Persuasive Litigator

Use Visual Language

By Dr. Ken Broda-Bahm: 

The experience of language and meaning isn't something bottled up in one drawer of the brain's filing system. Instead, it is something that dances across your entire brain, using the full canvas of your cerebral cortex. And that sentence is a good example. It is visual and it is active. So as you read it, your brain isn't just drawing upon the gray matter dictionary to discern and process the definition of each word and the meaning of the full sentence. Instead, your brain is using all of the regions associated with the visual and physical perceptions invoked by the words themselves: drawers, filing, dancing, painting. Scientists used to think there was something called a "language center" in a discrete region of the brain, but now know that all kinds of regions of the brain are active in response to the language used. That reality has implications for those, like legal persuaders, who use words to do their work. 

One test of good language can be found in this question: Could you, if you had to, draw a picture of the sentence? If you can at least make a conceptual sketch, then you are using good visual language. If you can't, then chances are you are being too abstract. Drawing (did you catch that?) from a recent research report on National Public Radio (NPR), this post will illustrate (yes, there's another one) a few ideas for picking language that perks up your listeners' visual engagement. 

Counter the Cheap Shot

By Dr. Ken Broda-Bahm: 

It happens sometimes in an argument: You know the claim you're hearing is false, but you also know that it sounds like it could be true, and it'll be a lot harder to refute the argument than it was to make it in the first place. Measured in time and effort, your adversary's initial argument is quite cheap while your response to it is very expensive. That difficulty is common in litigation, where truth is often on the side of the involved and analytical explanation rather than on the side of the compelling yet simplistic claim. Responding to that situation takes some care. Rather than just hoping your audience can follow the complexity, or giving up and becoming just as glib as your adversary, the trick is to help your listeners rise to the challenge. The trick is to use good teaching to make your explanation as simple as possible without being simplistic. 

I'd like to use a current political example to illustrate both the problem and the solution. Through the 2012 Presidential election and beyond, we've seen continuing argument over the Affordable Care Act, also referred to (either derisively or admiringly) as "Obamacare." The new argument to emerge in the last couple of weeks is that Congress is trying to exempt its own staff from the ACA mandates. Attributing the story to "sources in both parties," Politico on April 24th noted, "high-level, confidential talks about exempting lawmakers and Capitol Hill aides from the insurance exchanges they are mandated to join as part of President Barack Obama’s health care overhaul." Based on this story, "they risk being dubbed hypocrites by their political rivals and the American public." Yes, they certainly would risk that. If Congressional Democrats were to apply the law to everyone except their own staff, it looks like both an admission of the Act's flaws as well as an appeal for special favors. The reality, however, is a lot more complicated and Annenberg's Pulitzer Prize-winning FactCheck.org has labeled the claim "false." The problem is that the reasons why it is false require a bit of explaining. This post uses this curent political argument as an example of the kinds of argument seen in litigation, where a charge is easily made, yet the refutation is difficult. 

Follow the Ten Commandments of Graphics Use in Trial

By Dr. Ken Broda-Bahm: 

A recent blog post written by a juror in the trial of Jim Fayed, a gold trader convicted of arranging the brutal murder of his estranged wife in a Los Angeles parking garage, included some rather colorful descriptions of the prosecutor’s use of demonstrative graphics: 

…And then there were the assistant DA’s unnecessarily omnipresent PowerPoint slides. 

Here are some actual quotes:
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“If Jim Fayed didn’t do it, who did? BATMAN?” Click: Batman slide. 


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“The defense is offering you a buffet of explanations.” Click: buffet slide.
.
Really?! The assistant DA’s favorite PowerPoint slide of all, though, was a red herring dropping down the screen on a string and then bouncing. He used this Monty Python-esque bit of goofery over and over and over again (mentally cue the sound effect: doy-oy-oyooiiinngg!) without regard for how sad or serious the current murder testimony was. When you find yourself more disturbed by the tactics of the prosecution than by bloody crime scene and autopsy photos of the victim, something’s really wrong. 

Something’s wrong indeed, and the juror's reaction is understandable. Effective trial presentation is an art, and litigators should use every effective tool at their disposal to practice and hone that art. But when the techniques call attention to themselves is when "art" becomes "artiface." Some would point to this example and say, "See! This is what happens when litigators wed themselves to PowerPoint and other presentation crutches in opening and closing." But the problem in this case is not the use of visuals and PowerPoint, but the way they're used. As with anything that happens in a courtroom, graphics in trial need to be used by attorneys with some good sense and some taste. The "goofery" this juror, Jean Black, perceived got me thinking about the larger point: What are the conditions for the sane and responsible use of imagery in courtroom presentations? So drawing from this example, and also going a bit beyond it, here is my quick list of the top ten commandments for trial graphics. 

 

Learn From Memes

 By Dr. Ken Broda-Bahm: 

If you aren't on Facebook, you may not have seen this before (and if you are, then you might see it, with different words, just about every day). The image and text above is called a "meme," the "Condescending Wonka Meme" in this case. It's a joke, of course, but borrowing from the language of biologist Richard Dawkins, the "meme" label refers to an image that conveys a quick and simple message that can then be mutated, customized, and passed along by sharing. Originating in photo sites like 4chan, memes have now taken over Facebook to become one of the most common ways people communicate in that setting. Users are able to pick a recognizable image from movies, video games, sports, television, or another pop culture setting, and add a pithy statement often reflecting something currently on the national agenda. For example, a common "Condescending Wonka Meme" right now carries the caption "Gun laws would prevent shooting sprees? Please, tell me more about how criminals follow laws," starting many a debate on Facebook. 

Since nothing escapes academic attention, there's now a raft of articles, theses, and chapters (e.g., Buchel, 2012 or Knobel & Lankshear, 2007, p. 199) focusing on the ways these innocuous-looking postage stamps of meaning are transmitting group identity and changing cultural literacy. As the latter article explained, "The power of memes to spread contagious ideas and to infect minds with particular ideas is widely recognized and entire groups have begun experimenting with meme engineering and distribution on quite significant scales." Now, since I'm writing about this on the morning of Christmas eve, I don't want to get too serious about it. Yet, the more I see these memes on Facebook (ahem, I'm on Facebook for purely professional reasons...to look up jurors' public profiles), the more I think about what memes can teach us about effective graphics in litigation. After all, these are messages and images that millions of average people are creating, modifying, and distributing themselves, so it seems like there is a high potential for at least a few takeaways. 

Use Mental Images to Sway Moral Judgment

By Dr. Ken Broda-Bahm: 

Over the past week, the phrase "beyond words" has been a common way of describing the nation's reaction to the murder of 20 young children and six adults at Sandy Hook Elementary School in Connecticut. In a way, it is literally beyond words, because what dominates our thoughts is the mental image of a class of terrified first graders killed in a spray of bullets from a semi-automatic assault rifle. In the days following this tragedy, there are noticeable differences that we didn't see in the public's responses after the Aurora, Colorado theater shooting, or the attack on Congresswoman Gabrielle Giffords (both of which we've discussed in this blog). In each of those incidents, the killings were followed by expressions of shock from public officials, as well as by somewhat vague commitments to work toward greater levels of public safety. Following the Sandy Hook killings, however, there is a palpable "enough is enough" reaction that appears to be backed up by a much greater public willingness to consider policy alternatives. Recent polling even suggests an attitudinal shift in the wake of last week's tragedy, and already the Vice President has been asked to lead a new Gun Violence Task Force with the mission of crafting legislative proposals by next month. 

If the reaction lasts, Sandy Hook may become a watershed moment in the country's judgment on the place of guns in society, particularly the role of highly lethal military-style assault weapons. But those who work in the realms of public attitudes (including social scientists and attorneys) might wonder, why is it different this time? Clearly, the deaths of so many very young children are responsible for much of the psychological shift. But it isn't just a logical or even an emotional response to the tragedy that drives us -- it is a visual response. Based on a recent study on moral judgment (Amit & Greene, 2011), our ability to picture an event mediates our moral judgments about that event. Events which are more likely to be pictured are more likely to result in severe moral evaluations. Persuaders, in other words, need to be concerned not just with reasons, and not just with feelings, but with the picture they create in the minds of listeners. This post will take a look at the study and offer a few thoughts on trial attorneys' efforts to visualize the case story.