Category Archives: Themes

September 7, 2017

The Right Introduction: Learn from Fiction

By Dr. Ken Broda-Bahm:

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The cliché words, “It was a dark and stormy night,” come from the opening sentence of the novel Paul Clifford by Edward George Bulwer-Lytton. And when you read the full sentence it comes from, you get a better idea of why it has come to be the quintessential example of a bad opening: “It was a dark and stormy night; the rain fell in torrents — except at occasional intervals, when it was checked by a violent gust of wind which swept up the streets (for it is in London that our scene lies), rattling along the housetops, and fiercely agitating the scanty flame of the lamps that struggled against the darkness.” So, it’s the kind of first line that says to the reader, “Stop now,” so much so that it inspired a yearly contest for worst opening lines, “The Bulwer-Lytton Fiction Contest,” and if you ever have a few minutes to spare, it has produced some hilarious winners and honorable mentions.

In trial, you’re also telling a story, and you also need an opening line. In oral argument or in front of a jury, those critical first impressions are formed quickly. A recent article draws the connection between trials and literature. The article is by Cathren Page, Associate Professor of Law at Barry University in Florida, and to draw a contrast to the Bulwer-Lytton style beginnings, it is entitled, “Not So Very Bad Beginnings: What Fiction Can Teach Lawyers About Beginning a Persuasive Legal Narrative Before a Court.” Specifically, Page argues that the introductions are critical in both settings in framing the story and setting expectations. Looking at opening lines from the novels Mists of Avelon, Catcher in the Rye, Peter Pan, and Middlesex, she uses them to analyze and critique opening lines from the death penalty case Brumfield v. Cain, the marriage equality case of Obergefell v. Hodges, as well as the criminal trials of Martha Stewart and Michael Jackson’s doctor, Conrad Murray.  Continue reading

May 5, 2016

Trust Your Sudden Insights

By Dr. Ken Broda-Bahm: 

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The work leading up to trial is often hard analytical work — the kind of gradual and methodological grind in putting the pieces logically together. But sometimes it is creative work — the kind of work involved in resolving a problem, hatching a strategy, or discovering a theme. That creative part of the work often depends on a moment of insight more than it depends on the hours of hard work. A sudden, fresh, and novel idea can be just what it takes. When I am working on messaging recommendations for a client, following a mock trial for example, sometimes the great idea will happen early, maybe while the mock jurors are still on site. But at other times, I find myself waiting on a truant muse and the idea emerges only much later. In a past post, I’ve warned about the danger in over-relying on imagination and using it as an excuse to avoid creative work, since the research shows that inspiration can sometimes be a result of perspiration. But one fact about inspiration is that you know it when you feel it. And according to some new research, when you feel it, you should trust it.  

A new study in the journal, Thinking and Reasoning (Salvi et al., 2016) has been covered in ScienceDaily and in Scientific American. Entitled, “Insight Solutions Are Correct More Often Than Analytical Solutions,” the research reports on several experiments showing that the “aha moments” involving sudden insights lead to correct solutions more often than the “hmm moments” involving gradual and analytical problem solving. The experiments involved puzzles requiring research participants to find a common term linking several other terms (for example, the terms “crab,” “pine,” and “sauce” are all linked to the term “apple”). After solving the problem under a deadline, participants were asked how they arrived at their answers. Overall, the solutions that emerged as sudden insights were more likely to be correct than the solutions that arrived after careful analytical thought. The research provides an interesting and creative reminder to litigators: Do the hard analytical work because you have to, but trust your sudden insights as well. 

The Problem With Being Analytical 

What does it mean to, as the law schools say, “think like a lawyer?” For the most part it means reasoning systematically and analytically. The psychological bias of “effort justification” makes us think that anything that is the product of a lot of effort is better than something that isn’t. The problem is that high-effort analysis isn’t necessarily better. “Conscious, analytic thinking can sometimes be rushed or sloppy, leading to mistakes while solving a problem,” says research team member John Kounios in ScienceDaily, “However, insight is unconscious and automatic — it can’t be rushed. When the process runs to completion in its own time and all the dots are connected unconsciously, the solution pops into awareness as an Aha! moment. This means that when a really creative, breakthrough idea is needed, it’s often best to wait for the insight rather than settling for an idea that resulted from analytical thinking.”

Consistent with that, the study found that while 74 percent of the responses described as coming from analysis proved to be correct, fully 94 percent of the responses categorized as coming from insight were correct. 

Finally, A Defense for Your Procrastination

An interesting companion finding to the study is that participants who tended to have more sudden insights also tended to miss the deadlines. In other words, those participants were more likely to wait for the right idea rather than providing an incorrect but on-time response. The deadline itself seemed to deaden creativity. The research team looked at the answers given in the final five seconds before the time limit and found that a surprising 72 percent of those answers were wrong, and that a majority of those wrong answers were based on analytical thinking. 

“Deadlines create a subtle — or not so subtle — background feeling of anxiety,” Kounios said. “Anxiety shifts one’s thinking from insightful to analytic. Deadlines are helpful to keep people on task, but if creative ideas are needed, it’s better to have a soft target date. A drop-dead deadline will get results, but they are less likely to be creative results.”

The more successful participants didn’t guess, they just didn’t give an answer until they had an “aha” moment.  

Space for Insight

We obviously won’t be doing away with the deadlines anytime soon in litigation, but the research results are a good reminder, even in the crush of systematic and analytical work that litigation brings, to reserve some space for insight. For myself, for example, I often find that the strategic thoughts I have during a bike ride are more valuable than the ones I hatch while hunched over a computer at the office. As Dr. Kounios concludes, “This means that in all kinds of personal and professional situations, when a person has a genuine, sudden insight, then the idea has to be taken seriously. It may not always be correct, but it can have a higher probability of being right than an idea that is methodically worked out.”

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Other Posts on Creativity in Litigation Messages: 

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Carola Salvi, Emanuela Bricolo, John Kounios, Edward Bowden, Mark Beeman. Insight solutions are correct more often than analytic solutions. Thinking & Reasoning, 2016; 1 DOI: 10.1080/13546783.2016.1141798

Photo Credit: 123rf.com, used under license

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November 30, 2015

The Right Theme? Look It Up in the Moral Foundations Dictionary

By Dr. Ken Broda-Bahm: 

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Without a theme, your case is just information: facts, claims, exhibits, instructions, and witnesses. It may be legally sufficient, but without a simple and central message to tie it all together, it is not persuasively sufficient. Experienced trial lawyers may be of one mind when it comes to the importance of a theme, but in my experience, there is quite a bit of variety in approaches for coming up with one. For some, it is a matter of creativity, inspiration, and “You’ll know it when you hear it” recognition. For me, though, the right theme is a matter of working it out. A good theme probably won’t be a bolt from the blue, it will instead be something that you’ve developed and crafted with a lot of different criteria in mind. After all, your theme needs to be something that doesn’t just speak to you, or to your favorable audience, or to one aspect of the case. Instead it needs to communicate your case holistically and it needs to resonate. 

That goal, finding language that resonates, can be an elusive one. A team of academics researching the characteristics of moral values, however, offers some practical help. A few days ago, while researching another post, I stumbled on something called the “Moral Foundations Dictionary.” Calling it a “dictionary” is probably an oversell: It is just a list of words with primitive formatting, allowing the list to be easily incorporated into content analysis software. Those words, however, have been demonstrated to track with the five universal moral values of care, fairness, in-group affinity, authority, and purity. The authors (Graham, Haidt, & Nozek, 2009) made the list available so it could be a resource for social scientists who are analyzing speech or text in order to determine its moral emphasis. But the list can also serve as a useful heuristic device for anyone who is looking for the right word to convey a particular moral idea. It is also a handy reminder to think about the moral values that are conveyed in language. In this post, I’ll share a few steps for working toward a theme using the Moral Foundations Dictionary as inspiration.

Step One: Pick Your Moral Foundation(s)

The idea of a finite list of common moral values comes from moral foundations theory. This branch of social science research started with the work of NYU psychologist Jonathan Haidt, reaching a wider audience with his book The Righteous MindThe work has explored the notion that humans think about morality on the basis of five (or more) common foundations, and those basic foundations both unite us (because nearly all people buy into them to some extent) and divide us (because different cultures and political groups put different emphasis on different foundations).  As I’ve written before, an understanding of these foundations can be useful in understanding audience adaption. The five most common moral foundations are as follows: 

  • Care Versus Harm: We seek protection and we oppose harm to ourselves or others. 
  • Fairness Versus Cheating: We seek justice based on shared rules and we oppose attempts to evade those rules. 
  • Loyalty Versus Betrayal: We stand with our own group and oppose threats to that group (also called “In-group morality”).
  • Authority Versus Subversion: We expect obedience to legitimate authority and we oppose attempts to subvert that order. 
  • Sanctity Versus Degradation: We want purity and we avoid that which arouses disgust (also called “purity”). 

Looking at that list, ask yourself what value is supported by your side of the case. If you’ve done a good job of case analysis, then one or more on that list should rise to the top. In a contract case, for example, your client’s position might embody the authority of the signed contract, or center on an avoidance of the harm caused by the breach, or focus on the degradation of what was once a productive working relationship. 

Step Two: Find the Words that Build that Foundation

If we decide that we want to focus on authority, then the Moral Foundations Dictionary is going to point us to words like the following: 

  • obedience
  • duty
  • lawful
  • respected
  • compliance

Of course, there is no great magic to the list; those are the words we would expect in a list centered on authority. But like a series of musical notes that resonate in a common key, these words convey a shared moral language. Combining them (e.g., the contract created a lawful duty, and my client complied with that duty) creates a statement centered on that specific moral foundation. 

Step Three: Consider Both the Positive and the Negative Side

It is notable that each moral foundation is expressed as a virtue contrasted with a vice. From the earliest days of Greeks writing about ethics, our views of morality have simultaneously focused on what to do and what to avoid. Lawyers crafting a good trial message are well-advised to follow the same pattern: Focus on both what is good and on what is bad in the moral universe of your case. A litigator’s first impulse is often to attack the other side, but a complete trial message also needs to involve a defense of your own side.

Helpfully, the Moral Foundations Dictionary includes separate lists of both “virtue” and “vice” words associated with each moral foundation. So expanding on the example above, the contract litigant might contrast their own deference to the contract with the other party’s defiance of the contract. 

Step Four: Work Those Words Into Your Trial Message

Once you have a working vocabulary, your job is to boil it down into one or more simple messages that capture the main emphasis of your case. Completing the theme on the contract case appealing to the moral foundation on authority, for example, the ultimate theme might look something like this: 

This case is about a lawful contract that was met with respect from one party, and defiance from the other. 

Or perhaps, given your audience, you are more interested in appealing to loyalty:

My client entered this contract in order to create a collective interest. Unfortunately, the other party deserted that interest at the first opportunity.

Alternately, maybe the focus is on care or harm: 

The aim of this agreement was to secure and to safeguard a mutual benefit. The aim of the other party, however, was to exploit and endanger those benefits. 

Those are all simple and straightforward statements, drawing from a meaningful and clear moral vocabulary. They might lack the self-conscious “artistry” that some might associate with a theme (e.g., “If the glove doesn’t fit, you must acquit”), but the real test is whether the theme works — whether you can use it in various ways during trial (witness examination, trial graphics, opening, closing, etcetera) and have it function to call the right feelings to mind. 

On that score, inspiration plays a role, but there is no substitute for hard work, both at the stage of developing the language, and at the stage of testing it beforehand. 

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Other Posts on Moral Foundations: 

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Graham, J., Haidt, J., & Nosek, B. A. (2009). Liberals and conservatives rely on different sets of moral foundations. Journal of personality and social psychology96(5), 1029. http://dx.doi.org/10.1037/a0015141  http://psycnet.apa.org/journals/PSP/96/5/1029/ 

Image Credit: 123rf.com, used under license

June 29, 2015

Design Your Metaphor

By Dr. Ken Broda-Bahm: 

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There’s a movie currently in the theaters called “Inside Out.” In the animated film, pyschological drives are personified as characters – joy, anger, disgust, fear, and sadness – all in charge of navigating the mental experiences of the main character, an 11-year-old girl. Beyond being a bit of entertainment for children, the movie is being credited with popularizing an important way of thinking about emotions and childhood development. Personifying those emotions as distinct, competing and cooperating characters, also shows the power of metaphor. The ability to say “this is like that” often plays an important role in explanations and arguments in trial as well. In a recent piece in the publication Aeon, a professional “metaphor designer” suggests that metaphors can be more strategic than we think. As noted in some of the comments, Michael Erard’s piece is not quite a how-to, nor an argument on the extent to which metaphors can be designed for particular effects, but the author does provide some wide-ranging and provocative thoughts on the subject.

Litigators sometimes have uneasy relationship with the metaphor. On the one hand, the metaphorical mindset is naturally at odds with the lawyer’s analytical, precise and descriptive sense: Rather than the facts and claims being “like something else,” litigators might be more drawn to that tautology of all tautologies, “It is what it is.” On the other hand, there are strong reasons to believe that we learn the new through the lens of the familiar, and metaphors cannot be avoided: ignore them in your opening and jurors will just supply their own. In an early post, I shared three questions to help you decide whether your metaphor helps or hurts your case: is it simple, is it a good fit, and does it hold its own against creative mischief. In this post, I wanted to draw from Erard’s piece to share some additional thoughts and examples of metaphors doing work for litigators. 

One point that Erard makes in his essay is that in thinking of the work that metaphors do, it helps to have a model of what they are: a ‘metaphor of metaphors,’ so to speak. While Erard shares his own, I would like to offer four possibilities, each highlighting the ways metaphors work as well as their usefulness in trial messages. 

Metaphors Are Bridges

Metaphors work most basically by drawing a connection between what is already familiar and the new idea or argument that you would like your audience to adopt. Erard quotes the University of Colorado’s Walter Kintsch as saying that these connections can come as a surprise, but “cannot be too much of a surprise.” However novel the connection, there must still be a bridge back to a familiar concept. In a construction case, for example, the party who is the property owner might be able to rely on the metaphor of a simple homeowner’s reliance on a contractor or on a variety of contractors, drawing upon the familiarity of the home contractor’s tendency to try to bid low and schedule quickly, and then to be both overbudget and delayed. By describing that scenario in terms the typical homeowner could recognize, the owner can get some nods of recognition as jurors are able to see the case from that too-familiar perspective. 

Metaphors Are Filters

In looking at the value that a metaphor provides, Erard notes that they “aren’t supposed to make someone remark: ‘That’s beautiful.’ They’re meant to make someone realize that they’ve only been looking at one side of a thing.” In trial, a metaphor can be a good way of getting jurors to look at another side. In a commercial case, for example, one party might describe a business agreement as a kind of combined journey like a marriage. Viewing through that filter emphasizes the human element and the relationship dynamic of care and consideration that the parties should owe to each other. The other party, however, might be more motivated to use the filter of a simple exchange, transaction, or swap. That filter of simply ‘getting X in exchange for Y’ would provide a much narrower focus, playing down those human elements. 

Metaphors Are Maps

Erard relies on the language of Northwestern University psycholinguist Dedre Gentner in describing metaphor as a ‘mapping’ between two concepts. Recalling the saying from the “general semantics” perspective on human communication that “the map is not the territory,” it is good to remember that the metaphor is not, and is not expected to be, the thing it describes. It can be however a very useful guidepost to understanding. A products liability defendant, for example, might want to send the message that the company engages in a very thorough and detailed quality control process in shepherding a product from its conceptualization and design through manufacturing, testing, sales, and post-sales monitoring. Viewing the sequence as a path is helpful in demonstrating that care and giving jurors a sense of place in that process. But viewing it as an obstacle course might be even better, emphasizing that a successful product is one that is able to get past all of the obstacles.

Metaphors Are Mistakes

When trying to find the right metaphor, Erard says, the process often involves planned mistakes that miscategorize the thing you are trying to explain: “The challenge for the designer is to generate lots of pseudo-mistakes, some of which can be used for thinking and that have the power to stick around.” That description of a sequence of mistakes is very close to the process of coming up with a good case metaphor. In one patent case , for example, we needed a way to explain a complex circuit relay system. In order to motivate jurors to defend it, they had to understand how it worked. The engineers’ first idea was to explain it in terms of a computer. But that was “strike one,” because only engineers understand how a computer works. So the second idea was to explain it in terms of Christmas lights where the problem to be solved was the need to replace each bulb in sequence in order to discover the one that was burned out. But that was “strike two” owing to the generational gap in understanding that metaphor — modern Christmas lights don’t have that problem. Then we thought about trying a checklist, but that was “strike three” because it didn’t convey the need for sequence with some steps depending on previous steps. After three strikes, we realized we already had our perfect metaphor: baseball. You can’t get to second without touching first, and so on. The invention was like an umpire making sure that the prior base had been touched before the runner moves on to the next one.  

As I mentioned earlier, Erard has his own ‘metaphor of metaphors’ and it is this:

“I think of it as a room: the windows and doors frame a view toward the reality outside. Put the windows high, people see only the trees. Put them low, they see the grass. Put the window on the south side, they’ll see the sun.” He also takes further by talking about the “furniture” in the room, or the devices the communicator uses to make the metaphor more comfortable, more familiar, more understandable, more useable. Now, that’s not a bad metaphor for metaphors, but I don’t think I could settle for any one — a metaphor by nature is dynamic. It’s not a room that you inhabit as much as it’s a perspective you carry with you. After all, the title of what is probably the most influential book on metaphors isn’t “Metaphors We Find,” or “Metaphors We Use,” or even “Metaphors We Design,” it is “Metaphors We Live By.”

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Other Posts on Metaphor: 

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Photo Credit: 123rf.com, used under license

June 23, 2014

Aim Your Theme at the Worst Case

By Dr. Ken Broda-Bahm: 

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If you’re going to lose your case, how will you lose? What is the most likely scenario that would have the jurors going in the other direction? That question lies at the heart of a theme approach that I’d like to demonstrate via a short video (below) from a recent conference. A colleague of mine, New York consultant Suann Ingle, calls this approach the “Pre-Mortem” in the sense that asking the “How do I lose?” question can help you win by allowing you to build your best response to that question into your central message. Sure, it is always good to think positive…to an extent. But a theme that speaks to those positives without giving attention to the worst case scenario risks preaching to the choir. That isn’t the best role for a theme. Instead, an effective central message for your case should target the higher risk jurors. Based on that “Pre-Mortem,” it should make it as difficult as possible for those jurors to take a route that leads them to vote against your case. 

At a conference for the American Society of Trial Consultants earlier this month in Asheville, North Carolina, I joined a panel to explore how different consultants would address the same fact pattern. I shared the stage with three of the most experienced consultants in the country: Pete Rowland (of Litigation Insights), Theresa Zagnoli (of Zagnoli McEvoy Foley), and Charli Morris (of Charlotte Morris Litigation & Communication Consulting). I believe that the ASTC will be hosting the video from the whole panel. but in the meantime, I wanted to use my own introduction to illustrate this idea of targeting your worst audience through your theme. This post includes a brief overview of the fact pattern, a video recording of my five-minute introduction, and then a transcript where I include an explanation of why I made the choices I made in the introduction. 

The Fact Pattern: Jackson v. Newland

We have used this fact pattern in a few instances before, including our visual persuasion study. It is a fictional account of a young baseball pitcher injured after being struck by a batted ball. Here are the vitals: 

  • 16-year-old high school baseball pitcher, struck and brain injured by a ball batted from a Newland “Series 7 Accelerator” bat – an aluminum alloy bat.
  • Plaintiff claims Newland manipulated the bat design and duped the bat standards test to allow greater exit speed for the ball. That increase in speed causes a pitcher to not have enough reaction time to avoid the ball.
  • Plaintiff claims that Newland advertised the Accelerator as a faster bat, and that it tested faster than other bats on the market.
  • Defense claims that the bat passed all relevant tests, and was not manipulated.
  • Defense also claims that any bat, with the right hitter, would have produced the same injury. 

For the theme exercise, I drew from our previous research indicating that defense is likely to win this case around 65 percent of the time. This is due to a couple of important barriers: One, jurors assume that the plaintiff’s case is all about sympathy, and two, jurors consider the risk of injury to be just one of the common risks of baseball. So, seeing that as the challenge, here is an introduction designed to address that risk.   

The Video: A Five-Minute Introduction

(Those of you receiving this post by subscription, I know you can’t see the video above, but you can access it by following this link). 

The Analysis: 

[Note: The transcript appears in blue, while my comments are in black

This case is about a pitch, but not about a pitch delivered from the middle of a baseball diamond. 

From the outset, I wanted to distance the case from the Plaintiff himself to prevent jurors from believing that it is a sympathy appeal about a young boy.

This case is about a pitch delivered from inside a corporate product development lab. A pitch at the market, a pitch to see if they could get past a flawed test, and ultimately a pitch at you. 

I also adopted this idea of a “pitch” with both its baseball and marketing connotations. The later is important, since we learned that jurors avoid sympathy because they don’t want to feel manipulated. So the theme in this case emphasizes that it is the Defendant company in this case who is doing the manipulation. 

And the goals of this pitch came from Newland asking themselves a few questions: What if we designed a bat with greater pop or exit speed of the ball off the bat? What if we gained greater market share by advertising this greater pop, this advantage over other bats? What if we did both of those while still somehow getting the bat past the test that is designed to place a cap, for safety’s sake, on exit speed off of the bat? And what if, when injuries inevitably occur, we’re able to say that that’s part of the normal harms of baseball?

Note that the entire focus is on the company. I wanted to keep Newland at the center of the story knowing that the higher risk jurors react negatively to any early focus on the plaintiff (since this would confirm their belief that the case is about sympathy) and emphasize the company’s power and choices. 

So here is the windup for that pitch: Newland and their top scientist, Dr. Carl Weatherspoon, try to load as much energy into this bat. They do that by taking the weight of the bat, set by regulation at 30 ounces, and moving as much of that weight as possible down into the handle and leaving as little weight as possible in the barrel or the hitting surface of the bat. Now that does two things. Number one, it dramatically increases the swing speed of the bat. And number two, it maximizes what’s called the trampoline effect – when that thin wall of the bat barrel bends in to receive the energy of the ball and then springs back to release that energy back into the hit.

We also knew from the pretrial research that the Defense had a good argument that, however good or bad the test is, they passed it and that’s all they need to do. To address that, the emphasis is on their manipulation, or “windup” of that test. 

Now that is the windup, and here’s the pitch. They still need to get this bat past the test — the ball exit speed ratio, BESR test. Now it sounds fancy, but it’s actually pretty dated. It’s a perfectly fine test for back when bats were uniform and made out of aluminum, but wholly inadequate for modern bats made out of aluminum alloy and highly engineered. The worst fact about this test is that it’s done on a stationary bat. That’s right – a bat that’s not moving. They essentially fire a ball at the bat and then record how fast the ball bounces off. So, it doesn’t account for the swing speed. It doesn’t account for the part of the bat that Newland manipulated. And Newland was able to get their pitch past a nearly blind umpire.

I thought that this level of detail, atypical for an introduction, was necessary just based on the amount of faith that we saw defense-oriented jurors placing in the test. If I was going to get anywhere with these jurors, I knew that I needed to introduce some early skepticism of this test. That meant explaining how it works, as well as what it leaves out. 

And it wasn’t a wild pitch either, it went exactly where they intended. You will see evidence that Newland knew that they were exploiting the flaws in this test. You’ll see internal company documents, including one from Dr. Weatherspoon that says, “We see opportunities to move forward and design around the restriction.” And Newland was proud of that advantage. You’ll see trade journal publications that say, “This bat hits with greater pop than other bats.” Even one ad that went so far as to say, “Watch out pitcher.” Watch out pitcher.

We knew that the naturally pro-defense jurors simply would not hold the company responsible for an inadvertant injury. So we had to make the outcome as intentional as possible. That is why the introduction has emphasized the company’s choices: external and internal communications that show the company’s knowledge. 

But here’s the thing — this bat, the redesign, the manipulation by Newland — deprived the pitcher and every other player on that diamond of the ability to watch out. You know, you’ll see the science, but there’s a minimum reaction time that the eye and the brain needs to see an object and get out of the way or catch it.  It’s 400 milliseconds — a little less than half a second. And this manipulation, the tests show, increases the speed and brings the reaction time below that threshold. So the pitcher cannot watch out.

The issue of reaction time is technical, but essential in getting skeptical jurors to shift their attention from the players on the field to the company. Also emphasizing that the case is based in science, helps these jurors to get past the perception that the Plaintiff is grounding their case in a sad outcome and appealing to sympathy. 

And so with that knowledge and that manipulation, it’s not a question of whether someone will be hurt, it’s a question of who and when and where and how many.  And the family that is bringing this case is one example of one consequence of Newland’s decision to try and pitch past a flawed test, and they did by design. 

The attempt here is to downplay this individual Plaintiff (who isn’t even named in the introduction) and make the point that the case is about the safety of all players. This approach also tracks with the Reptile perspective by encouraging jurors to see the case through a frame that carries relevance to themselves and their loved ones. 

And they’re going to try to pitch past you as well. Now, our expectation of the pitch for you is going to be that this is a case about sympathy. This is a case about the inherent risk of sport and youth. Or that this is a case about baseball. Don’t swing at any of those. None of those are true. This is not a case about a  tragic pitch from the center of a baseball diamond. This is a case about a tragic and irresponsible decision from a corporate product development lab. And this is a case about a dangerous and irresponsible pitch being made by Newland, still today here in this courtroom.

As a guard against defense-oriented jurors’ feelings that this Plaintiff, and plaintiffs generally, try to manipulate, the emphasis here is that it is the defense who will be trying to manipulate you by oversimplifying the case and distracting you from their own choices.  

 

This approach is just one of many, and hopefully readers will be able to see how other consultants address the same case study, including the response from the defense. But I believe the same principle applies to both sides. The temptation is to focus on your strengths and to speak to your most favorable audience. But the more effective use of those precious introductory minutes is to aim at a worst case by targeting your theme toward the factors that would make you lose.

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Other Posts on Theme: 

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Photo Credit: rOckchuck, Flickr Creative Commons

June 5, 2014

Go for Sticky Theme Over Catchy Phrase

By Dr. Ken Broda-Bahm: 

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Brothers Chip and Dan Heath’s Made to Stick book focused on what makes some ideas thrive and persist while other ideas die, and that idea itself has had some stickiness to it. I was reading an ABA Newsletter recently, and Trey Cox applied the idea to trial themes, arguing that in order to be sucessful, a trial theme ought to be simple, unexpected, concrete, credible, emotional, and story-based. That is a good checklist, and it prompted a recollection of an article that I wrote a while back, but never included here in this blog. So, with some thanks to The Jury Expert for the reprint permission, here it is: 

By now, the advice to “use a trial theme” is or should be familiar to any practicing litigator. It is intuitive to discover and use a statement that unifies and embraces your view of the entire case. But crafting the right theme involves much more than thinking of a phrase that rolls off the tongue and sticks in the memory.  As important as it is for a theme to do both, a theme needs to do more in order to serve the critical function of being that central representation and reference point for decision makers. 

A Quick Case Study

How a theme works depends to a large extent on the specific challenges faced by your side in litigation.  Just to serve as a running example, consider a fictional employment case¹ in which a female worker, Rhonda Webb, was employed in an otherwise male-dominated manufacturing jobsite at a company, Nordick. Alleging that a co-worker, Frank Wilson, has engaged in an extreme and escalating pattern of comments and unwelcome advances, Webb files a sexual harassment and constructive discharge suit after resigning. In discovery, it becomes clear that the perpetrator considered his frequent sexual comments and occasional touching to fit within the category of “just joking around,” but it also becomes clear that the Plaintiff often willingly participated in workplace horseplay and engaged in an extramarital affair with another employee, her supervisor. It also becomes evident through discovery that many in the company – including managers and human resources personnel – knew of Rhonda Webb’s complaints about Wilson. These complaints were verbal and somewhat informal and Webb did not follow the company’s notice policies by making a detailed complaint in writing to either HR or management.

With this brief fact pattern in mind, I’d like to take a closer look at what would and wouldn’t work as a theme and why. 

How Does a Theme Work?

The Plaintiff’s attorney likely remembers from trial advocacy CLE’s that she ought to have a theme to address some of these facts.  At the same time, the attorney may not know the cognitive and psychological reasons that themes work.  There are three ways of looking at why a theme works:  

1) A Theme Works Like a Lens.  

A theme is a way of viewing or filtering information in a given situation. Psychologists call it a “cognitive schemata²” or a mental process of bringing emphasis to some aspects and de-emphasizing others. Described as a “recipe for selecting, storing, recovering, combining, and outputting information as they transform diverse and disparate data into a cognitive scenario of ‘what is going on here,’³ jurors’ interpretative scheme is central to their ability to organize information and convert it into a verdict. Just as your reading glasses can blur distant objects while bringing closer objects into sharper focus, a good mental construct will sharpen some aspects of a situation while causing others to recede into the background. In Rhonda Webb’s case, is it a story about a mistreated employee, a story about a sexist perpetrator, or a story about a company that failed to act on what it knew? The way the story is told determines what your decision makers notice first and foremost.  

 2) A Theme Works Like an Anchor

Your most favorable language can also work like an anchor, or as a point that jurors start from or gravitate toward. You may be familiar with the concept of an “anchor” in the context of money damages.4 Stating a figure like $20 million won’t guarantee a $20 million result, but chances are good that once shared, this figure will serve as a starting point for adjustment. As long as the figure is not so extreme that it creates backlash, jurors who hear an anchoring figure of $20 million will end up with higher damages than those who hear a starting figure of $10 million.  Similarly, if your theme serves as your best view of the case, it can also serve as jurors’ starting point of view. For example, assuming that Rhonda Webb’s attorney focused the theme generally on ‘a company that failed to act on what it knew,’ then even a juror who failed to buy that theme 100 percent would nonetheless have a more favorable view of the Plaintiff’s case if the theme helped that juror spend more time thinking and talking about what the company could have done differently, while focusing less on what Rhonda could have done differently. 

 3) A Theme Works as a Cue

When repeated, key language can also serve to cue specific thoughts about the case. You are likely familiar with the idea of conditioning: Because Dr. Pavlov rang the bell whenever he fed the dog, the bell became associated with food and, before long, that hungry dog salivated based on the bell alone. Of course, jurors cannot be programmed quite as easily, but by presenting the strongest thematic language before, after, and during the strongest arguments, Rhonda Webb’s attorney can create a theme that cues jurors to recall the best case strengths. “The theme,” according to Atlanta attorney Marlo Leach, “allows the jury to listen to the evidence, while at the same time relating it back to the message that you have told them is key to the case.”⁵ In this case, the theme is the bell.  

What Makes a Theme Effective?

But if the theme is the bell, then what is it about a particular theme that can make jurors salivate the most? It likely isn’t found in language that sounds forced or that too overtly calls attention to itself by saying in effect “…here is the theme!”  If it sounds like a slogan or an advertising jingle, then jurors’ natural skepticism toward attorneys may prevent it from truly functioning as a theme.  Getting to an effective theme means getting beyond the catchy phrase, and any theme chosen should not be an impulsive ‘top of the head’ or ‘gut’ determination.  Instead, your theme should be carefully vetted based on its ability to live up to five standards:  A theme should be: 

Targeted

Holistic

Economical

Memorable, and 

Easy

 1)  A Theme Should Be Targeted

A theme should be targeted in two ways. First, it should be targeted toward your toughest audience (the ones who will need to be persuaded). For the plaintiff, that would mean targeting your theme toward the naturally pro-defense jurors (logical, process-driven, high personal responsibility, etc.), instead of being addressed to the naturally pro-plaintiff jurors who are likely in your corner already. Attorneys will generally need to check the natural tendency to speak to the most favorable group, and instead take aim at the toughest jurors – a few of which will almost inevitably survive voir dire. Second, the theme should be targeted toward your weaknesses. It should give jurors a way of addressing your biggest problems while still finding for you. It isn’t a matter of dwelling on the negative side of your case, it is a matter of giving jurors armor against your opposition’s predictable emphasis on those weaknesses.  

2) A Theme Should Be Holistic

A theme should not just address one particular issue, but should instead address the case holistically and comprehensively. A theme which is just about damages, or just about sympathy, or just about causation is not enough to give jurors a general way of viewing the case. Instead, the theme should serve as a way for jurors to put the case together and to see the story in a particular way. That doesn’t mean that the theme needs to address every single issue – it never could – but it should be a way of viewing the case generally, not just a way of highlighting a favored argument, a single specific issue, or a particular piece of evidence.  

 3) A Theme Should Be Economical

One of the reasons a theme needs to be general, instead of addressing each issue in the case, is that it needs to be economical. A good theme practices word economy by saying the most in the fewest possible words. If you have the good fortune of having several good candidates for a theme, choose the shortest. As Leach notes, “The theme is your entire case summed up as briefly as possible.”⁶  

4) A Theme Should Be Memorable

Even as a theme aims for conciseness, it should include some element to make it memorable, because a theme that jurors remember and use is more likely to be effective. All of the traditional mnemonic devices (alliteration, assonance, metaphor, familiarity, unexpected turns of a phrase, etc.) may be brought to bear here, but it is still good to remember that art can be taken too far. A subtle approach is generally better and less likely to lead jurors to feel that they are being talked down to. For example, choosing alliteration may be better than choosing a rhyming scheme.  

 5) A Theme Should Be Easy

Finally, a theme should be easy to use, and by that I mean that it should  be effortless and natural to work into your presentation at several points. It should be easy to say and easy to repeat. Importantly, it isn’t a theme if it is announced just once. It is only a theme if it is worked into several points. “For an idea to be a good theme in a trial,” McElhaney writes, “it has to keep coming back throughout the case.”⁷    

Sample Themes

In the theme-building process, it is natural to consider several candidate themes before settling on the one that works best. For example: 

Candidate Theme:  All Rhonda Webb wanted was a safe environment where she could do her job.

This theme would have the appeal of casting Rhonda’s complaints in the most reasonable light.  Ultimately, however, it is probably an ineffective theme because it just appeals to sympathy instead of appealing to defense-oriented jurors, and because it could draw attention to a potential defense theme that Rhonda Webb had a pattern of wanting more in the work environment — like relationships with co-workers. 

Candidate Theme: Nordick didn’t know where to draw the line between work and play.

Again, this theme, while it may be quite true as it relates to the company, still makes it too easy to call to mind the Plaintiff’s weaknesses (at-work horseplay and romance) and it invites the response, mental or actual “…and neither did Ms. Webb.” The theme also risks buying into Mr. Wilson’s worldview that harassment is simply “play.” 

Candidate Theme: Notice means notice.  

This language, as a play on “no means no,” should be familiar in a sexual harassment context, and may be effective in emphasizing the central point that, hairsplitting aside, Nordick knew of harassment issues in the workplace and should have acted on that knowledge. However, those jurors likely to buy into an absolute “no means no” mindset, and to believe that any notice counts as legal notice, are likely to already be Plaintiff supporters anyway. 

Selected Theme: Nordick knew, but Nordick said “no big deal,” and that left Rhonda Webb with no real choice.

This theme contrasts the Defendant’s knowledge with the complacency in its informal responses to the situation in a simple, subtly alliterative phrase that is conversational enough to be repeated at several points in the case narrative. If ultimately chosen, it does the best job so far of meeting the five criteria: 

1) It is Targeted. The phrase “Nordick knew” is an important way of bridging over the question of a formal report to focus on the relevant purpose of any report, and to emphasize that in one form or another, Nordick had that notice. In addition, the emphasis on “Nordick” rather than any particular decision maker is a way of emphasizing that at all levels, Nordick knew that at least there were reasons for further investigation into Wilson’s conduct. It addresses two main weaknesses: One, whether Webb did enough to give notice (that doesn’t matter, because Nordick knew); and two, the fact that Webb resigned (only because she had no real choice).  

It also targets the Plaintiff’s harder-to-persuade jurors, because defense-oriented jurors are less likely to be swayed by sympathy or appeals to fairness and responsibility. These jurors are instead motivated by procedure: Did the company follow the right steps? That line of thinking calls attention to the most glaring of the company’s weaknesses: The emphasis on the complacency of the company’s response (No big deal), contrasts with process-oriented pro-defense jurors’ expectation that in this day and age, there is a procedure to follow when there is any knowledge of a possible sexual harassment situation. Even if jurors also fault Ms. Webb for her conduct or for failing to make a clearer record, they can still conclude that the company erred grievously by relying on informal responses and then assuming, but not verifying, that any problem had been resolved.

2) It is Holistic. Instead of singling out a specific issue, this theme presents a combined message on harassment, the company’s knowledge, the company’s trivialization and lack of response, and finally Rhonda Webb’s necessity to leave that leads to her constructive discharge claim.

3) It is Economical. While it is not the shortest of the candidates, the selected theme still boils down to a short sentence. In addition, an even shorter version (‘Nordick knew’) could be used at several points in the case presentation.  

4) It is Memorable. It is mnemonic because it is short, uses some subtle alliteration (Nordick Knew…No big deal), and parallel phrasing (…No big deal…No real choice…). At the same time, it avoids the perception of ‘artfulness’ that might lead jurors to see it as over the top or manipulative.  

5) It is Easy. As illustrated in the next section, the theme lends itself to repeated application, either in whole or in part. 

 Using the Theme Throughout Case

 1) Using the Theme in Opening Statement

The first few minutes of a good opening statement are referred to as the “Silver Bullet” designed to tell the initial story of the case and help set jurors’ impressions while introducing the theme.  The following is one example of a Silver Bullet incorporating the above theme. 

You will hear that the situation Rhonda Webb faced in Nordick’s workplace went far beyond casual joking. From her supervisor, Frank Wilson, she faced constant sexual comments, continued and unwanted touching of her body, and was held, kissed, and groped: a situation that screams of sexual harassment. Yet the worst part of this situation is not just what Frank Wilson did in the workplace, it is what Nordick knew, and what Nordick considered to be ‘no big deal.’ When Rhonda Webb reported this situation to her supervisor, then to his supervisor, then to the human resources manager, and then finally to the assistant to the plant manager – Nordick knew. The Nordick plant manager will tell you that he knew about the situation with Rhonda Webb, but he will also tell you he considered it no big deal – he just had a little talk with the shift supervisor, who then had a little talk with the abuser himself…and that’s it. Problem solved. Mission accomplished.  No questions, no investigation, no interview, no report, no plan, no verification that the problem had been resolved. Nordick knew, and said ‘no big deal.’ And when that is the only option Nordick pursued, Rhonda Webb had no option but to resign and to remove herself from a situation that screamed of harassment.  

But that isn’t the way it is supposed to happen. When Nordick knows, Nordick has no legal option but to follow a process that resolves the problem. Because they didn’t, Rhonda Webb now has no option but to be here today and to ask you for justice.

 2) Using the Theme in Witness Examination

The thematic goal in cross-examination will be to have the witness confirm various elements of the theme. In Frank Wilson’s case, we know that he will not confirm the harassment, or necessarily the fact of Nordick’s knowledge, but he is ideally situated to confirm and embody Nordick’s ‘no big deal’ attitude toward harassment. 

In the deposition of the perpetrator, Frank Wilson, he describes the talk that Rhonda’s supervisor had with him, presumably after he had been asked by the plant manager to deal with the situation: “Other than Ned telling me to leave her alone, no one said anything to me. And the only reason Ned said to leave her alone was because Rhonda was his girl.” So, to Mr. Wilson, the company’s response is just a case of boyfriend defending girlfriend, no big deal. The opportunity in cross is to demonstrate how Nordick’s response echoed Frank Wilson’s own casual attitude toward the harassment.

Using this as a jumping off point for cross, one way to cross on this theme might be as follows: 

A:  Do you recall the shift supervisor asking you to leave Rhonda alone?

W:  Yes.

A:  You believed he was asking just because Rhonda was his girl, right? 

W:  Right. 

A:  So you didn’t consider this any formal message from management, did you? 

W:  No I didn’t. 

A:  …just a comment from a boyfriend?

W:  Right.

A:  No big deal?

W:  No big deal.

A:  And you never heard from the Nordick human resources manager that you should stop harassing Rhonda Webb?

W:  No.

A:  And you never heard from the Nordick plant manager that you should stop harassing Rhonda Webb? 

W:  No.

A:  So, it seemed to you like it was no big deal to them either?

W:  It wasn’t.

3) Using the Theme in Closing Argument

The closing argument should return to the theme in a more pointed and argumentative fashion.  Here is one possibility: 

You have now had the chance to hear from both Rhonda Webb and Frank Wilson, and they couldn’t have described a situation that was more different…or more similar. Different because what Rhonda Webb saw as daily intolerable harassment, Frank Wilson saw as no big deal. But similar because, apart from the way they saw it, they both describe and confirm the same basic facts: constant sexual comments, continued touching of her body, and unwanted holding, kissing, and groping.  

I guess it is not surprising that Rhonda Webb and Frank Wilson would see these same facts in two different ways. But what is more surprising is that Nordick chose Frank Wilson’s view: No big deal. When Rhonda Webb told her supervisor, then his supervisor, then the HR manager, and then finally the plant manager’s assistant – Nordick knew. But when Nordick, time after time, chose no response or the ineffectual response of a little chat, Nordick said ‘no big deal.’

Nordick is forgetting that in today’s workplace, any suggestion of harassment, indication, or  possibility of harassment has to be considered a big deal. You all know that from your own  work experience and the law, what you will hear just confirms that. When a company knows, as Nordick knew, it can’t say ‘no big deal.’

But Nordick is here today and, in effect, Nordick is still saying ‘no big deal.’ In blaming Rhonda Webb herself for participating in a romantic relationship that Nordick allowed, in saying ‘we needed to hear about the harassment a few more times,’ or ‘we needed to see it in writing,’ or ‘the plant manager needed to be told by Rhonda herself and not by his own assistant,’ Nordick is still finding lots of ways to say ‘no big deal.’ 

Your verdict today is a chance to finally set the record straight. To say, ‘Nordick, you knew, and it is a big deal.’  

Ultimately, the best theme flows naturally into your own patterns of argument and advocacy, and fits naturally with the facts of your case. Think of the musical meaning of a theme – not the “theme song” but the theme itself, and there is a definite parallel. The theme from Star Wars can be conveyed in only five notes – a sequence that is so familiar it may be creeping into your head right now. That theme is not just relegated to one song or one point in the movie score, it reappears throughout the movies in many different scenes and moods. As a result, it unites and sets a tone. Your best trial theme should do the same thing. 

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Other Posts on Theme: 

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This article originally appeared in The Jury Expert

Notes

1 This fact pattern, Webb v. Nordick, is owned by the Foundation of the American Board of Trial Advocates and is used here with permission. 

2 Schutz, A. (1970).  On Phenemenology and Social Relations.  Chicago: University of Chicago Press.

3 Holstein, J. A. (1985).  Jurors’ Interpretations and Juror Decision-making.  Law and Human Behavior9:1, pp. 83-100.  p. 85. 

4 Hinsz, V., & Indahl, K. (1995). Assimilation to anchors for damage awards in a mock civil trial. Journal of Applied Social Psychology, 25, 991-1026. 

5 Leach, M. O. (2005). Common Themes for a Successful Trial.  Tort Trial Insurance Committee News.  p. 1.

6 Leach, op cit. 

7 McElhaney, J.W. (May, 2007).  Themes That Strike a Chord.  ABA Journal.

Photo Credit: Thomas Angermann, Flickr Creative Commons

November 14, 2013

Don’t Underestimate the Power of a Unifying Vision: A Return to the Reptile

By Dr. Ken Broda-Bahm: 

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The Reptile (Ball & Keenan, 2009) is about as hot as a cold-blooded creature can get. The theory, focusing on trying plaintiffs’ cases by aiming your appeals at the primitive drive for personal safety and security, seems to have struck a chord with plaintiffs’ attorneys. With regular seminars, a growing family of books, and strong word-of-mouth endorsements, trial consultant David Ball and attorney Don Keenan are on their way to making the Reptile a standard plaintiff’s approach for medical, personal injury, and products cases. Recently, I wrote a piece on responding to the Reptile approach for The Jury Expert (“Taming the Reptile: A Defendant’s Response to the Plaintiff Revolution”), and based on the high number of hits that article has been getting, it seems the defense bar is taking a substantial interest as well. In that article I argue that, despite having questionable foundations in some pseudo-scientific beliefs about the brain, the notion of appealing to basic security and safety needs is likely to be effective anyway because it speaks to juror motivation, and because it encourages persuasion that is both nontechnical and personally relevant. Defendants, however, can respond by targeting their own favorable motivations, and by undercutting the simplicity the Reptile approach depends upon. 

One point that I did not make in that article, but have been thinking about since, is the way the advocacy for the Reptile approach itself is a good example of its own principles in action. A common criticism of the Reptile perspective is that it puts some old persuasive ideas into a new package. I believe there’s truth to that but, at the same time, you’ve got to admit, the packaging has been pretty effective. In the book and in what I’ve seen of the surrounding material, Ball and Keenan are preaching what they practice. They address the fundamental insecurity of plaintiffs facing tort reform and skeptical anti-plaintiff juries, and apply a broad metaphor and a simple unifying and protective theme that provides a rallying point for the plaintiff’s bar. For this post, I want to look beyond the question of whether the Reptile has sound roots in science, beyond even the issue of its effectiveness in trial, and instead consider the selling of the Reptile approach as an example of effective persuasion in action. 

The Rise of the Reptile

I gave a seminar recently, and the panel also included a plaintiff’s attorney experienced in the Reptile approach. After I gave my spiel, similar to what I cover in the TJE article, he stood up and said that there is essentially no defense. “If the Reptile is done right,” he said, “Defendants simply lose.” This nearly religious level of commitment seems to be common in the plaintiffs’ bar. “Reptile strategy has taken the plaintiffs’ bar by storm,” Epstein Green and William Ruskin wrote in a piece appearing last month for the Association of Corporate Counsel. Rather than just being seen as a strategy that may help your chances, the Reptile is promoted and embraced as the way to victory. “The Reptile always wins,” Seattle lawyer Patrick Trudell blogged, quoting a line from the marketing guru Clotaire Rapaille. 

The pace of trainings, as well as the continually increasing count of verdict value that adherents attribute to the approach – now nearly $5 billion – points to the widespread embrace. But perhaps the best indication of the expanding appeal comes from the notice the defense bar is now paying to the Reptile. When I first wrote about Ball and Keenan’s work, I had trouble locating defense comments on it, but now they are everywhere (e.g., here, here, here, and here) and span the gamut from dismissing it as nothing new, to accepting it and responding on its own terms.  

What may be most telling is that all the skepticism and criticism so far seems to come from the defense side. I could have missed it, but I’ve yet to read or speak to a plaintiff’s attorney who says, “Yes, I’ve read this and I don’t buy it.” Instead, those plaintiff-side litigators who talk about Reptile don’t give anything other than an enthusiastic endorsement of the book and theory. 

The Power of a Unifying Vision

That success in the short-term speaks to the persuasive power of the Reptile perspective. I think we can see three basic functions for the theory. 

Theme. Broadly the notion that “the greater the danger, the more the Reptile cares” is an effective theme: Simple, visual, and memorable. Whether the evolutionary explanation of the role of the reptilian brain is accurate or not, the idea serves to bind together an array of information under a single short statement: exactly what a good trial theme is supposed to do.

Movement. There is a reason the subtitle for the book is the “Manual of the Plaintiff’s Revolution.” It is not intended to be a simple list of strategies, it is intended to be a mobilization, a rallying cry, and a call to action. In that setting, it may be helpful to view the approach as a kind of social movement, with plaintiffs’ attorneys marching under a Reptile banner. What matters most is that they’re in this together. 

Confidence. To a persuader, confidence is a powerful weapon. If plaintiffs’ attorneys feel that they have an approach that can get them past the hardened anti-plaintiff jurors steeped in a simplistic recall of the McDonald’s hot coffee case, they will be more likely to invest in cases, more likely to take cases to trial and, to at least some extent, more likely to win. Confidence can be contagious. 

History: (Ghost) Dances With Reptiles

If you know your American history, you’ve heard about the Ghost Dance Movement. In 1890, a  religious fervor swept beleaguered Native American tribes of the plains, including the Souix and Paiute, who learned from a prophet that if they performed a particular mass ritual, the spirits of their ancestors would return, restore the old ways, and grant them protection from being killed in battle. What drove them to that belief was the fear, really the knowledge, that their way of life was coming to an end. But fighters who believe, even wishfully, that they cannot be killed in battle are something to be afraid of as well. 

That hearkens back to my co-presenter who said that when it is done well, there is simply no defense against the Reptile approach. I’m never one to be afraid to stretch an analogy. So, to me, it isn’t a surprise that a plaintiffs’ bar, facing fewer trials, strong anti-lawsuit attitudes, and tort reform would similarly embrace an apparently new belief if a prophet tells them it will essentially make them invulnerable. 

But remember the flip side. The 1890 Ghost Dance Movement didn’t actually make Native American fighters immune to bullets, as the Wounded Knee Massacre at the end of that same year amply demonstrated. But it did provide a powerful unifying vision, at least for a time, and that by itself was pretty dangerous to their enemies.

So that, I think, is part of the lesson defendants should take. Many write-ups on the Reptile approach coming from the defense side have trivialized or mocked it, and I think that is a mistake. Even if the science is questionable, and even if there are practical limits to the effectiveness of a fear-based approach, the Reptile can still be very powerful as a theme and a unifying vision, bolstering what ends up being fundamentally sound advice to plaintiff attorneys. 

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Photo Credit:  Webbaliah, 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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Photo Credit: 123rf.com, Used under license

May 13, 2013

Beware the Anti-Theme

By Dr. Ken Broda-Bahm: 

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We’ve written frequently on themes: those little nuggets of language and meaning that distill a case to its persuasive essence. As consultants, we create themes even more frequently, trying to find the right message to leverage a case’s greatest strengths while minimizing or reframing its most important weaknesses. By definition, a theme is a simple message that helps an audience see your case in its most favorable terms. But based on some recent research, there is also a mirror image of that: an ‘anti-theme’ in the form of the condensed message that would turn off your audience and turn them away from your case. Considering these anti-themes when working on the contours of your message can help you know what to avoid and what to preempt in your trial strategy. 

The study (Gromet, Kunreuther & Larrick, 2013) focuses on consumer choices in lightbulbs and found that buying behavior could be substantially reduced in some audiences just by adding a single, apparently positive message to the packaging. While the question of “What sells an audience?” naturally garners much academic and practical attention, the parallel question of “What kills the sale?” should merit equal attention. And this focus fits well with a goal I’ve written about before: the need to use those forces that attract an audience toward your message (alpha strategies), as well as the need to address the forces that potentially repel an audience from your message (omega strategies). This post applies this approach-avoidance perspective to the question of themes. In addition to looking at the research on the words that can wound your cause, I’ll also share some of my own thoughts on common anti-themes that could play a role in a jury’s or judge’s response to your case. 

The Research: When Can Your Message Harm Your Case? 

Proving that you can learn about social science in just about any setting, I learned about this research from a recent Colbert Report. The article, appearing in the considerably more credible source — at least from an academic perspective — The Proceedings of the National Academy of Sciences reports on two studies conducted by researchers from the Wharton School of the University of Pennsylvania and Duke University. For the first study, the researchers asked 657 people to reveal their political leanings, as well as their habits and specific responses relating to the purchase of energy-saving products. From that study they found, unsurprisingly perhaps, that those who leaned in a conservative direction were more likely to buy such products if they were advertised as cost-saving investments, while those on the more liberal end of the spectrum were more likely to buy the products when they were advised as solutions to environmental problems. 

But the second study is where it gets more interesting. Using an additional 210 participants, they gave each two dollars in order to purchase a lightbulb. They could buy a conventional incandescent bulb for fifty cents, or they could buy a compact fluorescent bulb for a dollar and fifty cents. In each experimental condition, the higher priced bulbs were the same, but the pitch for them changed. In one condition the bulbs were pitched as good for the planet, and in another they were pitched as a money-saver. What the researchers found was that liberal participants were likely to buy the compact fluorescent bulb regardless of which appeal was used, however conservative participants were significantly less likely to buy the bulb when it was paired with an environmental message. 

You might think the message that something “protects the environment” is a positive message, or at worst a neutral one, so it might be hard to imagine how that message would reduce the product’s appeal. The reason according to the researchers has to do with how people supply a frame. Based on past experience and the example supplied by other messages, conservatives have come to associate “environmental” terms with liberalism, causing them to shy away from anything connected to those appeals. So rather than just failing to help, the theme makes things worse for that audience, making it an anti-theme. 

What Are Some Common Anti-Themes? 

The same thing can happen in litigation messages. Juries and other legal audiences are obviously not uniform, and that fact typically leads us to advise clients to target the higher risk audience. That audience can be turned off by some of the very things that work best for your more favorable audiences. Here are a couple of examples: 

Plaintiffs Should Avoid These Implied Messages: 

This case is about sympathy…”  For many jurors, “sympathy” is a Devil Term representing everything that they presume to be wrong with the American tort system. For many jurors, sympathy is what plaintiffs rely on when the facts, the evidence, and the law don’t support them. To make a decision on sympathy is to set aside reason for emotion, paving the way for the worst kind of abuses in the jury system exemplified by a distorted image of the hot coffee case (Liebeck v. McDonalds Restaurants). If the jury gets the message that the plaintiff — or the defense for that matter — is relying on sympathy, then expect their skepticism to rise by several orders of magnitude. 

“We chose this Defendant based on deep pockets…” In addition to assuming that plaintiffs leverage emotion and sympathy, the tougher audience for plaintiffs also tends to assume that lawsuits are motivated by deep pockets. The idea of targeting a company based not on their responsibility for the loss but based on their ability to pay for it, also speaks to those suspecting the worst about America’s legal system. Emphasize too much of the “they’re a big company” message and jurors may start to believe that this fact, and not liability, is why the company is in the case. 

Defendants Avoid These Implied Messages: 

“We just followed the law…”  Of course, defendants need to show adherence to laws, but it shouldn’t stop there. The company that did the minimum or simply toed the line on regulations, especially those designed to protect health and safety, is not fully taking responsibility. Jurors who present a worst case for defendants will often expect parties to do not just what is legal, but what is right. A responsible company would want to do more than adhere to regulations. They would want to fully protect their customers and partners, and that is most credible when it means going above and beyond what the law requires. 

“We didn’t act responsibly, but that didn’t cause any harms…”  Anytime your case depends on jurors finding liability but cutting the plaintiff short when it comes to causation, you know you have your work cut out for you. Jurors are notoriously prone to jump the gap between liability and damages. In some ways that makes an intuitive kind of sense: “So, you did something wrong, did you? Okay, let’s talk about how much that’s going to cost you.” Some jurors can get to the point of appreciating causation, but it takes an analytical step that is quite often skipped. So in most cases, a party acknowledging liability is sending a message that it deserves at least some punishment. 

 So How Do You Address Anti-Themes?  

Those are just a few examples, and most will be specific to the facts of your case. But once you know what your own anti-themes are likely to be, what do you do about them? Beyond deciding to avoid them, are there steps that would help jurors resist them more effectively if they do emerge? Yes, there are. Once you think it is likely that an anti-theme might be invited in through an adversary’s messages or through jurors’ own preconceptions, you can attempt to inoculate starting in voir dire and continuing through your trial message. 

To think about what inoculation against an anti-theme might look like, consider the scenario used in the study. For example, when appealing to the conservative lightbulb buyer, what if a spokesperson led with something like this:

Some people say these bulbs are good for the environment and I don’t know about all that. I just know that over the life of this bulb, there will be a whole lot of money staying in my pocket instead of going to the power company.’

That would be a way of saying, “yes, we know there is a theme out there that might turn you off, but that is not what my appeal is about.” You could take the same approach as a plaintiff trying to avoid the perception of a sympathy appeal:

You know, at the heart of this case, there is a terrible injury, and I know it is only human nature that some will be sympathetic to that, and it is also human nature that some of you will harden yourselves against that not wanting to be moved by sympathy. And that response is fine, because this case is going to be based on clear facts, clear evidence, and clear law…not on sympathy. I’m not asking for that and neither is my client. 

A broader point to appreciate in this discussion: Cover the negative and not just the positive. Instead of simply adducing reasons and evidence for the jury to go along with you, you need to think as well about the barriers and reply to the preconceptions, good and bad, that are likely to be on your target audience’s minds.   

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Other Posts on Theme: 

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Gromet, D. M., Kunreuther, H., & Larrick, R. P. (2013). Political ideology affects energy-efficiency attitudes and choices. Proceedings of the National Academy of Sciences.

Image Credit: By the author

    

March 4, 2013

Speak to the Brain’s Politics

By Dr. Ken Broda-Bahm: 

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Once more, over the cliff! Our lawmakers have had to make, or not make, some risky decisions lately. The “sequester,” a poison pill of across-the-board cuts designed to force a spending compromise, has just done what no one believed it would do when it was created in 2011: It’s gone into effect. That is widely expected to result in hundreds of thousands of layoffs, imperil effectiveness across federal programs, and potentially nudge our struggling economy back into recession. It’s a reason to be wary of artificial deadlines, and just the latest example of Democrats and Republicans appearing to be not just different parties, but different species unable to meaningfully communicate with each other. The two parties may share the same language, but they seem to have very different brains. And a recent study appears to actually show that: There are differences in the ways the reds and the blues use their gray matter, especially when making decisions associated with risk.  

A team of British and American researchers in politics and psychology recently published a study (Schreiber et al., 2013) showing that Democrats and Republicans use different parts of their brain when making risky decisions. Measuring activity in several regions of the brain as participants engaged in a gambling game, the research team was able to identify party affiliation as Democrat or Republican with a surprising 82.9 percent accuracy. For litigators, this result might confirm the intuition that we should be communicating differently with liberal and conservative judges and jurors. In this post, I take a look at this study and add some ideas and examples of how these acquired differences in thinking style could influence your trial message depending on whether you are talking to red brains or blue brains. 

Is Your Brain Red or Blue? 

Turns out, instead of checking your party registration or your voting behavior, we can simply check your neurons. Researchers affiliated with the University of Exeter in the U.K. and the University of California, San Diego in the U.S. (Schreiber et al., 2013) conducted this study, building on a line of research showing different cognitive styles separating liberals and conservatives. Using 82 participants, the team had the volunteers perform a specific task while they looked under the hood using fMRI in order to reveal, based on blood flow, the areas of the brain that are being used most. Importantly, participants were engaged in a nonpolitical activity: a simple gambling exercise meant to induce risk taking or risk-avoiding behavior. 

While engaged in this task, Democrats showed greater activity in the left insula, an area in the brain that is believed to be connected to self-awareness, social awareness, and specifically the perception of others’ internal states and drives. Republicans, on the other hand, showed greater activity in the right amygdala, the region associated with our reactions to fear and the fight or flight response.

So when thinking about risk, liberals and conservatives do seem to be using their brains differently in ways that are reliably observed. Looking at which parts of the brain were lighting up during the risk exercise, the researchers were able to predict party affiliation with an 82.9 percent accuracy rate. That is a very good rate, and substantially better than other social cues to party identification. Using the party affiliation of one’s mother and father, for example, one is only able to predict an individual’s political orientation 69.5 percent of the time. As lead author Darren Schreiber notes in EurekAlert: “The ability to accurately predict party politics using only brain activity while gambling suggests that investigating basic neural differences between voters may provide us with more powerful insights than the traditional tools of political science.”

So, How Do You Persuade…

All of this discussion of neural regions isn’t really useful to active litigators and other persuaders unless it translates into identifiable strategies of influence. Of course, there is a difference between noting differences in brain usage and having a defined template for persuasion (nothing is that simple… especially not the brain during persuasion). And there is also a difference between the gambling game the study participants engaged in and the jurors’ task of deliberating, though I’d argue that deciding a case is a situation where something is similarly at stake, and fact finders are motivated to reduce risk through their decision. Based on that, I think it’s worthwhile to take the idea a step further than the authors did and contemplate the different messages and argument styles that might appeal to Republicans and Democrats deciding a legal case. So, let’s start with the red-brained Republicans. 

…The Red Brain? 

If the study is correct and conservatives make greater use of the fear-processing amygdala when thinking about risk, that buttresses the idea that Republicans are more sensitive to frightening stimuli and more driven by threats to personal security. This dovetails nicely with the “Reptile” perspective (Ball & Keenan, 2009) currently in vogue in the plaintiffs’ bar, based on the strategy of appealing to jurors’ reptilian fear center by portraying the defendant’s conduct as a threat to jurors’ own safety and the safety of others. If this Reptile strategy is really a strategy for persuading Republicans, that would make some sense given that they’re also the group most likely to be suspicious of lawsuits, to side with defendants, to oppose higher damages, and to support tort reform. 

Whether one supports the full Reptile approach or not, the brain study suggests that it still makes sense to speak to fear as a motivator if your most important persuasive targets are likely to be conservative. Here is what one red-brain appeal might sound like in a slip and fall case. 

A Fear Appeal

This case is about a number: 9,400. 9,400 is the number of people who use the outdoor polished granite steps in front of Smithfield Plaza every single day. They’re business women and men, they’re showing up for work or delivering packages, they’re stopping into the food court for a bite. They’re also mothers and fathers, children, spouses, breadwinners – they’re people you see every day, maybe even you or those you love. Another 9,400 on average every day, including rainy days when those polished granite steps become an unexpectedly slick hazard that has injured three dozen of those people so far – that we know of. And what makes these injuries, this known danger, and this broad risk all the more intolerable is that it is so easy to solve, with a simple application of a no-slip gripping tape on each step. 

This part of the appeal is about personalizing a threat. It isn’t just about the plaintiff, who hasn’t even been mentioned yet, but about the safety of all the people close to you, and maybe even the jurors themselves. 

…The Blue Brain?

Moving on to the blue-brained Democrats, the study indicates that they’re more likely to activate brain centers connected to self-awareness and social awareness. To me, this suggests that liberals are more likely to filter through the lens of community values, particularly the notions of universal morality, like care or fairness. In addition, because the brain regions in use are those associated with the attribution of internal states to others, motives and not just consequence are likely to matter more. If that is true, then an audience of Democrats might respond to the following appeal on the same slip and fall case: 

A Motive/Community Value Appeal

This case is about a number: 275. That is how many dollars — material plus labor – it would cost Smithfield Plaza to install simple gripper tape on its steps. This is the rough adhesive, usually black, that we see routinely at the edge of a tread, particularly when the surface is exposed to the outdoors and potentially slippery weather. Just $275 to put the tape down. So that number raises a question: When the cost is less than the executives spend on a team lunch, why wouldn’t they just do it? You’ll hear it from the top, the answer is they don’t do it because they don’t want to maintain it. You see, based on the traffic, the strip gets torn, or it forms bubbles and separates from the tread after a while. You’ll even hear them claim that a loose strip could catch someone’s heel and pose a greater threat. But that isn’t concern…it’s greed. You see, the solution — the same solution applied by everyone who uses that tape — is just to replace it every two years. So, $275 every two years. That’s it. To avoid that expense, the owners of Smithfield Plaza instead choose to put the 9,400 daily users of these steps at risk.

Of course, that appeal also includes an element of threat and danger, but the main emphasis is on motive and the negative societal value of greed that’s associated with that. The theme also resonates with the anti-corporate bias that we know is more likely to be held by those on the left side of the political spectrum. 

In an actual trial, you would want to use both appeals at some point (e.g., This case is about two numbers). You would want to combine appeals because you probably won’t get juries composed of just one political stripe (though you’ll come pretty close in some urban and rural areas), and because the more diverse message is simply the more complete message. Still, it’s important to think about who responds to what parts of the message. If the study is correct, then the first theme (personalized danger) will play a bit better with conservatives, which the second theme (a motive of greed) plays better with liberals.

The bigger lesson is to keep your audience in mind. That is something at which our Government may be currently having a little less than 100 percent success. As the voting public contemplates the sequester, its effects are likely to have them in a blue mood, or maybe seeing red. 

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Other Posts on the Brain in Persuasion: 

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ResearchBlogging.org Schreiber D, Fonzo G, Simmons AN, Dawes CT, Flagan T, Fowler JH, & Paulus MP (2013). Red brain, blue brain: evaluative processes differ in democrats and republicans. PloS one, 8 (2) PMID: 23418419

 

 

Image Credit: _DJ_, Flickr Creative Commons (Colorized by Nick Bouck, Persuasion Strategies)

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