Persuasive Litigator

When Your Case Follows a Bellwether, Prepare Jurors to Hear only Part of the Story

By Dr. Ken Broda-Bahm and Dr. Kevin Boully: 

The first bellwether case in Toyota's "Unintended Vehicle Acceleration" litigation has just been selected by a judge in California.  To some, that may come as a surprise, since it might have been assumed that these cases would have deflated after the National Highway Traffic Safety Administration (NHTSA) concluded a year ago that there is no electronics-based cause.  Then, just last week, an exhaustive investigation by the National Academy of Sciences again failed to find a causal link between vehicle electronic throttle-control and sudden acceleration.  Yet still, it appears, the cases have continued like...well, like some kind of unstoppable vehicle.  That suggests there may be more to the story than what we're seeing in the press, and we will have to wait on the trials to find out.

The interesting point for me at this stage is the emerging "bellwether" structure.  The term originally refers to a sheep that leads other sheep by virtue of a bell around its neck.  In litigation, however, the bellwether structure is increasingly used to select a specific case, or a few cases, from among a much larger group of similar cases to be tried first in order to resolve some of the broader issues in the litigation.  A finding of liability and general causation, for example, might be established for all plaintiffs, leaving it to the rest of those in the group to just prove specific causation and damages.  The practical effect of a bellwether structure is generally to encourage settlement, but for the vast majority of cases that are "nonbellwether," it means that there is at least some chance to go to trial with a number of issues already established by another jury.  That is undoubtedly an advantage for plaintiffs, yet it also raises some interesting communication challenges.  Is it possible to fully motivate and persuade these nonbellwether juries if they are only hearing part of the story?  Does it have an effect on the damages awarded?  This post looks at the relevant research, and makes a few recommendations for cases within a bellwether model. 

Take a Moment to Present Your Safe Product Story

By Dr. Kevin Boully:

In little more than a moment a man goes from enjoying his favorite recreational sport to an injured Plaintiff with a sports-product liability claim.  It happens in a flash.  And new research suggests that people may make determinations about a witness's trustworthiness and empathy just as quickly -- in about 20 seconds.  So what happens when Defendant manufacturers are faced with challenging facts, sympathetic Plaintiffs, and a need to present a believable trial story in sports-related products liability cases?  In this post, we focus on a three part approach to developing a critical aspect of an effective product-defense -- an effective product safety story. 

Earlier this year, a Missouri jury awarded $48 million to the families of five people who perished during a skydiving incident.  Trial testimony indicated the Defendant airplane-parts manufacturer made a replacement part for the aircraft using a metal alloy that cost about half as much as the metal the original manufacturer required.  Plaintiffs also presented evidence that the replacement part had caused other engine failures, and had failed internal testing.  These are not good facts (to put it lightly), and a Defendant in this position clearly faces an uphill battle.  But a Defendant in this position must present a credible company witness (if not multiple witnesses) who can tell the story that made the Defendant company's decisions safe and reasonable based on the knowledge and testing available at the time. 

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. 

Litigation Postscript's Centennial: The Top 10 of the First 100

By: Persuasion Strategies -

 
Litigation Postscript has just turned one hundred!  Posts, that is.  Through these past hundred, and into the next, we've remained stubbornly committed to the idea of writing articles, not typical blog posts, and including targeted recommendations for litigators in every single post, based on research and experience.  

We're doing that for you.  Yes, you, the one right there in front of the monitor.  So, if you enjoy and benefit from this focus, here is what you should do.  Look to the right.  No, your right.  Higher... higher... Yes, that is it!  The subscription box!  Type your email address there and hit "subscribe."

For this post, we would like to troll back a bit with a list of the ten most-read posts out of the first hundred -- an opportunity to catch up on something you might have missed.  So, based on the magic of Google Analytics, here is the "Best of the Blog."

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.