Persuasive Litigator

The Dangers of Persuasion: Mind Your Jury Leaders

by: Dr. Kevin Boully

 

Who will lead your jury?  How good are your predictions?  Do you usually consider this question at all?  Here are three reasons identifying jury leaders is critical.   

 

By nearly all accounts, jurors do an excellent job listening to evidence, evaluating all the information presented at trial, and rendering reasonable verdicts.[1]  But jurors are human (you can quote me on that), and we humans are emotional animals.  We simply cannot make efficient decisions without our emotions.[2]

 

It’s no secret that inherent biases influence jurors’ perceptions in court.  Jurors selectively attend to arguments and evidence.  They engage in motivated reasoning – reasoning designed to create a good-feeling equilibrium between conflicting information and emotional preferences.  In short, most of us are wired to make decisions that feel best, and our brains are wired to reward this behavior.  Jurors do this every day, in every case, in big ways and in small. 

 

Now, pair the influence of that powerful emotional decision-making (which may not reflect a rational process) with what we know about the persuasive power of jury leaders. 

Engage Jurors With Your “Zingers”

by: Dr. Karen Lisko

 

Several days ago, the National Public Radio and The Washington Post reported that construction workers building facilities for the World Cup in Johannesburg, South Africa were on strike in an attempt to get a “double digit increase in wages” of 13%.  Right before ending the strike, it appeared the workers decreased their demand to 12%.    Now, no one likes a strike.  And no one likes greedy employees.  A “double digit” demand seems pretty excessive in a sagging world economy.  Until you learn (far into both news pieces, I might add) that most construction workers on the project earn between $100 and $300 a month.  (I’ll pause while you do the math.)  That’s correct.  We’re talking about a demanded increase of 40 cents to $1.20 a day.

And so, you ask, what does this have to do with legal persuasion?   

Bring the Jury Into Your Mediation

by: Dr. Ken Broda-Bahm

 

The whole point of having a mediation is to avoid the time, the expense, and – some feel – the uncertainty of a jury.  So, literally speaking, there is no jury in your mediation.  But the ‘figurative’ jury may yet have a role to play in making your mediation more successful.

 

Mediation has become enormously popular these days, particularly in business disputes.  Yet even when voluntary, it often fails:  as often as half the time, according to some recent data.  Why does mediation fail?  An obvious explanation is that both parties enter the negotiations with overconfidence and an attitude that is adversarial rather than conciliatory.  A very thorough review of the literature recently appeared in the Ohio State Journal of Dispute Resolution (“Psychological Impediments to Mediation Success:  Theory and Practice,” 2006 21:281, abstract available here).  The research suggests that in addition to being undone by simple over-confidence, mediations are also thwarted because parties, as advocates, are much more facile at identifying the strengths rather than the weaknesses of their position.  That is, even very smart, sensitive, thoughtful, and open-minded attorneys (yes, I mean you) will have a blind spot for the bad, and will exaggerate the good.

 

So how does a jury, or the idea of a jury, help uncover that blind spot?  In two ways.

Stop Jury (and Judicial) “Mind Walking”

by: Dr. Karen Lisko

 

Sure enough, your jurors are sitting there, looking all shades of attentive as you make your eloquent argument.  But do any of them let their minds do the walking while their bodies are trapped in their seats?  I wonder if many have been tempted to do what one Oregon juror did last month when he literally walked out of the trial over the lunch hour because he was “extremely bored” and just couldn’t take it anymore.