Persuasive Litigator

Understand Juror Bias, But Bet On The Evidence

By: Dr. Ken Broda-Bahm - 

As closing arguments finished in a recent employment jury trial that I sat through, the defense team and I felt, predictably, that we had the overwhelming weight of evidence on our side of the case.  But still, we worried as the jury filed in to deliberate.  We had faced a Plaintiff's case based on the single simple appeal that a big heartless company will always try to squash the little guy and cover up its tracks in the process, and supported that narrative with nothing other than the Plaintiffs' own testimony and the attorney's narrative skill.  The lack of evidence on the plaintiff's side didn't make us sanguine, because we well understood the potential for bias and knew that this basic story could play well with a population that has grown to expect the worst of big companies.  So it was to our great relief when the jury came back after about a day of deliberations with a defense verdict on all claims.  And it was not only relief, but also reassurance in the jury process itself.  While it is true, as we often tell clients, that anything can happen with a jury, it is also true that far more often than not, jurors come back with the verdict that you and I would expect based on a good understanding of the law and a fair-minded hearing of the evidence. 

Jurors' tendency to do the right thing at the end of the day shouldn't be surprising in light of the research.  Another study has recently reaffirmed the fact that in the deliberation room, it is not appeals to bias or other fallacious lines of proof that persuades most often, but it is a reliance on the evidence and the legal requirements of the verdict.

Choose a "Moving" Way to Convey Evidentiary Data

By: Dr. Ken Broda-Bahm - 

In litigation it is often true that, "the devil is in the data," in the sense that numbers and how they're presented can be extremely important.  In employment cases, jurors often need to grasp the overall percentages that prove or disprove a discrimination claim.  In mass tort pharmaceutical cases, expert witnesses will often need to explain the scientific studies that underlie their theories of causation.  When information like this is presented to a jury, we are expecting this diverse slice of the common citizenry, many with a high school education or less, to somehow understand numerical data at a graduate school level.  When attorneys and witnesses aren't armed with the best teaching tools, success in getting fact-finders to understand those numbers can be a very uncertain proposition.

Recently, we came across a remarkable video clip, passed to us by Tsongas Litigation Consultant, Tom O'Toole.  It is a BBC production showing a Swedish professor, armed with only a dramatic (and somewhat ideosyncratic) speaking style and a innovative data chart, explaining a specific statistical point.  Called "200 Countries, 200 Years, 4 Minutes," it is a visual way of showing the recent history of economic and life-expectancy development throughout the world over the past two centuries.  The chart serves as a visual support to the professor's conclusion that "the huge historical gap between 'The West,' and 'The Rest' is now closing."  The clip embedded below, with about a million and a half views as of the time I posted this message, qualifies as a YouTube hit.

At the heart of the clip's appeal is that it shows a very simple way of making a very complicated point.  As Hans Rossling, the Swedish professor of international health, puts it in this video, "Having the data is not enough.  I have to show it in ways that people both enjoy and understand."  The same might be said to lawyers:  having the stronger evidence is not enough, if you aren't showing it to the jury in a way that is both enjoyed and understood.  

Sticks and Stones May Break Your Bones, But Calling Your Client Names Could Actually Help

By: Dr. Ken Broda-Bahm - 

U.S. District Court Judge G. Thomas Porteous, in his recent Senate trial, was called "something of a moocher."   Earlier this year,  former Illinois Governor Rod Blagojevich was called "foolish," and "not the sharpest knife in the drawer."  With comments like these coming from their own lawyers, it is enough to make you wonder, "who needs opposing counsel?"  The expectation that a party gets unambiguous support from its attorney can be challenged by the reality that any jury or other finder of fact is bound to see something negative, or in the cases of Porteous or Blagojevic something very negative, in your case.

For the corporate defendant, for example, is it better to admit to "greed" if that is a way to reduce the likelihood of "fraud"?  For the plaintiff, might it sometimes work to embrace "laziness" if that is a way of undercutting a finding of "contributory negligence"?

A recent LitigationPS post focusing on the importance of framing your arguments in positive terms brought up the issue of whether the positive frame is always the correct one to use based on the facts.   This post will look at a different scenario:  When it is clear fact-finders are bound to aim some sort of negative label in your direction, then creating and embracing your own label can sometimes work to absorb the ire, send it in a direction that minimizes liability, and increase your own credibility in the process. 

The Persuasion Strategy You Have to Fear...Is Fear Itself

By: Dr. Ken Broda-Bahm - 

 
Reacting to new evidence of support in the public as well as the U.S. military for allowing lesbians and gays to serve openly, those who support a continuation of a "Don't Ask, Don't Tell" policy continue to warn of a dangerous loss of troop cohesion and morale, as well as the potential loss of troop strength if the policy is repealed during wartime.  While proponents and opponents of change differ on the merits of these arguments, there is also a dimension to these warnings that students of persuasion would recognize as a classic fear appeal.  The practical question to ask, both generally and in the case of legal persuasion, is whether fear works.  A strategy of seeking to call to mind an audience's fear is, of course, no stranger to litigation.  Plaintiffs imply, if they can, that a defendant unchecked by a strong verdict in this case will continue to harm others, including you and your loved ones.  And defendants also would like to benefit from the belief that continued encouragement of frivolous suits - like this one - will just add to the threatening trends that are increasing prices, raising insurance rates, and robbing consumers of choices.  

It only makes sense to believe that jurors file into a deliberation room, not to execute 'justice' in some abstract sense, but to serve a principle that they have some direct stake in.  An approach currently very much in vogue within the plaintiff's bar and known as the "Reptile" strategy, would seem to endorse the use of fear as a direct and personal motivator for your jury, but a careful review of research suggests that attorneys should think twice about how, or whether, to scare their jurors.

Speak (Quickly) to Your Toughest Jurors

by: Dr. Kevin Boully

 
I don’t need to tell you that jurors’ ability to process information – including your spoken words – varies widely and can affect trial outcomes.  So, how fast do you speak in the courtroom?  Do you switch to a special “jury gear” once the jury is seated?  Is it faster or slower than when you speak to your friends and family?  What conclusions do jurors draw from your jury voice and your rate of speech in particular?  A few research findings highlight the effects of faster and slower speech on persuasion that may surprise you. 

In past research our own Karen Lisko found that slightly faster than normal speech (‘normal’ being between 120 and 180 words per minute) boosts witness credibility and persuasion, finding that a faster rate of speech for both male and female witnesses demonstrated enhanced credibility by proving more dynamic than slower witness speech.ⁱ  A recent post also highlights the possibility that faster speech is more persuasive when your audience is predisposed against your message and slower speech is more persuasive when your audience already favors your position.  That’s all well and good, but what do these findings mean for you?