Persuasive Litigator

Mix Creativity With Dogged Persistence When Preparing for Trial: A Lesson from the ABA Journal’s Blawg 100

 By Dr. Ken Broda-Bahm:

The American Bar Association Journal just released its 2011 Blawg 100 list of the best legal blogs in the country, and I'm very proud to say that Litigation Postscript (soon to be renamed "Persuasive Litigator") is on that list!  If you like our content, you can follow the link, select "Trial Practice" and vote to place us higher in that category. 

But beyond that little self-promotional moment, the ABA's list, as well as the past year of coming up with fresh content to keep to my schedule, got me thinking about the nature of blogging and the nature of trial preparation.  Blogging, at least when you are doing it regularly, requires a combination of two things that are sometimes seen as opposites:  a bright creative spark and a dogged wearying persistence over time.  Preparing for trial requires the same.  You need the dogged persistence for a relentless schedule keeping up with motions, making filings on time, and continually touching base with your witnesses and clients.  But, particularly as you get closer to your trial date, you need the true creative spark in order to imaginatively adapt to your decision makers, navigate your case weaknesses, and develop an effective theme and case message.  Recent research and commentary has a surprising amount to say about how the two -- the creative and the reliable -- are balanced, and this post will look at a slice of that as it relates to the creative and reliable work of an active litigator.

Learn to Read Jurors’ Minds: Brain Research in the Courtroom

By: Dr. Kevin Boully -

Today’s lightning-fast technological innovation means more than increasingly sophisticated trial presentations and iPads in the courtroom.  Combining the ability to study decision making tasks using neuroimaging techniques (like MRI) with existing science on legal decision making, scholars and scientists are leading us into the future of studying law by incorporating neuroscience in more and novel ways.  According to some, the future is limitless and the inevitability of scientific fact-finding – such as neural lie detection and brain-based evidence of mental states – may eventually compete with the role of the American jury.

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.

The Key to the Defendant Apology: Say What You Mean, and Mean What You Say

By: Dr. Kevin Boully -

Google “public apology” and watch the results pile up.  Within the last 24 hours a famous clothing designer, a city councilman, a Boston nightclub and countless others have issued apologies for their varied transgressions.  We’ve covered this territory in previous posts.  We’ve even laid out a pretty simple description of what constitutes a complete apology that recipients and third parties (and jurors!) are likely to perceive as sincere. So why are we talking about apology again? Is it truly pie-in-the-sky to expect jurors to accept Defendant apologies?

The Persuasion Strategy You Have to Fear...Is Fear Itself

By: Dr. Ken Broda-Bahm - 

 
Reacting to new evidence of support in the public as well as the U.S. military for allowing lesbians and gays to serve openly, those who support a continuation of a "Don't Ask, Don't Tell" policy continue to warn of a dangerous loss of troop cohesion and morale, as well as the potential loss of troop strength if the policy is repealed during wartime.  While proponents and opponents of change differ on the merits of these arguments, there is also a dimension to these warnings that students of persuasion would recognize as a classic fear appeal.  The practical question to ask, both generally and in the case of legal persuasion, is whether fear works.  A strategy of seeking to call to mind an audience's fear is, of course, no stranger to litigation.  Plaintiffs imply, if they can, that a defendant unchecked by a strong verdict in this case will continue to harm others, including you and your loved ones.  And defendants also would like to benefit from the belief that continued encouragement of frivolous suits - like this one - will just add to the threatening trends that are increasing prices, raising insurance rates, and robbing consumers of choices.  

It only makes sense to believe that jurors file into a deliberation room, not to execute 'justice' in some abstract sense, but to serve a principle that they have some direct stake in.  An approach currently very much in vogue within the plaintiff's bar and known as the "Reptile" strategy, would seem to endorse the use of fear as a direct and personal motivator for your jury, but a careful review of research suggests that attorneys should think twice about how, or whether, to scare their jurors.