August 13, 2018

Open for Business: Top Posts on Opening Statement

By Dr. Ken Broda-Bahm:

Your opening statement is a lot of firsts. It’s the first opportunity for your judge or jury to hear the story; the first opportunity to hear a preview of your evidence and argument; the first opportunity to see you on your feet as an advocate for a sustained period of time. It is also your first chance to lay out your story and your expected proof in a way that is prepared and largely controlled. It is also your first chance to really look into the eyes of your fact finders and, if not argue, definitely persuade. For all of those reasons, a good advocate makes the most of that opportunity by preparing fully and making an effective first impression. I have written frequently on opening statement. Here are the top posts.

1. Your Opening: Tell It Like a Story, but Tailor It Like a Strategy 

Once upon 1It is now a truism that effective opening statements tell a story.  Now that it is, once again, Blagojevic trial season in Chicago, prosecutors are telling a story of a desperate politician’s attempt to wring personal fortune out of political opportunity, as the defense waits to tell a competing story of an overzealous prosecutor’s efforts to paint simple ineptitude as high crimes.  For litigators, it remains true that the narrative structure is, to borrow and clean up a phrase, “freakin’ golden,” but at the same time, the advice needs to go beyond, “tell a story.” It can seem like simple advice.  After all, we know stories in our daily lives, and we know that they all have a setting, characters, conflict, sequence, and a lesson at the end.  But the simplicity of
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2. Chunk Your Trial Message

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Give me the bite-sized version, break it down into pieces, and tell it to me step-by-step. The brain loves to segment, and the process known as “chunking” seems to be a central part of how we recognize patterns, manage information, and form new insights. A recent perspective on the process is articulated by Cambridge neuroscientist Daniel Bor in his book, The Ravenous Brain (2012). According to Dr. Bor, this ability to chunk is a key feature — perhaps the key feature — in human consciousness. “The process of combining more primitive pieces of information to create something more meaningful,” he writes, “is a crucial aspect both of learning and of consciousness and is one of the defining features of human experience.” The book covers a broad sweep, and it is likely that I’ll be mining it for future posts. But one of the clearest implications of Bor’s thesis is that practical persuaders need to adapt to the brain’s preference
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3. No Blank Slate (Part 1): In Opening, Treat Your Jurors as Motivated Reasoners

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The Plaintiff’s opening statement in the medical malpractice trial began predictably:  This is a case about “incompetence,” and “arrogance,” and “dangerous decisions,” jurors heard.  But rather than fostering even an initial leaning against the doctor, this message brought about a defensive response.  Jurors were left feeling that all their stereotypes about medical lawsuits and plaintiff attorneys were confirmed, and as they listened, they generated responses, reasoning that “doctors are only human,” “medicine is still an art, not a science,” and “even the best efforts don’t guarantee good outcomes.” What led to the defensive response to the Plaintiff’s opening?  The
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4. Right Out of the Blocks: Make the First Few Minutes Count

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The jurors lean forward in their seats a bit as they have their first chance to hear about the case in opening statement. The attorney steps to the lectern, looks directly at the panel, pauses, raises his hand for emphasis and…reintroduces himself and everyone sitting at counsel table. “You’ve already met me, my name is…and I represent….” Then, once the introductions are out of the way, he proceeds straight into the remarks he always uses to congratulate the jurors and say, “Thank you for your service,” and also share a few quotations: “Jurors are really important for a democracy.” With that step accomplished, it is time to hear about what an opening statement is and isn’t: “It isn’t evidence, it is the picture on the top of the puzzle box,” and so on. At this point, nearly ten minutes into the attorney’s time, the jury has noticeably changed. No longer on the edges of their seats, they’ve become accustomed to the realization that an opening statement is neither as exciting or concise as
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5. The Right Introduction: Learn from Fiction

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The cliché words, “It was a dark and stormy night,” come from the opening sentence of the novel Paul Clifford by Edward George Bulwer-Lytton. And when you read the full sentence it comes from, you get a better idea of why it has come to be the quintessential example of a bad opening: “It was a dark and stormy night; the rain fell in torrents — except at occasional intervals, when it was checked by a violent gust of wind which swept up the streets (for it is in London that our scene lies), rattling along the housetops, and fiercely agitating the scanty flame of the lamps that struggled against the darkness.” So, it’s the kind of first line that says to the reader, “Stop now,” so much so that it inspired a yearly contest for worst opening lines, “The Bulwer-Lytton Fiction Contest,” and if you ever have a few minutes to spare, it
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6. Make Your Jurors “Structure Builders”

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My 8-year-0ld daughter is currently obsessed with a game called “Minecraft.” She is using increasing portions of her precious screen time to sign into her “worlds” in order to build and develop elaborate houses and other buildings. As I understand it, the point isn’t to rack up a high score or to “win” anything, it is just to transform a landscape by constructing things.  As she describes it, the game seems to appeal to a basic cognitive need: The need to structure. What the game promotes is similar to what the brain wants to do with any new information. The brain’s preference for order suggests that learning something is not based on acquiring new facts in a simple list-like fashion, but in coming up with a system for categorizing those facts. More important than the data, are the “drawers” we keep that data in. As we
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7. Make Your Opening (Sort of) Like a Closing: A Review of Representative Schiff’s Russia-Election Hearing Introduction

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Well, it has been yet another fascinating week for people like me who are interested in political communication. This week, Congress kicked off hearings dealing with some explosive charges regarding a foreign country’s influence on our election, and possible coordination with a political campaign. On Monday, Adam B. Schiff, who represents California’s 28th Congressional District in the U.S. House of Representatives and is a ranking member of the House Permanent Select Committee on Intelligence, provided a compelling introduction when opening the hearings looking at contacts between President Trump’s campaign and Russian officials.  As I watched his remarks (video is available here, and a full transcript is here), it reminded me of a good opening statement in trial. Of course, there is an important difference between an
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8. Take a Lesson from the Conrad Murray Defense: Don’t Make Promises in Opening that You Can’t Keep

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It is generally a mistake to change strategies in the middle of trial.  Dr. Conrad Murray, the personal physician hired to care for Michael Jackson during the rehearsals for his comeback tour, is now in trial on involuntary manslaughter charges in the entertainer’s death, based on his administration of Propofol, a drug usually administered only in hospital settings.   Over the course of more than a year leading up to the trial, the theory the defense touted in the press has been that the singer, unable to sleep, dosed himself with the powerful sedative by drinking it in a glass of juice. In telling the jury the same story in opening statement, defense attorney Edward Chernoff said, “When Doctor Murray left he room, Michael Jackson self-administered a dose of Propofol that, with the lorazepam created a perfect storm in his body that killed him instantly.”  But the appearance, at least, is that this theory is
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9. Stop Introducing Your Defense Case By Asking Jurors to Set Aside Sympathy

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It is easy to imagine what you are likely to hear in the first few moments of the defense opening when the case involves a serious injury or death: Ladies and gentlemen of the jury, everyone here knows the pain and loss that Ms. Smith has experienced. It is a tragedy and it is only human for us to feel some sympathy when we hear her story. But your decision in this case needs to be based on the evidence and the law, not on emotion. So I need to ask you to set aside any feelings of sympathy you may have for Ms. Smith as you hear our side of the case.
That is a cliché, but the general request is a pretty common way for defendants to begin. Even as it feels a little trite, defense attorneys usually believe they need to do it. On the heels of the plaintiff’s emotional opening, it is understandable that
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Other ‘Tops Posts’ Posts: 

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Image credit: Main image: 123rf.com, used under license. Credit for other images in each individual post

August 9, 2018

Expect Jury Leaders to Act as Individuals, not Representatives

By Dr. Ken Broda-Bahm:

What do we expect of our leaders? If you think about it in a political context, and if you get past your initial cynical thoughts about self-interest and corruption, then perhaps what you hope for is that our leaders make decisions with us in mind: that they think about what a majority of us might want and benefit from. That staple of representative government — the idea that leaders think in terms of the group when making decisions that affect the group — might unfortunately be at odds with human nature. Based on some recent social science, it turns out, your cynical thoughts might have been right after all. The research looks at the way leaders make decisions, and it should influence how we adapt our communication to a group setting like jury persuasion.

The study (Edelson et al., 2018) looked at the decision making of likely leaders in a setting where they had to either make a choice alone or defer to a group. The study that when the results tended to influence the whole group, more people, logically enough, tended to defer that decision to the group. However, those showing the strongest leadership traits, didn’t. As summarized in a piece in National Public Radio, “Leaders make decisions for a group in the same way that they make decisions for themselves. They don’t change their decision-making behavior, even when other people’s welfare is at stake.” What this suggests is that what makes someone a leader is not thinking in terms of what is good for the group. Instead, what makes someone a leader is thinking in terms of yourself, but believing that what is good for you is also good for the group. Of course, that just describes how leadership occurs, it doesn’t differentiate between good or bad leadership. But, for good or for bad, there is going to be leadership in your jury. Understanding that fact means being sensitive to who those leaders might be, and remembering that, ultimately, you are persuading individuals, not a group. In this post, I’ll share a few thoughts on identifying and adapting to leaders.

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August 6, 2018

Measure Your CSI Effect

By Dr. Ken Broda-Bahm:

We all recognize the scene from a crime drama. Sometime late at night, under the dim lights of the state’s forensic lab, the results emerge from the sophisticated lab equipment: It’s a match! There is now no doubt whatsoever that we’ve found the killer. In the genre of criminal process drama, that moment is compelling because it plays to an attitude about science suggesting that we are now equipped with tools that are free from the frailties of human recollection and subjectivity, and the facts themselves are able to speak to us directly in a way that is unambiguous and unerring. Of course, that isn’t quite true, but that attitude can come into play, not only in criminal cases, but in every case that includes scientific evidence. Often called the “CSI effect,” the attitude is defined by heightened expectations for the value of forensic science, even to the point of downplaying other more common forms of proof.

The existence and extent of this attitude is often a point of contention among trial consultants and attorneys. Those who see it as just a media effect that comes from watching too many crime dramas tend to downplay it: People know it is entertainment, and in our fragmented media market, it is not as though everyone is watching these shows. But those who see it as a broader attitude recognize that there is some reality behind the “CSI Effect.” Understanding and measuring that attitude can be essential in the criminal arena, particularly when you don’t have unambiguous DNA evidence. In a civil case including scientific evidence on, for example, medical diagnosis, product dangers, or environmental processes, it can also be important to know when people might be bringing unrealistic expectations into the courtroom. In this post, I’ll take a brief look at what a handful of recent studies have to say about this bias.

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August 2, 2018

Expect Threat Perception to Increase, Even as Actual Threats Decrease

by Dr. Ken Broda-Bahm:

Let’s say you’re a plaintiff’s attorney, and let’s also say you have a particular niche in personal injury law: amusement park accidents. And, as much as you might feel that primal fear on the “Mind Eraser” high-speed roller coaster, amusement park accidents are actually pretty rare. Thanks to safety standards and frequent inspections, they’re even declining. Does that mean your job as a plaintiff’s attorney winning cases in a courtroom is getting harder? Intuitively, you might think so. But even though the business development side of finding cases could be getting tougher, the task of winning those cases in a courtroom would actually be getting easier. 

The reason for that comes down to the psychology of how we assess risks, and the fact that as the prevalence of a problem decreases, it can counterintuitively be perceived as a bigger problem. Based on research reported in a recent release in ScienceDaily“researchers show that as the prevalence of a problem is reduced, humans are naturally inclined to redefine the problem itself. The result is that as a problem becomes smaller, people’s conceptualizations of that problem become larger.” A team of psychologists at Harvard University (Levari et al., 2018) looked at a variety of tasks and found that people tend to have a floating perception of a problem, and as problems became more rare, people responded by expanding their sense of what is noticed and what counts as a problem. This has some important implications to the ways jurors will think about the kinds of problems that often serve as the foundation for litigation.

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July 30, 2018

To Understand Others, Rely on Conversation Not Speculation

by Dr. Ken Broda-Bahm:

So you are sizing up that potential juror, wondering what she is probably thinking about you, your client, and your case. You think, “African-American woman, lives in the city, works for the government…I’ll bet she considers my client to be just one more rich and out-of-touch corporation, abusing the people and acting like they’re above the law.” This kind of perspective- taking is probably inevitable, and it also tracks with some long-term advice about communications: If you want to adapt to your audience, then figuratively walk a mile in their shoes and think about how they would see it. That approach is straight out of Dale Carnegie’s, “How to Win Friends and Influence People,” a book that influenced thousands of other books on the basics of persuasion. But is it correct? The research suggests, no, it isn’t.

According to recent research discussed in ScienceDailythis kind of speculative adaptation seems to work, since people can be quite confident in the assumptions they make about others. But an exhaustive series of 25 laboratory experiments suggest that it doesn’t work. The predictive assumptions that we make about another’s mental state are generally not going to be accurate. And, more than that, there is a better option available. If you want to know what the woman in the scenario above is thinking, the better course is this: Ask her.

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July 23, 2018

Address Identity and Not Just Belief

By Dr. Ken Broda-Bahm:

Who is a juror? Experienced legal persuaders know a juror isn’t just a passive receptacle for your arguments, and isn’t just an instrument, a route or obstacle to your preferred verdict in the case. Instead, a juror is fully human, a subject not an object, and possessed of their own particular identity. But what is that identity? It is the way they see themselves, the role they’re fulfilling, the person they want to be. And research is increasingly showing that in this polarized age, that identity can be quite tribal in being aligned to a particular group. But it can also be somewhat flexible, with some identities being more salient and some being less salient in a given situation. To those who study the persistence of belief and the resistance to attempts to persuade a person away from that belief, identity matters a great deal.

The power of identity in attitude formation and change has given rise to what has been referred to as an “identity-based model of belief.” An essay opinion published earlier this year in the journal Trends in Cognitive Sciences and discussed in a ScienceDaily release, describes this model as embodying the idea that, particularly when our beliefs are threatened, we tend to value our identity more than our accuracy, and that leads people to accept some pretty questionable beliefs and values. New York University psychologist Jay Van Bavel explains, “Having a really high-quality news source doesn’t matter that much if we think the people producing it belong to a different group than us. They might have the best writers, the best investigative journalists, the best editorial standards, all the stuff that we would normally care about.” But we will stop valuing those factors if we think they risk leading us away from our tribe.

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July 19, 2018

Don’t Gag the Jury (After the Trial)

By Dr. Ken Broda-Bahm:

At the end of a two-week trial last Spring, in the case of Montone v. City of Jersey City, a federal jury awarded nine former city police officers $2.17 million in a dispute over promotions. Three weeks later, counsel for the city’s former police chief receives a letter from one of the jurors:

I was wondering if you’d like to know a few details that pushed the jury to decide in favor of Montone and the Astriab plaintiffs. I know if I spent as many years as you did on a case, I’d want to know what happened!

If you’re that attorney, what do you do? Eagerly pick up the phone and call that juror back? Not so fast: In this case, a local rule prevents interviews, even post-trial, absent a showing of good cause. In this case, however, the juror initiated the contact, so it is a little like running into a former juror in a public place and responding when the former juror strikes up a conversation. So the attorney takes it up with the court, in this case U.S. District Judge Stanley Chesler.

And that is where the conversation ends. The judge declines to permit the attorney to respond. As related in an article in the New Jersey Law Journal, the judge’s opinion and order denying that contact interpreted the rule as barring even a response to the juror absent a reasonable showing that there had been some kind of misconduct. The privacy, integrity, and finality of the process, he reasoned, required keeping the deliberations in a black box, even when it is the former juror him or herself (the name was redacted in court records) who is the one wanting to open that box to daylight. In this post, I’ll share a few thoughts on views like this that seek to keep a nearly airtight lid on the jury even after the trial. I believe it is better to keep things tight on the side of what would warrant a retrial, but not on the side of simple communication and education.

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July 16, 2018

Discovering Bias: Dig, Don’t Bury

By Dr. Ken Broda-Bahm: 

Canada has an odd system for determining juror bias in some cases. Referred to as a “trier’s process,” it involves the section of two jurors, who do not otherwise go on to become jurors in the case, but are instead charged with determining if the grounds for a challenge for cause of another panelist is valid or not. While I have heard of similar steps tried experimentally in our courts, the idea of jurors judging other potential jurors remains very unusual to those of us in the United States. But we may be able to take a lesson from it. A recent article in a publication “The Conversation” is written by McMaster University professor Ameil Joseph, a critical race scholar who served in the role as a “trier” in a jury selection that involved issues of race.

The case was a second degree murder trial in Ontario arising from a shooting and killing of an unarmed man as he was allegedly breaking into a truck in the accused’s driveway. The issue of race came up because the Defendant was white and the deceased was a member of the Six Nations tribes. When professor Joseph was asked to assess the others on the panel for potential racial bias, that assessment was based on one question: “Would your ability to judge the evidence in this case without bias, prejudice or partiality, be affected by the fact that the deceased victim is an indigenous person and the person charged with this crime is a white person?” While the process was viewed in the media as being better than other cases that did not address racism at all, the trier in this case writes that it seemed quite insufficient. “The question,” he writes, “implies that acknowledging people’s social identities, and recognizing the relations that exist between social groups, is a form of contamination or bias.” Ultimately, basing the process on one question about the potential juror’s perception of their own bias is a symbolic rather than substantive way of addressing the real complexity of attitudes and experiences having to do with race. The lesson for our system is that we may be guilty of that as well, and can do better.

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July 12, 2018

Account for Social Exclusion in Employment and Whistle-blower Cases

By Dr. Ken Broda-Bahm:

There is often something distinctive about the person bringing a case. Whether they are the victim in a discrimination or harassment case, a whistle-blower in an employment case, or a number of other case types, their act of coming forward has marked the individual as outside the social circle of a corporation or group. Whether that exclusion is the cause of the claim (for example, ostracism is an increasingly common form of harassment) or an effect of the claim, that separation is going to be part of the  identity of that party or witness. And this outsider status will influence how that person is viewed by jurors. Are they a maverick or a malcontent, or something in between? The answer will add or detract from their credibility.

An interesting new study suggests that the way they are viewed will, in some surprising ways, depend on their similarity to the group that has excluded them. A team of researchers from the University of Basel (Rudert, Sutter, Corrodi & Greifeneder, 2018) published the article in the current issue of the Journal of Personality and Social Psychology. When presented with a number of different scenarios, research participants viewed social exclusion as worse when the person is visibly different from the rest of the group — different not just in the factors that you think might matter in litigation (e.g., race, gender, or age) but different even on superficial factors like hairstyle. When the excluded individual is similar to the rest of the group, the research participants seem to reason that the excluded individual must have brought it on themselves somehow. In this post, I’ll share a few thoughts on how this can influence the credibility of the ‘odd man out’ in litigation.

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July 9, 2018

Know Your Venue: Polling Still Works

By Dr. Ken Broda-Bahm:

Legal persuaders who want to know their venue are interested in polls. They keep a finger on the national pulse, and especially on the way that pulse is registering at the local level. In addition to helping you know your potential jurors, that data on public opinion can also serve as a basis for expert witness testimony, and can matter in a change-of-venue motion. Sometimes, it can be used to assess the specific attitudes that will matter the most to the jury selection and persuasion in your own specific case. Recently, however, doubts about the accuracy and reliability of polling have peaked. Following the 2016 election, results that seemed to have surprised everyone, including the pollsters, it has become common to lament the “death of data,” and to observe that nearly every cause and candidate seems to have a poll showing itself as the most favored. That prompts the question for legal persuaders: Is it safe to rely on polling data?

A recent look at the accuracy of political polling around the world suggests that the answer is still a cautious “yes.” Research coming from the University of Houston tested models based on global electoral polling data, and show that data correctly picks more than 90 percent of election outcomes around the world. The study published in the journal Science also looked at other factors, like incumbency and the economy, and while we can still say “It’s the economy, stupid,” the analysis found that the best predictor was still the polling (Kennedy, Wojcik & Lazer, 2017). Of course, a finding like that is only surprising in a context of reduced faith in public opinion research. As the study’s lead author, Ryan Kennedy, notes, “It would be a mistake to abandon the enterprise. The future really is in trying to make better quantitative predictions.” Modern polling faces modern challenges, but don’t count the poll out just yet. In this post, I’ll take a look at both the reasons for distrust and the reasons for confidence, and what both say to the legal persuader.

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