Persuasive Litigator

Aim Your Damages, And Your Case, at "The Golden Mean"

By Dr. Ken Broda-Bahm -

 

Aristotle, the original philosopher of communication, wrote in The Nicomachean Ethics about "the Golden Mean, " or the idea that virtue is often a happy medium between two vices (for example, courage is the virtue wedged between the vices of recklessness on the one hand, and cowardice on the other).   More recently,  Dennis Elias, an influential voice in the field of trial psychology, wrote in his blog, JuryVox, about current research showing that this thinking also applies to damage requests in litigation:  When a requested amount is framed as a reasonable mid-point between two unreasonable extremes, it is more likely to be selected by jurors.  

It stands to reason, and even common sense, that such a "middling" process applies to the quantitative act of assigning damages, but psychologically, the same process works in other acts of legal decision making as well.  Our adversary system expects advocates to stick to a "my position is best" frame of mind, but decision makers are always implicitly or explicitly asking, "compared to what?"  Juxtaposition to the other party is just a binary comparison of "this" or "that," inviting the jury, judge, or arbitrator to look for a point in between.  So the trick is to create your own internal comparison, making your preferred outcome look like a point in between two extremes.  That can mean making your damages request look more reasonable by contrasting it with what you're not asking for, but it can also mean making simple "negligence," for example, look like the right mid-point between "fraud," and "getting off Scot free."

Diagnose Your Difficult Witness

By Dr. Ken Broda-Bahm -

 
In the pivotal scene of “My Cousin Vinnie," a movie beloved by those who follow legal persuasion, the defense attorney, played by Joe Pesci, asks the judge permission to treat his now estranged girlfriend as a hostile witness.  This is a request that the judge, with a knowing look, quickly grants.   The scene provides an important reminder that even when a witness might formally be on your side, there could be one or more dynamics at work making your own witness "hostile" to your interests. 

I was recently asked by a legal team faced with the task of defending the depositions of a large number of witnesses how to handle difficult witnesses who could not, or would not, answer questions with the sensitivity or strategic sense that a situation demands.  Such a witness may be prone to emphasize dangerous aspects of testimony even after being clearly shown by counsel why it is dangerous.  As I've written before, woodshedding the witness with strong "say this..." instructions is not the answer, for reasons both practical and ethical.  Instead, the first step in preparing the marginal or reluctant witness is diagnosis:  It matters why the witness is not getting the message.  There are a few different possibilities:

Careful, Your Animation May Be Promoting Hindsight

By Dr. Ken Broda-Bahm -

 
Standing in front of a legal fact-finder you need to visually persuade and you also need to defeat the psychological biases that can harm your case.  But here is a terrible thought:  What if one of the best tools of visual persuasion has the unintended side-effect of promoting an often harmful psychological bias?  Well, the bad news according to recent studies is it does.  Animations used in a legal context (for example, the often used accident reconstruction in personal injury cases) have the demonstrated effect of increasing hindsight bias, or an over estimate of one's ability to have foreseen an outcome after that outcome is known.  Once visualized, events appear to be more predictable and controllable than they would be if they were not visualized, a mental effect that can cause jurors to blame injured parties for not protecting themselves, or to blame defendants for not addressing a problem that became clear only in retrospect.   

When it comes to viewing an automobile collision, for example, seeing is not just believing, it is believing in hindsight the accident could have been foreseen and avoided.  But for parties the need to prevent or minimize hindsight, here is the good news:  By making your animations more realistic in specific ways, you are preserving the advantages of enhanced understanding, without introducing unrealistic hindsight.  This post takes a look at the research, as well as the recommendations on creating animations that teach without biasing. 

Account for the Graying of Your Jury Pool

By Dr. Ken Broda-Bahm -

 
In a recent viral video on YouTube an old couple peers into a computer webcam, trying to figure out how to operate the device, not realizing that they are recording themselves.  Beyond providing a charming vignette, the clip might also be seen as a window into the future of the American jury.  As the pool of eligible and available jurors continues to get older, there are a few things to take into account, and a few misconceptions that the research tells us to set aside. 

Older Americans face stereotypes when it comes to technology, but as the video couple's game efforts show, the fastest growing Facebook demographic is poised to rewrite the rules of what it means to be senior.   Assumptions about the elderly as jurors are similarly suspect.  In particular, a recent study focusing on the decision making advantage of older adults gives you reason to question further before assuming that your older juror is going to have a harder time following the case and reaching a decision. 

Protect Your Jury From the Poison of the Crowd

By Dr. Ken Broda-Bahm -

Crowds can be scary things.  At a debate this past Monday (September 9th), Republican Presidential candidate, Ron Paul, was asked if his stance against government mandated health insurance would dictate denying care to a hypothetical man who found himself in a coma without the benefit of catastrophic health insurance.  "Are you saying," Wolf Blitzer asked, "that society should just let him die?"  In response, a chorus of voices from the audience shouted "yeah!"  Less than a week earlier, in a similar Republican candidates debate, Texas Governor Rick Perry received his biggest applause of the night, including cheers, hoots, and whistles, when the moderator noted the Governor's two hundred and thirty four executions.  It is a record for a modern governor, and there is compelling evidence that at least one of that number was innocent.  But my point is about neither healthcare, nor the death penalty, but about what happens to opinions when they become the voice of the crowd rather than an individual's judgment. 

There is mounting psychological evidence:  Collective judgments differ dramatically from individual judgments, and the "wisdom of the crowd" also has a dark side in the form of a herd mentality.  Our system of jury trials - with strict rules of evidence and reliance only on information presented in the courtroom - is designed precisely to combat mob rule.  As the recent trial of Casey Anthony, as well as the upcoming trial of Dr. Conrad Murray illustrate, maintaining that distance from the crowd's beliefs can be difficult.  This post includes some research and advice, not only for high profile trials, but for any trial that has you running against something that the mob at large takes as truth.