled correctly, it's a good thing.

The dissenting judge in the decision to make this allowance, Justice Peggy Quince stated, "I strongly believe that it is the responsibility of the parties, through their attorneys, to present the evidence to the jury in the form of their questions and the physical and demonstrative evidence." I couldn't be more sympathetic to this position but believe we can have it both ways.

If the attorneys do not prepare effectively, the avalanche of questions coming from the box will slow down the trial as the judge sorts through them. There is no doubt that "questions alone" do not address the problem of poor preparation. However, human communication is a difficult task, particularly in a trial setting. If just a few key questions make it to the judge, who asks them because well...they are good questions that are allowable by law as the judge sees it, it's tough to argue with the concept that a more accurate understanding of the attorney's positions is a bad thing.

After all, the Arizona Jury Project did much to show everyone what many litigation consultants have known for decades, that overall, juries can be trusted to do a good job and even when bias and other issues become a factor in decision making these problems inherent in human beings that can be minimized but not eliminated. Author Shari Diamond summed up this position in the Annual Review of Law and Social Science (vol. 1: 255-284, December 2005) by stating, "Juries make mistakes, and they display evidence of bias, but there is no convincing evidence that another decision maker would do better."
Posted by Christopher J. Dominic.

The Verdict on Juries and Patents, Tsongas Litigation Consulting Blog, December 15, 2007

The debate has raged for years as to the appropriateness and competence of juries in Patent cases. A few years ago, I was quite proud of Senior Consultant, Bruce Boyd (one of my partners at Tsongas) for boldly and publicly stating, "The modern American jury is a miracle in terms of what it can dig through and understand. I ve personally never seen a case where I d recommend a judge because the facts were too complex." This quote was taken by Janine Robben in an article she wrote for the April, 2005 Oregon State Bar Bulletin entitled Specialized Courts vs. The Jury of Peers.

This is a strong statement. Bruce has been a practicing litigation consultant since 1987. He has seen many mock and actual juries. Furthermore, this quote was positioned against a quote in the same article from Professor of Intellectual Property Law, Joe Miller from Lewis & Clark Law School that stated, "A jury is a great way to figure out whether someone s run a light and caused an accident. It s really good at the Scott Peterson stuff. It s not good at determining whether this microchip infringed this patent."

I don't agree with Miller but I do sympathize with his position because: 1) I don't think his intention was to come off as elitist; and 2) this is actually the intuitive response that many of us have when we first consider this issue. It just makes sense that regular people wouldn't do well with specialized knowledge. I suspect many attorneys agree with Miller on this subject.

I received my pre-ordered copy of American Juries: The Verdict by Neil Vidmar and Valerie P. Hans yesterday and had a great excuse to crack it while our IT professional was on my computer. I was quite impressed by Vidmar and Hans after reading Judging the Jury several years ago. American Juries endeavors to evaluate 50 years of empirical research on the subject and draw conclusions. I had just learned that in the year 1215, in England, that all felonies required a death sentence, when I thought I'd take a break and check out what V&H concluded about patent cases.

On page 152 they cite a study that examined 17 years of patent cases that had been appealed to a higher court. If judge and jury agreement is any measure of effectiveness (another debate entirely), "...using the decision of an appeals court to uphold a verdict as a measure of correctness, she [the author] concluded that they [judge and jury] seemed equally accurate."

So how would Boyd know this? The answer is that he has seen hundreds of mock juries deliberate and he knows that when juries don't get it right it is usually for one of three reasons (although the list is longer):

1) The attorney did not spend the adequate preparation time altering the way in which they deliver their case to be more accessible to lay people;

2) The jury instructions and/or verdict form is incomprehensible and the attorneys and/or judge, again didn't put in adequate preparation time to explain what the key instructions mean to their case;

3) You rolled "snake eyes" and got the unfortunate oddball combination of people that don't complement each other (my experience is that this happens less than 20% of the time).

To be perfectly clear, it's not that sometimes a bench trial isn't warranted for a party in a particular case. Bruce's quote simply points to the fact case complexity alone isn't a good enough reason to make this recommendation. Case complexity can be addressed with more diligence and preparation in working on how to deliver the case. Posted by Christopher J. Dominic.

SEX IN COURT, Advantage Newsletter, December 2007.

The fourth volume and third edition of The Advantage includes: --The differences between male and female speech; --Frequently asked questions from attorneys about how to talk about litigation consulting and corporate clients; --Tsongas announces its new Alternate Dispute Resolution strategy sessions, and; --The Top 10 New Year's Resolutions.

Considerations for Preparation of the Opening Statement, Tsongas Litigation Consulting Blog, November 29, 2007

After a recently lively and entertaining conversation with colleagues I was reminded that when you say the words "opening statement preparation" to an attorney, their understanding on what that means is as varied as the individual.

Some write manuscripts, others write outlines. Some practice in front of people. Still, others practice in front of a mirror, not at all. It goes without saying that the speech is an important one and that preparing for it is as well.

I once had a good client comment to me (after he received from me a particularly long critique of his presentation) that he had just come to the realization that he needed to stopped patting himself on the back for merely "practicing." As a former college speech teacher I found that to be eye opening. He was being limited by his own low expectations and holding himself back. With these two experiences in mind, I thought it might be a good idea to share a few questions that my colleagues and I would typically have. I have also linked these to articles that address each issue:

There's a much longer list than this obviously, but it's a start and can be a good reminder on just how much preparation not a great but merely good opening needs. Posted by Christopher J. Dominic.

Beware of Pretenders, Tsongas Litigation Consulting Blog, November 15, 2007

Trial/Jury/Litigation Consulting is arguably the most recent of all the professions. Few can remember what it was like when the American Psychological Association began in 1892 by 26 men (and they were men). In comparison, the American Society of Trial Consultants was formed in 1982 by a handful of men and women who wanted to formalize the field they had been practicing for several years. In the grand scheme of things, we're just coming into our adulthood and there are still large segments of the population who don't know how to distinguish the players from the pretenders. It is unfortunate but to be expected that many attorney clients of trial consultants have worked with someone just hanging out a shingle, had a bad experience, and developed the impression that the field is filled with hacks. ASTC member Anne Reed covered this issue quite well a few days ago in her blog, Deliberations.

Are there hacks? Sure there are? They exist in every profession and particularly one that is as young as ours. In reality, the best and brightest aren't that hard to find. They can be found on the trial teams of many of the top 25 cases in the country, they have come to become indispensable because of their experience and insight, and they are members of the ASTC.

There are a few key places to go to be a more informed and educated consumer of trial consulting services. One place to go is the ASTC code. Here you can see what standards and guidelines the field has agreed to. Second, if you want to focus on strictly jury research, the best article I have seen on the subject is by Tsongas' very own. The article is entitled Ten Key Questions: Evaluating the Quality of Mock Trial Research. Finally, an article that just focuses on how to get the most out of the lawyer/consultant relationship is an oldie but a goodie you can find here. Posted by Christopher J. Dominic.

"It's Only Mediation.", Tsongas Litigation Consulting Blog, October 27, 2007

"It's only mediation" is a phrase many litigation/trial/jury consultants have heard from their clients. It can be translated on a scale from "I'm not going to take this seriously because one of the elements of the process is broken" to "We're just too far apart and it'll never happen." There's no doubt that there are cases that should be settled and cases that should be tried and sometimes cases that should be tried, end up being settled due to a host of factors such as a low chance of success or a risk averse client (the list is somewhat endless). The subject I'd like to briefly cover is specific to a case that "should" be settled.

In this sort of a case the preparation for mediation should rival or equal trial preparation. This does not happen as often as it should. One of reasons for this is the belief that the mediator, who typically has some form of legal training and/or experience and therefore doesn't need the same level or type of persuasion. This is dangerously flawed thinking. The mediator will be able to cut through the legal issues more quickly but requires an even shorter period of time to "get" your message than a jury or judge. By not taking the time to go through a structured process to boil down essential themes and deliver them with the support of key demonstrative exhibits the opportunity to get a competitive edge can be lost. Mediators are humans too and must reason accordingly. Furthemore, a mediator has to answer the question, "what would a jury do with this?" More and more, attorneys who have a well developed mediation strategy will get the edge over their adversaries who have an unstructured preparation process. Posted by Christopher J. Dominic.

One in Not Acting as a Zealous Advocate for One's Client When Acting as a Zealous Advocate in Voir Dire, Tsongas Litigation Consulting Blog, October 11, 2007

It occurred to me while I was writing a recommendation about the importance of a single defense jury selection strategy among multiple co-defendants that although counterintuitive, one does not act as a zealous advocate for one's client when acting as a zealous advocate in voir dire. Many have come to this conclusion not by the research but by some event that scarred them permanently.

Imagine (true story) defending a case in which the only reason you're in court is because the plaintiff is taking a long shot case into court. The case attributes fault to a 3rd party that had nothing to do with the injury to plaintiff directly but it can be argued that they are the root cause of the injury. Our attorney client is good, really good. Unfortunately, he could not foresee that the mere statement of the case, worded as neutrally as one could possibly imagine actually sent pro-defense jurors throwing their hands up and telling the judge that they think it's a stupid case and they can't sit on it (and yes, some of them were just trying to get off, most of them probably were not, it was a silly case). Other good defense jurors follow his lead and an hour later, 13 great jurors for the defense go walking out the door.

Regardless of how even the match up is between adversaries at trial an attorney can expose jurors who are supportive by selling their case too hard before client. Although in this scenario the client did not "sell their case in voir dire," the aforementioned scenario could be recreated. Posted by Christopher J. Dominic.

Contempt of Court, Tsongas Litigation Consulting Blog, October 2, 2007

There have been numerous accounts of jurors being held in contempt of court in the last year. Every occurrence I have seen has been shameless (which is why it gets press). When I was recently met with the comment "that's over the top" directed toward the judge, from an acquaintance in regard to a news story about a juror being thrown in the pokey for obviously purgering himself to get out of jury duty I said, "he did the crime, he has to do the time." Of course, my acquaintance didn't understand at first but my hard-nosed stance was entertaining for him. My position, of course, is based on the premise that jury duty is an inherent duty of American citizenship and the assumption that not making an example of an occasional purgerer or (seen recently) "runner" will be met with the chaos of jurors increasingly "blowing off" jury duty. Earlier posts of mine discuss how juror expectations aren't set correctly by our society but I won't repeat myself.

A colleague and I did get to see a judge recently scare the pants of a juror who went and told his boss all about the high publicity case we were working on that she explicitly told him not to tell anyone about. Even more amazing, he argued that his breach of the court's orders was what now made him unsuitable to serve. When the judge specifically mentioned that he could do time in jail for violating her clear orders, he nearly cried. Realizing she was about to crack the man, she let him go. It probably did the trick without having to put him in jail.

Posted by Christopher J. Dominic.

The Corporate Jury Duty Policy, Tsongas Litigation Consulting Blog, September 20, 2007

While recently assisting in a jury selection there were a few jurors who drew gasps from the courtroom when announcing that their company had a "no pay" for jury duty policy. I know, I know, "this person is either ignorant of their company's policy or not being entirely honest" is what you're thinking. Well, not in this case. I also found a few examples of people discussing this issue online. The tip here is a simple one, don't assume that there is no impact to your corporate image if you have a "no jury duty" policy. There were several prospective jurors and a judge who were incensed. They will tell two friends, who will tell two friends, and so on.
Posted by Christopher J. Dominic.

Study Shows Impact of Deliberations, Tsongas Litigation Consulting Blog, September 8, 2007

"We just need to get most jurors to buy our story and they'll influence the others right?"

This sort of question came up recently. The answer of course is, "maybe." Juror deliberations are fascinating for many reasons, one being that the process can have an impact on the verdict and jurors aren't given much direction on process. After all, they are in charge once the Judge gives the case to them.

Anytime a study comes out that has actual jurors as its subjects as opposed to college students, the legal community should pay attention. The reason why--it doesn't happen very often because of the strict rules on jury tampering (a good thing). So when a team of team of researchers from Indiana University published the study in July's Journal of Empirical Legal Studies I thought I'd here more people talking about it. I haven't.

My current theory on why there isnt' much buzz is that it confirms what jury consultants talk about every day. Regardless, I'd recommend giving it a look when you have an extra moment. I can't link to the journal itself but there is one good summary about the study in the Indianapolis Star you can see by clicking here. Posted by Christopher J. Dominic.

A VIEW FROM THE BENCH, Advantage Newsletter, September 2007.

The fourth volume and second edition of The Advantage includes: --The Honorable Robert Alsdorf is interviewed about his experience with jurors; --The service of trial monitoring and shadow juries is profiled as "a powerful tool to be handled with care," and; --Tsongas President, Chris Dominic, begins his term as the President of the American Society of Trial Consultants.

Criticizing Jurors For Fast Deliberations Is Fair...But Wrong, Tsongas Litigation Consulting Blog, August 25, 2007

Andrew Cohen, CBS's Legal Affairs Correspondent recently stated, "What jurors did in the just-completed terror conspiracy and support trial of Jose Padilla and two other defendants is a travesty upon justice and an unconscionable affront to the judge, the witnesses, the lawyers and especially the defendants themselves, who, whatever we think of them, surely deserved a more reasoned approached to deliberations than what they received." This can be found in the post, Taking "Deliberate" Out Of Deliberations on the Couric & Co website on August 21.

This argument presumes that because deliberations only took a day-and-a-half after a three month trial, the jurors "mailed it in" with their deliberations and therefore did not do their duty. This is a logical, common-sense argument. Furthermore there is some chance that Cohen could be correct. However, it's extremely unlikely. As a jury consultant how many times they have seen a jury not take their job seriously after the have been seated and they will most likely say--never.

To be fair, Cohen probably doesn't know much about how people process information or how small-group communication works. People distrust this process because it is difficult to understand and until you see it work over and over again it is easy to be skeptical. For example, as a direct application to this case, the court insists that jurors withhold judgment until deliberations. This does not mean that people do not assess the credibility of witness testimony and other forms of evidence as they are being presented. It is not unusual for jurors to go into deliberations with a list of impressions and questions for other jurors. There is nothing wrong with this and it makes possible the scenario that unfolded with the Padilla jury.

Telling a jury that they should be ashamed of themselves when they likely took all the time they think they needed is "an unconscionable affront" to those dutiful citizens. Posted by Christopher J. Dominic.

Trial Consultants Influence Cases in Emerging Areas, Tsongas Litigation Consulting Blog, August 19, 2007

After last year's American Society of Trial Consultants (ASTC) conference I contributed to an article entitled Industry Update: Trial consultants practicing more prior to ADR. The article highlights the clear trend that trial/jury consultants are increasingly working on cases that are expected to settle through through some form of alternative dispute resolution (the growing term "litigation consultants" reflects this shift).

This trend is continuing in venues that many assume is doing "business as usual." Just a few days ago in the August 16 edition of Oklahoma City's, The Journal Record published an article entitled Trial consulting proves lucrative in state. Within this article several facts are presented that may be unknown to some attorneys but are everyday reality for the modern litigation consultant. Among these are: 1) "The term 'trial consultant' is almost a misnomer (sort of like "jury selection"); 2) We're brought in earlier than ever but often it is later than it should be, and 3) with 1% of the cases going to trial we are often providing specific strategic advice that focus on maximizing our position in the settlement.

I expect to continually see articles like this coming out of other states not traditionally associated as large litigation markets in the coming months and years.
Posted by Christopher J. Dominic.

Managing Corporate Counsel Expectations, Tsongas Litigation Consulting Blog, August 12, 2007

As an associate member of the ABA I get several emails a week promoting various seminars or publications. While searching around the website I found an article called How To Keep Your In-House Client Happy by Mari I. Valenzuela who is corporate counsel for Microchip Technology, Inc. It's a solid article and would be a good reminder for many attorneys to read.

Now, it may be that this article didn't presume litigation in process. However, I did notice while the article discussed managing expectations in regard to the budget for legal research it does not address the importance of the budget for litigation support.

One of the largest mistakes a modern litigation attorney can make is to only clarify traditional budget items. The outside attorney should not be put in a position where they feel like they may have to shave their own budget to involve a litigation consultant, conduct focus groups, or develop demonstrative exhibits.

The client should not be put in the position of having their expectations violated to do their basic jury due diligence. Legal research without jury research rarely makes sense in litigation that makes it to formal ADR or trial. Even in smaller exposure cases, being able to work with litigation consultants in lieu of jury research can be essential to ensuring that the client feels like their case was given the attention and consideration it is due. Posted by Christopher J. Dominic.

Why Would You Want To Get Out of Jury Duty Anyway?, Tsongas Litigation Consulting Blog, August 4, 2007

When I talk to people not involved in any aspect of our 3rd tier of the United States Government I often hear questions like, "how do I get out of jury duty?" If you, the reader are also working somewhere within our judicial branch I suspect that you get this question from time to time and that many of you don't actually want to tell your friends how to get out of jury duty because it typically involves deceiving the court and purgery on the good to bad scale is well...bad.

In the spirit of full disclosure I should say that this gives me an excuse to educate so I usually say something to the effect of, "You don't want to get out of jury duty, you want to do your duty, you just don't know it yet." This is a bit over the top, but it works. Your goal is to get them to want to know more at this point. Here are some follow up approaches I suggest to get people back on the direct democracy train:

For the pragmatist--"Whatever you do, don't actually lie. There are more judges holding jurors in contempt for shamelessly purgering themselves under oath during jury selection."

For the patriot, regardless of political affiliation--"One of the biggest motivators for many American troops to take up arms in the Revolutionary war was to obtain trial by jury. Thomas Jefferson protested the fact that King George III 'made Judges dependent on his will alone.' Many judges were corrupt, they wouldn't bite the hand that feeds them. Many people died for this right that you now enjoy."

For those that already have a liberal leaning--"I consider [trial by jury] as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution." --Thomas Jefferson to Thomas Paine, 1789. ME 7:408, Papers 15:269 "[The people] are not qualified to judge questions of law, but they are very capable of judging question of fact. In the form of juries, therefore, they determine all controverted matters of fact, leaving thus as little as possible, merely the law of the case, to the decision of the judges." --Thomas Jefferson to Abbe Arnoux, 1789. ME 7:422, Papers 15:283

For the person who feels powerless and wants more control OR complains about jury verdicts--"Come on you have several complaints about law, society, etc. Now's your chance to do something about it. In our system, the state actually turns over it's power to YOU. You go deliberate with the others, make a determination, and whatever you say should be done WILL BE DONE and IMMEDIATELY unlike voting for elected officials (you can add 'which is representative democracy' if you need to).

The response that I typically get at this point is something to the effect of, "but it's so much time and expense." I try not to be judgmental about this because I believe the typical American citizen's expectations have not been effectively set by our education system here.

My response is something to the effect of, "That's right, it's a hardship, it's a duty, it's a sacrifice. It's supposed to be hard. The burden is on the people to govern their society in a direct democracy (hence the term 'peers'). BUT we have the most uncorrupt system in the world because of this system and we need as many people to participate to uphold the fifth and seven amendments of the constitution" (most American give deference to the Constitution, it's typically a winner).

You can save up the kicker or just deliver it depending on your audience and what level of a roll you are on. The kicker is, "It's actually the only duty that you are REQUIRED to do as an American outside of register for the draft if you're a male over 18." They look at you incredulously and you respond, "You only pay taxes if you have income."

So far, I think my success rate is around .750 on attitude change and .500 on getting people to report for jury service. Then again, I could be wrong. Posted by Christopher J. Dominic.

Ten Key Questions: Evaluating the Quality of Mock Trial Research, 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.

The Intertwining of the Media and the Justice System, Tsongas Litigation Consulting Blog, July 27, 2007

I was in New York on Wednesday to appear on Court TV's Bloom and Politan show. They were covering the Phil Spector murder trial and wanted me to weigh in on some aspects of it. The format included showing some of the testimony of the case for blocks of time and then providing commentary.

During testimony in the case it became apparent that a witness was compelled to court under power of subpoena after appearing on Court TV on the very show I was appearing on. This witness knew the woman who Spector is accused of killing and had a discussion with shortly before the alleged murder took place and that she was despondent. Well, the defense's theory is that she committed suicide so he became important.

Certainly they could have learned of the witness independently through an investigator. However, this investigator also may have learned of the witness through the appearance on Court TV. It may even be that a friend of someone on the defense team was simply watching Court TV to follow the trial. When the witness testified that he was friends with Lisa Bloom and she simply asked him to be on the show, the show actually became a part of the case. Even more fascinating, Court TV actually for a brief time covered itself (I should note that the anchors handled this extremely well).

The experience was fun and I was left with the thought that the world we live in is one where anyone with a cellular phone connection can download or upload information available to anyone who can access the world wide web. The now ubiquitous nature of the media makes it an unprecedented force. A force that attorneys should understand. Posted by Christopher J. Dominic.

JUROR'S COMMON WISDOM: "I DON'T KNOW...I'M JUST THE CEO", Advantage Newsletter, May 2007.

The fourth volume and first edition of The Advantage includes: --Witness Credibility: A multi-dimentional construct --Tsongas News: New and improved website coming May 2007

INSIDER TIP: MEETING YOUR CONSULTING NEEDS, Advantage Newsletter, December 2006.

The third volume and third edition of The Advantage includes: --Arming Your Jurors for Deliberation --Jurors' Common Wisdom

INDUSTRY UPDATE: TRIAL CONSULTANTS PRACTICING MORE PRIOR TO ADR, Advantage Newsletter, August 2006.

The third volume and second edition of The Advantage includes: --Fundamentals of Opening Statement Preparation: Speech 101 --Chris Dominic Elected as ASTC President

HOW WILL MY JURY ARRIVE AT DAMAGE FIGURES?, Advantage Newsletter, April 2006.

The third volume and first edition of The Advantage includes: --You Have More Important Things to Worry About --Jurors Aren't as "Neutral" as We Think

Jury Selection: Key Elements of Success, King County Bar Bulletin, February 2006.

Dennis W. Brooks addresses the effective planning for and execution of jury selection in this second part of a two-part series.

Jury Selection: Dealing with Diversity and Hidden Bias, King County Bar Bulletin, January 2006.

Dennis Brooks discusses how to compensate for the inability or unwillingness of jurors to address their biases. It is the first part of a 2 part series.

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.

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 finds persuasive; --Assuming that your witnesses will be interpreted the way you interpret them.

INDICATORS OF QUALITY IN PRETRIAL SMALL GROUP RESEARCH, Advantage Newsletter, December 2005.

The second volume and third edition of The Advantage includes: --Thank You from the Seattle Director --Practice Tips: Fighting the Defensiveness Demon --New Consultant Profile: Thomas M. O'Toole, M.A.

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.

INTRODUCING THE NEW TSONGAS SEATTLE OFFICE, Advantage Newsletter, August 2005.

The second volume and second edition of The Advantage includes: --Introducing the New Tsongas Seattle Office --Tsongas Expands Seattle Presence --Consultant Profiles

DOES CLOSING REALLY MAKE A DIFFERENCE?, Advantage Newsletter, March 2005.

The second volume and first edition of The Advantage includes: --Voice of Experience: Does Closing Really Make a Difference? --A View From the Bench: An Interview with the Honorable R.E. Jones, Senior Judge of the US District Court of Oregon --Tsongas Welcomes Jill Schmid, Ph.D. to our growing team.

THE SILVER BULLET OPENING, Advantage Newsletter, December 2004.

The first volume and third edition of the Advantage includes: --Practice Tips: Starting your Opening with the Silver Bullet --Voice of Experience: Jurors DO NOT Make up Their Minds After Opening --Graphics Update: Frequently Asked Questions About Graphics.

Managing the Message: Visual Case Presentation, 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.

Your Witness--Prepare Before Stepping Into the Sun, King County Bar Bulletin, July 2004.

Theodore O. Prosise, Ph.D. shares four principles that help you and your witness testify more credibly.

INDUSTRY NEWS, Advantage Newsletter, April 2004.

The first volume and second edition of the Advantage includes: --The Slippery Slope of Allowing Discovery of Attorney Work Product --The Case Story and Jury Reasoning --Do I Need a Focus Group or a Mock Trial? --Jurors Say the Darndest Things

INTRODUCING THE ADVANTAGE, Advantage Newsletter, January 2004.

This first volume and first edition of The Advantage includes: --An introduction letter --When to Use a Community Attitude Survey --Incorporating Your Themes While Identifying Your Strikes --Runaway Jury as a Sign of the Times

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 in the Northwest.

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 Northwest Juror Attitude Survey.

Dealing with Damages, 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.

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 out of working with jury/trial/litigation consultants.

The Powerful and Mysterious American Jury: Common Misunderstandings by Attorneys, Judges and the Public, Washington State Bar News, August 2002.

Joyce Tsongas and Art Monson, Ph.D. sum 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.