Studying how the human brain works has helped scientists learn more about decision-making. Here are some findings and related tips that are especially relevant for lawyers.This article was first published in the Wisconsin Lawyer on January 7th, 2022.Most of us learned the classic, reason-or-emotion concept of decision-making. As described long ago by Plato, human thinking is understood as akin to a chariot driver trying to control two horses, one guided by rational impulse and the other driven…
Continue Reading Use Brain Science to Make Better Decisions

This piece was first published in the Milwaukee Journal Sentinel.The Waukesha Christmas Parade murders remind us of the continuous judgments made by district attorneys, court commissioners, and judges as they decide whether and on what terms to release those accused of crimes. As a follow-on to Craig Johnson’s important commentary (“Darrell Brooks Jr. case was a tragic mistake but the county’s risk assessment worked,” Dec. 5), it is worth taking account of the insights from decision-making science as…
Continue Reading Waukesha Parade attack highlights a need to improve bail decisions. Do it in a thoughtful, bipartisan way that relies on science.

This is Part 3 of a four-part series. Click here for Part 1, or here for Part 2. To get future updates delivered to your inbox, please subscribe to my newsletter at the end of this post. Thank you.
 11. Assume the jury is not watching you.
 

 During trial it is easy to think you’re not being watched. So you quickly check your phone for texts and emails, you laugh and joke with opposing counsel during…
Continue Reading 20 Great Ways to Lose a Trial – Part 3

This is Part 2 of a four-part series. Click here for Part 1, and click here for Part 3. To get future updates delivered to your inbox, please subscribe to my newsletter at the end of this post. Thank you.In part one of the Series, we discussed five common trial errors: (1) don’t learn about your jurors in voir dire; (2) tell the jury not to pay attention to your Opening; (3) organize your Opening like…
Continue Reading 20 Great Ways to Lose a Trial – Part 2

This is Part 1 of a four-part series. To get future updates delivered to your inbox, please subscribe to my newsletter at the end of this post. You can find Part 2 here. Thank you for reading.During decades of trying cases, teaching Trial Advocacy, observing mock juries, interviewing jurors, and now serving as a trial advisor, arbitrator, and mediator, I’ve learned some things about what doesn’t work at trial.  By highlighting mistakes instead of a more traditional focus…
Continue Reading 20 Great Ways to Lose a Trial – Part 1

Humility was missing in action as the coronavirus pandemic invaded the U.S.Note: This piece was originally published in the Milwaukee Journal Sentinel.On Sept. 28, 1918, 200,000 people jammed Philadelphia’s streets to enjoy the Liberty Loan Drive Parade. We know that a “deluge of death” from influenza followed, but fewer know about the decision that came before the parade. Flu outbreaks had hit a Kansas army base in March 1918, influenza then roared throughout Europe. A Boston military parade…
Continue Reading 'What if we are wrong?'

Theranos is one example of how “we hear what we want to hear and disregard the rest.”By Ralph A. Weber and Dale E. Jones

Note: This article was originally published by Directors & Boards magazine.We all know the basic facts of the Theranos debacle: Brilliant Stanford dropout fools almost everyone about a blood-testing device she proclaims will revolutionize healthcare. Conscience-stricken employees reach out to investigative reporter. Theranos collapses.While Elizabeth Holmes’s name lives in infamy, it’s important to note…
Continue Reading Confirmation Bias Can Cloud Director Judgement

Note: This article was originally published by the American College of Trial Lawyers.With this closing instruction ringing in their ears, jurors across the country are sent off to their deliberation rooms to reach a verdict: “Free your minds of all feelings of sympathy, bias and prejudice and let your verdict speak the truth, whatever the truth may be.” For decades we believed this instruction was effective and its goals attainable. People could simply “free their minds of all…
Continue Reading Improving Jury Deliberations Through Jury Instructions Based on Cognitive Science