Category Archives: Mediation

September 21, 2017

Recognize the Weakness of ‘Hardball’ Rhetoric

By Dr. Ken Broda-Bahm:

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In his speech to the UN General Assembly last Tuesday, President Trump issued a pretty blunt threat. If the United States is forced to, he said, “We will have no choice but to totally destroy North Korea.” It was not out of step with his previous rhetoric on the subject, including his comment a couple of weeks earlier that the rogue regime would be met with “fire and fury,” but it was jarring to many based simply on the context. From the lectern of the organization created to “save succeeding generations from the scourge of war,” the commander of the world’s largest military just threatened to kill 25 million people. Some see this, of course, as characteristic of Mr. Trump’s typical approach. As observers of Trump’s style have noted, on matters large and small, he likes to sell himself as a no-nonsense tough guy, and to constantly reinforce the message that if you come after him, he is going to come after you.

The question is whether it is a strategy or just a habit. The tough-guy hardball talk is beloved by his base, and there is good reason to believe that this was the primary target even for a speech delivered to the world’s leaders. But even if the message helps to bolster Trump’s approval ratings among his supporters, internationally it is easy to see the threat magnifying and not alleviating the nuclear weapons crisis on the Korean peninsula. Now, for example, in the face of a highly-visible threat to destroy the country, some will see North Korea of having more reasons to keep and to develop its nuclear arsenal. Outside the world of international relations, litigation is another arena where tough talk is frequent, and frequently counterproductive. Particularly at the dispute-resolution phase of litigation where common interests can provide a genuine foundation for a mutually beneficial settlement, it is easy to see how hardening one’s rhetorical stances can do real damage. In this post, I’ll share some thoughts on why some attorneys will persist with the tough talk anyway, and why that’s likely to backfire in many cases.   Continue reading

January 19, 2017

Know (and Use) the Cognitive Biases of Mediation

By Dr. Ken Broda-Bahm: 

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Most civil cases these days will end, not in a courtroom, but at a settlement table. Many will do so after just the right amount of time and resources invested during discovery to discover the case’s true worth. But for many other cases, that investment of time and resources won’t be ideal, and attorneys and especially clients will find themselves wondering, “Why couldn’t we have just gotten that same result three months ago? Or two years ago?” Sometimes there are good reasons for that: pending discovery and expert evaluations, motions not yet resolved by the court, etcetera. But sometimes the reason is that for too long, the other side was blinded, unrealistic, and stubborn…or you were.  

Cognitive bias is not just a factor in jury persuasion, it is also a factor in mediation and settlement. Some very well documented habits of thinking cause us to persist in an overly favorable view of our chances or an overly pessimistic view of theirs. An article in the current issue of the Cardozo Journal of Conflict Resolution (Munsinger & Philbin, 2017) is entitled “Why Can’t They Settle? The Psychology of Relational Disputes,” and offers a useful overview of some of the problems caused when we bring those habits of thinking to mediation. Those wanting to expand their understanding of the mediation dynamic should read the article in full. The authors’ audience is mediators, and the article offers advice on how they should handle the sources of bias carried by the parties. In this post, however, I am going to borrow from their list of biases, but focusing on how advocates can avoid them on their own side, or address them when they seem to be coming from the other side. 

The Cognitive Biases: Stopping Yours and Leveraging Theirs

Optimism and Confirmation Bias

What It Means: There are some pessimists among us, but for the greater number, individual psychology tends to favor good results, and our expectations are generally skewed in that direction. We also tend to notice and remember facts that support rather than threaten our current beliefs and opinions. That can be particularly true for legal advocates who are looking for reasons to buttress and not overturn their cases. As the authors write, “Rose-colored glasses can inhibit our ability to see a legal dispute through a disinterested lens.”

How to Avoid Yours: Use your early preparation time to make yourself more realistic. Discovery, case assessment, and trial preparation can help you make sure that your expectations are grounded, not in your own estimated skill as an advocate, but in as many external indications as possible. Get opinions from non-involved lawyers and others in your office, use research on similar cases, and conduct mock trial or focus group research on your case. Bottom line, try to see your case through other side’s eyes. 

How to Leverage Theirs: When the other side seems to be overly optimistic, or focused disproportionately on their strengths and not their weaknesses, share that with the mediator. Instead of just being an advocate for your case, become a reasonable critic of your adversary’s case assessment. If you have information that grounds your own valuations, consider sharing those with your mediator. Let your mediator know how you know what you know. Contrast that knowledge with a lack of grounding on their side. When your case assessments are based on reasons and data and their assessments are based on optimism, you have the better posture. 

Anchoring Bias

What It Means: We tend to anchor negotiations around expectations that we have formed during the opening stages of negotiations.  Our earlier offer becomes the reference point, and the psychology of “anchor and adjust,” means that we are likely to distort the absolute value of subsequent positions by considering them relative to that initial position. 

How to Avoid Yours: Choose your initial position with care. Don’t just throw a number out there, but base it on something. It should be aggressive (since the starting point won’t be the ending point), but still realistic. At the same time you share your initial number, have an expected target — what you would actually accept — and of course that shouldn’t be the same as your initial position. That expected target should be based on an analysis of how similar cases fare in or around your venue. These “local conventions,” as the authors term them, provide a better assessment than your initial numbers when it comes to assessing the merits of a proposed settlement.

How to Leverage Theirs: Ask for the reasons behind the other side’s numbers: How do the local conventions formed in similar cases support that number? When they are taking a position that is at odds with those conventions, call it out to the mediator. If they are starting out with an extreme and ungrounded request, try to reset the mediation on a range that the relevant experience would support. As the authors write, “The party making an extreme offer is often forced to make larger concessions later to avert an impasse.”

Sunk Costs Bias

What It Means: An economist will tell you that sunk costs — those costs that cannot be recouped — should not be taken into account when making a rational decision about the future. Non-economists will rely on the metaphorical “water under the bridge,” to say the same thing. But psychologists know that those sunk costs are still considered. 

How to Avoid Yours: Focus on future expenses, not past expenses. The more you are explicit in grounding your numbers, the easier that will be to do. Also, you should be explicit with your mediator. Identify what the future costs are likely to be for both sides to continue from this point through trial and any appeals, and consider that as an explicit factor in a settlement that would let those costs be avoided. 

How to Address Theirs: This is one cognitive bias that you don’t necessarily want to leverage in mediation, since attention to past expenses could just lead parties toward more extreme positions. As you do with the mediator, focus on future costs, encouraging the party on the other side to count the immediate and long-term legal expenses as a factor in assessing the settlement. 

Loss Aversion and Endowment Bias

What It Means: We tend to apply disproportionate value to things we already have (endowment), and as a result pay more attention to losses rather than gains (loss aversion). In experimental settings, even simple manipulations like giving someone a coffee cup causes them to practically apply more value to that cup than they otherwise would. Similarly, in gambling experiments, avoiding a loss should count exactly as much as achieving a same-sized gain, but avoiding the loss is actually valued more. 

How to Avoid Yours: A perceived loss elicits a strong psychological reaction, so be aware of that reaction. And it is not just defendants who can focus disproportionately on losses. If, for example, a plaintiff who expects a ten million dollar gain in a case is asked to settle for seven million dollars instead, they might naturally see it not as a seven million dollar gain but as a three million dollar loss. Being aware of the psychology is a first step. In assessing your position, work to keep it framed on the net result, not on the “loss.” 

How to Leverage Theirs: Understand that no one wants to leave with what feels like a loss. Applying the principle of reciprocity, consider that if the other side is (in their own minds at least) being asked to give up something, what are they getting in return? It could be substantial, like avoiding a greater future loss, or it could be small or symbolic. In some cases, for example, a plaintiff feels more comfortable coming down off of a higher position if the defendant is willing to commit to some kind of public acknowledgment or steps to reduce the chances of a future plaintiff in the same situation.

Those are just a few of the biases, of course, and there is a lot more to learn about the complex dynamic of a mediation. Ultimately, parties and mediators do better to remember that it is not just a legal exercise, but a psychological one as well.  

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Other Posts on Mediation: 

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Munsinger, H. L., & Philbin Jr, D. R. (2017). WHY CAN’T THEY SETTLE? THE PSYCHOLOGY OF RELATIONAL DISPUTES. Cardozo J. Conflict Resol., 18, 311-489.

Image credit: 123rf.com, used under license

February 6, 2014

Conduct Discovery on Your Trial Audience

By Dr. Ken Broda-Bahm: 

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Many have noted that the American trial seems to be suffering a kind of death by discovery. “Just the amount of documents and discovery that you have to deal with before you ever get to a trial are so enormous that the costs are higher and it just bogs the process down,” Michigan Attorney Ron DeWaard was recently quoted. “That is one of the main things I’ve seen that has made it so expensive, and there is so much to do in terms of presentation that you don’t see a lot of trials.” A new article in legal theory, however, raises the question of whether this decline might be driven, not simply by the volume of discovery, but also, by an imbalance in how well litigators know their audiences. The article, “Trial by Preview” (Huang, 2013), comes from Columbia Law School Professor Bert Huang, and argues that while nearly all civil litigants receive a voluminous preview of the evidence and arguments that will come in trial, only parties in bench trials receive their audience’s reaction to that information as it emerges. “Because these reactions often provide a stronger reason to settle,” Huang notes, “the bench trial is declining more swiftly than the jury trial.” 

“Parties settle not in the shadow of the ‘true facts’ about the case, after all,” Huang writes, “but in the shadow of the expected verdict.” The bottom line, based on evidence reported in the article, is that parties know more about expected verdict when the fact finder is a judge, and that is why bench trials are leading the overall decline in trials. In contrast to the “judicial preview” provided by the formal and informal pretrial communications from the bench, the future jury remains a kind of black box. In this post, however, I’ll be providing a jury consultant’s reaction to Huang’s article, and arguing that future juries are more discoverable than we might think. The scope of modern discovery may or may not be a lodestone on the civil trial, but as long as discovery in jury trial focuses more on evidence and less on audience, then a lack of knowledge remains an obstacle to both trials and to good settlements.  

Research: The Asymmetrical Loss of Bench and Jury Trials

Professor Huang begins with the fact of expanded discovery, which he calls “an obsession of modern civil procedure to design ways to reveal more before trial about what will happen during trial.” Employing equal measures of logic, game theory, and empirical investigation, he looks at what happens to the chances for settlement as parties receive more and more information about the case. In isolation, the parties’ views of the case might converge, increasing the chances of ending up at the right settlement rather than trial. Or, based on biases and favorable readings of the evidence, they might diverge in a way that prolongs discovery or avoids settlement. The critical factor, in Huang’s analysis, is how well the parties know their audience. 

The article is available as a free download (here), but the most interesting part relates to a kind of natural policy experiment he runs using a rules change. When Federal Rule of Civil Procedure 26(a)(3) standardized discovery and provided pretrial previews, it was adapted by different courts in a staggered fashion between 1993 and 2000. Comparing the early adopters to the later adopters, Huang was able to look at whether this increase in information led to more settlements as views of cases converged. What he found was a disproportionate effect of this ‘trial by preview’ in bench trials more than in jury trials. 

With a judge, Huang notes, the parties “receive not only previews of these stories to be told at trial, but also a preview of the audience for those stories” as the judge reacts to a parade of motions testing the evidence and the theories of the case. In a jury trial, in contrast, “the fact finder remains unknown, as the jury has yet to be chosen.” 

In all cases, of course, the parties tend to be optimistic about their chances — that is part of an advocate’s job, after all. But, Huang argues, “nothing quite cures overoptimism like a judge remarking, on the eve of trial, that in her view the case is a loser.” Because the jury is not yet seated, it is not able to give similar signals. Thus, discovery has had a disproportionate effect of causing more convergence in bench than in jury settings, and as a result, greater chances for settlement and fewer trials. And that is exactly what he saw in the comparison of early and late adopters of 26(a)(3). 

Recommendations: Change the Way We Think About Pretrial Jury Research

The article makes an important point about the effects of more information and early reactions to that information. But one premise of the article, “The Unknowable Jury,’ seems to be exaggerated. In one short section of the article, on the 49th page, the author does address the role of pretrial research — mock trials and focus groups — in making one’s future jury more knowable, but he concludes that these options are only present for a limited number of cases.

Professor Huang is on the right track in one way: We should think of pretrial research as a form of discovery. ‘Audience discovery’ may not be able to quite have parity to evidentiary discovery. But if it even had five percent of the emphasis in terms of time, cost, and priority, that would represent a huge step forward for most cases.

In addition to viewing this form of audience discovery as trial preparation, we should also see it — like the other forms of discovery — as a bedrock form of case assessment. Even, and perhaps especially, for the cases that will never see the inside of a courtroom, pretrial research tells us about the quality of our case and places some likelihoods and parameters around expected verdict. It helps to provide a reasonable basis for the choice to procede to trial or to settle. 

Here are a few reminders for conducting better audience discovery. Pretrial research on juries is…

Not Just for the Well-Heeled

When he does discuss the role of jury research in making a future jury more knowable, Huang first considers the basic venue knowledge most lawyers have, before noting that “A closer approximation, for parties who can afford them, is provided by jury consultants who put together ‘mock juries’ and ‘focus groups.'” However, he follows that by assuming that these tools are limited to the largest and most notorious trials, saying that “such tools favor well-heeled and more sophisticated parties over weaker ones.” In reality, there is a sliding scale of appropriate models for pretrial research. There are very expensive designs, and there are much more economical ones. But an important point is that lower damages cases still devote substantial resources to evidentiary discovery. At whatever level, a case should benefit from audience discovery at a level that is in some fair proportion to what it is being spent on evidentiary discovery. For those cases that are truly without budget, there is also the chance for pro bono assistance. Ask an active consultant why they don’t do more pro bono and most will answer, “because I’m not asked.” 

Not Just for the Expected Verdict

As far as one’s chances of winning, a mock trial or focus group can often be an important reality check for client or counsel. But that is not the only thing to be known. From our own experience, it generally isn’t even the main thing that our clients are after. Instead, we want to look at comprehension, the themes that emerge, and the mock jurors’ views of strengths and weaknesses. We want to see how our critics argue against us and how our own defenders will respond. We want to see what questions they have and what they need to hear more about. These forms of feedback will help to shape the story, guide any remaining discovery, and fine-tune our presentation choices. 

Not Just for the Small Groups

We have an image of a group sitting around a table in a room with a video camera or one-way mirrors. That view of the mock trial or focus group is comfortable and familiar, but there are alternatives – some old and some new. An older, but still available and generally more economical alternative is to rely on survey research. Conducting a community attitude survey won’t test the specifics of your case story, but will help you identify the attitudes that will be the foundation for that assessment. The newer options involve online research — settings where you can give respondents a version of the parties’ arguments and get their reactions. In addition, there are even newer options involving ‘social listening‘ that seek to harness existing public discussions on cases and case-relevant attitudes. The more we expand the net on what constitutes pretrial research, the more Huang’s premise of the ‘unknowable jury’ is undercut. 

Professor Huang’s article adds to a conversation that is reaching a fever pitch in trial circles: What do we do, if anything, about declining trials? For some, it is a question of “How do we save the trial?” While for others it is, “How do we increase the quality of case dispositions, however they end?” The common ground, however, should be in wanting these decisions — in or out of trial — to be guided by better information. In that context, knowing one’s audience should not be considered just one part of the bloating that is making trials too expensive. Instead, the prescription is:

Know your case, but also know your audience, in order to know the best path. 

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Other Posts on Discovery, Settlement, & Trial: 

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Huang, B. I. (2013). Trial by Preview. Columbia Law Review 113, 1323. URL: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2364983 (Free Download). 

Photo Credit: TEDxHouston, Flickr Creative Commons (edited by the author)

December 31, 2012

Don’t Create Your Own Cliff

By Dr. Ken Broda-Bahm: 

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As the year winds to an end, all the attention is on the “fiscal cliff” and whether there will be a last-minute save or whether, when we “Ring in the New” on January 1st, we will be ringing in large tax increases and drastic cuts to Federal programs. As of Monday morning and this post’s press time, there is a vote to be scheduled on the administration’s plan, but still significant distance between house Republicans and the President. Adding to the frustration is the fact that Congress itself loaded the gun and set the trigger, creating this cliff as a consequence of the contentious debt ceiling debates in Summer of 2011. That makes the current countdown a “politically manufactured crisis” in a real sense. Regardless of whether it comes to pass tomorrow, the levels of delay and dysfunction shown by our politicians in creating and addressing the cliff has tried the nation’s patience, tanked congressional approval ratings, and jeopardized the confidence in the U.S. and world economies. 

A different way of viewing the current predicament is to see it as a settlement deadline gone awry. Much like the deadlines and sunsets that litigators use when trying to resolve a legal dispute, the idea is to create urgency by manipulating the circumstances. But in some cases, like the fiscal cliff negotiations, the manipulation is artificial and the negative consequences are entirely avoidable. The point? Cliffs have consequences, and manufactured duress may not be all it’s cracked up to be. In this last-of-the-year post, I’ll take a look at some research and experience on deadlines, as well as the general question of whether deadlines tend to help or hinder settlement.  

It Has to Settle by When? 

The idea of a settlement deadline is common in class action suits where a judge sets a timetable for individual plaintiffs to accept an offer or proceed to trial. For example, a deadline for settlement in foreclosure lawsuits against the top five mortgage lenders is swiftly approaching. At a more basic level, however, litigants facing pressure to know whether the case is going to trial or to settlement will sometimes internally set and externally communicate a deadline for that decision. For example, a party might say, “If we get to January 1st and still resolved the case, then we should all assume we’re going to trial.” While that desire for certainty and closure is understandable, it also may be unrealistic and harmful. After all, a good deal should never be rejected simply because it comes after a deadline. DivorceSource, a site focusing on family law, gives the following example: “Where the other side gives a ‘Friday at 5 p.m.’ deadline, try the following response: Dear Joe: My client was going to accept your proposal on Friday when she noticed that it was 5:10 p.m. See you in court.” If that ever happened, the other side would, of course, offer an extension and reveal the deadline’s artificial nature in the process. When that happens, the deadline becomes a threat without much to back it up. “In any event,” that source concludes, “If you want the case settled, do not use deadlines any more than you would use any other type of threat or ultimatum.” 

The Research: Are Deadlines Effective?

To some extent, but not entirely. People show a preference for having deadlines, even where those deadlines are artificial. But when it comes to setting one’s own time limit for action, people tend to set them in a way that detracts from the best result. One study (Ariely & Wertenbroch, 2002), for example, looked at professionals enrolled in an executive education course at MIT, and how they set their own deadlines for paper completion when allowed to do so by the professor. Specifically, students were assigned three papers to write and had to commit to due dates for those papers. The due dates could be any time prior to the end of the term, but once selected, the student had to commit to it. The result of this choice was that “many did not set their deadlines to bind themselves optimally.” Logically, it would make sense to set deadlines as late as possible, since there was no advantage to early completion and there were penalties for missed deadlines. But instead, students tended to set their own deadlines early, apparently in an idealistic belief that they would perform better by holding their own feet to the fire. Ultimately, however, many ended up accepting penalties as a consequence of missing their own deadlines. 

And the author’s conclusions could just as easily apply to Congress in the fiscal cliff negotiations: “People sometimes impose deadlines on themselves, even when missing those deadlines leads to penalties.”  

Bottom Line: Don’t Rely on Artificial Deadlines for Settlement

Of course, some deadlines in litigation are going to come from the court or from the surrounding circumstances. Summary judgment decisions, close of discovery, and expert disclosures are all events that may create natural moments that are ripe for settling your case. Recognizing those natural moments adds to your effectiveness, while creating artificial moments out of thin air can detract from your effectiveness. As the study concluded, “self imposed deadlines are not always as effective as some external deadlines in boosting task performance.” It may seem like a good idea to set a hard date by which time you require the other side to accept your settlement offer or proceed to trial, but in practice, the artificial constraint can end up cutting the settlement discussion short and reducing your options.

Whether the nation tomorrow finds a solution on the fiscal cliff, or whether we join hands like Thelma and Louise and plunge off together, it is still the start of a new year. So, it may be a good time for a new year’s resolution: If you rely on settlement deadlines, tie those deadlines to events and to natural needs created by the case itself. This is the lesson of the fiscal cliff: Staking your settlement on an artificial and arbitrary deadline just creates opportunities for posturing and for self-inflicted wounds. 

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Other Posts on Settlement: 

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ResearchBlogging.org
Ariely, D., & Wertenbroch, K. (2002). Procrastination, Deadlines, and Performance: Self-Control by Precommitment Psychological Science, 13 (3), 219-224 DOI: 10.1111/1467-9280.00441

 


Photo Credit: Martin Cathrae, Flickr Creative Commons

December 3, 2012

Consider the Jury’s Political Role

By Dr. Ken Broda-Bahm: 

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Those of us who work in the business of preparing for trial and going to trial are used to seeing the jury as a tool of dispute resolution. We’re less used to thinking about the jury’s broader political role. Apart from the speeches given by judges at the start of voir dire, we don’t often think of the jury as that vox populi serving as an essential and constitutional check on the power of government and large corporations. But it is that sweeping vision, and not the more mundane task of providing closure for cases, that serves as the main rationale for the United States being unique among countries in using juries in civil disputes. We defend the right to request a jury in civil contexts because that right seems to be a critical part of our democratic heritage, and indispensable for an active citizenry. 

But does a civil jury continue to serve that vaunted role as a political institution? According to a  recent article appearing in the Emory Law Journal (Solomon, 2012), the answer is, “not so much.” William & Mary law professor Jason Solomon takes a hard look at the civil jury’s well-worn rationale from the perspective of democratic theory, and concludes that the jury falls short of many of its loftiest ambitions because they’re generally focused on private torts and are as likely to be anti-plaintiff as they are to be anti-corporate. In addition, Solomon argues, a reliance on popular judgment undercuts rule of law by providing no record or precedent (since juries give no reasons) and leads to less overall predictability. There are clearly some responses to Solomon’s arguments, but I’ll leave it to the democratic theorists to carry on that debate. However, the article got me thinking: For those working at the pragmatic end of jury decision making, what would be different if, instead of just seeing juries as tools of formal dispute resolution, we took the jury’s political role seriously. Moving from theory to practice, this post looks at that question.

The Political Role of the Civil Jury

In the context of a criminal case, the political role of the jury is more clear: It is a check on placing too much power in the government’s prosecutorial hands. But in a civil context, that rationale has always been more difficult. In torts or contract disputes between private parties, there is no overzealous government to guard against. In that case, the reluctant and underpaid juror has more of a right to ask, “Hey, why are we being brought in to resolve your private dispute?” The answer has to be that even in these private conflicts, the government is still playing a role in settling the disagreement, and the jury is just the arm of the government. So, to answer that disgruntled juror, why is a pool of common citizens better than a professional judge? The response is easy for people in my field: Juries more often than not bring a common sense and a collective wisdom that would be missing if we relied on judges alone. To pick one of the more common contexts where many have criticized the lay person’s role, “Juries,” as Andrew Orlowsky wrote in the Register, are “the only reason that anyone understands patent law at all.” Put simply, the value of the common perspective is that it serves as an outward boundary on the hypertechnicality of legal argument: If you don’t have an argument that can be understood and applied by a jury, then you don’t have an argument. There is some justice to that. 

So What Would Be Different If We Took the Jury’s Political Role Seriously?

One, We Might Have More Willingness to Go to Trial

Today, of course, a case is far more likely to end in a private settlement than it is to go all the way to a public jury trial, leaving the ultimate result undisclosed beyond parties and attorneys. And counsel’s job is to resolve the case, not necessarily to try it. So, lawyers are not going to be focused on the democracy-promoting role of a jury as much as they’re focused on the jury, or the threat of a jury, as just one of many tools to bring a case to closure. At the same time, the jury’s capacity as a political institution and a public voice may well be part of the client’s thinking. As Professor Solomon writes, “Perhaps lawyers value the monetary aspects of the litigation to the exclusion of the value of demanding accountability and answers for wrongs — a value that, research shows, many plaintiffs want vindicated in litigation” (p. 1351).

No, lawyers should never encourage or tacitly allow a client to resist settlement just for the thrill of trial. But lawyers should make sure they are taking the full spectrum of the client’s interests into account, not simply the monetary interest, but an interest in the public role of justice as well.  

Two, We Would Do Post-Verdict Interviews Every Time the Law Allows

One of the major criticisms from Solomon’s article is that jury decisions are often a black box: We don’t know the specific rationale for a jury’s decision and, as a result, it cannot serve as the “message” that democratic theory would make it out to be. “Juries don’t give reasons for their decisions,” Solomon writes, “so their claim to be deliberative-democratic institutions is on shaky ground” (p. 1365). One modern fact that Solomon’s critique doesn’t take into account is that, once the trial is over, that black box is quite often pried open. When post-trial juror contact isn’t prohibited, either a consultant or the attorneys themselves will often discuss the decision and the jury’s reasons. As a result, counsel and parties frequently know at least a little about how the jury decided and why.

But Solomon’s article should serve as a reminder: When a case does make it all the way to a jury verdict, then the jury’s reasons can be an important part of its political role. When judges are worried about intrusion on jurors’ privacy, propose a model that would allow them to opt in (most will) by giving a preferred means of contact to the judge. Given the importance of this information, it also shouldn’t be relegated to a quick and informal exchange in the lobby. Jurors who have just been released often want to leave and are not in the mood for thoughtful reflection. When approached by attorneys in the case, they also know who they’re talking to and know the lawyers are equipped to refute any unfavorable reactions they might have. As a result, jurors may be reticent to explain their decision. When conducting post-trial interviews, it is far better to use a consultant: a person perceived by the former jurors as a neutral and not a player in the case. It is also better to use a structured and planned interview. Instead of hitting the departing juror with a few questions off-the-cuff, schedule a time to talk to the juror in a relaxed setting, usually by telephone, for about an hour.

Three, We Would Treat Mock Trials As Anything But “Mock” 

The reality that we see in our work is that most cases involving a mock trial will end up settling prior to the real trial. What that means is that the mock trial, for all intents and purposes, is the real trial, or at least it is the closest that this particular case will come to hearing the vox populi that Solomon writes about. Often, the mock jurors will have some understanding of that by the end of the day and they’ll be proud for having played a role in the process. Sometimes that is based on the mistaken assumption on their part, that somehow both parties have come together to conduct this exercise. But often, their pride seems to stem from the belief that, even if it is an adversarial exercise owned by one party or the other, it is still part of the calculation that may lead to a resolution of the case. To the extent that calculation is one that factors in a lay person’s view, then it hardly matters whether that lay person is an official juror summoned by the government or a mock juror recruited by a jury research company (except that the latter gets better pay). At the end of the day, there is still that sense of having heard from the public at large. 

The founding fathers felt juries were important, not only to protect the prisoner from the prosecutor, but also to serve as a popular voice weighing in on civil disputes. As we move toward a system in which trials are the exception rather than the norm, keeping that voice in the conversation takes some work, but it can be done. 

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Other Posts on Perceptions of Juries: 

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Solomon, J.M. (2012). The Political Puzzle of the Civil Jury. Emory Law Journal, 61: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2144376

Photo Credit: stefanie says, Flickr Creative Commons

November 26, 2012

Negotiate, Mediate (and Testify) Eye to Eye

By Dr. Ken Broda-Bahm: 

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Have you ever seen an argument get somewhat bitter or personal in an online forum or via electronic communication? That is a little like asking, “have you ever visited an online forum or used electronic communication?” When we’re safe behind keyboards, or to a lesser extent, on the telephone, arguments can escalate more than they would in person. For those who study communication, the theory has been that this heightened tendency toward becoming nastier and more aggressive is due to a subjective feeling of anonymity or invisibility when one is arguing without in-person communication. But based on a recent Israeli study, the cause may be something simpler than that: a lack of eye contact. 

Look your audience in the eye: It is one of those staples of public speaking advice, and everyone should know it by now. But if you visit any courtroom and look at how many witnesses are not just glancing but maintaining eye contact with a jury or a judge, then you’ll see that this advice is more popular than it is practiced. And if we take a step back in the process and look at the critical discussions that will determine whether a case settles early, late, or not at all, then that opportunity to literally see eye to eye is often displaced by emails, voice mail messages, or letters. The research suggests that we would be more likely to find a favorable and empathetic audience if we seize on in-person meetings whenever possible. This post will take a look at the new study, and discuss how its results should influence the way we talk about cases prior to trial, as well as the way we testify at trial.  

The Research: 

It is not often that you find a study in Computers and Human Behavior with a message for litigators, but the recent work by two behaviorists from the University of Haifa (Lapidot-Lefler & Barak, 2011) may be the exception. Focusing on the colorful academic concept of “toxic online disinhibition,” the researchers designed an experiment in order to get at the source of greater hostility in mediated communications. They engaged 71 pairs of college students, who did not know each other, in the task of discussing an issue and trying to come up with a solution. The discussions took place over Instant Messenger (text messages) and were varied in a number of ways. Some pairs simply chatted over their electronic devices. Some were encouraged to share personal details about themselves. Other pairs, however, had web cameras and were able to see their discussion partners via either a side view or a closeup facial view. The conversations were then self-assessed and reviewed by expert raters who looked at the level of hostility. 

It turned out, anonymity and invisibility were not the strong predictors of a more aggressive interaction. Instead, the strongest predictor was the simple absence of eye contact. Knowing personal details about one’s partner, and even being able to see one’s partner but not engage in eye contact, did not work to hold down the typical level of bluntness, threats, or insensitivity sometimes seen in electronic communications. But looking into someone’s eyes did work. As the lead author Noam Lapidot-Lefler was quoted in a Scientific American piece on the study, the theory is that eye contact works because it “helps you understand the other person’s feelings, the signals that the person is trying to send you,” and that inturn helps to foster empathy and better communication. 

Implication: Negotiate and Mediate Eye to Eye

Of course, most formal mediations involve at least some level of in-person communication, but if it is structured as a form of “shuttle diplomacy” with sequential messages being carried back and forth through a mediator, then you have to wonder how much opportunity there is for genuine interaction. Before and after that mediation, it appears from most accounts that it is still relatively rare for opposing litigants to meet in person in order to settle a case. Apart from a few words exchanged around the edges of a deposition, opportunities for face-to-face meetings aren’t often taken. 

Given the destructive tendency for settlement interactions to be taken over by competitive posturing, rather than genuine engagement, there may yet be room for the old-fashioned offer to talk about a disagreement over dinner or a drink. There is no guarantee, of course, that better mutual understanding will lead to an agreement, but given the stakes involved and the high costs of moving a case all the way to trial, this study is another reminder for litigators to always ask, “have we tried our best to see eye to eye on this case?” The lesson is that this is best done in person. 

Implication: Testify Eye to Eye

Fact finders, of course, want to know if the witness is telling the truth. To do that, they’ll rely on all manner of folk wisdom about what “the truth” looks like when it is being delivered. One of the most reliable juror habits is to look the witness in the eye to determine truthfulness. This, as we’ve written before, is a strong reason to prefer present witnesses over absent ones, and to not be too quick to rely on a video deposition or an affidavit in lieu of a live witness. It is not a matter of the witness being disbelieved simply because they are on tape. Instead it is a matter of the fact finder lacking access to the full spectrum of cues they would ordinarily use. And one critical cue that cannot be duplicated on paper, tape, or videoconference is direct eye contact. 

Of course, this is part of the standard advice that nearly all witnesses receive prior to testifying in trial: Look the jurors in the eye. Still, I’d say that a majority of witnesses either spend their time looking at counsel, looking down at their hands, or briefly glancing up and letting their eye contact “swim” across the jury rather than lighting down on one particular juror, then moving to another juror, and so on. “The jurors won’t always look at you,” I’ll often tell witnesses, “but when they do, you want to be looking directly at them.” And again, it is not a simple matter that a juror will say, “I didn’t believe her because she wouldn’t look at me,” (though they do sometimes say that), but more a matter of jurors simply lacking the full understanding, and as a result giving less empathy than they would otherwise give. Trials turn on evidence, but the understanding of that evidence can often turn on small differences. Being the witness that confidently looks individual jurors in the eye can be one of those key differences. 

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Other Posts on Nonverbal Communication: 

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ResearchBlogging.org Lapidot-Lefler, N., & Barak, A. (2012). Effects of anonymity, invisibility, and lack of eye-contact on toxic online disinhibition Computers in Human Behavior, 28 (2), 434-443 DOI: 10.1016/j.chb.2011.10.014

 


Photo Credit: “Tanja’s Eye,” Borya, Flickr Creative Commons

June 14, 2012

Don’t Forget About Happiness: The Settlement Series, Part Four

By Dr. Ken Broda-Bahm:

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If we don’t normally think of “happiness” when we think of mediation, it may be because a good settlement is generally not something that makes all the parties happy. Instead, it is more often something that makes the parties equally unhappy. At the same time the notion of happiness, or at least relative satisfaction, has an important role to play in determining when cases settle. In the previous three posts in this series, I’ve written about the psychological obstacles to settlement, the dangers of brinksmanship, and the role that mediators can play. For this final post, I want to end on a positive note by looking at a few of the ways happiness can impact the process.  Continue reading

June 11, 2012

Know When to Give Your Mediator a Voice: The Settlement Series, Part Three

By Dr. Ken Broda-Bahm:

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Mediators have a delicate job. They know it isn’t their role to praise or blame a party. It isn’t their role to take sides. To do so means sacrificing their credibility and their effectiveness along with it. But the tougher question is whether a commitment to stick to facilitation, rather than advocacy, also entails a commitment to avoid a proposal of their own. A “mediator’s proposal” is a third option that is sometimes offered by the neutral party in order to break an impasse and facilitate a solution that makes both sides comfortable. But it is a controversial idea. Some say it is never appropriate and the mediator ceases to be a mediator when they begin to argue for their own solution. Others say that it can be a practical aid in bringing parties to a settlement that would otherwise be out of reach.  Continue reading

June 7, 2012

Don’t Play Chicken With Your Case: The Settlement Series, Part Two

By Dr. Ken Broda-Bahm:

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There is a perspective on negotiations focusing on tactics, secret strategies, or tricks. The problem with this tricks-based approach is that once you have two sides who think they know the tricks – like “never make the first offer,” – then you’re headed for a stalemate faster than a game of tic-tac-toe played by someone older than four. One such negotiating tactic is playing chicken, or taking an extreme and inflexible stance in order to force the other party to bargain down or face an even greater possible loss. At a time when approximately two percent of legal disputes are ended by a trial, the walk-up to trial itself is often a game of chicken. The strategy is to stick with an improbable “we’ll see you in court” message for as long as possible in order to bring the other side around to your settlement demand. Continue reading

June 4, 2012

Break Through the Barriers: The Settlement Series, Part One

By Dr. Ken Broda-Bahm:

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We all have an image in our heads of the way we expect cases to end: passionate presentations, gripping witness testimony, then a tense wait followed by the dramatic verdict. In the great majority of cases, however, the dispute will end not in a courtroom but in a conference room. After some awkward moments and handshakes, it will settle. Despite this, however, we all know that there are many cases that should settle but don’t, and an even greater proportion of cases that only settle after far too much has been spent in time, patience, and money. Talking to the trial teams, it is clear that there is one common barrier to the timely settlement of those cases: the other side. Now, it may be that I’m just more likely to work for the side that is fair, reasonable, and realistic (and for any clients reading, let’s assume that is the case). Or it may be that there is a large class of cases where both sides are saying in effect, “Believe me, we would settle this case if we could – if the other side would just see reason.”   Continue reading

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