Persuasive Litigator

When it Comes to Bad Defense Venues, Treat Perception as Reality

By Dr. Ken Broda-Bahm: 

Perceptions can be tricky.  Take the picture above for example:  If you'll do something right now, I promise that you'll be amazed.  Stand up from in front of your monitor and step back about 15 feet from the computer, and you'll see Albert Einstein turn into Marilyn Monroe.  Seriously!  The image doesn't change of course, but with the right distance your perception of it will suddenly shift. 

I found perception playing a similarly important role in my work the other day.  A client had asked me for an opinion on choice of venue.  He had the option of three different counties:  two were suburban with a high Republican population, and the third was urban with more registered Democrats.  A plaintiff in this case, the client asked if it was true that the more urban venue would be better for him.  My answer was, based on our data and experience, it is true.  But then my perspective suddenly shifted, and I realized that in a larger sense, it doesn't really matter if it is true because it is generally perceived to be true.  That might sound cynical, but what I mean is if this case is like the close to 98 percent of cases that settle before trial, then the perceived characteristics of the venue will matter far more than the actual characteristics of the venue.  Siting the case in the perceived pro-plaintiff venue will serve as better leverage for a good settlement.  Taking a look at the notion that when it comes to bad venues and cases that settle, perception is reality, this post offers some recommendations for looking at your venue with new eyes.  

Predict With Care: Adapt to Overconfidence in Case Assessment

By Dr. Ken Broda-Bahm:

Predicting is tough, and can be even tougher when we don't believe the limits of our own predictive abilities.  Daniel Kahneman, a giant in the psychology world, recently wrote in the New York Times Magazine about an odd task that neatly parallels an attorney's challenge in case assessment.  Dr. Kahneman's job as a British army psychologist in World War II was to administer a test to young officer candidates and evaluate which should go on to officer training.  As the young men worked together to maneuver a large log over a high fence, he and his colleagues would observe and then confidently predict who could best perform as a leader on the battlefield.  But the hitch is this:  "Despite our certainty," Kahneman writes, "our forecasts were largely useless."  The even more interesting hitch is how this team of trained psychologists responded:  They carried on, continuing to believe in the accuracy of their predictions, despite the evidence to the contrary.  "The statistical evidence of our failure should have shaken our confidence in our judgements...It should also have caused us to moderate our predictions, but it did not."  When it comes to trust in our own ability to predict, it turns out that we want to believe. 

This post takes a look at the problems that this kind of overconfidence can pose for case assessment, and recommends several ways take greater care when you need to predict.

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.

When You Press the Negotiations, Pause the Persuasion

By Dr. Ken Broda-Bahm -

Litigators like to see themselves as silver-tongued persuaders, but in an age in which fewer than one in fifty suits are resolved in trial, they may find that the negotiation skills of Donald Trump come to matter more than the rhetorical skills of F. Lee Bailey.  And research is increasingly pointing to the fact that in a negotiations setting, many common intuitions about persuasion may not apply.

For example, a study reported in this month's Journal of Personality and Social Psychology shows that negotiators who use arguments to support their first offer paradoxically fare worse than those who don't.  This post takes a look at why that is the case, and provides recommendations on the ways litigators should adopt their argumentative approach to negotiations.

Settle Your Case Without Setting the Dominoes in Motion: Research on the Demonstration Effect

By: Dr. Ken Broda-Bahm -

 
The role of a positive example in creating a “demonstration effect” has long been noted in the fields of political science and international relations, with one of the classic examples being the American Revolution that was closely followed by the French revolution.  We’re seeing it now on a near daily basis in the Middle East and North Africa.  From Egypt to Bahrain, Morocco, Yemen, Algeria and Libya, people who spent generations under autocratic rule are suddenly finding the will to mount massive demonstrations to challenge their respective regimes.  From a single successful example (Tunisia went first), the idea spread outward like a drop of ink in a glass of water.  One day, a revolution seems impossible, and the next day it has a chance: “if the Tunisians and Egyptians can throw off a dictator, then so can we!” and the dominoes fall.  So if you are an autocratic ruler, situated in the North of Africa or the Middle East, chances are you have some concerns about anything that could prompt the citizenry to follow that example. 

I don’t want to overwork the analogy, just to bring the topic back to litigation...but I will:  If you are a defendant corporation in the pre-trial phase, you may be thinking along similar lines:  “We can’t settle this case, because once we take that first step, there will be so much blood in the water that we’ll be settling other cases for decades…”  There is, of course, some practical truth to that.  But the question is – for both Middle East unrest and the demonstration effect of potential settlements:  What is it about a positive example that motivates folks to think it could apply to them as well?