Persuasive Litigator

Don't Mistake the Witness for a Bucket of Facts

By Dr. Ken Broda-Bahm 

The law treats factual evidence as a repository possessed by the witness and elicited through testimony. Like a bucket, filled, in the case of your witnesses at least, with the sweet clear water of truth, you just dip in a ladle and out comes the descriptions, the observations, the facts. We acknowledge that the bucket isn't perfect: It holds only so much, and is prone to leaking. But we still treat testimony as the act of information retrieval, not fully accounting for the possibility that the bucket is at all times fundamentally transforming its contents. However, to a degree even greater than researchers expected, a new study (Bridge & Paller, 2012), confirms that transformation during recall is the norm, not the exception. That is, we rewrite every time we remember. In recalling, we reconstruct by mixing the original memories with our recollection of the previous times we've thought about and shared the same information. 

So memory is creative rather than descriptive, and dynamic rather than static. That goes to the heart of a trial court's reliance on testimony. Eyewitnesses in criminal cases get the most attention (which makes sense based on what is at stake), but the problem bears on civil trials as well, because it influences how we should treat all testimony that depends on recollection...which is to say, all fact testimony. Even the civil litigation witness may be creating as much as he is remembering, and it isn't a conscious attempt to mislead. This post looks at the new study and unpacks a few ways that trial lawyers can adapt to the realities of reconstructive memory.

Stay on Message

By Dr. Ken Broda-Bahm

It is the mantra of every political communicator trying to control the focus and avoid gaffes: Stay on message. In the current presidential campaign, however, that is easier said than done. Republican nominee Mitt Romney, for example, has had a particularly bad week. After some widely criticized comments on the attack on America's embassy in Libya, Governor Romney was once more on the defensive after video surfaced featuring a number of eyebrow-raising comments from the candidate, including the statement that  47 percent of the current American population can't be won and shouldn't be worried about because they're the ones "who are dependent upon government, who believe that they are victims, who believe the government has a responsibility to care for them, who believe that they are entitled to healthcare, to food, to housing, to you-name-it." Since then we've seen a lot of criticism from Romney's own party suggesting the candidate is "off message." and several attempts to get the conversation back to the economy, to jobs, and to each candidate's plans for the future. House Majority Leader John Boehner, for example, responded by reminding the media that the "election is about jobs, it's not about anything else...let's stay focused on jobs because that's what the American people want us to stay focused on."

What does this have to do with messages in trial? Just as in politics, where you focus can be a win or lose proposition. That is because where you spend your time is where jurors will spend their time, and what is central during trial will be central during deliberations. In that context, the trial issue that you consider to be a distraction from the main point could end up looming large in the decision. This post zeroes in on another illustration of the world of political messaging carrying some important lessons for trial persuasion, and provides some practical tips for keeping the focus where you want it and keeping the distractions at bay. 

Realistically Compare Your Employment Fact Finders

By Dr. Ken Broda-Bahm 

Imagine a typical employment discrimination case, subject to all of the ambiguities of human motivation. To the plaintiff, it is a story of good if not exceptional work performance cut short by a decision to terminate based on race, gender, age or disability. To the defendant, it is a story of enforcing job expectations broadly on all employees, including those who happen to be in protected categories. Given that a biased motive is rarely declared, it generally needs to be inferred from the circumstances. That act of inferring can invoke many of the subtleties of the fact finder's world-view, attitudes, and bias. 

But the question is, who decides? The recent history of employment litigation is a history of shifting fact finders. In the early days of Title VII, it was judges. Then after the Civil Rights Act of 1991, the door was open for employment plaintiffs to seek verdicts and damages from juries. More recently, as employers have moved to mandatory arbitration clauses, the dominant fact finder has changed yet again. Some dimension of choice remains, particularly for defendants, and that choice is important. In this post, I take a look at the question from the defendant's point of view to share some of what we know on how judges, arbitrators, and juries compare in the context of employment cases. 

Remember Why You Went to Law School

By Dr. Ken Broda-Bahm: 

The reason probably, at least partially, has something to do with justice. The cases that should remind us the most of that can sometimes feel like lost causes, like the tragedy of Adnan Latif. This young man traveled in 2001 from his native Yemen to Pakistan, near the Afghanistan border, where he was captured in a post-9/11 military sweep and ended up at Guantanamo Bay. According to his lawyer, David Remes, Mr. Latif was seeking medical care following a severe head injury sustained in a car accident. While the government maintains that he trained and fought with the Taliban, there is no information in the public record to back that up, or to support that he had caused harm to anyone in his life. What became clear over the years to most of those closest to his case was that he didn't belong in Guantanamo. Administrative review boards recommended that he be repatriated back to Yemen in 2004, again in 2006, and again in 2008. Yet he continues to be in U.S. detention when President Obama's Guantanamo Review Task Force clears him for transfer in 2009. Then in 2010, he is still in Guantanamo when a District Court judge declares his detention unlawful in a 30-page ruling. That decision is then overturned by a divided D.C. Circuit Court (based on a presumption of deference to the government's claims), and ultimately the case is denied certiorari by the Supreme Court last year without comment. 

Having never been charged with conducting or planning any crime or terrorist act, having been locked in Guantanamo for a decade, having spent a majority of that time in solitary confinement in a dramatically deteriorating psychological and physical state, and having been apparently 'freed' from U.S. custody no fewer than five times without effect, Adman Latif finally found release last week in the only way that remained open to him: He died. The announcement was made last Tuesday on the 11th anniversary of the September 11th attacks. 

Take Anti-Lawsuit Attitudes With a Grain of Salt

By Dr. Ken Broda-Bahm: 

News: Americans still don't love lawsuits. According to polling conducted in August by Luce Research for the American Tort Reform Association and the group, Sick of Lawsuits, "Americans firmly believe that lawsuit abuse is a problem in our country. They see too many lawsuits and believe that the number of lawsuits filed have hurt the economy and jobs." As we and others (Hoffman, 2011) have written previously, there are good reasons to doubt the degree of factual support for the perception of an expanding tidal wave of frivolous jury verdicts that these anti-lawsuit attitudes would presumably be based on. At the same time, the perception is important for both plaintiffs and defendants because it serves as a critical backdrop to jurors' initial perceptions of a civil case. 

While anti-lawsuit attitudes are definitely real, the recent survey should be taken with a grain or two of salt. For the sponsors of the polling, the purpose is simple: to pass additional tort reform at the state and federal level. For litigators, however, the takeaway is a little more nuanced. Understanding and adapting to attitudes about lawsuits requires some specific attention to the survey itself -- what it asked and how -- and requires asking your own questions in order to measure and interpret this attitude as it affects your own case.