Persuasive Litigator

Make Events Meaningful by Inviting Counterfactuals

By Dr. Ken Broda-Bahm: 

Imagine this messaging challenge: Your case isn't a personal injury case, where there is a discrete moment you're asking jurors to evaluate. Instead, it is a commercial case, where there is a profusion of details, memos, and meetings, each like individual flakes in a snowstorm. In order to make it not just dramatic but simply intelligible, you need to take one or a few of those specifics and create a meaningful event to serve as the focus of your story.

If legal persuasion was just a matter of giving reasons that convince your decision-maker, it would be enough to know the facts and the law. Instead, you need to make some moments stand out and other moments recede. You need to invest importance in some facts and drain salience from others. Put differently, you need to make meaning. We know that there are many ways of creating importance for facts, including demonstrative exhibits, analogies, themes, and physical delivery. But one surprising way to emphasize meaning comes from research discussed recently by my friends at The Jury Room blog. Apparently, focusing on counterfactuals - sometimes called "if only..." or "but for..." thoughts about what didn't happen -- is a reliable way to increase the perceived importance of an event. Oddly, you can encourage listeners to add more importance to real events by inviting them to imagine unreal events. This post takes a look at the research and provides an example of how the technique can work.

Bad Stuff? Get It Out And Get It Over With

By Dr. Ken Broda-Bahm: 

The point is easy to grasp but hard to put into practice for both politicians and litigators: If something is likely to come out eventually, then you're far better off skipping the chase, avoiding the drama, and just getting it out. And a close corollary of the principle is this: If it isn't coming out, but its absence is likely to prove more troublesome than its presence, then again, get it out and avoid magnifying an issue and giving more power to a weakness. Republican presidential nominee Mitt Romney is facing exactly this challenge right now. Having released just one full year of his tax returns, the candidate is facing increasingly persistent questions about his finances, as well as his role in Bain Capital at a time when the company is associated with outsourcing American jobs overseas. 

For Romney's part, he has repeatedly taken a stand against releasing more than the 2010 and, when available, 2011 returns, telling CNN, "That’s all that’s necessary for people to understand something about my finances.” His wife, Ann Romney, has said the same, even more pointedly, telling ABC News, "We've given all you people need to know" about the family's finances. But the issue is continuing to gain traction. A new Pew Research Center poll finds that while most Americans believe they know enough about both candidates, a solid chunk of independent voters -- 37 percent -- want to know more about the candidate's finances and his disputed role in Bain Capital. The campaign is clearly calculating that a relatively modest hit over nondisclosure is likely to be worth it in avoiding the greater evil of fishing expeditions through decades of tax returns. Still, as pressures mount, calculations like that have a way of changing. Litigators realize that as well. When the information finally comes out during a peak of interest, they wish they would have just gotten it out earlier when it would have been just one fact out of many. Drawing once again from the world of politics, this post takes a look at several phases in litigation and trial where early disclosure can be far better than late admission. 

Don't Let Concern Substitute For Action

By Dr. Ken Broda-Bahm: 

Once again, we’re shocked and saddened. Early Friday morning, another sociopath with access to military-level firepower opened fire on movie theater patrons during a midnight premiere of the latest Batman film in Aurora, Colorado, injuring more than 50 and killing 12. This follows a long list of the previous times that we’ve been shocked and saddened, including the assassination attempt on Congresswoman Gabrielle Giffords(2011), the Fort Hood shooting (2009), the Virginia Tech and the New Life Church shootings (2007), the DC sniper shootings (2002), and of course the Columbine massacre (1999). In these events and the scores that have happened in-between, the days that follow have been filled with expressions of concern. The phrases, "deeply saddened," "senseless tragedy," and "our thoughts and prayers go out," are repeated in almost incantatory fashion by every public official and private entity connected to the event.

There is no doubt of course, that these expressions are sincere, and if they feel formulaic that may be because there is nothing else to say. But the numbing repetitiveness of the tragedies provide a reminder that sorrow is only part of the response in events like these and others that might one day become the subject of litigation. The additional part is, "so what are we going to do about it?" Whether it is a product injury, an oil rig explosion, or a bad medical outcome, the simple acknowledgment of loss can sound like a palliative if it isn't accompanied by a discussion of the actions that can be taken to minimize the chances of it happening again. In this post, I'll draw from the recent tragedy in my home state in order to note the limits of public communication when sorrow is allowed to stand-in for solutions.

Cultivate Compassion

By Dr. Ken Broda-Bahm:

We are used to seeing compassion as an aspect of character, an ethos, or even as a religious belief. But here is another way of looking at it: Compassion is a behavior. And like other behaviors, it can be evoked in some circumstances and inhibited in others. Rather than simply hoping that those who evaluate us will have compassion, new research is showing that it is possible to facilitate or create the conditions for compassion. "Engineered Compassion" may be putting it too strongly, but it isn't too much to say that you can cultivate compassion. 

Now, few are able to win a legal case on compassion, at least not if compassion is taken to mean something like sympathy. Jurors and other fact finders are predictably hardened to any appeal that sounds too much like, "oh, my poor client," whether that client is a plaintiff or a defendant. But while empathy alone isn't a reliable strategy, some level of understanding can be critical. Take, for example, the molestation victims who testified against Jerry Sandusky in his recent trial. Stripped of compassion, the response to these witnesses could have been, "They've been the victim of a crime, and the perpetrator is still able to victimize others, so why in the world wouldn't they go immediately to the authorities? When they do talk to the police, why would they make incomplete or even exonerating statements?" The response, because they were ashamed, isn't necessarily the logical response, but add in a little empathy and a little knowledge of how children respond to sexual abuse and the picture comes into focus. Armed with a little compassion, jurors are able to set aside a biased reaction ("victims always and immediately report") and focus instead on the evidence. In this post I take a look at a recent report on Northeastern University Professor David DeSteno's research that appeared in an interesting piece in last week's The New York Times. 

Don't Put Too Much Fizz in Pop Psychology

By Dr. Ken Broda-Bahm:

On a number of occasions, I've been told confidently by mock jurors that they can tell a witness is lying because the witness looks up and to the right while testifying. That is a great reason not to look up and to the right while testifying, but is that actually an accurate "tell" on deception? Turns out it isn't, according to a current study (Wiseman et al., 2012). The belief that eye movement toward the upper right quadrant of your field of vision indicates dishonesty is part of a perspective called "Neuro-Linguistic Programming" or "NLP." The school of thought is the brainchild of Richard Bandler and John Grinder, and is based on the idea that our neurology ("neuro") and our language ("linguistic") is reflected and determined by patterns of behavior and goals ("programming"). Like many of the psychological ideas and perspectives to emerge in the Seventies, its popularity exceeded its empirical support. After being taught for more than 30 years, a study finally put the eye movement belief to the test, and found that liars didn't tend to look up and to the right, and individuals trained in spotting that movement fared no better than chance at detecting lies. 

There is a lesson in this for litigators and it goes beyond eyes and lies. That lesson is to be skeptical of popular scientific claims. Many of those who help attorneys to understand jurors and refine their messages for trial, including me, are applying various ideas gleaned from the psychology of human communication. And it is in the nature of the "big theories" that they are looking for some kind of magic -- a hidden key that will unlock the path to surefire understanding and influence. But communication itself tends to be a lot more subtle, contextual, and complex. After taking a look at the recent study, this post will step back to focus on the broader message of reasonable skepticism that litigators and other consumers of psychological ideas need to apply.