Persuasive Litigator

Scare With Care

By Dr. Ken Broda-Bahm: 

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

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

Incubate in Order to Innovate

By Dr. Ken Broda-Bahm: 

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

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

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

By Ken Broda-Bahm: 

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

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

Persuade Through Dialogue

By Dr. Ken Broda-Bahm: 

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

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

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

S: Wow, did it work?

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

S: Speaking of blog posts, why are we in dialogue mode rather than straightforward exposition? 

P: Glad you asked -- that is the interesting part of it. If you look at Kohn's complete brief, it works not so much because of the imagery, but because it is a conversation - a dialogue. The vast majority of the frames in the cartoon - 37 out of 45 - are just two people talking. 

S: That is interesting. Why does dialogue work? 

P: Because our brains respond to it. The simple back-and-forth is punchy, clear in purpose, and easy to understand. 

S: That's true. In just 800 words I was able to understand a pretty complex argument on antitrust issues in the e-book market. 

P: Right, the technique actually has more in common with the Socratic dialogues than with modern graphics or conventional cartoons. 

S: Okay, that is cool, but is there a larger point for legal persuasion? 

P: Absolutely, there is a point for all litigators in and out of court. No, I'm not saying lawyers can switch to cartoons or engage in imaginary 'Eastwooding' conversations in court. But lawyers can apply many of the principles of dialogue to make their persuasion simpler and more effective, and that's what the rest of this conversation will be about. 

S: I figured. 

Note the Challenges of an Empty Chair

By Dr. Ken Broda-Bahm 

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

Of course, in the courts, trial attorneys have been Eastwooding -- blaming empty chairs -- for many years. At least since tort reform changes in the last two decades have moved many states from joint and several liability toward standards that allow a nonparty at fault to absorb a proportion of responsibility, empty chairs have been taking at least as much criticism in court as Clint Eastwood leveled at the National Convention. These changes in law have, in many venues and litigation contexts, created a strong incentive for defendants to place responsibility on a party that isn't represented in court but is present on the verdict form. The party might be missing due to workers' compensation rules, other forms of immunity, or because they've settled before trial. But even as jurors might wonder at their absence, they still present an ideal opportunity for the remaining defendant(s) to reduce their own share of responsibility by pointing toward these phantom defendants. The challenge, however, is that the credible distribution of responsibility to include nonparties isn't always as simple as it seems. So, inspired by the RNC's recent Eastwood moment, this post shares some thoughts on the challenges and solutions surrounding empty chair defenses.