May 23, 2019

In Voir Dire, Create a Context for Candor

By Dr. Ken Broda-Bahm:

Here’s the situation. A large number of strangers are gathered in a formal courtroom — a hushed atmosphere, dark-wood paneling, flags for the state and the U.S., a raised bench with a stern-looking judge. Nothing about that situation says, “Get ready to candidly share your personal beliefs and attitudes!” In fact, nearly every aspect of the situation says the opposite: keep your head down, follow expectations, and make it formal. Many of the potential jurors attending will proffer their promise to be fair with the same solemnity that was attached to the oath itself. It’s a routine, and for everyone other than those consciously trying to escape jury duty, it is a matter of just saying what the judge expects to hear.

And, unfortunately, some judges seem to be just fine with that. If potential jurors just listen and then easily concede that they can be fair, then that just helps move the process along faster. Attorneys, however, should not be fine with that. A fair trial for your client depends on knowing about juror bias, which in turn depends on the potential jurors being willing to share what they think. Using whatever tools are available, attorneys should work to consciously combat the features of the situation and the judges’ preferences which inhibit expression of bias, and work to consciously create a context that encourages honest and candid disclosure. The ability of attorneys to control the conditions varies widely depending on the amount of freedom the judge allows in voir dire. But under nearly all conditions, there is something the attorney can do to promote the forms of disclosure that will provide the greatest help in intelligently exercising peremptory strikes and challenges for cause. In this post I’ll review a few methods. Continue reading

May 20, 2019

Add Mock Trial to Med School

By Dr. Ken Broda-Bahm:

About once every other month, I will present at a seminar for doctors and other medical professionals. They attend because they’ve been sued and they’re learning how to cope with their newfound role in the legal process. At one point in the seminar, a psychiatrist presenting on litigation stress will usually ask the group if the subject of lawsuits was ever covered during medical school. I don’t recall there ever being an affirmative answer.

The lack of attention to litigation as a part of medical education is surprising, especially given that the chances that medical students today will be named in a lawsuit at some point in their career are astoundingly high. Every year about 7.5 percent of physicians are named in malpractice suits. In some specializations, like general surgery, it is greater than 15 percent every year. By the time a physician retires, the chances of  having been named in a suit range from 75 to 99 percent, depending on specialty. When the facts of litigation aren’t covered in school, that leaves most doctors having to learn about it the hard way — by experience. Schools might wish or assume that if doctors do everything right, then a suit won’t happen, but that is not the reality. And it is time for medical education to recognize that reality. Recent research shows that incorporating a mock trial as a part of physician training provides an effective way to teach the subject. Five physicians from UCLA’s Center for Advanced Surgical and Interventional Technology (Juo et al., 2019) put physicians through a mock trial training program and demonstrated that it significantly increased both physician knowledge and comfort. In this post, I’ll share these results and discuss the implications for schools and for anyone who works in medical defense.

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May 16, 2019

Testifying in English When It’s Not Your Native Tongue? Use That Advantage

By Dr. Ken Broda-Bahm:

Testifying is difficult enough already. You’re trying to give complete and honest answers while a trained attorney is asking hypotheticals, making distinctions, digging into details, sometimes applying arcane legal standards and language, and all the while, hoping to trip you up. Now, imagine trying to do that in a language that isn’t your mother tongue. You know English well enough to be fully competent at work and in conversations, but this – a minefield of language tricks and traps – is something different. When I work with witnesses who are nonnative English speakers, I get that: It is scary. But, more often than not, I also emphasize, “You can do it…and you may even have one important advantage.”

In our increasingly global society, it is becoming common that some witnesses in American courts will be ESL – English as a Second Language – witnesses. And for some of those witnesses, it isn’t “Second,” it is third or fourth. Doctors, executives, and even experts will sometimes immigrate to this country. Sometimes they will need translation (and if they do use it, simultaneous translation is the better option). But for those who are comfortable working and conversing in English, I think they should aim for testifying in English as well, even if the testimony itself isn’t comfortable. In my experience, the witness will initially have far too high a standard for their own language competence, and will think that barely noticeable disfluencies or issues over word choice should disqualify them from testifying in English. I disagree. In contrast, I think it is likely that the multilingual witness might even have some processing habits that can make them a better witness. Continue reading

May 13, 2019

Doctors, Don’t Expect a Partial ‘Sorry’ to Reduce Liability

By Dr. Ken Broda-Bahm:

Across the U.S., physicians are increasingly allowed to say “I’m sorry” without it being used as evidence against them in court. These apology laws, now on the books in 39 states and the District of Columbia, are directed at reducing the risks and the costs of litigation. Reformers, including physician and insurer groups, tend to have strong experience-based feelings that the laws work. The act of apologizing, the thinking goes, restores dignity and respect to the patient, and adds humanity and credibility to the physician, and that drains away the anger that often motivates lawsuits and high settlements. There is also some experimental evidence that suggests that apologies can work very well under some conditions to reduce both liability and damages. But, until now, the actual experience and effects of the state laws has not been well studied.

A new report on research conducted by law and management professors from the University of Alabama and Vanderbilt appears in the Stanford Law Review (McMichael, Van Horn, & Viscusi, 2019). What sets this study apart is the data set. The team found a large medical insurer who insures more than 90 percent of surgeon and non-surgeon physicians in a given specialty. (Neither the insurance company nor the specialty is revealed). Examining these doctors over an eight-year period (a total of 75,000 physician-years), they looked at all suit and non-suit claims against these doctors. That form of data represents the “gold standard” in this context, because it includes information — non-payments, actual dollar amounts (not ranges), and payments designed to strategically avoid reporting to the National Physicians’ Database (NPDB) — that provides full access to information that is usually proprietary. Applying a regression analysis to this data, and controlling for a variety of other factors, the research reached a solid conclusion on apology laws: Sorry, but they don’t work. Surgeons are not helped by the laws, and non-surgeons are more likely to pay, and to pay more, as a result of apology laws. Both defense costs and the total costs of litigation are increased. “Overall, our findings indicate that on balance, apology laws increase rather than limit medical malpractice liability risk.” In this post, I’ll take a look at what that means.

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May 9, 2019

Know the Political Variations on ‘Fairness’

By Dr. Ken Broda-Bahm:

A jury’s decision in a case will often come down to their view of fairness. That word, of course, is subjective. However, even when jurors delve into the legal instructions and understand those instructions, they often find that the law opens the door to those subjectivities, hinging as it often does on what is “reasonable.”  A jury deciding a commercial case, for example, won’t have to stretch too much in order to find a role for their own personal views on fairness when deciding “good faith and fair dealing” or “unjust enrichment.” Just what “fairness” means is going to vary based on the individual. We are also learning that it varies in some predictable ways based on political attitudes.

The Atlantic published a recent article entitled, “Why Conservatives Hate Warren’s Loan-Debt Relief Plan,” authored by psychology professor Dan Meegan. The writer specializes in views on fairness and is authoring a book on its political components. The Atlantic article focuses on Senator Elizabeth Warren’s plan to cancel student debt, providing up to $50,000 in relief for an estimated 42 million Americans who are paying off college loans. Predictably, liberals and conservatives react differently to this idea, with liberals emphasizing the goal of helping out people in need and conservatives emphasizing the inequity of some people receiving assistance, while others (those who paid their loans or didn’t borrow in the first place) don’t receive help. To Meegan, this highlights two sometimes incompatible views of what fairness means. On the one hand, we can define “fairness” as giving to those who need — and, yes, taking from those who don’t. Or, on the other hand, we can define it as proportionality in what one deserves, or “getting what you give.” These two views matter in litigation. In this post, I’ll unpack the differences and the implications.

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May 6, 2019

Expect Your Jury to Grow

By Dr. Ken Broda-Bahm:

It isn’t uncommon for lawyers to see a jury in static terms. An attorney I once worked with referred to a jury as “twelve bales of hay.” Because it isn’t possible to fully know what a jury is thinking until the end, that fundamental uncertainty can lead some to diminish the complexity or humanity of a jury. The real picture, of course, is more complex. A jury is both nuanced and dynamic. They are individuals to start with, but begin to coalesce into a cohesive group as the trial moves on.

A recent article highlights this dynamic quality of a jury. Appearing in the Wicked Local publication of Medford, Massachusetts, the article is by multimedia journalist Robby McKittrick who writes about his own recent experience of serving on a federal criminal jury in Boston, and applies his past training in social psychology to understand what was going on. The article is worth a read. In my view, his observations highlight the dynamic nature of a jury, and specifically the ways that jury will grow and mature over the course of the trial. In this post, I will call out four observations drawn from Mr. McKittrick’s story.

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May 2, 2019

Tell a Different Story During Closing

By Dr. Ken Broda-Bahm:

Lawyers tend to think of opening statement as the time for stories. But I think you’re telling a story in closing argument as well: not the same story, but a different one. And I don’t mean you should change the facts or present new evidence — a confused jury would be the least of your troubles. I mean you are no longer telling the story about what happened between the parties that led them to court. Instead, you are telling a new story about what is about to happen to the jurors: their deliberation and decision. Jurors don’t need the trial story again — at this point, it isn’t novel, and closing should not be treated as “Opening 2.0.” Attorneys also should not just rest on the old chestnut that jurors have already made up their minds. For one, it isn’t true (research to back up the folklore that “80 percent of jurors make up their minds in opening” does not exist). And in addition, even those who have developed a solid leaning will need to be prepared to argue. The closing should empower and arm your supporters, and disempower and disarm your opponents.

So the closing is critical. Jurors do need guidance for this new part of the trial. And the effective closing argument presenter helps to lay out that role for them by taking them through what should happen as they sift through the evidence and make their way toward a decision. Instead of downplaying the importance of closing, attorneys should be focused on that as the time to make their case: a time when their advocacy skills should be at their peak. But that doesn’t mean just offering logical arguments about the correct decision. Instead, it should be a story about how they get to that correct decision. In this post, I will discuss a few narrative elements that should go into that.

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April 29, 2019

Prep with Purpose: Six Best Practices for Witness Meetings

By Dr. Ken Broda-Bahm:

Prior to deposition or trial testimony, it is common for witnesses to have one or more meetings. These are sessions with their attorneys, and sometimes with others including trial consultants or client representatives. One goal of these sessions is uncertainty reduction: both client and counsel need to know what to expect. Another goal, of course, is to prepare. You want to have some control over your adversary’s discovery, and you want your witness and their testimony to be as effective as possible.

In conducting these meetings, every attorney has their own way of doing things. I have even found that some are a little superstitious about doing the same thing every time and not deviating from that script. It is a good idea to trust your own instincts, and there is no single correct way to prepare a witness. At the same time, there are some best practices that I think should apply in nearly all situations. This post focuses on my own list of six best practices to follow when preparing your witness for deposition or trial testimony.

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April 25, 2019

Questioning Jurors? Give Options

By Dr. Ken Broda-Bahm:

Let’s say you want to know something from your prospective juror: “Do you tend to think that corporations are basically dishonest, or not?” You get a chance to talk to them in court during oral voir dire, or even better, you get to give them a questionnaire that they’ll fill out in advance. Their response will be the basis for that consequential choice: Do I strike or do I keep? Now, if you have a social scientist near you, they might whisper in your ear that it matters how you ask, and it matters a great deal. And one of the first things they would say is, “Don’t make it a yes/no. Instead, give them options.”

On written questionnaires at least, the gold standard since 1932 has been the Likert scale, with response options ranging from “Strongly Agree” to “Strongly Disagree.” However, the format and number of options tends to vary quite a bit, and there’s been little research on how many options are best. It matters to the precision of your response: Include too few options and you’re leaving real differences unexplored, but include too many options and you are increasing confusion and random noise in the response. So what’s the sweet spot? Well, that “Six” at the top of the post isn’t there by accident. Based on recent research (Simms et al., 2019), “Six appears to be the magic number.” After testing scales ranging from two options (yes/no) to eleven options, a team of researchers from the University of Buffalo found that we lose valuable information when we have fewer than six options, but gain no greater precision with more than six options. In this post, I will take a look at what that means when designing surveys, and even when developing questions for oral voir dire.

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April 22, 2019

Summarize With Care

By Dr. Ken Broda-Bahm:

Americans finally got to see the redacted report from Independent Counsel Robert Mueller last week. The report on Trump campaign issues relating to Russian election interference raised questions in a great variety of categories, one of those categories being the accuracy of Robert Barr’s summary of that report to Congress a few weeks earlier. While the Attorney General had, at that time, only set out to report the main conclusions, a number of critics have pointed to some substantial discrepancies between Mr. Barr’s summary and the actual report. To take one example, the summary suggested that the Independent Counsel had deferred on coming to a conclusion on the President’s obstruction of justice due to “difficult issues” which called for resolution by the Attorney General. In reality, the Independent Counsel’s report provided a great deal of evidence on obstruction, but declined to offer an opinion on the criminality of that behavior based primarily on the current Office of Legal Counsel opinion that a sitting President may not be indicted. Critics argue that in this situation, Robert Barr loses credibility for offering a summary that aimed to turn a default procedural win into more of a substantive win for the President.

Beyond the Attorney General, all litigators find themselves needing to offer a summary, and will find themselves judged on how that summary squares with the evidence once it arrives. In motions and oral arguments, voir dire, and opening statement, attorneys need to boil down the case and need to avoid some of the same pitfalls. You might think your evidence is fantastic, but if that leads you to over claim in your early summaries, then you can expect to lose some credibility when the evidence comes in. The ABA Journal asked some well-known lawyers about this risk a few years ago: “Don’t stretch the facts and get called out for the stretch later,” Reid Weingarten of Steptoe & Johnson said; and “Never overpromise. You’ll regret overstatements when, at closing, the other lawyer says, ‘Counsel promised you this, but he/she did not deliver,'” added Brendan Sullivan of Williams & Connolly. In this post, I’ll supplement with a few bits of additional advice on guarding yourself against an inaccurate summary.

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