Persuasive Litigator

Keep Survivors In Your Next Employment Defense

by: Dr. Kevin Boully

 

Can tales of survival in extreme conditions inform your next jury trial? 

 

Employment jurors are uniquely different from jurors in nearly every other case type.  Each brings a level of expertise to jury service that jurors in other case types typically cannot:  personal experiences as employees that they directly apply to the facts of the dispute.  Some experiences (e.g. supervisory experience, past terminations, education level) are more influential than others. 

 

  

 Chart from Persuasion Strategies 2009 National Juror Survey, n=500. 

 

Cognitive psychology shows us that past experiences help jurors create mental models of how interactions ought to occur – essentially generalized expectations for what should transpire in a given set of circumstances.  Employment jurors are consistently displeased if an employer’s behavior, when dealing with an employee, violates their mental models of that interaction.  A recent employee termination mock juror argued firmly against a defendant company whose conduct in the process of an employee termination failed to follow the steps of the process she had in mind.  Her model, based on her own experience, was her template for ideal conduct and the standard by which she judged the defendant. 

 

None of this is surprising, but when I recently finished reading a handful of books on survival and surviving extreme conditions, I got to thinking about how survival psychology applies to juror decision-making. 

 

Follow the 10 Commandments of Cross-Examination

by: Dr. Ken Broda-Bahm

It has been long recognized that an aggressive and thorough cross-examination can feel better (to the examiner) than it plays (to the judge or jury).  Attorneys often act as though there is just one rule of cross-examination:  “thou shalt control thy witness.”  But control, as an end in itself, is over-rated.  The real issue, as a recent McElhaney piece in the ABA Journal points out, is persuasion:  Will your cross strategy make your case more persuasive?  In that vein, I’d recommend 10 commandments:

1.         Thou Shalt Respect the Witness

Remember that the jury always identifies with the witness, not the attorney.  Remember also that you’re an attorney and many of your normal habits of reasoning and speaking can be easily mistaken for irritation, obfuscation, and condescension.  No matter how vile the party or how bad the testimony, if you show contempt for the witness, you create an angry juror who quickly forgets the point you were trying to make.  As McElhaney points out “You can be firm. You can be insistent. You can be tough when it’s called for. But you’ve got to be fair, polite and respectful—throughout the case and especially on cross.”