Persuasive Litigator

Account for Social Media Distortion

By Dr. Ken Broda-Bahm: 

The way we create, locate, and measure public opinion is changing, and fast. It used to be that we treated the body public as a passive audience waiting to be canvased, surveyed, or focus-grouped. Today, however, people in all demographics are active in public and semipublic internet spaces creating, sharing, and liking their way to an electronic body of evidence that's unparalleled in history. The existence and continued growth of that body is starting to affect the way we research, including in the litigation world. In what I called the "best trial idea of 2011," I previously discussed the concept of "social listening." Originally a technique used by market research firms in order to keep track of online statements about a product, a company, or an issue, social listening stands to become a tool promoted and used by some consultants to monitor and react to large-scale discussions about high profile court battles like the Casey Anthony trial.[1]

Of course, at least some of that promotion may be jumping the gun a bit. But still, when there is a pool of searchable information out there, it is only inevitable that social scientists will be drawn to it. And what social scientists use, lawyers, litigation consultants, and even the jurors themselves are bound to use as well. But even as we cautiously approach this new source of data, we need to be aware of a distorting effect. If social media is "a mirror up to society," it is more like a funhouse mirror, magnifying some areas and diminishing others. As interactive Web 2.0 features are increasingly used as a guide to public opinion, this post looks at some new research on the extent of social media's distortion and identifies a few practical places where we should account for that distortion. 

Be Generous With Your Expertise (Even When the Meter's Not Running): Another Lesson from the ABA Journal's Blawg 100

By Dr. Ken Broda-Bahm: 

They say that attraction is better than promotion, and we’re pleased this blog has been attractive. We’re honored to be in the fine company of the ABA Journal Blawg 100 for a second year. If you like what you read here, feel free to give us another bump by registering and voting at the link above in the “Trial Practice” category. But – as you might expect – there is more to it than self-congratulations. Just as I noted on the occasion of our first Blawg 100 honors last year, there is a larger point to be made, and it bears on the work of litigators. In this case, the larger point boils down to one simple word: Share. Share your knowledge, share your experience, and share your skills. Generously. Yes, we are in the business of selling all three, but the reality is that we’re also entering what can be called a “new knowledge economy” where value is something that often moves freely in an open creative commons, and is not simply bartered away to paying customers.

In other words, the lesson for litigators I’ve learned in writing this blog is a lesson for how lawyers should promote, or more accurately, attract. That lesson is to be generous with your time and your expertise. Of course, lawyers need to be careful and clear about when representation is and isn't created. But as lawyers and legal consultants, we're in the business of getting potential clients to trust us before they hire us. Reputation, past work, or a longstanding relationship - those are all great routes to trust. But for those who we are just meeting, how do we get them to trust? A new essay in Boro Zivkovic' blog post for Scientific American, “Nate Silver and the Ascendance of Expertise” provides some timely wisdom on this point. "Expertise engenders trust," according to this science blogging pioneer, and as we're becoming fed up with glib pundits and bloviators, "there is a hunger out there for expertise." Expertise is something that you have. So the question for our post today is, "How should you share it." 

Vet Your Public Persona

By Dr. Ken Broda-Bahm: 

It will not go down as one of the doctor's smartest Facebook updates. Returning to work at Wales General Hospital last December, Dr. Brendan O'Riordan added a note on his status: "Back and causing chaos," he wrote, "Been in theatre this week slaughtering the innocent." That stab at humor is not so smooth for a surgeon in any context, but the statement was made all the more awkward by subsequent events: Just a year later, Dr. O'Riordan would be the subject of a hospital inquiry for allegedly causing the death of a patient during surgery. Of course, the Facebook post was found and published in the London Daily Mail. Unlike patients and professional reputations, content on the internet lives forever.

Most witnesses and parties are probably able to avoid that kind of careless notoriety, but the number of targets and the nature of public information itself has changed dramatically in just the last few years. With close to 800 million Facebook users worldwide, the online community now includes parties, witnesses, attorneys, judges, jurors, arbitrators, and mediators. And beyond Facebook, there is also Twitter, LinkedIn, Flickr, YouTube, SocialCam - and it seems to me - about a dozen hot new trends every day. Put all of these sources together and you have, for most of us, a "public persona" that is potentially available to those who wish us less than the best in litigation. This post takes a look at some research and experience on the ways this persona can influence litigation, and ends with some concrete recommendations on keeping your public persona in check. 

Best Trial Idea of 2011: Apply "Social Listening" To Your Case

By Dr. Ken Broda-Bahm:

Our blog, formerly "Litigation Postscript," is now "Persuasive Litigator."  This new name highlights our focus on the practical application of psychological and communication research and theory to the persuasive burden faced in all litigation phases and contexts.  Thanks for reading.   

As we turn the page on a new year, it is a good time to look back on the trials of 2011.  The year had its share of high profile cases from the 'second times a charm' prosecution of Rod Blagojevich, to the conviction of Dr. Conrad Murray, and even the grand jury phases of the Jerry Sandusky trial.  In these cases and others, the year held many great trial moments, but as far as the trial moment with biggest impact on litigation generally, the distinction goes to the Casey Anthony case, not for its deeply unpopular verdict, but for methods applied in the defense, and what these methods can mean for your trial. 

Consultants working for the Casey Anthony defense applied a strategy called "social listening" to this uniquely public trial, analyzing more than 40,000 posts, tweets, and other social media comments on the case in order to, in effect, conduct a daily national focus group on the trial as it progressed.  While few, if any, cases will ever reach that fever-pitch of commentary, the technique of systematically analyzing content from public sources can apply to trials across the spectrum, providing another sounding board and tool for assessing your case.  In the Anthony trial, the social media world responded daily, and with specificity, to the evidence and witnesses of the trial itself.  That will only happen with high profile trials, but in other cases, the blogs, tweets, and comments ricocheting around the internet will still bear on issues that matter to your case.  This post takes a look at what social listening means, and how it can be used in cases large and small. 

Mix Creativity With Dogged Persistence When Preparing for Trial: A Lesson from the ABA Journal’s Blawg 100

 By Dr. Ken Broda-Bahm:

The American Bar Association Journal just released its 2011 Blawg 100 list of the best legal blogs in the country, and I'm very proud to say that Litigation Postscript (soon to be renamed "Persuasive Litigator") is on that list!  If you like our content, you can follow the link, select "Trial Practice" and vote to place us higher in that category. 

But beyond that little self-promotional moment, the ABA's list, as well as the past year of coming up with fresh content to keep to my schedule, got me thinking about the nature of blogging and the nature of trial preparation.  Blogging, at least when you are doing it regularly, requires a combination of two things that are sometimes seen as opposites:  a bright creative spark and a dogged wearying persistence over time.  Preparing for trial requires the same.  You need the dogged persistence for a relentless schedule keeping up with motions, making filings on time, and continually touching base with your witnesses and clients.  But, particularly as you get closer to your trial date, you need the true creative spark in order to imaginatively adapt to your decision makers, navigate your case weaknesses, and develop an effective theme and case message.  Recent research and commentary has a surprising amount to say about how the two -- the creative and the reliable -- are balanced, and this post will look at a slice of that as it relates to the creative and reliable work of an active litigator.