Category Archives: Construction Litigation

August 3, 2015

Stop the Ripples in Construction Jury Persuasion

By Dr. Kevin Boully: 

Pool of Water - Ripple Effect

A young woman carries two cups of coffee into the World Trade Center. The elevator doors squeeze to a close just before she can hop aboard to surprise her mother working on the 72nd floor. She waits patiently for another ding. You know what happens next. The 9/11 attacks shake the building and force her to safety and a long day of worrying before she finally learns her mother is safe. This story has a happy ending. If the line at the coffee shop is a little shorter, or the barista a little faster, she is aboard that elevator and life is forever changed.[i]

The woman is Earlyne Alexander and she shares the above story on The Moth, one of my favorite resources for enjoying and learning persuasion through storytelling. Others who got on that elevator before the doors shut did not survive. So while Ms. Alexander’s story stems from a once-in-a-lifetime situation and a real-world example of life and death, you daily experience examples of a fascinating phenomenon her story illustrates – one action can cause a sequence of cascading, unexpected consequences. If you have tried cases to a jury, you know too well that one unexpected trial event can send ripples throughout the remainder, changing perceptions and leading jurors to surprising conclusions. In this post, we explore how the ripple effects of change and delay converge with the ripple effects of jury persuasion in the context of construction litigation. 

Lawyers such as Cordell Parvin describe well how the ripple effect of change orders “flow[s] from the synergy of the number and scope of changes issued. The underlying theory is that numerous changes cause a cascading, ripple-type impact on performance time and efficiency…” Others also offer advice that the most effective way to deal with delays in construction projects is to “prepare for the ‘ripple effect’ or ‘cumulative impact’ to minimize the uncertainty of change.” This is often the same way we help trial attorneys preparing for jury trial: identifying the worst-case scenario and anticipating how the trial dominoes may fall. So how do jurors react to the evidence of change orders, delays, and the ripple effects that result?

 Jurors Assume the “Expected”

Jurors expect corporations to be profit motivated. They expect patents to be technical and detailed. They assume and expect changes and delays in construction projects. Their personal experiences make it nearly impossible for them to assume otherwise. One mock juror hearing the impacts of delay in a construction dispute said, “This reminds me of the phone calls I got that said, ‘Oh, we have an issue with the foundation and so that’s going to push back blank, which is going to push back…’ and the more you talk to them the more you realize everything was connected. The snowball effect.” And as the mock trial research data below reveals, jurors believe that if they expect delays and changes, contractors should not only expect them, but should anticipate them and prepare accordingly.Pie Chart 3

 

“A general contractor should build in

expenses for unforeseen changes when

making his project bid to the homeowner.”[ii]

 

Denying the expected or presenting your case as if the changes and delays came as a shock is a good way to create your first ripple in jurors’ perceptions of your construction delay defense. That jurors assume and expect delay is a given, the more important issue is how jurors parse and assign responsibility for the delays and resulting consequences. 

 Jurors Use Power to Evaluate Responsibility

More perceived power means more control. More control means a greater ability to anticipate and avoid (or account for) problems and make choices to protect bad outcomes. Construction jurors assess the parties’ power through the following key filters, each of which can serve as a ripple that leads to further conclusions about responsibility.

  • ContractsWhat does the paper say?

Construction jurors look to understand the parties’ contractual responsibilities in the deal. They are a signal – but not the only signal – as to who is ultimately in charge.

The Ripples: If you deny or minimize the paper in the case, you risk enhancing the importance of witness testimony and create a greater burden on your witnesses. 

  • ConductWho behaves like the party in charge? 

The general contractor often behaves as the controlling party. Jurors look to who responds reasonably to delays and changes, and importantly to who is communicating sufficiently and effectively when evaluating the parties’ conduct. In some situations a specialist or subcontractor assumes the greatest control over a specific aspect of the work.

The Ripples: Perceived unreasonable or unfair conduct in one aspect of the project (i.e. poor communication between subcontractors) often snowballs into more negative perceptions of other unrelated conduct. 

  • Compensation.  Who is being paid like the boss?

On some occasions, jurors look to the party making the most money on the project as a shortcut for who should assert the most power and responsibility.

The Ripples: Higher fees often connote greater expertise and therefore greater control while also creating a higher expectation for conduct. If you earn more but perform less, jurors will be more likely to see fault in your actions.       

  • Control.  Who is ultimately making decisions?

The owner (often the plaintiff) frequently has financial power and the final say on key decisions, leading some jurors to perceive the owner as having the most power and responsibility to oversee a successful project. Jurors look to who is asserting control and making decisions to determine who should be held most responsible.

The Ripples: Asserting meaningful control over significant aspects of the project creates the expectation that you will play the same role in all aspects of the project.    

 In our mock trial experience, jurors’ leverage responsibility among parties in a typical construction delay case in a few exemplary ways. 

Who Is Responsible? 

Mock Juror Comment

The GC because they adopted responsibility for the subs. 

“They’re in charge of the plans and it says so in the contract.”

 

The subcontractor with specialized expertise because they had the most power to anticipate problems in that niche.

The engineer should have known…that there would be a permitting issue.”  

The contractor that does not accept any responsibility and points the finger elsewhere. 

“Let’s blame this guy because he is not here anymore, blame that guy because he is dead… as long as it is not me. This whole case should be illegal.”

The owner because he/she/it dictated changes or failed to anticipate that changes would be required.

“The money always has more control.” 

Persuasive Communication To Stop the Ripples

Manage the ripple effects of jury persuasion by accomplishing four key things in your trial presentation. 

  • Demonstrate Role Control

Jurors need to see that a defendant contractor took control and responsibility for their role in the project – both for the project’s successes as well as the delays. The best presentation is often a story of differing but coordinated roles among the defendant parties – not unlike the coordinated roles of actors in a play. Even the best actor cannot astonish the audience in the story’s pivotal scene until the story is ripe for that scene’s events. A contractor or subcontractor cannot effectively perform and complete its role until the time and site conditions are right. Be clear about role first, articulating the obligations each party accepted; then demonstrate role control, delineating how you effectively performed your role as much as possible before, during and after the project goes off course.  And remember that when a contractor has contributed to a delay, it is often most persuasive to own up to its portion of the problem so jurors can look to the other parties to own up to their responsibility for lengthier or more impactful delays. 

  • Align Appropriately

As we discussed in this prior post, consider your alignment with co-defendants by focusing on agreement with other parties more than disagreement, aligning yourself with a collective narrative of the reasonable or truly unexpected sources of delay that will equate to a finding of limited or no liability rather than apportionment of greater liability. Persuade jurors with a smart sequence such as:

(1) The Project Goal;

(2) The Project Roles;

(3) The Reasonable Delays that Affected Everyone (i.e. your aligned message);

(4) Your Role Control and Performance;

(5) The Unavoidable Consequences of Delay/Change

  • Show a Deference Plan

In order to know why one party should be assigned greater responsibility than another, jurors need to understand the flow of work and how one party must defer priority (and therefore responsibility) to another in the critical path. Use a demonstrative to create a visualization of when and how other parties’ responsibility supersedes yours at key moments in the timeline. Specifically, develop a visual hierarchy of the superseding parties’ obligations in the critical path, putting your work at the literal bottom of the heap – equating to the least responsibility. 

  • Avoid (Overt) Finger-pointing

Put your house in order first, and then strategically shift focus only as necessary. If jurors perceive you as pointing fingers of blame, they will only assume that blame is justified and their job is to figure out how and where to assign it. As we described in this prior post, the best strategy is to emphasize your positive case first by showing how you exercised appropriate control and performance within your role, met your obligations, and behaved reasonably, then, and only then, will you have the credibility to suggest any of the other parties (including the plaintiff) may have failed to uphold their responsibilities. 


[i] For Earlyne’s full story as told at The Moth, see [http://themoth.org/posts/stories/the-cup-of-coffee]

[ii] Source: A compilation of Persuasion Strategies Mock Trial Research data

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Other Posts on Construction Litigation: 

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Photo credit: Ryan Thackray, Flickr Creative Commons

June 15, 2015

Make Your Jurors “Structure Builders”

By Dr. Ken Broda-Bahm: 

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My 8-year-0ld daughter is currently obsessed with a game called “Minecraft.” She is using increasing portions of her precious screen time to sign into her “worlds” in order to build and develop elaborate houses and other buildings. As I understand it, the point isn’t to rack up a high score or to “win” anything, it is just to transform a landscape by constructing things.  As she describes it, the game seems to appeal to a basic cognitive need: The need to structure. What the game promotes is similar to what the brain wants to do with any new information. The brain’s preference for order suggests that learning something is not based on acquiring new facts in a simple list-like fashion, but in coming up with a system for categorizing those facts. More important than the data, are the “drawers” we keep that data in. As we become an “expert” in any area, we gain more facts, but more importantly, we gain more structures. 

It is called the “structure-builder” theory of learning (Gernsbacher, 1997), and based on a recent ScienceDaily release, the perspective posits that “deep comprehension requires a two-step process in which learners must first identify and understand key terms and concepts and then grasp how these pieces fit together into a cohesive framework.” That idea is supported in a recent study on learning published in the Journal of Applied Research in Memory and Cognition (Bui & McDaniel, 2015). Looking at individual differences in the way our minds process learning, the study found that “providing students with illustrative diagrams showing relationships among key concepts to be discussed in a lecture can boost student learning and recall.”  This worked for all learners, but particularly for the “low structure-builders” who did not take naturally to the process of seeing those relationships on their own. This research carries a high practical value, not just to lecturers, but to litigators. This post will provide a quick summary of the research and offer some simple advice on this way of improving courtroom teaching and persuasion. 

What Is ‘Structure-Building’ and Why Do Diagrams Help? 

A team from Washington University’s psychology department, Dung Bui and Mark McDaniel, conducted the study using 144 college undergraduates who had no prior mechanical experience. Those participants listened to spoken explanations focusing on the key components of an automobile’s braking system and how they work together to slow a car. As an aid to the lecture, some were given a blank piece of note paper, others received an outline of the lecture, and a third group saw a diagram showing the relationship of the key ideas. The participants were also measured in advance on their aptitude for structure building. 

The study showed that those seeing the diagram performed substantially better than those receiving an outline or nothing. As expected, high structure builders needed this aid much less, but they still did better when armed with the diagram. For the low structure-builders, however, the assistance provided by the diagram was critical. As Mark McDaniel notes, “Some students are very good at building these mental frameworks on their own, but others struggle with the process.” Providing a conceptual diagram linking the key concepts is a way of saying, “here’s a mental framework you can adopt.” It helps learners in understanding the importance of the information as well as the relationship among discrete facts. 

What Does It Have to Do with Litigation? 

This isn’t just a lesson for lecturers in scholastic contexts. The “lectures” that emerge from either the podium or the witness box in a courtroom suffer similar challenges: Jurors need to understand it before they can be persuaded by it, and understanding requires developing a framework or a structure for the information.

And this is where lawyers might fail to appreciate the need. I think it is safe to say that lawyers are high structure-builders. If they weren’t, they probably wouldn’t have made it through law school. Based on training and daily experience, lawyers listen with an analytical ear, structuring and categorizing information as they hear it. Jurors, however, are a lot more diverse: Some are high structure builders and some are low structure-builders. Broadly convincing the whole group means reaching both. That means the case will sometimes depend on making those who don’t think like lawyers adopt that ability at least temporarily.  

The need for structure building is clear in the courtroom. Jurors need to not just take in information, but to see the relationship of one piece of evidence to the next, and to understand the implications. They need to understand the answer to questions like, “If this individual fact is true, then how does that support this party’s overall point?” Lawyers can too often make the mistake of taking those connections for granted and not making it explicit. Jurors need not, “just the facts, Ma’am,” they also need the categories and connections that help them get the point and follow the whole story.

So here’s a reminder for lawyers: Make those connections clear, blatant, obvious, explicit, and repeated. One way to do that is to provide a diagram prior to the evidence. As McDaniel notes, “The key takeaway here is that providing learners with supportive material in advance of the lecture helps them build a comprehensive model of how each part of the system relates to the next.”

An Example, Please? 

Sure. Based on the image and the title for this post, one concern I had was that readers might think that this is a post about construction litigation. Of course, it’s a post about all trial messages, but I’ll meet any such reader halfway and make my example focus on construction litigation. 

So imagine that the plaintiff general contractor (Jones Inc.) is suing the owner/developer (SmithCo) for losses caused by several sources of delay — a common scenario. A very simple conceptual diagram for the GC’s arguments might look something like this: 

Structure-builder

Of course, that is a very basic distillation of the company’s core message, but it also means that it is very easy to create. It could even be written onto a flip chart during opening statement, and then left up. That way, when jurors are hearing the attorney move through the necessary minutiae on dates, deadlines, plans, bills, and change orders, they have that clear visual reminder of how it all fits together. 

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Other Posts on Organization: 

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Dung C. Bui, Mark A. McDaniel (2015). Enhancing learning during lecture note-taking using outlines and illustrative diagrams. Journal of Applied Research in Memory and Cognition, 2015; 4 (2): 129 DOI: 10.1016/j.jarmac.2015.03.002

Gernsbacher, M. A. (1997). Two decades of structure building. Discourse processes23(3), 265-304.

Image credit: 123rf.com, used under license

July 15, 2013

Note the (Small) Difference a Female Jury Can Make

 By Dr. Ken Broda-Bahm: 

2532147893_67c86fa97f_b
Over the weekend, the jury in the George Zimmerman case acquitted the neighborhood watchman in the fatal shooting of Trayvon Martin, evidently concluding that the prosecution failed to disprove the Defendant’s self-defense claim under Florida law. While there were numerous issues driving interest in this trial — racial profiling, concealed carry laws, and the stand-your-ground defense among others — the jury itself carried a special source of fascination for court watchers: It was an all female panel. Rewinding back to the start of the trial, you might recall that this fact generated a fair amount of speculation. Orlando defense attorney Diana Tennis, for example, was quoted in the New York Times suggesting that the women would be more sympathetic to the loss of a child, an association that was echoed widely in the media. Never mind that this maternal status (most had children) could have also made them more sympathetic to losing a child to prison, the scant information on the jurors generally made gender into a commonly referenced filter as the facts emerged in the case: How would the women respond?  

The question is: Did this gender homogeneity make a difference in the jury room? The answer, it probably didn’t. As Vanderbilt sociology professor Holly McCammon wrote for CNN at the trial’s start, “The answer is likely to be that the all-female jury will have little or no effect on the ultimate decision in this case. Research shows that no one juror trait, including gender, is an accurate indicator of how a juror will vote.” And it is true that the attitudes jurors carried — on race, crime, guns, law enforcement, self-defense, and a host of other issues — likely had a far greater effect on the ultimate decision than the jury’s XX or XY chromosome configuration. At the same time and more broadly, that isn’t to say that an all-female jury makes no difference. There are a few ways jurors might see the case differently, and especially deliberate differently, due to gender. Since the anonymous Zimmerman jurors aren’t talking yet, I thought I would write about a few of those differences. 

First, It’s a Small Difference

The coverage throughout this trial was infused with speculation on how the women might have been reacting as each piece of information came out. For the most part, these questions sprang from outmoded and essentialist assumptions on women’s “nature” that are best set aside in 2013. Sure, you could find women — probably many women — who would embody the stereotypes of greater maternal sensitivity and a lessened tolerance for deadly force. But as often, you would find women to whom the stereotypes don’t apply, or women who would be more than able to set them aside in a court of law. One thing we can be fairly confident of: The women in that jury room did everything in their power to center their deliberations and ground their verdict on law and evidence, not sentiment or sympathy. And the same would likely have been true if they were all men. 

The research field is littered with failed attempts to find reliable differences based on gender, and other demographic traits for that matter. Fulero & Penrod (1990), for example, reviewed the research on the predictiveness of demographic traits including gender and found that at best only modest predictors of verdicts. More recently, Lieberman (2011) wrote that even these modest associations are “still murky after 30 years.” That is why it doesn’t make sense in a voir dire context to do too much pondering on the influence that a juror’s gender will have. Even to the extent that there are reliable differences in the population at large, you are still stuck with those who answer the call on a given day, and within that set, what matters is each person’s experiences and attitudes. It is best to take whatever time you would have spent thinking about gender and devote that time to asking about attitudes and experiences. 

But It’s Not No Difference

While gender differences within a jury aren’t dramatic, nor should they be determinative in a voir dire context, they are nonetheless interesting. The small differences that we have seen in some cases, especially those relating not to individual traits but to leadership and group dynamics, are still useful when it comes to the task of analyzing what might’ve gone on in the privacy of the deliberation room. Based on the research, I’d point to a couple of differences that we might expect when we look at a homogeneous female group such as the one that acquitted George Zimmerman. 

First, a female jury will obviously have a female foreperson. That truism is a point worth making only because research has shown, even recently, that women are less likely to serve as the jury foreperson. When the group is mixed, as it generally is, males have a statistical edge in becoming foreman (Cornwell & Hans, 2011). When an assertive male isn’t available, women fill that role in a way that has at least some effect on the way the group is managed. Women as a group tend to exhibit more of the leadership styles associated with effective group performance (Eagly, 2007). This may partially explain why the Zimmerman jury was able to a) signal an interest in reviewing all the evidence by asking for an inventory, while b) finishing their task with a speed and efficiency that surprised many observers. 

Second, a female jury is more likely to find consensus. As I’ve written previously, there is a definite process advantage within groups that are composed mostly or entirely of women. Woolley and Malone (2011) looked at group performance, originally focusing on the cumulative IQ levels of group members as a predictor of better group performance. What they found instead is that groups with higher numbers of smarter individuals didn’t do better, but groups with more women did. This was a consistent result and a linear one as well, meaning the more women the better. The reasons, the researchers believe, have to do with the higher levels of “social intelligence” in groups of women: It leads to fewer attempts to dominate and more attempts to find shared ground. So if commentators were worried about a hung jury and the need for a retrial in the Zimmerman case, we now know they need not have. Along with the bonding effect of sequestration, the all-female panel was likely an important part of what led this jury to a unanimous and quick verdict. 

While the Zimmerman case will no doubt continue to generate debate on racial profiling and the wisdom of concealed carry and stand-your-ground laws, the verdict has to be chalked up as a vindication in some ways for the Defense. If the jury was talking, my suspicion is that they would be repeating the main Defense themes, namely that no matter how tragic the result, their job was to keep the burden of proof on the prosecution, not to connect any dots, and to remember that self-defense means self-defense at all levels – for both second degree murder and manslaughter. Now, court watchers can reasonably disagree over the jury’s verdict at this point. But from the perspective of effectiveness at least, defense attorney Don West can maybe be forgiven for that bad joke in opening statement.  

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Other Posts on Gender: 

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Cornwell, E. Y., & Hans, V. P. (2011). Representation Through Participation: A Multilevel Analysis of Jury Deliberations. Law & Society Review45(3), 667-698

Eagly, A. H. (2007). Female leadership advantage and disadvantage: resolving the contradictions. Psychology of women quarterly31(1), 1-12.

Fulero, S. M., & Penrod, S. D. (1990). Myths and Realities of Attorney Jury Selection Folklore and Scientific Jury Selection: What Works, The. Ohio NUL Rev.17, 229

Lieberman, J. D. (2011). The Utility of Scientific Jury Selection Still Murky After 30 Years. Current Directions in Psychological Science20(1), 48-52.

Luppi, B., & Parisi, F. (2012). Jury Size and the Hung-Jury Paradox SSRN Electronic JournalDOI: 10.2139/ssrn.1980387

Woolley AW, Chabris CF, Pentland A, Hashmi N, & Malone TW (2010). Evidence for a collective intelligence factor in the performance of human groups. Science (New York, N.Y.), 330(6004), 686-8 PMID: 20929725 

Photo Credit: Mrkathika, Flickr Creative Commons

January 19, 2012

Add Another Pair of Eyes to Your Case Assessment

By Dr. Ken Broda-Bahm:

Second eye_wallyg_fcc
Leave it to the engineers.  While we all have our subjective methods of estimating our odds in litigation, in the field of construction litigation, the act of handicapping has apparently been raised to a level of mathematical precision.  Computer modelers have found a way to input known factors and predict construction trial outcomes with a success rate of 83 percent!   I’m not sure if it is possible to hire those modelers or not, but the general approach tells us something important about case assessment in all contexts:  Instead of giving in to your trial team’s group-think and confidence-boosting habits, give weight to multiple sources of information and strive for the most objective indicators of your chances in trial. 

This post takes a quick look at the little known (to me at least) practice of mathematical case prediction in the construction litigation field, before turning to the more general question of how litigators should strive to get an unbiased sense of their chances for success or failure in trial.  Specifically, I take a look at some new research on how attorneys use, and misuse, the second opinions that are so commonly sought in litigation.  Apparently, asking another lawyer what they think of your case doesn’t work as well when you give that second opinion less weight than your own.

Case-Based Reasoning in Construction Litigation

In the early nineties, academics in the engineering field began applying the principle of “Case-Based Reasoning” to litigation outcomes.  Chances are, you are already familiar with case-based reasoning, in general at least, from the methods applied in law school:  You learn the principle by considering a case example, then another case, then another case, until a rule emerges that transcends the individual circumstances.  At that level, it is just a way of reasoning by analogy.  But when computers are added to the mix, case-based reasoning becomes a tool of artificial intelligence. 

The researchers apparently thought of litigation as just one of the many unknowns that can affect a construction job — like the chances that a raw materials shortage will holdup the delivery of your drywall.  Applying to litigation the same processes of quantitative risk assessment that were applied in other construction contexts, they built predictive models.  David Arditi and Onur Tokdemir (1999), for example, looked at 43 input features (aspects about the case) and a total pool of 114 cases in order to predict outcomes in Illinois circuit courts.  At first blush, experienced litigators are apt to say, “well, that will never work” because cases are so varied.  Arditi and Tokdemir, however, found that there is a certain commonality to construction cases, that meant that in 83 percent of the cases the mathematical model was able to predict the verdict at trial. 

Not a bad result, and the example has been followed by some other researchers as well.  The lesson that applies beyond the data-driven models and outside the field of construction litigation is this:  Consider as many factors as possible and weigh them objectively as you can. 

Second Opinions in All Litigation

One area where that lesson applies more commonly is in the collegial practice of asking a colleague for a second opinion about a case.  One recent study (Jacobson et al., 2011) discussed in the Wall Street Journal’s Law Blog, looks at lawyers’ and law students’ ability to predict jury verdicts before and after seeking second opinions from study “partners,” in the form of other lawyers making the same prediction.  It turns out that when given access to another’s predictions, our accuracy improves, even when the other person has no more information than we do.  However, the rub is in the basic human tendency to trust our own predictions more than the predictions made by others.  Participants, especially the experienced trial attorneys, tended to give less weight to predictions made by others, and in the process, failed to benefit from the aggregation. 

There are a few other findings from this study that are useful for attorneys trying to get a handle on their chances in trial: 

  • The accuracy of predictions increased as the size of the group making the predictions increased.  So get lots of opinions — from the team, from colleagues, from consultants, from paralegals and secretaries, and from the fellow running the A/V at the mock trial.  On our projects, that is Don Yost, and he is generally dead-on. 
  • A requirement in the study to reach agreement significantly improved the accuracy of the predictions.  So, when you seek other opinions, instead of just hearing someone out and internally saying, “Okay, you have your view and I have mine,” take the time to discuss it and to see where you can agree. 
  • You won’t always agree, but take care in discounting the opinions of others.  In the study, fully 53 percent ignored their partner’s opinion all together.  On the whole, that reduced the accuracy of their predictions.  The best predictions occurred when participants treated their partner as an equal, giving their opinion 50 percent weight.

Our predictions of an individual case’s chances, if and when it makes it to trial, are obviously a large part of the assessment driving settlement decisions.  Given the reality that most cases settle, anything that improves our ability to make realistic and reliable case assessments helps at all stages — not just in the walk up to trial, but in the earliest stages of deciding what cases to develop and where to spend resources. 

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Other Posts on Case Assessment:

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ResearchBlogging.org Arditi, D. & Tokdemir, O. (1999). Using Case-Based Reasoning to Predict the Outcome of Construction Litigation Computer-Aided Civil and Infrastructure Engineering, 14(6), 385-393 DOI: 10.1111/0885-9507.00157

Jacobson, J., Dobbs-Marsh, J., Liberman, V., & Minson, J. (2011). Predicting Civil Jury Verdicts: How Attorneys Use (and Misuse) a Second Opinion Journal of Empirical Legal Studies, 8, 99-119 DOI: 10.1111/j.1740-1461.2011.01229.x

Photo Credit:  Wallyg, Flickr Creative Commons

February 14, 2011

When It Comes to Your Greatest Case Weakness, Steer Into the Skid

By: Dr. Ken Broda-Bahm –

Skid

 

Broda_Bahm_Ken_88_120

With our current nationwide surplus of wintry weather, it has become a familiar feeling:  The car you are driving loses traction and starts to slide.  Your every impulse is to wrench the steering wheel hard in the opposite direction.  Then the voice of your long-ago high school drivers’ ed teacher enters your brain: “No,” he says with an unnatural calm that only high school drivers’ ed teachers and Buddhist monks are capable of, “first steer into the the skid, regain traction, and then steer back onto the road.”  And in this case, acting against impulse and doing what feels counter-intuitive actually works.

As you might have suspected, there is a parallel in creating a litigation strategy when your case includes some slippery weaknesses.  Your every impulse will be to steer in the direction of your strengths, but according to both experience, as well as recent research, your strategy is best when it actually orients toward your weaknesses, acknowledges them, puts them in context, and potentially turns them into strengths.  Jurors are more likely to feel that their own perceptions are validated, more likely to see you as credible, and as a result more likely to pay attention to your advocacy when you react to a problem by at least initially steering toward it.  Continue reading

July 19, 2010

Build A Persuasive Construction Case

by: Dr. Shelley Spiecker

Spiecker_88_120 Our research consistently indicates jurors, arbitrators and judges evaluate cases through two perceptual filters, or lenses.  The first is a filter of “power” and the second is a filter of “choices”.  Specifically, they seek to know which party had the most power to alter the outcome of the dispute, and which party had the most choices.  Our pre-trial research consistently demonstrates the more powerful party bears the burden of persuasion in the courtroom.  Furthermore, social science

research documents that the more choices a party is perceived as having, the more responsibility is attributed to that party and the more likely decision-makers are to perceive the consequences to the party with fewer choices as being damaging. Continue reading

January 6, 2010

Just the Instructions, and Nothing But the Instructions: Increase the Salience of Jury Instructions

 

by: Dr. Shelley Spiecker

 

Spiecker_88_120

Evidence shows that false documents were notarized by employees and submitted to a state regulatory agency.  Evidence also shows that record-keeping was inaccurate; nevertheless, these matters cannot be addressed due to the parameters in the jury instructions. (Female, 55 year-old)

 

This quote, spoken by a juror after serving in a two month oil and gas production trial, typifies feedback I am receiving from jurors in a wide array of different cases in venues across the country.  While jurors are troubled by evidence they see at trial, and possibly even want to find against a defendant, they are adhering to the confines of jury instructions like never before. Continue reading

December 14, 2009

Remember That Your Juror is a Consumer First

by: Dr. Ken Broda-Bahm

Broda_Bahm_Ken_88_120 Faced with conflicting testimony in a fictionalized construction case, a recent Denver mock jury had to decide whether it was more likely that an owner created unworkable conditions, or that a contractor had dropped the ball.  Their answer — that the contractor had indeed dropped the ball — was buttressed not so much by the factual timeline or by expert testimony, but by jurors filling in the gaps with illustrations drawn from their own lives.  “In my personal and professional experience,” one juror opined, “contractors will commit to a date but they never meet it.  They commit to a budget amount but they never meet it, it always goes over.  I think that is just the nature of the beast…”  As it turned out, there was nothing terribly individual about that experience.  Other jurors quickly chimed in with stories about unreliable plumbers, arrogant electricians, and careless carpenters.  In short, nearly every juror had at least one experience involving a contractor who failed to meet expectations.  Particularly in construction cases, but more broadly in any case involving a service provider relationship, jurors can’t help bringing in their own individual experiences as a consumer. Continue reading

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