Tsongas Litigation Consulting, Inc.

More Evidence Supporting the Power of Metaphor, Tsongas Litigation Consulting Blog, January 29, 2010

The other day I heard something I haven't heard in a long time. I was discussing the importance of framing a particular argument a particular way when I got the, "these facts speak for themselves" line. George Lakoff referred to this once as "The No-Framing-Necessary Trap" on a panel I was on with him at the 2008 ASTC conference. The trap is that if you don't provide the frame, the listener's attitudes and experience frame the facts not necessarily as you intended they be received. In short, everything is framed one way or another whether you like it or not and it has more tangible effect that most realize.

From Metaphors We Live By (1980), p. 1, "Metaphor is for most people a device of the poetic imagination and the rhetorical flourish--a matter of extraordinary rather than ordinary language....We have found, on the contrary, that metaphor is pervasive in everyday life, not just in language but in thought and action....The concepts that govern our thought are not just matters of the intellect. They also govern our everyday functioning, down to the most mundane details."

The support for this argument gains strength more and more as the studies continue to come in. An excellent summary of many of the studies that have been done and the findings from them was published just recently in the January 2010 edition of the Association for Psychological Science's Observer.

So, the next time you think "the truth needs no framing" Just consider these findings about the use of temperature when experiencing and/or describing interpersonal interactions:

"In a 2008 study, when volunteers were asked to think about a time they felt socially rejected, they described the temperature in the room as being significantly colder than did volunteers who recalled an experience in which they felt socially included, even though the room temperature was actually the same for both groups...(Zhong & Leonardelli, 2008)."
"Volunteers were handed a hot or cold beverage at the start of the experiment and then were asked to think about their relationships with friends and family. The volunteers who had held a warm beverage tended to rate themselves as being closer to the important people in their lives, compared to volunteers who had been given a cold beverage (IJzerman & Semin, 2009)."

Framing is no option. Being an effective communicator requires framing your message intentionally, not by accident.

Posted by Christopher J. Dominic.

Religious Attitudes & Opinions Not As Easy to Predict as it Seems, Tsongas Litigation Consulting Blog, December 21, 2009

We often believe that we understand the attitudes and opinions of people when given labels such as: “Conservative,” “Liberal,” “Catholic,” or “Jew.” However, we know that these labels can be extremely misleading if one hopes to be able to predict one’s behavior on a jury. In a jury of twelve Catholics for example, there could be a variety of different attitudes that come to bear on a case: reproductive rights, the death penalty, sexual behavior, sexual preference, right to die, etc. They could all have different combinations of beliefs even attending the same place of worship.

The Pew Forum on Religion & Public Life just came out with a new survey on faith, and some of the results are fascinating. Some statistics have remained somewhat constant over time like the fact that, “Nearly three-quarters of Americans (72%) say they attend religious services at least a few times a year.” However, others have changed dramatically such as the fact that, in 1962, 22% of the public said they “have had a religious or mystical experience, defined as a “moment of sudden religious insight or awakening.” In 2009, that number has leapt up to 48%.
A quick look at the study will let you know items that may be useful such as the fact that one in five Catholics attends services of other religious organizations. Another look can give you some amusement, such as the fact that 16% believe in the “Evil eye, or that certain people can cast curses or spells that cause harm.”

Posted by Christopher J. Dominic.

OVERCOMING COMMUNICATION "BLAHS", Advantage Newsletter, December 2009.

The third issue of the sixth volume of The Advantage is dedicated to visual advocacy in litigation. The articles within this issue are: --Overcoming Communication "Blahs" --Six Graphics Every Trial Needs --Evolution of a Graphic

Shadow Juries: A Unique Advantage in Civil Trials, Verdict (ABA Trial Practice), Fall 2009.

Ted Prosise, Ph.D. discusses the benefits, typical concerns, and methodology of shadow juries.

Shadow Juries an Excellent Tool...But Not For Everything, Tsongas Litigation Consulting Blog, November 10, 2009

An article in the New Orleans Times-Picayune caught my eye the other day. The headline was "'Shadow' Jurors Give Lawyers Idea of What Verdict to Expect." The problem with this is that shadow jurors are very useful and powerful tools for providing daily feedback to trial lawyers but don’t necessarily have much predictive value of what the actual jury will do when they deliberate. For one reason, there are just not enough of them.

A "shadow juror" is a juror that is hired by one side in a civil or criminal trial to report back on how they saw the day in court. A "shadow jury" is a group of these shadow jurors. It used to be that some trial consultants would put a full group of twelve in the observation gallery. Now, it’s more common to have four to six sit. They do not know who they are working for typically and they are told not to interact with anyone. Most importantly, they are expressly forbidden to interact with any members of the trial teams or the jurors for obvious reasons. Even with these rules in place, supervision is essential. There are a few horror stories out there of unsupervised shadow jurors misbehaving, usually due to curiosity (there’s a reason why curiosity killed the cat).

An example of the remarkable utility of shadow juror feedback in an appropriate case would come from the interview at the end of a trial day. In this example, the trial consultant asks, “What were your impressions of witness John Anderson?” The answer, “I had no idea what that guy was talking about.” The trial consultant probes, “in the end what did you take away from his testimony?” The answer, “I got the sense that he was supposed to be an expert on this sort of thing but I really didn’t understand his bottom line?” If the trial team hears this from several jurors then they can reasonably conclude that the evidence they thought was “in” because it is now in the court record, may not be where it really needs to be—in the juror’s minds. Where as they may have closed this section of the case, thinking it was well covered, they can now try their best to get this evidence to the jury through other witnesses and other documents. Again, feedback, not prediction.

The best qualitative tool to “test” one’s case is a mock jury exercise that involves 3-4 groups with each group deliberating to a verdict. This way you have enough people to see patterns and reduce chance as a factor. One of the big mistakes any trial lawyer can make is to fall in love with one particular litigation preparation tool and use it for too many purposes. It’s committing the error of, “if all you have is a hammer, everything looks like a nail.”

Posted by Christopher J. Dominic.

Discomfort with Presentation Technology No Longer A Reasonable Excuse, Tsongas Litigation Consulting Blog, October 21, 2009

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. 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.

Planning for Success: Three Ways to Better Manage Your Cases, 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.

Jury Decision Making and the Latest Brain Research, Tsongas Litigation Consulting Blog, September 15, 2009

Sure, he posed for his book jacket picture in a hoodie but one of the most accessible ways to learn about the very latest in brain research as it relates to human decision making is to read Jonah Lehrer's, "How We Decide." While Lehrer does not discuss the implictions of the research he discusses to litigation, those implications nonetheless present themselves to any who are involved in litigation.

The primary thrust of Lehrer's book is that old models of the brain have assumed that logic and reason are independent of emotions and feeling. Emotions and feeling are processed separately in the brain and are, of course, important for many things, but unfortunately, emotions cloud rational thought. As it turns out, the head and the "heart" need each other. People who have brain damage to the extent that their emotions are severely compromised cannot make decisions quickly (e.g., 2 hours to make a follow up appointment with a psychiatrist). They can't feel when something just seems "right." Instead, they have to consider every option, maddening all those around them who are unaware of their condition.

Lehrer shows us how listening to our feelings can lead to significant decision making errors. But, perhaps more interesting for the litigator is the errors that can be made by not trusting one's feelings. The example Lehrer shares in the book (on pp. 30-34) is particularly compelling. A Leiutenant on the USS Missouri during the Gulf War had a very short time to determine whether or not the blip on his radar screen was a missle coming to destroy his ship or a friendly fighter heading back from an assignment. He ordered the firing of 2 missiles and had to wait 4 hours to determine if he destroyed fellow servicemen or an enemy missle. It turns out Leiutenant Michael Riley was correct. "The captain asked Riley how he could be sure he'd fired at an Iraqi missile and not at an American fighter jet. Riley said he just knew." It took days to figure out how Riley knew the difference. As it turns out, "Riley was unconsciously evaluating the altitude of the blip, even if he didn't know he was doing it."

While it may seem disconcerting, much of our decision making happens without our awareness. If we know that human decision making is more complex than choosing the best logical argument it behooves us all to prepare accordingly. Learning more about the way we are wired for decision making helps us consider the way people really make decisions, and if you're in the field of litigation, you cannot have too much knowledge on the subject.

Posted by Christopher J. Dominic.

The Non-Testifying Expert in the Courtroom, 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.

Initial Credibility--Underrated, Tsongas Litigation Consulting Blog, August 14, 2009

What's the difference between a "good" lawyer and a "bad" or "average" lawyer in the minds of a lay audience? Certainly there are as many answers as fact finders but there are also widely established drivers of credibility with most people as well.

The construct of credibility has been an issue of discussion and debate since Aristotle. He called it Ethos. In communication studies the concept of how an audience member filters a presenter in the first moments of encountering them is referred to as Initial Credibility. One's Initial Credibility is not innate, it is only as high or as low as the audience perceives.

The trouble many people (and attorneys) have with this concept is the presumption that it seems like something completely out of one's control. The disaster that can sometimes follows from this presumption is when a presenter believes that this sort of thing is to be ignored or that it's "fluff."

A few litigation examples of this are:

poor-no witness preparation
last second opening statement preparation
thrown together graphics

One extreme example of what a significant difference initial credibility makes can be found in the experiment the Washington Post did with world famous violin virtuoso Joshua Bell in 2007. Bell who normally earns thousands of dollars for performances showed up in a Subway station in Washington D.C. with a Washington Nationals baseball cap, dressed casually, played difficult and beautiful pieces the amazing way he does and, "In the three-quarters of an hour that Joshua Bell played, seven people stopped what they were doing to hang around and take in the performance, at least for a minute. Twenty-seven gave money, most of them on the run -- for a total of $32 and change. That leaves the 1,070 people who hurried by, oblivious, many only three feet away, few even turning to look...there was never a crowd, not even for a second."

I mentioned this to a friend yesterday (an attorney). He said, "Well, not many people know much about classical music." I replied, "Not many people know much about the law either."

Posted by Christopher J. Dominic.

THREE PHASES OF THE TSONGAS EVOLUTION, Advantage Newsletter, August 2009.

The second issue of the sixth volume of The Advantage is dedicated to telling the history of Tsongas Litigation Consulting, Inc. The Chapters within this issue are: --The Early Days --The Growth of the Firm --The Transition of Ownership --Communication Strategies Northwest --Looking Forward

Under-Confident, Over-Confident, or Just Right, Tsongas Litigation Consulting Blog, July 17, 2009

One's ability to understand the difference between how people pecieve them and how they perceive themselves is critical in social interactions and communication generally. In litigation, this self-awareness (or lacktherof) impacts the credibility of witnesses, attorneys, and jurors. Back in Graduate school we used the Johari window test to measure this ability in somone.

This morning, after talking about a book that I had just read entitled How We Decide by Jonah Lehrer, it became clear that one's ability to understand the difference between the external perception of one's decision making and one's self reported effectiveness of one's decision making is of the highest value--particularly to those in litigation.

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, this attribute can, in certain circumstances, be a remarkable weakness if one is over-confident of their position.

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). These witnesses try to duel with a cross-examining attorney under the premise that they are smart people and can outsmart the attorney. This classic decision error has led to disasterous depositions with Bill Clinton, Martha Stewart, etc.

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 or determining the likelihood that favorable evidence to them will be allowed in to the case by the trial judge.

Of course, the possiblility of being under-confident or overly risk-averse can also be an enormous detriment to attorney decision making. While a healthy skepticism is at the heart of many attorney's strengths, it also gets in the way of taking many of the risks that often need to be taken in litigation. We've known for some time that with the human mind people will do more to avoid loss than to make equivalent gain. This can be exascerbated in people programmed to manage risk.

So how do we improve? Lehrer tells us that "The first step to making better decisions is to see ourselves as we really are, to look inside the black box of the human brain. We need to honestly assess our flaws and talents, our stengths and shortcomings. For the first time, such a vision is possible. We finally have tools that can pierce the mystery of the mind, revealing the intricate machinery that shapes our behavior. Now we need to put this knowledge to work" (p. 259).

Posted by Christopher J. Dominic.

A Jury Selection Truth, Tsongas Litigation Consulting Blog, June 16, 2009

We have known for some time that juror attitudes and life experiences have far more impact on the way they see a case than any of their demographic characteristics. Demographics are extremely prone to error. I should define "we," as those who do jury research, trial consultants, and social scientists. I do not take this for granted, however, because I am so frequently reminded that this is not widely know or accepted to the pubilc and many lawyers (although the field appears to becoming more knowledgeable each year). My most recent reminder came a few days ago when I saw the headline from Tricia Bishop of the Baltimore Sun, "Stereotypes Confound Jury selection: Bias assumptions seldom right; juror's experiences called best indicator."

The author should get credit for tracking down and interviewing several trial consultants who are members of the American Society of Trial Consultants. I can even grant that this may still be news to some. However, it should not be in a decade or so. Debates about this subject will slow down and eventually die. There is simply no defense for the fact that one's life experiences play an enormous role in defining who they are. We even have a cliche for the mistake of judging one on their appearance, "you can't judge a book by its cover."

Posted by Christopher J. Dominic.

Juror Attitudes in Medical Malpractice Litigation, 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.

Article Commentary on, "How Jury Service Makes Us Into Better Citizens", 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.

Implications of the "Holier-Than-Thou" Effect, Tsongas Litigation Consulting Blog, May 6, 2009

Many of us have heard the phrase, "Eighty percent of us believe we are above average." This concept is a cognitive bias that is connected to comparative judgment. It is an egocentric bias that has been more recently referred to as the holier-than-thou effect. Benedict Carey of the New York Times explored this topic recently in an article entitled, "Stumbling Blocks on the Path of Righteousness." Don Moore and Deborah A. Small published a peer reviewed article studied an aspect of this phenomenon in the Journal of Personality and Social Psychology in June 2007.

The implications for litigation are many. This effect is an opportunity that can be capitalized on by plaintiffs. Juror anger connected with the conduct of the defendant has been positively correlated with damages in several studies (Determining Damages, Greene & Boornstein). Defendants have to consider how to address this factor without being defensive during mediation, arbitration, or trial (no, this doesn't just apply to jurors). Of course, through creative means, defendants can take into consideration the holier-than-thou effect and make it work for them as well. The conduct of the plaintiff can many times be the place where the largest opportunities present themselves. Those who execute this strategy well are often concerned as much about how they say what they say as much (or more) as what they say. They should be--this is where much of the message lies.

Posted by Christopher J. Dominic.

Keys to Success in Arbitration, 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.

Online Jury Research, Tsongas Litigation Consulting Blog, April 6, 2009

There have been a host of recent articles discussing the benefits of online jury research. I'll confess to having a bias here. I'm not a big fan of online jury research. Online jury research exists because it's inexpensive. However, it's not the inexpensive part that leads to my distaste. It's the limitations of the research that typically goes with going on 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 originally 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.

JURY DYNAMICS, Advantage Newsletter, April 2009.

The sixth volume and first edition of The Advantage includes: --A discussion of the remarkably complex and essential set of interpersonal dynamics that makes up jury deliberations. --"What No One Teaches Lawyers About Communication." --Quick tips on how to handle two common jury selection problems.

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 three key questions when determining their strategy.

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 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)

Jurors Texting, Facebooking, and Tweeting., Tsongas Litigation Consulting Blog, March 23, 2009

Well it's official. Jurors sending outbound messages to "report" on their jury duty experience has become a big enough story to make it to the cover of the New York Times. The issue of jurors defying the courts order not to "talk about the case" will continue to be a large challenge for several reasons.

The root cause of many issues that court clerks and trial judges have to manage with jurors come from a weak cultural emphasis on the role and importance of the jury trial. Many jurors expectations are that jury duty is a volunteer job as opposed to one of the few duties American citizens actually have to perform. It's difficult to blame the juror here. This subject doesn't seem to get the coverage in school as do the other two branches of government. Instead of many jurors accepting that their time to sacrifice has finally come (they've been expecting it, etc), they walk into court with the expectation that jury duty is for people with nothing better to do. I actually saw someone try and get out of jury duty by saying he was a "very important person." Of course, the judge told him calmly that that was wonderful that he'd be putting his talents toward this very important trial.

On top of the incorrect expectations you may have as the juror. Now imagine layering on top of this hearing a trial judge tell you that you are not allowed to smoke cigarettes for the entire week (or two, or three) that you will be serving. Okay we're not talking about a cigarette. However, for some it's the modern equivalent--he PDA. The word "addiction" is barely hyberbole when referring to some people. Some really feel the need to look at it and send messages much of the day (and night). One attorney confessed to me that he had taken his blackberry to bed with him.

I do believe some judges will begin to use a check in, check out system with phones and PDAs to deal with this issue but that may simply lead to Facebook posts at lunch.

Posted by Christopher J. Dominic.

Lawyer-Presidents in the Spotlight, 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.

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.

Don't Blame the Jury in Patent Cases, Tsongas Litigation Consulting Blog, February 1, 2009

I just finished reading “How Juror Misconceptions Affect Patent Trials,” by Joe Mullin which was posted January 26, 2009 on Law.com. It’s a good article that broadly covers a few of the many common miscommunications that trial teams have with their jurors in patent cases.

So, why am I left with sense that something’s not quite right. As I sit staring at the monitor, it hits me like the first signs of bad shrimp—it’s the title. When you do what trial consultants do, you learn to spot the fundamental error of, “blaming the audience.”

Don’t get me wrong, the article itself is quite useful. However, a “juror misconception” at the end of a trial is not the root cause of a bad verdict, it’s the symptom of the root cause and also what the headline should really be, “Trial Teams’ Failure to Understand, Inform, and Persuade Jurors Affects Patent Trials.”

The best way to be a zealous advocate is to first understand the judge or jury you are trying to persuade (by the way, judges evaluate cases roughly the same as juries when the act as the trier of fact [see Vidmar & Hans, American Juries: The Verdict”]).

The “Juror Misconceptions” article is kicked off with its subtitle, “Patent infringement suits rarely make the claim that the defendant actually copied the invention. But copying is always on the minds of jurors.” We know that one cannot reason without one’s life experiences and everyday people understand and have personal experience with lying, cheating, and stealing.

This is why one can want to punish another for copying--it just seems dishonest. Think of a gathering of regular people and now imagine a fight between two people. Do they accuse the other of “infringement?” (For more here see an article published in the January 2009 edition of the King County Bar Bulletin from Thomas M. O’Toole, Ph.D. at Tsongas entitled “A Narrative Framework For Patent Litigation” that summarizes some other useful information on this issue after he analyzed 30 years worth of our research).

The reality here is that when trying one of these cases, a trial attorney has much work to do. It’s their job to understand the jury before they meet them, capture and keep their attention, teach them something new, and get them to buy their side of the story (I literally do mean, “story.” For more on this see an article I published a few years back entitled “Common Defense Errors”). This job of a trial attorney trying a patent case is challenging because at first glance there appears to be less readily available examples to use with the jury. The operative word here is “at first glance.” A few years back, one of my partners, Bruce Boyd got quite a bit of attention when he rebuffed the argument a law professor made about juries being essentially unfit to listen to patent cases in an article entitled, “Who Decides?”

As the Law.com article addresses, your technical story is important for your appeal. However, leading with your technical argument is usually only a good strategy if your audience is the Patent and Trademark Office.

Posted by Christopher J. Dominic.

S. Korea Begins Historic Transition to Jury System, 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.

Self-Imposed Barriers to a Well-Developed Opening Statement Presentation, Tsongas Litigation Consulting Blog, January 7, 2009

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.

A Narrative Framework for Patent Litigation, 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."

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: A) Audienced-Based Communication; B) The Narrative Model; and C) Elaboration Likelihood Model.

"It's Only Mediation", Tsongas Litigation Consulting Blog, December 4, 2008

I was working with a client the other day during a witness preparation who was trying to explain to his witness why he was being so extensively prepared for his deposition when he had been told by his boss that the case is unlikely to go to trial. The client, turned to his witness and said, "Cases you prepare for as if you plan on going to trial get the most favorable outcome and rarely go to trial, cases you don't prepare for trial on will likely go to trial." I just smiled--a brilliantly simple way to describe what many experienced attorneys know.

Clearly many know of this maxim, so it's interesting that, "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 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.

A VIEW FROM THE JURY BOX, Advantage Newsletter, December 2008.

The fifth volume and third edition of The Advantage includes: --Members from Tsongas report findings from a jury that was reconvened after a multi-week trial for a thorough discussion on their experience and observations. --The Athenian Jury: A Historical Perspective on Our Justice System. --Trial Transcriptions from Athens

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.

One Does Not Act as a Zealous Advocate for One's Client When Acting as a Zealous Advocate in Voir Dire, Tsongas Litigation Consulting Blog, November 4, 2008

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 created a scarring impression on their psyche.

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). 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.

Email and Lying, Tsongas Litigation Consulting Blog, October 2, 2008

It is not unusual for experienced, practicing civil litigators to discuss how much things have changed since e-discovery has taken off. One of the topics that comes up most often in these discussions is how different email portrays people from when attorneys met them in person. This disparity is often settled in favor of documents over testimony. However, two recent studies may shed some light on one of the factors confounding a clear understanding of email behavior.

The studies are reviewed in a paper entitled Being Honest Online: The Finer Points of Lying in Online Ultimatum Bargaining, by Liuba Belkin and Terri Kurtzberg of Rutgers University and Charles Naquin of DePaul University. Not only did the studies find that “email is the most deceptive form of communications in the workplace even more so than more traditional kinds of written communications, like pen and paper.” They also found that “people actually feel justified when lying using email.” The authors opine that people know that the typical non-verbal channels of communication are removed and can therefore be exploited. However, that does not necessarily explain why email would be worse than pen and paper communication.

One problem with email, of course is that often people have emotional reactions to what they read since tone is absent and if those who tend to have a skeptical view of the sender may pick up a false negative tone and reply in an unprofessional, yet very human way—to hurt. Sometimes people lie to hurt others. Of course, this sort of dysfunction has been attacked in recent years by corporate training programs from lawyers reminding people if it’s in email, It could be in the newspaper tomorrow. Of course, the “jury is out” on the effectiveness of those training programs.

Posted by Christopher J. Dominic.

Understanding How People Have Trouble Grasping Probabilities, Tsongas Litigation Consulting Blog, September 9, 2008

One of the most interesting learnings from the multiple employment class action cases we have worked on is just how much more powerful the anecdotal stories of the individual class members resonated with jurors than the strong results of a statistical analysis. A regression analysis that shows how discrimination simply didn't happen could many times be easily overcome by a few more emotional and memorable stories that were painful accounts of discrimination.

A new article out by Michael Shermer in the September 2008 edition of Scientific American entitled, "Why Our Brains Do Not Intuitively Grasp Possibilities" (also where the graphic above comes from ) does a good job of explaining the conundrum. It's a short read to be followed up on next month that covers the concept of Confirmation bias. Confirmation bias is the phenomenon "in which we look for and find confirmatory evidence for what we already believe and ignore or discount contradictory evidence, we will remember only those few astonishing coincidences and forget the vast sea of meaningless data."

Of course the article doesn't mention much about what to do about it. We have typically gone the route of driving key themes and getting the important data to the trier of fact with easily accessible analogies and visuals. It's a challenge, but forwarned is forearmed and this article is another source of information that proves to us that we have to work hard to get our message across when we have a technical case.

Posted by Christopher J. Dominic.

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."

Why you Want to Serve as A Juror, Tsongas Litigation Consulting Blog, August 15, 2008

We at the Tsongas firm recently had not one, but two of our own deliberate to a verdict (one civil, one criminal). Many of their friends were of course, surprised that they were seated and still more were surprised to find out that they felt very good about there experience.

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."

Posted by Christopher J. Dominic.

Legal Moves Target Credit Card College Marketing, King County Bar Bulletin, August 2008.

Tom O'Toole, Ph.D. covers the recently changing laws on credit card marketing on college campuses.

TEN KEY QUESTIONS: EVALUATING THE QUALITY OF MOCK TRIAL RESEARCH, Advantage Newsletter, August 2008.

The fifth volume and second edition of The Advantage includes: --Ten Key Questions: Evaluating the Quality of Mock Trial Research; --Conquering the Invasion of the Bullet Points

Lawyers Helping the Home Guard, 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.

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.

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.

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.

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.

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.

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

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.

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

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.

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.

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.