Persuasive Litigator

Appeal to Your Juror's "Temporary Identity"

By Dr. Ken Broda-Bahm: 

It is Halloween time again, and everyone who is a kid or young enough to party like a kid, is preparing their temporary identity for the night: a pirate, a witch, a vampire. This year, apparently, the trending looks are less traditional, including "Angry Birds" and costumes for this year's angriest bird of all, Big Bird, are flying off the shelves. Of course, the idea of temporary identity, of being something else for a short period of time, isn't limited to October 31st. It is something that sets the stage for human communication in every context. In different situations, we adopt different personas. There is overlap, of course, but when you think about it, there are probably some pretty clear distinctions between the "work-you," "friends-you," and "family-you." 

There is also a "juror-you." That is, there are differences between the identity a juror assumes during trial and the identities that person may hold in any of their other life contexts. While we might think of attitudes and personalities as something fixed and immutable -- something that a person "has" -- it is more accurate to see them as highly changeable and sensitive to the situation -- something that a person "does," and does differently in different contexts. We've raised the issue previously of jurors being in different "decisional mindsets" at different stages in the trial. In this post, I'd like to take that point a little further and discuss ways to get jurors into a preferred role or identity during trial. I'll be choosing two early moments in trial, voir dire and opening statement, where a juror's understanding of her role can be critical, and providing suggested language on ways to encourage and adapt to a juror's temporary identity at that stage. 

Account for Selective Perception: 2012 Presidential Debate Series, Part Four

By Dr. Ken Broda-Bahm: 

"Were they even watching the same trial I was?" Lawyers will sometimes wonder, after talking with jurors or hearing a post-trial interview, how perceptions can be so different. At times, it can be hard to believe they're reacting to the same set of facts. We witnessed this type of scenario earlier this week after the third and final presidential debate focusing on foreign policy. Or, I should say, debates, because by all accounts, there were two debates that took place Monday night. There was one debate where Obama was "masterful" and "dominated," while Romney was "heavy on agreement," "rambling and generic" and "choking." Then there was another debate, apparently on the same campus at the same time, where a "desperate" and "seething" Obama was "rude and interrupting," while a cool, calm, and steady Romney "passed the 'commander-in-chief' test." 

Of course, in a political context, one would expect the donkeys and the elephants to emerge with different post-debate impressions. That is because of selective perception, or as the social scientists call it, "confirmation bias." We have a tendency to look for, and to notice, that which we expect or want to be true. In the final presidential joust, those with the narrative of a failing and grasping president saw one debate, while those with the narrative of an uninformed and inconsistent challenger saw another. Far from being just a phenomena of political or partisan conflicts, however, selectivity is a factor in all human perception. When we treat a juror or judge as just a collection point for neutral facts, or a machine for fair analysis, we miss that point. In this post, I round out our presidential debate series by looking into a few things this polarization of perception has to say about how cases, as well as witnesses, can be perceived during trial. 

Know the Perils of Polls

By Dr. Ken Broda-Bahm: 

Litigators are interested in public opinion because cases are played out on that stage. Attitudes about lawyers, about corporations, and about case-specific issues like consumer product responsibility, serve as an important backdrop and starting point for jurors' opinions and reactions to a wide variety of civil cases. For that reason, trial teams will often investigate attitudes by measuring the initial and general opinions held by participants selected for mock trials or focus groups, and by conducting more sophisticated public opinion polls when better chances for statistically significant conclusions are sought. We are currently at a high watermark of attention to the measurement of attitudes, since there is no time at which public opinion polling receives as much focus as it does during a political campaign. But anyone paying close attention to the daily drama of "up one, down two" attitude surveys could be forgiven for wondering, "What is up with the polls?" and further, what does it say about our ability to accurately and reliably measure public opinion. 

Especially as we move toward the end of the campaign cycle, the volatility of the polling in the wake of the presidential debates has challenged the conventional wisdom that the debates don't change election results. Taking advantage of this brief moment in the sun for survey research, this post will use the example of polling on this year's presidential race to consider the most important messages that attorneys should bear in mind when interpreting surveys to assess their case or venue. 

Be Assertive, Not Aggressive: 2012 Presidential Debate Series, Part Three

By Dr. Ken Broda-Bahm: 

Everyone loves a second act. In the buildup to the presidential debate on Tuesday, President Obama's supporters were hoping for turnaround from what was widely described as a lackluster performance in the first debate: He needed to find his edge, fight harder, and call out his opponent Mitt Romney more often and more forcefully. One could almost hear the cheerleaders, "Be...Aggressive...Be...Be...Aggressive!" And there is no doubt Romney supporters were chanting the same, betting that their candidate could continue to capitalize on a stronger than expected performance that has buoyed him in the polls leading up to next month's election. 

But there was one practical obstacle for both candidates: The "town hall" format that involved questions being asked not by a moderator, but by a cross section of New York area citizens selected by the Gallup organization. Both candidates needed to come out swinging, but especially in the live presence of undecided voters, they needed to find a way to do so without looking disrespectful or rude. In other words, the candidates experience the same conflict that every attorney faces in the courtroom: the need to attack without losing credibility, to unsparingly criticize an adversary while still maintaining an image that is respectful, professional, and courteous. In that context, one wonders whether the need is really for aggressiveness -- for attorneys or political debaters -- or whether it is for assertiveness. The two are close cousins to be sure, and at times the difference can be in the eye of the beholder. But in this post, I will draw from three specific vignettes from the debate to see if we can separate the two. 

Be a Happy Warrior: 2012 Presidential Debate Series (Veep Edition), Part Two

By Ken Broda-Bahm: 

The buzz following Thursday's vice presidential debate between Congressman Paul Ryan and Vice-President Joe Biden has been that it was a substantive and spirited debate -- with an emphasis on spirited. Both candidates appeared to be quick to challenge and eager to engage. Both appeared to be glad to be there. As summed up by CNN's John King in the moments following the broadcast, they are "happy warriors." Perhaps that happiness is understandable, since debate season is a high point of attention to the office of Vice President. On the other hand, the difference between especially the President's apparently reluctant and professorial performance in the first debate, and the greater level of feistiness from those at the bottom of the ticket, may have as much to do with personality and attitude. Not just as a political tactic, but as an interpersonal trait, it helps to relish the sport of argument. 

There are certainly other ways of viewing argument: as an unpleasant conflict, a sad necessity, or a grim battle. For advocates and persuaders in all contexts, including litigation, situations involving argument present us with a choice of how we position ourselves within the conflict. Finding energy and even joy in the argument can be an important part of a persuader's image, dynamism, and effectiveness. In this post, I'll be using the vice presidential debate as a handy example of the advantages of being an eager advocate, some of which can be applied directly to the psychology of a trial lawyer.