Persuasive Litigator

Don’t Defend A Strawman (And Don’t Attack One Either)

By: Dr. Ken Broda-Bahm -

 
When the public answers current polling on the health insurance reform law, only a minority of 46 percent will say that they support it.  But when attention turns to the details of the plan, a majority supports the individual elements.  Even opposition to the dreaded "individual mandate" falls to just 35 percent when respondents learn they can keep their employer-provided health plan.  So given the opposition that materializes when the public is responding to "the law," rather than to its individual provisions, it appears that a good portion of the public is, to at least some extent, responding not to the actual policy, but to a symbol or caricature -- a strawman -- of the policy. 

So what does this have to do with litigation persuasion?  A lot.  Every lawyer has to both attack and defend, and in that role, you have both a challenge and a temptation.  The challenge is that your adversary will be characterizing your arguments, sometimes fairly and accurately, and other times, not so much, and you will sometimes need to clarify a position before you can defend it.  And the temptation is that you get to characterize your adversary's arguments, hopefully choosing a fair and accurate route over a strategic opportunity to distort.  Beyond the need to make and respond to good arguments, every advocate needs to make sure you are neither defending strawmen, nor creating them.  That is an obvious enough point, but according to some new research, as well as some old philosophy, there are some unexpected perils and opportunities for dealing with strawmen in the courtroom.

Know When to Take the Offensive in Defense of Your Product: Lessons from Taco Bell

By: Dr. Ken Broda-Bahm -

 Imagine this:  you're sued for making false claims about your product.  What do you do?  Issue a terse public statement and hunker down for discovery?  Not Taco Bell.  When an Alabama law firm filed a class action accusing the company of using meat filling with only 36% beef, the company responded by placing full page advertisements in Wall Street Journal, New York Times, USA Today and other papers that read "Thank you for suing us (Here's the truth about our seasoned beef)" providing a forceful response that the filling is 88% beef with the remaining 12% being mostly water and spices.  Now imagine that less than three months after filing suit, the Plaintiff withdraws the suit with no agreement or settlement of any kind.  What do you do?  Pop some Champagne corks and quietly go back to business?  Not Taco Bell.  When the Plaintiffs' withdrew their lawsuit last week, the company again took out advertisements in the countries' major newspapers.  But this time, the ads were even pithier:  "Would it kill you to say you're sorry?" the company asks the Plaintiffs' firm? 

However you may feel about Taco Bell as a cuisine or a company, there is something going on here that carries an important message for anyone who sells a product that may be find itself in the cross hairs of litigation.  The message:  Sometimes it makes sense to go on the offense.

Learn to Read Jurors’ Minds: Brain Research in the Courtroom

By: Dr. Kevin Boully -

Today’s lightning-fast technological innovation means more than increasingly sophisticated trial presentations and iPads in the courtroom.  Combining the ability to study decision making tasks using neuroimaging techniques (like MRI) with existing science on legal decision making, scholars and scientists are leading us into the future of studying law by incorporating neuroscience in more and novel ways.  According to some, the future is limitless and the inevitability of scientific fact-finding – such as neural lie detection and brain-based evidence of mental states – may eventually compete with the role of the American jury.

Time Your Arguments to the Judge's Lunch Breaks (and Adapt to All Decision Makers' "Cognitive Load")

By: Dr. Ken Broda-Bahm -

 

Anyone who argues in front of judges knows that human factors can weigh as heavily as the law in determining your judge's decisions.  But it is still possible at times to be surprised at the degree of influence, as well as the banality of those human factors.  Case in point: lunch and snack breaks.  Recent research discussed in the excellent Not Exactly Rocket Science blog appears to show that judges' decisions vary as a direct effect of the proximity of their morning snack or lunch break.  In case you are using your morning break or lunch hour to read this post, I'd like to make it worth your while by applying the study findings to the more general issue of your decision-makers' mental work load and offering some recommendations for anyone who needs to make arguments to a potentially fatigued audience. 

Aim Your Product Warnings at "FYI" and Not Just "CYA"

By: Dr. Ken Broda-Bahm -

  
A warning that calls attention to a product's potential danger is obviously an important part of a company's litigation prevention and defense.  But according to one recent statistic, a substantial portion of the public, and potential jury pool, may be a bit cynical on the question of whether warnings are designed to educate or just provide cover.  In a 2010 Decision Analysis survey on attitudes toward products liability litigation, fully 70% shared the belief that product warnings exist to protect companies in the event of lawsuits rather than to protect the public from product risks.  On the bright side, that means that if "CYA" truly is your motivation for consumer warnings, you won't be violating jurors' already low expectations by admitting it. On the even brighter side, it means that if you can convincingly reframe your own company's warning in the broader terms of public education, you may end up surprising jurors and gaining an important measure of credibility in the process.