November 9, 2017

Preserve a Place for Spoken Persuasion

By Dr. Ken Broda-Bahm:

A fair proportion of the legal advocacy in America today is taking place via written communication. With only a small percentage of cases actually ever seeing a jury — three percent, or less — cases are more and more often reaching their ends based on written motions. Summary judgment decisions are often decided based on briefing, and in settlement negotiations as well, it can often come down to letters and emails ferried back and forth between the parties. There is obviously still a place for trial and oral argument, still a role for the advocate standing at the lectern and facing the fact-finders. And there is also clearly still a role for passionate and powerful face-to-face negotiations in pursuit of settlement. But is there a danger in the continuing drift toward replacing oral advocacy with written advocacy, as briefs and letters more often displace the spoken word?

I’d argue that yes, there is. Verbal communication is not just a delivery system, and oral advocacy doesn’t just involve speaking the words that would fare just as well on paper or on a screen. Instead, I believe that there is a unique component that is only conveyed in spoken persuasion and advocacy. You might think that the same content can be effectively conveyed in writing, perhaps with even greater care, control, and convenience. But what is missing? In large part, it is the human  factor. And now there’s a study to prove that. In an article in the current Psychological Science, researchers (Schroeder, Kardas, & Epley, 2017) demonstrate that hearing an opinion spoken has a uniquely humanizing influence on perceptions of the source. When compared to the same message delivered in writing, the spoken message is more likely to generate empathy. “If mutual appreciation and understanding of the mind of another person is the goal of social interaction,” they write, “then it may be best for the person’s voice to be heard.” In this post, I’ll discuss the study and share three quick thoughts on preserving the role of spoken advocacy in litigation.

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November 6, 2017

Expect Empathy to be Driven by Similarity

By Dr. Ken Broda-Bahm:

On October 1st, a gunman opened fire on a crowd of concert attendees, injuring nearly 500 and killing 58. In response, the President offered condemnation and condolences, but said the event should not be politicized and offered no policy changes. Thirty days later, a man drove a rented truck through a crowded bike and pedestrian area, injuring a dozen and killing eight. In response, the President used executive power to further increase vetting of foreign immigrants, called for an end to diversity-based immigration, and intensified his emphasis on a Southern border wall. Then yesterday, a gunman killed at least 26 in a Texas church, and the President was back to the more general message: Americans should “stand strong,” but no policy changes are needed. Why the difference? One explanation is that, in the first and third instances, the perpetrator was native-born and white, but in the second instance, the perpetrator was an immigrant from Uzbekistan.

No one, including the President, is going to consciously decide, “Well, the white shooters are more similar to me than the New York driver, therefore, despite the greater carnage, I will have a less-intense reaction to those cases.” However, there is good social science to support the idea that this is exactly what is going on, at least in part. When it comes to evaluating both those who have done wrong and those who are the victims of that wrongdoing, our reactions will be strongly influenced by our empathy, which is in turn strongly determined by similarity. In other words, we are less punitive when the perpetrator is like us, and we are more punitive when the victim is unlike us. In this post, I’ll share some recent research on this tendency and discuss the implications for legal persuasion.

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November 2, 2017

Address the Silence of a Delayed Harassment Claim

By Dr. Ken Broda-Bahm:

Sexual harassment is a constant issue. But sometimes there is relative silence on the subject, and sometimes there are waves of attention. Right now, one of those waves seems to be cresting. With the repeated harassment claims and settlements at Fox News, and the number of women accusing Hollywood producer Harvey Weinstein — a number now approaching triple-digits and including some very familiar names — the focus of attention is broadening to include many other harassers in the media, politics, the arts, and academics. The attention has spawned a “MeToo” hashtag campaign, with an unprecedented number of women from all walks of life stepping forward to publicly share their experiences as a target of sexual harassment or abuse.

In the workplace, harassment is disturbingly common, with one recent report (Rand, 2017) indicating that nearly one in five say they face a hostile or threatening social environment at work. And always, when people come forward days, years, or even decades after the harassment, the question is, “Why did you wait so long?” But as the high-profile scandals continue to receive attention, and especially as more and more women come forward and share experiences that they did not necessarily report or pursue at the time, I believe that the reasons for the silence are becoming more public, and potentially more understood and accepted. We will need to wait to see if attitudinal data bear this out, but anecdotally at least, the general public is getting a more detailed lesson than it has gotten in the past on why harassment targets are sometimes silent. The issue is broad enough to potentially change the climate for plaintiffs and defendants in workplace harassment claims. In this post, I will look at some of the reasons getting greater attention, and the messages they carry for litigation.

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October 30, 2017

Don’t Corrupt Your Credibility

By Dr. Ken Broda-Bahm:

As special counsel, Robert Mueller, files the first charges stemming from the investigation of events surrounding Russia’s involvement in our presidential election, the issue of corruption touching on the government looms large. In Chapman University’s  2017 “Survey of American Fears,” just released in time for Halloween, the results put “corruption of government officials” at the top with fully 74 percent of the population reporting that as one of their largest fears. There is probably a political explanation for that figure, as a distrust of officials is now uniquely shared by both the anti-Washington populists who swept Trump into power as well as those on the other side who doubt the honesty and ethics of Trump and those in his administration.

But corruption isn’t just a political concept. Thinking of the word “corruption,” it connotes something that has become impure or has begun to rot. The dichotomy of purity versus corruption is one of the universal values that academics have identified as forming the substrate of most of our political positions. Explained in Jonathon Haidt’s book The Righteous Mind (2012)the dichotomy between purity and degradation has deep roots in human civilization, likely originating as a reaction of disgust to unfamiliar foods or pathogens, and extending to perceived outsiders or to anyone who potentially threatens our symbolic order. “The psychology of sacredness helps bind individuals into moral communities,” he writes, “When someone in a moral community desecrates one of the sacred pillars supporting the community, the reaction is sure to be swift, emotional, collective, and punitive.” In a courtroom, an appeal to what is sacred could involve any of the symbols that relate to a process that society holds in high esteem. That includes the obvious symbols – the bench, flag, or oath – but also includes some of the practical ingredients that lend legitimacy to the system, like the idea that parties are acting aboveboard and are trying to give the fact finders what they need to reach a sound decision. All of the players need to be mindful of that and avoid any messages that corrupt that purpose.

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October 26, 2017

Trial Lawyers, Improve Your Emotional Intelligence (7 Reasons and 3 Ways)

By Dr. Ken Broda-Bahm:

What counts as good legal persuasion differs from one country to the next. Different cultures, different legal rules and systems, and different fact finders all make a difference. But one thing stays consistent no matter the venue or the tongue: Legal persuasion boils down to people using communication to influence other people. That common purpose stands out in a paper released last month for the United Nations International Expert Programme in Investigative and Legal Psychology (Barosa, 2017). The paper is written by a Portuguese criminal lawyer, Pedro Barosa, and provides a literature review and reflections on emotional intelligence, mostly aimed at persuading judges (appropriate to the Portuguese system) but, as he notes, the thoughts are also broadly applicable to persuading anyone.

Mr. Barosa begins with the novel and disarming admission that, throughout his general and legal education, and continuing into his legal practice, he has consistently considered himself to be less cognitively intelligent than most of his peers and adversaries. But despite that, he wins more often than not, based, he believes, on an appreciation and use of emotional intelligence. The concept of “emotional intelligence” has been around for a couple of decades, and it refers to the  ability to perceive, analyze, generate, and use emotional responses. It does not just mean high levels of feelings, it means the ability to reason constructively about feelings. Barosa boils the definition down to three processes: “1) appraising and expressing emotions in the self and others; 2) regulating emotions in the self and others; and 3) using emotions adaptively to achieve one’s goals.” The research shows it to be unrelated to cognitive intelligence, meaning that people may be a genius in reasoning, but still a novice at emotional intelligence. Because law as a profession can self-select for individuals who prioritize logic over emotions, and because effective legal persuasion requires a mix of both, it is worth thinking about. In this post, I will share seven reasons to improve emotional intelligence informed and inspired by Barosa’s essay, as well as three ways to do it.

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October 23, 2017

When Assessing Emotions, Listen, Don’t Look

By Dr. Ken Broda-Bahm:

It was written all over his face.” That’s what we say when we think someone’s expression has told a truer tale than their words. It is the kind of statement that shows that we naturally pay a great deal of attention to the face when we are trying to assess emotion or credibility. But maybe we pay too much attention. According to research reviewed in a recent post in Psyblog, it is actually the tone of voice and not the face that does the better job of accurately conveying emotion.

The study (Kraus, 2017) shows people actually read emotions more accurately when listening and not when looking at faces. Over the course of five experiments involving over 1,772 participants, Dr. Michael Kraus looked at the ability to accurately empathize under three conditions: while looking at and listening to a subject, while just looking, or while just listening. The third condition won out, and accuracy was best when the research participants were just listening and not when they were just watching, or listening and watching at the same time. Similar results have been found in other studies. But why would less information be an advantage? Kraus suspects it is because people are better at hiding or faking emotions via the face rather than the voice, and listening and watching at the same time is cognitively complex, which causes the more reliable signs in the voice to be outweighed or missed. “Actually considering what people are saying and the ways in which they say it can,” Kraus notes, “lead to improved understanding of others at work or in your personal relationships.” It can also lead to better client assessment and witness preparation, as I’ll share in this post.

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October 19, 2017

Account for the Contagion of Bias

By Dr. Ken Broda-Bahm:

Every persuader, and legal persuaders in particular, understand that bias is both pervasive and powerful. The idea that potential jurors will be carrying attitudes and experiences that could influence their decision is the norm and not the exception. As a trial attorney, your goal is to eliminate it. In practice, however, it is more likely that you’ll be minimizing it. There aren’t enough strikes in the world. But is it enough if the biased jurors on your panel are numerically outweighed and outvoted by the other relatively unbiased jurors on your panel? Will deliberation take care of the problem when the biased jurors discover that most on the panel have different views and experiences? According to some recent research, the answer is “No.”

Using the example of bias based on pretrial publicity, the researchers from the University of South Florida (Ruva & Guenther, 2017) found that it is more likely that the bias will be contagious rather than being contained. The article entitled, “Keep your bias to yourself: How deliberating with differently biased others affects mock-jurors’ guilt decisions, perceptions of the defendant, memories, and evidence interpretation,” looks at the results from 648 mock jurors, half of whom were exposed to various forms of pretrial publicity on a criminal case. They looked at the influence of those exposed jurors when they were placed in groups with non-exposed jurors. The results suggest that, “during deliberations, pretrial publicity bias can spread to jurors not previously exposed to pretrial publicity.” These results serve to underscore the priority that litigators already place on rooting out bias, and remind us that we cannot count on bias being easily checked. And the findings also suggest that we devote further thought to ways to discover bias without furthering the spread of it.

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October 16, 2017

Treat Cross-Examination Questions as a Flashlight in a Dark Room

By Dr. Ken Broda-Bahm:

What do I mean when I say the witness should treat cross-examination questions like a flashlight in a dark room? I mean that the questions are designed to shine a light on some things and to purposefully leave other things in the dark. Imagine, for example, a series of questions designed to show a hotel room is unoccupied: The TV is off, right? The luggage is gone? There’s no one in the chair? And there’s no one in the bed, all true? These may all be true, but what are they leaving out? The bathroom door is closed. The room’s occupant is still there. The claims made in the questions are all true, but they’re purposefully incomplete. They are selected and designed in order to tell the examiner’s story, not your own. I have used this analogy before, in a post focused on the selective nature of memory, but it also applies to the selective nature of questioning.

A self-protective pattern of responding to these selective questions requires more than just saying ‘Yes’ to what is true, and more than just confirming what opposing counsel happens to be shining a light on at any given moment. A self-protective response requires shining a light on some things your adversary has chosen to leave in the dark. And sometimes it means just turning on the lights to see what’s in the room. I’ve known many witnesses who will say during a prep session, “Well, that’s true. What else can I say other than ‘yes?'” The answer may be ‘Yes,’ but you can and should say more than ‘Yes’ because ‘Yes’ isn’t the whole story. In this post, I’ll use an extended example to highlight the ways a witness can get beyond the flashlight focus of a true but incomplete claim in a question.

The Scenario

Let’s assume the following. We have a doctor defendant, an emergency room physician. The claim is based on delayed diagnosis of a heart attack. The plaintiffs’ attorney wants to chain together all of the factors supportive of that diagnosis while ignoring all of the signs that were inconsistent with that diagnosis or that point in another direction. A witness focused only on accuracy but not completeness, can end up confirming the plaintiff’s narrative, but a witness who fights back by bringing in the other factors is able to ensure that the testimony is more accurate.

The Questions

Question   Easy Answer

(True but Incomplete)

  Better Answer

(True and Complete)


Ms. Smith was a smoker on birth control, correct? Yes. Yes, she is otherwise in good health, but is a smoker and on birth control.
And both of those, and especially the combination, are risk factors for a heart attack, right? That is correct. Yes, it is a moderate increase in risk, although in a young and healthy woman, that increase would be modest.
Her family history also increased her heart attack risk, correct? Yes, it did. If we had known it, yes, but we did not have access to her complete history in the E.R.
When she presented in the ER, she was reporting pain in her chest? Yes. Yes, she indicated pain but only when coughing; She had a chest cold.
And she reported dizziness and fatigue, also consistent with a heart attack? She did. Yes, and that is also consistent with the cold she was experiencing.
And she was short of breath? Yes. Yes, due to her coughing and chest congestion.
That’s all pretty consistent with a heart attack, isn’t it? Yes, it is. It can be consistent with a heart attack, but it can also be consistent with a variety of other conditions, including the chest cold we knew she already had.

Of course, there is something to be said for the advice, “If the answer is ‘Yes,’ then just say ‘Yes.” However, I’d argue that this tends to be a good practice only for pro forma foundational questions or other questions that are purely attempts to gain information. When the other side has any strategic or argumentative purpose to the question, then it’s best to assume that just giving a “Yes” to what’s in the flashlight’s focus is going to be incomplete. Better to turn on the lights.


Other Posts on Witness Answers: 


Image credit:, used under license

October 12, 2017

Expect a (Mostly) Willing Jury

By Dr. Ken Broda-Bahm:

The idea of a reluctant jury — a jury of people who would really like to be just about anywhere else, a jury of people who tried like hell to get out of it and failed — that idea is fairly well ingrained in our system. Among many, especially those who don’t experience the court system on a regular basis, it is considered a truism that most Americans dread jury duty, will try to find a way out of it if they can, and will hate the experience until the end of trial if they can’t get out of it. Certainly there’s plenty of evidence of that reluctance. For example, there are sites that specialize in offering excuses, including an illustrated guide at WikiHow on how to get dismissed from a jury. That whole frame of the reluctant audience can be disconcerting to parties and witnesses. The thought is that not only do you have to persuade people drawn randomly from the community, but you also have to convince a group that really doesn’t want to be there.

Those who do work regularly with juries, I suspect, have enough experience to know that this perceived reluctance is overblown. And there is an important distinction to be made: Jurors don’t hate jury duty, ‘almost-jurors’ hate jury duty. Those who report to the courtroom, watch an orientation video set to bad elevator music, then spend vast amounts of time waiting for something to happen are the ones who resent it the most. And if they’re called into a courtroom, picked over but not picked, then they’re likely to be annoyed that they were forced to surrender their time to what seems like a pointless exercise. Those who make it, on the other hand, are not just willing to do it, more often than not, they’re actually interested and excited about it. For many of them, it is probably the greatest social responsibility they’ve had, apart from raising their kids. Recent research backs up that jury duty isn’t nearly as negative as one might think. In this post, I’ll briefly share that research as well as some thoughts on leveraging that interest and addressing the reluctance that remains.

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October 10, 2017

Know Your Cognitive Biases, Part 2

By Dr. Ken Broda-Bahm:

The law expects legal decision making to work like a smooth and well-oiled machine. But as any experienced legal persuader knows, there is sand in those gears. That sand takes the form of cognitive biases: mental shortcuts or heuristics. They’re not necessarily mistakes, but factors that make legal decision making from a judge or jury less linear and logical than the legal model might presume. I wrote last year on advantages of knowing your cognitive biases based on a newly-published list of such biases. To advance the taxonomy, Jeff Desjardins of  the media website Visual Capitalist has more recently developed a handy image: “Every Single Cognitive Bias in One Infographic.” The list is detailed, including fully 188 known and documented biases. The infographic, together with a brief explanation, is available at the link above, and a high-resolution version is also available.

The Visual Capitalist illustration follows the same approach as the “Cognitive Bias Cheat Sheet” I wrote about earlier, but adds a couple of levels of organization that helps to show the relationships between the biases, and because you aren’t really going to memorize 188 biases, it emphasizes the broader concepts involved. The outer ring lists these main principles focusing on selective memory, too much information, not enough meaning, and a need to act fast. The next inner circle lists 20 general tendencies, like “We edit and reinforce some memories after the fact” and “we simplify probabilities and numbers to make them easier to talk about,” each covering around 5 to 20 cognitive biases. In this post, I’ll walk through those 20 forms of cognitive bias to briefly highlight the roles they play in legal persuasion.

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