Category Archives: Sports Litigation

May 27, 2013

Keep Jurors Focused on the Difference Between Past and Present Knowledge

By Dr. Kevin Boully:


Concussion - Football -

Did you believe in 2001 that a concussion could cause significant future health problems? Do you believe it today? If there is a difference, it is probably due to the attention brought by current trends in concussion litigation.  

Reports and concerns over the health risks related to concussion injuries in all levels of sport seem to reach new heights with every 24-hour news cycle. Managing concussion risk in recreational activity is now a public health issue and a litigation hotbed. Public officials and lawmakers are involvedi with new legislation proposed last week. Former athletes injured playing sports are looking for answers. Sports leagues, teams, coaches, school districts, governing organizations, product makers and more are no longer on the sidelines – they are defendants. When the family of former professional hockey player and known “enforcer” Derek Boogaard recently filed a wrongful death lawsuit against the National Hockey League (NHL), the NHL joined the National Football League (NFL) among a host of others being sued by former players making a variety of claims from failure to warn of concussion risks to negligence and more.

Drawing from our own national study conducted late last year, this post will hit upon public perceptions of concussion risk and impact, while also sharing a few tips for keeping jurors from applying current attitudes and knowledge to decisions and technologies deployed in the past.
Perceptions of Concussion Injury

Our 2012 National Juror Survey focused on potential jurors’ perceptions of concussion injuries and concussion litigation, finding that most surveyed in 2012 saw a severe concussion as likely to cause future health problems, 32 percent reporting that high school athletes are most vulnerable to health problems related to concussion and 30 percent reporting that professional athletes are most vulnerable.

Concussion health problems Graph 






Persuasion Strategies National Juror Survey (2012)
(Click to see full-sized chart)

The wave of concussion litigation highlights the influence of hindsight bias, a critical aspect of litigation decision making we have addressed in previous posts here and here. The authors of a recent study of hindsight bias research (Roese & Vohs, 2012) put it clearly: “Consequences of hindsight bias include myopic attention to a single causal understanding of the past (to the neglect of other reasonable explanations), as well as general overconfidence in the certainty of one’s judgments.”ii When jurors, judges and arbitrators – human beings all – make decisions about the foreseeability of past events (i.e. should leagues and coaches and organizations have known that players could be harmed by not sitting out long enough after concussion?), hindsight bias can play a central role. Does the fact that we now believe that concussion can cause long-term health issues mean that it was widely known in the 1980s,1990s, or even 2000s? Of course not. Does the fact that we now know a great deal about how concussions affect the human brain mean we should have known years ago? Again, no. But jurors are now being asked more than ever to evaluate litigants’ past knowledge and understanding of concussions while living in a present environment where news, reports, awareness and understanding is at an all-time high and (rightfully so) increasing every day.
Address Hindsight Bias
More and more knowledge about concussion and its consequences can only help prevent future injuries. Looking backward in time, however, requires attention to understanding what we knew and what we did not to avoid our own cognitive limitations. Researchers suggest “that considering the opposite may be an effective way to get around our cognitive fault, at least in some cases. When we are encouraged to consider and explain how outcomes that didn’t happen could have happened, we counteract our usual inclination to throw out information that doesn’t fit with our narrative. As a result, we may be able to reach a more nuanced perspective of the causal chain of events.”iii Here are some ways to keep jurors focused.  
Keep Jurors in the Here and Now
Model in voir dire how you must make do with only what you know in that moment about prospective jurors, about the judge, about the testimony, and that the future may turn out differently than we all expect. Ask jurors about their perceptions of that reality. Ask them about Monday Morning Quarterbacking and emphasize that the remedies include living in the present and relying only on what you know at a given moment.

Use time-restricted visuals (including but not limited to timelines) to focus jurors on the risk information that was known at the time decisions were made, and encourage jurors to see the evidence as the defendant perceived it in the real-world.

 Level the Playing Field

Openly endorse your opponent at trial. Make the strategic decision not to aggressively attack their credibility. Instead, make sure jurors see them as active consumers of medical care and medical knowledge, with the power and ability to know much more than the average juror about the health risks of their sport.
Related Posts: 
i See for instance the Testimony of Jeffrey Kutcher, M.D. on “Legal Issues Relating to Football Head Injuries, Part II,”  before the United States House of Representatives Committee on the Judiciary.  January 4, 2010.  

Illustration by:  Pam Miller of Persuasion Strategies  


November 24, 2011

Take a Moment to Present Your Safe Product Story

By Dr. Kevin Boully:

Safety first
In little more than a moment a man goes from enjoying his favorite recreational sport to an injured Plaintiff with a sports-product liability claim.  It happens in a flash.  And new research suggests that people may make determinations about a witness’s trustworthiness and empathy just as quickly — in about 20 seconds.  So what happens when Defendant manufacturers are faced with challenging facts, sympathetic Plaintiffs, and a need to present a believable trial story in sports-related products liability cases?  In this post, we focus on a three part approach to developing a critical aspect of an effective product-defense — an effective product safety story.  Continue reading

July 11, 2011

Build Unforgettable Briefs

By Dr. Kevin Boully –


We do not forget what is vividly burned in our brains.  So make it memorable:  Great advice that many persuasive litigators heed when developing and delivering oral argument but disregard when creating written briefs for the Court.  Thankfully, a recent legal brief-gone-viral helps illustrate the importance of three concepts critical to building unforgettable written advocacy.  Continue reading

April 4, 2011

Avoid Lockout: Address Judges and Arbitrators Persuasively

By: Dr. Kevin Boully –

Locked steel


Lockout.  If you’re a sports fan or even a casual news surfer, you cannot escape word that America’s favorite sport – professional football – is in jeopardy.  Players and owners are at odds and this Wednesday, the National Football League Players Association will face off against the NFL and its owners in an injunction hearing before a Minneapolis Judge (for some flavor click here to see the NFLPA’s brief filed last week).  There is a real chance the 2011 NFL season will be disrupted. A few lawsuits (including one by former NFL players) have already been filed and there is talk of a similar dispute playing out later this year between professional basketball players and the National Basketball Association.  Continue reading

January 27, 2011

Whose Risk Is This? Take Personal Responsibility in Sports Litigation

By: Dr. Kevin Boully 

There is danger in all sports, anyone who plays them takes that risk for themselves.”
-Mock Juror in recent sports litigation research

Bench press


Athletes choose to play sports that involve risk.  Athletic teams, coaches and organizations are aware of the risk just like players.  So, how much personal responsibility does an individual athlete have for safely participating in his or her chosen sport?  What must the player and the organization do to make sure all possible safeguards are in place to reduce risk?  Who should be held most responsible?

Jurors (and judges, arbitrators and mediators) confront these basic but critical questions in sports-related lawsuits like that of former college football player Stafon Johnson.  This week, Mr. Johnson sued the University of Southern California and ex-assistant conditioning coach, Jamie Yanchar, claiming negligence in the 2009 weightlifting incident that resulted in severe injuries to Mr. Johnson’s throat, threatening his life, ending his college football career, and potentially limiting his professional career. Continue reading

June 8, 2010

Say Your Sorries and Settle Already


By: Dr. Kevin Boully

Boully_Kevin_88_120 What can corporate defendants and their executives learn about effective dispute resolution from Major League Baseball’s most blogged-about umpire?



Last week, Major League Baseball umpire Jim Joyce made the wrong call on the would-be final out in the ninth and final inning of the Detroit Tigers victory over the Cleveland Indians.  No big deal under most circumstances, but in this game the errant call killed what should have been a perfect game by the Tigers pitcher – one of the rarest feats in baseball history.  Yet,  it was how Joyce handled the mistake that immediately struck viewers like me and serves as a lesson to anyone accused of wrongdoing – or facing an uphill battle in litigation.   

  Continue reading

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