Persuasive Litigator

Mind the Gap: Stop Jurors From Jumping Straight From Liability to Damages

By Dr. Ken Broda-Bahm:

"Whatever happened to causation," defendants sometimes wonder.  For example, a drug company is targeted for inadequate testing, and for attempting to hide research showing a statistical link to cancer.  The Plaintiff took the drug, and now has cancer.  For many jurors, that would prompt them to break out the check-book:  "Liability established... Lets talk damages!"  But the key question lying in the gap between these two conclusions is causation -- Did the drug, in this case, cause the Plaintiff's cancer? 

As often as we observe jurors wanting to hurdle over causation, it is surprising the problem hasn't received more attention in the trial persuasion literature.  But the issue has attracted the interest of those focusing on moral decision making more generally.  One new study (Inbar, Pizarro & Cushman, 2012) examines the conditions under which actions that have caused no harms are nonetheless judged to be morally blameworthy.  Working from this study and other experience, this post suggests four ways for defendants to mind the causal gap between liability and damages.

You'd Better Be Good (But If Not, Presenting the Naughty With the Nice Makes For a More Credible Trial Story)

By Dr. Ken Broda-Bahm:

"Your honor, this pattern of making a list for those deemed "Naughty" and "Nice" has the clear and foreseeable consequence of disparate treatment - namely, coal and switches - for those in the former cateorgy, and can only be seen as a persistent (annual) and intentional (he 'checked it twice') pattern resulting in the intentional infliction of emotional distress."  

Before you assume that I just didn't get what I wanted for Christmas, there is something to be said from a legal persuasion standpoint against the segregation of the naughty from the nice.  Almost inevitably, there will be weaknesses and bad facts in your case.  Smart lawyers know that denying or ignoring the warts of your case just makes them grow.  In nearly all cases, focusing only on the "Nice," by asserting that you did everything right, leads to distrust, while acknowledging a little "Naughty" and a few missteps helps you bank a bit of credibility.  And new research backs that up.  In this post-Christmas post, I will look at the implications for trial strategy coming from a new study showing that mixing positive and negative content actually reduces bias against a target group more effectively than positive content alone.   

Don't Be Faceless

By Dr. Ken Broda-Bahm:

Speaking of faces, it turns out that Facebook is planning to sue Mark Zuckerberg.  No, not that Mark Zuckerberg, the iconic founder of the world's social media homepage, but an Israeli businessman, formerly named Rotem Guez, who legally changed his name to Mark Zuckerberg in order to support a business that can only make sense in today's ephemeral market:  selling "likes" to companies who, you know, want to feel more "liked" in their online presence.  Facebook itself might even fit in that category, since it and Mark Zuckerberg -- the real one, CEO and President -- have increasingly faced both criticism and impending lawsuits for privacy practices and for integrating personal information into advertising.  Increasingly, Facebook is simply seen as another very large and powerful corporation.  Setting aside the personality of Zuckerberg (both of them), it is interesting to see how quickly the fresh, young, and edgy start-up can morph into the faceless monolith in the market. 

We've written before on the effect of personifying companies in litigation in order to address this "faceless" presumption.  Recent research coming out of Northwestern, however, points to some new implications for corporate identity in the courtroom.   Specifically, the study (Waytz & Young, 2011) suggests that the more people think of a group as having a "mind," the less individuals within that group are credited for having their own thoughts, intentions, and plans.  In other words, a company's perceived "corporate culture" can trump the individual agency of its executives and employees.  This post takes a look at the research and its implications for companies in litigation.

Measure Your Potential Juror's Anti-Corporate Bias: Get the Scale Here

By Dr. Ken Broda-Bahm:

A Persuasion Strategies Original Research Report

It is common sense that if you're a corporation, then you want to get rid of those who presume that a typical company would lie for profit if it could get away with it.  The problem is there aren't enough strikes in the world.  We've measured it for the past nine years, asking  "If a company could benefit financially by lying, it is probable that it would do so," and the results are strikingly consistent:  eight out of ten each year agree that a company probably would lie for profit.  Since you can't remove 80 percent of your jury pool, the next best thing is to target the extremes by striking those who most strongly hold to that belief, and those who are most likely to put it into practice when evaluating your case. 

But can you measure the degree of bias?  Yes you can, with a simple scale that can be incorporated into your questionnaire or used in oral voir dire.  From time to time, we've used this blog to report not only on the research of others, but on our own original research, like the study we reported this past Fall on the effectiveness of visual persuasion.  This is another chance to share some of our own work.  For the past couple of years, Persuasion Strategies has been working on a true, validated and reliable empirical scale measuring the degree of bias against a corporate party in a lawsuit.  Up to now, we've held our cards close to the vest.  But now that we know it works -- and it has worked in every context that we've tested it -- we are ready to share this simple seven-question scale with the world.  And we'll share it not with a coy "hire us and we'll let you use it" pitch, but openly and including the full question text as well as the instructions on how to score it.  Click here to download the Persuasion Strategies Anti-Corporate Bias Scale.

But Wait, There's More: Build Your Case Over Time, Instead of All at Once

By Dr. Ken Broda-Bahm:

If that commercial for the knife set just laid it all out at the start, it would sound like this:  "Okay, here is the deal, you get the knives, the storage block, an extra set of steak knives, free sharpening for life, and free shipping if you call in the next hour."  But that isn't very exciting.  Instead, over the course of a relatively long commercial message, the knife seller will trot out each of these perks in sequence, so just as you are wondering if the knife set itself is worth it, you hear "There's More!" and you're given yet another benefit. 

As cheesy as it sounds, the technique works.  A sequenced delivery of arguments is better than a more straightforward listing of arguments, because it helps the target customers get past any doubts that they may be having over the sale.  New research shows that the same principle applies beyond the world of advertising, and works in the world of legal evidence as well.  This post will take a look at the study and draw out a couple of important implications that apply to the structure and content of your opening statement and trial plan.