Litigation Consulting Articles
- Texas Hold ‘Em: Is Complex Litigation a Complete Gamble?
by Bill Kanasky, Jr., Ph.D.
To equate complex litigation with the poker game of Texas Hold 'Em is an analogy that many claims and litigation professionals would prefer not to make, but likely is one with which many agree. Although a case is often assessed based upon the cards (facts and law) initially dealt, as one gets additional cards, through discovery and investigation, the hand (the case) may get better or may suggest that one fold. But is complex litigation a complete gamble, or can the carrier potentially influence some of the cards drawn?
- The Generation X and Y Factors
by Mary Noffsinger, Ph.D.
Generational study explores the distinctions between X, Y, and Baby Boomers as each generation brings unique values, attitudes, and communication styles, with varying receptiveness to persuasion tactics. Influencing the attitudes and decision-making of others is a critical process involved at every phase of the litigation lifecycle – and can be worth considerable monetary value. Thus, understanding different generations provides a foundation for the improvement of communication with individuals of all ages.
- Nuts and Bolts Witness Training for Depositions
by Stanley Curbo
Failure to spend sufficient time in the preparation of a witness is a sure way to weaken your case and strengthen your opponents. Learn effective “tricks” to employ and dangerous “traps” to avoid when preparing witnesses for depositions.
- The Primacy and Recency Effects-Secret Weapons of Opening Statements
by Bill Kanasky, Ph.D.
By understanding how jurors’ brains function and strategically ordering information in opening statements and direct examination, attorneys can significantly increase the odds of a winning verdict.
- Juror Confirmation Bias: Powerful. Perilous. Preventable.
by Bill Kanasky, Jr., Ph.D.
Confirmation bias is a potentially devastating element of litigation psychology that can affect both jurors and trial attorneys alike. Confirmation bias can prevent jurors from hearing both sides of a case, as it causes them to selectively perceive and recall evidence and testimony presented at trial.
- Winning the Environmental Case: Leveraging Psychological "Baggage" at the Jury Level to Outweigh You Opponent
by George Speckart, Ph.D.
Environmental, or toxic tort cases, involve primitive emotional and subjective issues at the jury level, and gaining a strategic advantage in litigation requires knowledge of where the "land mines" are in the murky domain of jury psychology. Fortunately, over twenty-five years of research using mock jurors and real jurors (e.g., post-trial juror interviews) can be summoned to generate a substantial body of knowledge on how jurors construe claims in these cases, whether beginning discovery, approaching mediation, or standing in front of a jury.
- Slaying the Dragon: Using Psychological Technology to Cut Litigation Costs
by George Speckart, Ph.D.
Conventional management of legal teams leaves the corporate client at the mercy of non-productive litigation efforts that are inefficient from an economic or cost perspective as well as from the standpoint of tactical positioning in the litigation. Application of proven psychological research methodology and its results (psychological technology) in trial preparation produces substantially more cost-effective litigation efforts while simultaneously reducing the potential for large damage awards. Three key content domains are explored: 1) Estimation of exposure for settlement purposes; 2) Witness training; and 3) Discovery activities. Examples are provided that demonstrate the potential for significantly reduced legal costs in conjunction with an improved defense posture in terms of trial preparedness.
- Navigating the Road to a Jury Verdict in Intellectual Property Cases
by George Speckart, Ph.D.
Recent data from mock trials and real trials throughout the country have led to specific conclusions about how jurors problem-solve patent cases. Specifically, it is noted that jurors apply misconceptions and various types of unrealistic expectations to the case fact scenario in order to generate their verdict preferences. Called "misinformation templates" in the present article, these misconceptions and expectations shape how the evidence is construed and quite frequently lead to unexpected, adverse results. Tactical implications are offered that systematically take into account these juror decision-making tendencies in formulating a trial strategy that maximizes the likelihood of a favorable outcome for your client.
- Streetwise Litigation: "Legitimate" Tactics for Operating Outside the Rules
by George Speckart, Ph.D.
Many litigators approach a jury trial well armed for a legal battle, fully stocked with case law, briefs, motions, documents, and exhibits. Once the case reaches the jury, however, they often are faced with a situation that has more in common with a knife fight. The trial lawyer who is best prepared for this reality is likely to be the last person standing when the jury renders its decision.
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Mock Trial Articles
- Do Mock Trials Predict Actual Trial Outcomes?
by George Speckart, Ph.D.
To obtain the right information, we must ask the right questions, and we must not dismiss others. For instance, we should not casually dismiss whether mock trials can predict trial outcomes. After all, if mock trials did - or could - predict actual trial outcomes, the policy implications for trial planning and settlement decisions would be enormous.
- Trial by Science
by George Speckart, Ph.D.
A scientific perspective on predicting jury behavior and hopefully cutting costs at a time when verdicts can mean the difference between tens of thousands of dollars or millions of dollars.
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Focus Group Articles
- Early Jury Research Saves Money
by Stanley D. Curbo
Everyone in the litigation management business is concerned about the rising costs of litigation. Just managing the litigation process is a seriously daunting process. In many cases, trying to keep the budget on track can become a major endeavor involving excess costs brought on by improper and imprudent planning with precious resources thrown at superfluous services.
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Witness Preparation and Training Articles
- Good Nurse, Poor Deponent: How to Fix the Problem
by Jeff Dougherty
Much of what it takes to make people GOOD nurses makes them POOR deponents. Often when a question is posed during a deposition to which nurses do not know the answer, they speculate, hypothesize, or guess – all of which can prove catastrophic on deposition day.
- Preparing the Foreign-Born Witness for Trial: Beyond the Language Barrier
by Bill Kanasky, Jr., Ph.D.
The unique verbal and nonverbal communication challenges associated with foreign-born witnesses can leave trial attorneys and their clients economically vulnerable in the courtroom. Avoid common mishaps by taking key preparation steps before a foreign born witness testifies.
- Don't Shoot the Messenger: Exploring Ineffective Witness Testimony
by Bill Kanasky, Jr., Ph.D.
The inherent desire to "shoot the messenger" is a basic human instinct that has survived and evolved over hundreds of years. In litigation, fact witnesses are the "messengers" and jurors' perception of their credibility, believability and honesty is critical to success in the deliberation room. But time and again, attorneys and claims managers want to figuratively "shoot" witnesses when poor deposition and trial testimony increases financial exposure and decreases strategic leverage.
- The Devil in the Details: Hidden Costs in "Traditional" Witness Preparation
by George Speckart, Ph.D.
Poor deposition testimony greatly widens the gap between the real and perceived economic value of a case, putting the client in an unfavorable position when trying to settle. The cost of prevention is in the thousands of dollars, like most other things in litigation. However, the cost of a bad deposition can be in the hundreds of thousands of dollars if not more.
- Factors Affecting Persuasiveness of Expert Witnesses
by George Speckart, Ph.D.
This article presents an analysis of the persuasiveness of expert witnesses, with specific consideration given to the effects of the jury's knowledge of the expert's compensation and the frequency of testimony in similar cases.
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Trial Consulting Articles
- Four Lethal, and Preventable, Defense Mistakes in Civil Litigation
by Bill Kanasky, Jr., Ph.D.
An increasing number of cases are now being resolved based upon their perceptual value at the jury level, rather than their realistic economic worth. Plaintiff attorneys have become experts at taking small, relatively benign cases and turning them into expensive “run-a-way trains.” This often results in a defendant corporation having to pay significantly higher settlement figures and damage awards, as they are hamstrung by poor depositions, bad documents, and a sympathetic plaintiff. Fortunately, savvy litigators know that early and accurate evaluations of jury-level perceptions play a key role when opportunities to “out-trade” the other side arise.
- Identifying the Plaintiff Juror
by George Speckart, Ph.D.
The amount of pre-trial effort, preparation, and thought that litigators devote to jury selection typically pales in comparison to the amount devoted to other trial preparation activities. Yet, the importance of having the right - and avoiding the wrong - people in the jury box is difficult to overestimate. One or two intractable jurors who are adversely predisposed can nullify millions in expenses and thousands of hours of work devoted to preparing for trial.
- How to Tap the Potential of Juror Questionnaire
by George Speckart, Ph.D. and Lyndon G. McLennan
Most litigators know that juror questionnaires can reveal biases that potential jurors would never reveal openly. But few realize that winning the battle over the juror questionnaire provides a vital strategic edge.
- Juries See No Middle Ground in Sexual Harassment Cases
by George Speckart, Ph.D.
For jurors in sexual harassment disputes, there appears to be no middle ground in resolving these matters.
- To Down a Stealth Juror, Strike First
by George Speckart, Ph.D.
There are ways to detect a fact-finder who tries to slip through voir dire on a mission to sabotage the case.
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Litigation Technology Articles
- Benefits of Using Presentation Technology Consultants
by Ronnie Jarrett
If a picture is worth a thousand words, then what is a truly professional, cutting-edge presentation in trial worth? That is the million dollar question, literally. Scores of post-trial interviews with actual jurors in mock trials and focus groups have revealed that in many situations, it is not what was said, but what was visually presented that has the highest recall. A state-of-the-art presentation will increase the likelihood of focus on the aspects of the case you want to emphasize.
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