Trial Themes & Strategy

Making Your Damages Argument Persuasive
Awarding damages is an ambiguous situation for jurors. They don’t know how much money is right to award and they usually have little in the way of external referents to guide their decision-making (leading to the "Monopoly money" phenomenon). It’s up to the trial attorneys to provide jurors with a frame to structure their deliberations on damages. This article tells you how.

Theme Development and Jury Selection in Product Liability Cases
This 12-page paper, originally presented at the Connecticut Bar Association Biennial Products Liability Update, gives a comprehensive overview of how to effectively plan and execute theme development, voir dire and jury selection in a product liability case. It includes discussion of when to use a juror questionnaire and effective question design.

Finding Out What Works with a Jury: Developing and Testing Case Themes
This 12-page article, originally presented at the 1999 DRI Annual Meeting, gives a comprehensive overview of psychologically validated strategies for effective theme development, psychological obstacles that can prevent jurors from accepting your themes, and methods for testing and refining your themes in focus groups and mock trials.

The Question Is, When Do Jurors Lean?
It is a common trial myth that jurors have already made up their mind after opening statements. This article tracks down the origin of this myth and discusses what empirical research really shows about when, and how, jurors make up their minds about a case.

Mock Trials/Focus Groups

When Prevention Isn’t Enough: Using Jury Research to Prepare for Nursing Home Litigation
Nursing home litigation is on the rise, as is juror anxiety about nursing home care—for their parents, and for themselves. This paper examines key attitudes that shape juror reactions to nursing home cases.

Mock Trials, Past & Present
Mock trials have been used to assess litigation for over twenty years now. This article looks at how they have evolved in both form and function and gives tips about how to design empirically sound mock trial research that delivers the insights you need for a successful trial outcome.

Bringing the Juror Back into IP Litigation
Because IP attorneys usually need to focus on highly legal and technical aspects of their case in pretrial preparation, they easily lose sight of the key decision-makers: Jurors. This paper describes how to effectively use a mock to bring jurors back into the picture and discover which preexisting attitudes and biases shape their reactions to your key witnesses, case facts, and arguments.

Jury Selection, Voir Dire & Trial Monitoring:

Strategies for Minimizing Damages
Paper presented at the 2003 Damages Seminar. With a clear trial strategy, consistent defense themes and low damages messages, a good defense attorney can do a great deal to minimize the chances that his or her client will end up on the pages of the local paper, one more unlucky loser of the high damages lawsuit lottery. This paper explains techniques for effective defense jury selection and present a number of questions empirically demonstrated to flush out high damages jurors. It also discusses how to present your case to minimize damage awards.

Asking a Better Question
Social scientists know well that it’s not just what you ask, but also how you ask that makes a difference. This article gives tips on how to ask "skewed" voir dire questions that subtly hide your keeps and reveal your strikes.

Guidelines for Developing Effective Cause Challenges
Making successful cause challenges can be the difference between losing and winning a case. This article explains psychologically sound techniques for eliciting admissions of bias from jurors during voir dire and gives examples of effective questions.

Adjusting For Attitude
Attorneys on both sides of IP cases traditionally have favored well-educated jurors with technical training who they believe can attend to the minute and specific issues at hand. Empirical research suggests that this is not the best strategy for selecting jurors. This article explores some of the attitudes that prove important in shaping juror verdicts that IP attorneys should explore in voir dire.

Theme Development & Jury Selection in Product Liability Litigation
This 12-page paper, originally presented at the Connecticut Bar Association Biennial Products Liability Update, gives a comprehensive overview of how to effectively plan and execute theme development, voir dire and jury selection in a product liability case. It includes discussion of when to use a juror questionnaire and effective question design.

What Jurors Bring to Trial: Juror Attitudes in Trucking Litigation
Jurors have strong attitudes about trucks on the highway that litigators need to take into account when assessing and trying trucking cases. This article presents data and insights about these attitudes from a series of focus groups we conducted around the country for Federal Highway Office of Motor Carriers.

When Prevention Isn’t Enough: Using Jury Research to Prepare for Nursing Home Litigation
Nursing home litigation is on the rise, as is juror anxiety about nursing home care—for their parents, and for themselves. This paper examines key attitudes that shape juror reactions to nursing home cases.

Beware the Anxious Juror
Did you ever get anxious when taking tests in school? If so, you probably already know that high levels of anxiety interfere with learning new information and being an effective communicator. Anxious jurors pose a danger to your trial success because they aren’t open to learning what you need to convey. This article discusses successful strategies for identifying anxious jurors during voir dire.

Witness Preparation:

Presenting Insurance Company Witnesses
How do jurors perceive insurance company witnesses? How can you overcome typical problems and perception issues with insurance company witnesses? Based on hundreds of post-trial interviews we have conducted in insurance cases, we provide some answers.