Persuasive Litigator

Create the Conditions for a Creative Trial Strategy

By Dr. Ken  Broda-Bahm:

Around the war room conference table, all of the eyebrows went up at once as I shared a recommendation for the opening statement.  I can't share the idea without revealing the case, but suffice it to say that it was unorthodox.  Several around the table shared that they had never done an opening that way before, and I countered that they had probably never tried a case with exactly these challenges before. 

As much as litigators like to believe that they are at the cutting edge of persuasion, I've often found that they can be quite conservative in their approach, sticking to the same basic messages and approaches, and just altering the facts they feed into the formula in order to fit each case.  We will say that we value creative ideas, but in our actions, we tend to prefer the "known" even when the known is known to have some problems.  It turns out that this ambivalent attitude toward creative ideas is shared by the public at large.  This post takes a look at a new research showing why we secretly fear creativity, and offers several recommendations for making sure that your trial preparation benefits from both the creative and the conventional. 

You'd Better Be Good (But If Not, Presenting the Naughty With the Nice Makes For a More Credible Trial Story)

By Dr. Ken Broda-Bahm:

"Your honor, this pattern of making a list for those deemed "Naughty" and "Nice" has the clear and foreseeable consequence of disparate treatment - namely, coal and switches - for those in the former cateorgy, and can only be seen as a persistent (annual) and intentional (he 'checked it twice') pattern resulting in the intentional infliction of emotional distress."  

Before you assume that I just didn't get what I wanted for Christmas, there is something to be said from a legal persuasion standpoint against the segregation of the naughty from the nice.  Almost inevitably, there will be weaknesses and bad facts in your case.  Smart lawyers know that denying or ignoring the warts of your case just makes them grow.  In nearly all cases, focusing only on the "Nice," by asserting that you did everything right, leads to distrust, while acknowledging a little "Naughty" and a few missteps helps you bank a bit of credibility.  And new research backs that up.  In this post-Christmas post, I will look at the implications for trial strategy coming from a new study showing that mixing positive and negative content actually reduces bias against a target group more effectively than positive content alone.   

Don't Be Faceless

By Dr. Ken Broda-Bahm:

Speaking of faces, it turns out that Facebook is planning to sue Mark Zuckerberg.  No, not that Mark Zuckerberg, the iconic founder of the world's social media homepage, but an Israeli businessman, formerly named Rotem Guez, who legally changed his name to Mark Zuckerberg in order to support a business that can only make sense in today's ephemeral market:  selling "likes" to companies who, you know, want to feel more "liked" in their online presence.  Facebook itself might even fit in that category, since it and Mark Zuckerberg -- the real one, CEO and President -- have increasingly faced both criticism and impending lawsuits for privacy practices and for integrating personal information into advertising.  Increasingly, Facebook is simply seen as another very large and powerful corporation.  Setting aside the personality of Zuckerberg (both of them), it is interesting to see how quickly the fresh, young, and edgy start-up can morph into the faceless monolith in the market. 

We've written before on the effect of personifying companies in litigation in order to address this "faceless" presumption.  Recent research coming out of Northwestern, however, points to some new implications for corporate identity in the courtroom.   Specifically, the study (Waytz & Young, 2011) suggests that the more people think of a group as having a "mind," the less individuals within that group are credited for having their own thoughts, intentions, and plans.  In other words, a company's perceived "corporate culture" can trump the individual agency of its executives and employees.  This post takes a look at the research and its implications for companies in litigation.

Find the “Universal Morality” in Your Case Story

By Dr. Ken Broda-Bahm:

Most litigators now understand that their case fares better when it is framed as a story.  And everyone knows that a good story always carries a point or a moral.  Even information that follows a narrative structure (e.g., I went to a store, then bought broccoli, then returned home) isn't received as a "story" unless it carries a fundamental lesson, message, or moral.  That means that morality -- not necessarily in a religious or profound sense, but in the practical sense of a preference for the good over the bad -- is an element in every case story.  But litigators, even those who take it to heart to tell a story in their case, aren't always clear on where to find the moral of their story.   

We know also that it depends on who you are talking to, and the particular morality that we tie to our case depends on the judge, jury, or arbitrator we are addressing.  New social psychology research, however, points to the possibility that there are shared dimensions of morality -- observable factors, that to at least some extent, transcend culture, religion, and political outlook, forming that holy grail of moral philosophy:  universal good.  Pulling this notion down from the clouds and applying it to your case, this post focuses on how you can increase the meaning and improve the effectiveness of your story by targeting these universal moral elements.

Tap Into Computer-Aided Jury Selection: A Video Review of Jury Box Software

By Dr. Ken Broda-Bahm:

Software can't pick your jury, but should be able to help keep track of the information that leads you to that choice.  Jury Box is a piece of software designed by Adam Gordon, a Deputy District Attorney for San Diego County, to aid attorneys and consultants in collecting and organizing information during voir dire.  The program has just released its latest update, Version 3.03, and in this post, I review the software and comment on some of the advantages that the program offers over others on the market. 

The video appears below, but first I wanted to provide some context.  A little over six years ago, I was involved in a jury selection in a large and complex case.  The judge had required the attorneys to direct all questions to not only the venire members in the box, but to those in the gallery as well.  It was a nightmare keeping track of information.  For example, when a question was posed to fifty potential jurors, and twenty-seven of them raised their hands, briefly in the affirmative, many answers were missed, and as the questioning drug on into the second hour, our Post-its were so crammed with text that they were nearly unreadable.  Looking around at the trial teams with elaborate electronic technology set up for document display, yet scrambling with the crudest forms of paper and pencil systems for keeping track of what we were learning from the panel, it hit me.