Category Archives: Case Assessment

August 3, 2017

I Could Be Wrong: Cultivate Intellectual Humility

by Dr. Ken Broda-Bahm:

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Among the readers of this blog, there are a few people who write to me and let me know what they think about various posts. Sometimes it is to applaud a post, or to share an example where they’ve faced something similar. And sometimes, it is to take issue with what I’ve written. I appreciate that. It’s actually one of the benefits of blogging: The chance to interact over something substantive, and the chance to sometimes learn that I’m wrong. And I try to be open to the possibility. I believe what I write, and that’s why I write it, but I like to see it all as part of a dialogue, and that dialogue includes being open to the possibility of being wrong. So, as is sometimes pointed out to me, I could be wrong, I could be off base, I could be showing my biases in a hundred different ways.

The attitude I’m working on is called “intellectual humility,” and being aware that you could be wrong is an important personality trait. According to a recent study (Leary, et al., 2017), in fact, those high in it are better thinkers, better able to assess evidence and more likely to stick to their principles once those principles are established. The research article, discussed in a recent Psyblog post, involves four studies built around a new survey called the “Intellectual Humility (IH) Scale.” The trait is related to openness, curiosity, tolerance of ambiguity, and low dogmatism. Based on the experimental results, people with higher intellectual humility are more likely to be nonjudgmental, better able to evaluate evidence, less likely to flip-flop on issues. Those high in intellectual humility are also more attuned to the strength of persuasive arguments, making the personality dimension similar to another factor I’ve written about: rhetorical sensitivity, or the awareness that there are multiple ways to fulfill a particular communication goal. Humility also helps to facilitate better interaction and communication. “Not being afraid of being wrong – that’s a value,” says the study’s lead author, Mark Leary, “and I think it is a value we could promote. I think if everyone was a bit more intellectually humble we’d all get along better, we’d be less frustrated with each other.” Reading about this research got me thinking about the roles intellectual humility might play in different contexts, so this post will cover a few.  Continue reading

May 16, 2016

Treat Your Jury as Not Just Legal, But Political and Moral as Well

By Dr. Ken Broda-Bahm: 

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“Just follow the law.” That is the message jurors hear in various forms from jury selection through the final words before deliberations. In addition to being the legally appropriate charge, it speaks generally to the jurors’ sincere intentions as well. With relatively few exceptions, jurors don’t want to set policy with their verdict, and do not want to impose their own individual morality either. They want to understand and apply the law as the judge describes it. The viewpoint that places the jury firmly in the legal realm, and not the political or the moral realms, has roots that go all the way back to Aristotle’s distinctions between forensic, political, and ethical rhetoric. But when applied to the modern American jury, there is not a clean distinction. And a recent article from Robert P. Burns of Northwestern University School of Law (Burns, 2016) makes the argument that those walls were always meant to be permeable. In other words, the jury was envisioned as a broadly sovereign institution and it functions — as it is meant to — beyond the narrow confines of the law. As the embodiment of popular participation in the administration of justice, juries serve as a unique point where the legal, political, and moral frameworks all come together. 

Burns’ article framing this broader role for the jury prompted in me the thought that it makes sense to act as though you are speaking to three juries at the same time: 

  • legal jury that is asking what the law requires. 
  • political jury that is asking what is best for society.
  • moral jury that is asking what is right or ethical. 

By keeping all three figurative juries in mind, you’ll have a better chance of offering your real jury the most complete and satisfying case. Naturally, your jury will try to be guided by the law alone, but in the inevitable act of bringing their own experience and judgment to their decision, the final verdict will reflect aspects of all three. If we wanted the law alone, we would have to use a judge, and would need to find one who lacks influential life experience and worldview. Because that doesn’t exist, it makes sense to act as though you have three judges or three arbitrators as well. In this post, I will draw from some of Burns’ observations in order to share some ideas on separately appealing to that figurative trio of audiences. 

Your Legal Jury

This is the jury that seeks to be guided by the instructions, asking “What’s legal?” in response to the facts at issue. Remember, however, that even this jury won’t be guided by the actual law as much as they’ll be guided by their own filtered understanding of the law. Whether comprehension is high or low, however, the jury will try to ground their decision in law, and will sometimes refer to the instructions as a way of answering other jurors who seem to be relying on sympathy, bias, or other extra-legal factors. 

Some phrases to highlight the jury’s legal role are as follows: 

  • The law in this case is asking you to…
  • The court has answered this question for you…
  • This is a court of law, not a court of ethics/morality/business/fairness.

Your Political Jury

This is the jury that considers the ultimate consequences of the decision, asking “What’s best?” in terms of the overall result. This jury will consider the precedent set by a verdict, and will also consider the overall good (or bad) done by monetary damages. While there are limits to this consideration of societal benefit (e.g., a jury shouldn’t issue a decision that is factually or legally incorrect just because it brings about a good result), there is no realistic way a juror could effectively bracket out that consideration of benefit. And even if that pristine judgment were possible, it isn’t what we want from a system allowing citizen participation in the justice system. Burns in his article quotes the philosopher Hannah Arendt commenting on her own jury duty and noting that it is one of the few “places where a nonspurious public realm still exists.”  

Here are some phrases to cue the jury’s political role:

  • As a jury, you don’t just speak for yourselves. In a way, you also speak for the community.
  • The founders wanted juries, and not just judges, because they understood that the public needs to have a voice. 
  • This trial is more than a record that ends up in the transcripts. It is a living reality that will affect the parties here and the society outside these doors. 

Your Moral Jury

This is the jury that sees the trial as a morality play, asking “What’s right?” when evaluating the parties and the equities. Their decision will be guided by the law and a sense of overall benefit, but will also be made in a way that conforms to their own views of practical morality. In his article, Burns writes of a “‘Fairness of fit’ between the narratively constituted story that comprises the facts of the case and the legal rules.” Beyond the simple notion of fairness, however, it helps to remember that every juror is bringing a “moral brain” to the task, suffusing their understanding of the facts and the law with a basic sense of right and wrong. 

Here are some phrases to evoke your jury’s moral role: 

  • It comes down to right and wrong…
  • What happened to my client in this case wasn’t right. 
  • At the end of this case, you will need to look into your own heart and decide what is just.

Law school (appropriately enough) emphasizes the law. But experienced litigators know that success lies in not just reaching the jury at a legal level, but in reaching them at a broadly human level as well. That means accounting for their tendency to focus legally, politically, and morally as well. So your job isn’t to win just one, but to try to win all three. 

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Other Posts on the Sovereignty of the Jury: 

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Burns, R. P. (2016). Popular Sovereignty and the Jury Trial. Oñati Socio-Legal Series, 6(2).

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February 25, 2016

Mock Try Your Brain Injury Case

By Dr. Ken Broda-Bahm: 

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There are many reasons to mock try your case before trial or settlement. It helps you assess your overall case, identify your strengths and weaknesses, and test your messages, witnesses, themes, and graphics. It won’t necessarily predict your results, but when done well, it will inform you on the reasonability of possible ranges. It also provides a practice benefit, ensuring that your first run-through isn’t done in a courtroom. Ultimately, watching the interviews and the deliberations can simply help in providing a new perspective: the refreshing tonic of just getting a read from someone outside of your team. While a mock trial can benefit any case, it matters for some cases more than others. Within some litigation types — e.g., vehicular accidents, slip and falls, and some medical malpractice cases — there is a kind of regularity to the themes and stories that allows experienced trial lawyers to have a good idea of what to expect. In those cases, counsel can often get away with relying on general experience rather than a specific test.

Other kinds of cases have a more clear and immediate need for the nuanced feedback provided by a mock trial. Cases that depend on the subtleties of human perception benefit from a test, and cases featuring parties and witnesses who can be understood in very different ways also stand to gain from the feedback of neutral observers. Brain injury cases are probably near the top of this list of cases that see an advantage in a mock trial test. Counsel on both sides are asking jurors to weigh in on an injury they can’t see, to understand complex medical data and behavioral information, and to boil that into causal and monetary terms. Ultimately, the jury will need to look at complex and conflicting data and ask themselves, “What is going on in that brain?” Both sides in a brain injury case should test these perceptions in a mock trial. This post will unpack some of the unique benefits of a mock trial in a brain injury case.  

A Brain Injury Mock Trial Will Help You Understand How Jurors Will…

Understand the Intangible

This is a well-known challenge when it comes to trying or defending these cases: How will jurors react to an injury that they cannot see. In contrast to damages that are obvious (e.g., paralysis, loss of life), brain injuries run a full spectrum from profound to subtle. The degree of damage often has to be pieced together or inferred from the evidence. Steeped in their work on the case, counsel and experts will often have a perception that differs from the average person’s. And when you need a good read on what the average person thinks, there is no better way to get it than by asking them. For example, one of our recent cases involved a child that had been brain injured as an infant, with claimed behavioral problems emerging only years later in her early adolescence. After conducting two days of mock trials, defense attorneys took some consolation from the single most-common word that both days’ mock jurors used to describe the child: “normal.”  

Simplify the Complex

A mock trial of your brain injury case can help you understand jurors’ struggles to comprehend the evidence. You learn from how they learn and process. The evidence itself can be incredibly difficult, as jurors need to understand brain scans, EKGs and other tests, and also interpret more subjective behavioral and functional assessments. Watching the interviews and deliberations will not just answer the basic question, “Do they get it?” but will also answer more specific questions like: How do they get it? What parts do they get? and What tools make it easier or harder? Often the way mock jurors approach the problem is quite different from what attorneys and experts expect. In the infant injury case I mentioned above, for example, mock jurors didn’t rely on the complex testimony on brain blood flow and electrical activity, but were quite impressed with the fact that the child had quickly learned to play the violin. In that case, common sense told them that if she could learn to play a notoriously difficult musical instrument, then she could not be too brain damaged.  

Quantify the Qualitative

By design, most mock trials are going to serve a heuristic function, but won’t be predictive of your results at trial (beware of anyone who tells you otherwise). Still, even without that fortune-telling function, a mock trial can still be helpful in showing you what factors will motivate damages, as well as the reasonability of the range in damages numbers. In the notoriously elusive noneconomic categories, for example, a mock trial will tell you how mock jurors react to various anchors, how they connect any doubts about liability or causation into damages, and how they move through the observed process of getting from a story, to a “gist” of damages (as low, medium, or high), to a specific number. In the childhood brain injury case, for example, despite strong doubts about liability, causation, and the degree of brain damage, mock jurors still had a strong desire to help the child by providing some counseling for her behavioral problems which they saw as unrelated to her injury. 

Untangle the Causation

Causation can be complex in brain injury cases. In addition to the question of the the cause or causes of the injury itself, there can also be critical questions over what is contributing to the plaintiff’s behavioral problems. Brain injured patients can lead pretty messy lives, so there are often other factors — substance issues, other injuries, difficult family relationships — that can contribute to behavioral issues that are associated with the brain injury. In the recent case, mock jurors believed that there were a number of factors other than the brain injury contributing to the child’s behavioral problems, including natural growing pains as well as a strained family dynamic. That mock trial also revealed a complex interplay between liability, causation, and damages: When the Defendant admitted liability (a scenario tested on the second of two mock trials), that seemed to drain much of the anger, and mock jurors were substantially less motivated to believe the Plaintiff was significantly injured, and less likely to believe that the Defendant’s conduct had anything to do with it. 

Factor in the Social Dynamic

In any setting that involves caregiving as part of the damages picture, the jury can be expected to scrutinize not just the plaintiffs, but the family too, whether they are named parties or not. In the childhood injury case, there was a large — dominant even — focus on the family at all levels: liability (Should the family have been watching the child better and prevented the injury?), causation (Are the child’s problems caused by a brain injury or by family dysfunction?), and damages (Can the family be trusted to put damages money to good use or not?). In all three of those categories, the mock jurors translated a lack of sympathy for the family into a reduced likelihood of agreeing with any aspect of the Plaintiff’s case, including those that had to do with the Defendant’s wrongdoing. 

In all these ways, a mock trial in a brain injury case is going to tell you some things you don’t know. It will highlight both problems as well as opportunities. Most of all, it will provide a window into the ways typical jurors will understand and react to a complex injury and the events surrounding it. 

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Other Posts on Mock Trial Method: 

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Image Credit: John M, Flickr Creative Commons

January 25, 2016

In Settlement, Account for the Sobering-Up Effect

By Dr. Ken Broda-Bahm: 

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Consider these words through the lens of your case assessment leading up to trial: “People tend to be optimistic creatures, looking forward to a long life, imagining it full of pleasures and success, and savoring the achievements that are yet to come. Numerous writers have noted this to be a useful affair in that it helps people deal with personal setbacks and provides people with resolve to continue pursuing their dreams. When facing the moment of truth, however, people often abandon their rosy outlook. The realization that time has run out, that one’s perception was skewed, that others may witness one’s incompetence or blindness, or that disappointment may be right around the corner, all conspire to prompt awareness that the future may not be as bright as initially hoped.” That’s the rather literary coda to an otherwise scientific research article (Sweeny & Krizan, 2013) that I recently came across. Dubbed the “sobering-up” effect, the psychological bias at the heart of the study refers to the tendency for people to revise their assessments in the direction of greater pessimism as the day of decision approaches. Reviewed in Psyblogthe article documents that the tendency is robust and common across a variety of settings: Projects that begin with positivity and optimism are increasingly taken over by cynicism or even despair. 

We have all known some trial teams that drifted in that direction, and the sobering-up effect might account in part for the common scenario of cases settling on the courthouse steps. The odds are the same as they’ve always been, but as trial looms, our focus can turn more toward the negative. Now the label of a “sobering-up effect” might not be the best name: especially in a litigation context, “sobering up” sounds like a good thing. But it’s important to remember that based on this cognitive bias, assessments are not becoming more accurate, they’re just becoming more pessimistic. That is a psychological tendency that may cause litigators and their clients to artificially discount their chances for success at precisely the moment when they most need a clear-eyed and realistic case assessment, including both the pitfalls and the promise. In this post, I’ll take a look at the bias, its causes, and its implications in litigation. 

Research on the ‘Sobering Up’ Effect

In the research article, Kate  Sweeny and Zlatan Krizan of University of California Riverside and Iowa State, respectively, conducted what is called a “meta-analysis,” combining the data and the results of many studies. Their results show that, across a wide variety of settings, there is a strong and consistent tendency for people to become more negative about their chances for success as they get closer to the time when they will find out how they did. If we’ve taken a medical test or a school examination, we will be more optimistic about the results when we won’t get those results for four weeks. If we expect to receive those results in the next few minutes, though, we are more pessimistic.The analysts who forecast corporate earnings tend to become more pessimistic the closer they are to the release of the actual earnings. The same is true for driving tests, judgments of starting salaries and a number of other specific predictions. While I don’t believe the effect has been tested in a litigation context, there is every reason to expect the bias to apply to case assessments as well. Indeed, the more important the outcome is considered to be, the more likely it is that this sobering-up effect will occur. And we don’t grow out of it either: Sobering up occurs at a greater rate when the expected outcome is more familiar. In addition, when more time passes between our early assessments and later ones, the tendency to become more pessimistic over time is greater. Those are all factors which occur in litigation: important outcomes, with a fair amount of prior experience, and a long lag-time between initial and ultimate assessments. 

Analysis: Why Do We Sober Up? 

In their review of the studies to date, Sweeny and Krizan identify four reasons for the tendency to ratchet down our optimism as the decision date approaches.

  • Resetting Expectations. As we get closer to anticipated feedback, we start to project how we will feel in the event of a bad outcome. Knowing that we will feel better if we exceed expectations, we are motived to lower those expectations.
  • Loss of Control. Well before the event, many things are in one’s own control, or believed to be so. But as you get closer to the outcome, it is shifting toward being in someone else’s hands. In that context, increasing pessimism signals a change of the guard regarding who is in control.
  • Reduced Abstraction. We tend to be abstract about the distant future, but more concrete about the immediate. As the authors explain, “predictions of more distant events are often optimistic because they are based on goals and aspirations, whereas predictions of more proximal events are less optimistic because they are based on low-level details and feasibility considerations.” 
  • Increased Accountability. As we move toward a decision point, we worry about a missed assessment. The missed assessment with the largest consequence is a false positive, so we reset our expectations in order to not look foolish in a worse-case scenario. 

Implication: One More Reason to Distrust an Ungrounded Case Assessment

Fortunes are won and lost in the U.S. civil trial system. Sometimes, that is the work of a jury or judge, but more often, it is the result of a case assessment that occurs prior to trial and leads to a settlement. In making that assessment, attorneys inevitably rely on their own continuing sense of how the case is going. That is part of the job, but at the same time, careful litigators should be sensitive to the inherent subjectivity and bias that underlies that assessment. The four reasons for the sobering-up effect discussed above are not always conscious processes, but can instead be just a part of our background-motivated reasoning that colors our perceptions as we look at evidence, witnesses, and rulings from the bench. 

There can be some good reasons to ‘sober up’ on case assessment. If the litigator’s role as an advocate has encouraged an unreasonably rosy case assessment, then it can help to step back from that as trial approaches. But it can be dangerous for case assessment to be driven purely by internal calculations. If case assessment depends too much on how we feel about the case in any given moment, then there is too great a chance for biases to artificially affect our judgment. As the authors note, this is a problem that occurs when people, “look to their feelings as a source of information about their likelihood of success or failure.” When that occurs, a decline in assessed value can occur based on nothing other than the proximity of an end point combined with anxiety.  In other words, the case isn’t becoming worse, you’re just becoming more worried about it. 

The solution is to acknowledge the bias: If you find yourself becoming pessimistic as trial approaches, ask yourself, “Are circumstances genuinely changing or am I just falling victim to the sobering-up effect?” It also helps to check your own attitudes against external feedback: a mock trial if the case warrants it, or other more informal sounding boards if it doesn’t. 

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Other Posts on Settlement Psychology: 

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Sweeny, K., & Krizan, Z. (2013). Sobering up: a quantitative review of temporal declines in expectations. Psychological bulletin, 139(3), 702-724. URL: http://www.katesweeny.com/uploads/2/6/9/4/
26944848/sweeny__krizan_2013_psychbull.pdf

Photo Credit: Wackystuff (the Power of Positive Drinking), Flickr Creative Commons

November 26, 2015

Take Your Trial Venue’s Temperature: Seven Uses for a Community Attitude Survey

By Dr. Ken Broda-Bahm: 

Thermometer

Gone are the days when trial consultants were just jury-pickers. Today, your trial consultant — more  broadly, a litigation consultant — is likely to offer a variety of services ranging, as we say, “From first filing to final appeal: “case assessment, strategy, witness preparation, mock trial and focus group research, and jury selection as well. Speaking from our own experience, one of the less frequently-used services within that toolbox is the community attitude survey, or “CAS.” It means polling 300 or so within the juror-eligible population in your trial venue to discover and use the particular attitudes and beliefs that characterize your venue. Unlike the special purpose surveys associated with a change of venue motion, the surveys I’m referring to are conducted with an eye toward remaining protected work product which is used to inform the attorney’s strategy for trial. The relative infrequency of that kind of survey is surprising because many of the barriers that can pull attorneys away from other consulting services aren’t present with the CAS: They’re not typically high dollar, usually don’t involve long-term planning and advance notice, and rarely take much if any time from the attorneys. But they can be enormously useful. Here are seven ways to use them. 

Community Attitude Surveys Can Be Used To…

1.  Choose Your Trial Venue

Outside the specific situation of a change of venue motion, there are other scenarios where you might have some choice on where to file or try the case. In those settings, your high-stakes decision needs to be based on more than just demographics, which are not predictive of ultimate verdict. Instead, when you face a choice, take the time to measure the case-relevant attitudes and experiences in the venues you are comparing.

 

2.  Assess Knowledge of Your Case

The claim behind a change of venue motion is often that the pool is too knowledgeable, but even if you are unlikely to reach that threshold, it still can be helpful to ask how knowledgeable the pool is. Knowing that will help you advise the court on how large a pool you’ll need, and it will tell you what kind of case knowledge you’ll need to probe for in voir dire, and what knowledge you should incorporate or correct as you try your case. 

3.  Learn Case-Relevant Attitudes

Your case will play out in the context of the jury’s current attitudes and beliefs. A corporate defense case, for example, will be understood in the context of what the jury knows or thinks they know about big companies, and how they feel about it. For that reason, the bread-and-butter purpose of a CAS is just to precisely learn that context. If you know going into trial what attitudes you are dealing with, you are better able to assess your case for settlement or to pitch your case in a way that reacts to or builds on existing attitudes. 

4.  Test a Thumbnail Version of Your Case

A CAS differs from a mock trial or a focus group because you are getting information from your research subjects more than you are giving information to them. You cannot try your case in a survey. But at the same time, you can test the first-impression reactions to a simple scenario.  In a products case, for example, we asked the following: “A consumer bought a product from a company and experienced a severe injury when using the product, and is now suing the company. The consumer followed some, but not all of the safety precautions on the label. Knowing nothing else, would you be more likely to lean in favor of the consumer, in favor of the manufacturer, or to not lean either way?” Even from that basic information, close to eight in ten reported a leaning, and it helped to know which direction was dominant. That won’t be the jurors’ final answer: Of course they’ll need to hear more and see the evidence. But that thumbnail will tell you what first impressions you’ll have as of opening statement. 

5.  Provide a Baseline for Mock Trial and Focus Group Research

A mock trial and a focus group will measure the research participants’ key experience and attitudes. But a CAS allows you to have a much larger sample and is more likely to be statistically representative of your trial venue. That means if you do a CAS first, then you can use those results to inform your recruiting of mock jurors for your mock trial or focus group. You will also know when they show up which mock jurors represent the best-case and worst-case scenarios for what you will see in actual trial in the venue.  

6.  Select Questions for Voir Dire 

Another advantage of the larger sample sizes for the CAS is that you have a far better shot at discovering statistically significant relationships among answers on the questionnaires. For example, if you find that those who answer particular attitude- or experience-based questions are significantly more likely to favor the plaintiff in a scenario, like the one discussed above, you will know exactly what to explore in voir dire. For example, we have found that many questions relating to anti-corporate bias, need for cognition, anti-plaintiff bias, and a wide-variety of other questions relating to specific case types (e.g., patent, product, employment and other attitudes), are strongly predictive of ultimate leaning. When you strike potential jurors on that basis, you’ll have confidence that you aren’t just acting on a gut feeling or a hunch.

7.  Create a Reference Point for Peremptory Strikes

During voir dire, a potential juror will express an attitude, and it can be helpful to know whether that attitude is better than most, worse than most, or par for the course in this particular trial venue. The CAS will tell you that. When coupled with a supplemental juror questionnaire, the survey can carry a big advantage. If you plan both ahead of time, they will include many of the same questions, and the CAS data will tell you how to interpret and to weigh the responses you see in the juror questionnaire and hear in oral voir dire. The CAS provides a backdrop for understanding the answers and informing your strikes. 

When picking a jury, conducting pretrial research, assessing your case, or assessing your venue, knowledge is power. A community attitude survey is a good way to get that power. 

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Other Posts on Community Attitudes: 

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Photo Credit: Toshiyuki IMAI, Flickr Creative Commons

May 25, 2015

Aim for the “Credibility Fish” in Your Mock Trial

By Dr. Ken Broda-Bahm: 

Credibility Fish

“What’s the “credibility fish,” you ask? It is the shape in the image above: The graph that is made when measuring the credibility of each of two parties over the course of a simple mock trial. We ask the mock jurors to rate each party’s credibility on a scale that ranges from 7 (highest) to 1 (lowest) at each of three phases. After they’ve heard only from the plaintiff,  a few will have reservations or give the defendant the benefit of the doubt. But most should give strong credibility to the plaintiff and weaker credibility to the defense. Then, after hearing from the defense, that relationship should reverse itself. Hearing the rest of the story, most should see some problems in the plaintiff’s case and some merit in the defense. Finally, after hearing the plaintiff’s rebuttal, those ratings converge toward a midpoint. As the mock jurors head into deliberations, understanding of the two sides should even out, setting the stage for robust disagreement.

Graphing those shifting ratings, what you get is the shape of a rightward facing fish, just like the Christian car decal (but not the “Darwin” version with the feet on it). The party with the higher credibility should alternate with presentations, and then end up near the middle. Instead of trying to ‘win’ the mock trial by the end of presentations, the sponsoring party’s aim should be to provide a realistic but very balanced presentation of each side in order to maximize the possibility for reasonable disagreement during the deliberation stage. Of course, every mock trial is going to be different, and sometimes the fish isn’t there, or it might be fatter or thinner. But at the end of the day, the more it looks like a fish, the better you did at keeping the presentations balanced. In this post, I will share seven principles for maintaining this balance in order to make your mock trial as productive a ‘fishing expedition’ as possible.  

1. Put the Most Experienced and Involved Attorney on the Other Side 

One of the best ways to ensure balance is to assign your lead trial counsel to play “plaintiff” if you are defense, or to play “defense” if you are plaintiff. There can be a strong desire to practice or to demonstrate your prowess to your clients on your own side. But putting on the other side’s hat not only enlists that competitive drive in the service of the best opposition presentation, but it also sharpens your own thinking by helping you to get inside your adversary’s frame of mind. 

2. Create a List of Research Questions First 

Generally speaking, your mock trial is going to be far more compressed than your actual trial. While the ability to summarize testimony and to bypass many of the formalities saves a great deal of time, it is still likely that the case you’re testing is an incomplete version of your actual case. For that reason, it helps to start by asking, “What are we most wanting to test?” By building that list in advance, you make it easier for both sides to frame their mock trial summary arguments around those issues, making for more balanced and parallel presentations. 

3. Aim for Parity in Content 

Acknowledge the reality that you are going to be far more focused on your case than on theirs. If you’ve collected exhibits, designated witness testimony, and drafted demonstratives, then you’ve done that on your own ground. For the mock trial, however, you need to do the same for the other side. For example, it might seem like a waste of resources to pay a designer to create a timeline for the other side to use, but it is worth it for the mock trial. Not only will you have a more balanced presentation, but you’ll also have some insight into what your adversary needs to do and why. 

4. Exchange Outlines in Advance

Sometimes when the “game on” mentality of a mock trial infects a trial team, each side will be reluctant to tip their hand to the other side. I think this is a mistake. Again, the point isn’t for either side to ‘win’ the mock trial, it is to get the best test possible. For that reason, it helps for each side to know, at least in general terms, what the other side is planning to do. That guards against one side bringing up points that the other side isn’t expecting to address. 

5. Respond to the Other Side, but in a Realistic Fashion

One reason, other than competitiveness, that mock trial parties are sometimes reluctant to exchange outlines in advance is because that could lead to the presenters being unrealistically specific in preempting and in responding to the arguments brought up by the other side. The solution to this is not to work in the dark, but to hold yourselves to a standard of what level of prediction would be realistic in court. Saying, “They’ll come up here and say they did nothing wrong” is okay; but saying, “They’ll come up here and use an analogy about fishing…” is not okay. 

6. Do a Dry Run

At some point before the mock jurors arrive — the evening before works well — the presenters should meet on-site along with the consultants, the AV team, and the “hot seat” operator who will be displaying documents. Informal run-throughs of the presentations at that point can not only help you feel practiced and prepared, but they also give anyone observing the opportunity to say, “Wait a minute, should we really include that? And if so, what does the other side say?” Having that sounding board can be an important step in keeping the presentations balanced and realistic. 

7. Test Your Realistic Worst-Case Scenario 

In estimating what your opposing counsel will say, you need to be realistic. At the same time, if you err, then you should err on the side of including arguments and approaches that are better than those you expect from the other side. Sometimes parties, used to valorizing themselves and demonizing the other side, will do the opposite. Defense attorneys in particular are at risk of presenting the mock-plaintiff side in a style that is kind of a caricature on what plaintiff attorneys do: a heavy sympathy-laden approach that focuses on the plaintiff as victim. These days, plaintiffs’  attorneys are more likely to adopt a Reptile approach that plays up personal relevance to jurors and plays down sympathy for victims. 

Taking all of these principles into account helps you aim for balanced presentations at your mock trial. But of course the proof is in the pudding, and the key is that the mock jurors perceive that balance. That perception is something that can be measured and graphed….and when measured and graphed, it takes the shape of a fish. 

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Other Posts on Mock Trial Methods: 

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Image Credit: Created by the author

April 30, 2015

Be Measured in Your Use of Emotions

By Dr. Ken Broda-Bahm: 

Measuring spoons

Opening statements began this week in the trial of James Holmes, the acknowledged gunman in the 2012 shooting during a midnight screening of The Dark Knight Rises in Aurora, Colorado. The tragedy sent ripples throughout the nation, and on the heels of a jury selection that was unprecedented in its scope, District Attorney George Brauchler stepped to the lectern on Monday to open the case against Holmes. As I watched via live streaming video, I felt that he was doing a masterful job of telling the story in an organized and factual way, while using — but not overusing — the inherent emotionality of the story. With twelve dead and an additional 70 wounded in the attack, there was a great deal of emotion for Brauchler to draw from. And with the nation watching and the courtroom packed with victims, much of that needed to be covered in his opening statement.

Telling the victims’ stories all at once would have had a numbing effect. So Brauchler made the interesting strategic choice to alternate back and forth between a narrative of the events leading up to the shooting on the one hand — Holmes’ romantic and educational disappointments and his intense planning and preparation — and brief portraits of some of Holmes’ victims on the other hand. At regular intervals in the story, the victims would appear as brief vignettes: just a few human details on one or two of the individuals. He would just give a few sentences on who they were and what brought them to the theater that night, and then, without revealing their fate, he would return to the story of Holmes’ planning. As quickly as Brauchler would present these concise emotional portraits of the victims, he would just as quickly veer away, never risking too much emotionality at any one moment. It had the effect of covering two trains moving towards each other on the same track: We know a collision is coming. Another example of Brauchler’s restraint had to do with the gruesome post-shooting photographs. He didn’t use them. He would let jurors know that they existed for some of the victims, and then add, “But that is a photo you should only have to look at once,” and save it for the case in chief. The principle at work is one that applies to all cases with an emotional component: Be measured in your use. Emotions can help, but they help the most when you’re able to keep a light touch on the gas pedal.

The Enemy of Pathos: Desensitization

I have written about ethos, pathos, and logos, the three forms of influence (or ‘artistic proof’) popularized by Aristotle. Of the three, pathos, or the appeal to the emotions, is the one least welcome in a legal context. Appeals to logic (logos) or to source credibility (ethos) will always seem more relevant. But no one fully puts emotions in the corner, not even in court. It is a simple fact of human motivation that we are going to be moved, either consciously or subconsciously, by the emotional component of an argument. But in modern courts at least, a “less is more” rule is definitely worth following. 

Imagine if, as a persuader, you had a button that you could push in order to reliably get a positive response from your audience. All things being equal, you would push that button as often as possible. But now, imagine you have the same button, only its effectiveness decreases with each push. Now, you are going to be sparing with that button and you are going to choose your moments. You are going to save it for those times when it can have the greatest effect. When drawing on the emotions of a case, legal persuaders should act like they have the second button, not the first. Desensitization — a lessening of impact over time — is a well-known psychological effect, and what is shocking at first becomes merely disturbing before moving toward common or neutral. 

And there is another reason for being light on the button: Each push risks sending a message about what we think of the audience. If we seem to be treating a jury as a group who would be moved by sympathy, then that “second persona” could prompt a backlash as jurors bend over backwards to prove that they can follow the instructions and they can set aside emotions. Wanting to avoid that reaction, we would want to be even more judicious in our use of emotional appeals. 

Measuring Your Emotional Appeals

The Aurora theater shooting case is obviously emotional. In addition to the victims, there are also the potential death sentence and the defense of insanity, which carry their own emotional connotations. While Holmes might be an extreme case, I believe that most cases, perhaps all cases, have their own emotional components. In boring commercial cases, the emotional appeals might be muted, but the triggers — fairness, trust, reciprocity — are all going to have emotional connotations as well. How you use those emotions will vary from case to case, and that’s a good factor to assess in a mock trial. But here are a few general rules of thumb on pulling your emotional punches. 

Understate It

George Brauchler, the prosecutor in the Holmes case, could have begun his opening with a scene of chaos, or a graphic and tragic description of a death. Instead, he began with photo of the movie theatre’s back door, the one Holmes propped open while he retrieved his weapons and armor. Then he simply stated, “Through this door is horror.” Often what the mind fills in is stronger than what our words can describe. 

Save It For Later

The end of Brauchler’s opening is well worth watching. It is at that point that he raises the volume, literally and figuratively, in laying out his case. Saving some of the fireworks for later has a great deal of merit. The ‘but wait, there’s more,‘ appeal seems to disrupt the counter-arguments in an audience’s head, making a case that is built up over time more powerful than one that is laid out all at once. 

Make Sure It’s Relevant 

As effective as Brauchler’s opening was, many have raised the fair point of whether all of the emotional detail is relevant. As we hear from all of the victims over the next few months, one could reasonably ask what that has to do with the only contested fact: whether Holmes, as the admitted shooter, was or wasn’t sane at the time. If you do plan to get into the emotions, spend at least a few moments drawing the connection plainly for the jurors: We need to get into this because…

I have not yet taken the time to fully review the Defense’s opening in the Holmes case, but the introduction raised the possibility that the Defense risks their own desensitization. Defense attorney Daniel King began by reading at length from Holmes’ notebook. While the writing comes across as certainly odd, it is somewhat coherent. For example, statements like “Why does the value of a person even matter if life has no value… any and all actions have no impact on anything….” seem to indicate a person who has talked himself into nihilism, not necessarily insanity. If jurors expect that insane actions are driven by out-of-control impulses, then Holmes’ long and carefully constructed meditations on human life are apt to paint a contrary picture. The more the jury hears from them, the more those writings might seem coherent — twisted and dangerous, but still coherent. 

On the other hand, some might justly critique the prosecution’s opening for just how little time it spent on the only question in dispute in the case: Holmes’ sanity. This is particularly surprising given that in Colorado, the prosecution bears the burden for proving sanity. The state’s assumption seems to be that, if something is motivated by life circumstances, and if it is carefully considered and planned in advance, then it cannot be a product of mental illness. Psychiatrists will most likely disagree with that. 

It will be interesting to see how this case plays out. But the broader bottom line reminder from the opening is to take care with emotional appeals. 

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Other Posts on Emotion: 

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Image Credit: 123rf.com, used under license

October 30, 2014

Beware the Bias for the “Safe” Call in Case Assessment

By Dr. Ken Broda-Bahm: 

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The 2014 World Series ended yesterday in a 7th game win by the Giants. The game had some recalling the last time the Royals were in the World Series: 1985, where an infamous blown call by the umpire in game six led to a Royals win in game seven. Those are the calls that umpires desperately want to avoid. And recent research shows the lengths they will go to avoid them. A study discussed earlier this week by NPR social science correspondent Shankar Vedantam demonstrates statistically that Major League Baseball umpires fear blowing big calls and have a bias toward making calls that preserve the status quo in any given game. The study is the work of Stanford Business School Ph.D. students Etan Green and David Daniels (2014) who take a surprisingly detailed look at more than a million calls made by 75 Major League umpires and notice several biases, one of the most interesting focusing on a conservative tendency toward safer calls. Etan Green explains, “If you’re an umpire and you’re unsure about what the correct call is and you’re given a choice between one call that’s particularly consequential and one call that’s relatively inconsequential, they will more or less preserve the status quo.” And interestingly, the higher the profile of the game, the greater the associated bias. 

Of course, that’s baseball and not litigation. But attorneys are often in a similar position of calling the balls and strikes that relate to the strengths and weaknesses of the case. Given that case assessments can carry stakes that are as high as a seventh game in the World Series, these calls can fall victim to the same conservative species of bias. If a case trajectory is heading in a particular direction, toward trial or toward settlement, could there be a tendency to make case assessments that align with that trajectory? The study discussed by Vedantam doesn’t say that, of course, but anecdotally, I believe the answer is at least sometimes “Yes.” This post shares some thoughts on practices that can lead your case assessments away from the safe calls and toward the more accurate calls.  

Don’t Set Up Your Case Assessment to Confirm the Status Quo

Chances are you think you’re right. Your facts are good, your arguments are strong, and justice is on your side. That belief in the virtue of your own position that often — not always, but often — accompanies trial work is part of what encouraged the client’s choice to litigate, and is part of what makes you a good advocate. So don’t set aside confidence. But do try to avoid a couple of traps that can lead you to a “safer” case assessment that essentially confirms the status quo of what you already believe. 

Avoid “The Advocate’s Assessment” 

It’s only natural to turn to the person closest to the facts and the day-to-day preparation when you want an understanding of the up-sides and the down-sides of your case. But that clear-eyed assessor ends up being the same person you expect to be the passionate advocate: the lead counsel. Many can be exceptionally objective on that score, and some end up so focused on the other side’s position that they naturally bend in that direction. But more often, I see advocates who have come to believe in their case so fully that they can no longer be completely objective about it. A kind of “vicarious entrapment” has occurred, where they have come to identify with the client’s interests and to see the case through the same lens. The perspective of lead counsel is vital, but as a hedge, bring someone else into the assessment picture: a co-counsel, a consultant, or another uninterested attorney.  

Avoid “The Loaded Mock Trial” 

Because you are in control of the mock trial, it is pretty easy to load the research project with the facts that work best for you: Your best exhibits but not theirs, your demonstratives but not theirs, your preferred theme but no comparable theme from the other side. In addition, another far too common practice is for lead counsel to present its own side in the mock trial while a far less experienced co-counsel or an associate stands in for the other side. Those practices set the research project up to confirm what you already believe: Your side is stronger. A better practice is to make sure that you are giving the other side every benefit of the doubt, providing them with the strongest version of their case you can muster, and breaking all the ties in their favor. 

Instead, Design Your Assessment to Reveal the Unexpected

You can substantially improve your own case assessment by running a good mock trial — one that follows a solid set of best practices. Beyond that, there are a couple of other considerations for keeping your case assessment out of the “safe” zone of confirming current expectations. 

Aim for a Diverse Team

Groupthink can affect any close working team. Within a trial team, that groupthink can continually reinforce the perception that “we’re right, and they’re wrong” and foster unrealistic expectations of your strengths and weaknesses. A diverse team is less likely to fall into that kind of lock-step, and more likely to bring a diversity of views. So when you are putting your team together, think about broadening your group in a number of different ways: Do they have different backgrounds, or different levels of experience with the case? Are you getting a fresh perspective from time to time from someone who has been less involved? 

Aim for an Open Dialogue

Particularly on the subject of sharing the strengths and weaknesses of your case, it also has to be okay to share dissenting views. Research also supports the principle that active disagreement leads to better decisions in the long-run. So it has to be an option to fight within your trial team as long as you are able to hear those disagreements out and resolve them. You don’t want to just attend to the consensus, or just hear the opinions of those who are most experienced, you want to hear as many opinions as possible. You should strive to create conditions for a creative trial strategy. “Out of the box” thinking is often praised in principle, but shunned in practice. That causes teams to act like the nervous umpire and to err on the side of making calls that maintain the status quo of current expectations. Consciously preserving an open dialogue and paying particular attention to disagreement can guard against hasty conclusions, unrealistic assessments, and a host of other bad calls.

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Other Posts on Case Assessment: 

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Green, E., & Daniels, D. P. (2014, February). What does it take to call a strike? Three biases in umpire decision making. In 8th Annual MIT Sloan Sports Analytics Conference (p. 8).

Image Credit: Shutterstock, used under license

March 20, 2014

Expect Broad Spectrum Assessments (Especially for Defendants)

By Dr. Ken Broda-Bahm: 

Spectrum

Think assessments during trial are focused narrowly on the evidence and the instructions? Think again: Jurors base case evaluations on a broader spectrum that includes reactions to the parties, their preparation, and the overall process. Litigators with much in the way of trial experience probably already know that. But a survey conducted by a retired Minnesota trial judge and covered in a recent Lawyerist article, raises the intriguing possibility that this broad-spectrum assessment applies more to defendants than to plaintiffs. The research, originally published in Bench & Bar of Minnesotais based on data collected from the judge’s own practice of administering surveys at the conclusion of every one of his jury trials. Pulling together data from ten years of these post-trial surveys — 109 trials in all — the article reports on their attitudes about attorney presentation and preparation. 

The article is entitled “What Jurors Think About Attorneys” and it confirms much of what that title would suggest. But it also provides some very useful general reminders about the importance of factors that extend beyond the evidence, while also highlighting one very intriguing finding: a difference in how the respective sides are evaluated in trial. The judge’s sample includes primarily criminal cases, but some civil cases as well, and groups prosecutors and civil plaintiffs together and compares their analysis to that of both civil and criminal defendants. This post takes a look at the data and what it says about how attorneys are practically evaluated by jurors. 

The article offers both some general conclusions, as well as one interesting twist. 

The General Findings: Give Jurors What They Want

These are the conclusions that emerge from the survey:  

  • Jurors love getting the instructions in writing, as well as verbally. 
  • Jurors see the judge as a guide, teacher, and protector. 
  • When jurors side with a party, they also see that party as being more competent and sincere.
  • Jurors also see the winning party as more prepared and as the better presenter. 
  • Jurors generally rate all attorneys as close to excellent, with most rated between 1 and 2 on a scale where 1 is “excellent” and 5 is “very poor.” 
  • Jurors care about attorneys’ ability to communicate in a “clear,” “articulate,” and “strong” manner. 
  • Jurors like simple and clear points, but hate repetition and belaboring. 
  • Jurors like eye contact and strong visuals. 
  • Jurors want witnesses to be treated well by the attorneys. 
  • Jurors can be distracted by gaps and often end the trial wanting more evidence. 
  • Defense attorneys seem to be at a significant disadvantage when it comes to overall evaluations. 

 The Most Intriguing Finding: Expect a Little More Scrutiny on the Defense

That last bullet should raise some questions, so let me share a little more about the finding. Looking at plaintiffs and defendants, and comparing their scores after a win and after a loss, the analysis found that the difference between juror evaluations of defense attorneys after a win and after a loss was twice as great as the parallel difference for plaintiffs’ attorneys. So when defendants lose, that loss is associated with a much greater hit — twice as much — on perceived courtroom demeanor, sincerity, and competence. The results are summarized in the chart below. 

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(Used by permission, Bar & Bench of Minnesota, James W. Hoolihan)

It might be hard to immedately get your head around it, but what this graph shows is that, starting from the left, losing defense attorneys’ evidence presentation is rated 13 percent lower than winning defense attorneys, while that drop for plaintiff attorneys is 14 percent. That is close enough to call it even — so evidence presentation seems to matter about as much for both sides. But once attention is on some of the broader traits of courtroom presentation — demeanor, sincerity, competence, and preparedness — the differential evaluation of losing plaintiffs versus losing defendants is more stark. The results, which appear to be quite robust, show that these qualities hold higher stakes for defendants. “When the defendants ended up victorious on all counts,” Judge Hoolihan explains, “their attorneys were given ratings essentially equal to the ratings plaintiff attorneys received when the plaintiffs lost on all counts. However, the ratings given to the defense attorneys were significantly lower (and the plaintiff attorneys were rated significantly higher) when the plaintiffs were victorious on all counts.” 

While the data does not show why it is a harder row to hoe for defendants, there are some grounds for reasonable speculations. The author’s theory is that jurors might be projecting their perceptions of a client onto their attorneys, and the defense attorneys in the predominantly criminal dataset might suffer more in a loss because their client is now a convicted criminal. It is easy to see how the same might also apply in a civil case where the defendant is confirmed to have done wrong and caused harm in some fashion. An alternate reading is that when the government or when a civil plaintiff loses, it is at least formally because they did not meet their burden of proof, and that decision rule draws juror attention to the evidence. But when defendants lose, it can be for any number of failures in credibility and presentation, and that broadens attention to all of the other factors covered in the article. The bottom line is almost certainly that it makes sense for litigators on both sides to pay attention to the broad spectrum of evaluation including elements of presentation. 

Judge Hoolihan’s article concludes with some words that litigants should reflect on, particularly those who doubt the ability of average citizens to resolve high stakes and often complex disputes: “I can say without reservation that I have been awed and gratified at the universal attitude of jurors who wish to do the right thing and give their time and attention in a sincere effort to follow the instructions of the court and to be fair and judicious.” 

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Other Posts on Attorney Evaluations: 

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Hoolihan, J. W. (2014). What Jurors Think About Attorneys. Bench and Bar of Minnesota, February 14th. 
URL: http://mnbenchbar.com/2014/02/what-jurors-think-about-attorneys/

Image Credit: Madmiked, Flickr Creative Commons

March 10, 2014

Account for Both Cue and Rebound

By Dr. Ken Broda-Bahm: 

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The prospects for persuasion in some cases can seem quite dismal. Those who are most committed to a false belief, and therefore most in need of persuasion, are also those who are most likely to turn away information that questions those existing views. Indeed, the act of hearing and responding to opposing views can make your target all the more committed to the belief you’re trying to change. A recent Mother Jones Article reports on one such situation, focusing on the views of parents who oppose childhood vaccination, believing that this preventative step carries great health risks including autism. The article reports on research showing the apparent impossibility of changing the minds of the anti-vaccine crowd. The researchers from Dartmouth College and Exeter in the U.K. (Nyhan et al.,  2014) set out to test four different messages based on information shared by the Centers for Disease Control. Not one of the messages had a significant effect in getting the anti-vaccine group to accept the argument that vaccinating carries much less risk than not vaccinating. Worse, several of the corrective messages actually backfired and made viewers even more opposed to vaccination. 

The goal was to find out what persuasive approach worked best. One message focused on showing the science refuting any connection with autism. A second message focused on the higher risks and consequences of diseases in unvaccinated children. A third message consisted of a story of an unvaccinated 10-month-old child who experienced a life-threatening fever as a result of that decision. A fourth shared imagery of diseases made more likely by avoidance of vaccines. All four failed, in some cases dramatically. In response to the first message, Mother Jones reported, “the likelihood of saying they would give their kids the MMR vaccine decreased to 45 percent (versus 70 percent in the control group) after they received factual, scientific information debunking the vaccine’s autism link.” So, it is not exactly a ringing endorsement of the potential for human persuasion. Because these results are already well reported in the Mother Jones article, as well as a second related article, I am going to instead take a detective’s view of why that backfire effect might occur. The two likely suspects point to a couple of important principles that apply broadly to persuasion.

 

We have written before on the importance of imagery, as well as narrative structure in persuasive messages of all kinds, so we might expect that the pro-vaccine message based on the story, as well as the one based on the pictures, would be the most effective. Surprisingly, though, they were the two messages most likely to backfire. “Hearing the frightening narrative actually increased respondents’ likelihood of thinking that getting the MMR vaccine will cause serious side effects…” the article reported, and “looking at the disturbing images increased test subjects’ beliefs that vaccines cause autism.”  

Thinking about that counterintuitive result, let me propose two mechanisms that could explain it, each with an important lesson for legal persuaders. 

Counterarguing

When you hear information that you know conflicts with a current belief or attitude, your mind is busy — not busy listening or evaluating, but busy thinking of responses. Those responses are necessary to maintain your cognitive consistency, your ‘belief homeostasis,’ and to more broadly feel that you’re right. Based on these responses, a message might backfire if the counterarguing it invites is stronger than the message itself. Anti-vacciners, for example, listened to the message while their brain is working overtime looking for flaws and answers to the argument. At the end of that process, they may be more sure that they’re correct just as a consequence of the fact that they’ve exercised their internal self-justification muscles. 

The same can happen in litigation: The defense attorney in an oil and gas royalty case, for example, who stands before a jury trying to convince them that energy companies are honest and put the best interests of customers first, is likely to face a wave of internal counterargument that could leave the jury even more committed to their perceptions of energy companies’ self-interest and greed. 

So how do you stop counterarguing? You need to frame the message so that the listener is initially tricked into turning their counterarguing off. For example, I would have liked to see the vaccine message study test an approach that provided some initial agreement with the anti-vaccine parents’ views. If the video admitted, for example, the fact that there are some side-effects to vaccination that, while rare, are very serious and genuine. The listener thinks, “okay, I agree with that…” and, for awhile at least, they stop counterarguing, and in those moments they might even hear something that changes their mind. That might be the solution for the litigator as well: Start by admitting that the company is driven by a profit motive before moving on to explain that profit, in this case, motivated the right actions and not the wrong ones. 

Cuing

Cuing refers to the fact that a message can bring something to mind, and what is brought to mind can be more important than the message itself. The mode of argument can make some ideas more salient. In the case of the study, the lead author Brendan Nyhan of Dartmouth explained, “If people read about or see sick children, it may be easier to imagine other kinds of health risks to children, including possibly side effects of vaccines that are actually quite rare.” Even though the point of the message is to argue the opposite (“risks to children are greater without vaccines”), the effect of the message could be to get people thinking about health risks which they then, based on current attitudes, associate with the vaccines themselves (“thinking of any health risks at all makes me averse to vaccines…”). 

This same cuing effect can happen in litigation as well. A plaintiff attorney’s emphasis on the extent of injury might call to mind jurors’ stereotyped images of the malingering plaintiff, with the result that the more the focus is placed on quality of life, the more the juror comes to doubt the actual injury. 

So how can you stop cuing? Well, the truth is, you can’t. But you can keep that phenomenon in mind. In a mock trial, pay attention to what the jurors are spending their time on in deliberation. It is often a surprise to clients in personal injury and products claims, for instance, that the mock jurors will spend more time focused on the plaintiff’s actions rather than the defendant’s. Attorneys may inadvertantly cue that focus when they send the message that this is a case about the plaintiff, thereby putting their actions and choices in the center of the spotlight. 

One final word: The fact that sometimes people are impossible to persuade and just dig in even stronger in the face of facts and argument — that’s why we have peremptory challenges. That’s also why we counsel using your precious voir dire time to find out about those hard beliefs, and not to try to talk your panelists out of them. 

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Other Posts on Internal Persuasive Drives: 

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Nyhan, B., Reifler, J., Richey, S., & Freed, G.L. (2014). Effective Messages in Vaccine Promotion: A Randomized Trial. Pediatrics. Published online March 3, 2014. doi: 10.1542/peds.2013-2365. 

Photo Credit: eschipul, Flickr Creative Commons

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