Persuasive Litigator

Counter the Cheap Shot

By Dr. Ken Broda-Bahm: 

It happens sometimes in an argument: You know the claim you're hearing is false, but you also know that it sounds like it could be true, and it'll be a lot harder to refute the argument than it was to make it in the first place. Measured in time and effort, your adversary's initial argument is quite cheap while your response to it is very expensive. That difficulty is common in litigation, where truth is often on the side of the involved and analytical explanation rather than on the side of the compelling yet simplistic claim. Responding to that situation takes some care. Rather than just hoping your audience can follow the complexity, or giving up and becoming just as glib as your adversary, the trick is to help your listeners rise to the challenge. The trick is to use good teaching to make your explanation as simple as possible without being simplistic. 

I'd like to use a current political example to illustrate both the problem and the solution. Through the 2012 Presidential election and beyond, we've seen continuing argument over the Affordable Care Act, also referred to (either derisively or admiringly) as "Obamacare." The new argument to emerge in the last couple of weeks is that Congress is trying to exempt its own staff from the ACA mandates. Attributing the story to "sources in both parties," Politico on April 24th noted, "high-level, confidential talks about exempting lawmakers and Capitol Hill aides from the insurance exchanges they are mandated to join as part of President Barack Obama’s health care overhaul." Based on this story, "they risk being dubbed hypocrites by their political rivals and the American public." Yes, they certainly would risk that. If Congressional Democrats were to apply the law to everyone except their own staff, it looks like both an admission of the Act's flaws as well as an appeal for special favors. The reality, however, is a lot more complicated and Annenberg's Pulitzer Prize-winning FactCheck.org has labeled the claim "false." The problem is that the reasons why it is false require a bit of explaining. This post uses this curent political argument as an example of the kinds of argument seen in litigation, where a charge is easily made, yet the refutation is difficult. 

Beware the Anti-Theme

By Dr. Ken Broda-Bahm: 

We've written frequently on themes: those little nuggets of language and meaning that distill a case to its persuasive essence. As consultants, we create themes even more frequently, trying to find the right message to leverage a case's greatest strengths while minimizing or reframing its most important weaknesses. By definition, a theme is a simple message that helps an audience see your case in its most favorable terms. But based on some recent research, there is also a mirror image of that: an 'anti-theme' in the form of the condensed message that would turn off your audience and turn them away from your case. Considering these anti-themes when working on the contours of your message can help you know what to avoid and what to preempt in your trial strategy. 

The study (Gromet, Kunreuther & Larrick, 2013) focuses on consumer choices in lightbulbs and found that buying behavior could be substantially reduced in some audiences just by adding a single, apparently positive message to the packaging. While the question of "What sells an audience?" naturally garners much academic and practical attention, the parallel question of "What kills the sale?" should merit equal attention. And this focus fits well with a goal I've written about before: the need to use those forces that attract an audience toward your message (alpha strategies), as well as the need to address the forces that potentially repel an audience from your message (omega strategies). This post applies this approach-avoidance perspective to the question of themes. In addition to looking at the research on the words that can wound your cause, I'll also share some of my own thoughts on common anti-themes that could play a role in a jury's or judge's response to your case. 

Check Your Jurors' Power Level

By Dr. Ken Broda-Bahm: 

An Iowa jury just handed down a $240 million verdict on behalf of 32 mentally disabled men who lived and worked for decades at a turkey processing plant and were paid just $65 a month. That verdict, the largest ever in an EEOC case, captures the jurors' feelings about such blatant exploitation, but in addition to anger, the judgment also signals one other critical ingredient: a feeling of power. As one juror noted, she wanted to send a message: "We wanted to let people out there know that, in the future, this cannot happen." That sense of power can also be evoked when a jury returns a defense verdict. For example, last year a Manhattan federal jury found in favor of Citigroup and against the Securities and Exchange Commission. In that case, the jurors noted, "We were afraid that we would send a message to Wall Street that a jury made up of regular American folks could not understand their complicated transactions and so they could get away with their outrageous conduct." So they issued a statement along with their verdict which was read aloud by the judge: "This verdict should not deter the S.E.C. from continuing to investigate the financial industry, review current regulations and modify existing regulations as necessary." In other words, "Change the law and we'll get them next time."

What unites these examples is that in each we are hearing the voice of an empowered jury. In the right circumstances, a jury's verdict is not simply an answer to a legal question, it is a message delivered by a body that has come to feel that it has the legitimate power to deliver that message. Power, or more accurately the feeling of having it, is an important dimension to consider in analyzing any audience. So this post is going to take a closer look at this concept of juror power. Of course, a jury has real power, subject to the limits of appeal, but in given situations they can be either more or less sensitized to that fact. Becoming aware of that power can lead to more dramatic decisions, as in the examples above, but based on some new research, it can also effect some important changes to the ways jurors think. 

See the Process and Not Just the Product in Deliberation

By Dr. Ken Broda-Bahm: 

Over the weekend I gave a presentation at a law firm retreat in Palm Springs. The presentation drew from a recent mock trial in an insurance dispute and the deliberation video clips I was playing could've been seen as a parade of mistakes: jurors ignoring instructions, flagrantly applying their own experience and knowledge, and framing the dispute within their own terms instead of the frame provided by the presenting attorneys. After about an hour of this, one attorney in the audience spoke out: "Do you still," he asked, "have faith in a jury to deliver a good verdict?" In response I said, "Yes, I do," not only in reaction to current political questions over whether the jury can do the job, but also based on a generation or more of social science research summarized and advanced in an article currently on my nightstand. In short, even when we might disagree with the product that a given jury hands down in the form of a verdict, jurors are following a process that is valid, valuable, and to at least some extent, predictable. 

The article on my nightstand was written by two communications professors from University of Colorado and Pennsylvania State University (Sprain & Gastil, 2013). They reviewed the literature on what it means to deliberate and conducted their own study focusing on the survey responses provided by more than a thousand jurors post-trial. From that they developed an interpretation of the 'rules' jurors apply when trying to come to a verdict. The article shares a set of simple but important findings and conclusions that should not only increase our faith in the jury, but should also inform our practice when dealing with jurors. This post takes a look at the study and spotlights four of the conclusions that should matter most to the practicing litigator. 

Persuasive Litigator Hits 300 Posts: The Top Ten of the Third Hundred

By Dr. Ken Broda-Bahm: 

With the writing of the 300th post, we are glad to have stuck with a two-posts per week schedule since January of 2011. As we hit this third milestone, I took a look at the roundup of posts that Google Analytics declares the most frequently read posts in the most recent set, and the list appears to offer a little of everything. If there is a theme that ties them together, I think it is this: The readers gravitate toward the unconventional. The posts drawing the most eyes have focused on the following: 

• Applying ancient rhetoric to today's legal persuasion (the top post!);
• A defense perspective on the hottest plaintiff's approach (the Reptile); 
• Several modern cognitive science discussions of 'truthiness,' prior beliefs, decisional mindset and visualization;
• A conversational essay about a conversational brief;
• Unexpected implications of common tools like analogies and graphics;
• A discussion of settlement instead of trial persuasion.

Whether you, like me, are curious about what readers read, or if you're just looking to catch up on any hits you might have missed, here is the top ten from the last hundred.