Persuasive Litigator

Practice Mentally

By Dr. Ken Broda-Bahm: 

When I taught public speaking I'd ask students to picture an experiment. A group of people are being tested on their ability to shoot basketball freethrows, and they're divided into subgroups (evenly matched on ability) and each subgroup prepares for the test differently. One group prepares by actually practicing with a basketball on the court. A second group is asked to prepare by visualizing the shot: They picture the ball arcing through the air and going through the basket, nothing but net. A third group does nothing before the test. So which group would you expect to do best on the test? The group that practiced with the ball seems like the best bet. But the intriguing possibility is that the group just visualizing would come in a very close second. Some say that this study has actually been done with exactly that result, but the better information seems to be that this study on visualization is just that, a visualization - an academic myth about a study that never actually occurred. But the illustration is still useful and there is no shortage of current research on the benefits of mental preparation. 

That research is frequently cited by those who practice and promote the idea of visualization and mental practice. That was an important point for my public speaking students to get: Practice and visualize your speech. And it is an important point for litigators and witnesses to understand as well. Voir dire, openings, closings, and witness examination and testimony: These are all high stakes communications situations that can be executed well or poorly. So how do you prepare? Of course the substantive preparation is to know the facts and the law, the arguments and the evidence, the goals and the structure. But there is also the practical preparation of walking through it mentally and getting up and doing it. Drawing from a recent Psyblog post on the demonstrated benefits of mental practice, this post focuses on what attorneys and witnesses should be doing and avoiding when it comes to getting their heads in the game. 

Overlap Your Stories

By Dr. Ken Broda-Bahm: 

Let me start differently in this post, with a 'Tale of Two Tales.' Here is tale number one: 

First, From the Plaintiff's Perspective: 

It is January, 2010. Brian Starr, a computer storage engineer on contract for GiganTech Industries has come up with a rough design for the UltraDrive, a radical new design for a computer hard drive that will increase storage space and performance while reducing manufacturing costs. Brian is all the more enthusiastic about the idea because his contract with GiganTech grants him a share of royalties from any new product. So he begins work immediately, looking into a path to market. 

It is March, 2010. Brian and GiganTech are facing the normal amount of problems in fleshing out a new product. There are many issues to troubleshoot, but they all seem resolvable and it will be worth it in the end. 

It is June, 2010. Brian realizes that GiganTech has lost patience with the UltraDrive. He thinks they must have had unrealistic expectations for a quick path to market, because they're cutting their losses and moving on. Brian Starr's contract isn't renewed, and after being told that GiganTech has no plans to ever get UltraDrive to market, he signs a standard form agreeing that he has been paid all he is owed by GiganTech and releasing all future claims against the company. 

It is October, 2010. Brian Starr is shocked when GiganTech comes out with a product nearly identical to the UltraDrive and immediately seizes a large share of the market. Brian calculates that, but for the release he signed, his share of royalties would top $3.5 million. 

Pick the Right Frame

By Dr. Ken Broda-Bahm: 

Earlier this week at a mock trial, I witnessed a face-off between two jurors with very different views about the same insurance case: "The company wasn't fair," cried one, "to this day they haven't stepped up to do the right thing." But the other juror was unmoved: "The policy is what it is, there's no benefit to them going beyond it." It is tempting to see this as an exchange between two types of people. But more accurately, it is a conflict between people who happen to apply two different frames around the situation. The first juror is applying a moral frame, looking through the perspective of fairness and right versus wrong. The second juror is just looking at the pragmatics of the situation, and what the policy calls for quite independent of what is good or bad. While you might think the die is cast on which type of discussion will prevail as of jury selection, much depends on the message they hear in trial. 

The critical lesson is this: Frames can change, even within a single individual. Based on a recent study (Van Bavel et al., 2012), people appear to be very malleable and able to selectively apply either a pragmatic or a moral frame, and are able to rapidly switch between the two, even when evaluating the same or similar activities. To determine how the frame of evaluation impacts the way participants viewed the same stimuli, the researchers presented a number of concepts (e.g., murder, honesty, eating, or riding a bike), and asked for ratings on the moral grounds of whether they are right or wrong, or on the pragmatic grounds of whether they are personally beneficial or harmful. The team found not only that participants were able to easily switch between the different frames for all kinds of activities. They also found that the choice of frame matters: Moral judgments tended to be quicker, more extreme, and more universalized in the sense of applying to everyone. So the choice of frame matters, and if it is changeable, then the promotion of a particular frame is a key part of the message.

Appeal to Your Juror's "Temporary Identity"

By Dr. Ken Broda-Bahm: 

It is Halloween time again, and everyone who is a kid or young enough to party like a kid, is preparing their temporary identity for the night: a pirate, a witch, a vampire. This year, apparently, the trending looks are less traditional, including "Angry Birds" and costumes for this year's angriest bird of all, Big Bird, are flying off the shelves. Of course, the idea of temporary identity, of being something else for a short period of time, isn't limited to October 31st. It is something that sets the stage for human communication in every context. In different situations, we adopt different personas. There is overlap, of course, but when you think about it, there are probably some pretty clear distinctions between the "work-you," "friends-you," and "family-you." 

There is also a "juror-you." That is, there are differences between the identity a juror assumes during trial and the identities that person may hold in any of their other life contexts. While we might think of attitudes and personalities as something fixed and immutable -- something that a person "has" -- it is more accurate to see them as highly changeable and sensitive to the situation -- something that a person "does," and does differently in different contexts. We've raised the issue previously of jurors being in different "decisional mindsets" at different stages in the trial. In this post, I'd like to take that point a little further and discuss ways to get jurors into a preferred role or identity during trial. I'll be choosing two early moments in trial, voir dire and opening statement, where a juror's understanding of her role can be critical, and providing suggested language on ways to encourage and adapt to a juror's temporary identity at that stage. 

Don't Put "Story" on Too High a Pedestal

By Dr. Ken Broda-Bahm:

Many hold that stories are essential to effective communication, and I am among them.  Especially in litigation, there is a natural role for stories as a glue holding together the facts and the law, the ethics and the evidence, the logic and the persuasion.  I believe that and apply it in my practice every day.  So when I heard about Tyler Cowen's TED talk encouraging people to distrust and to rely less on stories, I approached it with some suspicion.  When I viewed the remarks on YouTube, it was with an eye toward refuting Dr. Cowen.  As I listened to the economics professor's remarks, I found myself rejecting some parts of his argument.  Rather than being "a kind of candy," "a kind of mental laziness," or "a kind of self-deception," it seems more likely that stories are an unavoidable part of cognition and the way we make sense of the world.  But I found myself agreeing with other sentiments, like the tendency of stories to sometimes invent intention, and to make "the mess" that is life appear to be unrealistically organized and driven by clear plot lines.  I considered the possibility that maybe we do rely on stories as a crutch, particularly in complex litigation, to simplify things that ought not be simplified.  Then I thought, "Oh my god, what if he is right?" because up to this point in the blog post, all I've been doing is telling a story. 

In the end, looking at the ways Tyler Cowen's thoughts apply to narratives in litigation, I found some things to keep and some things to set aside.  In this post, I share some thoughts on adapting storytelling to the legal realm, and importantly, adopting to a legal audience's potential skepticism toward stories.