Persuasive Litigator

When it Comes to Bad Defense Venues, Treat Perception as Reality

By Dr. Ken Broda-Bahm: 

Perceptions can be tricky.  Take the picture above for example:  If you'll do something right now, I promise that you'll be amazed.  Stand up from in front of your monitor and step back about 15 feet from the computer, and you'll see Albert Einstein turn into Marilyn Monroe.  Seriously!  The image doesn't change of course, but with the right distance your perception of it will suddenly shift. 

I found perception playing a similarly important role in my work the other day.  A client had asked me for an opinion on choice of venue.  He had the option of three different counties:  two were suburban with a high Republican population, and the third was urban with more registered Democrats.  A plaintiff in this case, the client asked if it was true that the more urban venue would be better for him.  My answer was, based on our data and experience, it is true.  But then my perspective suddenly shifted, and I realized that in a larger sense, it doesn't really matter if it is true because it is generally perceived to be true.  That might sound cynical, but what I mean is if this case is like the close to 98 percent of cases that settle before trial, then the perceived characteristics of the venue will matter far more than the actual characteristics of the venue.  Siting the case in the perceived pro-plaintiff venue will serve as better leverage for a good settlement.  Taking a look at the notion that when it comes to bad venues and cases that settle, perception is reality, this post offers some recommendations for looking at your venue with new eyes.  

Help Jurors Stay Off the Bandwagon

By Dr. Ken Broda-Bahm:

Sometimes the bandwagon isn't a bad place to be.  If your case embraces what is likely to be the popular position (e.g., the big company is to blame or the accused is guilty), then a tidal wave of opinion reaching a swift conclusion, and sweeping the doubters along in its wake, might seem like a pretty good thing.  But lawyers often find themselves on the opposite side of that dynamic.  In the toughest cases, your preferred verdict will rely on jurors exercising their own independent judgment long enough to consider the unpopular view and avoid being swept up into the bandwagon.    

In that setting, does the attorney simply hope that a critical mass of jurors will have the fortitude to resist the crowd effect?  Or are there techniques that a legal persuader can apply in order to bolster arguments against the bandwagon?  A new research article, interestingly a piece focusing on jury size and the likelihood of hung juries, has something so say on the point.  Starting with the fact that smaller juries are as likely to produce hung juries as larger juries, the analysis suggests that the reason for this paradox can be found in what it calls "informational cascade," or the bandwagon dynamics of the group.  This post looks at the research and provides some advice for those times when you want to combat the cascade. 

When Your Case Follows a Bellwether, Prepare Jurors to Hear only Part of the Story

By Dr. Ken Broda-Bahm and Dr. Kevin Boully: 

The first bellwether case in Toyota's "Unintended Vehicle Acceleration" litigation has just been selected by a judge in California.  To some, that may come as a surprise, since it might have been assumed that these cases would have deflated after the National Highway Traffic Safety Administration (NHTSA) concluded a year ago that there is no electronics-based cause.  Then, just last week, an exhaustive investigation by the National Academy of Sciences again failed to find a causal link between vehicle electronic throttle-control and sudden acceleration.  Yet still, it appears, the cases have continued like...well, like some kind of unstoppable vehicle.  That suggests there may be more to the story than what we're seeing in the press, and we will have to wait on the trials to find out.

The interesting point for me at this stage is the emerging "bellwether" structure.  The term originally refers to a sheep that leads other sheep by virtue of a bell around its neck.  In litigation, however, the bellwether structure is increasingly used to select a specific case, or a few cases, from among a much larger group of similar cases to be tried first in order to resolve some of the broader issues in the litigation.  A finding of liability and general causation, for example, might be established for all plaintiffs, leaving it to the rest of those in the group to just prove specific causation and damages.  The practical effect of a bellwether structure is generally to encourage settlement, but for the vast majority of cases that are "nonbellwether," it means that there is at least some chance to go to trial with a number of issues already established by another jury.  That is undoubtedly an advantage for plaintiffs, yet it also raises some interesting communication challenges.  Is it possible to fully motivate and persuade these nonbellwether juries if they are only hearing part of the story?  Does it have an effect on the damages awarded?  This post looks at the relevant research, and makes a few recommendations for cases within a bellwether model.