Persuasive Litigator

Keep Jurors Focused on the Difference Between Past and Present Knowledge

By Dr. Kevin Boully:

 

Did you believe in 2001 that a concussion could cause significant future health problems? Do you believe it today? If there is a difference, it is probably due to the attention brought by current trends in concussion litigation.  

Reports and concerns over the health risks related to concussion injuries in all levels of sport seem to reach new heights with every 24-hour news cycle. Managing concussion risk in recreational activity is now a public health issue and a litigation hotbed. Public officials and lawmakers are involvedⁱ with new legislation proposed last week. Former athletes injured playing sports are looking for answers. Sports leagues, teams, coaches, school districts, governing organizations, product makers and more are no longer on the sidelines – they are defendants. When the family of former professional hockey player and known “enforcer” Derek Boogaard recently filed a wrongful death lawsuit against the National Hockey League (NHL), the NHL joined the National Football League (NFL) among a host of others being sued by former players making a variety of claims from failure to warn of concussion risks to negligence and more.

Drawing from our own national study conducted late last year, this post will hit upon public perceptions of concussion risk and impact, while also sharing a few tips for keeping jurors from applying current attitudes and knowledge to decisions and technologies deployed in the past.

Check Your Jurors' Power Level

By Dr. Ken Broda-Bahm: 

An Iowa jury just handed down a $240 million verdict on behalf of 32 mentally disabled men who lived and worked for decades at a turkey processing plant and were paid just $65 a month. That verdict, the largest ever in an EEOC case, captures the jurors' feelings about such blatant exploitation, but in addition to anger, the judgment also signals one other critical ingredient: a feeling of power. As one juror noted, she wanted to send a message: "We wanted to let people out there know that, in the future, this cannot happen." That sense of power can also be evoked when a jury returns a defense verdict. For example, last year a Manhattan federal jury found in favor of Citigroup and against the Securities and Exchange Commission. In that case, the jurors noted, "We were afraid that we would send a message to Wall Street that a jury made up of regular American folks could not understand their complicated transactions and so they could get away with their outrageous conduct." So they issued a statement along with their verdict which was read aloud by the judge: "This verdict should not deter the S.E.C. from continuing to investigate the financial industry, review current regulations and modify existing regulations as necessary." In other words, "Change the law and we'll get them next time."

What unites these examples is that in each we are hearing the voice of an empowered jury. In the right circumstances, a jury's verdict is not simply an answer to a legal question, it is a message delivered by a body that has come to feel that it has the legitimate power to deliver that message. Power, or more accurately the feeling of having it, is an important dimension to consider in analyzing any audience. So this post is going to take a closer look at this concept of juror power. Of course, a jury has real power, subject to the limits of appeal, but in given situations they can be either more or less sensitized to that fact. Becoming aware of that power can lead to more dramatic decisions, as in the examples above, but based on some new research, it can also effect some important changes to the ways jurors think. 

See the Process and Not Just the Product in Deliberation

By Dr. Ken Broda-Bahm: 

Over the weekend I gave a presentation at a law firm retreat in Palm Springs. The presentation drew from a recent mock trial in an insurance dispute and the deliberation video clips I was playing could've been seen as a parade of mistakes: jurors ignoring instructions, flagrantly applying their own experience and knowledge, and framing the dispute within their own terms instead of the frame provided by the presenting attorneys. After about an hour of this, one attorney in the audience spoke out: "Do you still," he asked, "have faith in a jury to deliver a good verdict?" In response I said, "Yes, I do," not only in reaction to current political questions over whether the jury can do the job, but also based on a generation or more of social science research summarized and advanced in an article currently on my nightstand. In short, even when we might disagree with the product that a given jury hands down in the form of a verdict, jurors are following a process that is valid, valuable, and to at least some extent, predictable. 

The article on my nightstand was written by two communications professors from University of Colorado and Pennsylvania State University (Sprain & Gastil, 2013). They reviewed the literature on what it means to deliberate and conducted their own study focusing on the survey responses provided by more than a thousand jurors post-trial. From that they developed an interpretation of the 'rules' jurors apply when trying to come to a verdict. The article shares a set of simple but important findings and conclusions that should not only increase our faith in the jury, but should also inform our practice when dealing with jurors. This post takes a look at the study and spotlights four of the conclusions that should matter most to the practicing litigator. 

Speak to the Individual, Not the Common

By Dr. Ken Broda-Bahm: 

Last week in the U.S. Senate, a measure to require universal background checks on gun purchases failed to get the 60 votes needed to survive. The arguments supporting the common good of keeping firearms out of the wrong hands were, to 45 Senators, was not as strong as the individual rights based aversion to new restrictions in any form. Though this decision was out of step with prevailing public opinion (with 86 percent of the public supporting such checks), it was quite consistent with a very common and very American tendency for common good arguments to crumble in the face of individual good appeals. So this abstraction of "The Common Good" that might seem like an important touchstone for persuaders in all contexts, turns out to be an argument that you can't quite count on. According to one recent study (Hamedani, Markus & Fu, 2013), common good arguments aren't simply suboptimal, they actually serve to demotivate the audience. 

Here in the U.S., we tend to like our independence a lot more than we like our interdependence. This tendency to put the individual ahead of the commons exerts a strong influence in determining which persuasive appeals will work. Attorneys working to motivate a judge, jury, or arbitrator are interested not just in reasons in the abstract, but in appeals that an audience will find tangible, meaningful, and personal. Based on the recent study, the appeal to the common might be just too common to work as that kind of a motivator. Instead, what works is to communicate and frame arguments in personal terms. Even while avoiding overt special pleading (this verdict affects you) or Golden Rule objections (what would you have done?), it is true that legal audiences will favor appeals that can be grasped in individual terms. This post takes a look at the research showing the weakness in "The Common Good" and shares some ways of converting these arguments into more individually relevant appeals. 

Account for Mortal Thoughts After a Tragedy

By Dr. Ken Broda-Bahm: 

This past Monday brought tragedy as bombs placed near the finish line of the Boston Marathon caused three deaths and hundreds of injuries. The attacks, at this point bearing the hallmarks of either an international or a domestic terrorist attack, have also reopened a wound in the national psyche, providing the fresh reminder that we live in a world that is never free of the risk of politically motivated violence. In the months and years following the 9-11 attacks, I remember clients asking "how is this likely to affect the jury pool?" In the big picture, of course, that can sound like a somewhat trivial concern, yet as a touchstone for everyone, these tragedies have important implications for anyone wanting to understand the breadth of public opinion. Now that we've again witnessed our own insecurity even on U.S. soil, the tragedy has brought new attention to the ways these events change our worldview and our decision making. 

Tragedies change the way we think, and the way we think always matters to how we're persuaded. Even when court cases have nothing to do with the tragic events at issue, those events still establish a context that a legal persuader needs to work within. In a report yesterday on NPR, Alix Spiegel talks to University of Arizona psychologist Jeff Greenberg about the ways the public participates in common tragedies, including reactions that go beyond shock, mourning, and a resolve for justice. Specifically, Greenberg talks about research showing that people become more focused on their own vulnerability and mortality, become more committed to their own belief systems and more polarized in the process, and become less tolerant of differences in others. Those changes influence how we view daily events large and small, and can also influence how jurors make moral judgments in court.