Persuasive Litigator

Make Better Decisions By Fighting Within Your Trial Team

By Dr. Ken Broda-Bahm:  

Litigators expect to be fighting with the other side.  After all, that's what trial is about.  But when it comes to making decisions within our own teams, we should avoid criticism, all pull as one, and cooperatively come together around a common strategy, right?  Wrong!  Instead, we should be fighting it out, criticizing the choices we don't agree with, and debating over the best course of action.  An innovative study on decision making and team function shows that working groups actually tend to be more effective not when they're brainstorming and avoiding judgment and criticism, but when they're engaged in in an atmosphere of intense debate and even criticism.  

If at some point in your education, you've been taught the techniques of traditional brainstorming, then this advice will sound counter-intuitive.  The foundation of the cooperative thinking technique is that, initially at least, we should welcome all ideas and refrain from criticism or debate.  The belief is that by avoiding criticism, we decrease conflict and fear of evaluation and as a result we allow more and better ideas to flourish.  That sounds logical, but the problem is that there isn't much empirical support for the power of brainstorming - it doesn't work that way in the lab.  Instead, settings that welcome internal debate and even criticism appear to do much better.  The message of this post is that your trial team is an ideal setting for putting this advice into practice.  After taking a look at the research, I make a couple of recommendations for effectively bringing the fight to your team.  

Female Attorneys: Expect (But Don't Accept) a Subtle Bias in the Courtroom

By Dr. Ken Broda-Bahm:

I've sometimes been asked, "what is the effect of the attorney's gender to a jury?"  It would sure be nice to be able to reply, "it doesn't matter -- a good attorney is a good attorney."  But what does the data say?  Last week, the Forbes-affiliated "She Negotiates" blog reported on a survey conducted by the consulting firm DecisionQuest of several hundred jury-eligible individuals on the subject of gender in the courtroom.  The survey's conclusion:  "In the vast majority of cases, the gender of the advocates simply does not matter to jurors."  Hurray, right?  No, not so fast:  Based on the survey's method and other research on attorney gender, advocates are on firmer ground assuming that there is at least some bias that at least some jurors will attach to a female attorney. 

The problem with the DecisionQuest approach is that it focused on self-reports and self-perception of bias -- sort of like asking "are you sexist?"  There is a strong social desirability bias weighing in favor of saying "no, I'm not!"   So 97 percent of their survey respondents feel that "female attorneys are no more or less qualified than male attorneys," and that at least carries the good news that overt and intentional bias is out.  But the question is whether jurors behave in a biased fashion in response to male and female attorneys.  And here, there is a fair body of research saying, "yes, they do," and that conclusion is buttressed by a recent study showing that female attorneys don't even fare equally in front of the United States Supreme Court.  This post takes a brief look at this gender bias in the courtroom and provides a few simple lessons for advocates to apply in resisting it. 

Don't Be Too Sure About Face Reading Your Jury

By Dr. Ken Broda-Bahm:

If you are in court with a sitting jury, you can’t help but watch them for facial responses.  Whether you are at the lectern, counsel table, the witness box, or the gallery, it is irresistible to observe the panel and it is inevitable to form conclusions about their attitudes toward what they’re hearing.  But how much can you trust that face reading ability?  We have heard about individuals with the power to assess intention and separate truth from lies by paying careful attention to the details and "microexpressions" of the human face and body.  Popular television has even discovered the phenomena in the series Lie to Me based on the work of Paul Ekman, the psychologist who pioneered the practice. 

The more I’ve learned about these techniques, the more I’ve suspected that they may be over-selling the reliability of the connection between a definite emotion and a facial or non-verbal expression.  While facial and other nonverbal responses obviously convey meaning, it seems likely that they don’t do so like a spoken language does, with a given meaning assigned to a specific physical response.  A raised eye-brow or a crinkling around the eyes can mean dozens or hundreds of things depending on context and depending on the individual.  Personally, I haven't emphasized "jury watching" because I don't believe there is a mechanical relationship that provides a reliable interpretation.  And now a recent analysis of the literature published in Current Directions in Psychological Science suggests that my suspicions are well placed.  Northeastern University Professor Lisa Feldman Barrett (2011) looks at what is called the "basic emotion" school of thought suggesting that expressions are readable because they are biological and cross-cultural.  Contrasting that with more recent research, she makes the argument for a more nuanced view of the relationship between feeling and face.  In this post, I’ll look at what that analysis has to say to those watch jurors in the courtroom.

Don't Just Display Graphics, Interact With Them

By Dr. Ken Broda-Bahm:

Effective legal persuasion requires both show and tell.  No one -- not jurors, judges, or arbitrators -- like presentation that is just a talking head.  We know from our own experience and research that using graphic designers to develop effective demonstrative exhibits is a way to improve comphehension, help you appear more credible than the other side, and make the key points more memorable.  But our research has also shown that it isn't just the graphics, it is the way you use them that matters. 

We tend to think of graphics as being either static (boards and slides that are shown) or animated (video that is played).  Increasingly, however, technology is encouraging a third way:  interactivity.  The idea is that a graphic should respond to your commands in order to display different ways in different contexts.  It shouldn't just lay there like a static graphic, or play in a start-to-finish fashion like a video or animation.  The ability to interact is ideally suited for the informative and persuasive needs of litigation. 

Since we have just completed the development of an attitudinal scale to measure juror bias against corporations, the Persuasion Strategies Anti-Corporate Bias Scale, we wanted to see if we could use our graphical prowess to develop a simple but accurate way to explain a relatively large amount of data.  The result is an infographic that we've included at this link (Flash required) and explained in a brief video below.  Developed by Nick Bouck and Erik Brown and programmed by David Carter, it is an interactive chart that illustrates not only the scale, but what you can do with graphics in court as well. 

Don't Say Nothing: The Limitations of "No Comment" as a Litigation Crisis Strategy

By Dr. Ken Broda-Bahm:

A Google search on the phrase "no comment" appearing in recent news yields thousands of hits -- various individuals and organizations responding in time-honored fashion to some sort of crisis.  Recently, for example, after CNN Analyst Roland Martin had his finger too close to the Tweet button during the Super Bowl and broadcast a homophobic response to David Beckham's underwear advertisements, the network responded to mounting cricitism and petitions with "no comment" for several days before ultimately suspending Martin.  While careful decisions can require delay, the problem in a sustained "no comment" approach is that the silence fuels doubt and uncertainty while allowing the other side of the story to hold the floor uninterrupted.  Given that you can't "not communicate," your silence is inevitably interpreted in a variety of ways, most of them quite negative. 

Recently, I was approached by a company that had just received some bad press on an impending lawsuit.  Understandably, the in-house and outside counsel were united in a "please don't respond" position, while the PR department -- also understandably -- pleaded, "we've got to say something."  Ill-advised public statements naturally carry a risk of creating evidence and complicating a future trial defense.  However, when the litigation related crisis has the public's attention, silence from a party creates a cloud of doubt and an empty space that can only be filled in by those on the other side.  That route creates problems from both a PR perspective and a legal perspective by tainting a venue and influencing potential witnesses.  Making the argument that in this day and age, the time-honored "no comment" is a presumptively flawed prelitigation strategy, this post focuses on striking the intelligent balance:  avoiding both a "no comment" as well as a bad comment.