Litigation PostScript. Persuasion Strategies for Litigators

Never Underestimate a Pro Se Plaintiff

by: Dr. Shelley Spiecker

In-house counsel calls you on the eve of trial, admonishing “I trust you know I expect you cannot lose this case.  After all, your opponent is a pro se plaintiff.”  But surprisingly, you can lose.  In addition to never underestimating a pro se’s appeal to jurors, the following steps will help insulate your advocacy and case’s persuasiveness against juror bias in favor of, and judicial deference toward, a pro se litigant.

 

1.  Secure protective procedures for the pro se’s direct examination.  At your earliest opportunity, seek clarification from the court on how the pro se’s direct examination will be conducted.  Various structural ground rules can be implemented to protect against the pro se interjecting inadmissible information into a direct examination monologue.  These include:

• Advance exchange of the pro se’s direct examination outline [1],
• Having the court require the pro se to introduce direct testimony in a topical format.
• Previewing each new topic area in advance and thus affording you the opportunity to object to subject areas before the testimony is asserted.
• An admonition by the court reminding of the rules of admissible and inadmissible evidence.

Stop Searching for the Perfect Analogy (but Don’t Surrender a Communication Lifesaver)

by: Dr. Ken Broda-Bahm

Sigmund Freud is credited with having said that “analogies prove nothing, but they make us feel right at home.”  Among litigators, there are two schools of thought on whether to deploy analogies in the course of legal persuasion.  One side argues that the explanatory staying-power of an analogy makes it a vital communication tool.  For instance, it isn’t easy to discount an analogy that

seems to perfectly boil down the case:  “a smoke detector that stops working due to a simple short circuit is like a life preserver that keeps you afloat until it gets wet.”  One side, however, is equally insistent that analogies are counterfeit proof, rarely fit the exact situation, and are frequently exploited by the opposition. 

 

It turns out that both sides are right.  Analogies are simultaneously weak proof and strong communication.  They are simultaneously ill-fitting yet familiar.  Like all elements of legal persuasion, success depends on how you use them. 

Make Sure Jurors Tell You How Bad Your Client Is

by: Dr. Kevin Boully

 

I think corporations have way too much power and they squash the little guy. 

 

Last week in a federal district courtroom in northwestern United States, Juror #4 shared some of the most transparent and scathing opinions of American corporations ever to bounce off a courtroom wall.  Just as his cutting remarks were starting to gain steam, the judge cut him off mid-sentence and promptly dismissed him from the courtroom for cause.  Jurors’ anti-corporate bias is nothing new.  And it is no real surprise to encounter a juror who believes in corporate deception and conspiracy – after all, “Corporations are what’s wrong with this county.”  The twist in this civil jury trial came from a slightly different place.  The court heard Juror #4’s comments no sooner than the Defendant’s brief oral voir dire, and if not for defense counsel’s targeted voir dire question, would never have heard it at all.

 

The lesson is clear.  Once you’ve identified the highest risk attitudes and opinions for your case, do not refuse to ask jurors bluntly and openly about them for fear an honest response will poison your panel.  Ask the question.  Make sure jurors tell you the answer.  You need to know how bad it is. 

Just the Instructions, and Nothing But the Instructions: Increase the Salience of Jury Instructions

by: Dr. Shelley Spiecker

Evidence shows that false documents were notarized by employees and submitted to a state regulatory agency.  Evidence also shows that record-keeping was inaccurate; nevertheless, these matters cannot be addressed due to the parameters in the jury instructions. (Female, 55 year-old)

 

This quote, spoken by a juror after serving in a two month oil and gas production trial, typifies feedback I am receiving from jurors in a wide array of different cases in venues across the country.  While jurors are troubled by evidence they see at trial, and possibly even want to find against a defendant, they are adhering to the confines of jury instructions like never before.

 

Take, for example, another completely different case – a high-profile child abuse and murder case.  A majority of jurors, having sat through this approximately two month trial, echoed the dominance of the jury instructions in their verdict.  In this case, the instructions benefitted both the prosecution and defense.  Specifically, due to the wording of the criminal negligence instruction, jurors were guaranteed to find the defendant guilty of some wrong doing.  Alternatively, the definition of child abuse was the key factor that unified a divided jury.  Initially, jurors relied heavily on their own definitions of what they perceived to be child abuse.  After several jurors focused the panel on the legal definition, jurors came to unanimous agreement – convicting on over 25 counts of child abuse and acquitting on the remaining – for failure of the evidence to meet the legal criteria.

For Opening Statement (or Any Other Presentation), Keep Your Speaking Notes Off the Screen

by: Dr. Ken Broda-Bahm

Those of us who are old enough may recall that there was a generation taught to give public speeches using index cards.  Those little 3x5 or 4x6 cards would hold all of the main points, supporting bullets, and quotables that one would need to get through the presentation.  So what happened to the index cards?  For most presenters supported by PowerPoint, the answer is clear:  What used to be on the index card, is now on the screen.  In conference rooms and courtrooms across the country, juries and other audiences are too often treated to screen after screen of text, text, text.  It feels quite comfortable for the speaker (it is, after all, easy to know what you are going to say when it is there for all to see on a 9’ x 12’ screen.  But a great deal of research old and new is adding to the conclusion that the ‘text on screen’ approach is doing little to help the viewers understand.  “Cognitive Load Theory,” for example, tells us that a human’s working memory is actually quite limited, and your audience is either listening to you, or they are reading the text that you have on the screen – they probably aren’t effectively doing both.