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.

Sympathy for the Devil, but Empathy for Your Judge

By Dr. Ken Broda-Bahm -

 
The old Rolling Stones song notwithstanding, it is likely that most Americans have very little sympathy for the devilish war Congress has waged over raising the debt limit.  This impasse, like most intractable disagreements, can be seen as a failure of empathy.  In this case, a failure of each major party to understand and adopt to the constraints the other party is living under, and a failure of many on all sides to fully grasp the public's irritation over the world's largest economy being held hostage until the last minute. 

Failed empathy isn't unique to the political realm.  Litigation as well can often drag on or flounder based on a fundamental failure to understand the other side, or to relate to the decision makers.  While this post could focus on empathy challenges relating to jurors or to adversaries, I want to write about one area that has recently been contested:  empathy as it relates to a judge's role.  Nearly every experienced litigator has felt the judge just isn't on their side.  Rather than wishing for outright favoritism, litigators often just wish that the judgment at least reflected a basic appreciation for your side in litigation. 

A recent piece from Georgetown's Robin L. West provides a compelling case for this empathic role, and carries some important practical implications when it comes to giving empathy to, and getting empathy from, your judge.

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. 

Remember, it's a Sidebar, Not a Bar Fight: Reason With, Not At, Your Adversary and Judge

By Dr. Ken Broda-Bahm -

 
The popular image of legal argument is most often a polished and professional presentation, made from a podium in front of a jury or judge.  To those of us court watchers who read transcripts, it is clear that the biggest roll-up-your-sleeves-and-argue moments are often at sidebar - those conferences conducted with counsel huddled awkwardly by the bench and speaking either in hushed tones or over the white noise that is supposed to prevent a jury from listening in. 

Due to their urgency, their often high stakes, the presumed absence of the jury's attention, and the fact that the judge can rule at any time during these arguments, lawyers at sidebar can sometimes let their decorum slip and limit their persuasive effectiveness in the process.  In this post, I'll be providing a few tips on this unique species of argument, sharing some related research, and picking apart one sidebar argument from the on-going Casey Anthony trial.

Time Your Arguments to the Judge's Lunch Breaks (and Adapt to All Decision Makers' "Cognitive Load")

By: Dr. Ken Broda-Bahm -

 

Anyone who argues in front of judges knows that human factors can weigh as heavily as the law in determining your judge's decisions.  But it is still possible at times to be surprised at the degree of influence, as well as the banality of those human factors.  Case in point: lunch and snack breaks.  Recent research discussed in the excellent Not Exactly Rocket Science blog appears to show that judges' decisions vary as a direct effect of the proximity of their morning snack or lunch break.  In case you are using your morning break or lunch hour to read this post, I'd like to make it worth your while by applying the study findings to the more general issue of your decision-makers' mental work load and offering some recommendations for anyone who needs to make arguments to a potentially fatigued audience.