Persuasive Litigator

Don't Let Your Judge Reduce You to Absurdity

By Dr. Ken Broda-Bahm: 

Justice Scalia strongly believes that you should not be forced to buy broccoli.  This week, the U.S. Supreme Court is addressing the legality of the Affordable Care Act, with Tuesday's oral arguments focusing on whether an individual mandate to buy health insurance is consistent with the Constitution's Commerce Clause.  Defending the law, Donald Verrilli argued that Congress is regulating the interstate market for healthcare, and since everyone needs healthcare sooner or later, and insurance is the main method of paying for it, congress can require individual insurance coverage.  "It may well be that everybody needs healthcare sooner or later," Justice Scalia fired back, "but…everybody has to buy food sooner or later, so you define the market as food, therefore, everybody is in the market; therefore, you can make people buy broccoli.”

It is a favored method of judicial counterargument, termed reductio ad absurdum, the Latin phrase referring to disproof by showing that the argument leads to absurd conclusions.  Tuesday's oral argument focused to a large extent on this style of argument with, for example, Chief Justice Roberts talking about required cell phone purchase and Justice Alito talking about requirements to finance burial services.  There is a formula for addressing this common style of argument.  Whether it will end up being successful or not remains to be seen, but the response was on full display in Tuesday's arguments.  Taking a cue from this current hearing, this post will take a closer look at the logic of the argument style and its response, as a guide to all lawyers who want to prevent your judge from taking the argument from where you built it to an absurd place.   

Don't Build Your Jury Out of Leftovers

By Dr. Ken Broda-Bahm: 

Q:  What is a jury?

A:  A group of citizens who aren't smart enough to get out of jury duty and aren't interesting enough to attract the attention of either side.  

Okay, so that is an unfair joke, but it hints at a reality of the jury selection process:  The jury that you end up with is composed of what is left over at the end of the process.  According to a recent piece in The George Mason Law Review (Stevenson, 2012), our system's voir dire and strike methods, as well as the role of jury consultants, have the effect of targeting and removing the most known and most predictable panelists, producing a jury composed of the least known and least predictable members, which increases the uncertainty and unpredictability of the trial process.  The article, written by South Texas College of Law Professor Dru Stevenson, is an interesting read, calling into question some of our most cherished assumptions about the jury system, but the author makes some assumptions of his own on the way voir dire is conducted as well as the role of consultants in that process. 

Of course, the empaneled jury must literally be made up of those left over after strikes are exercised and cause challenges are made.  But that shouldn't make the actual jurors into the "mystery meat" of the venire.  Placing our focus on striking panelists shouldn't mean that those who serve are unknown or an afterthought who are seated once all our attention has been expended on those we strike.  This post takes a look at some of the conclusions of Professor Stevenson's article, and adds some recommendations for making sure that you know your ultimate jury as well as you know your strikes.  

Try the Consequences, Not Just the Claims

By Dr. Ken Broda-Bahm: 

Last Friday, Dharun Ravi was found guilty on all fifteen charges of invading privacy and committing a hate crime against his Rutgers University roommate, Tyler Clementi.  Ravi had used his webcam to spy on Clementi having an intimate encounter with another man, and then advertising the event in Twitter promising an upcoming viewing.  Just after this, Clementi killed himself by jumping off the George Washington bridge.  Importantly, Ravi was not charged with causing Clementi's death.  To many legal observers, however, he was convicted for it.  As the New York Times reported over the weekend, "Mr. Clementi's suicide came up only in passing during the trial.  Still, the death defined the trial, turning what might have been a peeping Tom case, or as the Resident Assistant said, 'a roommate issue' into something far more grave."  

The lesson is that even as the jurors aimed to focus on the claims, and in all likelihood believed that they did focus only on the claims, it is nearly impossible to ignore the end of the story.  Indeed, it is difficult to believe that the case would have turned out the same if Tyler Clementi had been sitting in the courtroom throughout the trial alive and well, albeit embarrassed and irritated.  Jurors, including Kashad Leverett, said that they didn't take the suicide into account, but other statements indicate that the sad consequences were not fully out of their minds either.  "I hope they can put everything behind them and move forward," juror Bruno Ferreira said about Clementi's family after the verdict, "Hopefully, they finally have closure."  In context, the closure is not for the privacy violation or the intimidation, but for the death.  

Jurors' tendency to focus on consequences, and not just claims, has implications for litigators in all contexts.  Even as you encourage jurors to share a proper focus, you need to adopt to the inevitability that consequences will play a role even when they're not supposed to.  This post takes a look at some of the research and provides some practical suggestions for adapting to the truth about consequences.  

Rely on Instructions to Curb the Socially Networked Juror

By Dr. Ken Broda-Bahm: 

The "Googling Juror" has emerged as a massive concern in the courts with plenty of stories on the process being thrown into mistrial by panelists who had to look up a fact, couldn't take their finger off the Tweet button, and felt the need to "friend" parties, attorneys, and other jurors.  While the issue has been driven largely by these anecdotes, there is a new article in the Duke Law & Technology Review (St. Eve & Zuckerman, 2012) that supplements the discussion with a survey of 140 former jurors.  Some of the coverage of this study has sounded like an alarm bell, with WSJ's Law Blog for example, quoting one juror's comment that "nothing" could prevent her from using social media during the trial, without mentioning that the same juror also insisted that she wasn't tempted to use, and in fact didn't use social media during her own trial.  

In fact, of the full sample of 140 jurors surveyed, only six reported a temptation to use social media during their trial, and none of the six succumbed to the temptation.  Of course, former jurors may be reluctant to admit misconduct even in an anonymous survey, and it remains true that "all it takes is one" in order to cause a mistrial.  However, I'd like to inject a dose of realism into the discussion.  Yes, it is safe to assume that most jurors are socially networked, but at the same time the trial can survive.  Based on the study, it turns out that the best defense against juror misconduct in this new media age can be found in the most traditional of remedies:  Instruct the jury.  But not all instructions are equally effective.  This post makes some recommendations on the specific kinds of instructions that attorneys should ask for in order to keep the case in the courtroom and off the social networks.  

Embrace Positive Messaging

By Dr. Ken Broda-Bahm: 

So I almost called this post "Beware of Negative Messaging," then I realized that that itself is a negative message.  Focusing on what isn't true, or focusing on what needs to be avoided is certainly part of communication, part of litigation, and judging from an uncomfortable number of my titles, part of this blog.  But a recent essay by one of my favorite communication scholars (George Lakoff), on one of my favorite topics (political communication), made me think about the number of times in litigation where our messages may be unintentionally giving power to precisely the arguments that we want our decision makers to avoid instead of focusing on our own positive message.  

Now when I say "positive message," I want to be clear that I don't mean that in the Pollyannish sense of emphasizing the good in everything, and rainbows and puppies and all.  No, by "positive" I mean focusing more on what is true, less on what isn't true.  I mean focusing more on where we did fulfill our responsibilities, less on where our opponent is wrong in saying we didn't fulfill our responsibilities.  I mean focusing more on what we are proving, less on what we are denying.   Litigation can be dark and dirty business, so we certainly can't avoid the negative, and we generally don't want to.  But when it comes to our theme, our central message, and the choice of where we spend the majority of our time, the positive case should win out over the negative.