October 11, 2018

Distinguish Between Bias and Belief

By Dr. Ken Broda-Bahm:

The Massachusetts Supreme Judicial Court just heard oral arguments seeking to overturn a drug-possession conviction in the case of Commonwealth v. Quinton Williams. The Defense had appealed based on the judge’s dismissal of one potential juror who shared a belief that the criminal justice system is unfair towards young black men. The juror reported that she works with low-income youth, and told Judge Daniel Hourihan of Brockton District Court, “Frankly, I think the system is rigged against young African American males.” When asked if that would interfere with her ability to be fair and impartial, she initially said, “I don’t think so,” but later added, “I don’t think I can put it aside” and “I think that’s the lens that I view the world through.” Pressed for assurance, she said, “I think I can be unbiased” and “I think I can listen to the evidence” before answering “probably” to the question of whether she would look at the case differently as a result of that belief.

The judge dismissed her for cause, with the prosecution’s concurrence, and over the Defense objection. Ultimately, it seems safe to say that the excused juror was accurate — accurate not only about demonstrable bias in criminal justice system outcomes, but also accurate in speaking about the role of her beliefs and attitudes serving as a lens and not being something that could be “set aside.” In this example, it’s a belief that, as the Defense says, is “far closer to fact than opinion.” This is a particular concern when it becomes a commonly-held belief based on some commonly-known facts. As appellate justice Kimberly Budd asked during oral arguments, “Don’t you then have to worry about keeping off a cross-section of people who may believe the system isn’t fair to black people?”

Continue reading

October 8, 2018

Consider More Paths

By Dr. Ken Broda-Bahm:

“Should I Stay, or Should I Go,” ask The Clash. There’s a basic tendency to see our decisions in a binary fashion: There are two choices, and choosing one excludes the other. But for those seeking to understand and improve human decision-making, there are reasons to believe that this is not the way to optimal decision-making. Steven Johnson is a noted business, technology, and psychology writer, and author of the forthcoming book, Farsighted: How We Make the Decisions that Matter the Most. According to Johnson in a recent New York Times article, most people, in most situations, will artificially restrict their range of options when making decisions, even and perhaps especially big decisions, and that restriction leads to less effective decision- making. “One important insight that has emerged from this research,” he writes, “is the importance of generating alternatives to any course of action you are considering.” The greater the number of options or paths ahead of us, the better our decision-making can be.

The litigation arena, of course, is an arena of decision-making. As we get ready for trial or mediation, there are countless choices that need to be made in how you frame and focus the case. And as we move toward actually arguing the case, we are shifting the decision-making to your judge, jury, or mediator, and make second-level choices on the choices we’ll offer to our decision makers. So, in both preparation and presentation, the range of choices matters. The implication of Johnson’s perspective is that in both arenas, litigators should avoid artificially restricting their options and pay attention to the number of paths considered and offered. In this post, I’ll unpack the implications of Johnson’s article and offer some places — more than two — that you can take it.

Continue reading

October 4, 2018

Understand the Memory-Encoding Role of Heightened States

By Dr. Ken Broda-Bahm:

During Christine Blasey Ford’s testimony last Thursday to the Senate Judiciary Committee, at one point I imagined that millions of Americans were doing a double take at her use of the word “hippocampus.” When the witness was asked, as part of Supreme Court nominee Brett Kavanaugh’s confirmation hearings, what she remembers most about the assault she is claiming, she replied, “Indelible in the hippocampus is the laughter, the uproarious laughter between the two.” The statement is powerful, but the technical language may have been surprising — until, that is, one remembers that Dr. Ford is a research psychologist. The question has come up, 36 years later, why does she clearly remember some details more than others? President Trump, in fact, harped on that question at a political rally on Tuesday night: “How did you get home? I don’t remember. How’d you get there? I don’t remember. Where is the place? I don’t remember. How many years ago was it? I don’t know.” Trump continued as his audience laughed and applauded. “What neighborhood was it in? I don’t know. Where’s the house? I don’t know. Upstairs, downstairs — where was it? I don’t know — but I had one beer. That’s the only thing I remember.” Actually, she remembers much more than that: The year, the neighborhood, that it happened upstairs, and of course, many details of the assault itself.

Still, Trump is playing to a familiar suspicion attached to distinctions in memory. But is it actually odd that a witness would remember some things very clearly while other details are recalled only dimly or not at all? Maybe to many average Americans it is odd, but to psychologists who understand memory and to counselors of those who have dealt with traumatic events, it isn’t odd at all. That understanding might actually end up being the silver lining to come out of this controversy: By raising the issue in such a public fashion, there is a good chance that more Americans will have a better understanding of the selective nature of memories surrounding highly-emotional events. In this post, I will take a look at what that might mean for future witnesses and jurors.

Continue reading

October 1, 2018

Skip the Window Dressing (But Open the Window)

By Dr. Ken Broda-Bahm:

It was an odd scene at last Thursday’s confirmation hearing. As the Senate Judiciary Committee held a special session to deal with late-breaking sexual assault allegations against Supreme Court nominee Brett Kavanaugh, the chair brought in a pinch hitter to handle the questioning on behalf of Republican members of the Committee. They turned to Arizona prosecutor Rachel Mitchell, chief of the special victims division of the Maricopa County Attorney’s Office, who Senate Majority Leader Mitch McConnell called the Committee’s “female assistant.” The majority’s official rationale was that they wanted an experienced sex-crimes prosecutor who would infuse the proceeding with professionalism rather than partisanship, and show how seriously they are taking it. However, the fact that her role in the questioning was dropped shortly after the completion of the questioning of the accuser, Dr. Christine Blasey Ford, suggests another purpose. When it came to questioning Brett Kavanaugh, the Republican Senators had recovered their power of speech and no longer needed the expertise of Ms. Mitchell.

Rachel Mitchell is an experienced prosecutor, and had nothing to prove in her questioning. Still, the timing and execution of her role leads a reasonable person to think that having a female interrogator was about optics, and specifically about avoiding the negative appearance of an all-male panel of majority members questioning a woman about sexual assault, actually including many of the same men who questioned Anita Hill almost 27 years ago. Calling in Ms. Mitchell was a kind of fig leaf over the lack of diversity on the majority side of the aisle. As many have observed, her own questioning was competent but not really illuminating — mostly nailing down the details, as if she was taking Dr. Blasey Ford’s deposition. Ultimately, I’d suspect the Republicans regret that gambit: Not only did they sacrifice their own ability to question the witness, but they also arguably sent a message of tokenism and a lack of respect for the accuser. Still, it isn’t an uncommon move. I’ve been asked many times by litigation teams, “Do you think we should bring in a female attorney” to handle sensitive questioning of a given witness. And their motivation is the same as that of the Republican Committee members: They’re embarrassed by a lack of diversity…and they should be. My answer to both is this: Don’t bring someone in solely for the purpose of optics but, over the long-term, do think about substantively diversifying your team so you don’t have to worry about optics.

Continue reading

September 27, 2018

Expect Bias Against the Insurer

By Dr. Ken Broda-Bahm:

It is an odd business relationship. As far as the customers go, they’re buying a service that they truly hope they will never need. For the companies, the ideal customer is the one they never meet, the one who pays their premiums, and then luckily avoids the reasons for having insurance in the first place. Given these motivations, we might expect the public’s relationship to the insurance industry to be a little bit strained. And it is strained. In life, it can cause policyholders to act like the company is trying to rip them off, even when they’re trying to provide coverage. In the courtroom, it can cause “bad faith” to be treated more like a presumption and less like an element that needs to be proven.

When insurance companies appear in court, either directly in coverage cases or indirectly as the entity expected to foot the bill, the attitudes toward them can be complex. Aside from the “deep-pockets” perception, there is also a question of credibility. On the one hand, jurors want to defend the value of a contract and believe that we should all be bound by what we sign. On the other hand, they can be highly critical of a company that looks like it’s trying to split hairs in order to avoid providing the coverage its customers thought they had. Anytime an insurance company steps in or near a courtroom, it is important to understand that dynamic. In this post, I will share some of our own recent data as well as some data from others on these attitudes.

Continue reading

September 24, 2018

Connect to Purpose

By Dr. Ken Broda-Bahm:

I like to scan the social science releases from ScienceDaily, and a new one caught my eye entitled, “What is the meaning of life? Ask a conservative.” The science discussed in this release shows that conservatives are more likely than liberals to view their lives as having purpose and meaning. The conclusion comes from a study (Newman et al., 2018) drawing from data from 16 countries collected over the course of four decades, and indicates that, even after controlling for religious differences, there is something about conservatism that seems to promote that sense of purpose. “Finding meaning in life is related to the sense or feeling that things are the way they should be, and that there is a sense of order,” according to lead author David Newman, of the University of Southern California’s Dornsife’s Mind and Society Center.

This contributes to our understanding of political differences and the ways they reflect not just differences in policy preferences, but also differences in cognition. The results in this case relate to an individual sense of purpose, which conservatives tend to have in greater amounts. But purpose tends to be important for all kinds of people. The research focus provides a reminder on basic adaptation when trying to persuade. A juror’s life’s purpose isn’t to deliver you your preferred verdict. But the implied roles you ask them to assume as they hear and react to your story will reference those deep attitudes and purposes. I have written in the past about something called a “Second Persona,” or a speaker’s conveyed expectations about their audience. So it is worth asking, what are you asking a juror to “be” in this case, and how does that invitation jibe with what they see as their purpose in life? Different appeals will play to different themes relating to jurors’ self-image. In this post, I will touch on several of these broad purposes that could be conveyed as part of your trial message.

Continue reading

September 20, 2018

Witnesses, Don’t Succumb to Shame

By Dr. Ken Broda-Bahm:

The witness is somewhat slumped in the chair as the cross-examination bears down on him. As the defendant, he knows he is the focus, the civil law’s version of “the perp.” As he is confronted with each of the plaintiff’s accusations, and each of the expert witness’s criticisms, he is sinking lower and lower in the chair. His answers become shorter, his volume drops lower, his eyes look away, and his chin points down to the table. The actual content of his answers might not be all that bad, but nonverbally, his communication is coming across as a confession. The dominant expressed emotion is shame, which is what we would expect of someone who has done something wrong. So it reads as “guilt.”

Shame can be a common feeling for a witness, particularly (but not always) when they’re the defendant. The simple force of accusation that comes with someone trying to find fault with your statements or your actions is a force that can be internalized. One might minimize the occurrence of genuine shame, seeing it as rare in the professional world of civil litigation. New research, however, points toward shame being a cultural universal which is hard-wired into our evolution. Based on a cross-cultural research project discussed in a recent ScienceDaily release, human feelings of shame follow essentially the same pattern in societies around the world, because shame played an important role to our ancestors who lived in hunting and gathering social groups. Even today, feelings of accusation or perceptions of social disapproval can cut deep, even if, logically, we understand that we have done nothing wrong. In this post, I’ll take a look at what shame is, how it can undermine witness credibility, and what the prepared witness ought to do about it.

Continue reading

September 17, 2018

Think About Transitions

By Dr. Ken Broda-Bahm:

It is one of the basics emphasized in your first public speaking class: Have a clear transition between your main points. But it is also a rule that many experienced communicators set aside or start taking for granted. As you become more comfortable with your content and your audience, you can fall victim to that fundamental adaptation error: the belief that your audience is tracking right along with you. And when you move from one point to the next, the change seems clear and obvious, to you. But is it clear to the audience? Often, not nearly as clear. What they hear is a bunch of information, and now they’re hearing more information, but the distinctions and connections between one point and the next can be lost.

If you can get your audience to adopt your way of thinking about the issue, you are more than halfway there: The path determines the destination. So structure is key to conveying content. And the transition is key to conveying structure. It is the transition that plays the role of making sure your audience isn’t just receiving a bucket of information, but is instead moving through the right main points in the right sequence. So when  you are preparing your notes for opening, closing, or witness examination, the question of “How am I going to transition?” should be an important one. It’s not just a matter of stopping one topic and starting in on another topic, it is about briefly building a bridge that your audience can cross and know that they’re crossing. In my view, there are a few steps to doing it. Following those steps as a checklist will help to make your transitions more clear, and as a result, your structure more evident and influential.

Continue reading

September 13, 2018

Damages: Know Your Anchor

By Dr. Ken Broda-Bahm:

For plaintiffs, the topic of monetary damages can be a bit of a mystery. In making the request to a jury, the appropriately named ad damnum, the question is: How much? Obviously, more is better, but common sense and experience probably tell you that there is a point at which higher requests bear diminishing returns, or even bounce back on themselves resulting in lower verdicts, or even, God forbid, a point at which the extreme request causes jurors to doubt the motives behind the suit and question their liability determination. The level at which one should propose, or “anchor” a damages amount can be tricky. And the uncertainties apply to defendants as well, in two ways: Not only do they have to estimate and react to the effects of the plaintiff’s number, they also often need to come up with their own alternate damages number.

The uncertainty on both sides about the realistic value of a case can be a practical obstacle to timely settlement. Verdict research can play a role, but with a shortage of similar cases going all the way to verdict in the same venue, attorneys will often rely on their anecdotal experience or gut instinct. Recent research, however, highlights a better option as well as a few important principles to keep in mind. In a series of studies (Campbell, 2018), a law professor at University of Denver Sturm College of Law relies on data drawn from actual cases that are tested using online samples of mock jurors, looking at whether “there is a proverbial ‘sweet spot’ for demands where the maximum anchoring effect is obtained” without bouncing back or hurting the case on liability. In this post, I will call out four quick contributions from this research — points that active litigators ought to bear in mind.  Continue reading

September 10, 2018

Don’t Shy Away from Politics (in Jury Selection)

By Dr. Ken Broda-Bahm:

Our ability to understand and to talk to each other is increasingly determined by our political leanings. When we all sit down for family Thanksgiving in a couple of months, politics is likely to be off limits at many tables. But is it also off limits in the courtroom during voir dire? Some judges and some attorneys seem to think so. The feeling is that asking about politics is too direct and potentially threatening, creating the feeling that you’re invading the privacy of the voting booth, or asking about personal details that don’t seem germane to the case. And sometimes, that practice of steering clear of politics is one that is followed even when a case is politically charged at a very high level. Take the Virginia trial last month of former Trump campaign chair, Paul Manafort, on tax and bank fraud charges. As I wrote in an earlier post, prosecutors in that case proposed a juror questionnaire that entirely avoided the attitudes of potential jurors toward politics in general and the Mueller investigation of those surrounding the President in particular. In that trial, the prosecution did not get the questionnaire, and also (apparently) did not get a fully-effective read on political attitudes. The jury ultimately convicted on eight charges, but hung on the remaining ten due to one juror, a Trump supporter, who resisted conviction on the majority of counts.

Now, attention is focusing on Manafort’s next trial set for later this month in Washington D.C. Judging from a recent article in Newsweekthe takeaway is that it is now even more important to pay attention to political leanings. The author quotes high-profile trial consultant Robert Herschorn: “I don’t think gender matters. I don’t think age matters. I don’t think race matters,” he says. “The only question they should be asking is, ‘Did you vote for Trump?’” Maybe the question isn’t voting, since in many courtrooms, that would be an automatic sustained objection. But there are more ways to get to that target. And it is not just the cases with the obvious politics of a sitting president attacking the investigation and charges against his former campaign manager. Instead, we have found that political leanings predict a wealth of attitudes that matter to cases across the board: personal responsibility, the value of regulations, the importance of civil rights, and whether a courtroom is for punishment or for reform. We’ve found that in many to most cases, political leanings will matter. In this post, I will share some practical ideas on how to ask in ways that are effective and likely to be not too threatening to the court.

Continue reading

Related Posts Plugin for WordPress, Blogger...