Category Archives: Dr. Kevin Boully

April 28, 2016

When Apologizing, You Got a Lot of ‘Splaining To Do

By Dr. Kevin Boully:

Lucy and Desi2
Donald Trump. Does not. Apologize. Even after a raft of behavior that would oblige many public figures to launch a multistage public apology campaign, Mr. Trump stands pat. Pundits and media members call for apologies after comments on a variety of subjects. Many criticize their absence as the clamor goes unanswered. Yet, we cannot deny the rebel appeal in rejecting a cultural norm, especially the now-normalized – researched, categorized, and prescribed – behavior of public apology. While rebellion is part of the appeal, some argue apology weakens a political position, and Mr. Trump is not alone. Comedian Tina Fey recently declared, “There’s a real culture of demanding apologies, and I’m opting out of that.” Alas, could this be the one and only thing that Donald Trump and Tina Fey share in common?

More seriously, have Americans’ expectations for apology become insufferable? Are demands for apologetic and corrective behavior insatiable? Does genuine apology still have a purpose, particularly in legal disputes? In this post I share two ways to use new research on effective apology in today’s culture so tired of meaningless apology by addressing the known, the new, and the what do you do.

 The Known

Our previous work on complete and effective apology and the communication research that informs its application in litigation, articulated four critical pieces of effective apology in litigation – The Four Rs. Past and recent research supports the conclusion that each of these four components is a key piece of an effective apology. 

  • Remorse. We are deeply sorry for the harm to the Plaintiffs in this case.
  • Responsibility. We have always strived to make the best and safest products possible, and we take full responsibility for the mistakes we made.
  • Repair. We understand there are consequences for our actions and are willing to make this situation right.
  • Reform. We have already changed our practices and implemented seven additional safety checks, and we intend to see that this never happens again.

The New

Brand new research sheds fresh light on the topic. A recent study (Lewicki, Polin & Lount, 2016) led by researchers at Ohio State University, summarized on Psyblog and Upworthy, considered six components of an apology and asked people to rate the components and combinations that were most effective. The results suggest the addition of two components described below with the researchers concluding that Remorse, Responsibility and Explanation are the three most important components while Requesting Forgiveness is the least critical.

  • Explanation. We had a comprehensive design, testing, and manufacturing protocol and there was a failure in our process. We installed on some vehicles a device that allowed our vehicles to pass EPA tests yet exceed EPA regulations during normal driving conditions. This was a grave mistake.
  • Request Forgiveness. We understand we have to earn back your trust and we ask for your forgiveness as we make our best efforts to regain the loyalty of so many.

The What Do You Do

So what does the research tell us about communicating apology in litigation? Two things.

(1) You Got a Lot of ‘Splaining To Do

Explanation is a critical addition as not only one of the six components that comprised the most effective apologies but one of the three most critical components to any apology. It is not an excuse (which undermines the apology) but an articulation of what happened and why. It matters in litigation because it is this step above all others that allows an opportunity for candor and authenticity that can break through the expectations of a judge, juror, arbitrator or mediator that your apology is just like all the others. Why?

(2) Derive Authenticity From Narrative Specificity

The Explanation step affords an opportunity to demonstrate your genuine feelings through a case-specific articulation of what happened that dovetails directly with your overall case position. This is storytelling (nonfiction, of course) that should not only support your overall position but, within the bounds of reasonable evidence, should also communicate your authentic values that provide your judge, jury, or arbitrator a sense of what makes your case not only persuasive but also redeeming.

So how about the six steps in action, illustrating the power and importance of the explanation:

I’m sorry. America’s apology culture went too far, and we all have some responsibility. It was so important to manage public impressions and protect the image of who we are that we diluted the very thing we were trying to protect. We made apology inauthentic. We won’t let it happen again and in fact, we have fixed it because today apology is unnecessary, improper, a sign of weakness. Please forgive us the last 15 years, America. Please forgive us.

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Other Posts on Apology: 

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Lewicki, R. J., Polin, B., & Lount, R. B. (2016). An Exploration of the Structure of Effective Apologies. Negotiation and Conflict Management Research9(2), 177-196.

Photo credit: Lucy Gray, Flickr Creative Commons

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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

March 27, 2014

Do Not Let Silence (or Compromise) Deafen Your Defense

By Dr. Kevin Boully: 

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“Terrible things happened.” On your client’s watch. Do you know what you want to say in response? 

For the last few weeks, including just yesterday, GM has been front-page with ongoing public communication driven by its February 25th recall of part failures linked to 12 deaths. President Alan Batey apologized for the carmaker's ignition switch issues and CEO Mary Barra has spoken on video a mix of contrition, responsibility, and public relations lingo that accomplished some of the goals of a public apology. 

GM’s admission of responsibility is unequivocal – “something went wrong with our process in this instance and terrible things happened” – prompting the assumption that GM is staking out a settlement strategy rather than considering a defense of lawsuits that may be irreparably harmed by the company’s highly public apology. But is GM’s strategy so obviously intended to manage perceptions that it will fail?  Is GM’s compromised communication going to compromise its defense?

  

We’ve said silence in the face of public scrutiny on a company can sink public perceptions and create bias in the courtroom. Can a compromised message serve too few by mastering none? In this post we consider some recent research on the benefits of not apologizing for a transgression and reiterate the case for litigation communication that avoids silence and compromise by knowing your purpose. 

What Do You Really Want to Say? 

Maybe it feels better not to say what your audience wants to hear. A recent study (Okimoto, Wenzel, Hedrick, 2013) on the effects of apologizing shows that, in some instances, refusing to apologize after having done wrong can have greater psychological benefits than apologizing, including greater self-esteem, increased feelings of power and control, and increased feelings of value integrity. We are empowered because we choose not to say we’re sorry for what we’ve done. Those feelings of empowerment create real psychological tension that affects communication: Does it feel better to apologize or to stand firm? Or somewhere in between?

Jurors and judges continue to take a critical eye to litigants who stubbornly resist taking responsibility and admitting mistakes for what jurors and judges see as obviously the litigant’s fault, or worse, attempt a fake or fatal apology that favors the opposition. And jurors in particular want to see, hear, and feel a genuine response that must include corrective action. So is GM’s balancing act  a function of serving too many psychological and practical masters or does GM know exactly what it's doing? 

Know Why and Say What

GM does not appear to be admitting to anything in public communication that it would not be forced to admit in a courtroom. The purpose is not to avoid liability if the evidence of liability is unavoidable.  

(1) Know exactly what you’re trying to achieve. In addition to the four key elements we have presented before, an effective response to public scrutiny while in litigation should always be steered by an honest and unqualified assessment of what you want your communication to achieve. If you want to avoid additional risk of liability, understand that silence may not be the communication you need. If you want to moderate public anger and encourage compromise, understand that admitting fault in favor of managing public perceptions may be highly effective. 

(2) Avoid compromised communication. Actions are the proof of intent. Even if your purpose is to achieve compromise, that purpose is rarely well-served by mere words that clearly serve more than one master. While balance and sincerity are both key goals of an effective apology, the public is increasingly savvy and sophisticated when it comes to consuming and interpreting strategic communication. They see the duality in a compromised message, and they want to feel they are a respected audience that companies and their attorneys are not simply trying to manipulate. Avoid communication that tries to accomplish too much and fails to show the action behind the intent you’re communicating. 

We told you we fixed the problem, and we have the actions to prove it. In the last few months we have implemented an entirely new quality control system and, in the test stages, we were able identify a 25 percent increase in quality alerts. We have a system and it is working. 

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Other Posts on Apology: 

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Photo Credit: Patrik Theander, Flickr Creative Commons

September 16, 2013

Persuade Jurors You Play Fair in the Patent Sandbox

By Dr. Kevin Boully:

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Apple unveils its new iPhone 5s and all of its technological advances, including being the first Smartphone featuring a 64-bit chip, and within hours Samsung announces the next generation of its biggest Smartphone will also feature a 64-bit chip. My young nephews jump off the boat dock and into the lake over Labor Day weekend. One of them does a new “trick” and splashes into the water followed within moments by one of the other two boys trying the same trick if not something even more amazing that might create an even bigger splash, shower the innocent adults, and up the ante on the entire game. There may be few things more inherent in human nature than competition.

Whether it’s a patent dispute like the Smartphone wars or something less contentious, perceptions of litigants’ competitive behavior matters. In this post, we recommend ways to address jurors’ perceptions of competition in patent infringement litigation, including a few ideas from our new book on persuading fact-finders in patent litigation entitled, Patently Persuasive: Strategies for Influencing Judge and Jury.

1. Give Jurors a Benchmark for Fair Competition Compared with Unfair Competition

While the verdict form will not ask jurors to determine if the accused infringer (or the patent-holder, for that matter) competed fairly or unfairly, jurors will be thinking about and asking one another that very question. Jurors may see patents themselves as unfairly keeping competitors out of the sandbox and lean in favor of the accused infringer simply because they believe the patent holder is using patents to unfairly exclude others from the market. At the same time, jurors will look hard at both parties’ behavior to determine if either took any action that is unfair or anticompetitive. 

Recommendations:  While a trial theme focusing jurors on the importance of fair competition can be effective (we have recommended it and have seen it work), jurors often prefer to rely on the evidence to determine on their own if your opponent’s actions constitute fair or unfair behavior. Help them understand what crosses the line by thoughtfully providing a clear picture of fair competition and the reasons it is fair so they can more easily identify conduct that goes beyond what is fair. 

For instance, patents are fair and promote better competition in X industry because they protect innovation and incentivize people and companies to always pursue new ideas and try to make things better for consumers. This holds true right up until a patent holder chooses to use patents for a different purpose, such as creating a temporary monopoly or boxing its competitors out of the market by trying to persecute others not actually practicing its patents. 

2. Show Jurors How You Earned It

Jurors in patent cases care deeply about balancing their verdict decisions with their perceptions of what patent holders and accused infringers have earned through their own toil and sweat. Jurors resist a verdict that results in a windfall for a patent holding plaintiff who has not worked hard (or invested resources) to earn its market position or an accused infringer who has taken the easy road to a product idea by looking to the market for inspiration rather than developing its own ideas and spending its own money.   

Recommendations:  As a patent holder, be sure to tell a complete invention story including the people, hours, dollars, materials, and other resources utilized in the process of developing, researching, testing, and bringing to market a new and patentworthy idea. Use demonstrative graphics to build a visual case for damages by showing jurors what went into (and therefore what should be returned for) building a novel idea that has been unfairly infringed by a competitor who chose not to do the work and is not deserving of the benefits of the hard-earned patent elements. 

For more recommendations and detail on dealing with jurors’ views of competition in patent disputes, and much more on persuasion in patent litigation, see Karen Lisko and Kevin Boully’s book entitled Patently Persuasive: Strategies for Influencing Judge and Jury.

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Other Posts on Persuasion in Patent Disputes

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Photo Credit: 123rf.com, Used under license

May 27, 2013

Keep Jurors Focused on the Difference Between Past and Present Knowledge

By Dr. Kevin Boully:

 

Concussion - Football -

Did you believe in 2001 that a concussion could cause significant future health problems? Do you believe it today? If there is a difference, it is probably due to the attention brought by current trends in concussion litigation.  

Reports and concerns over the health risks related to concussion injuries in all levels of sport seem to reach new heights with every 24-hour news cycle. Managing concussion risk in recreational activity is now a public health issue and a litigation hotbed. Public officials and lawmakers are involvedi with new legislation proposed last week. Former athletes injured playing sports are looking for answers. Sports leagues, teams, coaches, school districts, governing organizations, product makers and more are no longer on the sidelines – they are defendants. When the family of former professional hockey player and known “enforcer” Derek Boogaard recently filed a wrongful death lawsuit against the National Hockey League (NHL), the NHL joined the National Football League (NFL) among a host of others being sued by former players making a variety of claims from failure to warn of concussion risks to negligence and more.

Drawing from our own national study conducted late last year, this post will hit upon public perceptions of concussion risk and impact, while also sharing a few tips for keeping jurors from applying current attitudes and knowledge to decisions and technologies deployed in the past.
 
Perceptions of Concussion Injury

Our 2012 National Juror Survey focused on potential jurors’ perceptions of concussion injuries and concussion litigation, finding that most surveyed in 2012 saw a severe concussion as likely to cause future health problems, 32 percent reporting that high school athletes are most vulnerable to health problems related to concussion and 30 percent reporting that professional athletes are most vulnerable.

Concussion health problems Graph 

 

 

 

 

 

 
Persuasion Strategies National Juror Survey (2012)
(Click to see full-sized chart)

The wave of concussion litigation highlights the influence of hindsight bias, a critical aspect of litigation decision making we have addressed in previous posts here and here. The authors of a recent study of hindsight bias research (Roese & Vohs, 2012) put it clearly: “Consequences of hindsight bias include myopic attention to a single causal understanding of the past (to the neglect of other reasonable explanations), as well as general overconfidence in the certainty of one’s judgments.”ii When jurors, judges and arbitrators – human beings all – make decisions about the foreseeability of past events (i.e. should leagues and coaches and organizations have known that players could be harmed by not sitting out long enough after concussion?), hindsight bias can play a central role. Does the fact that we now believe that concussion can cause long-term health issues mean that it was widely known in the 1980s,1990s, or even 2000s? Of course not. Does the fact that we now know a great deal about how concussions affect the human brain mean we should have known years ago? Again, no. But jurors are now being asked more than ever to evaluate litigants’ past knowledge and understanding of concussions while living in a present environment where news, reports, awareness and understanding is at an all-time high and (rightfully so) increasing every day.
 
Address Hindsight Bias
 
More and more knowledge about concussion and its consequences can only help prevent future injuries. Looking backward in time, however, requires attention to understanding what we knew and what we did not to avoid our own cognitive limitations. Researchers suggest “that considering the opposite may be an effective way to get around our cognitive fault, at least in some cases. When we are encouraged to consider and explain how outcomes that didn’t happen could have happened, we counteract our usual inclination to throw out information that doesn’t fit with our narrative. As a result, we may be able to reach a more nuanced perspective of the causal chain of events.”iii Here are some ways to keep jurors focused.  
   
Keep Jurors in the Here and Now
 
Model in voir dire how you must make do with only what you know in that moment about prospective jurors, about the judge, about the testimony, and that the future may turn out differently than we all expect. Ask jurors about their perceptions of that reality. Ask them about Monday Morning Quarterbacking and emphasize that the remedies include living in the present and relying only on what you know at a given moment.

Use time-restricted visuals (including but not limited to timelines) to focus jurors on the risk information that was known at the time decisions were made, and encourage jurors to see the evidence as the defendant perceived it in the real-world.

 Level the Playing Field

Openly endorse your opponent at trial. Make the strategic decision not to aggressively attack their credibility. Instead, make sure jurors see them as active consumers of medical care and medical knowledge, with the power and ability to know much more than the average juror about the health risks of their sport.
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Related Posts: 
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i See for instance the Testimony of Jeffrey Kutcher, M.D. on “Legal Issues Relating to Football Head Injuries, Part II,”  before the United States House of Representatives Committee on the Judiciary.  January 4, 2010.  

Illustration by:  Pam Miller of Persuasion Strategies  

 

August 20, 2012

The Worm in the Apple-Samsung Trial: Treat Patent Jurors Like the Consumers They Are

By Dr. Kevin Boully, with Dr. Karen Lisko:

1

Inside the shiniest of apples wiggles the risk of a worm. We learned as children, when reading our first books and watching cartoons, that something might be lurking beneath the apple’s surface. As adults, we rarely give it a second thought. We take a big bite and go back to swiping our smartphones and updating social media. 

A more consequential risk lurks beneath the surface in the ongoing Apple v. Samsungpatent trial of the century.” Now in its third week in front of a nine-person federal jury, both Apple and Samsung have staked out positions around one of the most important dynamics in patent jury trials — jurors’ perceptions of how patent protection affects them as consumers. Patent trial strategy should address the fact that jurors’ foremost concerns – and a powerful and quiet motivation for their decisions – often center on how each party’s position influences them as credit card-carrying “buyers” in the market for ever-evolving techno-gadgets. In this post, we react to reports on the first two weeks of the Apple v. Samsung trial with a particular focus on the broader lessons for persuading patent jurors. 

Can you really patent the rectangle? 

Patent jurors can struggle with the bounds of patentability. While deference to the United States Patent & Trademark Office is a prominent force for most patent jurors, jurors’ own evaluations go beyond whether the patented idea seems novel or not. They also include the evaluation of whether it is fair or unfair for a company to claim a patent on something that is intended to legally restrict competition with the claimed invention.  Jurors, like some critics, may view such a patent holder as taking advantage of patent laws, and may speak the exact words one writer used: “There, all packaged up as design patents are drawings of rectangles.” 

Recommendations: Persuasion Strategies’ National Juror Survey results find that more than two-thirds of jury-eligible Americans perceive the patent process as helpful to competition. If you represent the patent holder, constantly remind jurors how the prospect of patent protection motivated your company to develop new ideas and to innovate in a way that benefits consumers through increased options and marked improvements. Be sure jurors understand the purpose of a design patent, then consistently endorse the USPTO and its thorough gatekeeping process for evaluating patent applications and awarding innovation – innovation that includes your unique design for what seems like a well-known concept. Also remind them that it is your responsibility to protect your client’s patent through litigation. Many jurors believe the USPTO is the enforcement authority.

What do consumers really want? 

Apple claims Samsung “slavishly” copied its design patents in creating smartphones and tablets intended to compete with Apple’s iPhone and iPad products. Samsung responds (in part) by arguing its designs were a measured response to benchmarking research identifying what smartphone consumers wanted.  If jurors are thoroughly convinced by both arguments, they still may lean in Samsung’s favor because a finding against Samsung would limit consumer options and result in a functional monopoly for Apple. 

Recommendations: Jurors spend a substantial amount of time talking about themselves and how a decision might impact them in the “real world.” Do not let this decision making filter silently influence jurors’ decisions when it could be addressed directly. As an accused infringer, make the overt argument that consumer options matter, but do not stop there. Tie this appeal directly to a patent’s intended purpose of fostering and protecting innovation that people can use. Ask jurors to contemplate the world without competition in the plaintiff’s product market.  Ask jurors to contemplate the plaintiff’s motivation for innovating new products if there are no others who can make a competing product. Ask jurors to contemplate their own array of choices if patents are allowed to restrict competition. Then, ask if that imagined world is consistent with the goals of America’s patent process.

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Other Patent Posts: 

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 Photo Credit: Andy Langager, Flickr Creative Commons

February 2, 2012

When Your Case Follows a Bellwether, Prepare Jurors to Hear only Part of the Story

By Dr. Ken Broda-Bahm and Dr. Kevin Boully: 

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The first bellwether case in Toyota’s “Unintended Vehicle Acceleration” litigation has just been selected by a judge in California.  To some, that may come as a surprise, since it might have been assumed that these cases would have deflated after the National Highway Traffic Safety Administration (NHTSA) concluded a year ago that there is no electronics-based cause.  Then, just last week, an exhaustive investigation by the National Academy of Sciences again failed to find a causal link between vehicle electronic throttle-control and sudden acceleration.  Yet still, it appears, the cases have continued like…well, like some kind of unstoppable vehicle.  That suggests there may be more to the story than what we’re seeing in the press, and we will have to wait on the trials to find out.

The interesting point for me at this stage is the emerging “bellwether” structure.  The term originally refers to a sheep that leads other sheep by virtue of a bell around its neck.  In litigation, however, the bellwether structure is increasingly used to select a specific case, or a few cases, from among a much larger group of similar cases to be tried first in order to resolve some of the broader issues in the litigation.  A finding of liability and general causation, for example, might be established for all plaintiffs, leaving it to the rest of those in the group to just prove specific causation and damages.  The practical effect of a bellwether structure is generally to encourage settlement, but for the vast majority of cases that are “nonbellwether,” it means that there is at least some chance to go to trial with a number of issues already established by another jury.  That is undoubtedly an advantage for plaintiffs, yet it also raises some interesting communication challenges.  Is it possible to fully motivate and persuade these nonbellwether juries if they are only hearing part of the story?  Does it have an effect on the damages awarded?  This post looks at the relevant research, and makes a few recommendations for cases within a bellwether model. 

The Toyota Bellwether

The way a case becomes a bellwether is usually a process of compromise.  The plaintiffs want to try the best claims first, and the defendants want to lead with the worst claims.  Or, more charitably, both parties want to try the cases that will give them the greatest insight on the most important issues coming down the road, they just tend to have different views about which cases those are.  In the Toyota litigation, however, the choice was to draw a wild card:  Los Angeles County Superior Court Judge, Anthony Mohr, chose from among the 100 state court cases one that was offered by neither the Plaintiffs nor the Defendant.  He picked the case of Peter Uno, who alleges that his wife, Noriko, died as a result of a defect in her 2006 Camry that caused it to accelerate to 100 miles per hour before crashing into a telephone poll.  The judge’s off-the-menu choice was motivated by this specific Plaintiff’s own failing health, and the trial may start as early as September 2012, putting the state court cases well ahead of the February 2013 date for federal multidistrict litigation. 

The process from here, and exactly which issues are entitled to preclusive effect in subsequent trials, has not yet been made clear in the press that we’ve seen, but one thing is clear:  All eyes in this litigation will be on Mr. Uno’s case.  The Plaintiff will try to focus on evidence of Toyota’s lack of candor, and the $16 million dollar fine levied by the NHTSA.  Indeed, a Toyota executive’s recent admission that the company “avoided direct confrontation of the truth” in responding to inquiries, might also play a role.  If that information is successful in leading the jury down the path of liability, it may also elicit a certain level of anger.  And we know that anger plays a role in motivating damages.  So if future trials are following this bellwether precedent, will future plaintiffs benefit from this sense that “we’ve already won…we’re just here to collect,” or will they lose out because the juries are not hearing about the bad acts that drive juror anger? 

The Structure’s Effect on Nonbellwethers

Unfortunately, there isn’t yet a definite answer to that question, because we are lacking direct research on the effects in trial when issues are decided by a previous bellwether jury (Hear that academics?  An interesting area…with no prior research!).  Instead what we have is research on the similar, but not fully parallel, situation of bifurcation in which different juries decide the issues of liability and damages.  Drawing from that body of research, there are two critical findings that may apply to a bellwether situation. 

Jurors Who Don’t Hear Evidence of Bad Conduct Give Smaller Awards.  According to a number of studies, including Smith & Greene (2005), when jurors hear damage information alone, it just isn’t the same as hearing the whole story, and the difference can be measured in dollars.  “Jurors who heard evidence regarding the plaintiff’s injuries, but no evidence of the defendant’s conduct, gave smaller awards for the specified injuries than did jurors who heard evidence about both the injuries and the defendant’s role in causing the accident.”  This stands to reason when we remember that, instructions notwithstanding, when calculating damages, jurors are not just measuring the harm done.  Instead, particularly but not exclusively in noneconomic categories, they are also making a statement about the degree of the defendant’s responsibility.

Jurors Will Discount Damages if Liability is Uncertain.  As anyone who has observed mock deliberations will attest, damages are also an outlet for compromise and uncertainty.  According to one study by Wissler, Rector & Saks (2001) “If jurors are unsure of their decision on liability, they might make up for the possibility of finding an innocent defendant liable by lowering the amount they award the plaintiff.”  A nonbellwether jury may hear that another jury found liability in a prior trial, and they may even hear some of the context and the reasons why.  But the question is whether this jury can ever be as certain about the liability conclusion as the jury that heard all the evidence and reached that conclusion on their own.  If a defendant succeeds, even with a limiting instruction, in introducing evidence that may make a second jury doubt the conclusions of the bellwether jury, then that uncertainty may pay off for them in a reduced damages award.   

Prepare Nonbellwether Jurors for Part of the Story

There isn’t a clear solution to this problem for plaintiffs, but any disadvantages to a bellwether structure are likely far outweighed by concerns of simple efficiency, as well as greater likelihood of a timely settlement offer.  In the event that your case does make it to trial following a bellwether, we have a few recommendations.

Submit a Statement of the Case that Includes Substantive Liability Information.  From a plaintiff’s perspective, jurors need to hear as much about that first trial as the judge will allow.  Jurors need confidence that the bellwether decision was thorough, accurate, and respectable.  A clear and nonlegalese statement from the court, thoroughly explaining the detail and depth of the first trial, enhances the jury’s confidence in the earlier decision which protects against a deflation of damages.  

Pursue Written Opening Statements to Be Read Prior to Voir Dire.  One of the key areas in voir dire will center on panelists’ ability and willingness to defer to another jury’s decision based on evidence that they did not hear.  In order to give anything other than a rote “yes, I’ll follow the instructions” answer, panelists will need to know more context on exactly what they are being asked to trust.  In that situation, a good procedure is to allow all parties to make a brief statement prior to the second trial’s voir dire, not to relitigate the bellwether case, but to explain the story in their own terms, including their client’s position following the first trial and the instructions that jurors will need to follow in hearing the evidence in the second trial. 

Request a Clear and Meaningful Instruction Against Discounting Damages.  Despite our occasional cynicism on the value of legal instructions once the door closes on the deliberation room, there is some evidence that in this context, the instruction matters.  The same study cited above (Wissler, Rector & Saks, 2001), also found that a court instruction not to discount damages based on uncertainty about liability, reduced the impact that uncertainty otherwise would have had on a general damages award.  Plaintiffs should pursue an instruction, ideally prior to evidence, to the effect that jurors’ individual uncertainty about liability or the reasons and substance underlying the bellwether jury’s verdict, should not be used to discount their assessments of damages.  It is only human to let uncertainty play a psychological role, but the instruction at least provides other jurors with a response if it creeps into deliberations. 

For a nonbellwether client, the trial structure can feel like being in the back seat of a car that is speeding ahead without your control.  As in all things, the key is to adopt your communication to the unique situation. 

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Other Posts on Bifurcation and Damages:

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ResearchBlogging.org Smith AC, & Greene E (2005). Conduct and its consequences: attempts at debiasing jury judgments. Law and human behavior, 29(5), 505-26 PMID: 16254740

Wissler RL, Rector KA, & Saks MJ (2001). The impact of jury instructions on the fusion of liability and compensatory damages. Law and human behavior, 25(2), 125-39 PMID: 11419378

Photo Credit:  Guttorn Flattabo, Flickr Creative Commons

November 24, 2011

Take a Moment to Present Your Safe Product Story

By Dr. Kevin Boully:

Safety first
In little more than a moment a man goes from enjoying his favorite recreational sport to an injured Plaintiff with a sports-product liability claim.  It happens in a flash.  And new research suggests that people may make determinations about a witness's trustworthiness and empathy just as quickly — in about 20 seconds.  So what happens when Defendant manufacturers are faced with challenging facts, sympathetic Plaintiffs, and a need to present a believable trial story in sports-related products liability cases?  In this post, we focus on a three part approach to developing a critical aspect of an effective product-defense — an effective product safety story. 

Earlier this year, a Missouri jury awarded $48 million to the families of five people who perished during a skydiving incident.  Trial testimony indicated the Defendant airplane-parts manufacturer made a replacement part for the aircraft using a metal alloy that cost about half as much as the metal the original manufacturer required.  Plaintiffs also presented evidence that the replacement part had caused other engine failures, and had failed internal testing.  These are not good facts (to put it lightly), and a Defendant in this position clearly faces an uphill battle.  But a Defendant in this position must present a credible company witness (if not multiple witnesses) who can tell the story that made the Defendant company's decisions safe and reasonable based on the knowledge and testing available at the time. 

A Three-Part Safety Story

Part One:  

Bring Credible, Likable Witnesses From All Relevant Levels

Every defense needs credible witnesses, but personalizing the manufacturer through a full spectrum of relevant employees is central to a product safety story.  Jurors do not trust scripted corporate executives’ claims that a product is safe if the executives were never anywhere near the product during its development.  Bring lower level employees with direct, hands-on experience testing and improving the product in order to gain juror trust in the product's safety and reliability.  Find a witness who was intimately involved in the decisions that led to the aircraft replacement part's design and manufacture.  Let him talk about the reasons for his careful decisions. 

Part Two:  Reveal the Product’s Evolution

A brief and relevant history of the product starts with the problem the it was created to solve.  Engage jurors with the reasoning behind the product's creation and follow the product through research, development, testing, all the way through its success in the market and post-market improvements.  This gives the product an identity and implicitly highlights the time, energy, and resources devoted to make a safe and effective product.  Don't underestimate the value in explaining the aircraft replacement part was created to fill a void left by parts that were too heavy or wore out too quickly. 

Part Three:  Account for the Range of Anticipated Uses

Describe the anticipated product uses and how the manufacturer addressed the range of possible misuses during its product development.  If the Plaintiff argues the manufacturer must anticipate unreasonable uses, the Defendant must clearly distinguish between the product's reasonable uses and those that exceed reasonable use and explain its plan for preventing those misuses.  If a certain model of aircraft replacement parts are safe in only some aircraft models, describe how the manufacturer accounts for that concern and designs the part so it can only be used safely. 

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Related Posts:

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 Photo Credit:  MattC. Flickr Creative Commons

July 11, 2011

Build Unforgettable Briefs

By Dr. Kevin Boully –

Mavericks-legal-motion2

We do not forget what is vividly burned in our brains.  So make it memorable:  Great advice that many persuasive litigators heed when developing and delivering oral argument but disregard when creating written briefs for the Court.  Thankfully, a recent legal brief-gone-viral helps illustrate the importance of three concepts critical to building unforgettable written advocacy.  Continue reading

May 30, 2011

Litigation Postscript’s Centennial: The Top 9 of the First 100

By: Persuasion Strategies –

Birthday cake
Litigation Postscript has just turned one hundred!  Posts, that is.  Through these past hundred, and into the next, we’ve remained stubbornly committed to the idea of writing articles, not typical blog posts, and including targeted recommendations for litigators in every single post, based on research and experience.

We’re doing that for you.  Yes, you, the one right there in front of the monitor.  So, if you enjoy and benefit from this focus, here is what you should do.  Look to the right.  No, your right.  Higher… higher… Yes, that is it!  The subscription box!  Type your email address there and hit “subscribe.” Continue reading

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