Persuasive Litigator

Jury Selection: Probe But Don’t Embarrass

By Dr. Ken Broda-Bahm: 

In a new law journal article, University of Kansas law professor Melanie Wilson asks us to consider a situation in which a stranger approaches us on the street and politely asks us whether we've ever been a victim of sexual assault or abuse, whether we've ever been investigated by the police, what we think about abortion, what our sexual orientation is, what we watch on television, and what political groups we support. Portraying voir dire as a similarly unexpected intrusion on jurors' private lives, the professor advocates a fundamental change to the selection process: a "juror peremptory strike" that would allow any member of a venire to opt out of invasive questioning by simply removing themselves from the case.

The motive behind the article in the current Utah Law Review (Wilson, 2012) is a good one: Jurors will not respect a process that they believe invades their privacy. But the proposed solution of jurors striking themselves could discourage legitimate questions about bias and create an easy opt out for potential jurors. The analogy notwithstanding, potential jurors are not strangers accosted on the street, they're participants in a legal role that is one of the duties of citizenship. Subject to a judge's review, members of the venire should answer questions that are reasonably calculated to reveal possible bias in the case. There are also many ways to ensure that voir dire serves its purpose without being an unwelcome intrusion. Questionnaires and in camera voir dire are ways to balance the parties' interests with the panelist's privacy. There are ways to question which are sensitive and effective, and there are ways to question which are clumsy and insulting. One implication of the article is that it helps to have someone on the team who specializes, not just in the law or in the art of advocacy, but in the task of eliciting important attitudes and experiences: a social scientist. 

Make Your Trial Theme Cinematic...Or At Least Memorable

By Dr. Ken Broda-Bahm: 

I can remember the first time I wrote a theme for a bench trial many years ago. The trial team used the theme, and used it as themes should be used, which is to say, emphatically and repeatedly. And it worked: The judge actually included the theme in his written decision in our favor. In that case, and in many cases since, I've wondered exactly what it is that makes language memorable. It turns out that some computer scientists at Cornell University have been wondering the same thing. These researchers (Danescu-Niculescu-Mizil, Cheng, Kleinberg & Lee, 2012) looked at the question of what makes movie lines turn into classics, and their results provide some concrete advice to litigators looking for those thematic expressions that roll off the tongue and stick in the mind. 

We have been watching a lot of The Princess Bride at our house lately. I can tell you that there is nothing like a four-year-old fixing you with a steely gaze while intoning, "Hello, my name is Inigo Montoya," fake Spanish accent and all, "You killed my father. Prepare to die." In that case, the memorability comes from both emphasis and repetition, but in countless other cases, we remember a phrase that exemplifies and unites the story (e.g., "There's no place like home," or "May the force be with you"). The Cornell researchers' question is one of vital interest to litigators. Particularly when confronting a mountain of evidence and a labyrinth of law, legal audiences - judges, juries, and arbitrators alike - need the guidance provided by a theme. But it is only useful if it is sticky enough to be remembered and practical enough to be used by your decision makers.  

Climb Down the "Ladder of Abstraction" in Patent Cases (And All Cases)

By Dr. Ken Broda-Bahm: 

For many years, the word among intellectual property defendants has been "Don't Mess With (the Eastern District of) Texas." And statistics have borne that out. According to a recent analysis in the Patent, Trademark & Copyright Journal (Pistorino & Crane, 2012), cases in the district have come down in favor of plaintiff patent owners in two out of every three cases. That fact has fostered a gold rush mentality among patent owners, and while some of that venue mojo may just be the force of self-fulfilling prophecies, it is still interesting to look at some of the reasons local observers offer for a continuing plaintiffs' advantage in Eastern Texas. After all, patent cases tend to be abstract and technical. Why would it be better for plaintiffs to try those cases in Texas locales like Beaumont, Tyler, and Texarkana? Bloomberg News posed that question to McKool Smith attorney Sam Baxter, and his response brings it down to earth:  "People here believe if you own something, you own it and certain rights come with that," the Marshall, Texas based attorney said, "If you didn't want someone coming to your pastureland and building a house, you can tell them 'No.' " So it could be that Eastern Texas jurors are just able to understand patent cases in ways that favor plaintiffs and are "grounded" in a literal way. 

Reading that quote reminded me of a snippet of communication philosophy that I learned in graduate school. That was a long time ago, but I try to apply it today to my writing, speaking, and consulting:  Move down the "ladder of abstraction." This post takes a look at what that idea means in patent cases, and all other cases as well. 

Take a Lesson from the John Edwards Trial: With Sensitive Facts at the Heart of Your Case, Aim for a Desensitized Jury

By Dr. Ken Broda-Bahm: 

The case of The United States versus John Edwards has everything:  politics, sex, life, and death. The former vice-presidential and presidential candidate acquired a mistress and fathered a child during the campaign, behind the back of his cancer-stricken wife, then called upon a couple of key supporters to pay vast sums of undocumented money in order to hide mother and child from the eyes of the media. Those of us who have read The Politician, a tell-all account by former aid Andrew Young, have been waiting for the other shoe to drop, and now it has. Edwards faces trial in federal court this week in North Carolina. While many of the former Senator's constituents might want him tried for reckless political judgment, infidelity, dishonesty, and just for being a cad, he is actually being tried for campaign finance law violations. He seems to have no strong case on the cad issue, though he probably has a reasonable shot at the campaign finance defense. 

But the critical question is which will be important to the jury. The court has been in the process of winnowing down a pool of 185 potential jurors to a panel of 40 today, so that on Monday morning, the prosecution and Defense can exercise strikes to impanel 12 before starting opening statements. With a story like this, you might think that politics or morality would drive jury selection. But a realistic view of the challenges faced by this defense suggests that one other factor is far more important: desensitization. In other words, without knowing the minds of those working on the case, what the Defense should be looking for are those who aren't particularly shocked, mortified, disturbed, or surprised by the story. If you can't expect jurors who'll be favorable, then the next best thing is to select jurors who'll be numb. To anyone who faces the harsh knowledge that their case, at least in part, involves the defense of the indefensible, this concept of desensitization is a vital tool. 

Complex Case? Beware of "Low Effort Thinkers"

By Dr. Ken Broda-Bahm: 

For once, a social science concept that comes with an easy to understand label! "Low effort thinking" refers to a mental approach or habit that serves as a short-cut in lieu of a more systematic or careful analysis. In the spirit of full disclosure, though, the concept is sometimes dressed up in the fancier name of "heuristics" (it is a job protection for us social scientists not to make the ideas too clear). In a courtroom, though, low effort thinking can play a very clear role. Relying on a stereotype, for example, requires less effort than analyzing the specific case. The juror who doesn't delve into details and relies instead on a belief that "big companies are dishonest" is engaged in low effort thinking. It can be a boon if you represent the side that benefits more from these short-cuts. But more often, and particularly in the complicated case, low effort thinking is a barrier between your jury and a full understanding of your case.  

So where do we find these low effort thinkers? According to a study released last month (Eidelman et al., 2012), the answer is political: Those engaged in low effort thinking are more likely to report conservative political views. Now, before any right-leaning readers get their dander up, its important to note the direction of the relationship. The researchers did not test conservatives and discover low effort thinking. Instead, they did the reverse: They created circumstances designed to "disengage effortful, deliberative thought" -- for example through instructions, time pressure, manipulations to cognitive load, and even alcohol impairment -- and found that under these circumstances, the study participants tended to favor and express more conservative attitudes. "Political conservatism," the authors conclude, "may be a process consequence of low effort thought."

So when your case requires high effort thought, is it wise to apply a political litmus test?  As much as that would be simple, I'm afraid that would itself constitute low effort thought (as would the whole strain of jury selection based on demographics). Striking simply on the basis of politics can also be impractical in the courtroom since party affiliation and voting behavior can be factors that you don't know and are unable to ask. Better to target the condition of fostering low effort thinking itself.