Presentations

The decline of the jury trial, increasing past popularity of arbitration as a means of dispute resolution, and the continuing importance of judicial persuasion in litigation invites the question, “What are the real differences between these three various fact finders?” Are there some distinct similarities and differences among fact finders, or is the jury still out? This presentation highlights results of a case study analyzed and decided by a group of arbitrators, a district court judge, and a group of mock jurors. In addition, data from surveys and interviews with judges, arbitrators, and jurors will be shared and discussed. Strategy implications from these findings are also presented. Topics include:

• The parallels among the three fact finders
• Whether arbitrators are actually pro-defense
• The fact finder more likely to favor law over ethics
• The fact finder best equipped to decide highly emotional or highly technical cases
• The fact finder more likely to find for the plaintiff
• Whether arbitrators are more conservative on damages than juries
• When making an apology makes a difference

Attitudes against large corporations constitute one of the most pervasive biases affecting civil litigants today. Rather than being restricted to a small and young demographic, the belief that companies tend to be dishonest, irresponsible, and driven by greed is a majority opinion that has remained consistent over a number of years. Our own national research has explored this bias, and we have developed strategic and practical ways for corporate litigants to identify and mitigate this bias during trial. Methods include analytic tools to reliably measure potential jurors with the highest levels of anti-corporate bias, as well as persuasive tools to tailor your message to counter anti-corporate bias. Topics include:

• The proportion of the population holding anti-corporate attitudes
• The degree to which attitudes have changed over time, particularly during poor economic times
• The attitudes, experiences, and demographics that correlate with high anti-corporate bias
• Persuasion Strategies’ own validated scale measuring juror anti-corporate bias
• The ‘silver lining’ in anti-corporate bias: lowered expectations
• The ingredients to a successful corporate defense

Beginning with a demonstration of an all-too-common (and ineffective) oral voir dire, this presentation not only details the six common mistakes that litigators make, but also provides a time-tested approach to time-limited voir dire. The lecture is full of content and demonstration, beginning with an approach to creating a high-risk juror profile and ending with a concrete triple-layer approach to oral voir dire. Topics include:

• Identifying the six mistakes and remedies
• Introducing a time-tested triple-layer approach to effective oral voir dire
• Avoiding oral voir dire questions that help the other side more
 

Effective witness preparation takes time, a strategic plan, and a measured approach. It means knowing what you want to accomplish and how you plan to go about it. In particular, it means going above and beyond substantive preparation and evaluating and improving witness confidence and communication through nonverbal communication, effective language use, and careful listening. Topics include:

• The goals of witness preparation
• How to approach witness preparation
• Devising a preparation schedule
• Working with nonverbal communication
• Effective use of language
• Effective listening skills
• Dealing with “lawyer’s tricks”
• Handling problem witnesses

How savvy are you about jury decision making in intellectual property litigation? We test your grasp of intellectual property jury decision making in this session by using a quiz throughout the presentation. We provide the answers and strategies that arise from extensive jury research in IP cases. The perspective and data shared in this session are based on the study of thousands of mock jurors and a few hundred arbitrators and federal judges across the country, incorporating up-to-date measures of relevant perceptions and how they impact your advocacy and arguments in patent, trademark, and trade secrets litigation. Many of the strategies spring from two Persuasion Strategies consultants’ book, Patently Persuasive. Topics include:

• Identifying the “juror flip” in juror profiles unique to patent litigation
• Defining key voir dire questions for both sides in patent cases
• Revealing a jury-tested opening statement structure that is most persuasive
• Comparing judges’ and jurors’ perceptions of Non-Practicing Entities (NPEs) in patent litigation
• Leveraging consumer benefits in trademark litigation
• Identifying voir dire questions that backfire in theft of trade secret litigation

Some may think due to current events that this is one of the more challenging times to be an oil and gas defendant. However, several factors have combined to challenge that perception. In this presentation you will learn what jurors are really thinking today about energy companies, and how their current perceptions compare to the decision making climate a few years ago. Specific recommendations for how to leverage jurors’ opinions and biases are also presented. Topics include:

• The effect of the down economy on jury decision making
• Juror reaction to the Deepwater Horizon incident
• What most concerns jurors and how to effectively address those concerns
• Proven effective strategies for persuading energy juries
 

Using the facts of a real construction case as a backdrop, this presentation provides concrete advice about the specific ways a construction case can be more persuasive, whether in front of a jury, a judge or an arbitrator. With actual clips of mock jurors discussing the case, the presenter illustrates how such things as clear and compelling graphics can dramatically impact the outcome of your case. Topics include:

• 21st century courtroom communication
• Two questions fact finders ask in every construction case
• Recognizing just how critical the critical path is
• Making damages determinative by making damages interesting
• Using external yardsticks to factor in fairness
 

Products liability litigation is heavily influenced by jurors' preexisting attitudes on personal responsibility, their specific beliefs about safety, product labeling and testing, as well as the way they see the relationship between large corporations and individuals. Based on a nationwide survey of 406 jury-eligible respondents we conducted in the summer of 2012, as well as past surveys and mock trial experiences, we examine the ways these attitudes and beliefs translate into challenges and opportunities for the products liability defendant. Specifically, we provide recommendations on better trial messages and more strategic jury selection in product defense. Topics include:

• Beliefs and attitudes on the adequacy of product testing
• Views on whether consumers follow consumer warnings
• Perceptions on whether manufacturers and consumers are placing product performance over product safety
• Attributions and self-perceptions on whether product labels are read, skimmed or ignored
• Bias against larger companies as it relates to products manufacturers or sellers
• Overarching beliefs on personal responsibility or collective responsibility as it relates to product disputes
• Identifying the wrong kind of juror for products defense
• Adapting your message to today’s product attitudes
 

Attitudes against large corporations constitute one of the most pervasive biases affecting civil litigants today. Rather than being restricted to a small and young demographic, the belief that companies tend to be dishonest, irresponsible, and driven by greed is a majority opinion that has remained consistent over a number of years. Our own national research has explored this bias, in particular against medical device companies, finding, for example, that medical device companies have more responsibility to warn patients than do doctors. We have developed strategic and practical ways for medical device corporate litigants to identify and mitigate this bias during trial. Methods include analytic tools to reliably measure potential jurors with the highest levels of anti-corporate bias, as well as persuasive tools to tailor your message to counter anti-corporate bias. Topics include:

• The proportion of the population holding anti-corporate attitudes
• The degree to which attitudes have changed over time, particularly during poor economic times
• The attitudes, experiences, and demographics that correlate with high anti-corporate bias
• Persuasion Strategies’ own validated scale measuring juror anti-corporate bias
• The mock trial research revealing jurors’ beliefs that medical device companies must protect patients and have a greater duty to warn
• The ingredients to a successful defense in medical device cases, including focused effective voir dire and themes

Significant lawsuits against product manufacturers – and especially sports product manufacturers – continue to proliferate and make national news. The average jury-eligible consumer is more aware of product safety issues than ever. This presentation highlights lessons learned from our recent product litigation experience and our 2010-2011 National Jury Research Project involving a sports products liability fact pattern. We discuss juror perceptions of product liability claims and offer specific recommendations for identifying high-risk jurors using Persuasion Strategies Anti-Corporate Bias Scale. The scale was developed from assessments of more than 2900 participants and evaluates key juror attitudes about corporate conduct, government regulations, ethics, and lawsuits. The scale has been consistently predictive of bias against corporations, and has applied specifically to sports product liability disputes. Topics include:

• Leveraging jurors’ personal responsibility bias in defense of your product
• Telling a persuasive product safety story
• Identifying juror perceptions of concussion injuries and concussion lawsuits
• Embracing a safety standard that jurors will find meaningful
• Addressing jurors’ beliefs that manufacturers should test products more thoroughly
• Identifying and deselecting high-risk jurors using Persuasion Strategies Anti-Corporate Bias Scale