2020 – Page 9 – The Red Well

Jury Research Amid COVID-19

April 23rd, 2020|

In early March, most of the business world was faced with the question, “How are we going to continue business as usual?” Today, the question seems to be, “Are we going to return to business as usual?” As of now, the answer to that question changes day to day. Although many trials have been put on standby, attorneys continue preparing for and attending mediations and settlement discussions. That means there are some research questions that cannot wait. As we watch to see how and when we return to normal, Tsongas has been actively working on adapting our small group jury

How to Conduct Your Deposition by Video Conference

April 21st, 2020|

When practical circumstances (like scheduling, transportation, or costs issues) necessitate it, conducting deposition by video conference can be an attractive alternative. [Indeed, as we speak, the COVID-19 pandemic means that the gathering of necessary deposition is significantly more likely to require video conference tools.] But while increasingly common, video conferencing isn’t perfect. You can risk encountering technical issues, “technically challenged” witnesses, distractions, and more. This is why deposing a witness in person is still preferable whenever possible; the ability to address each other directly, make eye contact, and hand off physical documents is tough to beat. So before you run

5 Ways Attorneys Can Help Expert Witnesses Thrive During Trial

April 17th, 2020|

Expert testimony at trial presents unique challenges to both the expert and the examining attorney. The expert is tasked with teaching complex material to a group of “students” with widely varying levels of education, comprehension, pertinent experience and yes, interest. The students give no feedback, the consequences of a teaching mistake can be significant, and there are people waiting for the opportunity to attack at the first sign of weakness. The attorney’s job is to help the expert overcome and thrive in these challenges. It is no small task and the key is in proper preparation. Several strategies will help.

Jury Trials in the Age of Pandemics and Other Disasters/Disruptions

April 17th, 2020|

April 17, 2020 Jeffrey T. Frederick, Ph.D. Jury Trials in the Age of Pandemics and Other Disasters/Disruptions As of this writing, most jury trials have been halted. All but a handful of states have ordered nonessential personnel to stay at home. While many states and federal jurisdictions have set restart dates for the nonessential court functions (e.g., jury trials) in several weeks to several months, no one can confidently predict when and in what time sequence jury trials will resume across the nation. Not only is there uncertainty in the restart date(s), but numerous reports have warned of another wave

The Implications of Jurors’ Memories v. Experiences at Trial

April 16th, 2020|

*Previously published our Jury Economics column in the December 2019 issue of the King County Bar Bulletin. By Thomas M. O’Toole, Ph.D. and Kevin R. Boully, Ph.D. Do you pursue happiness in each moment or live a life to be proud of when you someday look back on it? What does your preference say about how you make decisions? Nobel Prize winning psychologist Daniel Kahneman has repeatedly discussed an important discovery of human decision-making he describes as the realization of the two selves that exist in each of us. His point tackles the fundamental reality of how we experience and

Wearable Technology: Existing Growth Drivers and the Impact of COVID-19 on Innovation

April 16th, 2020|

By: Caroline Yu, Consulting Expert Litigation in the wearable technology market has been increasing in frequency and scope as the market has moved from niche early adopters to the broader consumer market. In 2018, the global wearables market was valued at $9 billion—the U.S. market accounting for 32% of it. The market is expected to grow to over $87 billion by 2025[i] with the most significant growth drivers to include technological advancements in wearable devices and digital health awareness. Data privacy and usability remain necessary design elements for designers and manufacturers looking to advance in the race for dominance. With

It’s all guesswork…

April 9th, 2020|

I was recently discussing with a client Melissa’s involvement as a trial consultant during jury selection. The attorney was well seasoned, has had many trials, but has never engaged a trial consultant to assist during jury selection. And, like most attorneys these days, the opportunities to conduct jury selection, and go to trial, with everything a trial involves, is limited by the shrinking number of trials. In other words, attorneys don’t get the practice they once did. Melissa, on the other hand, works for many lawyers and thus, is in trial for jury selection more than most attorneys. For

Do Jurors Have Clear Vision at Trial? A Day in the Life

April 8th, 2020|

*Previously published our Jury Economics column in the January 2020 issue of the King County Bar Bulletin. By Thomas M. O’Toole, Ph.D. and Kevin Boully, Ph.D. Then-Stanford Psychology graduate student Elizabeth Newton conducted a fascinating experiment over a decade ago when she divided participants into groups she dubbed “tappers” and “listeners.” The tappers were asked to select from a list of well-known Americana songs and then tap the tune for the listener assigned to sit across from them. The tappers could not say or hum anything. All they could do was tap their finger. The listener’s job was to guess

One Person’s Inference is Another Person’s Conjecture

April 1st, 2020|

Steven Wright observed that “there is a fine line between fishing and standing on the shore like an idiot.” And as David St. Hubbins (lead singer of Spinal Tap, the band chronicled in Rob Reiner’s Rockumentary This is Spinal Tap) notes, “It’s such a fine line between stupid, and…uh…clever.” Well, there is also a fine line, based on my observations of jury deliberations, between reasonable inferences and conjecture/speculation. Jurors struggle mightily with these issues and seldom know where that fine line is or where it should be drawn. As a former professor of communication specializing in persuasion and argument, observing

How to Keep Your Expert Witness from Crumbling on Cross

March 30th, 2020|

In a recent set of post-trial juror interviews, the jurors we spoke to detailed how the believability of the plaintiff’s expert witness had them strongly favoring the plaintiff. …That is, until the defense attorney caused the expert to fall apart on cross-examination. They described the experience of watching this attorney dismantle the witness as akin to being in court with Perry Mason – and had referred to the attorney by that very name for the rest of trial. The plaintiff expert’s inability to remain consistent through cross-examination was beneficial to our case. Yet, it also highlighted the dangers of being