Persuasive Litigator

Ban the Word "Anyone" From Your Oral Voir Dire

By Dr. Ken Broda-Bahm: 

In a scene from that great movie of the '80s, Ferris Beuller's Day Off, the economics teacher, played inimitably by Ben Stein, tries to engage a class of profoundly bored and unresponsive high school students: 

In 1930, the Republican-controlled House of Representatives, in an effort to alleviate the effects of the... Anyone? Anyone?... the Great Depression, passed the... Anyone? Anyone? The tariff bill? The Hawley-Smoot Tariff Act? Which, anyone? Raised or lowered?... raised tariffs, in an effort to collect more revenue for the federal government. Did it work? Anyone? Anyone know the effects? It did not work, and the United States sank deeper into the Great Depression.

Watching a recent practice voir dire, I was struck by the similarity. The attorney asked a string of "anyone" questions like, "Does anyone feel that corporations are more dishonest than other parties?" or "Does anyone believe that the fact that a lawsuit was filed means the defendant did something wrong?" And each in the series was met by absolute silence from the panel, with no volunteered answers or hands raised. It is a fact of life when trying to assess attitudes, but a small distinction in question wording can sometimes spell the difference between success and failure. And in this case, the problem is the same word that's annoyingly repeated by Bueller's teacher. Asking about "anyone" will generally limit the response and the usefulness of the question. This post unpacks the argument for avoiding "anyone" questions while also recommending some alternative ways to ask. 

Acknowledge the Bias Blind Spot

By Dr. Ken Broda-Bahm: 

Does knowing about hindsight reduce your susceptibility to it? Not as much as we would hope. It is especially an occupational hazard for social scientists and others who study attitudes and bias; we tend to think that our ability to identify and describe the bias makes us immune to its effects. Biases and other mental mistakes, we might implicitly believe, are reserved for careless thinkers, while we ourselves are able to see and avoid those pitfalls. The problem with that is that it is just another bias: a "meta-bias" as science writer Samuel McNerney recently described in Scientific American. It is a belief, a "bias within the bias,"McNerney writes, based on the belief "that everyone else is susceptible to thinking errors, but not you." And in this case, "you" doesn't just mean the scholars and students of social science, but includes anyone who considers themselves smart, careful, or reasonable...which is just about everyone. 

If it isn't the case that bias is just something experienced by other people, then that truth has some implications for those preparing for trial, and it means looking out not only for those you're trying to persuade, but for yourselves as well. Looking at jurors, judges and arbitrators, witnesses, and the litigators themselves, this post considers how the meta-bias of perceived immunity to bias can skew our perceptions and limit our persuasive effectiveness. 

Use Visual Language

By Dr. Ken Broda-Bahm: 

The experience of language and meaning isn't something bottled up in one drawer of the brain's filing system. Instead, it is something that dances across your entire brain, using the full canvas of your cerebral cortex. And that sentence is a good example. It is visual and it is active. So as you read it, your brain isn't just drawing upon the gray matter dictionary to discern and process the definition of each word and the meaning of the full sentence. Instead, your brain is using all of the regions associated with the visual and physical perceptions invoked by the words themselves: drawers, filing, dancing, painting. Scientists used to think there was something called a "language center" in a discrete region of the brain, but now know that all kinds of regions of the brain are active in response to the language used. That reality has implications for those, like legal persuaders, who use words to do their work. 

One test of good language can be found in this question: Could you, if you had to, draw a picture of the sentence? If you can at least make a conceptual sketch, then you are using good visual language. If you can't, then chances are you are being too abstract. Drawing (did you catch that?) from a recent research report on National Public Radio (NPR), this post will illustrate (yes, there's another one) a few ideas for picking language that perks up your listeners' visual engagement. 

Find Your Antidote to Inoculation

By Dr. Ken Broda-Bahm: 

Legal persuaders know how to make an argument and how to sell a point. But what do you do when the other side gets there first? That is, what is the right response if, by the time you have the chance to offer your reasons, they've already mentioned the point, told the judge or jury what you'll be saying, and what's wrong with it as well? Rather than delivering your persuasive coup de grace, you risk being a Johnny-come-lately to an already poisoned well. What the other side has done is called "inoculation" (McGuire, 1961) in the academic fields of attitude change. It means preemptively calling out the argument you expect from your adversary and offering some information to help the target audience resist that message more effectively when they hear it later on; it works the same way the weakened form of a virus delivered in a flu shot helps you build up resistance to the actual illness.

Of course, the response to the inoculator is to show your judge or jury that what they've already heard is wrong or incomplete, and therefore the inoculation shouldn't take. But don't just treat it as business as usual, because the research shows that inoculation tends to be a very effective strategy. In a recent post on "9 ways the Mind Resists Persuasion (and How to Overcome or Sustain Them)," Psyblog writes that you should ask yourself, "what counter-argument will people already know?" and then "avoid the 'usual' arguments in your persuasion attempt. Instead use a new angle they haven't thought about before." This post takes a look at the research on inoculation and a few ways to counter the effectiveness of this well-known persuasive strategy in a legal context. 

Know Your Techniques of Persuasion (Top 'Practical' Posts)

By Dr. Ken Broda-Bahm: 

I recently pulled together some of the posts from this blog that I feel best represent a philosophy of legal persuasion. It is important to have that foundation, but the exercise also got me thinking about the other side of the spectrum: the concrete and tangible good ideas that can be easily applied at various stages of the trial process. So, as a companion to the "philosophy" collection, I wanted to create a "techniques" collection that speaks to the most practical needs of the working litigator. 

While these are all "blasts from the past," I would wager that at least a few will be new to even the most avid Persuasive Litigator readers. So, organized to walk you through a trial from pretrial stages through verdict, here are my selected posts on good technique at each stage.