Persuasive Litigator

Don't Pull the Plug on the American Civil Jury Just Yet

By Dr. Ken Broda-Bahm: 

There is a body lying on the pavement. It is still twitching a bit, but fading fast. "This was no accident," says the hard-boiled detective, "this was an attempt at premeditated murder...and it just might succeed." If instead of "body" we're referring to the American civil jury, and instead of "hard-boiled detective" we're referring to a new article in the Yale Law Journal, then the scenario is roughly the same. The analysis, from Yale legal history professor John H. Langbein (2012), notes the dramatic decline in civil trials (now down to two percent of all case conclusions in federal courts and less than one percent in state courts), and ties that trend to a movement from a pleadings-based system in which facts were resolved in trial, to a discovery-based system in which facts are resolved not before trial, but largely without trial. This, Langbein argues, is a consequence of the 1938 Federal Rules of Civil Procedure and the civil jury is fading by design, if not by intent, because the reforms have largely worked. In other words, the American jury didn't fall, it was pushed.

While these rumors of the civil jury's impending death may not be greatly exaggerated, they may yet be premature. This is particularly true if we are focusing on the role of popular judgement at a level that is somewhat broader than the formal jury as we have historically conceived it. By expanding our focus a bit in order to account for the potential jury, the expanding use of the mock jury, as well as potential new models such as California's expedited jury, there is still the chance that the legal vox populi might live to play a role in the future.

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. 

No Blank Slate (Part 3): With Judges, Arbitrators, and Mediators, Don’t Assume They're Neutral

By Dr. Ken Broda-Bahm -

 
Judges, arbitrators, mediators:  legally trained and neutral minds, without the juror's baggage of selective perception, predisposition, and bias, right?  Not really.  In the previous two posts on motivated thinking and instrumental argument, I wrote that an audience's reasoning and advocacy is driven by emotions and not just by logic.  While a jury's decision making and deliberations might be the acts most obviously implicated in these findings, the mental processes are by no means unique to juries.  The experience of going to law school and occupying a specific legal role does tend to refine legal understanding and decision making quality, but that doesn't provide a blanket exemption to human psychology and communications. 

Indeed, the experienced legal practitioner is more likely than the novice to rely on heuristics, those rules and routines that tend to simplify and systematize decision-making.  In some ways, that is what "expertise" means: an expanded reliance on heuristics.   Rather than making non-jury decision makers neutral and above the influence of human factors, these very heuristics serve to ingrain a decision maker's habits and preferences.  This post takes a look at some of the research on bias in non-jury legal audiences and shares some advice on addressing those factors.

Avoid Lockout: Address Judges and Arbitrators Persuasively

By: Dr. Kevin Boully -

Lockout.  If you’re a sports fan or even a casual news surfer, you cannot escape word that America’s favorite sport – professional football – is in jeopardy.  Players and owners are at odds and this Wednesday, the National Football League Players Association will face off against the NFL and its owners in an injunction hearing before a Minneapolis Judge (for some flavor click here to see the NFLPA’s brief filed last week).  There is a real chance the 2011 NFL season will be disrupted. A few lawsuits (including one by former NFL players) have already been filed and there is talk of a similar dispute playing out later this year between professional basketball players and the National Basketball Association. 

At least we have baseball, right?  Well, yes, but keep in mind that 119 Major League Baseball players went through salary arbitration for the 2011 season – again in dispute over, among other things, how much money players make and owners share.  Even college sports are in the courtroom.  It is a reality that judges and arbitrators have an increasingly important role in the future of sports.  So it got me thinking about our experience with judges and arbitrators and how advocates must address them to be successful. 

Know Your 'God Terms' and Your 'Devil Terms'

 By: Dr. Ken Broda-Bahm -

The need for a theme that communicates, simplifies, and unites your case has become common sense to litigators.  But the way that we come up with a theme is a little more mysterious.  Some see theme creation as an act of laborious analysis, developed out of a painstaking accounting of all case issues, good and bad.  Others see it as an act of divine inspiration, a ‘bolt from the blue’ that arrives unexplained from some part of our mind.  Someplace in between these two perspectives, I’d like to suggest one handy tool that will not only help you develop a theme, but will also provide you with a broad working vocabulary to use when talking about your case. 

The advice is to draw from the work of the rhetorician Richard Weaver, and identify the ‘god terms’ and ‘devil terms’ of your case.  God terms represent all of the words and phrases that you embrace, words that have an "inherent potency" in identifying what you support.  Writing in the fifties, Weaver used the examples of "progress" and "freedom" as words that we took as unquestionably good.  As you might expect, 'devil terms' represent their mirror image, and Weaver's prime example of "communist," has been replaced in our time by "terrorist" as the ultimate devil term.  Devil terms are not terms you avoid, but are rather terms that you embrace in describing the other side, and in helping to frame what your audience should be against.  The celestial imagery behind the words is more than just a great way for you to remember the concept, but is instead an important part of its meaning.  A god term means more than just a 'good term' but is instead a "rhetorical absolute," something that carries a strong automatic meaning.  That is, it isn't good because we can think of an argument why it is good.  Instead, it is good because it fits with at least one common worldview that our audience holds about what is good.  Same for devil terms - they carry a natural unfavorable connotation.