Persuasive Litigator

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. 

With Computers and Witnesses, Expect Memory Errors

By Dr. Ken Broda-Bahm:

 

My computer and I are currently fighting.  In my Dell laptop's fragile state, even the simplest actions can result in a freeze, or one of those inscrutable Microsoft messages, like "the instruction at 0x00630522 referenced memory at 0x04d92670 and the memory could not be 'read'"(as if that information helps the typical user:  “Oh, that sector…I’ll get right on that”).  In the case of my computer, it may well be that the sheer level of software, security, and virtual networking infrastructure is outstripping the available memory.  In litigation, memory problems plague the witness as well, and in that context, it may also be that the sheer level of psychological, legal, and communication demands end up outstripping our limits.

New research on popular beliefs about memory (Chabris and Simons, 2011) sheds some light on the problem.  According to the first large scale national survey on intuitive beliefs about memory, we tend to see memory as more objective, more accurate, and more durable that it actually is.  While these misperceptions undoubtedly influence jurors and other fact-finders, in this post I want to look at the implications of faulty memory beliefs on that pillar of the trial:  the fact witness.

Diagnose Your Difficult Witness

By Dr. Ken Broda-Bahm -

 
In the pivotal scene of “My Cousin Vinnie," a movie beloved by those who follow legal persuasion, the defense attorney, played by Joe Pesci, asks the judge permission to treat his now estranged girlfriend as a hostile witness.  This is a request that the judge, with a knowing look, quickly grants.   The scene provides an important reminder that even when a witness might formally be on your side, there could be one or more dynamics at work making your own witness "hostile" to your interests. 

I was recently asked by a legal team faced with the task of defending the depositions of a large number of witnesses how to handle difficult witnesses who could not, or would not, answer questions with the sensitivity or strategic sense that a situation demands.  Such a witness may be prone to emphasize dangerous aspects of testimony even after being clearly shown by counsel why it is dangerous.  As I've written before, woodshedding the witness with strong "say this..." instructions is not the answer, for reasons both practical and ethical.  Instead, the first step in preparing the marginal or reluctant witness is diagnosis:  It matters why the witness is not getting the message.  There are a few different possibilities:

Careful, Your Animation May Be Promoting Hindsight

By Dr. Ken Broda-Bahm -

 
Standing in front of a legal fact-finder you need to visually persuade and you also need to defeat the psychological biases that can harm your case.  But here is a terrible thought:  What if one of the best tools of visual persuasion has the unintended side-effect of promoting an often harmful psychological bias?  Well, the bad news according to recent studies is it does.  Animations used in a legal context (for example, the often used accident reconstruction in personal injury cases) have the demonstrated effect of increasing hindsight bias, or an over estimate of one's ability to have foreseen an outcome after that outcome is known.  Once visualized, events appear to be more predictable and controllable than they would be if they were not visualized, a mental effect that can cause jurors to blame injured parties for not protecting themselves, or to blame defendants for not addressing a problem that became clear only in retrospect.   

When it comes to viewing an automobile collision, for example, seeing is not just believing, it is believing in hindsight the accident could have been foreseen and avoided.  But for parties the need to prevent or minimize hindsight, here is the good news:  By making your animations more realistic in specific ways, you are preserving the advantages of enhanced understanding, without introducing unrealistic hindsight.  This post takes a look at the research, as well as the recommendations on creating animations that teach without biasing. 

Remember in Court, If You're in View, Then You're on Stage

By Dr. Ken Broda-Bahm -

 
During a recent trial, a witness was about to leave the stand as a slip of paper with a question emerged from the jury.  The note was enough to make the examining counsel's blood run cold, as the juror asked the witness, "Isn't [your attorney] signalling you on how to answer by nodding his head to indicate 'yes,' or 'no'?  He is!  I see him!"  Thankfully for us (actually, wonderfully for us), it was opposing counsel that the note referred to.  Thankfully for him, the judge didn't allow the question to be asked in court.  Now, chances are that these small gestures from the attorney were simply unconscious "leaks" of his own thoughts on the question, as opposed to intentional attempts to guide the witness.  But the incident provides a useful reminder:  Jurors see everything.  As a collective, the jury is like Argus, the hundred-eyed giant from Greek mythology.  They are closely watching witnesses, legal teams, court personnel, and spectators.  On or off the stand, not much gets past them. 

So the common advice to "watch your nonverbals" as you enter the courtroom is very sound advice.  But to take it beyond the truism, the phenomenon of a jury's offstage attention has actually been studied.  This post shares what we know about jurors' tendency to take in the whole courtroom and not just the witness stand, and shares seven specific pointers on how to adapt your nonverbal communication during a trial.