Persuasive Litigator

Leverage the Persuasive Advantages of Beating Expectations

By Dr. Ken Broda-Bahm:

A surefire path to greater credibility is to meet every high expectation, but a close second is to defy low expectations.  That is an important lesson for litigators, and that is also what presidential candidate Ron Paul has in common with Denver quarterback Tim Tebow:  the ability to do a lot better than most people had expected.  No matter what you might think about the persona and policies of the unusually libertarian Texas Congressman, his ability to come in as a strong second in Tuesday's New Hampshire primary provides a compelling answer to those who considered him footnote in this race.  And no matter what you think of the persona and the play of the unusually prayerful ex-Gator, now in the Mile High City (Go Broncos!), his ability to pull a rabbit out of the hat in fourth quarter or overtime these past few weeks has been a pretty convincing answer to his many critics.  

Like Ron Paul and Tim Tebow, litigators also suffer from low expectations.  For many jurors, the very fact that you're in litigation -- whether as a plaintiff or defendant -- means that you've done something wrong.  Plaintiffs carry the expectations of low personal responsibility, frivolous claims, and greed.  Defendants carry the expectations of wrongdoing, callousness, and like plaintiffs, greed.  But for both parties, there is a silver lining to low expectations:  Crafting a trial message that exceeds those low expectations is a great way to build credibility and encourage your audience -- jury, arbitrator, judge, or mediator -- to listen to you with fresh ears and an open mind.  This post looks at the psychology of violating expectations, and makes recommendations for both plaintiffs and defendants.  

Mind the Gap: Stop Jurors From Jumping Straight From Liability to Damages

By Dr. Ken Broda-Bahm:

"Whatever happened to causation," defendants sometimes wonder.  For example, a drug company is targeted for inadequate testing, and for attempting to hide research showing a statistical link to cancer.  The Plaintiff took the drug, and now has cancer.  For many jurors, that would prompt them to break out the check-book:  "Liability established... Lets talk damages!"  But the key question lying in the gap between these two conclusions is causation -- Did the drug, in this case, cause the Plaintiff's cancer? 

As often as we observe jurors wanting to hurdle over causation, it is surprising the problem hasn't received more attention in the trial persuasion literature.  But the issue has attracted the interest of those focusing on moral decision making more generally.  One new study (Inbar, Pizarro & Cushman, 2012) examines the conditions under which actions that have caused no harms are nonetheless judged to be morally blameworthy.  Working from this study and other experience, this post suggests four ways for defendants to mind the causal gap between liability and damages.

Take a Lesson from Political Campaigns: Going Negative Works (Partially)

By Dr. Ken Broda-Bahm:

As the pack of Republican presidential contenders heads out of Iowa, there is an important lesson for litigators and other persuaders, but it is partly simple and partly complex.  The simple part is that negative campaigning works.  Just ask Newt Gingrich who was on the receiving end of more than four million dollars worth of attack ads run by Mitt-friendly PACs in the weeks leading up to Tuesday's Iowa caucuses.  Gringrich, who just weeks earlier had been ahead of Romney in the polls, settled for a fourth place finish while Romney managed to eke out a victory.  As much as we like to believe that politics, like litigation, is all about presenting a positive vision, the reality is that negative appeals can be dramatically effective. 

The complex part of the lesson is that the effectiveness of negative appeals can vary based on source, timing, and the overall balance of your message.  A number of factors, particularly relevant in a litigation context, influence when a pointed attack on your adversary will work, and when it will bounce back at you, reducing your credibility more than your opponent's. 

Best Trial Idea of 2011: Apply "Social Listening" To Your Case

By Dr. Ken Broda-Bahm:

Our blog, formerly "Litigation Postscript," is now "Persuasive Litigator."  This new name highlights our focus on the practical application of psychological and communication research and theory to the persuasive burden faced in all litigation phases and contexts.  Thanks for reading.   

As we turn the page on a new year, it is a good time to look back on the trials of 2011.  The year had its share of high profile cases from the 'second times a charm' prosecution of Rod Blagojevich, to the conviction of Dr. Conrad Murray, and even the grand jury phases of the Jerry Sandusky trial.  In these cases and others, the year held many great trial moments, but as far as the trial moment with biggest impact on litigation generally, the distinction goes to the Casey Anthony case, not for its deeply unpopular verdict, but for methods applied in the defense, and what these methods can mean for your trial. 

Consultants working for the Casey Anthony defense applied a strategy called "social listening" to this uniquely public trial, analyzing more than 40,000 posts, tweets, and other social media comments on the case in order to, in effect, conduct a daily national focus group on the trial as it progressed.  While few, if any, cases will ever reach that fever-pitch of commentary, the technique of systematically analyzing content from public sources can apply to trials across the spectrum, providing another sounding board and tool for assessing your case.  In the Anthony trial, the social media world responded daily, and with specificity, to the evidence and witnesses of the trial itself.  That will only happen with high profile trials, but in other cases, the blogs, tweets, and comments ricocheting around the internet will still bear on issues that matter to your case.  This post takes a look at what social listening means, and how it can be used in cases large and small.