Persuasive Litigator

Don't Put "Story" on Too High a Pedestal

By Dr. Ken Broda-Bahm:

Many hold that stories are essential to effective communication, and I am among them.  Especially in litigation, there is a natural role for stories as a glue holding together the facts and the law, the ethics and the evidence, the logic and the persuasion.  I believe that and apply it in my practice every day.  So when I heard about Tyler Cowen's TED talk encouraging people to distrust and to rely less on stories, I approached it with some suspicion.  When I viewed the remarks on YouTube, it was with an eye toward refuting Dr. Cowen.  As I listened to the economics professor's remarks, I found myself rejecting some parts of his argument.  Rather than being "a kind of candy," "a kind of mental laziness," or "a kind of self-deception," it seems more likely that stories are an unavoidable part of cognition and the way we make sense of the world.  But I found myself agreeing with other sentiments, like the tendency of stories to sometimes invent intention, and to make "the mess" that is life appear to be unrealistically organized and driven by clear plot lines.  I considered the possibility that maybe we do rely on stories as a crutch, particularly in complex litigation, to simplify things that ought not be simplified.  Then I thought, "Oh my god, what if he is right?" because up to this point in the blog post, all I've been doing is telling a story. 

In the end, looking at the ways Tyler Cowen's thoughts apply to narratives in litigation, I found some things to keep and some things to set aside.  In this post, I share some thoughts on adapting storytelling to the legal realm, and importantly, adopting to a legal audience's potential skepticism toward stories. 

Don't Make Fake, or Fatal, Apologies

By Dr. Ken Broda-Bahm:

Apologies are very much in vogue.  If you accidentally run your cruise ship aground, or surreptitiously wiretap phones in order to discover great newspaper stories, then it has become a well-known next step in the script to make a public apology.  The shamed politician, loose-lipped celebrity, and the guilty criminal all recognize the value in facing the music and taking their lumps.  We've written in the past that apologies figure prominently in civil litigation, as well as sometimes draining away some of the anger that motivates a suit, leading to a more favorable result in settlement or to lower damages in trial.  For a defendant facing the likelihood of at least some liability, it is worth thinking about whether a timely "I'm sorry" might lead to an improvement. 

But all apologies are not created equal.  In fact, one interesting study reveals that there are multiple ways to make a fake apology.  When "I'm sorry" isn't sincere, jurors may catch on.  Even where apologies are sincere, they are not necessarily wise.   While there are some circumstances that make an apology strategic, there are other circumstances where, true to lawyers' common concern, an apology can end up falling flat, just opening you up to a larger verdict. 

This post takes a fresh look at apologies, considering the fake and the fatal, as well as the circumstances that make a sincere apology a good idea.  

Don't Be Entranced By Statistical Claims From Mock Trial Research

By Dr. Ken Broda-Bahm:

At a conference, I once met another consultant who actually claimed that his mock trial findings would line up with actual trial results with a definite confidence interval of, he said, plus or minus five percent.  It was one of those conference moments when you realize that you urgently need to talk to someone else, because to anyone with even a rudimentary understanding of research methods, the claim was absurd on its face.  A mock trial will not predict your actual trial results for a number of reasons.  But beyond that, there are important limitations on the ability to apply statistical tools to the results of mock trial research. 

This is a critical point for litigators, as mock trial consumers, to understand:  While good design and research practices matter, and mock trials are able to yield many conclusions that are heuristically valuable and of great practical use, only in limited circumstances are mock trial researchers able to communicate a finding and follow it up with, "...and that is true at a point-o-five level of statistical significance."  In this post, I provide my own thoughts on the modest role of statistical methods in the small group research context of most mock trials and focus groups, helping the litigator/consumer find the best middle ground between two extremes:  promoting an indifferent "methods don't matter," perspective on the one hand, or promoting a narrow "what is statistical is what is true" conclusion on the other.  Both positions are equally damaging to the intelligent use of mock trial research.

Add Another Pair of Eyes to Your Case Assessment

By Dr. Ken Broda-Bahm:

Leave it to the engineers.  While we all have our subjective methods of estimating our odds in litigation, in the field of construction litigation, the act of handicapping has apparently been raised to a level of mathematical precision.  Computer modelers have found a way to input known factors and predict construction trial outcomes with a success rate of 83 percent!   I'm not sure if it is possible to hire those modelers or not, but the general approach tells us something important about case assessment in all contexts:  Instead of giving in to your trial team's group-think and confidence-boosting habits, give weight to multiple sources of information and strive for the most objective indicators of your chances in trial. 

This post takes a quick look at the little known (to me at least) practice of mathematical case prediction in the construction litigation field, before turning to the more general question of how litigators should strive to get an unbiased sense of their chances for success or failure in trial.  Specifically, I take a look at some new research on how attorneys use, and misuse, the second opinions that are so commonly sought in litigation.  Apparently, asking another lawyer what they think of your case doesn't work as well when you give that second opinion less weight than your own.

View Your Case Through a Rich/Poor Lens

By Dr. Ken Broda-Bahm:

The American dialogue on class has recently shifted.  A new Pew Research Center survey finds that a solid majority of Americans, 66 percent, believe there are "strong" or "very strong" conflicts between the rich and the poor.  In 2009, that figure was just 47 percent, and the most marked increase has been among those who have historically perceived the lowest levels of conflict:  white Americans.  In accounting for that change, some credit needs to go to "Occupy Wall Street" and similar encampments across the country, that even lacking a clear agenda have nonetheless succeeded in placing the the rich/poor gap on the national agenda. 

The conflict has even found its way into the unlikeliest of places -- the Republican Presidential nominations race -- with Mitt Romney's opponents focusing on his work in the private equity world.  Rick Perry called Romney a "vulture capitalist" and New Gingrich noted, "I think there’s a real difference between people who believed in the free market and people who go around, take financial advantage, loot companies, leave behind broken families, broken towns, people on unemployment."  Combined with the "occupy" movement and the campaign, credit for the increasing salience of "class warfare" can also be placed on objective conditions:  very hard times for most, a shrinking middle class, and a true income gap that is wider than it has ever been.  The issue matters for those who work in civil litigation, a forum that is itself often viewed as a fight over money.  This post looks at the importance of class-based thinking to civil litigation, and provides some ideas on case positioning for venues and jurors likely to see your case through a rich/poor lens.