Persuasive Litigator

Fight Fire With Fire (And Fight Bad Analogies With Better Ones)

By Dr. Ken Broda-Bahm: 

If you are like me, you have grown tired of hearing that sublime tautology of a catch phrase, "It is what it is." I want to shout in response, "Of course it is! What else would it be?" But the expression perfectly captures the attitude of some litigators toward analogies. Instead of saying that a defective product is like a trap waiting to spring, or that a securities fraud is like a castle built on clouds, why not describe the thing as it truly is? That will always be more accurate, won't it? The specificity and literal-mindedness that is hammered into every law student engenders a deep and healthy suspicion of analogies. But that suspicion should not lead attorneys, at least not those who need to persuade, to toss the baby out with the bath water. 

Analogies can be tricky to be sure, and can foster the false sense that we understand something when we actually don't. But analogies also lie at the core of human comprehension: We grasp the new via the already familiar. Lawyers can no more teach new ideas free of metaphors than fish can travel free of water. The mind swims in metaphors, and persuading that mind requires an advocate to take control of that process instead of foreswearing it. These thoughts were prompted by a recent insightful piece in Psychology Today (Cummins, May 24, 2012), "Your Metaphor is Misleading Me." In this post, I'll apply some of these thoughts to legal persuasion, and look at what can happen when the analogy goes off the rails.  

Treat Your Terminations as "For Cause" (Even When They're "At Will")

By Dr. Ken Broda-Bahm: 

Here is a piece of advice that works not only as a trial message, but also as a strategy for avoiding trials in the first place: When someone loses their job, make sure it is for reasons that meet the legal tests, even when those tests aren't legally required. For in-house attorneys or HR personnel, that can mean functionally treating employees as "for cause" even when they might be "at will."

When an employer faces the need to let an employee go, and the threat of litigation in response is either real or implied, it is only natural for the company to want to wrap itself in cleanest available defense. On that score, it is helpful to the company that the vast majority of American employees are "at will" employees, meaning that the relationship may be ended by either party for any reason, as long as that reason isn't illegal. That last caveat, however, provides quite a bit of wiggle room for a former employee/plaintiff to argue, for example, that a termination was discriminatory, violated an express or implied contract, or ran afoul of an implied covenant of good faith and fair dealing. That means that in practice, juries, judges, and arbitrators will generally take a close look at the equities of the result. But the role of fairness isn't always simple. In this post, I take a look at some of the factors that affect that perception of fairness, including the seven tests of just cause.  

Close Your Case By Walking Through the Decision and Verdict Form (Another Note on the John Edwards Trial)

By Dr. Ken Broda-Bahm: 

Your opening is a story, I've written before, about what happened and about what kind of case this is. The closing is a different story, not about what happened, but what is about to happen: deliberations and a verdict, hopefully in your favor. It makes little sense to go all the way to closing arguments and then tell the jurors the story of what happened as if they are just putting it together for the first time. Instead, closing arguments should transcend the now-familiar story to focus on impending deliberations and walk jurors through the specifics of the verdicts they're about to render. 

But that isn't what happened at the close of the trial of John Edwards, the two-time presidential candidate and general two-timer. Instead, based on transcripts of the arguments, both the government and the Defense appeared to end the case much as it began, with a dramatic recounting of what happened. As this blog goes to press, the jury is now entering its fifth day of deliberations, and that may be a sign that they could have used a little more direction at the conclusion of the case. It brings to mind what I like most about high-profile cases: the opportunity for high-profile lessons. In this post, I'll be taking one more look at the John Edwards trial (probably the last...unless the verdict is really interesting) and drawing out some lessons on the unique function of structure in a closing argument.

Persuasive Litigator's Bicentennial: The Top Ten of the Second Hundred

By Dr. Ken Broda-Bahm: 

Ah, it seems like only yesterday that this blog was taking its first toddling steps under its prior name, Litigation Postscript. Now passing the 200 mark on posts, this ABA Journal Blawg 100 Honoree is still dedicated to content that is timely, useful, and supported by research. And it is still focused on providing concise and concrete recommendations to litigators in every post. Since it is time for a retrospective, I face the same quandary that musicians do when putting out compilation albums: Do I go with "Greatest Hits..." and let the market decide, or do I go with "Best of..." and make my own choices? In the case of Persuasive Litigator's second hundred posts, there isn't a conflict. Those that made the top ten based on Google Analytics are also some of my favorite posts from the past year. 

The posts appear in order below, but the makeup of the list says something about readers' interests. For one thing, it isn't just the jury anymore, if it ever was. In our four-part series on oral arguments to the court, fully three are in the top ten (#1, #3, and #10), and the fourth is #12. In addition, our own original research is a strong driver of readership, with our visual persuasion study coming in at #2. Technology articles are also strong, with two video reviews of jury selection software making the top ten, at #7 and #8. Finally, a couple of recent favorites (#6 and #9) made the list, including one from just last week, despite having had little time to run up the numbers. So, before I go any further in sounding like Casey Kasem, here are the top ten from the past hundred: 

Turn in a Powerful Deposition, Doctor Defendant

By Dr. Ken Broda-Bahm: 

The Hippocratic oath also applies to doctors caught in the litigation process. In deposition, the rule is "first, do no harm" to your case. No one wins their own case in deposition. But a medical defendant might end up losing it by falling prey to some common mistakes. Depositions are taken in order to shape an adversary's case, and to be used one day by a potential fact finder. In our experience, jurors have a natural inclination to support the doctor. There is a good psychological reason for that: It is more comfortable to believe that those we entrust with our health and our lives know what they're doing. When plaintiffs are able to overcome this strong motivation to believe in the doctor, it is often because the doctor conveyed something in deposition or trial that unwittingly served to help the plaintiff. 

For example, feeling the emotional insult of a malpractice case, the physician may come across as defensive, arrogant, or uncaring. Taking too much care to avoid error, the doctor might seem reluctant to say anything and, as a result, appear unhelpful and uncommunicative. Ultimately, jurors are looking to see someone they would trust as their own doctor. If they instead see someone who is uncertain, irritated, or frazzled - a fish out of water - they come to distrust the doctor's level of competence and care. That loss of credibility helps make a plaintiff's case by allowing jurors to set aside their default trust for doctors in order to say that in this case, or against this doctor, the patient actually has a valid claim. In this post, I'll provide a brief overview of ten areas where doctor defendants can adhere to a "do no harm" strategy during depositions.