Category Archives: Uncategorized

December 4, 2017

Nod Your Head

By Dr. Ken Broda-Bahm:

Nodding your head up and down means “Yes.” At least in our culture it does. And world travelers will know that this one thankfully translates to nearly all other countries and cultures as well. There are exceptions, like one country I visited a couple of times on consulting trips: Bulgaria. There, shaking your head up and down, our “Yes,” actually means “No,” and shaking your head from side to side, our “No,” means “Yes.” And if you ask me if that creates the potential for confusion, I’d nod my head…or shake my head “Yes.”

But sticking with the dominant cultural tendencies, the affirmative head nod is a useful and positive form of nonverbal communication. And we now have proof from the researchers that it works. Social scientists in Japan (Osugi & Kawahara, 2017) used animated clips of figures either nodding affirmatively, shaking their heads negatively, or remaining motionless. They found that the nodding head motion significantly increases ratings of subjective likability and approachability. And rather than just enhancing appearance, the positive head-nodding is perceived to indicate a better personality on the part of the target. That stands to reason: It is easy to think well of someone who is nodding in agreement. For that reason, and with some important caveats, the head nod is a good tool for communicators in the courtroom, including advocates, questioners, and witnesses.

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November 27, 2017

Use “You” (Not “I” or “One” or “They”)

By Dr. Ken Broda-Bahm:

Persuasion is often a matter of overcoming barriers and, in the courtroom, those barriers can be very real. The wall of the jury box is a physical analogy for the differences in class, age, race, education, and many other factors that can separate the fact finders from the attorneys, the witnesses, and the parties. But beyond those demographic traits, distance can also be influenced by more subtle features of language. When the wording is dry, abstract, and depersonalized, it is more difficult to cross the bridge to jurors’ understanding. It’s better to be more direct. And in an audience context, nothing is more direct than “you.”

It is a habit of language that might go unnoticed. Am I saying, “It is understandable,” or am I saying, “You can understand it”? Am I asking what a “reasonable person” would expect, or am I asking what “You” would expect? Am I previewing “the jury’s deliberations,” or am I previewing “Your deliberations”? The word “you” is one of the most common words in the language. While it sometimes carries direct meaning, referring to the listener, at other times it is used to indicate to people in general. Referred to as the generic-you, it is captured in phrases like, “You win some, you lose some.” It is used to express norms or expectations about how things should be. That universalizing function of the generic-you makes it an important rhetorical tool. Some recent research (Orvell, Kross & Gelman, 2017) looked at its function and effect, and the results suggest that the generic-you should be one of the techniques trial lawyers use to break down the barriers for your jurors.

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November 20, 2017

Expect Jurors to Climb Into the Cooler

By Dr. Ken Broda-Bahm:

The cooler sat in the  courtroom throughout the trial. A 40.5 gallon Igloo fishing cooler, it was a key piece of evidence in the murder trial of an attorney, Tom Capano, charged with killing his lover who was the Delaware Governor’s scheduling secretary. A recent story in Delaware Online focuses on one of the jurors, speaking out now for the first time almost two decades after the trial. That juror, Erin Reilly Lee, got inside the evidence — literally. See, it turns out that the volume of the cooler was important, because Capano’s defense was that his lover, Anne Marie Fahey, was actually killed by another of his mistresses in a jealous rage, and Capano said he just panicked and placed the body in the cooler without giving it much conscious thought. Cross-examination, however, focused on the fact that getting a body into that cooler would have been quite the chore, involving twisting limbs and breaking bones. It wouldn’t have been, the state claimed, something planned and worked at, not the distraught act of a disoriented bystander.

So the juror, Ms. Lee, tried it out during deliberations. When the rest of the jury decided that she was the one most similar in size to the victim, perhaps even a bit smaller, she became the ideal candidate. And the verdict? “There’s just no way,” she said, and since the defense did not square with her own hands-on test, “you lose all your credibility.” Capano was convicted and died in prison. That circumstance might have been unusual, but the motivation for jurors to try it out themselves is actually pretty common. I recall one recent case where we held a mock trial focused on the fit and retention system for a sports helmet. As samples of the helmet in question went back to the mock juries, we got to watch all three juries pick a person to try out the helmet as others tried to pull it off without unclasping it. Of course, jurors had heard about the company’s own biomechanical testing, as well as the expert opinions from each side. But all of that paled in comparison to jurors’ own ability to try it out themselves. That is something litigators should account for: If there is a way for jurors to test a case theory by manipulating the evidence themselves, they will do so.

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November 16, 2017

Be Alert to Partisan Affect

By Dr. Ken Broda-Bahm:

Written in the context of the civil rights and Vietnam war protests of the Sixties, there is an old Buffalo Springfield song with a line about the marchers, “Singing songs and carrying signs [that] mostly say, ‘hooray for our side.'” That ‘hooray’ is what the political psychologists call “partisan affect,” or the tendency to like and identify with those on your side of the political spectrum and to dislike and even demonize those on the other side. That is perhaps the reason that many of his supporters are sticking with embattled Alabama Senate candidate, Roy Moore, even in wake of inconsistent responses to the mounting allegations that he pursued and assaulted underage girls. Many are sticking with him because the alternative is that a Democrat might win. It is likely that a similar feeling motivated many Trump voters as well, and broadly, what many of his supporters seem to like the most about Trump is the degree to which he distresses liberals.

The phenomena of this partisan affect, is grounded in some research that might be pretty surprising. Santo Iyengar of Stanford and Sean Westwood of Princeton (Iyengar & Westwood, 2015) have noted that feelings of support and hostility based on political tribalism have increased dramatically in recent decades and are now greater than ever. In some ways, discrimination across the aisle might even be considered the new racism: “Hostile feelings for the opposing party are ingrained or automatic in voters’ minds, and that affective polarization based on party is just as strong as polarization based on race.” In this post, I’ll take a look at their research and discuss some of the implications.

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July 17, 2017

Treat Your Social Profile Like Your Public Profile

By Dr. Ken Broda-Bahm:

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“Careful what you email” has become a pretty important consideration in Washington lately, and not just for the politicians. This past week, Marc Kasowitz, President Trump’s longtime personal attorney found himself in the spotlight over an email exchange with a critic. On the evening of July 13th, Mr. Kasowitz seems to have fallen victim to the temporary illusion that he was having a private conversation in a private place. He received an email with the blunt subject line “Resign Now,” but otherwise it was a pretty civil message focusing on long-term interests of himself and his firm being served by choosing to no longer represent the President. Kasowitz’s response? “F— you.”  Then, a few minutes later, an onslaught of emails that served to unpack that suggestion: “I’m on you now. You are f‑‑‑ing with me now. Let’s see who you are. Watch your back, b—–,” and “Call me. Don’t be afraid, you piece of s‑‑‑,” and another message: “Stand up. If you don’t call, you’re just afraid.” And then later, “I already know where you live, I’m on you. You might as well call me. You will see me. I promise. Bro.”

Naturally, the emails went public. So the next morning saw a quick apology from Kasowitz. But, arguably, the damage had been done, not only clouding an attorney’s reputation with the image of highly-unprofessional communications, but also adding to the public perception of turmoil within the President’s legal team as unfavorable information continues to stack up, the outburst coming on the heels of Donald Trump Jr.’s release of emails detailing a campaign meeting to obtain Hillary-damaging information from the Russian government. For all attorneys, the incident provides a useful reminder: When there is any reasonable chance that it could be public, treat it as public. Yes, that goes in the “obvious” and “should go without saying” categories, but surely Kasowitz, considered one of the foremost New York powerhouse attorneys and mentioned for the post of U.S. Attorney General, is in the category of attorneys who should know better. One would think that judges would know better as well, but based on a recent Above the Law article, not all of them do. So it is a reminder that bears repeating: Guard your reputation, and if it could be public, then act as though it is public. This post looks at why this is true from three perspectives. Continue reading

June 22, 2017

Expect Facts to Be Favored When They Fit the Frame

By Dr. Ken Broda-Bahm:

Favored facts picOn June 5th, three men used a van and knives to conduct an attack on pedestrians near the London Bridge and Borough Market. Just one week later, another man used a van in an attack on people leaving a mosque near Finsbury Park. Are we likely to frame both events evenly as “terrorism,” and to give them the same kind and degree of attention? According to some recent research, the answer is “probably not.” When terrorism is perpetrated by Muslims, as in the London Bridge attack, then we more easily define it as “terrorism,” and give it a greater focus. When terrorism is perpetrated by a member of the majority, as in the Finsbury Park attack, then we are less able to characterize it, and more likely to see it as the act of a psychologically-disturbed loner. That is the conclusion of a recent study (Kearns, Betus & Lemieux, 2017) by Georgia State University researchers, “Why Do Some Terrorist Attacks Receive More Media Attention Than Others?”

Shankar Vedantam, NPR’s social science correspondent, discussed the study on a recent Morning Edition segment. Looking at American coverage in mainstream print sources and CNN.com, the study found that people are more likely to label it “terrorism,” and to give it four and a half times the amount of coverage, if the attacker is of the Muslim faith. A white person, they note, would have to kill an average of seven more people to receive the same coverage as the Muslim attacker. The researchers also conducted an experiment where they described an attack and held the details constant while varying only the identity of the attacker. “What we found,” according to Georgia State University criminologist Erin Kearns, “is that when the perpetrator was Muslim, people were much more likely to consider it to be terrorism than when the perpetrator was not Muslim. In those cases, people are more likely to say that perhaps it’s a hate crime or not be sure how to classify it.” That ambiguity and selectivity applies not just to terrorism and anti-muslim bias, it also reflects a more general tendency to amplify those facts that fit the frame and to minimize and discard the facts that don’t.   Continue reading

June 8, 2017

Testifying in Another Language? Use Simultaneous Translation

By Dr. Ken Broda-Bahm:

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At one point back in my university teaching days, I worked with an international consulting group providing training on persuasion and argumentation to teachers around the world. Often, I would work with a translator. I remember being in Haiti, for example, providing training while my presentation in English was being simultaneously translated into both Haitian Creole and French. The three of us talking at once might have sounded like a cacophony, but it seemed to work just fine for the teachers attending. I remember being impressed that the translators could keep this up continuously, listening and speaking at the same time, to provide an uninterrupted stream of speech. It is definitely a specialized skill, and a useful one as well: Not having to stop and wait for the translation means that you can provide the same content in half the time.

Used in a courtroom, simultaneous translation can be just as useful in getting through testimony in half the time. It can also be just as challenging, perhaps more so with one additional obstacle: credibility. In court the credibility of the witness is key. The judge or jury is there, after all, to scrutinize the clarity and truthfulness of the witness. Can they fulfill that role if they are, in reality, listening to a translator who is speaking at the same time as the witness? Does this shift of attention have the potential to reduce the credibility of the witness? An interesting new study (Hale, Martschuk, Ozolins & Stern, 2017) takes a look at the effectiveness of translation modes in the specific situation of courtroom testimony. In the study, 447 mock jurors in Australia viewed the same content from a witness delivered in one of three conditions: In English, or with Spanish to English translation provided either sequentially or simultaneously. There was no significant effect on verdict, however, consecutive translation (where jurors listened first in Spanish before hearing from the translator in English) led to lower recollection of the testimony, particularly when it was delivered in the afternoon (We’ve written before on the post-lunch slump in attention). The mock jurors also found the consecutive translation to be more distracting than simultaneous translation. So in this case, it seems that the timesaver is also an attention-saver for jurors. In the rest of this post, I’ll share some additional advice on dealing with the translated witness.  Continue reading

May 29, 2017

Treat Consultant-Assisted Voir Dire as Virtue Not Vice

By Dr. Ken Broda-Bahm: 

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High-profile trials often lead to temporarily renewed awareness of the litigation consulting field. This time around, the rediscovery has to do with the first sexual assault trial for the actor and comedian Bill Cosby. An article entitled, “Bill Cosby’s Trial is Already Showing How Twisted America Is,” came out recently in the online source ViceBeyond the click-bait headline, writer Sonja Sharp who also writes for the Wall Street Journal, targets both race-based selection as well as the role of jury consultants. While Vice is not the kind of source I ordinarily go to in this blog, I do believe that popular media references, like the current television series Bullcontribute to skewed public perceptions of what litigation consultants actually do. So even though this humble blog lacks the reach of Vice, I feel a defense of my field’s virtue is necessary. 

Sharp’s article focuses on the problems in selecting juries based on race, and what she feels is a lesser-known problem: trial consultants. Both, she feels, contribute to a new, unusual, and unfair method of trying cases. “The disgraced comedian’s sexual assault trial has barely started,” she writes, “and it’s already revealed the bizarre way in which juries are selected and justice gets meted out.” While race-based selection is indeed a problem (and most often a problem in the lowest-profile criminal trials), I believe that the implied connection to trial consultants is misplaced. The goal of ending racial discrimination in the jury box is best accomplished by paying attention to the social science that matters most in checking bias: attitudes, psychology, human experiences, not skin color. In other words, reducing racial bias in jury selection means listening to consultants more, not less. In this post, I will flesh that out. 

Yes, Race-Based Strikes Are a Problem

The first part of the article focuses on the race-based strikes often made by prosecutors, and Sharp quotes a number of law professors calling out that problem as well as the ineffectual checks on that unconstitutional process, since a Batson challenge is typically hard to prove. Bryan Stevenson of the Equal Justice Initiative is quoted: “There is perhaps no arena of public life or governmental administration where racial discrimination is more widespread, apparent, and seemingly tolerated than in the selection of juries.” 

It is indeed a problem generally. Whether it is a problem in the context of the Cosby trial, however, remains to be seen. Sharp, for example, points out that only two of the twelve regular jurors selected are African American, but that is seventeen percent, roughly twice the proportion of African Americans that show in the most recent census data for the trial’s original venue of Montgomery County, Pennsylvania.  

But Trial Consultants Are a Step in the Right Direction

Sharp’s focus on both race-based selection and the role of trial consultants implies that there is a connection, and some readers might assume that in some way, one causes the other. I think that the opposite is true, with trial consultants pushing for the kinds of information that lead lawyers away from a reliance on race. This is likely to be true because the research and training of a typical trial consultant leads to an understanding of two key principles: 

  • Attitudes and personal experience are what matter most in determining bias. 
  • Demographics like race tend to be poor predictors of the kinds of attitudes and experiences that matter in most cases. 

In other words, just about any consultant would strongly advise, “It’s silly to rely just on what you see…ask them what they think!” As a result, consultant-assisted voir dire is likely to move in the direction of focusing strikes on actual expressions that could lead to bias, and that is exactly the direction it should move in. In one line, Sharp seems to acknowledge this when she writes, “If picking a sympathetic jury were as simple as black or white, there wouldn’t be a shadow industry of such experts who command thousands of dollars a day to sit in on selection.”

Trial Consultants Are Not Stacking the Jury

Beyond the racially-biased jury selection, the Vice article also gives voice to many of the generalized complaints that trial consultants are corrupting the jury selection process. Sharp focuses on voir dire questions, taking aim at “Highly-paid trial consultants who craft those inquiries and judge their answers.” Interviewing Drexel law professor Adam Benforado, whose critiques of the profession I’ve written of before, she quotes, “The goal is no longer to take off jurors who may be harboring racial biases, but to get jurors on the jury who harbor biases in your favor,’ Benforado said. ‘Whether those attitudes are about women, sexual assault or celebrity, they often transcend race,’ he said. ‘Today, we’re really trying to find not just a black or a white juror, but a juror who is pro-Cosby or anti-Cosby.'”

Of course, it is no surprise that in adversarial settings, each side is using voir dire (and motions, procedure, facts, evidence, etc.) to its own advantage. But that said, neither side has a means for ‘getting jurors onto the jury.’ Challenges and strikes are the only tools wielded by each side, so it is really unpicking, not picking — unstacking, not stacking. In this case, one side is motivated and empowered to remove the most extreme pro-Cosby jurors while the other side is motivated and empowered to remove the most extreme anti-Cosby jurors. From the perspective of justice and an unbiased jury, that doesn’t seem like a bad thing. 

And Trial Consultants Are Not skewing Voir Dire

Aside from the strikes, the article also takes aim at the effect of questioning itself. Again, going to professor Benforado, Sharp argues, “The media’s hyper-focus on race may be blinding observers to the sophisticated science of juror selection, as well as the way in which courtroom arguments increasingly creep into the panel. The moment voir dire begins, ‘they’re already asking questions that frame the way the case will be heard,’ Benforado said. ‘It’s permissible and it’s biasing.'” 

First of all, it is only partially permissible. Most judges expect attorneys to use oral voir dire questioning to uncover bases for cause challenges and to explore a basis for peremptory strikes. The attorney who goes too far in framing out the case can expect to hear an embarrassing correction from the bench. But of course, there will still be some selective emphasis and some spin aimed at putting the potential jurors in a positive frame of mind for hearing your side. Whether that is “biasing” or not depends on what you mean by the word. Sure it can be expected to have an influence on the way jurors see a case, but the same can be said for all of the attorneys’ communication, the judge’s communication, and even the courtroom itself. Seeing all of that as “biasing” seems to miss the point of an adversarial system of justice. Sure it’s persuasion, but both sides get their opportunity. 

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Other Posts on Perceptions of the Trial Consulting Field: 

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Image credit: 123rf.com, used under license, edited. 

May 15, 2017

Try a Summary Trial

By Dr. Ken Broda-Bahm: 

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Going to trial is a lot like going to Disneyland! But only in the sense that it is very expensive, and you will spend a lot of your time waiting. The expense and the delays of the trial process are a common focus for criticism and a big part of the reason why the vast majority of disputes never get all the way to trial, but instead find resolution through settlement or summary judgment. In a recent article, Andrew Pollis (2017), Professor at Case Western Reserve University School of Law, turns a critical focus on what he calls the “pretrial industry,” or the practice of making use of procedure and discovery to inflict maximum pain (cost and delay) on the other party to the point that settlement becomes a better option than an actual trial on the merits. Quoting Judith Resnik, the article notes that “the pretrial phase of a lawsuit has become ‘a stage unto itself, no longer a prelude to trial but rather assumed to be the way to end a case without trial.'” 

Pollis recommends a number of reforms to, as the title puts it, “bust up the pretrial industry,” but one part of the solution in particular caught my eye. He recommends that courts and litigants make greater use of a leaner and quicker tool: the summary trial. A summary trial is a form of dispute resolution that is a lot like the research mock trial often conducted by one side to get ready for trial, only like the actual trial, it involves both parties and a judge. If you have never participated in one, however, you are not alone. While judges around the country have the discretion to allow, encourage, or require a summary trial as a settlement step, the tool remains relatively rare. Pollis writes that there are some reasons for that — a lack of awareness, sure, but also some structural features of the way summary trials are organized that makes them less attractive for litigants. In this post, I will draw from Professor Pollis’ article in discussing what a summary trial is, why it is underutilized, and what ought to be done to make the summary trial a more common tool in dispute resolution. 

What Is a Summary Trial? 

A summary trial has a few common qualities: 

  • It is generally a one-day exercise
  • The exercise includes summary presentations (but generally not witnesses) from each party
  • Jurors are drawn from the actual jury pool
  • The trial is presided over by a judge or magistrate to keep the presentations fair, appropriately general and realistic
  • It produces a nonbinding advisory verdict
  • It is conducted with the goal of encouraging resolution prior to trial

Why Aren’t They Used? 

Pollis notes that, while they are allowed in an estimated quarter of U.S. jurisdictions, actual summary trials remain scarce. He focuses on two main reasons for that. First, it is generally believed that summary trials are most useful after discovery is complete, and by the time the parties make it all the way to that point, they reason, “Why not proceed to full trial?” After all, they’ve spent months or years gathering information, and they’ve already made the investment, why at that point would they settle for a truncated summary trial over a trial that is long enough to permit the use all of that information?

The second reason why summary trials are underutilized has to do with a lack of consequences. Parties can just ignore the result and move on, so the party or parties who are trying to exert maximum pain, inconvenience, and expense as a way to put more and more pressure on the other side, can just continue to do that, and even use a summary trial as one of the tools for those purposes. So the lack of any consequences for ignoring the result causes parties to not see a clear point to the exercise in the first place. 

What Would Make Them More Useful? 

Two solutions are emphasized in Pollis’ article. First, he says, “Hold them earlier.” Because summary trials are not supposed to test all of the fruits of discovery, there is no reason to wait until discovery is complete, and no reason to wait until the case is “trial ready” in the real world. A summary trial is a way to get juror reactions to the main story and broad themes of each side, and that is frequently known early on. Some things obviously will not be known without discovery, but as the large number of party-sponsored early mock trials and focus groups will attest, it is possible and useful to gain broad-based feedback at an early stage.

The second solution is to apply risk-based fee shifting. What that would mean, Pollis suggests, is that if a single party withholds consent to resolve the dispute following the summary trial and does not achieve a result that is better than the advisory verdict, then the judge has the discretion to make them bear the other side’s costs between summary trial and trial. 

Ultimately, What is the Advantage to Summary Trial Over Other Forms of ADR? 

The advantage to resolving disputes with the help of a summary trial is that it recovers the role of the American civil jury. Instead of resolutions based solely on negotiation, or based solely on the decisions of elite judges, the decision will be based on the views of average citizens in your venue reacting to the story you tell. The country’s founders believed that this practice served a democratic role so fundamental that it needed to be included in the bill of rights. Resolutions made through more common use of summary jury trials could return us to a focus on advocacy, and a focus on resolving factual disputes on their merits, not purely on procedure and the pressures of litigation. Pollis concludes: 

Requiring parties to engage in a summary jury trial at the outset of litigation would give them an opportunity to hear an objective reaction to their claims and defense before the pretrial industry takes its toll. It would empower them to make better-informed decisions about proceeding with the lawsuit at a point in time when they have not yet borne the exorbitant costs of litigation. And it would also afford ‘a marginalized plaintiff with the opportunity to tell her story to a judge, jury and decision makers for the defendant,’ thus ‘approximat[ing] the experience of procedural justice provided by a day in court.’ 

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Other Posts on Trial Innovations: 

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Pollis, A. S. (2017). Busting up the Pretrial Industry. 85 Fordham Law Review 2097

Photo Credit: 123rf.com, used under license

May 1, 2017

Beware the Blue Lie

By Dr. Ken Broda-Bahm: 

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The earliest days of the Trump presidency, the Trump campaign, and Trump himself have all posed quite a bit of a quandary for social scientists. The reason for that is, while all politicians select, exaggerate, and sometimes tell an outright lie, Donald Trump seems to have a relationship to the truth that is strained to an unprecedented degree. From the crowd size at his inauguration, to the number who illegally voted, to the allegations of the Obama administration wiretapping Trump Tower, these demonstrable falsehoods have continued a chain stretching back to earlier whoppers like Ted Cruz’s father having something to do with the JFK assassination, and, of course, Barack Obama’s Kenyan birth. In that context, how did candidate Trump and now President Trump maintain the support of 40 percent or more of the American people? After all, the social scientists will point out that credibility is key, and at the national level of politics, credibility is supposed to be especially fragile. When it comes to Trump’s communication, the sages have said, “Surely, he can’t keep this up,” and have been saying it now for more than a year. Yet he keeps it up. How? 

The answer, according to a recent Scientific American article by Jeremy Adam Smith, has to do with the type of lies. There are “black lies” told with bad intent and “white lies” told for a noble purpose, and in between, they say, there’s something else: “blue lies,” told for the purpose of helping some and hurting others. Blue lies serve a social purpose in reinforcing group identity and helping ‘our team’ against ‘their team.’ Referring to research from the University of Toronto’s Kang Lee, the article notes, “If we see Trump’s lies not as failures of character but rather as weapons of war, then we can come to see why his supporters might see him as an effective leader.” One of the studies from Lee and his colleagues observes that blue lies, the kind that build solidarity of one group against another, tend to increase as children get older and more socially sophisticated. But the blue lie is not unique to childhood, or to its close cousin, politics. Instead, I believe that these false beliefs that are resistant to the normal checks because they serve a social function can exist in litigation as well. What’s more, I think it can apply at several levels, affecting the jury, the witness, and the advocate. In this post, I’ll address each, and also share my own thoughts on the way the blue lie is best addressed. In each case, I believe it is not enough to call out the lie as being false. In addition, to address that social function, it is also necessary to call it out as not being useful as well. 

The Juror’s Blue Lie

A key realization in any small group context is that shared beliefs create affinity, and this includes false beliefs. For example, contender a panel of potential jurors who believe that immigrants tend to commit more crimes, and they’re sitting for a case where that belief would potentially matter. In that situation, it won’t help to try to show them that the belief is false. It is false since immigrants, legal or otherwise, are on average actually less likely to commit crimes than other people living in the U.S., but you won’t get that point across in voir dire or trial. The solution, other than striking the potential jurors, is to focus on the lack of usefulness of the belief. Broadly, and from their perspective, perhaps that belief isn’t useful because the country has a right to control its borders, and that right shouldn’t hinge on whether immigrants commit other crimes or not. And, in this specific situation, perhaps the belief isn’t useful because it tells you nothing about this case, this person, these charges. 

The Witness’s Blue Lie

Witnesses swear to tell the truth, and the vast majority intend to and try to. But inevitably, the witness’s experiences, outlook and goals will put a filter on that truth. One such filter might be the blue lie that’s intended to help ‘your team’ rather than their’s. Take the doctor defendant in a professional negligence case, for example, who thinks it’s helpful to say that a good doctor never makes mistakes, or always documents every aspect of care, or always fully informs a patient about all risks. These idealizations will usually create lower credibility and higher liability than an honest admission of imperfection would. The message when preparing that witness is, that while it might seem useful to say or to agree with good things about yourself and your group, those blue lies are a setup, raising the stakes in order to set the witness up for failure. 

The Advocate’s Blue Lie

There is a tension in every trial lawyer’s role. To assess and potentially settle a case, they need a clear-eyed and neutral view of the case, warts and all. But to be a zealous advocate for the client, they need to see their own case in the best possible light and the other side’s case in the worst possible light, and it helps if the attorney believes it. For some lawyers, the training and courtroom experience of the zealous advocate wins out. During the long march to trial, they become enamored of the strengths and, at least partially, blind to the weaknesses. They’re telling themselves and telling their clients that they’re right on nearly everything and the other side is wrong on nearly everything. The solution, that should be obvious to experienced advocates, is to set aside the blue lie that’s telling you your own case is perfect. Whether right or wrong, it is most useful to prepare in a way that gives as much credit as we can to the other side. In planning a mock trial, let’s give them the benefit of the doubt and assume they win the close calls on the legal rulings. In crafting a theme, let’s assume jurors will at least tacitly agree with the other side’s greatest strengths. Setting aside the blue lies of advocacy, the most useful question is, “How do we get them on our side even in that worst case scenario?”

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Other Posts on Deception: 

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Image credit: DonkeyHotey, Flickr Creative Commons, edited. 

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