Persuasive Litigator

Don't Be Spooked by a Legal Ghostwriter

By Dr. Ken Broda-Bahm: 

So you are facing a pro se adversary, and you expect that due to the lack of legal representation, this party is apt to produce briefing that is legally unsophisticated, and perhaps even entertaining, right?  Maybe not.  Just as pro se litigation has been on the rise, so too has its evil partner, legal ghostwriting.  When lawyers team up with a pro se litigant in order to provide anonymous help on a specific brief, or to engage in a more durable background role, there are good reasons to see that as a creepy development.  For one, judges are encouraged by common courtesy, as well as case law, to grant a considerable amount of leeway to pro se parties based on the assumption that they are acting as their own attorney.  If in fact the pro se parties aren't on their own, then they may be gaining an unfair advantage in the briefing process:  The best of both worlds, legal assistance plus lowered expectations. 

This development, now becoming frighteningly common in personal finance and creditor/debtor litigation, has some important implications for source credibility, fair procedure, and legal ethics.  Based on Peter M. Cummins recent article in For the Defense, as well as two related studies on judicial decision making, this Halloween post is going to take a look at how to identify and defend yourself against the legal ghostwriter. 

Yes, Virginia, There is a CSI Effect: Account for It in Your Science Case

By Dr. Ken Broda-Bahm:

The news media pounced on it, but the scholars said it didn't exist.  The "CSI Effect," or the tendency for high technology crime dramas to fuel a juror expectation for sophisticated investigations and definite answers, entered the popular and media imagination as a powerful effect that could stymie prosecution (by creating unrealistic evidentiary burdens) or hamper the defense (by conveying the illusion of certainty).  However, even as anecdotes abound, the research has failed to produce any study showing a clear CSI Effect among jurors.  That lack of research has led many to simply note that the effect is a figment of media imagination. 

However, new research suggests that this may be a case of researchers simply asking the wrong question.  Instead of asking whether the behavior of watching specific crime dramas causes a measurable shift in attitudes, what about accounting for the full spectrum of jurors' exposure to information about science by measuring the attitudes themselves?  According to a study released this past summer in the journal Psychology, Crime & Law (Smith & Bull, 2011), there is an identifiable set of attitudes about science that predicts reactions to evidence in case simulations, and ultimately predicts verdicts.  Whether these attitudes emerge in response to watching crime shows is more interesting to media critics, but less important to practicing litigators. 

What litigators need to know - including civil litigators who often rely on science to establish or critique elements like causation - is how attitudes about science will mediate juror reaction to your case.  This post takes a look at the research and suggests a new approach for addressing science-related bias.   

Parties, Witnesses and Jurors: Don’t Be Afraid to Meet Them Face to Face(book)

By Dr. Ken Broda-Bahm:

Here is a question of trust.  You're curious about a party, a witness, or a potential juror, so you log in to Facebook or some other social networking site to check them out.  It might feel a little creepy to be peeking in on the public representations of your target's private life, though as we've written in the past, as long as privacy walls aren't breached or circumvented, public information is public information.  Still, there may be one other reason for feeling quesy about the investigation:  What if the information isn't accurate?  What if, instead of using social media to share real facts about themselves and their personalities, they're using Facebook to fabricate idealized and distorted images of themselves? 

There is the natural drive toward social desirability, the human tendency to shade shared information in the direction of what we believe society would favor.  Is that a reason to doubt the information provided on Facebook?  According to some new research, no, because individual online profiles are much more accurate than you would think.  This post takes a look at the accuracy of social media, and provides some tips on the ways litigators can and should use that information.

Remember Herman Cain's "9-9-9" Plan, and Don't Forget the Power of a Good Mnemonic

By Dr. Ken Broda-Bahm:

Whatever you think of Republican Presidential contender and former pizza magnate Herman Cain, you've got to give him credit for creating a theme using only three digits... and a theme about tax policy, no less.  Mr. Cain has been ascendant recently in the race for the GOP nomination, largely based on the strength of a simple idea:  a 9 percent business flat tax, a 9 percent individual flat tax, and a 9 percent national sales tax.  Even voters who wouldn't otherwise favor the candidate can see a certain appeal in its simplicity and apparent fairness, with fully 56 percent of likely GOP voters and 36 percent of unaffiliated voters saying that they support "9-9-9."  The tax plan is getting closer scrutiny now as the candidate's star is rising, and much of that scrutiny is negative.  For example, Michelle Bachman has cogently pointed out that if you flip it over, it is the number of the beast.  To be fair, she used that as a springboard for noting that "the devil is in the details," which is itself a good mnemonic for the argument that most Americans would see increased taxes from "9-9-9." 

But one fact that legal communicators should take heed of is the power of a simple mnemonic expression.  If the plan lacked that easy handle, then chances are that it would be just one of the many policy positions that politicians cart around, and the public would not be talking about it.  In this post, I take a look at some of the research and experience on what makes a good mnemonic, and how litigators should apply that knowledge in creating your trial themes. 

Take a Lesson from the Conrad Murray Defense: Don't Make Promises in Opening that You Can't Keep

Dr. Ken Broda-Bahm:

It is generally a mistake to change strategies in the middle of trial.  Dr. Conrad Murray, the personal physician hired to care for Michael Jackson during the rehearsals for his comeback tour, is now in trial on involuntary manslaughter charges in the entertainer's death, based on his administration of Propofol, a drug usually administered only in hospital settings.   Over the course of more than a year leading up to the trial, the theory the defense touted in the press has been that the singer, unable to sleep, dosed himself with the powerful sedative by drinking it in a glass of juice. 

In telling the jury the same story in opening statement, defense attorney Edward Chernoff said, "When Doctor Murray left he room, Michael Jackson self-administered a dose of Propofol that, with the lorazepam created a perfect storm in his body that killed him instantly."  But the appearance, at least, is that this theory is being abandoned.  This past Wednesday, attorney Michael Flaningham told the judge that the team would no longer pursue the defense that Michael Jackson killed himself by ingesting Propofol, after doing their own study showing that ingestion would not have been fatal.

As the trial resumes tomorrow, this puts a large question mark over the defense, while also providing a good lesson on caution in opening statement:  don't overpromise, and don't violate the jury's or the court's trust by telling a story that you cannot prove.  This post takes a closer look at the Murray defense shift, along with some relevant research on the effects of weak evidence, and provides a few recommendations for keeping your opening and your case on the right side of caution.