Category Archives: Strategy

November 7, 2013

Medical Defendants: Don’t Put All Your Faith in Caps

By Dr. Ken Broda-Bahm:

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As a response to the perception of escalating jury awards in medical cases, a number of states have turned to legislative caps on noneconomic damages or overall damages. At last count, that preference for legislative limits on verdict amounts applies to all but 15 states (Alabama, Arizona, Arkansas, Connecticut, Delaware, Iowa, Kentucky, Minnesota, New Hampshire, New York, Pennsylvania, Rhode Island, Vermont, Washington, and Wyoming and the District of Columbia). All the rest have gone the way of caps. But the question is, do caps work? Should physicians, hospitals, and insurers be breathing a sigh of relief if their state has said “no” to runaway verdicts? The answer might surprise you. An analysis of trends in medical liability awards in high-risk jurisdictions and across the country (available here as a PDF download) was recently released by the Beazley Group underwriting company, and the report indicates that severe verdicts are increasing fastest in those states that have implemented damages caps. Pointing to California and Maryland as two tort reform states where verdict severity is still increasing significantly, the data also shows that the increase in verdict value is not limited to the worst venues, but is occurring in what have been seen as the safer venues as well.

Does that mean that caps are no good? Not necessarily, and I’ll take a closer look at the data below. But what it does mean is that caps are not, and were never, a foolproof insurance against escalating jury awards. That is due to the fact that, even as caps might reduce the overall caseload by making some cases less attractive to plaintiffs and their lawyers, they can increase the average value of those that remain by weeding out the low value cases. In addition, a motivated jury can still circumvent caps by loading up on those categories that are not subject to legislated limits, such as the uncapped economic damages. This post takes a look at the Beazley report and shares some thoughts on what methods, other than caps, defendants have for preventing runaway medical verdicts. 

Increasing Verdict Severity in Tort Reform States

The most attention-gaining finding in the Beazley Group’s brief trend analysis is the comparison of increase between tort reform states and other states. The chart below shows severity of closed claims, defined as verdicts or settlements over $2 million, is increasing faster in those states with tort reform (the blue bars) than in states without (the yellow bars). 

Beazley_2013_HPL_Benchmarking_Report-2_Page_4“The severity trend over the past four closing years,” Beazley notes, “shows a higher rate of increase in the tort reform category.” Writing about these results,  the healthcare business blog, Vital Signs notes, “The findings suggest the continued creativity of plaintiff lawyers and the desire of judges and juries to find ways around statutory caps and compensate sympathetic malpractice victims and their families.”

Of course, it is also worth noting that the proportion of severe verdicts is still higher in the uncapped than the capped states. The fact that the latter group is catching up doesn’t necessarily mean that caps are ineffectual. But for those caps, the verdicts could be even higher, or increasing even faster.

But the finding of high verdicts persisting and increasing even after caps is consistent with other research (Avraham & Bustos, 2010) showing that caps may increase the overall costs of litigation by drawing out the time to conclusion. In situations where jurors either know or can guess at the existence of a cap, that knowledge could also set a high anchor and lead to an increase in awards. Psychologically, it is the same effect at work when a store’s sign indicating “limit three per customer” increases the chances that customers will buy three items. If you know that you can award up to $250,000 in noneconomic loss, then you may have set the initial anchor at $250,000. 

Heading Off the Big Verdict

All of this goes to show what doctors, insurers and legislators should already know: Caps are not a panacea. Defendants still need to take great care in addressing damages in highly emotional medical cases. Here are a few ideas for dealing with that. 

Look for What Could Motivate a Large Award

Many commentators, like the Vital Signs blog above, are quick to point to sympathy as a driving force in runaway medical verdicts. In my experience, however, it generally isn’t sympathy, it is anger. A sad juror is not nearly as dangerous to the defense as a mad juror. Litigators need to consider the factors that promote anger — bad intent, deception, arrogance — as well as anything else that could leave a juror wanting revenge and not simply justice.

Consider the “Punitive Possibility” In All Damage Categories

It is a bad habit for litigators to only be thinking about the possibility of a punishment-motivated award when there is a line for punitive damages on the verdict form.  Jurors have other ways to punish. For example, they can buy into a ridiculously overpriced life-care plan if they think the defendant has it coming, or needs to hear a message. That can serve as a conscious or unconscious way of evading a cap on noneconomic damages. 

Remember to Think of Anchors

The robust effect of anchoring has been shown in laboratory experiments (the most famous of which (Tversky & Kahneman, 1974) being the demonstration that subjects’ estimates of the number of African countries in the UN can be strongly determined by the spin of a roulette wheel — simply seeing a higher number causes subjects to anchor on the higher guess and the same goes for a lower number). That finding does not completely translate to a litigation setting, because jurors are apt to be skeptical of attorney-suggested numbers, but as we’ve written, the use of high or low requested damages numbers can still play an important role in anchoring jurors on those numbers, and that effect applies to both plaintiffs and defendants.

Addressing the broader question of whether state legislators can effectively fence jurors in, I am reminded of the first Jurassic Park movie, where the mathematician Ian Malcolm played by Jeff Goldblum, is told there can be no chance the genetically recovered dinosaurs will breed in captivity because they are all female. Malcolm responded “Life will find a way” (and that is indeed what happens in the movie, with terrifying consequences). Perhaps the lesson of caps is as simple as that: Jurors will find a way. And if that is true, the best protection against a runaway verdict is going to be in your trial message and not in a damage cap.

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Other Posts on Damages: 

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Photo Credit: sk8geek, Flickr Creative Commons

September 16, 2013

Persuade Jurors You Play Fair in the Patent Sandbox

By Dr. Kevin Boully:

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

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

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

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

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

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

2. Show Jurors How You Earned It

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

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

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

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Other Posts on Persuasion in Patent Disputes

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Photo Credit: 123rf.com, Used under license

July 8, 2013

Expect Secret Information to Be Overvalued

By Dr. Ken Broda-Bahm:

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With the travel plans of NSA whistleblower Edward Snowden still up in the air at press time, the asylum seeker continues to draw attention to the extent of government surveillance of private communications in the U.S. and abroad. Some have questioned whether the diplomatic capital being expended on the dispute is worth it, and whether the revelations are even that revelatory. Russian leader Vladimir Putin, for example, analogized it thus: “It’s like shearing a pig – lots of screams, but little wool.” While the controversy carries obvious importance, it’s possible the story is being overvalued due to the frame placed around it: an unmasking of secret information. According to a forthcoming study (Van Boven, Judd & Travers, 2013 – previewed in the New York Times), we tend to place a much higher value on secret information just because it is secret. 

The researchers refer to this as a “secrecy heuristic,” or a tendency to believe that information that is or has been secret is extra important or credible for that reason. That rule of thumb applies in litigation as well. In a criminal context, of course, secrets and crime tend to go together. But the heuristic also plays a frequent role in civil trials as both sides look for discovery’s surprise revelations and the smoking gun emails never expected to be seen by a jury. In one recent contract mock trial, for example, the plaintiff focused on what transpired at “the secret meeting.” The jury absorbed that focus, even though the meeting was only “secret” in the sense that not everyone was invited – like most meetings – and what occurred there was simply a normal business proposal. Still, the theme of secrecy played an important role in the stories jurors reconstructed. This post takes a look at the new research on this tendency to overvalue secrecy and shares some thoughts on playing up or playing down the secret information in your legal case. 

Study: If It Is Secret, It Must Be Important and Credible

Leaf Van Boven and Charles Judd, professors of psychology and neuroscience at the University of Colorado, Boulder conducted two studies with doctoral candidate Mark Travers. In the first study, research participants read two government papers arguing each side of an issue (in this case, the sale of military jets to Taiwan), and based on random assignment, one paper was labeled classified and the other wasn’t. Most of the study participants believed that the “classified” document contained more accurate and well-reasoned information than the public document. In a second study, researchers provided a government memo and told participants that it had been used by the National Security Council to make a decision on the issue. Half were told the document had been secret and only recently revealed under the Freedom of Information Act, while the other half were told the document had always been public. In this case, again, the information was considered more useful, more important, and more accurate when research participants believed it was secret. 

Logically, there might be some reason to believe the opposite: Information that is hidden may be less accurate because it is immune to the natural checks of public scrutiny. The secrecy hueristic works the other way, however, relying on secrecy as an external cue in the same way that we might assume that old coins locked in a safe are much more valuable than old coins left on the dresser. For that reason, the previously “hidden” evidence that comes out in trial — an unguarded email, a confidential report, or a private conversation — is likely to take on greater importance due solely to the fact that it was once concealed.

Whether information is or isn’t secret is, of course, a fact. But smart legal persuaders will look not only at the quality and accuracy of evidence, but also in how salient that evidence is likely to be. Acknowledging the psychological reality of the secrecy heuristic points to a few ways that this effect can be dialed up or dialed down during litigation. 

Messages for Playing Up Secrecy

In cases where the secret information is to your benefit, you will want to play that up. Here are a few themes to rely upon when doing that. 

Care: This is how hard they tried to keep it secret. List all of the precautions and other concrete steps taken to maintain the secrecy of the information. The more steps, the more important the information is. 

Duration: It was secret for an awfully long time. A long-term secret is more important than a short-term one. Design your time line to reflect the difference between what was known (above the line) and what was hidden (below the line). 

Reluctance: It was only revealed when they were forced to reveal it in discovery. Discovery may be old hat to attorneys, but to jurors it can feel a little more dramatic. When legal process must be used to pry information out of the other side, that information must be pretty damning. 

Messages for Playing Down Secrecy

When the secret information potentially cuts against you, you’ll want to play it down. In addition to denying where possible the themes above (We didn’t try very hard to keep it secret, it wasn’t secret very long, and we shared it willingly), there are a few additional themes the secret-keeper can employ to drain away some of the impact. 

Normalcy: We treated it like we treat all our information. If the protective procedures are in line with the normal course of business — e.g., Yes, it was encrypted but so was our emailed lunch order — then it is ‘just business’ rather than a special secret. 

Expectation: Nobody really expected this to remain secret. Playing to current attitudes about online privacy and the openness of electronic communication, the theme that “nothing is really secret anymore” resonates. 

Consistency: We were saying essentially the same things publicly and privately. An unguarded email exchange about an employee might sound damning, but if you can say that “we were just candidly sharing with each other the same basic messages we were giving the employee,” then there is less harm in the secret. 

Coming back to Edward Snowden, it is also interesting to note the results of a new poll coming out of Pew Research Center for the People and the Press. According to that survey, a majority of Americans approve of NSA tracking Americans’ phone activity as a weapon against terrorism. While that view may be a well-considered opinion on the value of this kind of metadata mining, it also could be another instance of the secrecy heuristic: After all, Americans might reason, if it was a secret program, then it must be gathering some pretty valuable information. 

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Other Posts on Heuristics: 

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Image Credit: Library_Mistress, Flickr Creative Commons

 

 

January 24, 2013

Scare With Care

By Dr. Ken Broda-Bahm: 

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

As much as it plays a role in what we think motivates jurors, however, fear is not so simple. As I’ve written previously, “The problem with an unvarnished fear appeal is that it can backfire by causing its intended audience to withdraw from the subject matter.” In that same post, I reviewed a study showing that extremely dire threat appeals based on global warming actually led to a reduced belief in global warming (Feinberg & Willer, 2012). That is not to say that fear is never a good motivator, but fear appeals need to account for the complexity of human risk perception. This post shares a couple of lessons from a few studies illustrating the broader point that risk assessment is situational, nuanced, and difficult to predict. So, even when your case is able to invoke a threat, motivating decision makers and persuading, based on that threat, is not as simple as just pushing a button. 

Risk Assessment is Risky Business

The thing about a fear appeal is that fear motivates not just action, but cognition as well. Thoughts that are too threatening invite counterargument, or they may not be processed, remembered, and acted upon. If a threat isn’t accompanied by a clear tool for managing that risk, then it may just wash over us without changing our thinking at all. Apart from that effect on approach and avoidance, however, there also appear to be some important categorical differences in the types of fear appeals that motivate. 

Recently, Shankar Vedantam, the social scientist and author who writes the Slate column called The Hidden Brain, sat down with NPR host David Greene for a conversation on how we think about risk in the wake of the Newtown, Connecticut school shooting and similar events. Apparently risk assessment isn’t a purely rational calculation of probability and severity. Instead, Vedantam notes, “social scientists have known for a long time that there are dangers whose risks we underestimate, and there are dangers whose risks we overestimate.” When your case calls for jurors to understand a risk accurately – or, I should say, favorably – it helps to guard against those cognitive biases that would cause a fact finder to underestimate a risk you want to identify as high, or overestimate a risk you want to identify as low. The field of risk assessment sports a very broad literature, with grist for many blog posts. At this point, however, I’d like to just pick two themes that are particularly applicable when litigators are using or responding to a fear appeal. 

One, Focus on What We Fear, Not What we Dread. 

We might use the terms interchangeably, but there is a difference. As Vedantam noted, social scientists “talk about the difference between things that we fear and things that we dread. So we fear cancer and heart disease and traffic crashes, but psychopaths, serial killers and airplane crashes are things that we dread. When a danger seems like it’s inexplicable, when we have absolutely no control over it, when suddenly, out of the blue, it causes mass casualties, this causes not fear, but dread. And when it comes to dread, that’s when we tend to overestimate the risks.” When talking about guns, for example, we don’t worry about accidents nearly as much as we worry about mass shooters, even though the former are many times more common. This distinction might also explain the study on how we think about global warming. Focusing on the most dire predictions also treats the phenomena as “unmanageable,” and therefore something that is less likely to motivate action in response. 

This carries a lesson for legal persuaders. It may be tempting to invoke the biggest fears on the theory that those will be the greatest motivators, and because those are the risks that are likely to be overestimated. But aiming for the higher end of the fear spectrum can get you into the category of “dread,” and that leads you into the territory of risks and threats that jurors consider “unmanageable” — the kinds of fears that can result in an apparently apathetic or unmotivated (e.g., “shit happens”) response from jurors. The better course in thinking about your trial message and story when addressing fears or threats to jurors, is to focus on those that are realistic, tangible, and — most of all — manageable. If you invoke a fear, then you must also point to a clear message allowing jurors to control and alleviate that fear.  

Two, Address Fear in Social Terms.

Risks don’t exist in a vacuum but are given meaning within our social frameworks. A current study (Galesic & Garcia-Retamero, 2012), looked at the quote attributed to Vladimir Lenin, “one death is a tragedy, one million is a statistic,” and looked for the tipping point at which risks cease to become more meaningful. Unlike what we often see in social science research, there is a clear answer in this case: about a hundred. That is, our perception of a risk increases up to the point that it threatens one hundred people. A risk to ten is greater than a risk to one, and a risk to one hundred is greater than a risk to fifty. After that, however, greater risks are dreaded at about the same amount. In other words, something that threatens a thousand is not viewed as ten times worse than something that threatens ‘only’ a hundred. Instead, it is viewed as about the same level of threat. 

Why do we top out at around a hundred? The researchers suggest that it is because that is about the size of an average social circle. We can conceive of the number of people that we know and interact with on a regular basis. Perhaps these days that could mean the number of people in our Facebook networks. When we see risk posing a danger to a group about the size of our circle, then we see a risk that is about as big as it can possibly be. Based on that, it looks like Lenin had a point: We attach meaning to what is tangible, but risk is not as meaningful when it reaches a level of abstraction. The job of the legal persuader is not only to stick to the more concrete numbers, but also to incorporate the broader point of addressing risks in social terms. A given product, for example, doesn’t simply threaten or protect “people,” but “fathers,” “daughters,” and “grandmothers.” The risk, when viewed in the context of our familiar social networks, will always be more tangible and more important.  

As a final word, the persuasive strategy we have to fear is not just fear itself. It is really an oversimplified approach to fear. There are no automatic or simple routes to human motivation. 

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Other Posts on Fear, Reptiles, and Motivation:

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Galesic, M. & Garcia-Retamero, R. (2012). The Risks We Dread: A Social Circle Account. PLOS One. URL: http://www.plosone.org/article/info%3Adoi%2F10.1371%2Fjournal.pone.0032837

Gigerenzer, G. (2004). Dread Risk, September 11, and Fatal Traffic Accidents. Psychological Science, April. URL: http://pss.sagepub.com/content/15/4/286.abstract

Slovik, P. (1987). Perception of Risk. Science 236:4799, pp 280-285. URL: http://www.uns.ethz.ch/edu/teach/0.pdf

Photo Credit: Cogdogblog, Flickr Creative Commons

January 10, 2013

Incubate in Order to Innovate

By Dr. Ken Broda-Bahm: 

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I try not to be too self-referential in this blog, but this time around I have an illustration that’s a fitting parallel to the challenges of trial messaging. In the two years since we ramped up this blog and moved to our current twice-weekly schedule of posting on Monday and Thursday mornings, I’ve settled into a process that’s allowed me to spend most of my time consulting (that’s my real job), while still producing a regular stream of what I hope is good content for litigators. While I occasionally have a couple posts stacked up in advance, I’m usually writing with the goal of “just in time” publication. But for me to have a post ready for Thursday, I really need to have my topic firmly in mind on Monday. In fact, I usually try to decide on a topic immediately after the last post is up, or even a little earlier. Why? Not because it takes three days to write the post, but because the idea takes time to incubate. I need to have a period of reflection in which the idea kicks around in my head. Consciously or unconsciously, that initial fuzzy idea gradually forms itself into a clear point, some useful examples, and accessible language. 

When I actually sit down to write, generally the night before or the early morning of the posting date, it only takes a couple of hours to hammer it out. But I’ve found that I cannot pick a topic at the last minute: Without the incubation period, I’m lost. We’ve all probably had the same experience: Problems are resolved and ideas seem to appear out of nowhere only after we’ve allowed things to sit for awhile. And that jibes well with the research on problem solving. An incubation or resting period appears to be important and valuable for most of us when we are looking for creative solutions and ways around mental blocks. And the process of litigation is nothing if not a drawn-out series of challenges and obstacles that call for innovative thinking. So, it is a practical question for advocates and other members of the trial team: In your haste, are you allowing time for the incubation of your best ideas? 

Why Does Incubation Matter? 

Lawyers are used to seeing inspiration as a product of perspiration, and it is true that results take hard work. But creative results also appear to require something else. A recent post in the Psyblog takes a look at the question of incubation. “It’s wonderful,” the post notes, that the mind “can solve problems unconsciously while we’re getting on with day-to-day life.” For litigators looking to work around case challenges, come up with themes, or address a tricky witness, that ability to use our background brain is a definite advantage. 

The idea of a role for incubation in the creative process has been around for a long time. As discussed in Psyblog, it is one of the four stages originally identified by Graham Wallas, an English psychologist, in 1926. 

Stages in Creativity

  1. Preparation: A problem is isolated, organized, and targeted. 
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  2. Incubation: The problem is allowed to rest, free of conscious processing. 
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  3. Illumination: A solution enters into consciousness. 
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  4. Verification: The solution is tested and applied. 

On the question of why that incubation step often seems to be necessary between preparation and illumination, there have been two schools of thought. Some psychologists have held to the simple view that the brain just needs and benefits from rest. Other psychologists, though, have argued that incubation isn’t passive rest, but is instead an active, albeit unconscious process. One recent study seems to offer an answer to this intriguing question of exactly what is going on during incubation. 

The Research: Support for Active Incubation

A group of researchers from the University of Sydney (Gallate et al., 2012) set out to test the incubation effect in people’s ability to solve problems, even when they aren’t consciously working on them. Dividing research participants into two groups, they gave each a standard creativity test that involved listing as many alternate uses for something (e.g., a chair) as they could think of in two minutes. Each group was then given a distracting activity (solving a series of math problems), then they were asked to complete the creativity task again. What separated the two groups was this: One group was told prior to the distracting math task that they would be returning to their list of alternate uses, and one group was simply surprised after the math task that it was now time to return to the alternate uses list. While both groups reported that they did not consciously continue thinking about their list while solving math problems, the group that knew they would be returning to that task did substantially better on it. 

The researchers interpret that to mean that, even as their minds were consciously engaged elsewhere, the time nonetheless paid off, indicating that at least part of their mind continued to generate creative ideas. This also explains why incubation is the second, not the first, step. In other words, it helps if you are motivated by the knowledge that you’ll be returning to a task. To return to the blog for a moment, this explains why I insist on deciding on a topic before incubating on it. Just like the chicken and the egg: Without fertilization, no amount of incubation is going to help. Incubation isn’t procrastination because preparation comes first. According to Psyblog, “If you’ve looked at the problem from more angles before you start incubating, there’s more chance your unconscious can give you some answers.” 

One additional finding of the study was that the more creative a person is, the more they benefit from the incubation period. That also indicates that there is more going on than simply rest when an idea is allowed to germinate and mature inside our heads.  

Recommendations: Incubate Your Case

Okay, you say, that is some interesting information on creativity and problem solving, but what are the practical implications for litigators? Good question! The answer is that even the busiest trial teams on the tightest deadlines need to make sure that the true creative work has time to breathe. That is the big takeaway, but let me suggest a few applications.  

Incubate Your Trial Message: Don’t start thinking of your story and your theme on the eve of trial. Instead, conduct a strategy session early on just to get the juices flowing. Then, let it sit a bit. When you return to it, it will be stronger. 

Incubate Your Settlement: Don’t expect immediate action, or even necessarily a reaction, in response to your settlement offer. Don’t set an artificial deadline. Instead, let the offer sit a bit so that the other side can process, think, and come to terms. 

Incubate Your Witness: Don’t treat preparation for a problematic witness as a one-shot deal. Particularly when there are serious concerns, the witness won’t learn to apply solutions instantly. Instead, the witness may need to ruminate on and incorporate solutions, and you’ll need a second look to ensure that the fixes stick even after time away. 

In the long road to and through trial, there are countless other settings that require creative thought and breaking through obstacles. All of those can benefit from a little time and space for reflection. Of course, there is just one remaining question (that I’ll leave to the law firm administrators): Is an incubation period billable time?  

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Other Posts on Creativity: 

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ResearchBlogging.org Gallate, J. et al. (2012). Creative People Use Nonconscious Processes to Their Advantage Creativity Research Journal, 24 (2-3), 146-151 DOI: 10.1080/10400419.2012.677282

 

 

Photo Credit: Grendelkhan, Flickr Creative Commons

October 15, 2012

Be a Happy Warrior: 2012 Presidential Debate Series (Veep Edition), Part Two

By Ken Broda-Bahm: 

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The buzz following Thursday’s vice presidential debate between Congressman Paul Ryan and Vice-President Joe Biden has been that it was a substantive and spirited debate — with an emphasis on spirited. Both candidates appeared to be quick to challenge and eager to engage. Both appeared to be glad to be there. As summed up by CNN’s John King in the moments following the broadcast, they are “happy warriors.” Perhaps that happiness is understandable, since debate season is a high point of attention to the office of Vice President. On the other hand, the difference between especially the President’s apparently reluctant and professorial performance in the first debate, and the greater level of feistiness from those at the bottom of the ticket, may have as much to do with personality and attitude. Not just as a political tactic, but as an interpersonal trait, it helps to relish the sport of argument. 

There are certainly other ways of viewing argument: as an unpleasant conflict, a sad necessity, or a grim battle. For advocates and persuaders in all contexts, including litigation, situations involving argument present us with a choice of how we position ourselves within the conflict. Finding energy and even joy in the argument can be an important part of a persuader’s image, dynamism, and effectiveness. In this post, I’ll be using the vice presidential debate as a handy example of the advantages of being an eager advocate, some of which can be applied directly to the psychology of a trial lawyer. 

Of course, for political junkies like me, watching the debate is a spectator sport of sorts, with the vice presidential debate actually being a highlight because, freed from some of the need to be “presidential,” they often take the role of “attack dogs” of the campaign. But where the relevance meets the road is where there are practical takeaways that apply to advocates in other contexts, including that of a lawyer truing to win in front of an arbitrator, judge, or jury. From this debate, I see three lessons that relate to any advocate’s ability to be a happy warrior.

1. It’s Never Personal 

From the perspective of the audience, a public argument – like a political debate or a trial – should never appear to be a personal grudge match among combatants. It was no accident, for example, that Vice-President Biden consistently refers to Congressman Ryan as “my friend,” even while savaging his policies and priorities. Similarly, it was no accident that Paul Ryan took a moment early in the debate to recognize the military service of Joe Biden’s son Beau, even as Ryan criticized the administration for failing to protect the Libyan ambassador. 

Of course, in reality, disputes can be personal, and in the context of a lawsuit or a negative political campaign, that can mean deeply personal. In these contexts, it’s all the more important to keep the audience and decision makers focused on substantive elements of the dispute rather than interpersonal ones. Instead of using the overworked phrase, “with all due respect…” (a phrase that, through intonation, often conveys its opposite), show your respect by seeking an honest opportunity to compliment, or a harmless opportunity to acknowledge that the other side has a good point. More broadly, that respect is shown by keeping your irritation in check and maintaining an attitude and nonverbal communication style that is relaxed and friendly. That is what both the Vice President and the Congressman did, though in different ways. 

2. Reactions Are Critical (But Tricky)

Paul Ryan, the Republican vice presidential candidate maintained his good guy image by looking on attentively, but calmly and respectfully, as his adversary spoke. Joe Biden, on the other hand, clearly had a different strategy in mind. Following the presidential debate the week before, one of the main criticisms the President’s supporters leveled against Obama is that he didn’t react often enough to the sharp elbows and dubious factual claims being thrown by Romney. Trying to turn that around, Biden embraced the role of “fighting Joe” and didn’t limit himself to his official speaking time. Instead, he grinned, shook his head — clearly signalling when he thought Ryan was making a questionable claim — and frequently interrupted in order to do his fact-checking on the spot.  

Now, let me be clear: Don’t be Joe Biden in a courtroom. Nonverbal reactions during an opponent’s time can lead to a major loss of credibility. Indeed, just last weekend, I interviewed a former juror who said this about a client representative at counsel table: “He gave off a lot of cockiness as he sat there, rolling his eyes, passing notes, and laughing…it was like, ‘is this high school?'” When you think you’re “off stage” at trial, remember that you’re never really off stage, and your model here is Paul Ryan, not Joe Biden. 

But in a broader sense, the Vice President was doing something important that does apply to litigants: namely, making sure that reactions are known. An occasional and respectful “Malarkey” can be important when it is exercised in your next opportunity to hold the floor. And there are also some legitimate ways attorneys can interrupt the flow. Beyond making a well-placed objection (a tactic that can be overused) a good technique is to request a voir dire of a witness, on a foundation issue for example, midway through your adversary’s direct. Instead of a softly-spoken objection to the court, you have the chance to take the stage and make the point directly to the jury. 

Another great tactic to use when your witness is called adverse is to usually ask to engage in your full direct at the first opportunity. Instead of recalling the witness during your own case, argue that it would  be more convenient for the witness and the jury for you to insert a slice of your case into their case. It is a nice way to “pull a Biden” by jumping into your adversary’s argument. 

3. Disagree, With a Smile

 Of course, the essence of being a happy warrior is the attitude that you carry and, most importantly, convey. Both Biden and Ryan were passionate and friendly, treating each other with bemusement rather than contempt. Humor, for example, can often take the uncomfortable edge off of a sharp argument, while taking nothing away from that argument’s effectiveness. Joe Biden, for example, when addressing Ryan’s attack on the poor economy put it this way: “They talk about this great recession that fell out of the sky, like, ‘Oh my goodness, where did it come from?’ It came from this man voting to put two wars on a credit card.” Ryan, for his part, couldn’t help needling Biden for the President’s widely panned performance the prior week, when he tried to check Biden’s habit of interrupting by chiding, “I know you’re under a lot of duress to make up for lost ground, but I think people would be better served if we don’t interrupt each other.” 

Both of these take-downs were delivered with a sly smile, almost a wink, and a healthy dose of Irish charm. Attorneys have the same need to keep things light, even as you are trying to attach a heavy weight around your opponent’s neck. The point where this need for a friendly visage is most acute in cross-examination, but that is also the point where many attorneys will let it slip. Clearly cross is a time to score points, drain a witness’s credibility, and build your own story. But jurors don’t want to see Dr. Jekyl and Mr. Hyde when they compare the attorney in cross to the attorney at all other times. As the same juror I interviewed this past weekend noted, “I understand that they need to get answers, but I was surprised at how aggressive they became.” The difference between aggressiveness (a bad thing) and assertiveness (a good thing) is often tone, and what that says about intent. Some of the best cross admissions I’ve seen have been elicited not with a red face and a raised voice, but with a strategic set up and a “come on in” kind of smile. 

The 2012 vice presidential debate is likely to have a pretty short turn on the news cycle, but at least Biden and Ryan appeared to have enjoyed the ride. As attention swiftly moves on to the next presidential debate tomorrow, let’s take a lesson from the one vice presidential debate: When you’re pouring your whole self into these arguments, you may as well enjoy it. 

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The 2012 Presidential Debate Series:

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Other Posts on Lessons of Political Speech: 

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Image Credit: Donkey Hotey, Flickr Creative Commons (edited and combined by K. Broda-Bahm)

September 10, 2012

Persuade Through Dialogue

By Dr. Ken Broda-Bahm:

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P: Hey, have you seen the amicus brief that was written entirely as a cartoon?

S: A cartoon? You mean someone submitted a joke as an amicus brief?

AppleAmicusBrief_jpg singleP: No, not a joke. The lawyer, Bob Kohn, lays out his argument in a series of frames with characters and dialogue, like this. You can see the whole thing here.

S: Wow, did it work?

P: Not in the specific case. The judge went the other way just one day after receiving this cartoon. But it may get better mileage in the court of public opinion, through media coverage and in blog posts including this one.   Continue reading

September 6, 2012

Note the Challenges of an Empty Chair

By Dr. Ken Broda-Bahm

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In the week since actor and director Clint Eastwood made a surprise appearance at the Republican National Convention, his speech has become infamous. The chosen rhetorical device of engaging in a dialogue with an imaginary Barack Obama, represented by an empty chair, has spawned countless internet memes and has even led to the coining of the verb “Eastwooding,” to mean the act of arguing with an empty chair.  Continue reading

August 23, 2012

Clothe Responsibility in Action, Not Inaction

By Dr. Ken Broda-Bahm

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Imagine two scenarios involving figure skaters just before a competition. In the first scenario, one skater, perhaps a sneakier version of Tanya Harding, loosens some of the screws on the bottom of another contestant’s skate causing her opponent to fall and delivering the victory to the saboteur. In the second scenario, that same skater doesn’t touch the screws, but notices that they are loose and decides to say and do nothing about it, and the result is the same. Both situations are ethically comparable, since in each case, a selfish choice results in an unearned victory and potential injury to another. But as you might expect, the two scenarios are evaluated very differently, with greater responsibility and blame being placed on the act (the first scenario) over the failure to act (the second scenario).  Continue reading

August 20, 2012

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

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

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

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