Archives – Page 38 – The Red Well

How Do I Become a Successful Expert Witness?

June 22nd, 2021|

When you’re an expert witness, standing out among the competition and finding long-term success is no easy task. As a consulting firm constantly working with attorneys and their witnesses, we at Litigation Insights have heard, and seen, the horror stories: Witnesses can be tough to work with, exhibit behaviors and body language that damage their credibility, and/or struggle to present their ideas to a layman audience in an understandable, persuasive way. These problems only compound with experts, who tend to provide crucial testimony on particularly dense material. Indeed, too often, attorneys tell us an expert will pass the interview with

Are attorneys more persuasive when expressing anger? Online Jury Research Update

June 19th, 2021|

Emotional expression is a key part of trial advocacy for attorneys. Many attorneys are encouraged to demonstrate conviction through the expression of anger as a way to gain credibility with juries. Salerno and colleagues (Salerno & Phalen, 2018, 2019; Salerno et al., 2018) conducted a series of experiments involving nearly 700 participants from across the country to test whether expressing anger in court makes attorneys more effective....

“L” is for…Lions! The Peril of Blind Spots in Litigation

June 15th, 2021|

As a die-hard Seahawk fan, I have little trouble finding ways to ridicule other teams, but boy did the Detroit Lions make it easy for me the other day. Spot it? When you’re already one of the worst teams in the NFL, advertising it with a giant “L” for your logo doesn’t make a lot of sense. It begs the question, who thought this was a good idea and why didn’t anyone stop them? There were probably a couple of factors at play, and those same factors could be contributing to poor decisions and outcomes like this one in your

Is one expert offering multiple points more persuasive than multiple experts offering distinct points? Online Jury Research Update

June 4th, 2021|

Judges often limit the number and kinds of experts who can testify at trial, paying particular attention to repetition of information across experts. Nonetheless, attorneys often still can choose to diffuse needed expert testimony across multiple expert witnesses or concentrate needed expertise within one (usually multidisciplinary) expert witness. The choice matters. Harkins and Petty (1981, 1987) conducted numerous experiments focusing on the persuasiveness of (a) multiple versus single sources of information (b) making either one or multiple arguments (c) in favor of proposals participants strongly oppose...

Making the Damn Feather Weigh More: Reframing Common Burden of Proof Arguments By Plaintiffs

June 1st, 2021|

“If you end up saying to yourself, I just don’t know, but it might be, then we’ve met our burden.” While I’ve listened to both plaintiff and defense attorneys frame their take on the burden of proof for years, this one made me go “hmmmm.” While the feather on the scale and the claim that you only need to be one tiny decimal point above 50% to vote for the plaintiff are tried and true plaintiff framing devices, this one struck me differently. I realized it was the additional phrase, “I just don’t know.” If you stop at that point,

What Causes “Nuclear Verdicts”? – Part 2

June 1st, 2021|

In Part 1, we discussed the major narrative-framing strategies plaintiffs employ to coax jurors into awarding massive damages. However, a number of additional psychological and case-specific factors are at play, and these are just as important to keep in mind as you weigh the risks of encountering a nuclear verdict – and your potential counterstrategies. Psychological Factors That Influence Nuclear Verdicts Anchoring The amount jurors award in damages, after finding for a plaintiff, is almost always influenced by the amount of the demand. In psychological terms, we call that “anchoring.” Anchoring and adjustment are psychological heuristics, or shortcuts, that influence how

The Major League

May 25th, 2021|

My family is a baseball family. My dad, the late Park T. Pigott, Sr. played baseball, coached baseball, and generally speaking, lived much of his life for baseball. I am not usually fond of sports analogies, however, recent experiences with clients of Magnus Research Consultants have reminded me of baseball. Almost all of Magnus’ clients “play in the major league,” in that they are trial lawyers and litigators who are at the pinnacle of their legal career, with cases of a substantial magnitude that warrant retaining a trial consultant. Our most recent client, as one example, is a criminal

Persuading with Science in a Post-Fact World

May 20th, 2021|

We are living through a particularly difficult time for science. My colleague, Jill, has written in the past about the challenges of persuading juries in a post-trust/post-fact ecosystem. The politicization of fact is creating a notable backlash against expertise. Nowhere is this challenge more pronounced for trial teams than in cases that rely on scientific and technical data. This post-trust/post-fact ecosystem presents a serious threat to our ability to come to accurate conclusions that require someunderstanding of scientific or technical information. A 2017 National Academies Press study cuts to the core of the issue, noting that only 16% of Americans

Politics of Litigation

May 20th, 2021|

Magnus is hired for many reasons. To evaluate the liability issues in the case. To assess the damages potential. To determine at whom to point fingers. To get a plaintiff to understand the realities of their case. To get a defendant to understand the realities of their case. Is it a case to try? Is it a case to settle? For insurance adjusters, how can I get my supervisor and her/his supervisor, to authorize settlement? Or, should we fight it at trial? Only in this last example, learned years ago, did I ever get an inkling of an idea

Which jurors are more likely to find against defendants in bad faith cases? Online Jury Research Update

May 20th, 2021|

Juror demographic characteristics such as age, race, gender, marital status, income, education and number of children predict almost no variation in the verdict preferences of individual jurors in either civil or criminal cases, across many years and studies, with only a few exceptions. One recently discovered exception to this almost uniform inability for juror demographics to predict verdicts in civil cases is the ability of...