Persuasive Litigator

First Expert Rule: Keep It Concrete

By Dr. Ken Broda-Bahm:

It is common experience that jurors will often set aside expert testimony. Part of it, of course, is a "hired gun" effect that in some cases leads jurors to distrust experts based on the knowledge that they've been paid for their opinions by one side or the other. But over time, I've come to believe that is not the dominant reason jurors have for avoiding reliance on experts. Instead, there is a more basic reason at work: Jurors don't use experts because they're not convinced they need experts. They think they know the general idea well enough already. Why listen to a product safety expert if I think product dangers are obvious based on common sense? Why listen to a construction expert if I have a brother-in-law who works in construction?

This overconfidence and preference for personal knowledge has a social science name: the illusion of explanatory depth. It's a cognitive bias that occurs when people believe they understand a concept more fully and more specifically than they actually do. The way it works is this: Once we're able to appreciate or articulate something at a very general or abstract level, we come to believe that we understand the specifics and the mechanics of it at a concrete level as well. But, we don't. As one of the most comprehensive recent studies of the phenomenon (Alter, Oppenheimer & Zemla, 2010) has noted, this perceived general understanding isn't something we can trust. "Although folk wisdom suggests that people often fail to see the forest for the trees," the authors note, "sometimes the greater concern is that people fail to see the trees for the forest." That has an immediate relevance to jurors' and other fact finder's understanding of expert testimony. Jurors can fall victim to overconfidence in understanding, and the experts themselves can unwittingly promote that illusion. The main goal is to avoid abstract explanations and be concrete instead. In order to practice what I preach, I mean to concretely explain in this post what I mean by "be concrete." 

Consider a Blind Expert Witness

By Dr. Ken Broda-Bahm: 

Justice may be blind, but hired experts can see pretty darned well in our litigation system. No, a responsible expert won't lie in order to support their client. But yes, a knowledge of who the client is can't help but have at least a subtle influence on the resulting testimony. But that is our adversarial system, right? Both sides hire the best they can find who are willing to support their theories, and the two sides fight it out, aided by cross-examination and a skeptical and attentive jury. That is the idea, but in practice, there are a few problems with that model. For one, the adversarial model can end up elevating the value of the less common expert opinion to the point that a view that, maybe, only one in a hundred experts would sign on to becomes one of only two expert opinions presented in court. For another, the jurors themselves may be desensitized by the knowledge that all parties are paying for their opinions and simply decide to set aside the "hired guns" and figure things out on their own. Yet a third problem is the effect that this model has on the experts themselves: Academics who are used to following the facts wherever they lead, without prejudgment or bias, are uncomfortably thrust into an adversary system and find themselves working not wholly for the truth, but in order to advance their client's case.

Of course, all that shouldn't be taken as a statement that experts as a class are dishonest. That isn't what I'm saying. I've worked with many experts, and to a person they've been honorable and careful women and men who understand that they cannot mislead the jury and cannot risk being seen as just another lawyer. But they also cannot take their eye off the ultimate purpose of their testimony and the reason they were hired. It is fair to wonder if there's another way. According to one model, proposed in a 2010 article in the New York University Law Review (Robertson, 2010) and recently tested in an experiment published in a forthcoming edition of the Journal of Empirical Legal Studies (Robertson & Yokum, 2012), there is a simple solution that would improve both the accuracy and the credibility of expert testimony: blind experts. No, I don't mean hiring Stevie Wonder as your expert witness, I mean employing a system that keeps the expert blind to the identity of the client until the initial report is completed. The idea has implications for how you might think about your experts now and in the future, so this post will explore that idea. 

Teach the Difference Between Science and Junk

By Dr. Ken Broda-Bahm: 

Even good science can sometimes be a tough sell in the court of public opinion. Take, for example, the moment in Republican Presidential nominee Mitt Romney's acceptance speech last week where he mocked the President's concern over rising sea levels. The crowd of delegates in Tampa cheered wildly, though the fact of sea level rise, if not its exact cause, is scientifically uncontroversial. 

In the actual courts, the fate of good scientific information can be just as uncertain, as can the fate of bad science. Even in this age of Daubert, separating the valid from the invalid can be a challenge for both jurors and judges. In the upcoming trial of Fort Hood shooter Major Nidal Hasan, for example, there is a current controversy over the testimony of Evan Kohlmann, a terrorism expert who has classified Hasan as a "homegrown terrorist" on the basis of a six-factor model he developed, which may or may not be falsifiable or replicable. In the more typical case relying on expert testimony, the need to convince judges and jurors to critically evaluate the methods and the reasoning that under-girds research conclusions can be critical. In this post, we'll take a look at one study showing that jurors are able to identify some but not most methodological flaws in research, and draw some conclusions on the best practices for separating the good science from the bad in litigation. 

Subvert Stereotypes: Free the Attorney, the Expert, and the Juror

By Dr. Ken Broda-Bahm: 

Think beyond the stereotypes. That is what you're used to hearing (and I'm used to saying) about jury selection. But that same need to subvert the stereotypes applies not just to picking panelists, but to persuading as an attorney or an expert witness as well. In each of these situations, some very durable preconceptions are apt to stand between an advocate and a fair hearing. Stereotypes are often an obstacle to persuasion. 

It turns out that these barriers can be overcome, and overcoming them can also carry some unexpected benefits. According to a forthcoming study (Goclowska & Crisp, 2012) in the journal Thinking Skills and Creativity, when we're able to set aside stereotypes, we're also more likely to think with greater flexibility, originality, and creativity. Encouraging an audience to set aside a stereotype can lead to them thinking beyond the obvious and the routine of established patterns, and that creativity can be key to getting them to accept an initially difficult message. In this post, I'll take a look at this new study and focus on the broader message of getting past stereotypes for attorneys, expert witnesses, and jurors. 

Diagnose Your Difficult Witness

By Dr. Ken Broda-Bahm -

 
In the pivotal scene of “My Cousin Vinnie," a movie beloved by those who follow legal persuasion, the defense attorney, played by Joe Pesci, asks the judge permission to treat his now estranged girlfriend as a hostile witness.  This is a request that the judge, with a knowing look, quickly grants.   The scene provides an important reminder that even when a witness might formally be on your side, there could be one or more dynamics at work making your own witness "hostile" to your interests. 

I was recently asked by a legal team faced with the task of defending the depositions of a large number of witnesses how to handle difficult witnesses who could not, or would not, answer questions with the sensitivity or strategic sense that a situation demands.  Such a witness may be prone to emphasize dangerous aspects of testimony even after being clearly shown by counsel why it is dangerous.  As I've written before, woodshedding the witness with strong "say this..." instructions is not the answer, for reasons both practical and ethical.  Instead, the first step in preparing the marginal or reluctant witness is diagnosis:  It matters why the witness is not getting the message.  There are a few different possibilities: