making cases compelling for decision-makers
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ComCon provides the power of persuasion in litigation.
Because persuasion matters at every litigation stage, ComCon provides services for filing, discovery, depositions, motions, hearings, settlement, mediation, arbitration, pre-trial, trial and appeal in civil and criminal matters, federal and state courts, large and small cases, national and local venues, and in cases expected to be settled as well as taken to trial.
ComCon strongly encourages its early involvement in litigation to:
ComCon's early involvement in cases helps achieve better outcomes for clients.
ComCon offers both general consulting and research services. Clients can opt for only general consulting services, only research services, or both. ComCon submits a written proposal for each case after speaking with the attorney(s) about the case, the case's budget, desired services and recommended services. For more information, please Contact ComCon.
Case evaluation services consider the persuasive potential of a case, and how to strengthen its persuasive prospects. A case's strengths and weaknesses are considered, and case outcomes are assessed. We note persuasive problems and possible strategies for overcoming them.
Case Analysis Using our experience and expertise, we prepare psychological and persuasive analyses of cases, issues, arguments and witnesses. We explore understandings of evidence, identify compelling facts, recommend arguments and facts to set aside, raise questions to be answered, and suggest avenues for further investigation. We evaluate the importance and logical consistency of arguments and evidence, offer a "big picture" understanding of the case, and recommend case themes (see the Ramirez Case and our workshop synopsis on Psychologically Satisfying Explanations). ComCon's recommendations reflect both how people typically attend to, perceive, judge and remember information (see Tests and Demonstratons of Human Observation) and on how people think about specific issues in specific types of civil and criminal cases (see juror data in Slide Shows and research in the Cases section of the Online Jury Research Update blawg).
Expert Witness Recommendations ComCon makes recommendations about expert witnesses, prepares experts to testify at deposition and trial, and offers strategies for cross-examining an opposing party's experts (see, e.g., Experts and Jury Selection for False Confessions and the Experts section of the Online Jury Research Update blawg).
Settlement and Bench Trial Recommendations ComCon makes recommendations about settlement and pleas (see, for example, the Shoyoye Case), and bench versus jury trials (see, for example, the Williams Case). ComCon helps litigants avoid mistakenly rejecting settlement and plea offers, or mistakenly opting for bench or jury trials (see, e.g., for civil cases, the section on Settlement, and for criminal cases, When are Juries More Likely Than Judges to Convict Criminal Defendants?, in the Online Jury Research Update blawg).
Timing Case evaluation is useful at every stage of litigation, from assessing a case before filing to drafting motions, guiding discovery, considering settlement and preparing for mediation, arbitration, trial and appeal.
Method Case evaluation usually involves one or more brainstorming sessions with the case attorney(s) -- in person or virtually -- to address questions, flag concerns, mull over case issues, consider recommendations, and develop a case plan.
ComCon analyses the effects of a judge on the litigation of a case and makes recommendations for adaptation, persuasive approach, behavioral practices and case strategy.
Procedure ComCon observes judges when they are actively engaged in their courtrooms (running their calendars, holding hearings, etc.). Judicial observation provides insight into a judge's likely values, beliefs and opinions.
Uses ComCon has observed judges for many reasons, including to help trial teams determine how a judge might respond to a specific attorney, how a case might best be themed in motions, which arguments that could be made in a motion might be most persuasive to a judge, how a judge is likely to respond to certain voir dire questions and practices, which behaviors a judge finds intolerable and which a judge expects, and whether a judge likely would allow a particular case strategy under consideration by the trial team.
Judicial observation offers psychological insight into judges to help attorneys better litigate their cases (see, for example, the Balonick Case and the section on Judges in the Online Jury Research Update blawg).
ComCon offers advice on strategic decisions attorneys face in filing and litigating cases, and has helped attorneys with strategic decisions in all stages of litigation (see our Skill and Cases in the News).
Early Stage Strategy ComCon has offered advice on whether to accept or pass on a case, file in federal or state court, make or reject a settlement offer, file specific motions, depose specific witnesses, agree to mediation or arbitration, seek a change of venue, plead to criminal charges, forward specific arguments, and seek to disqualify or recuse a judge.
Pre-Trial Stage Strategy ComCon has offered advice on whether to waive (or not) speedy trial rights, request a bench or jury trial, keep or shave off a beard, change what a party or participant wears, cover up tatoos, start trial days at an earlier or later hour, use or challenge the use of a juror questionnaire, and speak (or not) to the media.
Trial Stage Strategy ComCon has offered advice on whether to make a Batson challenge, challenge a juror for cause, exercise a peremptory on a specific juror, wait to give the opening statement until before the defense case, give a short or long opening statement, make objections, have specific witnesses testify, have witnesses testify in a particular order, request a judge specially instruct the jury, use experts, use particular experts, accept fewer jurors than initially seated, ask for a mistrial, organize the closing argument in the order of witness testimony or around case issues, ask for a low or high amount of damages, and declare the defendant innocent or not guilty.
Ending Stage Strategy ComCon has offered advice on whether to agree to settle after the compensatory damages phase and before a punitive damages phase, wait for a verdict or settle/plead while the jury is deliberating, and appeal (or not) a verdict.
ComCon offers litigation strategy guidance that is grounded in social science research (see, for example, the Online Jury Research Update blawg) and our nearly 30 years of experience (read more About us and our Expertise).
ComCon offers presentation assistance throughtout all stages of litigation, from motions to hearings to depositions to trial to appeal.
ComCon helps attorneys communicate clearly and effectively to decision-makers, no matter the venue -- be it a court hearing, mediation, arbitration, trial or public hearing -- and no matter the form of the presentation -- be it a speech, witness examination, voir dire, settlement offer or written motion. Our expertise is human communication and persuasion (see our Kollectionns and read Truthiness, Falsiness & Nothingness, Persuading the Simpson Jury, Humanizing Roles for Defendants and about Who We Are).
Argument Development ComCon advises on the strategy, structure, language, form and content of statements, presentations, arguments, openings, closings and appeals. We rehearse presentations with attorneys to improve their delivery, clarity and persuasiveness (see tips on Persuasive Language & Arguments and read Public Speaking for Litigators ).
Motion Review ComCon reviews written motions not only to help increase their clarity and persuasiveness, but also to forward key case themes and adapt to the language preferences of judges (see our Slide Show summarizing data on Judges' Views of Persuasive Writing). ComCon also makes recommendations of motions to file (or not) with the court for cases.
Witness Examination We work with attorneys to develop effective lines of questioning for depositions, hearings, direct‑examinations and cross-examinations of both expert and lay witnesses. Not only does ComCon focus on attorney clarity and persuasiveness, we make recommendations for question phrasing based on how people understand and respond to questions (see Dr. Kellermann's article on How Question Wording Influences Answers, the sections on Language and on Strategies for Witnesses in the Online Jury Research Update blawg, and our Slide Show on ). ComCon also drafts voir dire questions for attorneys, trains attorneys in effective voir dire question-asking, and helps attorneys ask questions both to obtain cause challenges and to know when to stop asking questions (see, ComCon's Voir Dire Services, the Ma Case, and the section on Voir Dire in the Online Jury Research Update blawg).
ComCon evaluates pre-trial, in-court, in-hearing and in-public attorney communications and helps make them more persuasive for decision-makers.
ComCon prepares both expert and lay witnesses for deposition, hearings and trial.
Goals The goals of witness preparation are to maximize the credibility and persuasiveness of a witness. ComCon works with witnesses to minimize detrimental or distracting behaviors, enhance the positive aspects of their communication style, structure testimony to be compehensible, integrate thematic elements of the case into their testimony, and assist the witnesses to maintain credibility during cross-examination.
Methods Our services include educating witnesses about their role, providing communication skills training, offering tips for handling nervousness and anxiety, making recommendations to minimize adverse behaviors, training witnesses in cross-examination techniques, and conducting role plays across multiple sessions that involve attorneys both familiar and unfamiliar to the witness (read Preparing Executives To Testify and check out the Witness section of the Online Jury Research Update blawg).
We use our knowledge of effective communication strategies to work together with attorneys and the witness to develop skills so that the witness can convey case themes effectively, maintain a good demeanor, and hold up under cross-examination.
Jury selection services include both pre-trial and in-court assistance. Pre-trial, our services include generating juror profiles specific to a trial venue and case, drafting and helping negotiate juror questionnaires, and writing voir dire questions for attorneys. In-court, we evaluate and score completed questionnaires, and assist with the selection of jurors and alternates. ComCon also conducts internet research of both prospective and actual jurors (see Seated Juror Research Services) and tracks juror reactions during trial (see Trial Monitoring Services).
Basis After we learn the intricacies of a case, juror profiles are developed based on a review of (a) research (if conducted), (b) cases in ComCon's database having similar issues and concerns, (c) social scientific research, (d) our experience and (e) our knowledge.
Variability ComCon's belief, experience and practice are that neither uniform nor typical profiles of "bad" and "good" jurors exist. Case facts, arguments and case themes significantly influence juror profiles as do venues, attorneys, litigants, witnesses, and current events (see, for example, the influence of Cases and of Litigants in the Online Jury Research Update blawg).
Orientation ComCon's juror profiling concentrates on identifying jurors who are most receptive to an opponent's case and least receptive to one's own case. We recognize, and adapt to the reality, that "jury selection" is a misnomer: attorneys do not choose (select) jurors; they strike (de-select) jurors. Because jury selection is actually jury de‑selection, ComCon's goal is to identify and challenge/strike the jurors who will be the most difficult to persuade: people who resonate strongly or confidently with the opponent's case (see, for example, 4 Ways to Seat The Jury of Your Dreams ).
Focus Juror demographics and prior jury experience typically have only a limited influence (if any) on jurors' leanings and verdict preferences. While ComCon considers such juror characteristics, we focus on specific juror experiences, attitudes, beliefs, values, behaviors and opinions that are activated by a case and its litigation (see the Juror Characteristics section in the Online Jury Research Update blawg).
Juror profiling serves as the foundation of ComCon's jury selection assistance, guiding the drafting and scoring of juror questionnaires, the writing of voir dire questions, the evaluation of jurors during voir dire, and our recommendations for cause challenges and peremptory strikes.
ComCon develops (and helps get adopted) juror questionnaires pre-trial, and evaluates and scores completed juror questionnaires during trial.
Questionnaire Development ComCon drafts juror questionnaires that are strategically advantageous for the client. ComCon develops the juror questionnaire using our case‑specific juror profiles to identify prospective jurors who view the opposing party's case favorably while keeping jurors favorable to our case hidden. ComCon also reviews drafts of the questionnaires proposed by the opposing side(s), recommends negotiation strategies to obtain a jointly agreed-upon questionnaire, and assists the trial team with arguments for a motion supporting the use of the questionnaire at trial.
Questionnaire Evaluation ComCon provides both logistic and evaluative assistance for juror questionnaires completed during voir dire. ComCon advises attorneys extensively on ways to minimize problems with the administration, collection and photocopying of the juror questionnaires. ComCon evaluates completed juror questionnaires by coding the answers of each prospective juror on a "profile sheet" (for our use during voir dire) and a "profile note" (for the attorney) that provides at a glance the leaning of each prospective juror, challenges for cause and hardship, and follow-up questions rank-ordered for their importance. Each prospective juror is rated as to his/her desirability as a juror for the case based on fit to the case-specific juror profiles.
Case Use ComCon recommends juror questionnaires whenever opposing attorneys are amenable, the judge is not definitely opposed, and the cost is justifiable. ComCon encourages negotiation of the content of juror questionnaires with opposing parties, and a joint motion submitted to support its adoption by the Court. ComCon offers extensive help to attorneys during the negotiation process with opposing parties as well as with arguments for motions requesting adoption of the juror questionnaire.
With few exceptions, ComCon believes that juror questionnaires are superior to oral voir dire for assessing prospective jurors, and recommends their use whenever feasible (see research on Which Better Uncovers Bias: Juror Questionnaires or Oral Voir Dire? and the Billock Case).
VOIR DIRE RECOMMENDATIONS
Before the start of trial, Comcon generates questions for voir dire and drafts a voir dire protocol covering key issues. The voir dire protocol is designed to introduce new questions and topics for each round of questioning, to respond to likely themes of questions of the opposing side(s), to replace "exhausted" and "spoiled" questions, and to maintain juror interest. We also train attorneys in asking voir dire questions and obtaining cause challenges.
Question Basis ComCon's voir dire questions are based on our case-specific juror profiles. The questions are written to reveal prospective jurors who are predisposed to the opposing side(s) while keeping prospective jurors silent who are predisposed to our side.
Question Strategy ComCon writes voir dire questions with particular linguistic forms and using specific phrasings, because these forms and phrasings not only encourage jurors to talk, but also encourage the "right" jurors to talk. Our questions are written to encourage prospective jurors opposed to the attorney's case to talk and prospective jurors favorable to the attorney's case to remain silent (see, for example, 5 Tips for Seating a Sympathetic Jury ).
Question Phrasing ComCon's preferred question form is an open-ended question about an attitude, reason, preference, thought or feeling, and phrased in a manner jurors opposed to the attorney would find agreeable. ComCon typically avoids close-ended questions, questions that instruct prospective jurors about the law or case, and questions that tell prospective jurors how to think. ComCon teaches attorneys the preferred forms and phrasings, and encourages attorneys to use them for maximum effectiveness in voir dire (see, for example, research on Is Directive or Non-directive Questioning Better at Identifying Juror Bias?).
Voir Dire Goals ComCon writes voir dire questions to achieve four goals: acquire information about jurors, introduce case themes, educate jurors about case issues, and bond with jurors. Of these four goals, acquiring information about jurors is always the most important goal, and bonding with jurors is always the least important goal (see, for example, research on Does Ingratiation in Voir Dire Affect Trial Outcomes?). When voir dire time is very limited, ComCon recommends that the goal of acquiring information about jurors be an attorney's only goal. In every voir dire, very limited or not, ComCon encourages attorneys to be listeners rather than presenters, with jurors talking at least 80% of the time.
ComCon's voir dire recommendations are carefully crafted questions, organized into a carefully crafted voir dire protocol, so as to learn the most possible about prospective jurors, in order to achieve the best jury possible for a case.
In-court jury selection assistance involves two simultaneous tasks for ComCon: evaluating prospective jurors and supporting the attorney(s) conducting the voir dire.
Prospective Juror Evaluation ComCon evaluates prospective jurors by monitoring their behavior, tracking their answers, comparing their oral answers to written answers on juror questionnaires (if available), and assessing the fit of prospective jurors to our case‑specific juror profiles. We rate each prospective juror as to their dangerousness for the case, and make recommendations to attorneys for Batson challenges, cause challenges, hardship and peremptory strikes (check out and Discrimination in Jury Selection: Peremptory Strikes, Batson and More).
Attorney Support ComCon's support of attorneys during voir dire is meant to permit attorneys to focus exclusively on asking jurors questions, and not have to be concerned with tracking or remembering the many other details critical to a successful voir dire. ComCon supports attorneys in five main ways:
ComCon knows how exhausting jury selection can be and believes that attorneys who focus exclusively on the task of asking questions are more successful in voir dire.
ComCon provides assistance to attorneys during all legal proceedings, including court hearings, public hearings, and both bench and jury trials. ComCon provides attorney communication and witness preparation services throughout the duration of all legal proceedings (see Presentation Assistance Services). During trial, ComCon also offers seated juror research and trial monitoring services.
SEATED JUROR RESEARCH
Seated juror research is conducted via the internet, augments our seated jury summary, and allows for monitoring of publicly available social media posts of jurors and alternates.
Internet Juror Research We conduct internet research of both prospective and actual jurors.
Seated Jury Summary After the jury is sworn, ComCon summarizes the known information about each seated juror and alternate, determines a final juror rating, and provides recommendations of how best to persuade each juror. We also profile alternates and the jury (as a group), provide a seating chart summarizing key juror and alternate details, and make recommendations of how best to adapt the presentation of the case to the seated jury.
Social Media Monitoring ComCon encourages ongoing monitoring of publicly available social media of seated jurors and alternates (see. for example, linked resources on Juror Misconduct).
ComCon monitors trials through consultant observation and shadow jury research.
Consultant Observation Attorneys often ask ComCon to assess the impact of opening statements or make evaluations of the testimony of particular witnesses. ComCon observes the attorney presentations and witnesses, monitors jurors’ reactions, provides feedback to improve communication clarity and persuasiveness, and makes recommendations for further adapting case arguments and themes to jurors in response to trial events and issues.
Shadow Jury Research ComCon oversees shadow jurors to help trial teams guide and adapt case presentation. Shadow jurors are selected to represent as closely as possible the actual jurors, sit in the spectator section of the courtroom, attend the entire trial, see the same events as the actual jurors, and are given the same admonitions as the actual jurors. ComCon interviews each shadow juror at night after every trial day to obtain observations on the day's proceedings and on aspects of the case. ComCon provides the trial team with a summary of the nightly interviews of the shadow jurors. For some cases, the shadow jury deliberates at the end of the trial so that late decisions about settlement can be made before the actual jury reaches a verdict.
Trial monitoring provides real-time feedback on how a case is proceeding.
ComCon conducts both pre-trial and post-trial research. Pre-trial, ComCon provides custom-designed social scientific research, including focus groups, mock trials, attitude surveys and venue studies. Post-trial, ComCon conducts interviews of both seated and alternate jurors.
Prior to trial, ComCon conducts focus group, mock trial, telephone attitude survey, and venue study research to assist with venue selection, juror profiling, voir dire questions, argument analysis, case themes, case value assessment, and likely outcomes.
Focus Groups Focus Group Research is exploratory, occurs in the early to middle pre-trial stages of litigation, and uncovers attitudes about the parties and issues in the case. A focus group typically involves 12 to 15 respondents taking part in a consultant-led discussion (see Focus Group Research).
Mock Trials Mock Trial Research is evaluative, occurs in the middle to later pre-trial stages of litigation, and tests and refines trial strategies and themes with a trial-like structure and jury deliberations. A mock trial typically includes live attorney presentations, video exerpts of key witnesses, questionnaires, jury deliberations, and debriefing of mock jurors (see Mock Trial Research).
Attitude Surveys Attitude Survey Research occurs in any pre-trial stage of the litigation process, gathers information about venire members’ attitudes toward key case issues, and yields the most valid and reliable data for juror profiling. The attitude survey is a 10 - 15 minute telephone inteview of 200 to 400 respondents in which frequently a case scenario is provided and questions asked about a select, limited number of case issues and venire members' opinions (see Attitude Survey Research).
Venue Studies Venue Research Studies occur in any pre-trial stage of the litigation process, and gather information about venire members’ demographics, background, local knowledge and biases. Venue studies guide decisions about if, where and how to try a case. Venue studies vary in design, ranging from attitude surveys to database research studies.
Pre-trial research is conducted in the trial venue, has respondents matched to known characteristics of the jury pool, and frequently requires two months to prepare, conduct, analyze and report the results.
POST-TRIAL JUROR INTERVIEWS
ComCon conducts post-trial juror interviews to capture the reasons for jurors' decisions, identify misconduct, and obtain impressions of witnesses, attorneys and arguments.
Interviews Interviews most often are conducted over the phone by consultants using an interview protocol developed in collaboration with counsel. Transcripts of the edited and finalized juror interviews are provided to the case attorneys.
Timing Post-trial juror interviews are best conducted immediately upon the completion of the trial, before memories fade and while juror interest in discussing the case remains high. ComCon usually finalizes the interview protocol for conducting the post-trial juror interviews before deliberations end or a requested mistrial is declared, and starts contacting jurors the night the trial ends (or as soon as possible thereafter).
Post-trial juror interviews support appeals, inform re-trials, and commemorate victories.
ComCon educates attorneys about areas of its expertise, including communication, persuasion, question-asking, case analysis, voir dire, jury selection, and jurors' attitudes about both criminal and civil cases and about specific types of case issues.
ComCon's Slide Shows are a direct outgrowth of our educational endeavors.
ComCon presents at CLEs, and leads discussions, conducts seminars and offers workshops for both in‑house and external professional groups. Most of ComCon's educational offerings are provided free of charge.
For more information or to arrange a presentation, please Contact ComCon.
Custom designed services within ComCon’s expertise of communication and persuasion are available for both litigation and non-litigation related matters.
ComCon has conducted witness simulations, offered voir dire training, provided public speaking assistance, worked on media relations and made media appearances, among other custom services.
For more information or to inquire about a custom service, please Contact ComCon.