Persuasive Litigator

Settle Your Case Without Setting the Dominoes in Motion: Research on the Demonstration Effect

By: Dr. Ken Broda-Bahm -

 
The role of a positive example in creating a “demonstration effect” has long been noted in the fields of political science and international relations, with one of the classic examples being the American Revolution that was closely followed by the French revolution.  We’re seeing it now on a near daily basis in the Middle East and North Africa.  From Egypt to Bahrain, Morocco, Yemen, Algeria and Libya, people who spent generations under autocratic rule are suddenly finding the will to mount massive demonstrations to challenge their respective regimes.  From a single successful example (Tunisia went first), the idea spread outward like a drop of ink in a glass of water.  One day, a revolution seems impossible, and the next day it has a chance: “if the Tunisians and Egyptians can throw off a dictator, then so can we!” and the dominoes fall.  So if you are an autocratic ruler, situated in the North of Africa or the Middle East, chances are you have some concerns about anything that could prompt the citizenry to follow that example. 

I don’t want to overwork the analogy, just to bring the topic back to litigation...but I will:  If you are a defendant corporation in the pre-trial phase, you may be thinking along similar lines:  “We can’t settle this case, because once we take that first step, there will be so much blood in the water that we’ll be settling other cases for decades…”  There is, of course, some practical truth to that.  But the question is – for both Middle East unrest and the demonstration effect of potential settlements:  What is it about a positive example that motivates folks to think it could apply to them as well?

The Jury is Out: Make the Most of Your Experience In an Era of Fewer Trials

 
By: Dr. Ken Broda-Bahm -

We've now been using the phrase "the vanishing jury trial," for almost a decade, and the decline continues.  The days when experienced lawyers could count on finding themselves in front of a jury several times a month are gone, as today's cases are increasingly resolved by judges, mediators, arbitrators, and other routes to  settlement.  Even among the best, years can go by in between trials. 

This decline in the American trial isn't just a pining for 'the good old days,' but a real and continued trend observed in the research.  Joseph Anderson (2010) is a U.S. District Court Judge in South Carolina who has recently combed through state and federal data to document the trend.  His article, "Where Have You Gone, Spot Mozingo?' is named for a legendary South Carolina attorney who tried more than 600 cases, before dying...at the age of fifty-nine!  That level of experience has, by all accounts, simply been lost within our system.   The keystone work on this issue (Galanter, 2004) is a comprehensive study of trial frequency across the system of American courts, and it notes the following sobering facts:

Keep Your International Arbitration out of the Tower of Babel

By: Dr. Ken Broda-Bahm -

So, a retired Brazilian judge, two American litigators, and three German engineers walk into a bar...  Okay, so it wasn't a bar, it was an international arbitration, but the potential for miscommunication is just as great as the joke intro would imply.  This one took place in Sao Paulo, Brazil and it was preceded by a two-day mock arbitration that I facilitated in order to help our litigation team prepare the best arbitration case possible.  Any case that makes it to arbitration or trial faces its fair share of hurdles.  The need to teach, to leverage the best law, to overcome case weaknesses, to maximize strengths, and to wrap it all up in a convincing message, all adds up to a pretty tall order.  But, add to that the barriers of language and cultural difference, and the tall order becomes venti. 

As legal disputes inevitably become more international in nature, arbitration emerges as one of the more critical ways to solve disputes that transcend borders.  As international arbitration increases, however, we can expect an increase in the challenges in just getting the message across.  In appreciating these challenges, consider a few things. 

With Eggs and Arguments, Keep the Sunny Side Up, But Cook Both Sides

By: Dr. Ken Broda-Bahm

For the litigator preparing a witness or working up an opening statement, there is an important question of whether you should just make your own case, or identify and respond to the arguments likely to be offered by the other side.  For the witness, should you cover in direct what you expect will be hit on cross, or should you wait and either hope it isn't covered, or respond to it only on re-direct?  In opening statement, are you better off devoting time to a careful construction of everything that points to a verdict in your favor, or should you, either anticipating or reacting to the other side's opening, focus on tearing down their likely case?  Experienced litigators know, of course, that some attention needs to be given to opposing arguments, but it is often a difficult question of balance.  The fear is that in giving extensive coverage to the arguments emerging from the other table, you are appearing defensive, or giving those issues too much presumptive credibility in advance.  In argumentation and persuasion research, this issue is known as "one-sidedness" versus "two-sidedness."  And it is a question that has been researched -- a lot.  A post earlier this month in Psyblog reported on long-term research conducted by Daniel O'Keefe and others incorporating fifty years of experiments with more than twenty thousand participants.  The over-arching conclusion of that line of research suggests that attorneys, in most instances, should be a lot less skittish about devoting attention to the other side.

Build A Persuasive Construction Case

by: Dr. Shelley Spiecker

Our research consistently indicates jurors, arbitrators and judges evaluate cases through two perceptual filters, or lenses.  The first is a filter of “power” and the second is a filter of “choices”.  Specifically, they seek to know which party had the most power to alter the outcome of the dispute, and which party had the most choices.  Our pre-trial research consistently demonstrates the more powerful party bears the burden of persuasion in the courtroom.  Furthermore, social science

research documents that the more choices a party is perceived as having, the more responsibility is attributed to that party and the more likely decision-makers are to perceive the consequences to the party with fewer choices as being damaging.

 

In construction cases, decision-makers primarily key in on three areas of perceptual choice: