January 14, 2019

Think Carefully About Disparate Impact in Voir Dire

By Dr. Ken Broda-Bahm:

Thanks to Batson and associated cases, we now have an uneasy working rule on voir dire in U.S. courtrooms: In exercising peremptory strikes, you can pick and choose on any basis…other than discriminatory ones. Basing strikes on race, ethnicity, gender, nationality and some other demographic categories is not allowed. That prohibition, however, is widely considered a paper tiger because for the attorney exercising the strike, all that needs to done if that strike is challenged is to come up with a plausible non-discriminatory basis for the strike. And that need not involve outright lying to the court, it could simply involve implicit bias. For many critics, that means that, in practice, as long as a reason passes the “delivered with a straight face” test, the strike it is allowed. 

This focus on targeting only admitted discrimination is unusual, because in most other contexts, discrimination can occur in two ways: discrimination based on purpose and discrimination based on disparate impact. If a given action has a disproportionate impact on a specific group, then it is potentially actionable discrimination. The original Batson case targets affirmative intent to discriminate, not disparate impact. Subsequent decisions seem to have largely upheld that focus on intent rather than effect. However, some (Baldus et al., 2012) have argued for a broader perspective, including the greater use of statistical evidence in proving Batson claims. Instead of looking at the issue legally, my goal is to look at the normative  question: Should disparate impact be used as a reason to challenge a party’s use of strikes? In other words, what should we do with questions that target a legitimate bias while also having a disparate impact based on race or some other protected category? In this post, I’ll unpack what that means and consider some arguments on both sides of the question.   
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January 10, 2019

Experts: Complete the Credibility Checklist

By Dr. Ken Broda-Bahm:

So you’re picking an expert witness for your case. What kind of person do you want? Someone with the highest credentials from the best institutions? Someone with a lot of on-the-ground experience in this area? Someone who is able to teach effectively? Someone who just comes across as an approachable person who you’d want to have a beer with? The answer to all these questions is, of course, yes. Particularly on a complex case, an expert carries a heavy load and you ideally want someone with all of these qualities. If you had to choose one, or if you’re looking for a tiebreaker, focus on the ability to teach. But the more we learn about expert testimony, the more the research tends to show that all of these features matter. 

A number of years ago, for example, researchers (Ivkovic & Hans, 2003) conducted in-person interviews with jurors who had just completed service on a civil trial. In part, they wanted to know what was important in their evaluation of the strength and the usefulness of expert witness testimony. As a result of that research, they constructed a model of all the factors that matter, with twenty specific qualities arranged in five general categories. In this post, I will share a simple illustration of this model (developed by our graphic designers), and include a textual checklist of the factors. This checklist should be useful for the attorneys who are hiring and preparing experts, as well as for the experts themselves.  

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January 7, 2019

Careful Defendants, the ‘Reverse Reptile’ Could Be a Boomerang

By Dr. Ken Broda-Bahm:

The Reptile approach to trying plaintiffs’ cases has been around for a decade. It is now expected that many of those seeking damages in products, medical liability, and other personal injury cases, will use a persuasive approach that attempts to awaken jurors’ reptilian fear response and instinct to protect the safety of themselves and their community. While the approach is not new, defendants continue to search for the best ways to respond. And one question in that search is whether defendants should become Reptiles themselves. Is this a case of “Fight fire with fire,” or is it more a case of “The master’s tools will never dismantle the master’s house”? One recent article sides with the first of those sayings. In the December issue of DRI’s For the Defense publication, a defense lawyer and two consultants (Motz, Kanasky & Loberg, 2018) advocate the “Reverse Reptile” as a technique for the defense in many cases. Looking at the article, it is not so much a reverse Reptile as much as it is a case of the same Reptile tactics simply being directed at new targets: co-defendants or the plaintiffs themselves. The foundation is still the “safety rule” and the simple chain of yes/no questions to get a witness there. As the authors summarize the defense message in a construction case, “Safe workers must do X, Y, and Z, and coincidentally, the plaintiff (or the co-defendant) violated X, Y, and Z on the day of the incident.” 

The advocates of the “Reverse Reptile” do include some qualifiers, noting that the idea of tying plaintiffs and co-defendants to their own safety rules is not useful in all cases, but are generally limited to cases where there is a clear distribution of fault with some responsibility reasonably resting with other defendants and with the plaintiff. I would go farther, however, and caution that in most or nearly all cases, defendants should be very careful about embracing the language and the logic of the Reptile. I believe those serious reservations are warranted because of the many ways that a defendant’s use of Reptile tactics can backfire on the defendant, reinforcing some of the Reptile’s core principles and, ultimately, helping the other side. In this post, I will outline those ways it could boomerang. 

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January 3, 2019

Ask If Your Jurors’ Causal Thinking Is Based on Facts or Possibilities

By Dr. Ken Broda-Bahm: 

In one scenario, a worker is on a ladder, painting a ceiling at a local mall. The mall’s management did not order enough safety lines and the worker decides to go ahead and paint without one. After falling and being seriously injured, he sues for damages. The experiment indicates that responsibility depends on where jurors focus their “if only” thinking. “If only management had ordered enough lines” points responsibility to the defense, while “If only the worker had chosen not to work without a safety line” points responsibility at the plaintiff. Results in testing that scenario show that the direction of the counterfactual (belief about something that didn’t happen) determines the responsibility. 

But in another experimental scenario, a driver takes an unusual route home and is struck and killed by a drunk driver. In that scenario, the most easily available counterfactual is that the driver takes his usual route home and isn’t killed. But in that situation, research participants still had no trouble blaming the drunk driver rather than the inconsistent commuter. Studies on both scenarios show two routes to determining responsibility: Sometimes we’ll base it on the easiest counterfactual, and sometimes we won’t. Because these settings had not been researched in a civil trial context for many years, new research (Cantone, 2018) set out to determine the conditions under which responsibility will be based on a counterfactual consideration of possibilities versus on a factual analysis of responsibility. The results should be of practical interest to anyone wanting to know more about how their jurors will think about causation. 

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December 31, 2018

Beware of Nonverbal Pseudoscience

By Dr. Ken Broda-Bahm: 

The witness on the stand pauses before answering, then looks briefly up and to the right while giving a response. While listening to the next question, she places a finger over her lips, angles her head slightly, and raises one shoulder a bit higher than the other. Does any of that mean anything? To some who hold themselves out as nonverbal communication experts, each gesture and movement can be broken out and interpreted as having a distinct and defined meaning. But, by and large, those interpretations will not be supported by valid and replicable science. That doesn’t always stop practical communicators — including attorneys, witnesses, and even jurors — from putting stock in the idea that our nonverbal postures, movements and gestures carry definite meaning. Even the phrase “body language” implies that physical action can be interpreted with precision comparable to verbal speech. The problem is that it cannot.   

To be sure, there is real science with reliable methodology and published in peer-reviewed journals on nonverbal communication. But there is also a lot of pseudoscience: claims that may come with the trappings of science but lack the open data, the methods, and the protections of science. In this post, I’ll take a look at why this area is especially rife with pseudoscience and consider one recent example that’s been pitched to lawyers and law enforcement as a way to read nonverbal communication and assess credibility. I’ll also draw some more general conclusions about the reliability and use of knowledge on nonverbal communication. 

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December 27, 2018

Share the Stakes in Your Mock Trial

By Dr. Ken Broda-Bahm: 

We know that once jurors make it through the gauntlet of jury selection and find themselves seated in the courtroom’s jury box, they’ll often be ennobled by their task and take it quite seriously. But consider the mindset of the mock juror. They’ve come in for a one-day project in a hotel or a one-way mirror research facility, and they know that it is an exercise, not a trial. That knowledge might make them casual. Knowing that their verdicts won’t actually take effect, they could treat the freedom at issue in a criminal trial as frivolous, and the damages in a civil trial as just so much Monopoly money. 

If mock jurors have the mindset that it doesn’t really matter, that certainly could influence the reliability of the results. And there is some support for that intuition. In a recent compilation on jury psychology (Kovera, 2017), Northwestern law professor Jonathan Koehler and U.S. District Court law clerk John Meixner write about the problems in simulating a jury: 

“Several aspects of the jury’s role are likely almost impossible to simulate in the lab. First, real trials are typically high-stakes affairs. The decisions juries make can implicate large amounts of money in civil cases and determine the freedom of defendants in criminal trials. Mock jurors in simulations know that no real consequences will result from the choices they make. Whereas jurors in real cases may agonize for hours or even days over their decisions, mock jurors contemplating their hypothetical decisions will likely not do the same.” 

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December 24, 2018

Twas the Night Before Trial

By Dr. Ken Broda-Bahm: 

Twas the night before trial, when all through the office,

No settlement was stirring, so the war room was raucous;

 

The filings were all filed with the court clerk with care,

In hopes that the judge would finally be fair.

 

Trial counsel then nestled all snug in their beds,

While visions of summary judgment danced in their heads.

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December 20, 2018

Expect Common Ground on Green Energy Attitudes

By Dr. Ken Broda-Bahm: 

It has become commonplace to note that, as a country, we seem to be more divided than ever – divided on politics, education, rural-urban living, religion, you name it. But topics relating to the ways we generate energy and the extent to which we should protect the environment in the process might be assumed to be at or near the top of that list of divisive issues. But that’s not really the case. Based on some new research, American public opinion is showing an unexpected convergence on the topic of “green energy,” or forms of generating electricity that are seen as less harmful to the environment. As detailed in a ScienceDaily release, the research study (Horne & Kennedy, 2018) shows that conservatives and liberals both believe that solar power and other forms of renewable energy are smart choices and help in promoting self-sufficiency. The main reasons, however, within each group still differ. 

Attitudes about energy generation can matter in many kinds of litigation. As the green energy sector continues to expand, land use or nuisance litigation stemming from large-scale solar, hydro, or wind farm operations, for example, is becoming more common. Beyond these newer trends, these attitudes can also apply to the more common cases involving royalty, environmental legacy, or personal injury involving the “old” fuel sources like oil, gas, and coal. On any case where there’s a role for attitudes about energy generation, environmental protection, or even consumer choice, the convergence of liberal and conservative views on green energy could be significant. In this post, I’ll take a look at the survey as well as a couple of implications. 

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December 17, 2018

Don’t Fret, Your Jury Can Handle Some Complexity

By Dr. Ken Broda-Bahm: 

So the case is complex. Maybe it involves a tricky multi-stage legal question. Or maybe it requires understanding some arcane point on patents. Or perhaps it requires grappling with the workings of an unfamiliar technology. In these cases, is the jury up to the task? It can be tempting to feel like you would be better off with a judge or an arbitrator. After all, as another lawyer, that person is a member of your ‘tribe.’ Even if they aren’t any more trained in the specifics than a jury would be, they’ll at least have a better attention span, an analytical mind, and high intelligence, right? Not necessarily.

Reading a recent post in the PatentlyO blog, I came across a recent decision from Judge William Young of the US District Court in North Dakota, Eastern Division, looking at the question of whether a jury could adequately address the question of piercing the corporate veil. The written opinion in the case, Marchan v. John Miller Farms, Inc. (3:16-0-357-WGY D. N.D. Dec. 11, 2018), is pure fire. The judge writes, “It takes a special type of arrogance simply to conclude that American jurors cannot handle the veil-piercing issues presented here.” He goes on to argue more broadly for the continued relevance of the civil jury: “Quite simply, jurors are the life’s blood of our third branch of government. It is not too much to say that a courthouse without jurors is a building without purpose.” There is more, and Judge Young’s explanation is worth quoting at length. So in this post, I will do exactly that, and then share a few additional reminders on the ways that jurors ought to be trusted with complexity. 

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December 13, 2018

Question the Legal Fiction of the ‘Reasonable Person’

By Dr. Ken Broda-Bahm: 

The idea of something being a “Legal Fiction” is that it is treated as true for the purposes of the law, but it is not literally true. “A corporation is a person” is perhaps one of the best known of these legal fictions, and one that generates passionate disagreements. As the familiar meme goes, “I’ll believe a corporation is a person when Texas executes one.” But even without popular acceptance, the legal force of it remains. Of course, people outside of the law have another name for a legal fiction: “a lie.” Or maybe in today’s age, it is “fake law!” 

One legal fiction is the familiar “reasonable person standard,” or the idea that negligence or some other fact can be assessed by determining what a reasonable person in the same or similar circumstances would understand, do, or refrain from doing. It matters in many contexts, one of those being the definition of sexual harassment in the workplace. There is a two-prong subjective/objective test for determining it. The subjective test is whether it is unwelcome and sufficiently severe to the complainant. And the objective test is whether, from a reasonable person’s perspective, the behavior would also meet that standard. But is the objective prong really objective? According to a new study from researchers at the University of Nebraska, Lincoln (Wiener & Vardsveen, 2018), no it isn’t. The idea that there is any uniform nationwide standard that we can call the “reasonable person” on such matters is also a legal fiction. In this post, I’ll take a look at the study and its implications. 

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