Category Archives: Strategy

November 13, 2017

Make Your Denial Credible

By Dr. Ken Broda-Bahm:

It is the season for strong denials from powerful men in entertainment and politics. To pick just one from the crop of current examples, the U.S. Senate candidate from Alabama, former judge Roy Moore, has recently been accused of a number of inappropriate relationships when he was in his early thirties with girls who were as young as 14 years old. Predictably, Moore has denied it all, calling the accusations “completely false.” Sometimes the better course is to admit what is true. The comedian, Louis CK, took that route recently by responding to reports of harassing behavior by saying, “These stories are true.” But that, of course, depends on the facts. If it is true, you’re taking away some of the punch by admitting it. But what if it’s not? Whether we are in the public eye or part of litigation, how do we credibly deny what isn’t true without it being dumped in the skeptical category of, “Well, of course he’s denying it”? How do we escape the bubble of distrust that is created by the force of accusation alone?

It isn’t easy and there are no automatic ways to make a denial sound truthful and not just defensive. At the same time, there are a few things to avoid and a few things to include whenever you are denying something that isn’t true. This post will share a few thoughts about credible denials, and offer some practical suggestions that should differentiate the effective from the ineffective denial. And to provide more focus, let’s use a running example of a products company that is accused of hiding negative test results.

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September 4, 2017

Respect the Four Pillars of Persuasion

By Dr. Ken Broda-Bahm:

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When we think of persuasion in the courtroom, we might think of the specific language of strategies, tactics, and themes. We think of particular messages that can help get us to our goal. But those are really only the point of the spear. If we think about what is behind the technique, and what gives it heft and effectiveness, then we’re thinking about a number of basic psychological principles of motivation and influence. We are thinking of broad factors that cause people to want to move in a particular direction, factors that relate to some of the more fundamental ways we interact with the world. Of course, those underlying foundations could fill a book, or a library, but it is also possible and helpful to try to boil them down.

One recent attempt to boil them down came in a session called “The Power of Persuasion” at the American Psychological Association’s 125th Annual Convention earlier this summer. The talk, described in this press release, was given by Robert Cialdini, an expert on social influence and professor emeritus at Arizona State University. The gist of his talk was that there are some key levers of influence that have a powerful effect on persuasion, and in most cases, those levers are uncovered rather than created by the persuader in any given situation. In reviewing his comments, I selected four factors that seem particularly fitting for the setting of legal persuasion, choosing a pithy, one-word label to each: commitment, community, complementarity, and reciprocity. In this post, I’ll talk about what each one means and how it applies to trial persuasion.  Continue reading

April 10, 2017

Expect Reptiles to Invade New Habitats

By Dr. Ken Broda-Bahm: 

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On the defense side of the bar, attention has been exploding over plaintiffs’ Reptile approach. If you Google “Reptile” and “Litigation,” you’ll see a profusion of articles. But so far, at least, the strategy of leveraging the perceptions of “safety” and “danger” has been the subject of attention from a subset of defense lawyers: those who deal with death and injury focused on the human body, including personal injury, medical malpractice, workplace safety, and products liability. For litigators who don’t generally defend these kinds of cases, the plaintiff bar’s strategic focus on “the reptilian brain,” can seem like something from an entirely different world. In my experience, attorneys who are more likely to defend cases involving contracts, construction, energy, employment, intellectual property or other cases that involve damages that are distinct from death and injury, often haven’t even heard of the Reptile. 

But my view is that this is likely to change. There is good reason to believe the Reptile approach is already making inroads outside the core medical and injury cases where it started. Even though there are good criticisms out there of the theory’s scientific basis and tension with the rules of evidence, the approach has benefitted from excellent marketing and has shown itself to be a highly-practical and effective approach for many trial lawyers. If defense attorneys in other areas of litigation want to avoid being caught unaware, as medical, products, and P.I., attorneys were a few years ago, then they would be wise to learn some of the basics of what the Reptile is and how it is best countered. I see two reasons to believe the Reptile will act like an invasive species. First, it can spread because the perception of a “threat” can be generalized, allowing the entire approach to operate in a more abstract way in cases that don’t involve physical threats. Second, it can spread because some of the techniques it teaches are simply good techniques, and one can face aspects of a Reptile technique even from litigators who aren’t living by the full Reptile theory. While there are many great resources, including some articles in Persuasive Litigator, on how to generally respond to the Reptile, I will look at a few types of litigation where the Reptile can find a new home.  

Contract and Commercial Litigation

Commercial litigator Irene Bruce Hathaway wrote that the Reptile’s emphasis on “Safety Rule” can be applied to contract cases. She shares some examples that the company witness, for example, might be asked: 

“You agree that you would never needlessly hurt another company, especially one you had a contract with” or “it would be wrong to unnecessarily take actions that hurt another company, or which could even put them out of business” or “when you agreed to use ‘best efforts’ in this contract you agreed to do everything you could to insure that the other company was not needlessly [or unnecessarily] damaged, right?”

One way of thinking about it is to look at the basic reason we enter contracts: to manage and reduce uncertainty, risk, and danger. In that framework, each of the parties to a commercial agreement can be seen as owing a kind of duty to the other control for the possible negative consequences of commerce. Break that duty, and you’re potentially a danger to everyone who depends on secure agreements. 

Employment Litigation

One thing that is unique about employment cases is that most of your jurors will come to your case seeing themselves as experts on employment. After all, most of them have jobs. And why do we have jobs? Mostly, for security. So cases about employment are in a very basic way cases about security. A company either protects that security by treating people well and by having good, fair, and accountable policies, or the company threatens that security, through retaliation, discrimination, or wrongful termination. Several employment lawyers, like Alex Craigie, have noted that connection and blogged on the Reptile. Kyle White notes potential questions that fall in line with a Reptile approach: “You would agree with me that a company must not endanger its employees, correct?”  Beyond addressing physical danger, similar questions could effectively address the factors that promote or undermine the security of the relationship between employer and employee. 

Energy Litigation

The principle of security also applies to our sources of fuel. In a way, we already employ the language of “threat” and “danger,” when we talk about our “energy security.” In addition, the specter of climate change has added another layer of potential danger when we think about energy, and the potential for oil, gas, or coal companies to threaten jurors or their loved ones can easily become part of the narrative in these cases. Fossil fuels are also popularly perceived as underlying reasons for wars in the Middle East. So those are some reasons to associate energy companies with reduced security. On the flip side, however, people are also motivated by fuel prices, since that can have a more immediate effect on economic security and standard of living. 

Intellectual Property Litigation

As a final litigation type to discuss in this post, intellectual property might be seen as the greatest stretch for applying the Reptile perspective. And I admit, I haven’t (yet) heard of an intellectual property case that employed the Reptile model. However, I think it is important to keep in mind that the main ingredient in the Reptile approach is the motivation to defend something that is under threat. And in trademark, copyright, and patent cases, there is definitely something that is under threat: innovation, freedom, fair competition, all of that could be threatened by one party or the other. As we have written before, some jurors oppose the very idea of intellectual property, in part because it is seen as threatening the marketplace competition that would give us a better quality of life. 

The bottom line factor that makes the Reptile applicable beyond its home base is the reality that we are motivated to protect things other than just our physical security. Thinking back to Maslow’s hierarchy of needs that you may have learned in Psychology 101, you’ll recall that basic needs for survival and safety form the foundation, but as you move up you get into motivators like esteem and achievement of potential. Any motivation that can tap in anywhere on that ladder is a motivation that can follow the Reptile approach. 

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Other Posts on Reptile: 

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Image credit: 123rf.com, used under license

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March 9, 2017

Keep Your Trial Consultant (a Little Bit) in the Dark

By Dr. Ken Broda-Bahm: 

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I had one important early experience in trial consulting that I’ve kept in my head over the years. It was actually on my first job after moving to Persuasion Strategies many years ago. Attorneys we knew were working with a very large national litigation consulting group in hosting a mock trial. The client wanted to go with the very large firm, but the attorneys we knew wanted a consultant from our team to be on-site, just to provide some feedback. So I came to watch the mock trial and to share my thoughts. I had zero knowledge of the case before arriving at the research site — I didn’t read any briefs and hadn’t had any conversations with the attorneys about it. And I had no involvement in the case preparation afterward. I just watched for that one day, and then drafted my notes into a memo and sent it off. That memo focused on case strengths, weaknesses, what our message should be, what kind of jurors we want, etcetera, but all in all, it was just a memo that ended up being, I think, about 12 pages. I sent it to the attorneys who invited me, and that was it. I didn’t hear anything back at the time. 

It wasn’t until more than a year later when I heard from one of the attorneys. He said that the team had won, and more importantly had used my memo as a guide to how they tried their case. More than the 150-page report from the larger group, and more than the daily involvement from their team of consultants, the team relied on the approach I briefly sketched out after just one day’s contact, involving only an hour of summary argument from each side. Reflecting on it, the attorney said, “It is interesting…We got the most useful advice from the person who knew the least about the case.”  Then he went on to say that he thinks sometimes we consultants try to know too much. When we learn the case like the attorneys learn the case, he said, we become just another voice at the table, just like the attorneys. We start to think the same, to share the same assumptions and mindset, and to look at the case through the same filters. And that, he stressed, can limit our usefulness. That advice stayed with me since then. So in this post, I wanted to share some thoughts on how a consultant ought to know enough to be useful, but not so much that there’s a risk of becoming an echo of the attorney’s perspective. 

Why Not Know Everything? 

Trial consultants aren’t spiritual empaths, gurus, or witch doctors. We are professionals. And as professionals, we like to be prepared. So learning about the case is generally the first thing we do when we become involved. But the question is, how much do we learn? The answer, “As much as possible!” might be intuitive, but it’s also risky. After all, the trial team is probably reaching out for a fresh perspective because they are bogged down in the details and the minutia. Adding another member to the team who is also bogged down in the details and the minutia is not going to help. 

But it can be tempting. After all, it feels powerful and important to be an “insider” on that team. A consultant who has mastery of the details feels like they can hold their own in any meeting with the attorneys. The problem, though, is that as good as that feels, the consultant is often in the room to serve as a sounding board for juror reactions. And the jury is never going to be an insider and is never going to master all the details. The more the consultant becomes an insider, the less access that consultant is going to have to the jury’s relatively fresh and naive view. 

How to Strike the Balance

Obviously the consultant needs to know the basics. It does not help to offer advice that runs counter to the facts or the law in a given case. But what the consultant knows should cover the broad outlines of the story, the strengths and weaknesses jurors are likely to see when telling the story to themselves and each other. Ultimately, the consultant should know a lot less than the attorney knows, not just for reasons of time, but also for reasons of perspective. Here are a few ideas for striking the right balance. 

Put the Story Before the Specifics

An associate joining a trial team would probably start by diving into the details: the exhibits, depositions, filings, etcetera, start learning it all! A consultant, on the other hand, should try to start with the broad outlines of the story. Who did what to whom, why, and with what result? Who has acted responsibly and who has not? Sometimes details are important to that story — a contract or a smoking-gun memo, for example, will be central players in that drama. But document review should start with the story and add in details only where they’re necessary. 

Set Aside the Legal Layer

One of the most common types of documents consultants are given in order to get up to speed on a case are the briefing on motions for summary judgement. This is probably because, a) they’re available, and b) they include a lot more substantive information than a broad complaint and a ‘Deny, deny, deny’ answer. But the problem with relying on the MSJ briefs is that these are arguments covering a layer that is not generally argued before the jury. The point of MSJ briefing, the proper point at least, is not to argue the facts but to argue over whether there is or isn’t a factual dispute requiring resolution by a jury. So the briefs can help a consultant learn the broad contours, but the legal layer is really something that we don’t need to know that much about. The consultant helps best when focused on the broad ‘Who acted appropriately?’ question and not the mechanics of the individual claims. 

Consider Having a ‘Naive Chair’ at the Research

If you have had long-term involvement in a case as a consultant and you fear that you might be adapting the ‘attorney’s eye view’ of the case, then it might be helpful to have a fresh perspective on-site as part of the research team. One step we have taken before is to have a consultant come in essentially as I did in the story I shared at the start of this post. That person might have a better handle on how the jury might be hearing it, since jurors are also just getting into the story for the first time. 

I believe that the task comes down to the consultant and the attorney both doing their jobs. The consultant should most often make recommendations based on what the communication and the psychology of the situation demand. The attorney should then filter that advice based on what the evidence will support and what the law will allow in. 

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Other Posts on Trial Consulting: 

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Image credit: 123rf.com, used under license

November 7, 2016

Shine a Light on Black Box Evidence

By Dr. Ken Broda-Bahm: 

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We have finally, some would say ‘mercifully,’ arrived at the end of the 2016 presidential campaign. But not before one last surprise: Just eleven days before election day, and as millions of Americans were already voting early, FBI Director James Comey notified Congress of the discovery of additional emails that “appear to be pertinent” to the agency’s earlier investigation of Hillary Clinton’s personal server and private email use while Secretary of State. Overnight, what had been a relatively comfortable Clinton lead turned into a tighter race. The main reason for the polling shift, and the key ingredient in Comey’s notice comes down to one word: uncertainty. At the time he wrote the letter, the FBI did not yet have a warrant to actually review the emails, and it was unknown if these emails were new or if they had been already considered in the prior investigation. The uncertainty stretched out for nine days before Director Comey basically said, “never mind” to Congress. But for the Clinton campaign, the resurrection of the issue and the way it was raised created questions and speculation during that nine-day span that could not be easily answered. 

Of course, one problem with all of this is the appearance of a politicized FBI during the closing days of an election. But the other problem is one that might be more familiar to civil litigators: the problem of dealing with appeals that are based on what we don’t know rather than on what we do know. When evidence is, in effect, locked in a black box, the fact finders are left to speculate on what that evidence might show if they were able to see it. The rules of evidence strongly weigh in on the side that an absence of evidence is not evidence. But with juries and judges being human, speculation on what is in the box can still be influential, and attorneys can and often do try to benefit from that speculation. When an attorney makes a valient effort to admit a document while knowing that the judge is almost certainly going to keep it out, it is at least partly to plant a seed in the jury box to get them thinking, “I don’t know what that says…but I’ll bet its bad for the other side.” In this post, I will consider some ways to address that speculation when it works against you, and offer some advice on what to do when you’re in Clinton’s shoes and the problem is absent evidence rather than present evidence. 

The Problem: The Fallacy of ‘Appeal to Ignorance’ 

The fallacy, ad ignorantium in Latin, is the mental mistake that occurs in resting one’s argument on the absence rather than the presence of evidence. For example, the claim “Scientists have never disproven that aliens helped build the pyramids,” doesn’t mean the extraterrestrial claim is true. In the case of Comey’s new emails, the “We don’t know what’s in them,” is the main reason that the Clinton campaign was powerless to address them. Similar appeals to ignorance can also tie the hands of litigators. When the other side seems to invite the adverse inference from unknown or missing information, what do you do? You can’t just call it out as an “appeal to ignorance” since few understand the concept, and to the rest it sounds like you’re calling your adversary or your audience “ignorant.” I believe, though, that there are a few more ways to shine a light on the strategy. 

How it Applies in Litigation

I think there are at least a couple of common ways the litigation message can warp into an appeal to ignorance. 

Speculation Over the Witness You Didn’t See

Jurors sometimes hear about people that they don’t hear from. In front of some judges, a party can even say, “Why didn’t we hear from them?” and invite jurors to speculate about what those people would have said if they were witnesses. The other side, of course, can’t tell the jury what they would have said, but the main tools in dealing with it are to reinforce the scarcity of time (“We want to make our case briefly in order to respect your time”), the need to be selective (“We want to get to the heart of the controversy and not get mired in details”), and the potential redundancy of the testimony (“We have heard from numerous people within the organization, one more would not have added new information”).   

Suspicion Over the Empty Chair

Pointing to a party who is not represented in trial is a common strategy, and one that I’ve in a past post called ‘Eastwooding’ based on actor Clint Eastwood’s dramatic attack on an empty chair at the 2012 Republican National Convention. Blaming the absent individual or organization is a kind of appeal to ignorance because it invites fact finders to believe that, because they’ve heard no defense, then these actors have no defense. Assuming this assumption cuts against you in trial, what’s the best response? When you can, it is probably to take it head on and reframe the case: 

You may have noticed that the other side is talking alot about SmithCo, but no one from SmithCo is here to defend themselves. It is only natural for you to wonder why not, and the only thing we can tell you is that this trial is only focused on the parties that are represented and standing before you. The legal question to be resolved in this courtroom is just the legal question that separates our two sides — not other questions that might bear on other people.  

When it is allowed, that message can encourage jurors to believe that the other actor may have already been dealt with in some way. When the law allows that empty chair to be a nonparty at fault and end up on the verdict form, of course you cannot do that. But you can still control jurors’ attention to at least some extent by controlling the spotlight in order to present jurors with a bounded question of who is more credible: you or the other side. Make sure the central characters and change agents in your narratives don’t include your empty chairs, and focus your “if only” statements on just the other side as well.   

These aren’t perfect solutions, of course. Jurors have a natural need to create a complete story in their own heads, and that is sometimes going to require filling in some gaps. A good litigator pays attention to the whole story, including the gaps. 

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Other Posts on Logical Fallacies: 

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Image credit: 123rf.com, used under license

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May 9, 2016

Take Some Lessons on Creative Distancing from the GOP Nomination

By Dr. Ken Broda-Bahm: 

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Ever have a co-defendant that you didn’t quite want to oppose and didn’t quite want to embrace either? A good portion of the Grand Ole Party seems to be having the same problem right now. While the newly-minted Trump wing of the party celebrates the candidate’s ascension to the 2016 GOP nomination, many more traditionally-minded Republicans are finding themselves in a tough spot. After last week’s Indiana primary left Donald Trump as the last candidate standing and the presumptive standard bearer for the Republican party, officeholders and other opinion leaders across the party have faced the choice of whether and how to reconcile themselves to that fact. This campaign has proven (over and over again) that anything can happen, but the realities of the polls and the electoral map have stoked fears of not only a loss in the presidential race, but losses down the ballot for Republican House and Senate candidates based on historically high unfavorability ratings, particularly by women, Hispanics, and other minorities. That uphill climb has led some to try to put some distance between themselves and the candidate. Some in the establishment are straight-out saying that they cannot support Trump. Senator Lindsey Graham, for example, shared “I think Donald Trump is going to places where very few people have gone and I’m not going with him.” Jeb Bush, who is joined by his brother and father in withholding support, also agreed that Trump had not demonstrated the “temperament or strength of character” to qualify for the presidency.

Others, like New Jersey Governor Chris Christie and former Texas Governor Rick Perry, have simply written off their earlier statements (e.g., Perry called Trump a “barking carnival act,” and a “cancer on conservatism”) in order to flip the switch to endorsement. Most, however, seem to want to explore, at least for now, the broad gray area between opposition and embrace. The most common line has been the reiterated, “As I’ve said before, I will support whoever wins the nomination,” without mentioning Trump or acknowledging the fact that the nominee will now be no one but Trump. Others have been less supportive (like House Speaker Paul Ryan who is “just not ready” to support Trump as the nominee), or more equivocal (like New Hampshire Senator Kelly Ayotte who “supports” but does not “endorse” Trump). 

That stance reflects a need for rhetorical “dissociation,” which as I’ve written before, is a maneuver that is designed to separate the bad from the good when it comes to perceptions and attribution. For establishment Republicans, that means supporting the party while opposing, or at least not fully embracing, the party’s choice. For Republicans in close elections, it means putting a little daylight between yourself and a candidate who is a lightning rod for criticism.

That need for dissociation is common in litigation as well. Parties in discovery or trial will often need to distance themselves from past behavior or from the actions of employees or agents. Large companies often need to distinguish the popular perception from the reality. But the particular brand of dissociation Republicans face right now is most similar to a defendant’s dilemma in how to deal with a not-quite-adverse-but-less-than-fully-embraceable co-defendant example. So let’s draw a few parallels between the political scramble related to Trump and the litigation distancing related to co-defendants.

One, Think of Yourself While Realizing, that to at Least Some Extent, You’re in This Together

Every officeholder seems to cherish one thing above all others: reelection. Sure, it would be great for one’s party to win the oval office, but personally staying in one’s own office is often the first order of business. On that front, Republicans in the U.S. Senate and House, and even at state and local levels, have cause to worry. If Trump’s name at the top of the ballot holds down traditional Republican turnout, while at the same time also motivating higher turnout from traditionally Democratic groups, then election prospects are dimmed even for those Republicans who have tried to keep some daylight between themselves and Trump.

A parallel problem of being in the same (leaky) boat can affect co-defendants as well. Litigators in multiparty litigation well understand that, even though jurors can and do draw distinctions, the fortunes of multiple defendants do tend to rise and fall together. Skepticism toward the plaintiff’s case lifts all boats, while a perception of mutual finger-pointing at the defense table can sink them all.

Two, Choose Your Words Carefully

Speaker Ryan’s statement this past Thursday that he is “just not ready” to back Trump as the nominee, is interesting for another reason: Over the course of a 10 1/2-minute interview, he never used the candidate’s name. It is one thing to think about supporting the party’s “standard bearer,” and another thing to support “Trump,” even though they are now one and the same. As the Washington Post noted, “There is also a political calculation to treating Trump as the ‘Harry Potter’ villain Lord Voldemort — whom the novel series’ characters refer to as ‘He Who Must Not Be Named.'” They’re trying to limit the usefulness of any sound bites to the other side. 

Co-defendants need to be similarly careful with language. For example, you will probably want to avoid using “we” when referring collectively to co-defendants, and you might also avoid the term “co-defendants” altogether. While you will be inevitably be lumped together at least a little bit, you don’t want to magnify that perception to the point that you’re at risk of being mistaken for the same party.

Three, Distinguish Between Passive and Active Support

Right now, the strategy of choice among Republicans who are not excited about Trump, but not bold enough to oppose him either, is to offer support but make it passive. Representative Peter King, who earlier said that Trump was “unqualified to be president,” recently endorsed the apparent nominee, adding “but not with enthusiasm.” Similarly, Idaho Representative Raul Labrador said that he would support Trump but not participate in his campaign until Trump “grew up a little bit.” 

That attempt to thread the needle between “not opposing” and “supporting,” also parallels the need of many co-defendants. For example, in medical negligence cases involving several doctors, it is not at all uncommon for one doctor to find something to criticize in another doctor’s care. While the doctors can sometimes feel like they’re helping their own cause by throwing someone else under the bus, their more savvy attorneys know that jurors are likely to think that any doctor willing to point fingers is probably also blameworthy. When the doctor genuinely feels that her colleague’s care has problems, however, the best advice is to stay in your own box: The box created by your own specialization and expertise (I cannot say whether that is or isn’t within the standard of care because I’m not an ER physician) and the box created by your knowledge of the facts (I can’t say because I wasn’t there and didn’t see the same presentation that Dr. Smith saw). When active support isn’t possible or advisable, simply staying out of it can be a form of passive support. 

That’s what a fair number of Republicans are trying to do at this point. 

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Other Posts on Dissociation (and Other Rhetorical Distinctions): 

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Image credit: DonkeyHotey, Flickr Creative Commons

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April 28, 2016

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

By Dr. Kevin Boully:

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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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April 18, 2016

Communicate Your Moral Principles

By Dr. Ken Broda-Bahm: 

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It’s a pretty odd scenario, and one we don’t face every day:  

An out of control trolley is speeding towards a group of five people. You are standing on a footbridge next to a large man. If you push him off the bridge onto the track below, this will stop the trolley. He will die, but the five others will be saved. What do you do?

As odd as it is, this is a familiar scenario in moral foundations research, called the “trolley problem.” It is useful to those who research popular views of morality because it neatly separates consequential and deontological reasoners. The consequential reasoners are those who would prefer the familiar cost-benefit or utilitarian calculation: Better to save more lives, so go ahead and give that large man a push. The deontological reasoners, on the other hand, will hold that the rightness or wrongness of an action depends on whether it adheres to a good principle, and not to its individual consequences: Because it’s never right to take an innocent life, the large man stays on the bridge, and unfortunately the five in the trolley’s path die.  The dilemma not only echoes the long-simmering debate between Immanuel Kant and J.S. Mill, it also provides a window into a given individual’s moral foundations, and how you answer will influence how you’re perceived.

A current article in the Journal of Experimental Psychology (Everett, Pizarro & Crockett, 2016) compared the amount of trust received by individuals who made either the principle-based decision or the utilitarian decision in the trolley story and other similar scenarios. Over the course of five experiments involving more than 2,400 participants, the team from Oxford and Cornell found that “agents who express deontological moral judgments are more valued as social partners.” In other words, if you decline to push the large man off the bridge, you win more trust. As one of the authors, Dr. Molly Crocket, explained, “When asked to entrust another person with a sum of money, participants handed over more money, and were more confident of getting it back, when dealing with someone who refused to sacrifice one to save many, versus with someone who chose to maximize the overall number of lives saved.” Moral foundations, as well as the practicalities of winning trust, have relevance in litigation as well. How should individuals and companies represent their moral compass when at trial? To the extent that jurors will want to discover and assess your principles when assessing credibility, what are they likely to find? This post takes a look at the study and also shares a few thoughts on discovering and communicating your principles in a trial context.  

Naturally, all people are going to use some mixture of rule-based and consequentialist modes of reasoning, but which we prefer will vary by person and by situation. The research shows, for example, that quick intuitive judgement tends to be rule-based, while slower and more deliberate thinking tends to account for consequences. That difference has led some to label the deontic reactions as “emotional” or “irrational.” But lead author Dr. Jim Everett in Psyblog suggests that it arises instead from a different need: social popularity. “If people who stick to moral absolutes are preferred as social partners,” he explains, “expressing this view will reap benefits for oneself…and this makes sense — we shudder at the thought of a friend or partner doing a cost/benefit analysis of whether you should be sacrificed for the greater good.” That means that we tend to like those who adopt principle-based thinking, provided the principles in question resonate with our own. Instead of being a weakness or a mistake, then, deontological thinking is a smart social adaptation. As the research study concludes, principle-based judgments are “signals of trustworthiness to the extent that these judgments indicate respect for persons and commitment to social cooperation,” and all things being equal, “an agent who makes characteristically deontological judgments will be trusted more overall by a given population.” 

Applying this to legal communication, it suggests that parties would do well to communicate their moral absolutes. That means finding, grounding, and communicating your principles. 

Find Your Principles

What principle guides your work, your decisions, and your actions? Your answer will matter in discovery and in trial. For a doctor defending a professional liability case, that might translate into the “pattern and practice” guiding diagnosis and treatment. For a company defending a products or personal injury case, it might translate into a mission statement or a safety commitment. In either case, it will make sense to devote some careful thought to how to get beyond the generalities in order to get down to the concrete principles that guide your actions. 

Ground Your Principles

The second question to ask is why that’s the principle: Why does the doctor follow this particular pattern and practice, and why is the company committed to those principles and protocols? The trick is to get beyond the reason, “Because it is the right thing to do.” The rationale should be one that makes sense to jurors. Although the research shows that we prefer principle-based judgments, those principles themselves can be based on consequences. For example, we don’t knowingly sacrifice innocent life, like the life of the large fellow on the bridge, because most of the time, following that principle leads to more good than bad. For a company in particular, the rationale for the company’s actions are likely to be more credible if they are tied to profit, as in “We put safety first, at least in part because that’s what is good for business.” 

Communicate Your Principles

The last step is to make sure your jury or other legal fact finders know your moral absolutes. An understanding of the principles that ground your motives and beliefs goes to character, and can generate greater trust, just as it did in the study. So the time to start talking about those principles and absolutes comes in discovery when answering those “why” questions in deposition. For the company representative being asked about testing processes, it means answering not just by referring to vague statements of principle, but to specific protocols and the reasons behind them. For a doctor answering a hypothetical, it means answering by relying on a detailed explanation of your common pattern and practice in similar circumstances. 

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Other Posts on Morality: 

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Everett, J. A., Pizarro, D. A., & Crockett, M. J. (2016). Inference of Trustworthiness from Intuitive Moral Judgments. Available at SSRN: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2726330

Image credit: 123rf.com, used under license

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November 3, 2014

Know What Scares (the Top Five Fears)

By Dr. Ken Broda-Bahm: 

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It is said that you know someone when you know what they hope for and what they fear. Since we’re just past Halloween, let’s go with the latter. A new survey coming out of Chapman University focuses on the greatest fears held by Americans. Based on a random sample of 1,573 adults, the short list of the top five are as follows: 1) Walking alone at night; 2) Becoming the victim of identity theft; 3) Safety on the internet; 4) Being the victim of a mass or random shooting; and 5) Public speaking. These are the kinds of social science results that are interesting in their own right. But in keeping with the spirit of the Persuasive Litigator blog, I can’t help but wonder about the litigation relevance of these results. 

Motivation is, after all, key to persuasion, and fear is a powerful motivator. Litigators in a variety of contexts should be attuned to the fear that a given trial story can evoke when jurors inevitably map the narrative back upon their own experience. They’ll ask whether the case touches, even tangentially, on an issue that affects them. Could something like this happen to me? What can I do about it? Understanding fears is important to understanding audiences. The broadly influential Reptile perspective on legal persuasion goes so far as to say that reacting to fear and seeking personal safety and security, are the most important motivators for jurors. In that context, it is interesting that only two of the top five fears have to do with physical security in the sense of the risk of injury or death. That suggests that there are other powerful sources of fear that range beyond the physical threat. That would mean that fears don’t just come into play in wrongful death or personal injury cases, but extend to other more abstractly threatening situations as well. In this post, I’ll take a look at the top five scares according to the Chapman survey, and share some thoughts on why they might matter in a legal persuasion context.

#1 Walking Alone at Night

On this top fear, it strikes me that the researchers have chosen an indirect way of expressing it. I’d suspect that the fear isn’t literally walking alone at night, but is rather the vulnerability that walking alone at night connotes: the risk of assault. The core value in this case, then, is physical security. We don’t want to feel susceptible to physical harm, particularly in situations where that harm would go unnoticed or where we would be unaided. This personal safety-based fear would be invoked in litigation scenarios, most obviously, in cases which focus on a direct physical danger: products liability, medical negligence, or other personal injury or wrongful death cases. The fear these cases touch upon is the notion that there are forces out there that can hurt us. With that reference point, jurors will not just be evaluating the circumstances of the plaintiff, but will be looking at their own circumstances and asking if they or their loved ones could be put at risk by the actions of people like the defendant, or in some cases, by people like the plaintiff. After all, walking alone at night also seems like a choice. If it ends badly, then the first thought in response is often pointed back toward the victim: They should have made a different choice. 

#2 Becoming the Victim of Identity Theft

I don’t know if the Chapman survey on American fears has tracked this kind of data historically, but I would wager that this one is a relatively new fear. Identify theft, after all, is one of those crimes that essentially could not occur before our identities and our assets went digital. But again, the real harm isn’t the theft, but what comes after: debts we did not incur, damage to our credit ratings, and an inability to confidently participate in the marketplace. The core value at stake is our economic autonomy. That is a value that comes directly to bear in financial cases. Litigation involving banks and shareholders can equally tap into some strong juror fears based on being victims of impersonal financial forces beyond our control. In those kinds of cases, the defense strategy should focus on ways to put power back in the hands of customers, clients, and shareholders, to reinforce the conclusion that they are not inactive or unknowing victims, like those who have their identity taken without their knowledge, but are instead knowledgeable and sophisticated actors in their own right.  

#3 Safety on the Internet

Another historic newcomer among fears, this one looms larger with each new broad-based hacking crime or celebrity photo scandal. The core value at issue is the value of privacy. The fear is that there is a personal sphere that is breaking down in the modern age. In a litigation context, the strong valuation of privacy can lead a jury to be sympathetic to victims of stalking, harassment, or other situations where the personal sphere is under attack. But in addition to that content overlap, there is also a process concern in litigation: Potential jurors are suspicious of voir dire, particularly when it involves long or intrusive questioning. That questioning, and particularly a detailed questionnaire, can be invaluable, but its relevance needs to be made clear: We aren’t just prying, or just trying to ‘get to know you.’ Instead, we are asking about topics that bear on whether you are the right juror for this case. In addition, today’s jurors need to be reassured that their data will not be retained. Promise panelists that you will destroy the questionnaires and keep that promise.

#4 Being a Victim of a Mass/Random Shooting

The core value here, as in the case of number one, is physical security. We don’t want to come to a violent end. Personal fears of being a shooting victim are undoubtedly driven more by recent events and the news cycle than by statistical risk. And in this case, the added factors that distinguish this fourth fear from the first are the factors of randomness and luck. Shooting tragedies are characterized over and over again with that same word: “senseless.” Unlike the robbery or the assault victim, the mass shooting victim has no ‘logical’ connection to the crime. One implication of that is what this says about how we perceive tragedy and misfortune. The easier an event is to counterfactually ‘undo,‘ the more tragic it seems. We think, “If only those victims had not been there at a place and time that was determined at random.” That is part of the reason mass shootings garner more attention than much larger sources of risk, like domestic violence for example. In assessing your trial story or the other side’s, think about how easy it is to apply this kind of “if only” thinking to the choices of the parties.

 #5 Public Speaking

I’ve known since my college teaching days that public speaking is one of the top fears. That is interesting, because it seems like this particular threat would pale in comparison to the others. After all, few people are immediately threatened either physically or economically in the course of a public speech. But something really is at stake nonetheless. The core value in this setting is social standing. The public speech is simply an instance of presenting oneself to a number of other people at the same time: The potential loss is a loss in face. The implication for litigators and witnesses, beyond the advice of learning to use that stress, is that jurors – particularly, but not exclusively, in high-profile trials – worry about their own social standing. To support that feeling, jurors want to believe that they are making an independent and unbiased decision supported by the facts and the law. Any suggestion or implication made to them in either voir dire or trial that they would do anything else will bring about a defensive reaction.

There is one more interesting tidbit from the Chapman survey on American fears. They also looked at the question of who is the most fearful. Specifically, it turns out that the best predictors are low levels of education, as well as high levels of television talk show and true-crime viewing. In support of that fear, the researchers also demonstrate that a large share of the population believes that crime is increasing in a number of categories when it is actually decreasing. Truth is one thing, and the feeling of truth – ‘truthiness’ — is another. 

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Other Posts on Fear Appeals:  

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Chapman University. 2014. The Chapman Survey of American Fears, Wave 1. Orange, CA: Earl Babbie Research Center. 

Photo Credit:  RJ, Flickr Creative Comments (Graffiti attributed to Mau Mau)

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

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