Persuasive Litigator

Personify Loss

By Dr. Ken Broda-Bahm: 

(Marie Colvin, Journalist, 1956-2012)

Legal cases are about loss:  asserting, proving, disputing, and defending against loss.  Those who study and practice civil litigation have a strong interest in knowing how people comprehend and give meaning to loss, because that is what determines their reaction to your case.  And current events provide a fitting, albeit tragic, example.  On February 22nd, veteran wartime correspondent Marie Colvin was killed alongside French photographer Remi Ochlik by the Syrian government's shelling of the city of Homs.  The iconic reporter had spent her career covering conflicts in every imaginable hot spot:  Iraq, Palestine, the Balkans, Chechnya, East Timor, Israel, and lost her left eye while covering the civil war in Sri Lanka.  Wherever she was, she was far from the only one at risk, but she was there because she chose to put her life on the line to shine a light on stories that would otherwise be invisible.  Her funeral mass is today in New York City.

 

The journalists' deaths have brought attention to a situation that, up to now, has had no shortage of deaths:  a minimum 7,500 civilian deaths since the uprising against Bashar al-Assad began about a year ago.  Referring to the fresh attention that just two deaths brought to the continuing massacre, a local activist going by the name of Abo Bakr noted the incongruency, "Just look how cheap the Syrian blood is for the international community..."   Part of it is implicit tribalism:  Western audiences may simply value those we consider our own more than others.  But part of it is also the power of an example:  the ability to identify in particular with the losses of two people.  The reason is as simple as it is disturbing:  We seem to be hard-wired to value most what can be framed in not just human terms, but in individual human terms. As Stalin is said to have remarked, "The death of one man is a tragedy.  The death of millions is a statistic."  The implication for litigation applies not just to deaths, but to any of the losses that lie at the foundation of a case.  Even when losses are measured in opportunities or in cash, we still value the individual example much more than the aggregate. 

Don't Chase Every Rabbit: The Art of Issue Selection

By Dr. Ken Broda-Bahm: 

Imagine you're a hound in a field of rabbits.  As you're giving chase to one, you get the scent of another and off you go after that one.  In the distraction of a new target, you end up with no rabbits.  Now imagine that you are Rick Santorum questing for the Republican nomination.  In a down economy, you know that the top three issues are jobs, jobs, and jobs.  Then, you get the scent of an issue you can't resist:  Contraception and religious liberty!   It radically energizes your base, but only at the cost of turning off the more moderate voters.  You're able to damage the front runner, but not enough to have a good shot at the nomination after Super Tuesday.  No rabbits.  

Both Rick and the hound have one thing in common with litigators:  a practical need to carefully and decisively pick their targets.  Often, that means realizing that discretion is the better part of valor.  Even when we think we see the ideal issue, we notice a great argument, or believe we have the unanswerable response, it will make more sense to keep our powder dry and maintain a focus on what matters most.  Particularly in complex litigation where attorneys have spent years in discovery leading up to trial, the temptation to chase every rabbit by pursuing each line of argument we see can be a strong one.  But intelligent and persuasive messaging creates a need to temper that temptation and pick our battles.  In this post, I take a look at the art of issue selection and its role in setting an agenda in your trial.   

Voir Dire at the Intersection of Your Case and Their Life: For Energy Litigation, that Means Gas Prices

By Dr. Ken Broda-Bahm: 

It is a reliable maxim that your voir dire should target the experiences of your panel that bear most closely on your case, because that will be the source of the most relevant attitudes.  That seems obvious, but I find that litigators often focus on a level that is more specific to the case and more distant from common experience:  for example, asking in a construction case what they think about "design/build contracts," instead of asking what they think of the guy who comes to fix their deck.  With the recent almost-trial in the BP gulf spill litigation, along with increasing attention to rising gas prices, this maxim reminds us of an important area for voir dire in oil, gas, and other energy cases.  Generally, your case will have little to nothing to do with the price of gas, but that is still the way that "big oil" intersects with the common life experiences of your panel. 

Jurors can act as though the prices they pay are set using a large dial that is either on the President's desk (during campaign season) or in the "big oil" headquarters -- you know, the common office that they all share.  That may be a wee bit of an exaggeration, but having watched a great many hours of mock jurors deliberating on energy cases, it isn't too far off the mark.  The idea that the market sets prices, influenced by events like the recent conflict with Iran, takes quite a bit of explanation.  But, true or false, that perception of control plays an important role in determining how jurors view the power and the responsibility of the company in a variety of contexts.  This post looks at gas pricing as an illustration of daily life's influence on litigation attitudes and provides a recommended series of questions for oral voir dire on the topic. 

Don't Mistake the Purpose of "Scientific Jury Selection"

Dr. Ken Broda-Bahm: 

The word "science" conjures up all kinds of images, and many of those images don't quite match the realities.  One context in which scientific perceptions are at a mismatch with reality is the area of jury selection.  A week ago, Joel Warner wrote an article for Slate, the online magazine, that began with the question, "Can I use science to get out of jury duty?"  Casting a skeptical glance at the notion of scientific jury selection, Warner then broadened his critique to the jury consulting profession as a whole:  "Since even the practitioners of scientific jury selection are reluctant to emphasize the science of what they do, some folks think it is time to get rid of the business altogether."  Being one of those folks, Warner then suggested eliminating the peremptory challenge as a way to reduce the incentive for dealing with jury selection experts.  

The suspicion illustrated in the Slate piece, and amplified in its comments, is that our legal system has been hijacked by a dubious form of science.  The article, however, is founded on a number of significant misconceptions about both the purposes and the methods that are applied when a consultant is involved in jury selection.  Because some attorneys, particularly those who have never used a consultant, might have the same misconceptions, I wanted to take a closer look at exactly what a communication or psychology expert does in court, and what we mean and don't mean by "scientific jury selection."