Persuasive Litigator

Leading Motives and Trailing Personal Stories: Lessons in Jeffrey Toobin's "The Oath"

By Dr. Ken Broda-Bahm 

To celebrate the first Monday of October, I'm reviewing Jeffrey Toobin's new book on the recent history of the Roberts Court. One thing is again made clear: Toobin knows how to find the story in the law. That is the same thing that all good trial attorneys are aiming for, and that makes "The Oath" definitely worthy of a spot on the litigator's nightstand.

Good advocates are often legal junkies, and the book provides a timely window into an especially interesting period in the Court's history. Beyond just serving up page-turning accounts of the cases that have marked recent terms - up to and including the surprising dynamics behind this summer's 5-4 decision upholding the core of the President's health care reform - Toobin delves more deeply into these legal dramas, placing them in the context of the justices' prior professional lives, as well as the broader arc of the ideological campaigns that define our current political moment. The result is not the interpersonal drama between two men suggested by the cover and the event from which the book draws its title, the botched (and repeated) administration of the President's oath of office on Inauguration Day. Instead Toobin provides an accessible intellectual history of the Roberts Court, and the stories carry a few practical lessons not just for appellate lawyers, and and other Court watchers, but for anyone who appreciates the larger picture of a legal decision's many roots. 

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. 

Note the Challenges of an Empty Chair

By Dr. Ken Broda-Bahm 

In the week since actor and director Clint Eastwood made a surprise appearance at the Republican National Convention, his speech has become infamous. The chosen rhetorical device of engaging in a dialogue with an imaginary Barack Obama, represented by an empty chair, has spawned countless internet memes and has even led to the coining of the verb "Eastwooding," to mean the act of arguing with an empty chair. 

Of course, in the courts, trial attorneys have been Eastwooding -- blaming empty chairs -- for many years. At least since tort reform changes in the last two decades have moved many states from joint and several liability toward standards that allow a nonparty at fault to absorb a proportion of responsibility, empty chairs have been taking at least as much criticism in court as Clint Eastwood leveled at the National Convention. These changes in law have, in many venues and litigation contexts, created a strong incentive for defendants to place responsibility on a party that isn't represented in court but is present on the verdict form. The party might be missing due to workers' compensation rules, other forms of immunity, or because they've settled before trial. But even as jurors might wonder at their absence, they still present an ideal opportunity for the remaining defendant(s) to reduce their own share of responsibility by pointing toward these phantom defendants. The challenge, however, is that the credible distribution of responsibility to include nonparties isn't always as simple as it seems. So, inspired by the RNC's recent Eastwood moment, this post shares some thoughts on the challenges and solutions surrounding empty chair defenses. 

The Products Survey (Part I): Adapt to Today's Product Attitudes

By Dr. Ken Broda-Bahm

A Persuasion Strategies/K&B National Research Survey

We are in an election season, and that is a good reminder of the fact that attitudes change. Maybe not fast enough to feed the 24-hour news cycle, but definitely fast enough to influence the litigation climate between cases. Products liability litigation in particular, is heavily influenced by jurors' preexisting attitudes on personal responsibility, their specific beliefs about safety, product labeling and testing, as well as the way they see the relationship between large corporations and individuals. These are all attitudes that vary by venue and over time. Not having your finger on the pulse of these shifting opinions can pose a danger to products litigants. While jurors are definitely committed to hearing the evidence and basing a decision on the particular case instead of their generalized attitude, the outlook they come in the door with will still determine your starting point in trial.   

This post is the first of three focusing on our own original research. Persuasion Strategies worked with the recruiting and survey company K&B National Research to conduct a nationwide telephone study of 406 jury-eligible participants to measure attitudes on a number of topics relating to products liability defense litigation. In June, 2012, we asked participants about their views on product testing, labeling, and legal responsibility. We also asked survey participants to report their leanings on a number of brief litigation scenarios. Part II of the series will focus on a few emergent factors characterizing those jurors who pose the greatest risk to the product manufacturer or seller, and Part III will focus on the special role of anti-corporate bias in mediating the relationship between individuals and companies in products cases. Before getting into that, however, this first post provides an overview of the survey results, as well as the general takeaways for products defendants preparing messages for trial. 

Ethos, Pathos, and Logos: Use All Three in Your Legal Writing and Oral Argument

By Dr. Ken Broda-Bahm: 

Matthew Salzwedel in Lawyerist recently wrote about ethos, pathos, and logos in legal writing. In case you're trying to remember that early college course in philosophy or public speaking, let me remind you of Aristotle's famous trilogy: Ethos relates to your credibility, pathos lies in your ability to appeal to emotions, and logos is contained in your logical arguments. Salzwedel's point is to emphasize that "ethos and pathos are logical fallacies" because they are irrelevant to legal reasoning, and that "Aristotle will smile" on those advocates who are able to forswear them in their own advocacy and rebut the two when employed by others. 

The post includes much good advice on keeping one's argument rationally focused and free of distraction. But in encouraging advocates to rely only on logos, the Lawyerist piece performs a serious misreading of Aristotle and applies a very narrow interpretation of both ethos and pathos. Viewed in context, ethos, pathos, and logos are three pillars to the same building. While legal argument appropriately prefers arguments grounded in logic, the practical need to convey a complete message means that there is a perfectly appropriate role for ethos and pathos as well. This post picks up where Salzwedel's post left off and discusses the meaning and importance of both ethos and pathos.