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. 

Define "Reasonable Person" As Your Jurors' Idealized Version of Themselves

By Dr. Ken Broda-Bahm:

Sometimes you come across a document that challenges your view of basic human goodness.  The stomach-churning Grand Jury Report relating to the Pennsylvania State football scandal is one such document.  What stands out, based on the allegations, is just how many times former assistant coach Jerry Sandusky was caught.  In locker rooms, workout rooms, cars, and homes, the report points to continual revelations of abuse that led to minor and incomplete reactions.  The responses of those making the discoveries appeared to be "not in my locker room..." or "not with my kid..." instead of "you are going to prison."  If the facts end up bearing out that perception, then there is a great deal of blame to be shared by those around Mr. Sandusky.

The situation also raises the question, "What would I have done."  We would all like to believe that, if we had clear evidence of child sexual abuse, we would have acted differently from the many witnesses in Happy Valley.  We wouldn't have just told our supervisors, like then graduate assistant Mike McQueary, we would have told the police, then the media, and the world if no action was taken.  Hopefully, that expectation is accurate in this case.  But we also know that in many cases there is a tendency to idealize our expected behavior.  In our own estimation, we always would have been more careful, more thorough, and shown greater foresight than others.  That tendency to idealize has a direct effect on how jurors personalize abstract legal standards like the "reasonable person" and the "exercise of ordinary care."  They start by asking, "WWID" or "What would I do?"  And then they apply a little gloss to the answer. 

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. 

Persuade Using Both Alpha and Omega Strategies

By: Dr. Ken Broda-Bahm -

 

Never heard of “Alpha” and “Omega” strategies for persuasion?  Until recently, neither had I.  But after reading the research, it has changed my way of looking at persuasion.  The terms are based on something called the "approach-avoidance" model (Knowles & Linn, 2004), suggesting that to an audience, every position you might advocate has attributes that attract ("approach"), and attributes that repel ("avoidance").  Persuasion is accomplished, naturally enough, by making the approach stronger than the avoidance.  Now, you might think, "that is obvious -- of course audiences see a pro and a con," but the real takeaway for advocates is the reminder that you need to speak to both sides of the equation.  Intuitively, we might expect that we make a persuasive case in court by assembling all of the evidence, arguments, and other appeals that show why we are right and they are wrong.  But that all speaks to the benefits of our position -- the approach forces.  Those are the "Alpha" strategies that give a judge or jury an incentive (greater credibility or merit) for siding with us.  But what about the avoidance forces, the forces that cause an audience to resist our message?  If we aren't also using the "Omega" strategies to decrease that resistance, then we may just be building a convincing case that our audience rejects nonetheless for their own reasons. 

In this post, I'll be referring back to the opening statements in the second corruption trial of former Illinois Governor, Rod Blagojevich, to illustrate the difference between Alpha and Omega strategies, and to underscore the message that complete persuasion needs to employ both.

A Mixture of Justice and Revenge: Target Juror Psychology in Awarding Damages

By: Dr. Ken Broda-Bahm -   
Exactly what do people celebrate when they see a fitting result?  Sometimes it is justice, and sometimes it includes a measure of payback or revenge as well.  Just over a week ago, news from the Oval Office ignited jubilant celebrations in Times Square and many other parts of the country.  Scenes of the rapture that greeted the death of Osama Bin Laden caused some observers to wonder at the civility of a response that might have seemed more appropriate for a sports victory, and even President Obama spoke about not wanting to "spike the football" in the aftermath.  It is obviously a good thing that an evil and dangerous man is out of the picture, and not able to cause further harm. But that isn't the only reason for the celebrations.  Indeed, it is hard to imagine comparable fervor if we had received confirmation that Bin Laden died peacefully in his sleep.  Part of what people are celebrating is the way he died, and specifically that a man of violence met a violent end.  In other words, people are motivated not only by a just or fair result, but also by a result that appeals to a human desire for revenge.  

My goal isn't to criticize or to defend that response, but instead to note that it stems from a well-documented psychological tendency that applies not only to war and counter-terrorism, but also to all situations in which people are trying to right the scales.  The idea that those who have caused harm should suffer harm is at the root of our criminal justice system (more so in practice than deterrence or rehabilitation), but the appeal of payback plays an important role for civil juries as well.  Looking at revenge psychology carries some important implications for both civil plaintiffs and defendants.