Persuasive Litigator

No Blank Slate (Part 3): With Judges, Arbitrators, and Mediators, Don’t Assume They're Neutral

By Dr. Ken Broda-Bahm -

 
Judges, arbitrators, mediators:  legally trained and neutral minds, without the juror's baggage of selective perception, predisposition, and bias, right?  Not really.  In the previous two posts on motivated thinking and instrumental argument, I wrote that an audience's reasoning and advocacy is driven by emotions and not just by logic.  While a jury's decision making and deliberations might be the acts most obviously implicated in these findings, the mental processes are by no means unique to juries.  The experience of going to law school and occupying a specific legal role does tend to refine legal understanding and decision making quality, but that doesn't provide a blanket exemption to human psychology and communications. 

Indeed, the experienced legal practitioner is more likely than the novice to rely on heuristics, those rules and routines that tend to simplify and systematize decision-making.  In some ways, that is what "expertise" means: an expanded reliance on heuristics.   Rather than making non-jury decision makers neutral and above the influence of human factors, these very heuristics serve to ingrain a decision maker's habits and preferences.  This post takes a look at some of the research on bias in non-jury legal audiences and shares some advice on addressing those factors.

Avoid Lockout: Address Judges and Arbitrators Persuasively

By: Dr. Kevin Boully -

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. 

At least we have baseball, right?  Well, yes, but keep in mind that 119 Major League Baseball players went through salary arbitration for the 2011 season – again in dispute over, among other things, how much money players make and owners share.  Even college sports are in the courtroom.  It is a reality that judges and arbitrators have an increasingly important role in the future of sports.  So it got me thinking about our experience with judges and arbitrators and how advocates must address them to be successful. 

Know Your 'God Terms' and Your 'Devil Terms'

 By: Dr. Ken Broda-Bahm -

The need for a theme that communicates, simplifies, and unites your case has become common sense to litigators.  But the way that we come up with a theme is a little more mysterious.  Some see theme creation as an act of laborious analysis, developed out of a painstaking accounting of all case issues, good and bad.  Others see it as an act of divine inspiration, a ‘bolt from the blue’ that arrives unexplained from some part of our mind.  Someplace in between these two perspectives, I’d like to suggest one handy tool that will not only help you develop a theme, but will also provide you with a broad working vocabulary to use when talking about your case. 

The advice is to draw from the work of the rhetorician Richard Weaver, and identify the ‘god terms’ and ‘devil terms’ of your case.  God terms represent all of the words and phrases that you embrace, words that have an "inherent potency" in identifying what you support.  Writing in the fifties, Weaver used the examples of "progress" and "freedom" as words that we took as unquestionably good.  As you might expect, 'devil terms' represent their mirror image, and Weaver's prime example of "communist," has been replaced in our time by "terrorist" as the ultimate devil term.  Devil terms are not terms you avoid, but are rather terms that you embrace in describing the other side, and in helping to frame what your audience should be against.  The celestial imagery behind the words is more than just a great way for you to remember the concept, but is instead an important part of its meaning.  A god term means more than just a 'good term' but is instead a "rhetorical absolute," something that carries a strong automatic meaning.  That is, it isn't good because we can think of an argument why it is good.  Instead, it is good because it fits with at least one common worldview that our audience holds about what is good.  Same for devil terms - they carry a natural unfavorable connotation.

Settle Your Case Without Setting the Dominoes in Motion: Research on the Demonstration Effect

By: Dr. Ken Broda-Bahm -

 
The role of a positive example in creating a “demonstration effect” has long been noted in the fields of political science and international relations, with one of the classic examples being the American Revolution that was closely followed by the French revolution.  We’re seeing it now on a near daily basis in the Middle East and North Africa.  From Egypt to Bahrain, Morocco, Yemen, Algeria and Libya, people who spent generations under autocratic rule are suddenly finding the will to mount massive demonstrations to challenge their respective regimes.  From a single successful example (Tunisia went first), the idea spread outward like a drop of ink in a glass of water.  One day, a revolution seems impossible, and the next day it has a chance: “if the Tunisians and Egyptians can throw off a dictator, then so can we!” and the dominoes fall.  So if you are an autocratic ruler, situated in the North of Africa or the Middle East, chances are you have some concerns about anything that could prompt the citizenry to follow that example. 

I don’t want to overwork the analogy, just to bring the topic back to litigation...but I will:  If you are a defendant corporation in the pre-trial phase, you may be thinking along similar lines:  “We can’t settle this case, because once we take that first step, there will be so much blood in the water that we’ll be settling other cases for decades…”  There is, of course, some practical truth to that.  But the question is – for both Middle East unrest and the demonstration effect of potential settlements:  What is it about a positive example that motivates folks to think it could apply to them as well?

The Jury is Out: Make the Most of Your Experience In an Era of Fewer Trials

 
By: Dr. Ken Broda-Bahm -

We've now been using the phrase "the vanishing jury trial," for almost a decade, and the decline continues.  The days when experienced lawyers could count on finding themselves in front of a jury several times a month are gone, as today's cases are increasingly resolved by judges, mediators, arbitrators, and other routes to  settlement.  Even among the best, years can go by in between trials. 

This decline in the American trial isn't just a pining for 'the good old days,' but a real and continued trend observed in the research.  Joseph Anderson (2010) is a U.S. District Court Judge in South Carolina who has recently combed through state and federal data to document the trend.  His article, "Where Have You Gone, Spot Mozingo?' is named for a legendary South Carolina attorney who tried more than 600 cases, before dying...at the age of fifty-nine!  That level of experience has, by all accounts, simply been lost within our system.   The keystone work on this issue (Galanter, 2004) is a comprehensive study of trial frequency across the system of American courts, and it notes the following sobering facts: