Persuasive Litigator

See the Process and Not Just the Product in Deliberation

By Dr. Ken Broda-Bahm: 

Over the weekend I gave a presentation at a law firm retreat in Palm Springs. The presentation drew from a recent mock trial in an insurance dispute and the deliberation video clips I was playing could've been seen as a parade of mistakes: jurors ignoring instructions, flagrantly applying their own experience and knowledge, and framing the dispute within their own terms instead of the frame provided by the presenting attorneys. After about an hour of this, one attorney in the audience spoke out: "Do you still," he asked, "have faith in a jury to deliver a good verdict?" In response I said, "Yes, I do," not only in reaction to current political questions over whether the jury can do the job, but also based on a generation or more of social science research summarized and advanced in an article currently on my nightstand. In short, even when we might disagree with the product that a given jury hands down in the form of a verdict, jurors are following a process that is valid, valuable, and to at least some extent, predictable. 

The article on my nightstand was written by two communications professors from University of Colorado and Pennsylvania State University (Sprain & Gastil, 2013). They reviewed the literature on what it means to deliberate and conducted their own study focusing on the survey responses provided by more than a thousand jurors post-trial. From that they developed an interpretation of the 'rules' jurors apply when trying to come to a verdict. The article shares a set of simple but important findings and conclusions that should not only increase our faith in the jury, but should also inform our practice when dealing with jurors. This post takes a look at the study and spotlights four of the conclusions that should matter most to the practicing litigator. 

Persuasive Litigator Hits 300 Posts: The Top Ten of the Third Hundred

By Dr. Ken Broda-Bahm: 

With the writing of the 300th post, we are glad to have stuck with a two-posts per week schedule since January of 2011. As we hit this third milestone, I took a look at the roundup of posts that Google Analytics declares the most frequently read posts in the most recent set, and the list appears to offer a little of everything. If there is a theme that ties them together, I think it is this: The readers gravitate toward the unconventional. The posts drawing the most eyes have focused on the following: 

• Applying ancient rhetoric to today's legal persuasion (the top post!);
• A defense perspective on the hottest plaintiff's approach (the Reptile); 
• Several modern cognitive science discussions of 'truthiness,' prior beliefs, decisional mindset and visualization;
• A conversational essay about a conversational brief;
• Unexpected implications of common tools like analogies and graphics;
• A discussion of settlement instead of trial persuasion.

Whether you, like me, are curious about what readers read, or if you're just looking to catch up on any hits you might have missed, here is the top ten from the last hundred. 

 

Witnesses, Don't Get Too Comfortable

By Dr. Ken Broda-Bahm: 

Think about stage fright. Now, multiply it by two, or perhaps ten in some cases. Being in the witness chair in trial compounds what we traditionally think of as speech apprehension, because it adds not only greater degrees of formality, but also the knowledge that there is someone on the other side who is being paid quite well in order to pick us apart. For a party in the case, an expert witness, or any witness, the advice to "just be calm" doesn't often help. Testimony, whether in trial or deposition, is inherently a high stress event and the advice to get comfortable and relax may not be just unrealistic, but counterproductive as well. 

According to some new research (Jamieson, Nock & Mendes, 2013), the answer may lie in embracing the stress. Instead of chasing the elusive goal of comfort in the witness chair, it is better, according to these researchers, to acknowledge the inherent stress of being a witness and work to reframe the fact of the heightened physiological state, sometimes called the "fight or flight response," as something more positive. Speakers who did this in contexts where they knew they would be challenged performed much better, even as all physical signs of stress remained constant. This post takes a look at the study and draws out a few suggestions for parties, experts and all witnesses to focus on performance instead of comfort. 

Show Some Faith in the Jury System

By Dr. Ken Broda-Bahm: 

The dramatic capture of Boston bombing suspect Dzhokhar Tsarnaev last Friday immediately ignited a debate on whether the suspect should enjoy the protections of the Constitution. Republican Senators John McCain, Lindsey Graham, and Kelly Ayotte, along with Congressman Peter King, issued a joint statement applauding the initial decision not to Mirandize the suspect, and calling for the Chechen immigrant to be declared an enemy combatant. "We do not want this suspect to remain silent," they noted. Fellow GOP Senator Rand Paul disagreed, noting that the veterans who have fought for our rights would be disheartened to think," We're just going to tell people, 'Oh, no jury trial anymore.'" That immediate conversation was stilled by a quick word from the White House: "He will not be treated as an enemy combatant," Press Secretary Jay Carney clarified, because "United States citizens cannot be tried in military commissions."

While that declaration reassured many civil libertarians across the country, the debate continues on the broader question of whether we can count on the conventional criminal justice system when it comes to national security targets. To put it in popular terms, can we trust the same jury system that let Casey Anthony walk out of court a free woman to deal with accused terrorists like Tsarnaev? Or to consider the flip side, can we trust the jury pool for a federal trial when it will be made up of Boston citizens zealous to convict?  In the Boston Marathon bombing case, it may not be a make or break issue if the reports of overwhelming evidence, potentially including a confession as well, turn out to be accurate. But the larger issue -- our faith in the jury system when it comes to the most critical cases -- still matters. So for those discussions and debates that will no doubt continue in living rooms, backyards and Facebook walls, this post shares three arguments supporting the view that we can and should trust our jury system to deal with even the most heinous cases. 

Speak to the Individual, Not the Common

By Dr. Ken Broda-Bahm: 

Last week in the U.S. Senate, a measure to require universal background checks on gun purchases failed to get the 60 votes needed to survive. The arguments supporting the common good of keeping firearms out of the wrong hands were, to 45 Senators, was not as strong as the individual rights based aversion to new restrictions in any form. Though this decision was out of step with prevailing public opinion (with 86 percent of the public supporting such checks), it was quite consistent with a very common and very American tendency for common good arguments to crumble in the face of individual good appeals. So this abstraction of "The Common Good" that might seem like an important touchstone for persuaders in all contexts, turns out to be an argument that you can't quite count on. According to one recent study (Hamedani, Markus & Fu, 2013), common good arguments aren't simply suboptimal, they actually serve to demotivate the audience. 

Here in the U.S., we tend to like our independence a lot more than we like our interdependence. This tendency to put the individual ahead of the commons exerts a strong influence in determining which persuasive appeals will work. Attorneys working to motivate a judge, jury, or arbitrator are interested not just in reasons in the abstract, but in appeals that an audience will find tangible, meaningful, and personal. Based on the recent study, the appeal to the common might be just too common to work as that kind of a motivator. Instead, what works is to communicate and frame arguments in personal terms. Even while avoiding overt special pleading (this verdict affects you) or Golden Rule objections (what would you have done?), it is true that legal audiences will favor appeals that can be grasped in individual terms. This post takes a look at the research showing the weakness in "The Common Good" and shares some ways of converting these arguments into more individually relevant appeals.