December 11, 2017

Conduct an Informed Litigation Risk Assessment

By Dr. Ken Broda-Bahm:

On the path from the initial dispute to the ultimate disposition of a case, there are many forks in the road. In choosing whether to take the path of settlement or to continue on to trial, one of the most trusted advisors is, and should be, the trial lawyer. After all, that is the person with the courtroom chops to provide a solid and realistic appraisal to clients, insurers, and aligned parties. But how good are trial lawyers at making those estimates? Some research seems to point to the conclusion that they’re not good. And experience doesn’t even appear to play a strong role in improving that predictive judgment.

That raises the question of whether attorneys and their clients are ultimately making good decisions on whether to settle or proceed to trial. The subject has been under-studied, in my view, but there are some reasons to believe that the assessment is not as systematic as it could be. Canadian law professor Michaela Keet (2017) recently conducted a study focusing on lawyers and law students to look at the way attorneys think about litigation risks as well as the effects of developing a more comprehensive framework for risk assessment. Taking a look at that research, this post will share some thoughts about the problem as well as the proposed solution.

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December 8, 2017

When Preparing to Present, Talk, Don’t Read

By Dr. Ken Broda-Bahm:

In my line of work, I find myself on my feet giving presentations quite often: marketing talks, CLE seminars, strategy sessions. I prepare for those opportunities pretty extensively, but here is one thing I don’t do as part of that preparation: I don’t sit and review my notes. I do prepare notes, and I do make sure that I devote plenty of time to planning out what I’m going to say, for example, when a given slide is on the screen. That’s especially true since I don’t believe in text-heavy slides that, in effect, put the speaker’s notes up on the screen. So, the content is always planned out. But once I’m done writing those notes, I don’t passively read them. Instead, if I have time, I’ll practice the presentation on my feet — using notes when I need to, but purposefully weening myself off those notes.

And, if I don’t have time to practice on my feet, I’ll do the next best thing. I’ll record my presentation using a digital recorder, or these days, my phone, and then I will listen to my own presentation several times as I’m doing other things, like shaving or driving to work. It is my belief that this form of review and practice is much better than silent study. It gets me more quickly to the point of being familiar with the content so I can deliver it extemporaneously, and it builds confidence. That has been my experience, and now there is research to back it up. Two memory researchers from Canada (Forrin & MacLeod, 2017) conducted an experiment showing that there is a memory advantage when saying words aloud, as opposed to hearing them or reading them. And the next best thing to actually saying them out loud is to hear them, not just in anyone’s voice, but in our own. In this post, I’ll briefly look at why that is the case, and share some rehearsal tips.

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December 4, 2017

Nod Your Head

By Dr. Ken Broda-Bahm:

Nodding your head up and down means “Yes.” At least in our culture it does. And world travelers will know that this one thankfully translates to nearly all other countries and cultures as well. There are exceptions, like one country I visited a couple of times on consulting trips: Bulgaria. There, shaking your head up and down, our “Yes,” actually means “No,” and shaking your head from side to side, our “No,” means “Yes.” And if you ask me if that creates the potential for confusion, I’d nod my head…or shake my head “Yes.”

But sticking with the dominant cultural tendencies, the affirmative head nod is a useful and positive form of nonverbal communication. And we now have proof from the researchers that it works. Social scientists in Japan (Osugi & Kawahara, 2017) used animated clips of figures either nodding affirmatively, shaking their heads negatively, or remaining motionless. They found that the nodding head motion significantly increases ratings of subjective likability and approachability. And rather than just enhancing appearance, the positive head-nodding is perceived to indicate a better personality on the part of the target. That stands to reason: It is easy to think well of someone who is nodding in agreement. For that reason, and with some important caveats, the head nod is a good tool for communicators in the courtroom, including advocates, questioners, and witnesses.

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November 30, 2017

Complete the Confidence Checklist

By Dr. Ken Broda-Bahm:

When an audience decides whether someone is credible or not, what do they look for? To a large degree, they look for confidence. In some ways, confidence can be viewed as performed credibility. Someone who is telling the truth is confident. Someone who is winning is confident. Of course, we know that neither of those statements is necessarily true, at least not all the time. But what matters is how the message is received. And in human communications, confidence is one of the most important external markers. Whether a speaker’s confidence is merited or not, viewers interpret confidence as a sign that a source is certain, and as an indication that the content is worthwhile.

For those reasons, the display of confidence is a necessity for attorneys, witnesses, and even for others in the courtroom who assist or sit at counsel table. While we might think that confidence is a feeling, at the end of the day and in the way that matters most, it is a behavior. And whether in deposition or trial testimony, opening statements or closing arguments, oral arguments, negotiations, or meetings, that behavior needs to be on display. In this post, I’ll share seven factors that serve as a kind of checklist for confident communication.

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November 27, 2017

Use “You” (Not “I” or “One” or “They”)

By Dr. Ken Broda-Bahm:

Persuasion is often a matter of overcoming barriers and, in the courtroom, those barriers can be very real. The wall of the jury box is a physical analogy for the differences in class, age, race, education, and many other factors that can separate the fact finders from the attorneys, the witnesses, and the parties. But beyond those demographic traits, distance can also be influenced by more subtle features of language. When the wording is dry, abstract, and depersonalized, it is more difficult to cross the bridge to jurors’ understanding. It’s better to be more direct. And in an audience context, nothing is more direct than “you.”

It is a habit of language that might go unnoticed. Am I saying, “It is understandable,” or am I saying, “You can understand it”? Am I asking what a “reasonable person” would expect, or am I asking what “You” would expect? Am I previewing “the jury’s deliberations,” or am I previewing “Your deliberations”? The word “you” is one of the most common words in the language. While it sometimes carries direct meaning, referring to the listener, at other times it is used to indicate to people in general. Referred to as the generic-you, it is captured in phrases like, “You win some, you lose some.” It is used to express norms or expectations about how things should be. That universalizing function of the generic-you makes it an important rhetorical tool. Some recent research (Orvell, Kross & Gelman, 2017) looked at its function and effect, and the results suggest that the generic-you should be one of the techniques trial lawyers use to break down the barriers for your jurors.

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November 24, 2017

Experts, Tell a Visual Story

By Dr. Ken Broda-Bahm:

When you think of science, do you think of dry research articles, charts and graphs that take a good deal of explanation in order to get to a point? Or do you think of Neil DeGrasse Tyson explaining the Cosmos with the help of clear but sophisticated video and graphics? If it is your goal to connect with an audience of non-scientists, like a jury for example, then your choice ought to be for something closer to the latter. A science-educator like Tyson, who uses all the tools available, is in a better position to make the material not just informative, but engaging and emotional as well.

In a past post, I shared the example of a four-minute video from Tyson on the science of public understanding of science, specifically. That video nicely illustrates the thesis of a group of researchers from Griffith University in Queensland, Australia (Czaran, Wolski & Richardson, 2017). Their paper, like this post, probably should have been a video, because it makes the case that researchers should stretch themselves to step outside the typical forms and outlets of the academy and should tell the story of their research, and use modern media to do so. That advice to distill the research outcome to “short, relatable, digestible, and engaging visual products” applies to expert witnesses as well. This post shares a few of their conclusions, based on their 12-month review of a new service designed to encourage researchers to use audio-visual media to tell their research story as they apply to the testifying expert.

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November 20, 2017

Expect Jurors to Climb Into the Cooler

By Dr. Ken Broda-Bahm:

The cooler sat in the  courtroom throughout the trial. A 40.5 gallon Igloo fishing cooler, it was a key piece of evidence in the murder trial of an attorney, Tom Capano, charged with killing his lover who was the Delaware Governor’s scheduling secretary. A recent story in Delaware Online focuses on one of the jurors, speaking out now for the first time almost two decades after the trial. That juror, Erin Reilly Lee, got inside the evidence — literally. See, it turns out that the volume of the cooler was important, because Capano’s defense was that his lover, Anne Marie Fahey, was actually killed by another of his mistresses in a jealous rage, and Capano said he just panicked and placed the body in the cooler without giving it much conscious thought. Cross-examination, however, focused on the fact that getting a body into that cooler would have been quite the chore, involving twisting limbs and breaking bones. It wouldn’t have been, the state claimed, something planned and worked at, not the distraught act of a disoriented bystander.

So the juror, Ms. Lee, tried it out during deliberations. When the rest of the jury decided that she was the one most similar in size to the victim, perhaps even a bit smaller, she became the ideal candidate. And the verdict? “There’s just no way,” she said, and since the defense did not square with her own hands-on test, “you lose all your credibility.” Capano was convicted and died in prison. That circumstance might have been unusual, but the motivation for jurors to try it out themselves is actually pretty common. I recall one recent case where we held a mock trial focused on the fit and retention system for a sports helmet. As samples of the helmet in question went back to the mock juries, we got to watch all three juries pick a person to try out the helmet as others tried to pull it off without unclasping it. Of course, jurors had heard about the company’s own biomechanical testing, as well as the expert opinions from each side. But all of that paled in comparison to jurors’ own ability to try it out themselves. That is something litigators should account for: If there is a way for jurors to test a case theory by manipulating the evidence themselves, they will do so.

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November 16, 2017

Be Alert to Partisan Affect

By Dr. Ken Broda-Bahm:

Written in the context of the civil rights and Vietnam war protests of the Sixties, there is an old Buffalo Springfield song with a line about the marchers, “Singing songs and carrying signs [that] mostly say, ‘hooray for our side.'” That ‘hooray’ is what the political psychologists call “partisan affect,” or the tendency to like and identify with those on your side of the political spectrum and to dislike and even demonize those on the other side. That is perhaps the reason that many of his supporters are sticking with embattled Alabama Senate candidate, Roy Moore, even in wake of inconsistent responses to the mounting allegations that he pursued and assaulted underage girls. Many are sticking with him because the alternative is that a Democrat might win. It is likely that a similar feeling motivated many Trump voters as well, and broadly, what many of his supporters seem to like the most about Trump is the degree to which he distresses liberals.

The phenomena of this partisan affect, is grounded in some research that might be pretty surprising. Santo Iyengar of Stanford and Sean Westwood of Princeton (Iyengar & Westwood, 2015) have noted that feelings of support and hostility based on political tribalism have increased dramatically in recent decades and are now greater than ever. In some ways, discrimination across the aisle might even be considered the new racism: “Hostile feelings for the opposing party are ingrained or automatic in voters’ minds, and that affective polarization based on party is just as strong as polarization based on race.” In this post, I’ll take a look at their research and discuss some of the implications.

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November 13, 2017

Make Your Denial Credible

By Dr. Ken Broda-Bahm:

It is the season for strong denials from powerful men in entertainment and politics. To pick just one from the crop of current examples, the U.S. Senate candidate from Alabama, former judge Roy Moore, has recently been accused of a number of inappropriate relationships when he was in his early thirties with girls who were as young as 14 years old. Predictably, Moore has denied it all, calling the accusations “completely false.” Sometimes the better course is to admit what is true. The comedian, Louis CK, took that route recently by responding to reports of harassing behavior by saying, “These stories are true.” But that, of course, depends on the facts. If it is true, you’re taking away some of the punch by admitting it. But what if it’s not? Whether we are in the public eye or part of litigation, how do we credibly deny what isn’t true without it being dumped in the skeptical category of, “Well, of course he’s denying it”? How do we escape the bubble of distrust that is created by the force of accusation alone?

It isn’t easy and there are no automatic ways to make a denial sound truthful and not just defensive. At the same time, there are a few things to avoid and a few things to include whenever you are denying something that isn’t true. This post will share a few thoughts about credible denials, and offer some practical suggestions that should differentiate the effective from the ineffective denial. And to provide more focus, let’s use a running example of a products company that is accused of hiding negative test results.

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November 9, 2017

Preserve a Place for Spoken Persuasion

By Dr. Ken Broda-Bahm:

A fair proportion of the legal advocacy in America today is taking place via written communication. With only a small percentage of cases actually ever seeing a jury — three percent, or less — cases are more and more often reaching their ends based on written motions. Summary judgment decisions are often decided based on briefing, and in settlement negotiations as well, it can often come down to letters and emails ferried back and forth between the parties. There is obviously still a place for trial and oral argument, still a role for the advocate standing at the lectern and facing the fact-finders. And there is also clearly still a role for passionate and powerful face-to-face negotiations in pursuit of settlement. But is there a danger in the continuing drift toward replacing oral advocacy with written advocacy, as briefs and letters more often displace the spoken word?

I’d argue that yes, there is. Verbal communication is not just a delivery system, and oral advocacy doesn’t just involve speaking the words that would fare just as well on paper or on a screen. Instead, I believe that there is a unique component that is only conveyed in spoken persuasion and advocacy. You might think that the same content can be effectively conveyed in writing, perhaps with even greater care, control, and convenience. But what is missing? In large part, it is the human  factor. And now there’s a study to prove that. In an article in the current Psychological Science, researchers (Schroeder, Kardas, & Epley, 2017) demonstrate that hearing an opinion spoken has a uniquely humanizing influence on perceptions of the source. When compared to the same message delivered in writing, the spoken message is more likely to generate empathy. “If mutual appreciation and understanding of the mind of another person is the goal of social interaction,” they write, “then it may be best for the person’s voice to be heard.” In this post, I’ll discuss the study and share three quick thoughts on preserving the role of spoken advocacy in litigation.

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