March 21, 2019

Check Out Your Company’s Partisan Profile

By Dr. Ken Broda-Bahm:

At This stage, we are used to polarization in politics, with Red- and Blue-America divided on nearly every policy issue we can imagine. But there is a growing realization that this polarization isn’t just politics. Instead, the “tribe” established by our political leanings will also increasingly determine where we live, what networks we like, what music we listen to, what we do in our free time, whether and how we worship and, based on some new survey data, where we shop as well. A recent Axios-Harris poll looked at corporate reputations. Using a combined sample of nearly 25,000 respondents, the group asked open-ended questions to identify companies with the best and worst reputations, and also asked participants to rank the 100 most visible companies. 

The survey results show that corporations vary in popularity based on political leanings of their customers. Those companies that are disproportionately favored by liberals include Target, Google, Twitter, Kraft-Heinz, Starbucks, Tesla, and Volkswagen. On the other hand, those favored by conservatives include Papa Johns, BP, Goldman Sachs, Chick-fil-A, Home Depot, Nestle, and of course, the Trump Organization. Axios is hosting an interactive chart of the results, allowing users to see specific percentages for all the companies evaluated. While company favorability rates between political groups seems to be comparable for many companies, the top 10 lists for Democrats and Republicans include only two names in common: Wegman’s and Publix supermarkets. And if the U.S. Government were a company, it would be one of the less-favored ones by both parties, though somewhat more favored by Republicans at present. For companies involved in litigation, their favorability matters. The possibility that these popularity rates can be ideologically loaded is something the companies should look into. In this post, I’ll share some implications of the data as well as the broader issue of anti-corporate bias in polarized times. 

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March 18, 2019

Address Universal Core Values: Seven of Them

By Dr. Ken Broda-Bahm:

Our thinking about morality is often that it is some kind of divine spark in humans, or something spiritual that comes from within.  But what if it is merely a set of habits that developed as we evolved, a set of rules that originated and persisted because they helped societies to survive? If a set of moral values make it possible for societies to function, then it stands to reason that societies would universally value them. This perspective on codified cooperation is called “mutualism,” and it finds what may be definitive support in a recent broad-based survey conducted by a team from Oxford University’s Institute of Cognitive and Evolutionary Anthropology (Curry, Mullins, & Whitehouse, 2019). Based on a global anthropological study of sixty distinct cultures, the team found seven moral rules supported by all cultures, with no exceptions. 

The rules are the following: 1) Help your family, 2) Help your group, 3) Return favors, 4) Be brave, 5) Defer to superiors, 6) Divide resources fairly, and 7) Respect others’ property. While different cultures will emphasize and prioritize these rules differently, they will support all of them. The team was not able to find a culture in which any of these moral rules was not upheld in some form, or was considered to be a bad thing. As quoted in a recent ScienceDaily release, the lead researcher, Dr. Oliver Curry, summarized, “The debate between moral universalists and moral relativists has raged for centuries, but now we have some answers. People everywhere face a similar set of social problems and use a similar set of moral rules to solve them. As predicted, these seven moral rules appear to be universal across cultures. Everyone everywhere shares a common moral code. All agree that cooperating, promoting the common good, is the right thing to do.” Because a courtroom is, in practice, an arena not just for applying the law, but also for enforcing what is considered to be the “just” and “right,” it is worthwhile to think about how these seven universals might function in a litigation context. In this post, I’ll briefly consider each of them. 

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March 14, 2019

Trial Witnesses, Un-Lead the Questions

By Dr. Ken Broda-Bahm:

When testifying, there are some situations where a “less is more” rule applies. In a deposition, for example, you don’t want to aid the other side, and will often prefer conciseness. However, when undergoing cross-examination before a jury in trial, less isn’t more…it is less. That is, if you limit yourself to simple “yes” answers, then you have less control (with your adversary choosing all the words) less power (since you’re just confirming the facts that opposing counsel has selected), and less overall usefulness to the jury (since you aren’t saying much). In a courtroom cross-examination, there is a need to find ways to talk more so that you appear to be credible and, in some ways at least, so you function as a teacher for your jury. So, how do you do that if all opposing counsel is doing is giving you statements that are turned into questions by adding, “Wouldn’t you agree…” at the start, or, “Right?” at the end?

What you need to do is mentally convert the language of those questions so they’re no longer leading questions. They may be asking you, “You never tested the product with actual consumers, did you?” but the question you want to answer is more like, “What did you do to test the product?” The broader version is better for ensuring that you aren’t just a rubber-stamp for your adversary’s selective claims, but instead get to share your side of the story. So the answer should be, “No, we tested using computer simulations and human subject volunteers, not with actual customers.” Importantly, you are still answering their narrow question, but you are placing it in context by adding additional information. In knowing what to add, I think this mental step of implicitly converting a leading question into a more open-ended question is a helpful step in focusing the witness’ answer. In this post, I will share a few examples of this concept in action.

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March 11, 2019

Experts, Cultivate Awe

By Dr. Ken Broda-Bahm:

Remember Carl Sagan and the original show Cosmos? It was a beloved series in the late 70’s, not just for its accessible explanations of something as complex as the history of the universe, but also for its ability to evoke a sense of wonder. As a gifted science communicator, Sagan used that sense of wonder as an entry point to create a desire to learn more about the science. The same for Neil DeGrasse Tyson who took up the Cosmos mantle nearly forty years later in 2014. The common factor is a focus on a sense of awe: a greater awareness and wonder at what we don’t yet know. That greater awareness on the limits of knowledge creates a motivation to fill in the gaps and to learn more.

That is not just intuitive, it is also what the research says. Jonathon McPhetres, a Ph.D. candidate in psychology at the University of Rochester reports on a series of studies on that feeling of awe in the Journal Cognition and Emotion (McPhetres, 2019). The research shows that by tapping into a feeling of awe, communicators of science are not just conveying knowledge, but are also addressing the motivation to know more. As McPhetres noted in a ScienceDaily release, “The joy of science lies in pondering the magnificent and seeking answers to the unknown.” The courtroom expert’s concerns are likely to be more prosaic than the cosmos addressed by Sagan and Tyson. But the ability to proceed from a sense of wonder or awe might be a common ingredient. 

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March 7, 2019

In Opening, Dispense With “The Evidence Will Show”

By Dr. Ken Broda-Bahm:

Unlike many other moments in trial, the opening statement is often defined in terms of what it isn’t. It isn’t evidence, and it isn’t argument. So, what is it? It is a preview of what the evidence will be. That creates a conventional practice, reinforced in nearly all trial advocacy courses and moot court competitions: When delivering an opening statement, precede your claims with the phrase, “The evidence will show….” Some believe that this functionally is required, and there are at least a few judges who will act as though it is. But not all judges believe that.

One federal judge, Robert Lasnik, the senior judge in the Western District of Washington, says attorneys are better off dropping it. “My first bit of advice,” he writes in a recent column carried by Jury Matters“would be to delete the phrases ‘The evidence will show’ and ‘We expect the evidence will show’ from your statement.” It is a convention that sounds legalistic and can quickly become redundant or meaningless. But more than that, it interferes with a direct and streamlined answer to the question that jurors are most interested in at this stage of the trial: “What happened?” Telling a story means not just reciting a checklist of what you plan to prove at a later point. It means immersing your judge or jurors in the narrative. So the best rule of thumb is this: Use it if you’re required to use it, but whenever you aren’t required to use the phrase, or whenever you can get away with using it just a couple of times at the beginning and then dropping it, you should do so. Continue reading

March 4, 2019

Savor It

By Dr. Ken Broda-Bahm:

Trials and litigation are unpleasant, right? For one party, it stems from a loss or injury that forces them into court as a last resort, and for the other party, it’s a quite-unwelcome need to defend oneself against an accusation. So what’s to enjoy? As a communication experience, it is often thought of as something to “weather,” to “bear,” or to “get through,” and not something to enjoy. In some cases, some points during those cases, and for some parties, that is going to be true. But in other cases and moments, might it be possible to appreciate or even savor the communication experience?

It is possible. According to research, believe it or not, people do savor not just an excellent meal or a pleasant aesthetic experience, but can also savor instances of meaningful communication. University of Arizona Professor Margaret Pitts  focuses her work on the psychology of positive experiences (which sounds like a nice gig). Her recent study (Pitts, 2018) focuses on the experience of savoring or “people’s capacity to recognize and appreciate enjoyable life experiences.” In a ScienceDaily release, she explains: “Savoring is prolonging, extending and lingering in a positive or pleasant feeling…First, you feel something pleasant, then you feel pleasant about feeling pleasant, and that is where savoring comes in. It’s not just feeling good; it’s feeling good about feeling good, and then trying to trap that feeling.” The more we savor, she says, the more we are likely to enjoy life. And her surveys indicate people don’t just savor meals or sunsets, they also savor various kinds of communication. One kind she labels “extraordinary communication,” or communication that is centered around specific and highly- impactful moments. A wedding certainly fits, but so does a trial, and so can the lead up to a trial. For the advocate, and also for the witness, there are aspects of the experience to be savored, and doing so will make it a better experience. 

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February 28, 2019

Rehabilitate Your Lying Witness

By Dr. Ken Broda-Bahm:

It was another big moment yesterday as Michael Cohen, President Trump’s former personal lawyer, testified publicly before the House Oversight Committee. Widely seen as an opening act prior to Special Counsel Robert Mueller’s report on Russian interference in the election, Cohen’s testimony focused on continuing business in Russia during the campaign, on the pre-election “hush money” payments to former mistresses of Mr. Trump, as well as various other allegations of legal and ethical failings. Several Members of Congress, including the Committee Chair, Elijah Cummings, noted the central problem: Given Mr. Cohen’s past dishonesty, and indeed his conviction for making false statements to Congress, why should we believe him now?

Mr. Cummings noted that he faced this problem of a lying witness as a trial lawyer many times, and it is likely that many readers have practical experience in that as well. Prosecutors, for example, don’t have the luxury of working only with honest and squeaky-clean witnesses. Civil litigators can have their own challenges as well. A physician might look up a patient’s electronic files right after getting served, and then deny that he reviewed anything during his deposition. Or a business executive might have to admit to knowingly filing false reports. Or perhaps, more prosaically, a common witness might have to admit that they just shaded or omitted a detail in prior testimony in the naive hope that it will help their case. In Cohen’s testimony, the partisan divide was stark: While Republicans heaped condemnation based on past dishonesty, Democrats tried to thread the needle and show that, despite Mr. Cohen’s past actions — or perhaps because of them — he remains an important and, in some situations, at least a credible witness. The rest of this post shares a few thoughts on how that rehabilitation can be accomplished.   

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February 25, 2019

Beware of ‘Participation Deception’ in Your Surveys and Mock Trials

By Dr. Ken Broda-Bahm:

Imagine that you receive a phone call and the voice on the line offers participation in a research project, and also offers pay. Then, the caller walks you through a series of questions to determine your eligibility, and it becomes clear what the “right” answer is. And let’s say you could use the money. Do you shade your answers to lean toward what you think they’re looking for? Now, I like to think that readers of this blog, many of them lawyers, are more honest than the average person, so perhaps the answer is “probably not.” We know, however, that average citizens aren’t always truthful: as many as 80 percent will lie to their doctors about nutrition and exercise, for example. So, if they’re being recruited for a venue survey, or a mock trial or a focus group, will they lie about factors that should determine their eligibility? 

The answer is that many of them will try. Recent research confirms that if compensation is at stake, then a portion of the potential participants will lie. In one of the first studies to focus specifically on the prevalence of deception to win eligibility, Philadelphia-area medical educators and practitioners (Lynch et al, 2019) asked about participants’ recent flu vaccination in a survey of 2275 American adults, soliciting research participants without offers of payment or with varying amounts of payment to see the conditions under which participants would lie in order to secure participation in the study. They found deception rates ranging from 10.5 percent to 22.8 percent. That suggests that deception should be a significant concern regarding both data quality as well as confidentiality when it comes to pretrial research. In this post, I will look at what can be done about it.  Continue reading

February 21, 2019

Assess the Generation Gap In Your Intellectual Property Suit

By Dr. Kevin Boully and Katerina Oberdieck:

“Just because you came up with something doesn’t mean somebody else can’t come up with it, too. Don’t hate the player, hate the game.”

Juror 12 makes his case: It isn’t fair to protect the Plaintiff’s claimed intellectual property.

“But they were first,”

Juror 17 responds, supporting the Plaintiff. Then, Juror 12 – a 19-year-old male – jumps in again, 

“Anyone can come up with this thing, it’s nothing special.” 

The mock jurors’ discussion is resolved with the conclusion that if the Plaintiff did not adequately prove the novelty and value of the claimed intellectual property, the supposed innovations cannot be protected by the law. The exchange got us thinking.

  • What does it take in today’s big data age to prove an idea is novel?
  • How typical is the 19-year-old’s view about what ideas are and are not protectable?
  • Who holds a high bar for whether an idea counts as innovative or not? Who holds a low bar?

You want to know whether your fact-finder is inclined to believe in what your client or your opponent call innovations, inventions, or trade secrets. We analyzed our BigJury™ database of thousands of jury-eligible Americans to look for answers.   Continue reading

February 18, 2019

For Better Comprehension, Let Jurors Read Along During Instructions

By Dr. Ken Broda-Bahm:

Whenever I am running a mock trial and playing the role of the judge, I read the instructions out loud to the mock jurors while they also read along using their own paper copies. I sometimes think that is overkill: If it were me, I think I would just  listen or just read, but I wouldn’t need to read along with the judge. When I think that, however, it is my bias talking. Based on my work and my training, I am analytical, a bit overeducated, and have a lot of familiarity with the law. When I hear or read the instructions, I usually (not always) understand what they mean. When I use instructions in a mock trial, it typically isn’t the first time I’ve seen them. So I get it, and I don’t need the overkill. 

All that is not true of most jurors or the mock jurors. In recent research, Janet Randall (2019) of Northeastern University, an academic who has worked with the Massachusetts bar association to propose plain English instructions, studied exactly what it takes to improve jurors’ understanding of instructions. Comparing comprehension in different settings, she found that when subjects read the instructions while also listening to them, and when instructions were written in plain English (e.g., minimizing passive voice and unfamiliar legal expressions), comprehension was significantly improved. In this post, I will focus on the ways that Dr. Randall identifies to improve understanding of jury instructions.  Continue reading

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