Persuasive Litigator

Follow the Ten Commandments of Graphics Use in Trial

By Dr. Ken Broda-Bahm: 

A recent blog post written by a juror in the trial of Jim Fayed, a gold trader convicted of arranging the brutal murder of his estranged wife in a Los Angeles parking garage, included some rather colorful descriptions of the prosecutor’s use of demonstrative graphics: 

…And then there were the assistant DA’s unnecessarily omnipresent PowerPoint slides. 

Here are some actual quotes:
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“If Jim Fayed didn’t do it, who did? BATMAN?” Click: Batman slide. 


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“The defense is offering you a buffet of explanations.” Click: buffet slide.
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Really?! The assistant DA’s favorite PowerPoint slide of all, though, was a red herring dropping down the screen on a string and then bouncing. He used this Monty Python-esque bit of goofery over and over and over again (mentally cue the sound effect: doy-oy-oyooiiinngg!) without regard for how sad or serious the current murder testimony was. When you find yourself more disturbed by the tactics of the prosecution than by bloody crime scene and autopsy photos of the victim, something’s really wrong. 

Something’s wrong indeed, and the juror's reaction is understandable. Effective trial presentation is an art, and litigators should use every effective tool at their disposal to practice and hone that art. But when the techniques call attention to themselves is when "art" becomes "artiface." Some would point to this example and say, "See! This is what happens when litigators wed themselves to PowerPoint and other presentation crutches in opening and closing." But the problem in this case is not the use of visuals and PowerPoint, but the way they're used. As with anything that happens in a courtroom, graphics in trial need to be used by attorneys with some good sense and some taste. The "goofery" this juror, Jean Black, perceived got me thinking about the larger point: What are the conditions for the sane and responsible use of imagery in courtroom presentations? So drawing from this example, and also going a bit beyond it, here is my quick list of the top ten commandments for trial graphics. 

 

Know the Costs of Plea-Based Justice

By Dr. Ken Broda-Bahm:

This blog, like much of the internet, relies on RSS or "Really Simple Syndication." For many of the photos that grace my posts, including this one, I also use the "Creative Commons" system of openly licensing content. The ideas for both RSS and Creative Commons licensing, as well as Reddit and numerous other innovations, can be traced to Aaron Swartz, pictured above. A gifted programmer since childhood and social media visionary, he's also been an activist for open electronic access: So opposed to the Stop Online Piracy Act that in 2011 he tapped into MIT's network in order to download thousands of copyright protected articles from the JSTOR academic database. For that, he was facing as much as $1 million in fines and 35 years in jail. In a legal case that dragged on for two years and depleted the 26-year-old's finances, critics charge that the government followed a common path of creating a large and formidable pile of charges in order to force a plea agreement: "Charge it up, then plead it down."

Only in this case, Swartz took a different path last month and took his own life. We can't know whether this act was due to Swartz's history with depression or the forced choice between pleading guilty to a felony or taking the risk of serving up to 35 years in prison. But the loss has brought new attention to the practice of resolving the vast majority of criminal cases through plea deals. A thorough new article in the Boston Globe addresses the Swartz case as symptomatic of a plea-based system of prosecution which has led to a disconnect between the legal process and the events at issue, and outcomes that reflect not necessarily a "truth," but a calculation. As the writer, Leon Neyfakh writes, "By stacking charges as high as possible and wielding the threat of mandatory sentencing laws, the argument goes, prosecutors intimidate defendants and make it all but impossible to turn down their offers." So in a system that operates intentionally to create duress, it is no surprise that there are some victims. The solution, Neyfakh suggests, may be a renewed and reassessed role for juries as a check against prosecutorial excess. While Persuasive Litigator usually focuses on civil litigation, I wanted to consider this example from the criminal world for two reasons: one, it is a huge issue, and two, the broader concern over resolution through duress has parallels in the civil world as well. 

Criticize Clients Carefully

By Dr. Ken Broda-Bahm: 

Here's a "don't do that" lesson. After calling his client and her husband "toothless cooties," in what he thought was private communication, well-known Colorado plaintiffs' attorney Chad Hemmat suffered a $2 million judgment (including $1.5 million in punitive damages) when the client took him to court over inadequate representation and, the former client claimed, for undervaluing the case and pressuring a quick settlement. The story, covered in the paper edition of the January 21st Colorado Law Week and in our city paper, Westword, caught my attention because it brings up a common dilemma for active litigators. No, that dilemma is not how to represent toothless cooties (and I have to admit that I'm not really familiar with that expression...but it sounds bad).

The dilemma is how litigators ought to take care in delivering critical messages to their clients. You see, that was Hemmat's defense for the statement. While he admits that he chose his words poorly (but colorfully), his claim in trial was that he was just frankly evaluating how his client would be perceived by a jury. "You want me on that wall," he argued, "You want me trying to decide how you will be portrayed." And that is clearly the right role for a trial lawyer. But, even without the colorful language, it is a role that needs to be approached with a great deal of care. That is because there is a natural conflict between the lawyer's role as an advocate ("I believe in your case and I'll be your champion...") and the lawyer's role as a counselor ("...but here is the reality of what you're facing at trial"). The jury delivering the recent verdict against Hemmat, for example, probably had little trouble concluding that anyone who would communicate with such apparent disrespect probably wasn't a zealous advocate for his client -- a perception likely reinforced by the fact that the client received only about $20,000 (compared to the firm's $27,000) in the settlement. Still, it is easy to see that the client's dream of a multimillion dollar jury verdict may have been just that, a dream. So how does a responsible attorney convey that reality? 

Beware of TMI: More Information Doesn't Lead to Better Decisions

By Dr. Ken Broda-Bahm: 

There is a disconnect between awareness and reality when it comes to the level of information presented in complex civil litigation. On the one hand, experienced litigators know that jurors can only absorb so much, and will be deciding a case based on the peaks and not the nooks and valleys you give them. But, too often, that understanding is shattered in the face of voluminous exhibit and "will call" lists. In broad terms, we understand that more isn't necessarily better, but in practical terms, knowing what to limit can be very difficult.

A classic study (Bastardi & Shafir, 1998) confirms our intuition that more information doesn't necessarily help decision making and can even lead to worse results. The Princeton and Stanford researchers manipulated the level of information received in a loan application situation, and demonstrated a distracting effect once they complicated the scenario. Noting this as "a troubling blind spot in the way we make decisions," psychologist Ron Friedman wrote recently in the Glue blog for Psychology Today, the study "highlights the downside of having a sea of information available at our fingertips." Yet it is precisely that sea that most litigators face in the space between the end of discovery and the beginning of trial. As you might guess, dumping it all on the judge, arbitrator or jury isn't the best option given that additional data can sometimes dilute the rationality of decision making. It is quite a broad topic to consider how to practically (and responsibly) limit this information at trial. But before the trial comes the mock trial. So this post takes a look at the study and recommends some practical ways to limit the amount of information during pretrial research and pare down the complexity prior to trial. 

Know Whether You Need a Guru or a Scientist

By Dr. Ken Broda-Bahm: 

One lasting lesson from the now-concluded presidential campaign is that it matters where you get your advice. The field of political consulting has long been populated by guru-like figures like Dick Morris. Relying on subjective indicators like the feeling and size of the crowds at rallies, as well as the intuition that the Obama campaign could never repeat the levels of turnout it saw in 2008, Morris predicted a "landslide" win for Mitt Romney. He was wrong, of course, and Nate Silver and many other pollsters were right. But beyond the polling, it turns out that team Obama had an unprecedented "Dream Team" of social scientists providing data-driven advice on messaging, fund-raising, and get-out-the-vote tactics. Detailed in a recent article in the New York Times, this Pro Bono team was known as "COBS" (for "Coalition of Behavioral Scientists) and included some of the leading lights from Princeton, Arizona State, Columbia, and the University of Chicago. All of these experts teamed up in order to provide the reelection team with research-based advice on countering rumors, portraying the adversary, strengthening voter commitments, and mobilizing the behavior of voters. 

Ultimately, it turns out the social scientists were quite a bit more useful than the gurus, and this approach is likely to become the 'new normal' for political campaigns in the future. The trend points to a parallel choice for litigators: When looking for advice in the lead up to a jury trial, is it better to seek out gurus who seem to have a special sense and understanding for juries, or is it better to go with social scientists who are able to generate, analyze, and base recommendations on data derived from research prior to trial? Of course, the way I've framed that question, as well as my introductory example, reveals my bias. When you have a choice, I think it is better to listen to social scientists more than you listen to gurus. Still, there may be a little more nuance to the question. In this post, I take a look at the guru/scientist split as it relates to a choice of litigation consultant.