Persuasive Litigator

Persuade Using Both Alpha and Omega Strategies

By: Dr. Ken Broda-Bahm -

 

Never heard of “Alpha” and “Omega” strategies for persuasion?  Until recently, neither had I.  But after reading the research, it has changed my way of looking at persuasion.  The terms are based on something called the "approach-avoidance" model (Knowles & Linn, 2004), suggesting that to an audience, every position you might advocate has attributes that attract ("approach"), and attributes that repel ("avoidance").  Persuasion is accomplished, naturally enough, by making the approach stronger than the avoidance.  Now, you might think, "that is obvious -- of course audiences see a pro and a con," but the real takeaway for advocates is the reminder that you need to speak to both sides of the equation.  Intuitively, we might expect that we make a persuasive case in court by assembling all of the evidence, arguments, and other appeals that show why we are right and they are wrong.  But that all speaks to the benefits of our position -- the approach forces.  Those are the "Alpha" strategies that give a judge or jury an incentive (greater credibility or merit) for siding with us.  But what about the avoidance forces, the forces that cause an audience to resist our message?  If we aren't also using the "Omega" strategies to decrease that resistance, then we may just be building a convincing case that our audience rejects nonetheless for their own reasons. 

In this post, I'll be referring back to the opening statements in the second corruption trial of former Illinois Governor, Rod Blagojevich, to illustrate the difference between Alpha and Omega strategies, and to underscore the message that complete persuasion needs to employ both.

A Mixture of Justice and Revenge: Target Juror Psychology in Awarding Damages

By: Dr. Ken Broda-Bahm -   
Exactly what do people celebrate when they see a fitting result?  Sometimes it is justice, and sometimes it includes a measure of payback or revenge as well.  Just over a week ago, news from the Oval Office ignited jubilant celebrations in Times Square and many other parts of the country.  Scenes of the rapture that greeted the death of Osama Bin Laden caused some observers to wonder at the civility of a response that might have seemed more appropriate for a sports victory, and even President Obama spoke about not wanting to "spike the football" in the aftermath.  It is obviously a good thing that an evil and dangerous man is out of the picture, and not able to cause further harm. But that isn't the only reason for the celebrations.  Indeed, it is hard to imagine comparable fervor if we had received confirmation that Bin Laden died peacefully in his sleep.  Part of what people are celebrating is the way he died, and specifically that a man of violence met a violent end.  In other words, people are motivated not only by a just or fair result, but also by a result that appeals to a human desire for revenge.  

My goal isn't to criticize or to defend that response, but instead to note that it stems from a well-documented psychological tendency that applies not only to war and counter-terrorism, but also to all situations in which people are trying to right the scales.  The idea that those who have caused harm should suffer harm is at the root of our criminal justice system (more so in practice than deterrence or rehabilitation), but the appeal of payback plays an important role for civil juries as well.  Looking at revenge psychology carries some important implications for both civil plaintiffs and defendants. 

Know When to Take the Offensive in Defense of Your Product: Lessons from Taco Bell

By: Dr. Ken Broda-Bahm -

 Imagine this:  you're sued for making false claims about your product.  What do you do?  Issue a terse public statement and hunker down for discovery?  Not Taco Bell.  When an Alabama law firm filed a class action accusing the company of using meat filling with only 36% beef, the company responded by placing full page advertisements in Wall Street Journal, New York Times, USA Today and other papers that read "Thank you for suing us (Here's the truth about our seasoned beef)" providing a forceful response that the filling is 88% beef with the remaining 12% being mostly water and spices.  Now imagine that less than three months after filing suit, the Plaintiff withdraws the suit with no agreement or settlement of any kind.  What do you do?  Pop some Champagne corks and quietly go back to business?  Not Taco Bell.  When the Plaintiffs' withdrew their lawsuit last week, the company again took out advertisements in the countries' major newspapers.  But this time, the ads were even pithier:  "Would it kill you to say you're sorry?" the company asks the Plaintiffs' firm? 

However you may feel about Taco Bell as a cuisine or a company, there is something going on here that carries an important message for anyone who sells a product that may be find itself in the cross hairs of litigation.  The message:  Sometimes it makes sense to go on the offense.

Aim Your Product Warnings at "FYI" and Not Just "CYA"

By: Dr. Ken Broda-Bahm -

  
A warning that calls attention to a product's potential danger is obviously an important part of a company's litigation prevention and defense.  But according to one recent statistic, a substantial portion of the public, and potential jury pool, may be a bit cynical on the question of whether warnings are designed to educate or just provide cover.  In a 2010 Decision Analysis survey on attitudes toward products liability litigation, fully 70% shared the belief that product warnings exist to protect companies in the event of lawsuits rather than to protect the public from product risks.  On the bright side, that means that if "CYA" truly is your motivation for consumer warnings, you won't be violating jurors' already low expectations by admitting it. On the even brighter side, it means that if you can convincingly reframe your own company's warning in the broader terms of public education, you may end up surprising jurors and gaining an important measure of credibility in the process. 

Know Your 'God Terms' and Your 'Devil Terms'

 By: Dr. Ken Broda-Bahm -

The need for a theme that communicates, simplifies, and unites your case has become common sense to litigators.  But the way that we come up with a theme is a little more mysterious.  Some see theme creation as an act of laborious analysis, developed out of a painstaking accounting of all case issues, good and bad.  Others see it as an act of divine inspiration, a ‘bolt from the blue’ that arrives unexplained from some part of our mind.  Someplace in between these two perspectives, I’d like to suggest one handy tool that will not only help you develop a theme, but will also provide you with a broad working vocabulary to use when talking about your case. 

The advice is to draw from the work of the rhetorician Richard Weaver, and identify the ‘god terms’ and ‘devil terms’ of your case.  God terms represent all of the words and phrases that you embrace, words that have an "inherent potency" in identifying what you support.  Writing in the fifties, Weaver used the examples of "progress" and "freedom" as words that we took as unquestionably good.  As you might expect, 'devil terms' represent their mirror image, and Weaver's prime example of "communist," has been replaced in our time by "terrorist" as the ultimate devil term.  Devil terms are not terms you avoid, but are rather terms that you embrace in describing the other side, and in helping to frame what your audience should be against.  The celestial imagery behind the words is more than just a great way for you to remember the concept, but is instead an important part of its meaning.  A god term means more than just a 'good term' but is instead a "rhetorical absolute," something that carries a strong automatic meaning.  That is, it isn't good because we can think of an argument why it is good.  Instead, it is good because it fits with at least one common worldview that our audience holds about what is good.  Same for devil terms - they carry a natural unfavorable connotation.