Persuasive Litigator

Don't Make Fake, or Fatal, Apologies

By Dr. Ken Broda-Bahm:

Apologies are very much in vogue.  If you accidentally run your cruise ship aground, or surreptitiously wiretap phones in order to discover great newspaper stories, then it has become a well-known next step in the script to make a public apology.  The shamed politician, loose-lipped celebrity, and the guilty criminal all recognize the value in facing the music and taking their lumps.  We've written in the past that apologies figure prominently in civil litigation, as well as sometimes draining away some of the anger that motivates a suit, leading to a more favorable result in settlement or to lower damages in trial.  For a defendant facing the likelihood of at least some liability, it is worth thinking about whether a timely "I'm sorry" might lead to an improvement. 

But all apologies are not created equal.  In fact, one interesting study reveals that there are multiple ways to make a fake apology.  When "I'm sorry" isn't sincere, jurors may catch on.  Even where apologies are sincere, they are not necessarily wise.   While there are some circumstances that make an apology strategic, there are other circumstances where, true to lawyers' common concern, an apology can end up falling flat, just opening you up to a larger verdict. 

This post takes a fresh look at apologies, considering the fake and the fatal, as well as the circumstances that make a sincere apology a good idea.  

Leverage the Persuasive Advantages of Beating Expectations

By Dr. Ken Broda-Bahm:

A surefire path to greater credibility is to meet every high expectation, but a close second is to defy low expectations.  That is an important lesson for litigators, and that is also what presidential candidate Ron Paul has in common with Denver quarterback Tim Tebow:  the ability to do a lot better than most people had expected.  No matter what you might think about the persona and policies of the unusually libertarian Texas Congressman, his ability to come in as a strong second in Tuesday's New Hampshire primary provides a compelling answer to those who considered him footnote in this race.  And no matter what you think of the persona and the play of the unusually prayerful ex-Gator, now in the Mile High City (Go Broncos!), his ability to pull a rabbit out of the hat in fourth quarter or overtime these past few weeks has been a pretty convincing answer to his many critics.  

Like Ron Paul and Tim Tebow, litigators also suffer from low expectations.  For many jurors, the very fact that you're in litigation -- whether as a plaintiff or defendant -- means that you've done something wrong.  Plaintiffs carry the expectations of low personal responsibility, frivolous claims, and greed.  Defendants carry the expectations of wrongdoing, callousness, and like plaintiffs, greed.  But for both parties, there is a silver lining to low expectations:  Crafting a trial message that exceeds those low expectations is a great way to build credibility and encourage your audience -- jury, arbitrator, judge, or mediator -- to listen to you with fresh ears and an open mind.  This post looks at the psychology of violating expectations, and makes recommendations for both plaintiffs and defendants.  

Create the Conditions for a Creative Trial Strategy

By Dr. Ken  Broda-Bahm:

Around the war room conference table, all of the eyebrows went up at once as I shared a recommendation for the opening statement.  I can't share the idea without revealing the case, but suffice it to say that it was unorthodox.  Several around the table shared that they had never done an opening that way before, and I countered that they had probably never tried a case with exactly these challenges before. 

As much as litigators like to believe that they are at the cutting edge of persuasion, I've often found that they can be quite conservative in their approach, sticking to the same basic messages and approaches, and just altering the facts they feed into the formula in order to fit each case.  We will say that we value creative ideas, but in our actions, we tend to prefer the "known" even when the known is known to have some problems.  It turns out that this ambivalent attitude toward creative ideas is shared by the public at large.  This post takes a look at a new research showing why we secretly fear creativity, and offers several recommendations for making sure that your trial preparation benefits from both the creative and the conventional. 

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.   

Find the “Universal Morality” in Your Case Story

By Dr. Ken Broda-Bahm:

Most litigators now understand that their case fares better when it is framed as a story.  And everyone knows that a good story always carries a point or a moral.  Even information that follows a narrative structure (e.g., I went to a store, then bought broccoli, then returned home) isn't received as a "story" unless it carries a fundamental lesson, message, or moral.  That means that morality -- not necessarily in a religious or profound sense, but in the practical sense of a preference for the good over the bad -- is an element in every case story.  But litigators, even those who take it to heart to tell a story in their case, aren't always clear on where to find the moral of their story.   

We know also that it depends on who you are talking to, and the particular morality that we tie to our case depends on the judge, jury, or arbitrator we are addressing.  New social psychology research, however, points to the possibility that there are shared dimensions of morality -- observable factors, that to at least some extent, transcend culture, religion, and political outlook, forming that holy grail of moral philosophy:  universal good.  Pulling this notion down from the clouds and applying it to your case, this post focuses on how you can increase the meaning and improve the effectiveness of your story by targeting these universal moral elements.