Category Archives: Adapting to Judges

October 26, 2017

Trial Lawyers, Improve Your Emotional Intelligence (7 Reasons and 3 Ways)

By Dr. Ken Broda-Bahm:

What counts as good legal persuasion differs from one country to the next. Different cultures, different legal rules and systems, and different fact finders all make a difference. But one thing stays consistent no matter the venue or the tongue: Legal persuasion boils down to people using communication to influence other people. That common purpose stands out in a paper released last month for the United Nations International Expert Programme in Investigative and Legal Psychology (Barosa, 2017). The paper is written by a Portuguese criminal lawyer, Pedro Barosa, and provides a literature review and reflections on emotional intelligence, mostly aimed at persuading judges (appropriate to the Portuguese system) but, as he notes, the thoughts are also broadly applicable to persuading anyone.

Mr. Barosa begins with the novel and disarming admission that, throughout his general and legal education, and continuing into his legal practice, he has consistently considered himself to be less cognitively intelligent than most of his peers and adversaries. But despite that, he wins more often than not, based, he believes, on an appreciation and use of emotional intelligence. The concept of “emotional intelligence” has been around for a couple of decades, and it refers to the  ability to perceive, analyze, generate, and use emotional responses. It does not just mean high levels of feelings, it means the ability to reason constructively about feelings. Barosa boils the definition down to three processes: “1) appraising and expressing emotions in the self and others; 2) regulating emotions in the self and others; and 3) using emotions adaptively to achieve one’s goals.” The research shows it to be unrelated to cognitive intelligence, meaning that people may be a genius in reasoning, but still a novice at emotional intelligence. Because law as a profession can self-select for individuals who prioritize logic over emotions, and because effective legal persuasion requires a mix of both, it is worth thinking about. In this post, I will share seven reasons to improve emotional intelligence informed and inspired by Barosa’s essay, as well as three ways to do it.

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January 2, 2017

Think About Font

By Dr. Ken Broda-Bahm: 

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This blog is written in Arial font. While I can’t fully control the fonts it shows up in when it travels out in various forms of syndication, for the version that lives on our site at Persuasive Litigator, I like Arial. It is a contemporary San Serif font that is pretty simple and clean, and in common use these days. But, I admit, I have not paid much attention to it. A piece from this past summer by Brendan Kenny in The Lawyerist, however, suggests that I should. And, more broadly, the piece recommends that lawyers should pay more attention to fonts in written persuasion. In the essay entitled, “Hey Hey, Ho Ho, 19th Century Fonts Have Got to Go,” Kenny quotes attorney Mathew Butterick writing that, “Typography is the visual component of the written word.” Litigators like to believe that content is king — and it ought to be, particularly in written argument. But in other settings, lawyers would not ignore the visual component, and the same ought to hold for fonts: Pay attention to what it says…but don’t ignore how it looks. 

It is not just the font, but the overall typography including white space, that invites a reader in and makes attention and comprehension not just possible, but easy. Brendan Kenny writes about “RADD” or “Revoked Attention Donation Disorder” that can be a court’s response to poor font use or bad typography. The phrase “revoked attention” is a good way of thinking about it. Readers will typically donate at least some level of attention as they begin to read, but that donation can be revoked if there isn’t a reward, or if there is too much of a punishment attached to the task. “Judges develop RADD,” Kenny writes, “when lawyers squander the gift of the judge’s attention by ‘scatter[ing] some words across some pages’ instead of presenting those words in the most effective and persuasive way possible.” In this post, I’ll share a few thoughts on font as they relate to written persuasion in litigation as well as their use in demonstrative exhibits.  

Think About Font in Briefing

Brendan Kenny writes that “Bad fonts drive out good fonts,” and law seems to be a setting where that is particularly true. Many habits lawyers bring to written persuasion are  left over from the era of typewriters. There is also the power of habit: Lawyers do what other lawyers do, and when everyone is using Times New Roman at 12 points, then that starts to look like a rule. Of course, in some cases, it actually is. A handful of courts do still tell attorneys what fonts to use, and, shame on you, Alabama, Massachusetts, and New Jersey appellate courts for forcing attorneys to use Courier.Times New Roman, however, is probably the most common choice and won the informal Twitter poll Brendan Kenny conducted for his article. But it is clearly a “19th century font,” and has been in steep decline — outside the law, at least — for many years. TNR won just a plurality in Kenny’s poll of lawyers, though, with a substantial number moving to Georgia or Garamond, or fonts specifically designed for law like those from Mathew Butterick. Kenny concludes with a very convincing ‘Scribd’ side by side comparison of the same brief, first written in an ancient nonproportional font (where the “i” is just as wide as the “w,”), and second with a more modern — Garamond, I think, — font. The difference is striking and should set to rest the idea that font doesn’t matter. 

Think About Fonts in Trial Exhibits

The conventional wisdom is that a serif font — with the little lines at the ends of letters — is better for extended reading, while a San Serif should be used for shorter punchier shorter texts, and especially for labels. In designing demonstratives, the best advice is to keep them simple, use fewer words, and design them to be read quickly, even instantly. When working with call-outs from documents, it is usually best to stick with the choice already in the document by using a cropped image (as Trial Director or Sanction does) or by recreating the same font on a slide, since that visually reinforces the accuracy of the quotation. When quoting apart from the immediate document, however, you can make it any font you want. For that use, you would think that the main point is to make it easy to process, and that likely is the main point most of the time. But there is one interesting exception. A post in A2L Consulting’s Litigation Consulting Report written a few years back, reports on research indicating that in situations where you are trying to avoid the jurors’ confirmation bias, pre-existing attitudes, or quick reactions, it helps to slow down their mental processing a bit, and a less familiar or harder to read font does just that. In most cases, though, quick and effective communication is going to be your goal, and your tools to getting your exhibit there will be: 

  • Sparing use of text, only when necessary
  • A clean, simple, and large San Serif font
  • Plenty of white space so the eye knows where to go

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Other Posts on Written Persuasion: 

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Photo Credit, robmcm, Flickr Creative Commons

October 24, 2016

Frame Your Medical Device Defense Around ‘Locus of Control’

By Dr. Ken Broda-Bahm: 

Med Device

“Locus of Control” (Rotter, 1966) is a psychological concept referring to how an individual attributes responsibility over her or his own fate. There are important individual differences. Those with a high internal locus of control will attribute success or failure to one’s own skill and choices, while those with a high external locus of control will attribute it to luck or to circumstances. Of course, that is a pretty useful measure for jury selection, with defendants generally preferring the “individual responsibility” orientation of those who favor an internal locus of control, and plaintiffs generally seeking out the victim-focused orientation of those with a high external locus of control.

In medical device context, however, locus of control is more complicated, since there are at least three places that control could reside: with the patient, the doctor, or the device manufacturer. Adding in more levels (e.g., pharmaceutical companies, different members of the medical team, or different parts of the manufacturing company – sales, design, testing, etc.), that control can be further distributed. The correct answer, factually and legally, is often that all of these parties bear a measure of responsibility for what is within their own sphere of control. At the same time, in mock trials and post-verdict interviews with jurors, we often find that jurors will concentrate their greatest attention on one party’s control, seeing that party as having the greatest power and making the key choices. And it is generally not a good thing to be the party in that position, since jurors will scrutinize every one of your decisions and imaginatively construct scenarios of what you could have done differently. But neither is it a good thing to focus only on other parties and to keep one’s own responsibility to an absolute minimum, since that can look unrealistic or evasive. Instead, the goal is to realistically distribute: Take responsibility for what is within your sphere, but encourage jurors or other factfinders to rationally place other responsibility where it belongs.

To do that, it helps to know a jury’s likely baseline attitudes. In this brief article, I will share some new data bearing on Locus of Control in three areas of relevance to the medical device manufacturer. In the summer of 2016, Persuasion Strategies conducted a nationwide survey of 420 jury-eligible participants. I will highlight three implications from that survey data.

One, Look for Label Readers

We asked respondents whether they tend to read, skim, or ignore the label content when dealing with medicine or medical devices. Most claim to read the label word for word.

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Of course, we are measuring their reported behavior, not their actual behavior. But that possibly idealized version is what jurors will be applying to the parties they evaluate. Label readers tend to accept a personal locus of control for themselves and place that responsibility on others as well: not just a burden to read the label, but to assume the responsibility for the knowledge and the risks of using the medication or the product.

Two, Treat Your Warning as a Transfer of Responsibility

This is the basic way warnings should work: Once a user is warned, then responsibility transfers to that user who can make an individual choice of whether to assume the risk or not. What jurors hate is knowledge that the company has but doesn’t share. That is why “hidden danger” is such a common plaintiffs’ theme across products cases generally: Users cannot protect themselves against risks they do not know about.

In practice, this creates a low threshold for warnings, perhaps lower even than the science or the common sense would suggest. For example, when we asked survey respondents what that threshold should be for a medical device company, nearly two-thirds reported that “even a slight possibility of risk” justified a warning. Less than a third felt that there should be evidence of that risk.

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So while the public, jurors included, will complain about ubiquitous warnings for everything including hot coffee, when it comes to assessing control and responsibility in the deliberation room, jurors want that warning to be there and to be clear.

Three, Educate and Convince Regarding the Doctor’s Role

Medical device cases can sometimes carry the illusion of a direct transaction between a device company and a patient/end user, and plaintiffs’ attorneys do what they can to facilitate that illusion. It is often an easier assumption to make because jurors often do not understand the doctor’s role. They may see the device manufacturer’s size, resources, and name familiarity as automatic signs of greater control and power.

One situation where this gap in understanding can play a pivotal role in regards to off-label use. When we asked in our survey, a large majority (79 percent) either did not know whether off-label use is allowed or incorrectly believed that it is prohibited. And the less power they see in the doctor’s hands, the more power resides with the device maker.

In the context of an actual trial, of course, the actual jurors will be informed on the law. But interestingly, even after being informed, the idea of off-label use remains controversial.

In the survey, we asked a longer question:

“The government’s role regarding medical devices, through the FDA, is to restrict how a device company markets and labels its products, but not to restrict how doctors actually use the device with patients. When a doctor uses a product in what is called an “off-label” application, this is not prohibited by any regulation and is actually very common in American medicine. Do you think this situation is:”

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Experienced medical device litigators know that they will have to address this perception, both educating and convincing jurors that doctors not only do have that ability, but also should have that ability to exercise their own medical judgment on a case-by-case basis.

This is just a small sampling of the ways that locus of control can come into a case. In general, a good trial message is that, “We take responsibility for what is in our sphere…but several things are properly outside that sphere.”

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Other Posts on Medical Cases: 

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Rotter, J. B. (1966). “Generalized expectancies for internal versus external control of reinforcement”. Psychological Monographs: General & Applied. 80 (1): 1–28. doi:10.1037/h0092976.

Photo credit: 123rf.com, used under license. 

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August 18, 2016

Consider Planting a Decision Tree in Your Next Trial

By Dr. Ken Broda-Bahm: 

Choices choices

Wherever juries are used, we tend to expect quite a lot out of them. As Marie Comiskey, Senior Counsel with the Public Prosecution Service of Canada, has written, “While first-year law students are given a semester to learn the rudiments of criminal law, jurors are expected to become conversant with the essential elements of the criminal law over the space of a few hours while listening to a judge’s instructions.” The instructions in civil law, of course, can be every bit the hurdle of their criminal cousins. When the legally trained look at these instructions and consider them “understandable,” or “clear enough,” I think that assessment suffers from what I’ll call an “analytical privilege:” Lawyers who are trained to think systematically in a discrete and logical sequence are likely to understand the underlying decision tree without having it drawn out for them. For the rest of the population — untrained and far less analytical on average — it is a safe bet that the drawing would help. 

I have written previously on the advantage of a flow-chart verdict form, citing earlier research (Fang, 2014). Marie Comiskey’s new article (2016) draws from experience and research in Canada, the U.S., Australia and Europe in order to forcefully argue that using decision trees or flow charts in jury verdict forms could substantially aid juror comprehension without threatening the jury’s freedom to deliberate on its own terms. Pointing to several studies showing greater subjective and objective understanding and comfort with decision making, she concludes “there is promising evidence that juror comprehension can be enhanced through decision trees.” While the innovation has not been tried very often in the courts of various countries, decision trees have been frequently used in the field of medicine, where research shows that they aid in patient comprehension of treatment options. Beyond using decision trees in the verdict design, they can also be used for demonstrative purposes to teach jurors about the flow of their upcoming decision. Building on my earlier thoughts and adapting some of Comiskey’s ideas, this post offers a few additional examples.   

Comprehension of civil and criminal instructions is a challenge, and judges, litigants, and academics should all be focused on the question of whether we are supplying enough tools to do the job. It is safe to say that we aren’t. “Given the enormous responsibility on jurors’ shoulders and the compressed amount of time in which they must learn the law,” Comiskey notes, “it is surprising that common-law countries have not done more to develop a vast array of decision aid devices to assist jurors in carrying out their civic duty.” A verbal description of the decision-making process may be comprehensible if the right jurors are willing and able to give it enough attention. A decision tree, in contrast, is comprehensible at a glance, and that ease reduces the cognitive load placed on jurors. It leaves the difficult work where it should be: in the evaluation of the evidence. A decision tree increases the chances that the jury will immediately and easily understand the sequence and consequences of their choices at a level far greater than that which is conveyed in traditional skip-based instructions. 

For example, consider a decision tree for simple liability:   

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The same applies to other paths in more complex scenarios, such as those that would be followed in a patent case.

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The decision tree approach can also be applied to specific issues within litigation. For example, the Comiskey article references an example that appeared in a Department of Justice focus group report (McClure, 2007) on the use of scientific evidence in trial. In this case, the illustrative flow chart focuses on specific factual disputes surrounding the prosecution’s use of mitochondrial DNA (or “mtDNA”) evidence in a robbery prosecution. 

Flowchart Images

Of course, the ultimate way the decision tree should be used to teach jurors is as the verdict form itself, and courts and litigants ought to be open-minded in considering that approach. Failing that, however, the charts can be used as demonstrative ways to explain choices that are embedded in more common and prosaic versions of the verdict form. 

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Other Posts on Verdict Determinations: 

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Comiskey, M. (2016). Tempest in a Teapot–The Role of the Decision Tree in Enhancing Juror Comprehension and Whether It Interferes with the Jury’s Right to Deliberate Freely?. Oñati Socio-Legal Series, 6(2).

Fang, J. J. (2014). 12 Confused Men: Using Flowchart Verdict Sheets To Mitigate Inconsistent Civil Verdicts. Duke Law Journal64(2), 287-331.

Semmler, C., & Brewer, N. (2002). Using a flow-chart to improve comprehension of jury instructions. Psychiatry, psychology and law9(2), 262-270.

Image credit: 123rf.com, used under license

 

June 13, 2016

Argue With the Other Side, Not With the Judge

By Dr. Ken Broda-Bahm: 

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Our trial system is set up so your adversary is on the other side and your judge is neutral. The courtroom layout illustrates that relationship, and trial procedure supports it. But at times, advocates can find themselves treating the judge as the adversary. Few examples rise to the level of presumptive GOP nominee Donald Trump’s repeated attacks against Gonzalo Curiel, the federal judge in two cases involving the business mogul’s for-profit enterprise known as “Trump University.” Trump has said that Judge Curiel has an “inherent conflict of interest” because Trump is “building a wall” along the Southern border, and the judge is “a Mexican” (actually born in Indiana). There is good reason to believe that Trump’s comments have more to do with politics (or maybe psychology) than with law, because his legal team has made no motion for the judge to recuse himself. That kind of criticism is, thankfully and wisely, pretty rare. The more common scenario occurs when the judge just seems to be leaning toward the other side’s arguments and you are trying to talk the judge out of it. In oral argument, for example, the judge may start firing arguments back at you, either in order to test your position as a devil’s advocate, or because she or he genuinely disagrees with you. In those settings, you argue back.

Unlike Trump’s case, those arguments are nearly always polite and deferential to the judge. Whether “your honor” seems to be on your side or not, a tone of respect is needed. At the same time, even a polite battle with the judge can feel a little futile or counterproductive. In fact, framing it as a battle between you and the judge puts you at a disadvantage because the judge has more power than you do. In addition, there is the danger that the judge might be setting aside a neutral and evenhanded mindset in favor of an advocate’s mindset. So what do you do when the judge starts to argue back at you? In this post, I will share a simple approach for reframing the judge’s comments so it remains clear that you are arguing with the other side, not with the judge.  

In a recent article, Proskauer attorneys Bradley Bobroff and Timothy Mungovan share six tips for trying a case before a hostile judge. The first tip is to resist the urge to engage. “That is a battle the trial lawyer will lose every time,” they write. “It’s like a nun fighting a ninja.” But the dilemma is that you have to zealously represent your client, and that means answering the judge with specificity, logic and passion, showing that your reasoning is better. So how do you prevent that from becoming a direct battle between you and the judge? I think it comes down to how you frame it. If you just simply argue back at the judge, then you create the appearance, and possibly the reality, that the judge is now your adversary. But if you take a couple of steps to explicitly alter the context of your argument, then you can try to keep your focus on the other side and to keep the judge within a neutral role. 

This is best explained using a couple of examples: one bad, and one better. 

The Bad Example: Arguing With the Judge

Attorney: Your honor, this motion on waiver does not have merit. My client had no definite knowledge that…

JudgeBut the February memo seems to clearly indicate knowledge of a breach dating back three years prior, doesn’t it? 

Attorney: No, your honor, that’s wrong. What you’re not taking into account is that the February memo asks questions, but doesn’t state a position, and you have no reason to believe that the board knew about its contents, anyway. 

Judge: But Ms. Green, the author of that memo, reports to the board….

Attorney: Not every detail. You don’t have evidence that… 

Judge: But that’s her job! She reports to the board. If she kept them in the dark, that is hardly a defense to waiver. At this point, I’m going to grant the motion. 

The Better Example: Arguing With the Other Side In Front of the Judge

Attorney: Your honor, you do not have the evidence before you that would allow you to accept this motion on waiver. My client had no definite knowledge that…

JudgeBut the February memo seems to clearly indicate knowledge of a breach dating back three years prior, doesn’t it? 

Attorney: Well, your honor, that is their position.  But they are not showing you where that February memo indicates knowledge, and not just questions. And even if it did indicate knowledge, they have shown you no evidence that the board was ever aware of the contents of this memo.

Judge: But Ms. Green, the author of that memo, reports to the board….

Attorney: They have argued that as well, but they are asking you to assume that this means she communicates everything. They have given you no reason to believe that.

Judge: Okay, I am going to review the evidence and I will defer ruling on this motion for the time being.  

The first example represents a direct argument between counsel and judge. In the second example, however, the advocate is doing two things in order to resist engaging directly with the judge in the argument. 

One, the advocate consistently frames it as “their argument,” meaning the other side’s position, rather than “your argument,” meaning the judge’s. Of course the judge knows it is the other side’s position, but the reminder helps in clarifying that the argument is with the other side, not with the judge. 

Two, the advocate repeatedly reminds the judge of her neutral role, not to advocate for the other side, but to decide whether the other side’s argument has merit. The advocate clarifies that it is the other side’s — not the judge’s — responsibility to prove the point. Again, the judge knows her role, but the reminder of the correct frame helps to keep the argument in perspective.  

Of course, neither example rises to Trump’s level of disrespect. But when you are trying to appeal to a judge, I believe that the second example is better in keeping it clear that the judge is the judge, not the adversary.

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Other Posts on Judicial Persuasion: 

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Image Credit: 123rf.com, used under license (edited)

May 12, 2016

Expect Jurors to Exaggerate the Role of Choice

by Dr. Ken Broda-Bahm: 

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We tend to believe that we navigate our way through the world based on our own conscious choices, and this perception of free will is an important part of our identity and our world view. Experienced litigators know that this perception of choice also plays an important role in how jurors and other fact finders construct and evaluate the notion of “responsibility” in a trial context. But what if this perception of free will, based on conscious choice, is a cognitive illusion? It may be. A new study (Bear & Bloom, 2016), for example, shows that what we perceive as choice at a given time can be influenced by events occurring after that time. In other words, we might believe we’re making our own personal choices, but that perception can be influenced by subsequent events that cannot possibly be known at the time the “choice” is made. Calling this an “illusion of choice,” the researchers point toward some deeper issues regarding the ways we conceptualize the ideas of choice and free will. 

That’s a heady philosophical topic of course, bringing to mind Plato’s allegory of the cave, or the Matrix movies, or the late Robin Williams quip: “Reality: What a Concept!” But there are more down-to-earth implications to this retrospective exaggeration of choice that should influence the ways litigators frame their messages and structure their stories in trial. If, for example, we tend to magnify our perceptions of choice and control as it applies in our own lives, it stands to reason that we would be more likely to project that exaggeration onto others, like parties in litigation. Indeed, that squares with what we see when we are observing jurors in mock trial exercises: The number one topic of discussion is pretty consistently the choices that each party had and what they might have done differently. In this post, I will look at the study on this illusion of choice and discuss the implications it has on the ways choice should be addressed by plaintiffs and defendants in trial.  

The Research: Constructing Free Will (or How Free Will is Constructed For Us)

Adam Bear and Paul Bloom, psychologists from Yale University, published the study in the journal Psychological Science, and the study was also discussed on psychologist Jeremy Dean’s PsyblogIn the study, research participants stared at five empty circles on a computer screen. One of those circles would randomly turn red, and participants were asked to predict which one it would be. People consistently reported that they were more accurate than they could possibly be. It appears that individuals would perceive that they had made a prediction only a fraction of a second after the red circle appeared. According to the authors, “These findings suggest that, like certain low-level perceptual experiences, the experience of choice is susceptible to ‘postdictive’ (meaning ‘after the fact’) influence, and that people may systematically overestimate the role that consciousness plays in their chosen behavior.” While it is only one study, it contributes to a view that the brain generates this subjective experience of free will and conscious choice by largely rewriting history in our own minds. As Jeremy Dean puts it, “Free will may actually be an illusion created after our unconscious has decided to act.” 

Dealing With Choice as a Plaintiff

One thing you can count on is that the jurors are going to focus on, and potentially exaggerate, the choices your client made. Something called the “Belief in a Just World” means that we are all motivated to believe that bad things don’t just happen for no reason, so we look for ways an apparent victim has brought it on himself. That means that the passive victim narrative just doesn’t sell. Jurors will want to exaggerate the degree of choice that the plaintiff had, and will put themselves in the plaintiff’s shoes and ask what they would have done differently in order to have avoided her fate. Many are thus primed to believe, idealistically, that their own wise choices would have protected them.  

To counter that, a plaintiff’s story ought to focus on an individual who exercised all the choices he could, at least all of those that were under his control. The main part of the plaintiff’s narrative should then focus on the defendant’s choices. 

Dealing With Choice as a Defendant

When you’re the defendant, you should allow the plaintiff’s choices to take center stage. Obviously, each side wants the jury to interrogate the other side’s choices, but here is where I think the defense has a bit of an edge: The jury is more likely to start by focusing on plaintiff’s choices rather than defendant’s choices because the plaintiff is more likely to be “like them.” To typical jurors, the individual plaintiff is going to be closer to their world than a company or a professional on the other side. Rather than helping the plaintiff, however, that just serves to make it easier for jurors to scrutinize the plaintiff’s choices and to think about what they would have done instead. Defendants can play to that tendency by using tools — checklist of choices or decision trees — in order to make these choices more salient. 

Ultimately, though, defendants cannot escape a focus on your own choices. As with plaintiffs, one focus should be on showing that the defendants made good choices in order to control what they could control.

In addition to explaining the frameworks jurors will bring to an assessment of plaintiffs and defendants, a belief in choice and free will is also a useful concept in in jury selection. Those with a high view of personal “locus of control” are more likely to broaden the sphere of individual control and personal responsibility, and for that reason will generally be harder on plaintiffs and easier on defendants. So it is useful to remember that there is one avenue of choice that isn’t an illusion: your strikes. 

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Other Posts on Choice and Free Will: 

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Bear, A., & Bloom, P. (2016). A Simple Task Uncovers a Postdictive Illusion of Choice. Psychological Science, 1, 9. URL: http://pss.sagepub.com/content/early/2016/04/27/0956797616641943

Image credit: 123rf.com, used under license

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May 4, 2015

Know Your Questioner’s Purpose

By Dr. Ken Broda-Bahm: 

15206258_mThe Supreme Court recently heard oral arguments on the question of marriage equality, and specifically whether state bans on same sex marriage are unconstitutional, and whether marriages that are legal in one state need to be recognized in another.  As is typical, the focus is on Justice Kennedy as the traditional swing vote, and true to form, Justice Kennedy gave both sides something to ponder. For marriage equality opponents there was, “This definition [of marriage as between a man and a woman] has been with us for millennia. And it’s very difficult for the Court to say, ‘oh, we know better.‘” Then, a bit later, for marriage equality proponents, there was a key moment after John Bursch, the Special Assistant Attorney General for Michigan, argued that the purpose of marriage was simply to regulate procreation and not to bestow dignity on anyone in particular. “I don’t understand this as not dignity-bestowing,” Kennedy quickly piped in, “I thought that was the whole purpose of marriage. It bestows dignity on both man and woman in a traditional marriage…I think many states would be surprised, with reference to traditional marriages, that they are not enhancing the dignity of both the parties. I’m puzzled by that.” That contrast fed the speculation on what Kennedy will do when the decisions come down in late June. 

But it is also wise to not read too much into the questions, and to remember that, when questioning, judges are often doing more than just seeking information or just sharing their views. Dealing with judges and many others in law means getting past the assumption that the only purpose of a question is to get an answer. Sometimes it is, but often there are a variety of other purposes. A judge’s questioning strategy is definitely front and center in U.S. Supreme Court oral arguments, but an ability to diagnose and adapt to questions applies in other legal settings, including witness cross examination and depositions, as well. In this post, I will draw from the Court’s oral arguments on the constitutionality of state bans on same sex marriage (the Obergefell cases) in order to separate and discuss the various question purposes on display. 

I am going to refer to judicial participation as “questions” knowing that often they really are statements with an express or implied “isn’t that right?” or “what do you say to that?” tacked onto the end. Read in the context of each Justice’s attempts to argue, to test, and to begin fleshing out their own opinion, the questions are not just attempts to gain information. Instead, they serve a variety of purposes. 

Sometimes the Question is a Counter-Argument

Asking a question is a chance to stump the advocate, or to make one of your own points clear to the other Justices. For example, after the Plaintiffs’ attorney Mary Bonauto briefly introduced her argument by noting her clients’ desire to “join in” the government institution of marriage, Chief Justice Roberts countered: 

You say ‘join in the institution [of marriage].’ The argument on the other side is that [you are] seeking to redefine the institution. Every definition that I looked up, prior to about a dozen years ago, defined marriage as unity between a man and a woman as husband and wife. Obviously, if you succeed, that core definition will no longer be operable.” 

How counsel responds in this case isn’t the point. The point is t0 get the judge’s own argument — in this case that petitioners are seeking a redefinition and not just equal rights — on the record. The response to this form of question is to treat it as an argument: You are not just providing information, you are in a debate. So respond with your own argument. 

Sometimes the Question is a Demonstration

In one particular form of counter-argument, a question can be designed, not just to refute, but to make a flaw more plain. For example, in order to show that the reasons against polygamy (e.g., the traditional appeals that ‘marriage has never meant that’) are also the same reasons the states have for legislating against same-sex marriage, Justice Alito provides an example of a quartet seeking legal recognition in marriage:

“These are four people, two men and two women…and let’s say they’re all consenting adults, highly educated. They’re all lawyers. (laughter). What would be the ground under the logic of the decision you would like us to hand down in this case? What would be the logic of denying them the same right?” 

The response to the demonstration-oriented question is to answer, but with an eye toward avoiding what your antagonist is trying to demonstrate. In this case, for example, Ms. Bonauto appealed, not to tradition, but to practicality by arguing that there are many logistical issues — including paternity, medical decisions, and divorce — that would be much more complex if marriages extended beyond two parties, and those complications give states a legitimate interest in prohibiting those unions. 

Sometimes the Question is a Test

The goal of a question, even at SCOTUS level, isn’t always to attack. In some cases, the Judge just wants help in fleshing out his own thinking. Take, for example, the first question out of the gate, from Justice Ginsberg:

What do you do with the Windsor case where the court stressed the Federal government’s historic deference to States when it comes to matters of domestic relationships?

In other cases, a judge might be trying something on that they don’t necessarily agree with, just to see if counsel’s response might aid their own thinking. That testing function may be what Justice Kennedy was after in asking about traditional definition of marriage having been accepted for  millennia. In responding to the test question, the advocate is suggesting a response for judges to use in bolstering their own opinion. 

Sometimes the Question is Rope

When judges are friendly to an advocate’s side, they will sometimes throw that advocate a rope via a timely question. For example, when Justice Scalia is going after the Plaintiffs’ attorney with the argument that ministers will be forced to officiate at gay weddings, Justice Sottomayor kindly tossed Ms. Bonauto a lifeline:

Counselor, there have been anti-discrimination laws in various states; correct? … And in any of those states, have ministers been forced to do gay marriages.

Bonauto’s answer, “Of course not, Your Honor” reminds us that the purpose of that question is just to suggest a different possible answer. This kind of friendly questioning occurs so often in Supreme Court oral arguments that the transcript can take on the appearance of the Justices mostly arguing with one another, using the advocates as intermediaries. The advocates, for their part, just need to recognize when it is a rope and reach for it. 

And Sometimes the Question is Just a Question

As Sigmund Freud said about the cigar, sometimes a question is just a question: Judges ask when they genuinely don’t know the answer. It may not be surprising that at the SCOTUS level, this kind of question is relatively rare: What with the briefs and the clerks, the Justices generally know what they need to know by the time a case reaches oral arguments. Indeed, as I searched the Obergefell transcript, I could not find a single example where a question seemed to have the main purpose of simply getting an answer. 

That basic but obvious function of a question is undoubtedly more common in other judicial settings. When the judge doesn’t know, she should ask, and the advocate should put the persuasion on pause and just give an immediate, straight, and informative answer. 

Advocacy, particularly before judges, is a complicated setting. For that reason, there are probably other varieties and nuances to the questions. Attorneys shouldn’t skip the diagnosis step. Before diving into a response, you should ask, “Is it an argument, a demonstration, a test, a rope…. or a question?” 

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Other Posts on Judicial Persuasion: 

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Photo credit: 123rf.com, used under license. 

April 23, 2015

Know Your Judge…Through Analytics, Not Anecdotes

By Dr. Ken Broda-Bahm: 

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So you’re slated for trial before a judge who is new to you. Naturally, you do your due diligence and try to find out all you can on what makes this judge tick. The result? A few broad comments and stories in response to an all-firm email. If you’re lucky, you find someone who clerked for the judge. Maybe you use Lexis and Westlaw to pull up recent relevant decisions and review a few of those decisions directly. The understanding you get is partial, based only on a small sample of what that judge has done. Now, imagine you have the ability to see, on one screen, all of your judge’s published and unpublished opinions, all of the cases the judge has cited, and the language he likes to use when citing them. Imagine having access to the most common sentences and phrases the judge likes to use across different decisions. Imagine a single listing of links to all of the times the judge has been mentioned in the news and in legally-relevant blogs. That information — a “big data” approach to assessing your judge — is now available in a service called “Judge Analytics” rolled out last week by a company called Ravel Law.

The name “Ravel” is pronounced, not like the French composer of Boléro, but so as to rhyme with “gavel” — Ravel is the opposite of “unravel.” The aim of the program, as stated in a brief introductory video, is to “help you understand how a judge thinks, writes, and rules.” Through an analysis of the full text of opinions, the program highlights patterns and tells you which cases and authorities your judge finds the most influential, and “even the sentences she likes to copy and paste in her decisions.” Up to this point, Ravel’s focus has been on citation research, applying a unique method of visualizing the connections and showing the relative importance of cases, producing a graphic web of citations and subsequent and supporting decisions. That visual approach to researching precedents and case law seems like it would be incredibly useful to associates, but for partners and for litigation consultants, the new “Judge Analytics” feature might be the more interesting offering. In this post, I will take a look at some of the possibilities of this “big data” approach to audience analysis. 

The Big Advantages of “Big Data” 

Anytime we have access to a large quantity of digital data, aggregate forms of data mining become possible. When judge’s decisions were only in dusty bound volumes of the law library, the main way to learn about them was to directly read each one. That is theoretically possible, but too time-consuming in practice, particularly in a field that bills by the hour. In a useful webinar Ravel used to announce Judge Analytics, Jean O’Grady, the Director of Research Services and Libraries at DLA Paper, suggests a label for the new form of learning made possible by the tool: “Precedential Behavior Analysis.” As pointed out in the video, Judge Analytics offers a chance to bring “big data” (the systematic and technological analysis of vast stores of digital information) to the law. Just as political campaigns now focus much more on big data than on intuition, advisors, or gurus, law can do the same, particularly when it comes to analyzing active judges who are producing a steady stream of rulings and opinions. As Ravel notes, “This is a new era of data-driven lawyering.” O’Grady adds, “I actually think we are tipping into a new level of innovation…a revolution in analytics that will have a huge impact on the way legal research is performed and the way lawyers plan their litigation strategies.” 

Ravel’s Judge Analytics: How it Works 

The idea is a fascinating one, just based on its origin. The team that developed Ravel — both the visual research approach as well as the Judge Analytics — came from Stanford University’s CodeX, which is an interdisciplinary program combining computer science, law, and design. The programming part relies on something called “natural language processing,” which is the relatively new technology that makes it possible for Siri or the customer-service center robot to (usually) understand you. Applying that logic to the big data task of sifting through all a judge’s opinions and references, the team noticed that several phrases kept appearing over and over again. Co-founder and CEO Daniel Lewis, quoted in a TechCrunch profile, thought “there may be a bug in the system.” Instead, they found that judges were “just copying the sentences when they wrote their opinions,” and that opened their eyes to some broad and reliable patterns as judges interpreted the law and applied prior opinions. 

KohThe way Ravel’s Judge Analytics works is that you enter a judge’s name and the program shows you the published and unpublished opinions authored by the judge, as well as the opinions cited by the judge. You can then filter those results by key words in order to dig down into the specifics. In the webinar, Lewis uses the example of patent litigation, noting that litigators would want to know whether a given judge has a scientific background, whether they have displayed a pro- or anti-patentee bias in their rulings, and the cases and specific sentences they rely on when ruling on particular issues. The program also relies on a selective search of those regions of the internet that are most relevant to lawyers in order to share whether the judge has been mentioned in the news or in legal blogs. 

Why Ravel’s Judge Analytics is Worth Checking Out

I spoke to the specialists in my own firm’s library, and the main difference between what Ravel does and what other sources do — Westlaw, Lexis, Thomson Reuters’ Monitor Suite — is that Ravel analyzes and retrieves the specific language from the opinions. That is the feature that makes all the difference in allowing actual analytics and not just retrieval. Ravel makes it easier, for example, to use the exact language that the judge used when citing the same opinion. While it may be physically possible to locate and read all of a judge’s opinions, clients don’t typically want to pay for an associate to do that. Ravel makes it possible to hone in on the language that you are most interested in from the outset. 

At present, Ravel’s Judge Analytics includes Federal Supreme, Circuit, and District Courts. It is not yet extended to state court judges, but these jurisdictions, along with some other updates, are presently in the works. As of now, Judge Analytics is only bundled with Ravel’s “Premium” service, and not available as part of the 7-day trial membership that gives one easy access to the case research tools. The company would be well advised to offer a trial membership that would allow attorneys and consultants to test out the Judge Analytics features in practice. 

But from the early indications, the broad textual analysis of your judge’s rulings seems to be far more promising than either a case-by-case reading or a reliance on anecdotes. 

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Disclaimer: 

Note: In this blog, I will occasionally look at litigation-related products and services, and I’ve given both good and bad assessments. It should go without saying, but these days it doesn’t: This is an independent article. I’ve received nothing for it, and I have no relationship – business, personal, or otherwise – with Ravel Law or the creators of Judge Analytics. 

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Other Posts on Adopting to Your Judge: 

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Image Credit: Courtesy of Ravel Law

May 15, 2014

Cite Social Science to the Court

By Dr. Ken Broda-Bahm: 

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Regular readers know this blog frequently focuses on the principle that social science matters in litigation. Knowing about public opinion and psychology helps the persuader understand and adapt to the audience. But, going further than that, social science also frequently finds its way into the court’s decisions, particularly when a court steps beyond the law’s formalism to more broadly consider the social implications and truths underlying the controversies before it. At the U.S. Supreme Court level, social science-driven amicus curiae briefs have played important roles in landmark cases like Brown v. Board of Education of Topeka on the effects of segregated schooling, helping the judges determine at that time that “separate” was not, in fact, “equal.” In cases like that, the Supreme Court’s reliance on social science is often justified based on the Court’s quasi-legislative role in making national policy. But the relevance of social science applies at the trial court as well, where there are factual questions that bear chiefly on the case at hand. 

One example of such a question that a trial court needs to answer is whether pretrial publicity is going to deprive a given litigant of the right to a fair trial in a particular venue. A recent article in The Jury Expert (Daftary-Kapur, Penrod, O’Connor, 2014), builds a case for taking the social science on that question more seriously. By comparing a laboratory simulation on the biasing effects of publicity to a more realistic ‘shadow jury’ investigation on the same case, the authors are able to argue that the different methods point to the same conclusion: Pretrial publicity introduces a persistent bias that influences the result. In a response published along with the article, I note a few areas where the presentation of these research results should be adapted in order to address court’s reluctance to rely on this kind of data. The exchange provides a reminder to litigators seeking to use social science  to buttress motions to the court: Instead of treating these citations as matters of fact, treat them as arguments. While they obviously need to be factually true as well, what matters as much, or more, is that the explanation should strategically address the court’s likely objections or natural reluctance to use social science. This post considers the issue and provides a few reminders on framing your social science for the bench. 

Social Science in the Courtroom

There is already a wide body of scholarship focusing on the role of social science in informing court opinions. Much of it is focused on the legal relevance and the implications of a court’s reliance on these so-called ‘extra-judicial’ factors. And courts do not consider these findings in isolation. For example, one article (Rublin, 2011) notes that there is a combination effect: When there is settled social science and widespread public opinion, the court is likely to move (e.g., school integration and gay rights), but where either is lacking, (e.g., death penalty), then the social science is less likely to be convincing. That same author in 2011 prophetically noted, “If the Supreme Court were to hear a case on gay marriage, a national consensus on the issue would be more outcome determinative than settled social science.” 

Social science research finds its way into opinions in a variety of contexts. In criminal cases it factors into disputes over application of the death penalty, juvenile criminal responsibility, racial disparities in sentencing, eyewitness identifications and a number of other issues. In civil cases, social science research is a staple in trademark and trade dress consumer confusion cases, and also has a clear role in disputes over the value and reliability of oral voir dire, the effectiveness of limiting and curative instructions, as well as the influence of pretrial publicity.

What to Address When You Cite Social Science Research

The scholarship on the legal role of social science has focused on theory and the judge’s role in accepting or rejecting the science, and less on the lawyer’s role in offering and framing that research. Indeed, such arguments are often coming in the form of amicus curiae from the social scientists themselves, and not from the attorneys. But to my mind, there is no good reason why attorneys should not be more willing to cite social science when it is on point and helpful to a judge’s decision. There are, however, a few ways the social science citations work a little differently than the law and the facts that a lawyer is used to citing. 

Here are four simple questions that a litigator ought to ask about the social science being cited:

How Do They Know? Citing social science is not like citing precedent: It is not the fact of an opinion, but the basis for one that matters. Because judges are less likely to be versed in evaluating social science, that basis (data, methods, conclusions) ought to be made as clear as possible. As Amy Rublin (2011) noted in her analysis, “It is not merely the number of studies supporting a proposition that matters, but also the cohesiveness of their findings and soundness of their methodology.” 

Is There Consensus? “”Uncertain social science,” Amy Rublin also noted, “may push the Court away from using social science.” Justice Scalia put it perfectly in his dissent in Roper v. Simmons, “Given the nuances of scientific methodology and conflicting views, courts — which can only consider the limited evidence on the record before them — are ill equipped to determine which view of science is the right one.” That means that judges will use the heuristic of ‘settled’ or ‘uncontested’ opinion within the field as a shortcut.

Who Else Has Relied on It? Social science is different from legal precedent, but the power of a prior example still matters. If there are similar circumstances where the social science finding has been used, it helps to reference those. Even beyond legal cases, if other government agencies, for example, have used these kinds of findings, that will be worth noting as well. As Rublin’s discussion demonstrates, it is not just the data and the conclusions of social science that matters, it is also the science’s ability to indicate a settled opinion.

What Interest Is Being Served? Focusing on the ‘interests’ underlying social science may sound like it is at odds with the neutrality that should define science. After all, science, even when it is ‘social,’ should still be factual. But the interest at stake still matters. The question, for example, could be “What interests are served in relying on the social science facts and not just on the inaccurate prior beliefs in this case?” Looking at the question of pretrial publicity, setting aside an exaggerated faith in jurors’ promise to follow instructions and, instead, looking at the empirical effects of pretrial publicity generally and in an individual case, serves a clear interest: a fair trial. Make sure the values underlying the science are made explicit. 

Like law, social science is an epistemology – a way of knowing something — but with its own structure, terms, and frames of reference. Noting that language difference, it helps lawyers to be at least a little bit bilingual.

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Other Posts on Briefing: 

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Daftary-Kapur, T., Penrod, S., O’Connor, M. (2014). Are Lab Studies on PTP Generalizable?: An Examination of PTP Effects Using a Shadow Jury Paradigm. The Jury Expert 26:2 (May). 

Rublin, A. (2011). The Role of Social Science in Judicial Decision Making: How Gay Rights Advocates Can Learn From Integration and Capital Punishment Case Law. Duke Journal of Gender Law & Policy19(1). URL:   http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1197&context=djglp

Image Credit:  Connie Ma, Flickr Creative Commons

November 14, 2013

Don’t Underestimate the Power of a Unifying Vision: A Return to the Reptile

By Dr. Ken Broda-Bahm: 

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The Reptile (Ball & Keenan, 2009) is about as hot as a cold-blooded creature can get. The theory, focusing on trying plaintiffs’ cases by aiming your appeals at the primitive drive for personal safety and security, seems to have struck a chord with plaintiffs’ attorneys. With regular seminars, a growing family of books, and strong word-of-mouth endorsements, trial consultant David Ball and attorney Don Keenan are on their way to making the Reptile a standard plaintiff’s approach for medical, personal injury, and products cases. Recently, I wrote a piece on responding to the Reptile approach for The Jury Expert (“Taming the Reptile: A Defendant’s Response to the Plaintiff Revolution”), and based on the high number of hits that article has been getting, it seems the defense bar is taking a substantial interest as well. In that article I argue that, despite having questionable foundations in some pseudo-scientific beliefs about the brain, the notion of appealing to basic security and safety needs is likely to be effective anyway because it speaks to juror motivation, and because it encourages persuasion that is both nontechnical and personally relevant. Defendants, however, can respond by targeting their own favorable motivations, and by undercutting the simplicity the Reptile approach depends upon. 

One point that I did not make in that article, but have been thinking about since, is the way the advocacy for the Reptile approach itself is a good example of its own principles in action. A common criticism of the Reptile perspective is that it puts some old persuasive ideas into a new package. I believe there’s truth to that but, at the same time, you’ve got to admit, the packaging has been pretty effective. In the book and in what I’ve seen of the surrounding material, Ball and Keenan are preaching what they practice. They address the fundamental insecurity of plaintiffs facing tort reform and skeptical anti-plaintiff juries, and apply a broad metaphor and a simple unifying and protective theme that provides a rallying point for the plaintiff’s bar. For this post, I want to look beyond the question of whether the Reptile has sound roots in science, beyond even the issue of its effectiveness in trial, and instead consider the selling of the Reptile approach as an example of effective persuasion in action. 

The Rise of the Reptile

I gave a seminar recently, and the panel also included a plaintiff’s attorney experienced in the Reptile approach. After I gave my spiel, similar to what I cover in the TJE article, he stood up and said that there is essentially no defense. “If the Reptile is done right,” he said, “Defendants simply lose.” This nearly religious level of commitment seems to be common in the plaintiffs’ bar. “Reptile strategy has taken the plaintiffs’ bar by storm,” Epstein Green and William Ruskin wrote in a piece appearing last month for the Association of Corporate Counsel. Rather than just being seen as a strategy that may help your chances, the Reptile is promoted and embraced as the way to victory. “The Reptile always wins,” Seattle lawyer Patrick Trudell blogged, quoting a line from the marketing guru Clotaire Rapaille. 

The pace of trainings, as well as the continually increasing count of verdict value that adherents attribute to the approach – now nearly $5 billion – points to the widespread embrace. But perhaps the best indication of the expanding appeal comes from the notice the defense bar is now paying to the Reptile. When I first wrote about Ball and Keenan’s work, I had trouble locating defense comments on it, but now they are everywhere (e.g., here, here, here, and here) and span the gamut from dismissing it as nothing new, to accepting it and responding on its own terms.  

What may be most telling is that all the skepticism and criticism so far seems to come from the defense side. I could have missed it, but I’ve yet to read or speak to a plaintiff’s attorney who says, “Yes, I’ve read this and I don’t buy it.” Instead, those plaintiff-side litigators who talk about Reptile don’t give anything other than an enthusiastic endorsement of the book and theory. 

The Power of a Unifying Vision

That success in the short-term speaks to the persuasive power of the Reptile perspective. I think we can see three basic functions for the theory. 

Theme. Broadly the notion that “the greater the danger, the more the Reptile cares” is an effective theme: Simple, visual, and memorable. Whether the evolutionary explanation of the role of the reptilian brain is accurate or not, the idea serves to bind together an array of information under a single short statement: exactly what a good trial theme is supposed to do.

Movement. There is a reason the subtitle for the book is the “Manual of the Plaintiff’s Revolution.” It is not intended to be a simple list of strategies, it is intended to be a mobilization, a rallying cry, and a call to action. In that setting, it may be helpful to view the approach as a kind of social movement, with plaintiffs’ attorneys marching under a Reptile banner. What matters most is that they’re in this together. 

Confidence. To a persuader, confidence is a powerful weapon. If plaintiffs’ attorneys feel that they have an approach that can get them past the hardened anti-plaintiff jurors steeped in a simplistic recall of the McDonald’s hot coffee case, they will be more likely to invest in cases, more likely to take cases to trial and, to at least some extent, more likely to win. Confidence can be contagious. 

History: (Ghost) Dances With Reptiles

If you know your American history, you’ve heard about the Ghost Dance Movement. In 1890, a  religious fervor swept beleaguered Native American tribes of the plains, including the Souix and Paiute, who learned from a prophet that if they performed a particular mass ritual, the spirits of their ancestors would return, restore the old ways, and grant them protection from being killed in battle. What drove them to that belief was the fear, really the knowledge, that their way of life was coming to an end. But fighters who believe, even wishfully, that they cannot be killed in battle are something to be afraid of as well. 

That hearkens back to my co-presenter who said that when it is done well, there is simply no defense against the Reptile approach. I’m never one to be afraid to stretch an analogy. So, to me, it isn’t a surprise that a plaintiffs’ bar, facing fewer trials, strong anti-lawsuit attitudes, and tort reform would similarly embrace an apparently new belief if a prophet tells them it will essentially make them invulnerable. 

But remember the flip side. The 1890 Ghost Dance Movement didn’t actually make Native American fighters immune to bullets, as the Wounded Knee Massacre at the end of that same year amply demonstrated. But it did provide a powerful unifying vision, at least for a time, and that by itself was pretty dangerous to their enemies.

So that, I think, is part of the lesson defendants should take. Many write-ups on the Reptile approach coming from the defense side have trivialized or mocked it, and I think that is a mistake. Even if the science is questionable, and even if there are practical limits to the effectiveness of a fear-based approach, the Reptile can still be very powerful as a theme and a unifying vision, bolstering what ends up being fundamentally sound advice to plaintiff attorneys. 

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Other Posts on Plaintiff’s Persuasion: 

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Photo Credit:  Webbaliah, Flickr Creative Commons

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