February 22, 2018

Turn Your Passive Juror Into an Active Advocate: Seven Ways

By Dr. Ken Broda-Bahm:

Persuading a group that will then go off and deliberate is a unique persuasive setting. In a way, it can be called ‘Second Order’ persuasion, because it isn’t just about the person being convinced in the moment they’re hearing your case, it is about them being both convinced in that moment and motivated and equipped to advocate for your case later on when it comes time to deliberate to a verdict. After all, a juror who believes you but has nothing to say in the deliberation room to another who’s rejecting your whole pitch, isn’t a terribly useful juror to have. And, when running mock trials, we see plenty of those jurors: favorable folk who believe but don’t advocate.

So the strategic question is, how do you get a juror who is able to appreciate and navigate the transition from “passive observer and decider” to “active and engaged advocate”? It is tricky and depends on the person and the case. In a recent Law 360 article, Daniel Siegal notes that “Convincing a juror you’re right is just a starting point.” Through interviews with several attorneys and consultants on the topic, he notes that, “real success comes from using an anthropological eye to find the jurors who are willing and able to go beyond casting a vote and advocate on your behalf, then giving them the evidence and rhetoric they need to win over their peers.” Inspired by that discussion, and adding some thoughts of my own, I will use this post to present a brief list of seven ways to encourage that transition on the part of jurors from observer to arguer.

Continue reading

February 19, 2018

Distinguish Between Hard and Soft Admissions of Fault

By Dr. Ken Broda-Bahm:

Sometimes advocacy is 100 percent: Everything your client did, literally everything, was right. But other times — more often I would say, if we’re being honest — there is something that isn’t perfect. The defendant made some mistakes in how it handled the situation, or the plaintiff missed some steps when it came to self-protection, for example. And in those situations, acknowledging that and, in effect, admitting to what the jury is almost certain to conclude anyway, is a step that is necessary for credibility and helpful in putting the focus where it needs to be.

But an admission can be tricky for both clients and attorneys to deal with. At one level, it cuts against the adversarial impulse of saying, “I’m right and they’re wrong, period.” An admission can also be tricky, however, when it is treated as an all-or-nothing proposition. For example, in strategy sessions, the suggestion that it might be wise to make an admission can sometimes be met with the attitude of, “No way, we’re going to fight this…we’re not going to admit anything!” In the midst of a fierce trial battle, the call for even a partial admission can sound like the bugles of retreat. However, there is an important distinction to be drawn. When clients and attorneys are conscious and explicit about the difference between a hard admission of liability and a soft admission of some level of mistake that falls short of liability, that distinction can help smooth the way to a good strategic decision and a clear message in trial.

Continue reading

February 14, 2018

Corporate Corruption: Expect Sensitized Jurors

By Dr. Ken Broda-Bahm:

Sometimes a theme captures the public imagination, and a dominant narrative comes into common use as an explanation for much of what is going on. Right now, that theme is corruption, and it is a narrative of powerful people doing the wrong things and keeping them a secret. It is Republicans colluding with Russia over elections and trying to distract the public and knock the investigation off the rails, or maybe Democrats covering up their own Russian contacts and deals. It is entertainers knowing for years about assaults and harassment by powerful men, and enabling its continuation by keeping the details out of the public eye. It is academic institutions hiding years of outrageous conduct in sports, or large nonprofit organizations similarly excusing long-term patterns of abuse. It is corruption, measured in both the crime and especially the cover-up. And it is others — victims, journalists, common citizens — saying they don’t want to take it anymore.

Is that theme filtering into the attitudes of juries when those juries are looking at large institutions and claims of dishonesty? Based on a recent Law 360 article from trial consultant Melissa Gomez, the answer may be “Yes.” Focusing on the “American public’s perception that powerful people and institutions use their authority to please themselves to the detriment of others,” she reports on the recent public focus on corruption as well as the data from her group’s mock trials over time. The result? Jurors, she says, are becoming less prone to compromise and more likely to want to “Send a message” with a high-dollar verdict. Comparing her data to our own, I believe that there is something to that message, but the skepticism of a jury sensitized to the corruption of large organizations also is not a new phenomenon. In this post, I will look at both what seems to be new as well as what hasn’t changed.

Continue reading

February 12, 2018

Look Out for a #MeToo Backlash

By Dr. Ken Broda-Bahm:

Imagine that, after decades and generations of legitimate complaints relating to sexual harassment and abuse being played down and dismissed, they were — finally — being taken seriously. In the worlds of business, politics, and entertainment, powerful men are being forced out, as each day brings a new series of allegations and a new group of accusers being treated as credible. And imagine, on the heels of that historic breakthrough, instead of a public sphere of greater respect and inclusion, you have a public sphere where the remaining powerful men are simply afraid to engage and interact with women. In that setting, women continue to be the target — not of harassment, but of ostracism and limited opportunities. And “#MeToo” becomes “#MeAgain.”

Based on a recent survey, that might be exactly what is happening. This year, LeanIn.org and SurveyMonkey partnered on research on “#MeToo” experiences and found that a surprisingly high proportion of men in the workplace are responding to the perceived increase in successful complaints by distancing themselves from female colleagues. Could that be playing out in the law as well? Anecdotally, yes. An associate of mine shared a story last week about judging a law school mock trial competition, and when it came time to greet the competitors, one senior male attorney judging the event quipped to a female student, “I won’t shake your hand because I don’t want a sexual harassment lawsuit against me.” I doubt that level of defensive insensitivity is common, but to the extent increasing awareness and increasingly effective response to sexual harassment issues is prompting a backlash at all, that is important to lawyers at two levels. First, for those who advise companies’ leadership teams and human resource departments, it should serve as a warning to not allow legitimate issues to serve as an excuse for illegitimate discrimination. Second, for the law firm, it’s a reminder to continue mentoring young women in the firm in order to move toward greater gender equality among partners, litigators, and firm leaders.

Continue reading

February 8, 2018

Consider the Entitled Juror

By Dr. Ken Broda-Bahm:

“Entitlement” is the belief that one is deserving of privileges and special treatment. We’ve heard of entitled children, entitled Millennials, entitled wealthy, entitled college students, entitled new employees, entitled partners…. What about entitled jurors? Might there be some in the deliberation room who feel that they deserve to chart their own course, to take the legal instructions as guidelines and not rules, and perhaps to set aside the facts and the law to push for a nullifying verdict? Recent research suggests that there may be.

Social science researchers from Cornell University and Harvard University (Zitek & Jordan, 2017) looked at individuals with higher levels of entitlement and found that this attitude predicted a refusal to follow instructions. After first measuring entitlement and then looking at performance on a word-search task, the researchers found that it was actually quite hard to get the highly entitled participants to follow the rules. As described in a ScienceDaily release, they looked for factors that would reduce entitlement and get people to follow instructions, and found that not even punishment worked. “We thought that everyone would follow instructions when we told people that they would definitely get punished for not doing so,” Cornell’s Emily Zitek explained, “but entitled individuals still were less likely to follow instructions than less entitled individuals,” said Zitek. In this post, I’ll take a quick look on what this might mean for jurors in following or not following instructions.  Continue reading

February 5, 2018

Treat Suspense as a Two-Edged Sword

By Dr. Ken Broda-Bahm:

After a couple of weeks of “Will they or won’t they” palace intrigue involving Congress, the White House, the FBI and the DOJ, on Friday afternoon, the House Intelligence Committee finally released a four-page, declassified memorandum alleging that law enforcement officials had abused the Foreign Intelligence Surveillance process in obtaining a warrant to look in on the communications of former Trump campaign staffer, Carter Page, which served — the memo argues — as a precursor to Robert Mueller’s investigation of collusion between the Trump campaign and the Russian government. Based on all of the build-up, expectations were high in all quarters. When reporters and the media finally got a chance to read the memo, reactions to it served as a kind of political Rorschach test, with each side seeing what it expected to see: Conservatives were quick to herald it as a “worse than Watergate” moment that undermines the basis for the continued investigations, while liberals were equally swift in proclaiming it “a dud,” which is selective and misleading and still shows no abuse of process or illegality. The question is whether all of the mystery and intrigue worked in the memo-authors’ favor by heightening attention, or whether it worked against them by creating expectations that could never be met.

Litigators often face the same dilemma. Based on structure of trial, promises of what “the evidence will show” often proceed the actual evidence by days, weeks, or longer. And the suspense of waiting for that critical document or that key witness can have an effect on how that evidence is received. To be sure, there can be an advantage to suspense (for example, I’ve written previously about the advantages of a “but wait, there’s more…” kind of appeal). But it is tricky because the build-up can also be a liability. The increase in attention and interest comes at a cost if expectations aren’t fulfilled when the evidence is eventually presented. In this post, I’ll share some thoughts on three scenarios on how this can play out in trial or in politics.

Continue reading

February 1, 2018

Listen to Bitter Jurors (and Make It Better)

By Dr. Ken Broda-Bahm:

Maybe the mistake is in treating it as a “duty,” knowing that the things we do out of obligation are unlikely to be looked upon with anticipation and excitement. But “jury duty” is often framed as something to dread. Certainly, there are a great many stories of people who appreciated their service, and found it fascinating and rewarding — I frequently talk with those people after a trial. But particularly for those who just go through the phase of voir dire, and particularly when that process is extended and doesn’t appear to be well run, the experience can be quite negative. And the perceived flaws in that process can end up creating a parade of complaint-minded almost-jurors leaving the courtroom with a little less support for the jury system, or perhaps some who stay in the courtroom and begin their service with a chip on their shoulder.

Litigators and those who work with them in selecting and persuading jurors can learn from these complaints. For example, a recent published rant on the indignities of the process come from a sports column in USA Today, “For the Win” by Ted Berg. He offers a somewhat off-topic post entitled, “How Do I Survive Jury Duty,” based on his recent experience of jury duty in Manhattan. While Mr. Berg was was not seated for a jury, he did end up serving for four full days of extended voir dire. Writing about the experience, he concluded “It totally sucked.” Some of the reasons it sucked point to factors that are quite often in the control of the court and the parties. This post will call out a few lessons.  Continue reading

January 29, 2018

Keep the Jury in Medical Malpractice Trials

By Dr. Ken Broda-Bahm:

Those of us who work at the task of conducting and preparing for trials likely have a different view of the American jury than those who don’t. Where critics might see jurors as emotionally-driven, capricious, and hopelessly out of their element, we, based on our experience, are more likely to see them as generally diligent: not always following what the law considers to be the correct process, but almost always following a process. They are systematic, conscientious, and ultimately trying quite hard to follow the facts and the law, and to not be led or manipulated by sympathy, bias, or persuasive tricks. That, at least, tends to be the experience among those who commonly work with jurors. But it has not silenced the chorus of people saying that there must be a better way. If we can just set aside the jury, the argument goes, we can have a system that is quicker, less onerous, and less prone to errors.

The recommendations to move away from juries are often based on flaws in the trial process that are real enough, but generally not unique to juries nor necessarily solved by judges or other expert decision-makers. The arguments are also often based on assumptions about juries that are questioned by the research. One example of this is found in a recent article (Chodos, 2018) that asks the question, “Should There Be Specialty Courts for Medical Malpractice Litigation?” The answer, from MD-JD Joel Chodos, is “Yes.” “The current tort system with jury trials,” he argues, “is cumbersome, slow, and yields often unpredictable results.” To replace them, he calls for specialty courts, like Delaware’s Court of Chancery or the Workman’s Compensation System. In this post, I’ll take a look at the problems with this argument.

Continue reading

January 25, 2018

Learn from AI in Settlement Negotiations

By Dr. Ken Broda-Bahm:

Could artificial intelligence settle your case? In other words, could a smart computer algorithm separate out the emotions, compare the interests, and distill the positions down to their best logical resolution? Maybe not immediately, but the question is not as silly as it might seem. Artificial intelligence is already making inroads in law, as laid out in a a new book, “Robots in Law: How Artificial Intelligence is Transforming Legal Services.” Of course, you might understandably think that it is one thing to flexibly generate contracts and wills, and another to handle the human nuance of an extended negotiation. But even there, an algorithm has some advantages, conceivably even over humans. Anyone who has sat through a tense and frustrating negotiation might see the benefit in a digital rather than emotional positioning. And ultimately, is it really much worse than putting it in the hands of a mediator?

A recent study suggests that, not only is AI-negotiation realistic, it is also in some ways better than human negations. The study (Crandall et al., 2017) was conducted by BYU computer science professors with colleagues at MIT and other international universities. Instead of testing artificial intelligence by having it compete against humans, in a ‘Deep Blue’-style chess match for example, the team focused on the ability of artificial intelligence to cooperate with people in situations where the interests of the parties are not fully aligned, nor fully in conflict. Using 220 (human) participants and a total of 472 repeated games, the team tested a number of different algorithms in negotiation games conducted through a computer interface that hid the adversary’s identity. Some negotiations were human to human, some were machine to human, and some were machine to machine. What they found is that one algorithm, S# (pronounced “S-sharp”) promoted cooperation at least as well and, in some ways, better than humans.

Continue reading

January 22, 2018

Know the Principles: A Review of the “Jury Selection Handbook”

By Dr. Ken Broda-Bahm:

Jury selection presents a difficult challenge to trial lawyers, and calls for skills that are generally out of step with the rest of what they’re expected to master in order to get from filing to verdict. At the point of empaneling a jury, lawyers are expected to listen more than they speak, to learn more than they teach, and to embrace the case weaknesses and opposition that they would normally try to downplay. It is a subtle and demanding situation, and one that calls for not just advocacy, but for friendliness, sensitivity, and all the traits of genuinely good communication.

For law students and for practicing attorneys who have not yet mastered jury selection, there is a new resource focusing broadly on the fundamentals. The 2018 book, Jury Selection Handbook: The Nuts ands Bolts of Effective Jury Selection, is available in both print and ebook versions and is published by Carolina Academic Press as part of “The Lawyering Series,” to support law schools and law professors in providing more innovative and practical content. The authors are Ronald H. Clark, Distinguished Practitioner in Residence at Seattle University’s Law School and Thomas M. O’Toole, a Seattle-based litigation consultant. Overall, the book is a very useful resource for the firm’s library, the litigator’s shelf, and the law school classroom. In this brief review, I will call out three points: The book covers the fundamentals, provides a wealth of applied examples, but also paves the way for more advanced advice on jury selection.

Continue reading

Related Posts Plugin for WordPress, Blogger...