Category Archives: Closing Argument

June 18, 2015

Balance the Trial Consulting Scales

By Dr. Ken Broda-Bahm: 

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As any watcher of the Marvel movies knows, origin stories are important. You can’t fully understand The Wolverine until you know how he came to be sporting those retractable adamantium claws. Trial consulting also has an origin story, coming from cases in the early to mid-seventies, when academics provided their expertise on juror psychology, weighing in firmly on the side of social justice. A current critic of the field, however, argues that trial consultants have strayed too far from those noble origins. Adam Benforado, Associate Professor of Law at Drexel University, authored an article in the current issue of Atlantic entitled, “Reasonable Doubts About the Jury System.” It is an adaptation from his forthcoming book, Unfair: The New Science of Criminal Injustice, and it is a pretty broad swipe at the trial consulting field. The subheading is, “Trial consultants allow the affluent to manipulate the biases of those who judge them, putting justice up for sale.”

Benforado’s argument, however, is a little different than most previous broad swipes at the field of trial consulting. Most often, those who argue for licensing, limiting, or just banning the practice will proceed on the assumption that trial consultants are like a toxin that distorts an otherwise fair process, and manipulates those terribly impressionable juries (cue Billy Flynn from the Broadway play Chicago to sing “Razzle-Dazzle“). Benforado shares some of these attitudes, but with a little more nuance. For example, he starts the piece by astutely observing the many ways the formal legal process upholds images of bias and human influence that are wildly out of step with the social science. Also, unlike most critics, he seems to have a pretty accurate understanding of what consultants do, and an appreciation for our role in bringing the process toward a more realistic understanding of human psychology. The main problem for Benforado, however, is that these fruits aren’t distributed evenly.  And he’s right about that. Still, he fails to appreciate the trial consulting community’s goals and actions in addressing that imbalance and in sharing the wealth when it comes to expertise. As much as we might naturally bristle at the criticism, I think that litigation consultants and their fans would be better off taking some of Benforado’s point to heart, and using this argument as an impetus to promoting even broader access.  

Where He Got it Right, Part One: The Legal System Needs a More Sophisticated Understanding of Bias

Professor Benforado begins by reviewing the variety of “…but, can you be fair?” style questions that are asked in courtrooms across the country. The problem in these questions, he notes, is that they embody the belief that biases are known by the individual and can be addressed through that individual’s awareness of that bias combined with their conscious decision to “set it aside” in order to consider only the evidence in the case. “While we purport to address bias,” Benforado notes, “what we actually do is reinforce a false narrative of what bias is, where it comes from, and how it can be remedied.”

Every trial consultant I know is vigorously nodding their head in the affirmative on that statement. We are generally at war with the conventional process of jury selection that ends up reinforcing a mistaken belief in the power of objectivity and conscious control over biases, presenting impartiality as a choice to be made by each prospective juror. When addressing bias, our focus isn’t on self-diagnosis and promises, but on effective questioning and strikes.

And as Benforado also agrees, this unsophisticated attitude toward psychology applies not just to voir dire, but also to the handling of evidence, legal objections, and witnesses. “To hear the law tell it, we are supermen and wonder women, able to rise above our prejudices, see through lies, and recall past events with crystal clarity.” He also  gets it right that not everyone is naïve about that, and some are savvier than others. Trial consultants are singled out in the article as the savviest. After describing what we do in advising on more effective voir dire, witness, and message strategies, he notes, “This all seems beneficial—a natural development in the pursuit of more effective and complete legal representation. So what’s the problem?”

Well, the problem is the next point he got right.

Where He Got it Right, Part Two: There Is an Imbalance in Access to the Trial Consultants

Benforado is initially complimentary about trial consultants, introducing us as a group that is carefully reading the research findings and applying that knowledge to obtain better results in trial. The problem, in his narrative, is that the profession has lost its way. Starting off as a tool for balancing the scales when political activists or the socially downtrodden faced trials in communities that had already arrived at a pretrial verdict of “guilty,” the field these days is more likely to serve powerful and moneyed interests. In a familiar tale, we’ve gone from fighting ‘the Man,’ to being ‘the Man.’  The result is that we have “unequal access to the truth about how legal actors perceive, think, and behave.” Standard in high-roller or high-profile criminal defenses, trial consultants are generally missing in the more common trials, and that means that in practice, the rich or the notorious are more likely to go free while the poor and the unknown go to prison.

In saying that, Benforado seems to be relying on a broad perception or an anecdotal understanding of the field. It would be interesting to see data on the rates at which criminal defendants of various means, as well as prosecutors for that matter, have access to trial consulting assistance. Benforado doesn’t account for civil practice where, often, both sides are moneyed interests with equal access to trial consultants. Still, I suspect most working trial consultants will acknowledge that there is some truth to this critique of imbalance, understanding that it applies to both civil and criminal settings.

And Where He Got it Wrong: Litigation Consultants Do Care About That Imbalance

Benforado doesn’t say how he knows, but says that trial consultants don’t care about this skew on the process: “Few of these good people—trained scientists, lawyers, and others—ever stop to consider the far-reaching effects of their actions: We are selling jurors’ and judges’ minds to the highest bidder.” This, he says, is at odds with the profession’s origin story. “The cruel irony is that the trailblazers of the trial-consulting industry were motivated by a desire to defend the poor and vulnerable.” However, he believes those good intentions have been overthrown by commerce. “When you possess the scientific knowledge to bend legal processes, judges, jurors, and witnesses to your ends, it’s hard to say no to the easy money.”

Again, it would be pretty interesting to see the data: On a year-to-year basis, how many trial consultants serve more than money by engaging in meaningful pro bono service? We do, and those we know and respect do as well. But more broadly, I don’t know the answer to that question, and neither does Benforado. Benforado might not even know that the only professional organization for the field, the American Society of Trial Consultants, is currently prioritizing pro-bono access and initiative. There’s certainly room to do more, and anyone who wants more information, can contact the Society’s Pro Bono committee.

But Benforado seems to be making an even larger point about just keeping our information to ourselves. “As we’ve seen, researchers are producing an ever-expanding pool of data about what really moves police officers, judges, jurors, and others,” he writes. “The problem is that for much of the population, there is no point of entry. Journal paywalls deny access and many scientists are reluctant to point out the practical applications of their work, lest they be accused of going beyond their data.” But that simply isn’t true. There are more points of entry than ever before, and plenty of sources that are willing to go beyond the strict academic descriptions of the research in order to talk about the practical lessons of the research — like, ahem, this blog.

And not just Persuasive Litigator, but also The Jury Room, the Tsongas blog, Cogent Legal, the Sound Jury Consulting Blog, and many others helpfully aggregated at The Red WellAll of this content is Paywall free, and most of it is even ad free. In addition, it isn’t written for academics, but for attorneys and other interested readers. Those wanting to have access to the kinds of specialized knowledge applied by trial consultants have better access than ever before. That’s no substitute for having a trial consultant in your corner, of course, but it is an important step toward democratizing the knowledge base.

Even superheroes, in addition to origin stories, also have weaknesses. And consultants should admit their weaknesses as well. Benforado writes of “weak ethical guidelines and loose professional constraints.”  In response, I could point to ASTC’s professional code, including ethical principles and general practice guidelines: It is more constrained than most in the legal world would credit. But, truthfully, trial consulting is still a relatively open and unconstrained profession. 

However, as much as Benforado faults court system for assuming super powers on the part of jurors, he may be doing the same on the part of trial consultants. In critiquing the field for “using social science to catalogue, control, and all too often accentuate biases,” he is acting as though we are simply pushing magic buttons that cause influence in the courtroom. Instead, we’re one part of a team trying to do the best for the client. As far as trying to win, we’ll plead guilty as charged. It is in the nature of an adversary system that if both sides should be doing their best to win within the limits of the facts and the law, then the truth wins out. That is where Benforado’s most valid point comes into play: Too often, particularly in criminal settings, it isn’t both sides, nor is it all or most defendants. That isn’t a reason to downplay or avoid trial consulting, but a reason to spread the benefits. We ought to do that by embracing more pro bono representations, more court-appointed consultants, and more sharing of knowledge.

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Other Posts on the Trial Consulting Field: 

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Photo Credit: 123rf.com, used under license

January 5, 2015

Top Reptile (& Related) Posts

By Dr. Ken Broda-Bahm: 

Reptile pic

I have had a long-term interest in the Reptile approach to plaintiffs’ trial persuasion. The perspective, articulated by David Ball and Don Keenan in several books and in seminars around the country, focuses on the advice to your case around the primitive (aka “reptilian”) need for security. My interest isn’t so much based on a belief that every foundation or implication for the theory is accurate, but on the fact that the approach has proven to be very popular and its results have been very convincing to its adherents. The Reptile might also be the closest thing the field of trial persuasion has to the kind of “Grand Theories” that animate other areas of psychology and communication. And from a practical perspective, having a discussion or debate about the Reptile can also help illuminate a number of other useful consideration related to legal persuasion for plaintiff, defense, or prosecution. This post pulls together my top 9 posts of or related to Reptile-style persuasion in trial.  

6a01156e439be2970c017c34ad5cb0970b-300wiRespond to the Reptile 

Before a recent presentation, I was chatting with a Texas medical malpractice defense attorney when she shared the following: Plaintiffs’ lawyers have changed. They’re all talking about “safety” now, and that word is finding its way into every deposition: “What is the safe procedure?” or “What would’ve kept Mrs. Johnson safe?” They’re all talking about safety and security instead of standard of care. I replied, “Oh, that is the Reptile.” She hadn’t yet heard about the popular book by David Ball and Don Keenan, so I explained, it’s a theory for trying plaintiffs’ cases by portraying the defendant’s conduct as a threat to jurors’ own safety and the safety of others. By framing arguments in terms of our most biologically basic need for security, the theory goes, plaintiffs are able to successfully tap into jurors’ primitive or “reptile” mind. And when the Reptile decides, our conscious mind and reason-giving ability follows. Based on that unifying concept, the perspective has taken the plaintiff’s bar by storm, spinning off more books as well as frequent trainings. “Cases are not won by logic,” they write, “you need to get the Reptile to tell the logical part of the juror’s brain to act on your behalf. To get the Reptile to do that, you have to offer safety.” Continue reading.

6a01156e439be2970c0192abdb911f970d-450wiTame the Reptile in Your MedMal Defense

Earlier this Spring, a courthouse in Jackson Mississippi was actually invaded by snakes. That story might have made some in the plaintiff’s bar smile a bit, since in their view, Reptiles have been invading American courtrooms across the country for a few years now. Reptile: The 2009 Manual of the Plaintiff’s Revolution by David Ball and Don Keenan, as well as associated books, DVDs and training seminars, have significantly influenced plaintiffs’ methods of trying cases, and the philosophy currently claims close to $5 billion in associated verdicts. Adherents believe that by framing legal claims as basic appeals to community and personal safety, they are able to wake up jurors’ reptilian minds and motivate verdicts in their favor. As I’ve written before, there is reason to believe the theory rests on a dubious foundation (the largely discredited belief in a reptilian brain governing the rest of our decision making), but that it works nonetheless (because it encourages persuaders to put motivation front and center). Continue reading.

6a01156e439be2970c019b035f4f36970d-300wiDefendants: Be the Mongoose

What does it take to beat a reptile? In most cases, a mongoose will do the job. As attention to the Reptile perspective on plaintiffs’ advocacy has been growing, an interest in the best modes of defending against it has finally started to catch up. The “Reptile,” of course refers to the David Ball and Don Kennan approach of reforming the plaintiffs’ trial strategy based on the belief that a “reptilian brain” will be motivated by appeals to personal safety and security, and these basic needs will drive the more advanced and cerebral regions of the mind. I’ve written about the approach on a few prior occasions (see ‘related posts’ section below) and also authored a piece for The Jury ExpertThe readership of those articles suggests that defendants are taking a new interest. The handbooks, articles and seminars, however, are not yet available to defendants at a level that comes even close to matching what the Reptile-Plaintiffs’ bar has to offer. Continue Reading.

6a01156e439be2970c019b01066f21970d-300wiDon’t Underestimate the Power of a Unifying Vision: A Return to the Reptile

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. Continue reading.

6a01156e439be2970c01b7c6e35c6e970b-300wiMind the Backlash: The Reptile’s Adventures in Scotland

British Prime Minister David Cameron is breathing easier after voters in Scotland rejected independence last week. For Great Britain, it will go down in history as one of the greatest modern political gambles. The vote was called at a time when fewer than one in three Scots favored independence. But in the weeks leading up to the election, that changed dramatically as the race became “too close to call” and Cameron’s future looked to be in doubt. Even though the unity position won by more than ten points, it did end up being a wee bit closer than Cameron might have expected. So what changed in the last two years? To those in the American litigation community familiar with the latest theory on plaintiff persuasion, I’d say what changed is this: The Reptile came to Scotland. The approach, based on the work of David Ball and Don Keenan (Reptile: The 2009 Manual of the Plaintiff’s Revolution), focuses on ways to address and motivate jurors based on their most primal needs for safety and security. But what does that have to do with British politics? It provides a handy lesson on how people might react to a fear-based persuasive appeal. Continue reading.

6a01156e439be2970c017ee7cab364970d-300wiScare With Care

If you’ve seen the Pixar animations feature Monsters, Inc., you might remember the slogan of the company in the title: “We scare, because we care.” Plaintiffs’ attorneys, particularly those who are followers of the Reptile approach to persuasion, may well have the same slogan. Since the perspective focuses on the idea that our primitive or ‘reptile’ mind is motivated by threats to our own security, trial lawyers using that approach will base their case on the threat and insecurity stemming from a defendant’s conduct, and frame a plaintiff’s verdict as a solution to that fear. Arguing that the events at issue in a case pose a threat to jurors and their loved ones, they suggest that the only solution is to use the power of the verdict in order to check that behavior. So based on this outlook, fear is useful: It’s a human motivator that plays a role in getting jurors to see a case in personally relevant terms and plaintiffs will add that they aren’t the only ones playing to fears. Defendants, they’ll say, have also either explicitly or implicitly played to fears: fear of false claims, runaway verdicts, and greedy plaintiffs, for instance. Continue reading. 

6a01156e439be2970c01b8d0792ce5970c-300wiExpect Fear to be Driven by Dread, Not Data

As of the press time for this post, panic over Ebola is rising in the United States. With the first U.S. diagnosis of a patient last week, and that patient’s passing shortly afterward, it seems that the media — both social and institutional — are dominated by fears of a wider outbreak. As new cases continue to reach the U.S., and deaths abroad near the 4,000 mark, there seems to be a widening disconnect between public reaction and the reassuring messages delivered by medical professionals in the developed world. According to a recent survey conducted by the Harvard School of Public Health, the U.S. public’s concern over a domestic Hollywood-style epidemic is fueled by many misconceptions about the disease. With the CDC and other experts on auto-repeat saying Ebola doesn’t spread easily like the cold or the flu, and emphasizing that an outbreak is unlikely in the United States, that message isn’t getting traction, in part, because it appears to be refuted by each new case and each new headline.  

6a01156e439be2970c017ee8d86df2970d-300wiSpeak to the Brain’s Politics

Once more, over the cliff! Our lawmakers have had to make, or not make, some risky decisions lately. The “sequester,” a poison pill of across-the-board cuts designed to force a spending compromise, has just done what no one believed it would do when it was created in 2011: It’s gone into effect. That is widely expected to result in hundreds of thousands of layoffs, imperil effectiveness across federal programs, and potentially nudge our struggling economy back into recession. It’s a reason to be wary of artificial deadlines, and just the latest example of Democrats and Republicans appearing to be not just different parties, but different species unable to meaningfully communicate with each other. The two parties may share the same language, but they seem to have very different brains. And a recent study appears to actually show that: There are differences in the ways the reds and the blues use their gray matter, especially when making decisions associated with risk. Continue reading.

6a01156e439be2970c0148c66a4390970c-800wiThe Persuasion Strategy You Have to Fear…Is Fear Itself

Reacting to new evidence of support in the public as well as the U.S. military for allowing lesbians and gays to serve openly, those who support a continuation of a “Don’t Ask, Don’t Tell” policy continue to warn of a dangerous loss of troop cohesion and morale, as well as the potential loss of troop strength if the policy is repealed during wartime.  While proponents and opponents of change differ on the merits of these arguments, there is also a dimension to these warnings that students of persuasion would recognize as a classic fear appeal.  The practical question to ask, both generally and in the case of legal persuasion, is whether fear works.  A strategy of seeking to call to mind an audience’s fear is, of course, no stranger to litigation.  Plaintiffs imply, if they can, that a defendant unchecked by a strong verdict in this case will continue to harm others, including you and your loved ones.  And defendants also would like to benefit from the belief that continued encouragement of frivolous suits – like this one – will just add to the threatening trends that are increasing prices, raising insurance rates, and robbing consumers of choices. Continue reading.

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Photo credits: See individual posts

December 4, 2014

Help Your Witness See the Silver Lining

By Dr. Ken Broda-Bahm: 

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In all the years I’ve been working with witnesses, I have yet to meet the perfect one. I’ve met some darned good ones, but everyone has a weakness. The question is whether they will let those weaknesses degrade their performance on the stand. Practically speaking, there are some weaknesses that can be minimized but never completely eliminated. After all, you cannot — and would not want to — change someone’s personality just to get better testimony. So, when dealing with a weakness that is not likely to be completely excised in a preparation session, and will instead accompany the witness onto the stand, the challenge is to reframe that weakness so that it, at least, does not threaten witness confidence. One such reframing is to focus on the silver lining — or the positive aspects of a negative trait. 

Based on some new research, a focus on the silver lining isn’t just an optimistic wish, it is a self-persuasion strategy with real benefits. According to the study (Wesnousky, Oettingen & Gollwitzer, 2015), most of us are able to come up with silver linings in response to our own perceived personality weaknesses. And, what’s more, reminding ourselves of those benefits has a measurable effect in improving performance on related tasks. That finding has some clear implications for witnesses who often see testimony as a pretty negative experience. By drawing the witness’s attention to the silver lining, attorneys and consultants can help the witness feel better and do better at that challenging task. 

The Research: The Silver Lining is Gold!  

A doctoral candidate and two professors from the Department of Psychology, New York University teamed up to conduct a series of three studies on what they call the “lay theory” of a silver lining. The study, covered in ScienceDaily and Psybloglooks at the effectiveness of the idea that negative characteristics are accompanied by offsetting positive qualities. In the first study, the team asked participants to identify one of their own negative personality traits, and then asked whether they thought that same trait could also be a positive. Happily, most were able to easily supply one or more silver linings: They were lazy, but patient; or overanalytical, yet thorough. 

The second and third studies honed in on one possible silver lining that was frequently reported in study one: impulsive people also believed that they were creative as a result. So to follow up, the research team asked a new set of participants to take a personality scale on impulsivity. Half were randomly told the test showed them to be “impulsive,” and half were not. Then the group was further divided so half read a mock newspaper article showing a link between impulsivity and creativity, while another half read an article debunking that link. Finally, the participants completed a standard creativity task: thinking of as many uses as possible for a common item like a paper clip. The result: Those who were induced to see themselves as impulsive and informed that impulsivity carries the silver lining of creativity were significantly more creative in the final test. According to lead author Alexandra Wesnousky, “People know that a weakness can also be a strength, but these results show that if we actually believe it, we can use these beliefs to our advantage.” 

Ten Witness Problems and Ten Silver Linings

If most witnesses are going to be left, even after preparation, with one or more negative traits or beliefs, then it will help to reframe those beliefs by focusing on the silver lining for each. Naturally, I don’t mean to suggest that the silver lining fully compensates for the weakness, or to suggest that a witness should stop working on a problem and instead just celebrate the silver lining. Instead, the focus should be on doing the best you can on minimizing a weakness, and then boosting confidence by noting some level of benefit to the inevitable residual.   

 

Dark Clouds

Silver Linings

1

  I am nervous.

 

Those nerves bring heightened attention and motivate you to do the work necessary.

2

  I am soft-spoken.

Jurors will identify with you for that because they’re intimidated by the legal process too.

3

  I feel terrible about what happened.

 

Recognizing a bad outcome is natural. That shows that you are human and that you care.

4

  I don’t remember everything.

That is realistic. What you do remember is more credible if you honestly admit what you don’t.

5

  I am not quick in thinking of an answer.

A pause will show that you are thoughtful, and that you’re giving the question serious attention.

6

  I have to concede some weak points.

That’s credible. If jurors will see the weakness anyway, they’ll think better of you for acknowledging it.

7

  I get distracted and miss the point of the question.

You have a creative, busy mind. That will lead to better asnswers as long as you can focus.

8

  I am detached from this lawsuit (I don’t see it as my problem).

That will help you not take things personally, avoid nervousness, and just do your job.

9

  I feel self-righteous about our case (I don’t think the other side has a leg to stand on).

That means you are engaged, which will help you come up with better answers.

10

  I can come off as arrogant.

That means you have confidence. You won’t be bullied by opposing counsel.

 

In putting this list together, I had a thought that it could apply to case facts as well. Looking for a silver lining in case weaknesses might help as well, both in aiding confidence and in adding content. Another post, perhaps. 

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Other Posts on Witness Challenges: 

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Wesnousky, A. E., Oettingen, G., & Gollwitzer, P. M. (2014). Holding a Silver Lining Theory: When Negative Attributes Heighten Performance. Journal of Experimental Social Psychology.

Photo Credit: Taken on the Kerry Penninsula during the author’s trip to Ireland by Kelly O’Leary, the author’s sister.

November 13, 2014

Consider a Flowchart Verdict Form

By Dr. Ken Broda-Bahm: 

Bus. Concept & Flow Chart

Juror C: Okay, we’ve answered question four, so let’s move on to five. 
Juror A: No, it says that if we answered “No” to four, then we skip to seven…
Juror D: …I totally know the answer to six, it is “Yes!”
Juror A: Wait, wait, we should not even be answering that…
Juror D: Well, let’s just see what everyone thinks…
Juror F: Yeah, just to be on the safe side, let’s answer each one, and we can always cross it out later. 
Juror A: No!

That is a small sample of the kinds of confusion one can see when a jury confronts a complex verdict form. In the mock trial observation room, counsel and clients might be tearing their hair out over mistakes that could risk an inconsistent or ambiguous verdict in the actual trial. Lawyers and judges will strive mightily to clarify the verdict form and make sure it has clear skip instructions, but it is easy to see that most verdict forms, particularly special verdict forms in complex trials, sow barriers in the way of a clear or simple verdict. 

A recent article in the Duke Law Journal proposes an intriguing possibility for a better way. To address the hazards of verdict inconsistency — damages without predicate liability or cause, or duplicate damages for the same harm awarded in more than one category, for example — the article (Fang, 2014) makes a compelling argument for flowchart verdict sheets “as a prophylactic against juror confusion.” Inconsistent verdicts are burdensome and expensive, sometimes requiring a do-over in whole or in part. “By mitigating the confusion that can result in inconsistencies before the verdict is rendered,” Jerry Fang writes, “the flowchart verdict sheet enables the judicial system to avoid the costs associated with remedying inconsistent verdicts.” This post takes a look at this interesting legal reform idea and shares some thoughts on how it might be incorporated in civil trials. 

The idea is to use simple visual communication techniques to make the verdict process more clear and intuitive. The author shares an example of a flowchart verdict sheet created for an employment discrimination case in the Eastern District of New York:

Flowchart verdict form

(Please click to see full-sized version)

Comparing the chart above to a traditional verdict form, it is clear that the flowchart version gives jurors an immediate visual sense of their decision making path, a sense that a careful jury would only possibly get after specifically reading the text of a more conventional verdict form. 

Consider Using a Flowchart Verdict Form

The article recommends the creation of model flowchart verdict forms by the federal judiciary. but that should not prevent parties from individually or jointly proposing this design. Flowchart verdict forms are not yet in common use, but that won’t change unless litigators ask for it and judges try it. All (usually) have an interest in clarity, and as Jerry Fang writes, “These ‘flowchart verdict sheets’ can visually — and in a clear and intuitive manner — ‘map’ the cognitive decisions a jury must make to reach a verdict.” They realistically mirror how jurors are following a process and choosing a path. For support, Fang points to a study (Semmler & Brewer, 2002) showing that representing instructions in flowchart fashion did lead to improved comprehension of the instructions, including better retention and recall as well.  

But Consider How It Looks As Well

A flowchart is visually quite different from the typical linear presentation of verdict questions. Because that difference could have an effect on how jurors interact with the questions, parties will need to think carefully about how the chart is laid out. For example, it will be important for the visual space to be about equal on the “Yes” and “No” sides. One side shouldn’t look simpler, easier, or more ‘downhill’ than the other. In the article, Jerry Fang draws on Edward Tufte, the Yale University professor most famous for his war against PowerPoint, and shares a few reminders that should go into the design. Litigators interested in trying this approach would be well advised to have any proposed flowchart verdict form designed, or at least reviewed, by a graphic designer for clarity, simplicity and fairness. 

Even Without a Flowchart Verdict Form, You Can Still Explain the Verdict Process Using a Flowchart

Even if the judge is likely to err on the conservative side and veto any near-term use of a flowchart verdict form, that does not prevent you from using a flowchart as an educational tool. If the jury understands the process visually, they can apply that understanding to a linear and traditional verdict form that uses skip instructions. So consider using slides in closing argument that lay out the decision making sequence in the most understandable fashion, which is probably a flowchart. In a mock trial, you might also think about using a flowchart verdict form as a shortcut. For example, you might think you’ll have a chance to really explain a complex traditional verdict form in the real trial, but you don’t want to sacrifice the time that it would take to do so in a mock trial, so you rely on the more visually obvious version for expedience. 

The idea is pretty new, so some caution is warranted. The Fang article makes the valid point that much comprehension studies have focused on whether jurors understand the instructions, not whether they understand the form itself. So a quick message to academics who want to publish and not perish: An interesting study design would be to compare two versions of the same verdict form — one framed in the traditional style and the other in a flowchart style — and see if there are differences in comprehension, speed, and overall result. 

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Other Posts on Verdicts and Instructions: 

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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 Request: 123rf.com, used under license

February 24, 2014

Use the ‘Persuasion Slide’

By Dr. Ken Broda-Bahm: 

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Some great practical ideas for persuasion come from the field of marketing. To be sure, not all apply in legal settings, but marketing offers a laboratory where the practical aspects of human influence can be addressed in a situation that often carries high stakes and measurable results. I recently came across one marketing idea from Roger Dooley’s Neuromarketing blog that provides a perfect way of explaining and differentiating the various forces at work in any persuasive situation. The idea is called “The Persuasion Slide,” and it starts with the simple physics involved in an ordinary playground slide. Like a good trial metaphor or demonstrative exhibit, the illustration provides a simple and immediately meaningful way to understand a more complex process. 

It is possible that practical persuaders’ eyes might start to glaze over when they hear about “models” of persuasion. But this particular idea carries more than just theoretical benefit. It provides a practical way to identify and discuss the very real components of persuasion, and to be reminded of some influences that could otherwise be overlooked. In this post, I’ll share Mr. Dooley’s model and layer on my own ideas of what it suggests in a legal persuasion context. 

Without further ado, here is the model:

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(Copyright and trademark, Roger Dooley, Neuromarketing — used with permission)

The idea is that the process starts with some outside push toward attention (a nudge) and then uses a target’s internal motivation (gravity) along with additional motivation provided by the persuader (angle), in order to overcome resistance (friction) and get to the goal. While Roger Dooley uses the word “customer,” he could have just as easily referred to the “audience” or the “persuasive target,” since these factors are at work in any situation of attempted influence through communication. The model is also very simple — just like every good hueristic. Applied to courtroom persuasion, however, it carries some important implications and reminders. 

Nudge

At the top of the slide, something pushes you off. In marketing, that nudge is anything that breaks through the clutter and makes the customer willing to consider a call to action (e.g., “24 Hour Sale!”). In court, persuaders should be looking for a comparable nudge. Don’t presume that the jury, the judge, or the arbitrator is paying full attention simply because their role calls for that. In complex cases, in fact, they need to be doing more than simply paying attention, they need to be working to follow the case. What nudges the fact finders toward that kind of attention? In public speaking we call it the “attention step,” or the “payoff,” and in popular music we call it the “hook.” In opening statement, we call it the “silver bullet” that grabs your decision maker in the first few minutes and distills the case to its essence in a memorable way. But beyond the introduction, maintaining attention is a continuous battle because the brains of your listeners are continuously selecting and shedding detail. So persuaders need to communicate as though they’re constantly pouring sand into a colander. With clear expression, good visuals, and impactful language, your message in trial should highlight the most important takeaways, in effect saying, “Listen to this,” and “Remember this.” It isn’t a one-time nudge, but a constant nudge.  

Gravity

Of course, you’re going nowhere on that slide if there isn’t some force pulling you down. In persuasion, that force starts with the motivation the audience brings themselves. As Roger Dooley notes, persuaders need to be aligned with their target’s motivation, not their own. As I’ve emphasized before, jurors and judges are like other persuasive targets in engaging in motivated reasoning, meaning that they will adapt a leaning, often based on implicit factors that aren’t fully conscious, and then come up with reasons to support that leaning. That is in contrast to a rational legal model that expects people to start with evidence and work their way to the conclusions, but it is consistent with a great deal of psychology showing that the conclusions often come first. The attitudes that a decision maker has to begin with supply a kind of gravity for the message. Of course, your case might be like the Wright brothers and defy that gravity, but wherever there is a way to do so, it is far better to find a way for those preexisting motivations to work for you. Sometimes that can mean identifying actual attitudes though a juror questionnaire or oral voir dire (e.g., “corporations are greedy”) and finding ways to adapt your case to those attitudes (e.g., “the profit motive led the company to do the right thing in this case”), and at other times it can mean finding more universal motivators, like the values of fairness, security, or care, and adapting your case to highlight those values. In all cases, though, it helps to ask “before and apart from your message, what forces are pulling on the target audience?”  

Angle

Your slide has to be steep enough to work and to overcome friction. The angle is Roger Dooley’s metaphor for the motivators the persuader brings to the job. In legal persuasion, this means not just the evidence, but everything the trial attorney does to put the case in the best possible light: The frame; the analogies; the story; the chapters; the visuals, the balanced use of ethos, pathos, and logos; and all of the other elements that go into what Aristotle called “artistic proof.” Those techniques cannot normally create a motivation that isn’t otherwise there, but they can help guide and direct existing motivations in particular directions — much like a slide’s angle working with gravity to move in a particular direction. Dooley points out that this angle includes not only a persuader’s conscious motivators (our intentional techniques and strategies) but the unconscious ones as well. For example, a plaintiff who spends too much time preempting what the defense will say might be unconsciously putting an angle on the case that says, “we’re very concerned about the negatives in our case.” Considering the angle in legal persuasion means looking at all the factors that influence the fact finders one way or the other. 

Friction

Persuasion never takes place in a friction-free environment. Even when your slide is smooth plastic or polished stainless steel, there is some force slowing you down. In Dooley’s metaphor, that friction relates to the real or imagined difficulty the persuader faces in making a particular case to a particular audience. In legal persuasion, resistance to persuasion looms quite large: A distrust of attorneys, witnesses, plaintiffs, defendants, and others makes it safe to assume that your audience is taking nearly everything with a grain of salt. Faced with specific obstacles like skepticism, difficult comprehension, or bias, litigators might think that rationally, the fact finders should be able to get past it. And, indeed, they might, but friction is still friction and the more of it there is, the more trouble the advocate will have. The idea of friction provides a reminder to think not only about the theme that would bind jurors to your case, but also the anti-theme that would turn them off from it. It reminds us to focus not only “alpha” strategies, but on “omega” strategies as well: buttressing not just the reasons your position is preferred, but also on the reasons your position may be avoided. More basic sources of friction might also be found in a simple lack of comprehension, or in a bias that cuts against your client. 

Taken together, the elements of the “Persuasion Slide” should serve as a good reminder to attorneys: It is not just a matter of giving reasons so the fact finders are convinced. There is more to it than that.

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Other Posts on Models of Persuasion: 

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Photo Credit: Jonolist, Flickr Creative Commons (edited)

December 30, 2013

Chunk Your Trial Message

By Dr. Ken Broda-Bahm: 

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Give me the bite-sized version, break it down into pieces, and tell it to me step-by-step. The brain loves to segment, and the process known as “chunking” seems to be a central part of how we recognize patterns, manage information, and form new insights. A recent perspective on the process is articulated by Cambridge neuroscientist Daniel Bor in his book, The Ravenous Brain (2012). According to Dr. Bor, this ability to chunk is a key feature — perhaps the key feature — in human consciousness. “The process of combining more primitive pieces of information to create something more meaningful,” he writes, “is a crucial aspect both of learning and of consciousness and is one of the defining features of human experience.” 

The book covers a broad sweep, and it is likely that I’ll be mining it for future posts. But one of the clearest implications of Bor’s thesis is that practical persuaders need to adapt to the brain’s preference for patterns by giving the gray matter what it’s looking for. And if it’s true that an essential element in making meaning is conveying these chunks of information, the “small nuggets of meaning that are particularly salient,” then that is a very important concept for persuaders to understand. While much of the media attention regarding Bor’s work (e.g. this piece from Lifehacker) has focused on use as a memory aid to remember longer and longer chains of numbers, for example, the more basic implication of chunking lies in giving us insight into how we experience and perceive. Though chunking “can vastly increase the practical limits of working memory,” Bor clarifies, “it is not merely a faithful servant of working memory — instead it is the secret master of this online store, and the main purpose of consciousness.” A recognition of components and an ability to organize them into patterns is nothing short of the substructure of how we perceive, think, and are persuaded. This need to break information into chunks has implications for all communicators, including litigators at all phases of trial: voir dire, opening, witness examination, and closing. 

What Does It Mean for Litigators to Chunk?

The first reaction from the communication-savvy individual to this advice about breaking a message down into chunks might be, “thanks, Captain Obvious!” And of course, the need to have structure in any message is something that is drilled into us from Speech 101 on. But in my day-to-day work, I continue to believe that attorneys who truly take this to heart are the exception rather than the rule. Yes, the attorney may be clear in his own head that he is following an outline, but are the jurors and the judge? What if one were to ask at the conclusion of an opening, “Okay, who can tell me what the structure was — how many main points were there?” Following the average opening statement, how many would know the answer, other than the speaker? 

My belief — and I’ve sometimes checked this belief after mock openings — is that the answer is few to none. It is one thing for the attorney to get that structure, and it is another thing for her listeners to get it just as well. Litigators and other communicators often believe that they’re breaking things down based on a clear, explicit, and meaningful structure, but their audience instead simply experiences a continuous and unbroken flow of information or arguments. Here are a few rules of thumb for making sure you’re actually chunking when you think you’re chunking: 

    • It has to be simple (which usually means flat, without substructure, and limited to a manageable number of main points). 
    • It has to be explicit (which usually means actually saying something like, “First point,” “Second point,” and “Third point”).
    • It usually should be previewed (“Tell them before you tell them,” unless you having a strategic reason for preserving a surprise). 

With these requirements in mind, here are a few reminders on where and how litigators should chunk their trial messages. 

Chunk Your Oral Voir Dire

Attorney-conducted oral voir dire should not consist of a long list of questions. Instead, there should be topical divisions, each with its own goal. For example, in a products liability case, you might move from general to specific, focusing first on attitudes toward personal responsibility, then on views of product cases in general, then on reactions to the situation involved in the case at hand. Within each topical segment, there might be a natural sequence: A set-up that encourages jurors to call their experience to mind; a choice of some kind that divides higher-risk from lower-risk jurors; and a follow-up that elicits supportive themes. At the end of each segment, transitioning and signposting the next topic will help the venire members maintain their interest and focus. 

Chunk Your Opening Statement

The goal of opening statement is to give jurors a way to think about your case and structure can be key to that. Of course, most attorneys now know that the best way to open effectively is by telling a story. But telling a story doesn’t simply mean tying all the facts all together with an “and then…” link between each. Most books have chapters and most plays have scenes. They follow that format because structure is really the essence of story. As you move through your opening story, make sure that your listeners will have a sense of that movement. That means knowing when each new chapter begins. 

Chunk Your Witness Examination

Examination amounts to a series of questions, but to the juror watching it, the examination also should break down into discrete topics and themes. In either direct or cross examination, the same principle of telling the story in chapters applies. Each section should be united by its own goal (e.g.,  in the “Experience” section of cross, the goal is to show that, while impressive, the expert’s experience is irrelevant to the issues in this case). In addition, each segment should follow a common pattern: first an orientation, then a fleshing out of greater and greater detail, and then a punchline or conclusion. In direct, it is important to have witnesses familiar with the sequence as well, so they are prepared without being over-prepared

Chunk Your Closing Argument

In most cases, the closing should follow the verdict form order, with those questions providing the chunks that are most relevant at that stage. Instead of telling the trial story over again, you will want to focus jurors on the story that lies ahead: deliberations. The problem is that by this point, jurors have heard a lot, and your focus cannot simply be on repetition. Instead, you need to organize and synthesize what they have heard, and that is where chunking comes in. Treating each of the verdict form questions as a basket in which to group the relevant evidence and argument provides jurors with the most meaningful and motivated way to organize their recollections of the trial. 

At this time of the year, there is one more timely application of chunking. That is the reminder that we don’t  experience time as free-flowing. Instead, we impose a human order on those natural rhythms and chunk time into years, then months, then hours, minutes, and seconds. So, as 2013 winds down, I offer this wish: May your next chunk be at least as good as your last. 

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Other Posts on Message Structure: 

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Bor, D. (2012). The Ravenous Brain: How the New Science of Consciousness Explains Our Insatiable Search for Meaning. Basic Books.

Photo Credit: Trekkyandy, Flickr Creative Commons

December 9, 2013

Take Your Time and End Strongly (a Legal Lesson from Nelson Mandela)

By Dr. Ken Broda-Bahm: 

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There has been an appropriate swell of attention to the life and words of Nelson Mandela since the world leader’s death last Thursday. Less emphasized in the tributes is the fact of what Nelson Mandela was before he was a protest leader, then prisoner, then president, then father of a new South Africa. Before that, he was a lawyer. In fact, he founded the first black law practice in Johannesburg. That experience came to the fore in his 1964 trial in Pretoria for sabotage. Facing a potential death by hanging, Mandela addressed the court in a “Statement from the Dock.” Often it’s an occasion for an expression of remorse or a plea for leniency. But Mandela, the lawyer, turned it into a detailed factual and historical exposition seeking to make his case much as a closing argument does in U.S. courts. 

For more than four hours, Mandela spoke carefully and in detail, not only to his own charges, but also to the larger injustice of South African Apartheid. Addressing the brutal inequalities, as well as the stark history of atrocities like the Sharpville massacre, he was speaking not only to the white judge, but to the world as well. He ended that argument with words the world remembers: 

During my lifetime I have dedicated myself to this struggle of the African people. I have fought against white domination, and I have fought against black domination. I have cherished the ideal of a democratic and free society in which all persons live together in harmony and with equal opportunities. It is an ideal which I hope to live for and to achieve. But if needs be, it is an ideal for which I am prepared to die.

The trial ended with a sentence of life, not death, and Mandela spent 27 years in prison on Robben Island before he emerged and changed the world. In this post, I’d like to try to wring one more lesson from this great man’s life by taking a closer look at the speech that ended on that note. 

Learning from Mandela

I won’t make former Senator Rick Santorum’s mistake of trivializing Mandela’s challenges by comparing them to much smaller matters. That is, an individual seeking monetary recovery or a company looking to limit its liabilities has nothing in common with Mandela’s historic struggle and triumph. Still, Mandela’s Statement from the Dock (available in full here) can be considered on its own terms and still provides some basic lessons. 

One, Take Your Time

The speech clocked in at over four hours. And that length shouldn’t suggest that it was meandering or stream of consciousness. It was logically ordered and tightly structured…but long. There is, of course, a whole religion of “keep it simple,” and “keep it short” when it comes to communication and persuasion. But there are moments, and this was one, where your target audience is not looking for that. In closing argument, for example, lawyers might be tempted to think, “well, they’ve heard it all and now they just want to deliberate.” But, setting aside the generally false notion that jurors have already made up their mind at this point, closing provides a final and irreplaceable opportunity to persuade those who are on the cusp of a decision, and to arm those who are already supporting you, but need details to convince others. Don’t repeat or go off-topic, but take the time to give decision makers what they need when they’re about to decide. 

Two, Tell a Story

Rather than just presenting a detailed legal argument in his Statement, Mandela tells a story. Starting with an explanation of his life all the way back to his childhood in South Africa’s Transkei region, he provides the context to help listeners understand why he moved from law to leadership of the African National Congress, why the ANC initially committed itself to nonviolent struggle, and why after 50 years of increasing repression from the Apartheid regime, the ANC turned toward sabotage of roads, power lines, and empty buildings – the crimes Mandala was ultimately tried and sentenced for. Acknowledging that a white judge may have trouble understanding the situation and mindset that would motivate these acts, Mandela uses the story of his life to try to provide that context. Persuaders in all situations should remember that context is often best provided in a story structure

Three, End Strongly

A powerful ending is essential, and the Statement’s conclusion is the moment that still echoes today. Mandela’s defense attorneys had pleaded with him to delete the line, but instead he delivered while looking the judge directly in the eye: “It is an ideal which I hope to live for and to achieve. But if needs be, it is an ideal for which I am prepared to die.”

In his autobiography, Nelson Mandela described the scene in the courtroom while his last words were still ringing. “The silence seemed to stretch for many minutes. But in fact it lasted probably  no more than thirty seconds, and then from the gallery I heard what sounded like a great sigh, a deep, collective ‘ummmm,’ followed by the cries of women.”

This approach of taking your time to present solid and detailed information, telling your story, and ending strongly applies not just to Mandela’s Statement at the Dock, but to his life as well. He took a long view throughout his days, enduring a prison sentence that would have led most to feel that their ability to contribute was ended. Instead of choosing despair, he took his time and emerged in a way that changed his country and provided an example to the world. At tomorrow’s memorial, leaders from around the world will remember him as a beloved global statesman.  

In 1964, Mandela stood before the bench during a time when the Apartheid regime still felt it could persist by silencing the leaders of the opposition. That approach became even more violent as Mandela waited in prison, reaching a nadir in the 1977 killing of one of Mandela’s successors, Steven Biko, almost irrefutably at the hands of police interrogators. We now know that it didn’t end there. As the musician Peter Gabriel wrote about that killing and the larger historical arc:

You can blow out a candle, but you can’t blow out a fire. 
Once the flames begin to catch, the wind will blow them higher.  

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Other Lessons from Notable Lives: 

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Photo Credit: George Rex, Flickr Creative Commons (Bronze bust of Nelson Mandela by sculptor Ian Walters, Royal Festival Hall, London) 

May 24, 2012

Close Your Case By Walking Through the Decision and Verdict Form (Another Note on the John Edwards Trial)

By Dr. Ken Broda-Bahm: 

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Your opening is a story, I’ve written before, about what happened and about what kind of case this is. The closing is a different story, not about what happened, but what is about to happen: deliberations and a verdict, hopefully in your favor. It makes little sense to go all the way to closing arguments and then tell the jurors the story of what happened as if they are just putting it together for the first time. Instead, closing arguments should transcend the now-familiar story to focus on impending deliberations and walk jurors through the specifics of the verdicts they’re about to render. 

But that isn’t what happened at the close of the trial of John Edwards, the two-time presidential candidate and general two-timer. Instead, based on transcripts of the arguments, both the government and the Defense appeared to end the case much as it began, with a dramatic recounting of what happened. As this blog goes to press, the jury is now entering its fifth day of deliberations, and that may be a sign that they could have used a little more direction at the conclusion of the case. It brings to mind what I like most about high-profile cases: the opportunity for high-profile lessons. In this post, I’ll be taking one more look at the John Edwards trial (probably the last…unless the verdict is really interesting) and drawing out some lessons on the unique function of structure in a closing argument.

The John Edwards Closings

A few things make closings in this case interesting. First, the practice of the judge, Catherine C. Eagles, is to provide jurors with their own copies of the verdict form during closing, allowing them to write notes, or even scribble in individual verdicts while the attorneys argue. Second — and oddly, in view of the fact that all of the jurors are holding verdict forms — it isn’t until 48 transcript pages into his argument that the prosecutor, Robert Higdon, finally gets to “Now, let’s talk a little bit about the charges in this case…” And even then, he follows the claim structure, which apparently differs from the sequence on the verdict form that jurors are holding. What precedes this is a narrative, well spoken and even gripping, but also something that the jury is already well aware of. The third unique feature is the attention given to the other side. “Before I sit down,” Mr. Higdon says near the end of his closing, “I want to quickly cover some of the issues which the Defense has raised in its opening statement and its cross-examination of the witnesses.” In other words, before he finishes, he wants to mention the other side’s case: Does the money used to hide Edwards’ mistress count as a campaign expense? If it does, did Edwards know it? These afterthoughts are likely to be the centerpieces of deliberations. I don’t mean to pick on the prosecution alone. When the time for the defense closing came, they largely took the same route: retelling the story instead of walking jurors through the form that they were holding. 

The Closing is Not About What Happened, but About What is About to Happen 

An effective closing focuses on deliberations, and prepares jurors specifically for the questions that they are about to answer. Some might say, “Well, after all of this evidence, the jury may have lost the narrative thread and may need to be reminded of the story.” Maybe, but briefly. Chances are, after hearing openings, and after hearing numerous witnesses follow a narrative path through their testimony, they’re well aware of the story. If, in that context, they hear a closing argument that sounds like it could have been written before trial even began, they won’t see it as useful or important and it won’t engage them. Telling the story again, this time with the addition of “…and you heard witness X say that on the stand,” from time to time isn’t the best use of your precious final words to the fact finders. 

Instead of returning to the case story, your mission in closing is to tell a new story about what jurors will do — what they’ll consider, ask themselves, wonder, find out, and decide in deliberations. Focusing on what you expect to be the most salient controversies, frame your closing arguments around the jury’s most predictable areas of discussion. By doing that, you are giving tools to jurors to help them understand, justify, and most importantly, advocate on your behalf. 

The research also backs up that advantage. While there is a broad tradition of research indicating that people learn best through simple narratives of “what happened,” that doesn’t hold for closing arguments. Our own Dr. Shelley Spiecker, along with Debra Worthington (Spiecker & Worthington, 2003), conducted a study on the effectiveness of narrative versus “legal-expository” format that focused on comparing cases based on their elements. While narrative worked best in opening, the more claim-oriented approach tended to fare better in closing.

Target Your Closing

Boiling it down, I suggest three general lessons on the composition of closing.

1. Place Emphasis on the Issues Most Likely to Divide. What if, instead of saving a discussion of the Defense case for the last moments of closing, John Edwards’ prosecutor had started out with something like the following: 

Chances are, your own thoughts so far, as well as the discussions you’re about to start, will focus on three main questions: Does the money count as campaign contributions? Did John Edwards know it? And can we trust the principal witness Andrew Young? 

Those are the three pillars of the defense, so why not directly start sawing them down at the outset of closing argument? After mapping those questions onto the verdict form, the prosecutor should then pile up all of the reasons for an affirmative answer to each, enumerating a list that jurors can write down and use to convince themselves and others. 

2. Make the Verdict Form the Framework, Not a Moment at the End of Closing. The closing arguments in the Edwards trial are not unusual, in my experience, in the amount of attention that they give to the verdict form itself. It is common for attorneys to cover all the arguments based on their own framework, and then save a moment for the end of closing and essentially say, “Okay, let’s talk about how everything I just said applies to your verdict form.” 

What if, instead, attorneys made the choice to structure the closing based on the structure of the verdict form, starting with question one? That way, you are anticipating and framing the discussion they’re about to have. All of the necessary story, recall of witnesses, use of exhibits, and instructions can be placed in buckets based on where they’re likely to apply to the verdict. With this approach, instead of just a last act of attempted persuasion, the closing argument becomes a coaching session for the jurors who are about to deliberate. 

3. Employ a Light Touch When It Comes to Telling Jurors What to Do. With all this talk of framing and determining the jurors’ discussion, it is wise to remember one fundamental jury fact: They don’t want to be consumers of persuasion, they want to reach their own conclusions. The most effective advocates know that they’re more effective in telling the target what to think about, rather than telling them what to think. This is why it is best to put more explicit focus on their discussions rather than their conclusions. For example: 

You are going to ask yourself how money to hide a mistress can be part of a campaign. And it may even sound a little counterintuitive — after all, it isn’t a brochure, or a TV ad, or a rally. But here is another way to look at it: Would the campaign have been able to continue without those funds? When the initial supporter, Bunny Mellon, first offered to pay bills, did she mention the campaign? Was she offering support in response to criticism of the campaign over a $400 haircut? Were these just the actions of a personal friend, or the actions of a supporter who desperately, desperately wanted to see her man in office? You are going to consider and discuss all of these questions, and I trust that you’ll apply your common sense as well. But as you think about these questions, let me remind you of a few facts that you will want to take into account. 

You won’t always know what the jury’s focus will be during deliberations, but you’ll generally have a pretty good idea. If you’ve conducted a mock trial, you of course won’t be predicting the ultimate jury result, but in my experience, you will have a more reliable sense of what the jurors will be talking about, and the main controversies that will divide them. When you speak directly to those controversies within the context of your specific verdict form, you’re giving your most effective closing.

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Other Posts on the Trial of John Edwards: 

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Spiecker SC, & Worthington DL (2003). The influence of opening statement/closing argument organizational strategy on juror verdict and damage awards. Law and human behavior, 27(4), 437-56 PMID: 12916230

Photo Credit: Decafinata, Flickr Creative Commons

January 5, 2012

Take a Lesson from Political Campaigns: Going Negative Works (Partially)

By Dr. Ken Broda-Bahm:

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As the pack of Republican presidential contenders heads out of Iowa, there is an important lesson for litigators and other persuaders, but it is partly simple and partly complex.  The simple part is that negative campaigning works.  Just ask Newt Gingrich who was on the receiving end of more than four million dollars worth of attack ads run by Mitt-friendly PACs in the weeks leading up to Tuesday’s Iowa caucuses.  Gringrich, who just weeks earlier had been ahead of Romney in the polls, settled for a fourth place finish while Romney managed to eke out a victory.  As much as we like to believe that politics, like litigation, is all about presenting a positive vision, the reality is that negative appeals can be dramatically effective. 

The complex part of the lesson is that the effectiveness of negative appeals can vary based on source, timing, and the overall balance of your message.  A number of factors, particularly relevant in a litigation context, influence when a pointed attack on your adversary will work, and when it will bounce back at you, reducing your credibility more than your opponent’s. 

Attacks Are Sticky

We’re all familiar with the format:  a dark screen, ominous music, and unflattering pictures of a downcast candidate as a deep-voiced narrator relates shocking failures of judgment, character, and policy.  When asked, the average member of the public will say that they don’t like the ads and are not influenced by the ads.  Similarly, the average candidate will say that they want to run a positive campaign, focusing on their vision for the country.  But the research and the reality of candidates’ use of negative ads tell a different story.  “Gingrich’s drop in polls in Iowa last month was no accident,” writes University of Georgia Professor Ruthann Lariscy for CNN, “it was choreographed by negative advertising.”  She goes on to discuss research showing that negative information receives more cognitive processing, and is more “sticky” and memorable than positive information.  “Inevitably,” she writes, “some of the negative information gets ‘stuck’ in our minds, even if we don’t like the ad or agree with its contents.” 

The greater memorability of negative information is borne out by the research.  For example, a review of the literature on negative political campaigns (Lau, Sigelman & Rovner, 2007), found that the negative information “tends to be more memorable and stimulate knowledge” about an adversary, even as negative campaigning is not necessarily a reliable strategy for winning votes. 

But for Litigators, They’re Also Tricky

That last conclusion from the research carries some importance for litigators:  Attacks stick in the memory, but they don’t necessarily help the source win elections.  The same goes for litigators, and attacks on your adversaries won’t necessarily win cases.  Here are a few litigation-relevant lessons that we can take from what we are learning about political attacks. 

1.  Be Conscious of Outcomes.   The Iowa caucus outcomes are telling:  The attacks the Romney camp lobbed on Newt Gingrich seemed to work in knocking that candidate from first to fourth place, but the targets of those ads didn’t switch from Gingrich to Romney, they switched from Gingrich to previous underdog Rick Santorum.  Romney stayed basically at the same 25 percent threshold and ended up winning by just eight votes.  The law of unintended consequences applies in litigation as well.  An effective attack will reduce your adversary’s credibility, but will also leave your jurors with a message, and you need to be aware of the effect of that message.  For example, you convince your fact finders that the party on the other side was unethical.  Good, but now you have reinforced the importance of ethics and can rightly expect some heavy scrutiny of your own ethics.  

 2.  Be Conscious of Source Credibility.  One other finding from the review of negative political advertising research (Lau, Sigelman & Rovner, 2007) is that many negative attacks reduce the credibility of both the target and the source of the attack.  You’re still faulted for throwing stones even when the stone hits its target.  In the context of political advertising, this is less of a problem due to a “sleeper effect,” when come voting time we remember the content of the attack but forget where we learned it.  Blowback is also less of a problem in politics due to the fact that today’s attacks are often made by shadowy groups with names like “Restore Our Future” which don’t appear to be linked to any candidate until you dig.  Litigators, on the other hand, don’t have the luxury of hiding the source.  I’ve known some trial teams to effectively take a good cop/bad cop approach, where one attorney stays positive — bonding with the jury and delivering opening and closing — while the other attorney plays the role of attack dog, occasionally let off the leash to savage a key opposing witness or two. 

3.  Be Conscious of Timing.  We have written before about the need to tell a positive story first, and only then focus on the problems with the other side.  Effective candidates tend to do the same thing.  Early on in the campaign, they attempt to build their image and their hope-fueled positive message.  Only later, when push comes to shove, do they subtly shift gears and start running the ominous fear-driven ads.  In litigation, we see that in every mock trial that we run.  We make a practice of measuring mock juror leaning and credibility after each phase of the mock trial.  In a project conducted yesterday, for example, we found that once the Plaintiff was done, every single mock juror reported a leaning in favor of that party, and the Defendants’ credibility was tiny.  If the Defendants in that context were to stand up and start throwing punches immediately, the message would have fallen flat.  The jurors would have simply counter-argued against even valid attacks in order to maintain their opinions.  Instead, the Defendants had to quietly build some trust, then tell their story, and only then, invite the jurors to scrutinize the Plaintiff a little more closely.  In actual trial, that often means saving some of your negative attention for the end of opening, or for testimony and closing. 

In the political world, the reality is that negative attacks are here to stay.  The same is true in litigation.  As much as we communication types often emphasize the need to give your audience something to vote for, not against, it remains true that discovery usually yields some negative information on your adversaries, and you need to get that information in front of your fact finders.  Just as in politics, though, it is a matter of timing and tone. 

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Other Posts on the Lessons of Politics:

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ResearchBlogging.org Richard R. Lau, Lee Sigelman, Ivy Brown Rovner (2007). The Effects of Negative Political Campaigns: A Meta-Analytic Reassessment Journal of Politics, 69 (4), 1176-1209 : 10.1111/j.1468-2508.2007.00618.x

 

Photo Credit:  Mike Licht, NotionsCapital, Flickr Created Commons (edited).

September 8, 2011

No Blank Slate (Part 2): In Closing, Treat Your Jurors as Instrumental Arguers

Your case has finally gone to the jury, and the panel is now ensconced in the jury room. What are they doing in there? Are they carefully and logically arguing the merits of your case, considering all sides until the truth wins out? If you have ever watched a closed-circuit feed of mock jury deliberations, or talked in detail with actual jurors after a verdict, you know the answer is, “No, not really doing that.” What they are likely doing instead is using argument instrumentally, as a tool to help the side that they favor, possibly for reasons unrelated to their arguments.

In part one of this series, I wrote about jurors’ “motivated reasoning,” or the tendency for our logic to follow our motivations, and our reasons to be generated more readily in support of what we want to be true. This absence of neutrality in an individual juror’s reasoning is replicated in the entire jury’s patterns of argument. Instead of arguments being used as a path to truth — an idea that is at the heart of the adversary system — new research is focusing on the fact that jurors and others argue in order to gain advantage for a favored position. If argument is more of an instrumental way to gain leverage in deliberations, and less of a method of testing truth, then that has important implications for the ways attorneys advocate in court, especially during closing arguments.

By Dr. Ken Broda-Bahm –

Chalk drawing 2

Your case has finally gone to the jury, and the panel is now ensconced in the jury room.  What are they doing in there?  Are they carefully and logically arguing the merits of your case, considering all sides until the truth wins out?  If you have ever watched a closed-circuit feed of mock jury deliberations, or talked in detail with actual jurors after a verdict, you know the answer is, "No, not really doing that."  What they are likely doing instead is using argument instrumentally as a tool to help the side that they favor, possibly for reasons unrelated to their arguments. 

In part one of this series, I wrote about jurors' "motivated reasoning," or the tendency for our logic to follow our motivations, and our reasons to be generated more readily in support of what we want to be true.  This absence of neutrality in an individual juror's reasoning is replicated in the entire jury's patterns of argument.  Instead of arguments being used as a path to truth — an idea that is at the heart of the adversary system – new research is focusing on the fact that jurors and others argue in order to gain advantage for a favored position.  If argument is more of an instrumental way to gain leverage in deliberations, and less of a method of testing truth, then that has important implications for the ways attorneys advocate in court, especially during closing arguments.  

While the notion of finding truth through the dialectical magic of argument goes back at least to the ancient Greek philosophers, a recent research emphasis driven by a group of French cognitive social scientists tends more toward something called the "argumentative theory of reasoning" (Mercier & Sperber, 2011), which is the notion that humans developed their skill in reasoning in order to help win arguments, not as a way to evaluate the better or the worse course.  In other words, we became such smart homo sapiens, not because we search for truth but because we want to have our way, and we want to have it through communication and not just through force.  So reason evolved as a tool for argument, rather than vice-versa. 

From a human development standpoint, the notion is controversial, but at least in modern times, it seems safe to say that jurors don't just argue to discover what they think, but instead use arguments to advance their position and sway the other jurors.  So, looking at this perspective on the role of argument, what are the practical implications for litigators? 

1.  Remember, You Aren't Just Persuading, You Are Persuading the Persuaders.  Jury persuasion, especially in closing argument, differs from nearly every other communication situation, because you aren't just influencing the decision maker, you are preparing the decision maker for a subsequent argument.  Time and time again, we've seen mock trials where a clear majority will be persuaded in one direction, but won't be adept at defending their position or in answering pointed arguments from the other side, and will weakly cave in.  Some attorneys feel that closings don't matter, out of a mistaken belief that jurors have already made up their mind by that point (not so — according to a National Law Journal/Lexis survey of jurors, nearly 60 percent say they've not yet begun to make up their minds as of closing arguments).  In addition to convincing the undecided jurors, you are also equipping the rest for the advocacy that will ensue during deliberations.

2.  Remember to Give Your Champions Both Swords and Shields.  Aside from convincing, the goal of closing arguments is to turn favorable jurors into advocates, able to instrumentally use arguments on your behalf.  Even for those jurors who have already decided or are strongly leaning as of closing arguments, your converts will still need both a sword and a shield in the upcoming deliberations:  they'll need to be armed with good arguments (swords), and prepared to resist the arguments of jurors on the other side (shields).  If you are explicit ("There are two exhibits you need to look at…" "There are three reasons that isn't true…") you are encouraging your jurors to take notes and to recall and use that information when the time comes. 

3. Finally, Remember That Your Jury is Always Smarter than Your Juror.  Individual jurors can miss a lot, but the collective jury doesn't miss much at all.  Part of this stems from the advantages of the "argumentative context," of deliberations that the French researchers are documenting.  Saying that arguing is instrumental doesn't mean it is logically weak.  To the contrary, Sperber & Mercier write:  "At least in some cultural contexts," instrumental argument "results in a kind of arms race towards greater sophistication in the production and evaluation of arguments.  When people are motivated to reason, they do a better job at accepting only sound arguments, which is quite generally to their advantage.”  The jury, as a whole, is more likely than individual jurors to come up with better results because the whole group will be exposed to the best arguments.  This jibes with our experience as well.  The jury is likely to be smarter, paying better attention, focusing more comprehensively on the case, and noticing better argument quality than any individual group member.  

Ultimately, when you are persuading a jury, you are persuading a group, and that means aiming not just to convince but to enable productive argument.  By making claims that are clear, memorable, and most of all, useable, you are helping jurors engage in their own instrumental argument on your behalf.

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Other Post in This Series: 

Related Posts:

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ResearchBlogging.org Mercier H, & Sperber D (2011). Why do humans reason? Arguments for an argumentative theory. The Behavioral and brain sciences, 34(2) PMID: 21447233

Photo Credit:  Flickr Creative Commons, Karen Horton

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