Persuasive Litigator

Account for the Media's Effect (Even in Civil Cases)

By Dr. Ken Broda-Bahm: 

A classic case of pretrial publicity is currently playing out in Steubenville, Ohio. After members of the hacker's group called "Anonymous," posted a photo and video linking two high school football players to the rape of a teenage girl and pointing toward an official effort to limit the scope of the scandal to protect the football team, the story has saturated local and national media. Scheduled to be in trial next month, their attorney has claimed "a right to a fair trial for these young men has been hijacked." This is the kind of scenario we most readily think of when we consider the effects of pretrial media: Wall-to-wall coverage of a criminal case leads to such a high level of knowledge, or perceived knowledge, that it becomes impossible to find an open-minded jury. We're less used to thinking about this media effect in a civil law context, especially in those mid- to smaller-sized cases that make for boring news stories. 

But there is a broader effect at work, and a way that media coverage matters to a wide spectrum of civil trials as well. If your future jurors are exposed to related news or similar stories, they're likely to view your case in the context of that information. While most of the research on pretrial publicity has focused on criminal cases, some (e.g., Bornstein et al., 2002; Robbennolt & Studebaker, 2003) have shown that its effects can be as acute, or even more so in a civil trial context. A current study reported in the November edition of The Jury Expert (Platania & Crawford, 2012) looks at the influence of coverage of similar cases on products liability verdicts, finding that exposure can have a substantial influence. This post takes a look at that study and draws out some general suggestions for civil litigators looking to keep an eye on the media climate. 

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

By Dr. Kevin Boully and Dr. Karen Lisko:

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

A more consequential risk lurks beneath the surface in the ongoing Apple v. Samsung “patent trial of the century.” Now in its third week in front of a nine-person federal jury, both Apple and Samsung have staked out positions around one of the most important dynamics in patent jury trials -- jurors’ perceptions of how patent protection affects them as consumers. Patent trial strategy should address the fact that jurors’ foremost concerns – and a powerful and quiet motivation for their decisions – often center on how each party’s position influences them as credit card-carrying “buyers” in the market for ever-evolving techno-gadgets. In this post, we react to reports on the first two weeks of the Apple v. Samsung trial with a particular focus on the broader lessons for persuading patent jurors. 

Litigation Postscript's Centennial: The Top 10 of the First 100

By: Persuasion Strategies -

 
Litigation Postscript has just turned one hundred!  Posts, that is.  Through these past hundred, and into the next, we've remained stubbornly committed to the idea of writing articles, not typical blog posts, and including targeted recommendations for litigators in every single post, based on research and experience.  

We're doing that for you.  Yes, you, the one right there in front of the monitor.  So, if you enjoy and benefit from this focus, here is what you should do.  Look to the right.  No, your right.  Higher... higher... Yes, that is it!  The subscription box!  Type your email address there and hit "subscribe."

For this post, we would like to troll back a bit with a list of the ten most-read posts out of the first hundred -- an opportunity to catch up on something you might have missed.  So, based on the magic of Google Analytics, here is the "Best of the Blog."

Avoid the "And Another Thing..." Style in Rebuttal

By: Dr. Ken Broda-Bahm, Dr. Kevin Boully, Dr. Karen Lisko, & Dr. Shelley Spiecker -

For all the careful attention and planning that goes into a good opening statement story, and a strong closing argument structure, the rebuttal can end up sounding like an afterthought -- especially when it is an afterthought.  Composed on the fly while listening to your opponent's argument, your rebuttal can often be reduced to a simple shopping list of the points you'd like to make, without the glue of clear structure or strategy to hold the message together.  While you might think that all a rebuttal needs to do is "clean up" any points that still need more attention, structure remains an important part of the message, especially when we are talking about the last words that your decision makers will hear from you.  The problem with the "and another thing..." structure is that it does nothing to help you prepare, it doesn't aid the audience's comprehension, and it doesn't promote persuasion.  As Supreme Court Justice Antonin Scalia and Bryan Garner note in their recent book, "the scatter-shot approach is no more effective [in rebuttal] than anywhere else.”  Even if your shopping list does give you a clear sequence, if you made that list while your opponent was speaking, then as Lubet's Modern Trial Advocacy points out, you are replicating your opponent's structure, not your own. 

This post is a little special, and not just because the photo of the four of us bears a striking resemblence to the cover of Let it Be.  We decided to put our heads together for Litigation Postscript's first jointly-authored piece, on the topic of what makes for effective rebuttal.  Whenever you get a chance to give a rebuttal, then let it be the best and last word that your decision makers will hear on the point.  Ultimately, a good rebuttal comes as a result of having a clear structure in advance, fitting the most important points that need to be refuted to that structure, and adding in a number of strategies designed to keep you on the offensive rather than the defensive.  Below, we review a number of critical rebuttal strategies, ending with an example rebuttal creatively developed from the general fact pattern of Liebeck v. McDonald's Restaurants, the infamous "hot coffee" case.

Use the Two C's of Voir Dire Strategy to Get from "Three Strikes and You're Out" to Four, Five, or More Strikes

By: Dr. Karen Lisko - 

You are in the throes of jury selection and realize to your immense frustration that you need more peremptories than you have.  If only the other side would share theirs.  Unlikely.  The next best alternative comes in the form of two approaches that can increase your chances of adding to your limited number of peremptories.