Persuasive Litigator

Learn From Your Wins and Your Losses

By Dr. Ken Broda-Bahm: 

It has been an up and down week for the Obama administration in the Supreme Court. On Monday, the Justice Department scored a mixed result on Arizona's immigration law preserving the "papers please" policy that Arizona intends to apply to immigrants in that state, allowing police officers to demand proof of citizenship from those who are stopped. Then, this morning, the Court gave a substantial lift to the White House by preserving the individual mandate, a key provision in President Obama's healthcare reform legislation under Congress's taxation power. Commentators have already described the result as "a landmark decision that will impact the nation for decades" on the the signature domestic legislation of the Obama presidency.

The implications of the 193-page decision are still sorting themselves out, and others will write voluminously on the political ramifications, as well as the effects of the decision on the U.S. healthcare system. In keeping with the focus of Persuasive Litigator,however, my first thoughts tend toward the messages for litigators. In this case, I believe that there are some important lessons now, with more sure to emerge over time. Specifically, the takeaways from the verdict and the process relate not only to a political and social milieu that has a direct effect on how today's jurors see litigants, but also bear upon the more general question of how attorneys should learn from, build off, and even 'spin' the wins, the losses, and the mixed results.

Don't Fool Yourself on the Advantages of Intelligence

By Dr. Ken Broda-Bahm: 

Trial lawyers typically want a smart jury. There are definitely exceptions, but because advocates are prone to believe that they represent the side of light, logic, and truth, the feeling is that, "As long as we get a jury that is smart enough to see past our opponent's error and folly, we are golden!" But apart from the wishful thinking that applies to one's own case assessment, there are other reasons to be cautious regarding the role of a decision maker's intelligence. It is not a given that the smarter juror will be more able to pierce the veil of mental mistakes and cognitive biases. Instead, they actually may be more susceptible. 

We are used to thinking of bias as a weakness -- a mistake or error that is overcome by careful reasoning and intelligence. Current trends in cognitive research led by Daniel Kahneman and others, however, are painting a different picture. Rather than being a simple slip of the mind or misperception, cognitive bias can be a product of various mental shortcuts that belong as much to the Ivy Leaguers as to anyone else. Intelligence may not only fail as a protection, but according to some new studies, may even make you more prone to mistakes. This post takes a look at a couple of surprising new studies looking at both logical and emotional intelligence, and provides some recommendations for addressing decision maker intelligence in jury selection and case assessment. 

Play It Where It Lies: Throughout Trial, Match the Message to the Mindset

By Dr. Ken Broda-Bahm: 

Once I was looking into the purchase of a new car. So I visited the showroom, not with the intent of purchasing that day, but with the more general goal of gathering information. I wasn't there for two minutes, however, when the salesman hit me with the question, "So, what would I need to do to get you in a new car today?" I wanted to say, "Look, I teach persuasion, so I can name the technique you're using -- in Latin -- and today it isn't going to work." Instead, I quickly made an excuse to leave and I visited another lot. The problem is that the salesman and I simply weren't in sync. He was at the stage of wanting to clear away the obstacles and close the deal. I, on the other hand, was still in the investigation stage. 

A parallel situation of being out of sync can affect lawyers in trial. You've learned that every moment is precious and first impressions are key, so you're trying to close the case from the first moments of jury selection. But the jurors aren't ready for that and their awareness of the lawyer's early attempts to persuade just lead to suspicion and distrust. Trial lawyers were already pretty close to car salesmen in the average juror's estimation (sorry), and the appearance of a pushy tactic just serves to make the jurors wary. While lawyers won't, in the span of a trial, overturn a juror's skepticism of lawyers or overt persuasion, they can adapt to the mindset of their audience and appreciate the fact that this mindset changes throughout trial. This post looks at some current research looking at "predecisional" and "postdecisional" mindsets and findings that messages are most persuasive when they're framed to match the mindset that the audience currently holds. Practically, the research suggests that trial lawyers need to exercise patience and "play the ball where it lies" when it comes to jurors. 

Talk to the Eyes: If It Can't Be Visualized, It's Not a Story

By Dr. Ken Broda-Bahm: 

Stories require more than sequence. They require a sense of place, a tone, and a texture. Even when told without prepared images or video, a good story requires language that helps the mind "see" and not just comprehend the action. There is one study that perfectly captures this point (Tversky & Kahneman, 1983). Participants were asked to rate the likelihood of an occurrence within the next ten years. For one group, that occurrence was a massive flood somewhere in North America in which more than a thousand people drown. For a second group, the occurrence was an earthquake in California causing a flood in which more than a thousand people drown. The second scenario is obviously a subset of the first, so its likelihood is logically smaller. Yet study participants rated the second option as 50 percent more likely. Why would adding details to the scenario increase rather than decrease its perceived likelihood? Because it makes it more of a story. Instead of just a category of an event (a flood), we have a place and a cause (California and an earthquake). Just identifying those features makes the event more probable in the mind's eye.  

That is a small example of a situation in which even a small amount of movement in the direction of a story can have a dramatic effect on an audience's perception. It carries an important lesson for litigators: You should tell stories not just because they organize, simplify, and gain attention. Stories do all of that, but more fundamentally, stories go to the heart of perception and simply make the experience more "real" for the listener.  Yet this reality doesn't always translate into the courtroom, and even with the widespread acceptance of narratives in trial, the stories sometimes fail. This post looks at some of the reasons for that and provides suggestions for making sure you're getting the full advantage of a storytelling approach in trial. 

Don't Forget About Happiness: The Settlement Series, Part Four

By Dr. Ken Broda-Bahm: 

If we don't normally think of "happiness" when we think of mediation, it may be because a good settlement is generally not something that makes all the parties happy. Instead, it is more often something that makes the parties equally unhappy. At the same time the notion of happiness, or at least relative satisfaction, has an important role to play in determining when cases settle. In the previous three posts in this series, I've written about the psychological obstacles to settlement, the dangers of brinksmanship, and the role that mediators can play. For this final post, I want to end on a positive note by looking at a few of the ways happiness can impact the process. 

Settlement is above all a negotiation. But apart from the grim calculation of economic value at the end of a legal dispute, there are also the less tangible measures of satisfaction: Do the parties feel validated, respected, and vindicated?  Are they happy? The term itself may seem a little fluffy, I admit. But proving that there is nothing that determined academics can't turn into a discipline, the study of happiness -- the field known as "hedonics" -- is receiving increasing attention. And it is a field that is worth thinking about for litigators who focus on ending their cases well, most often in the form of a mediated solution that the parties can live with. This post takes a look at some of the research on happiness that bears most heavily on civil settlement, pairing that with ideas on some ways litigators can increase their clients' satisfaction with the result.