Persuasive Litigator

But Wait, There's More: Build Your Case Over Time, Instead of All at Once

By Dr. Ken Broda-Bahm:

If that commercial for the knife set just laid it all out at the start, it would sound like this:  "Okay, here is the deal, you get the knives, the storage block, an extra set of steak knives, free sharpening for life, and free shipping if you call in the next hour."  But that isn't very exciting.  Instead, over the course of a relatively long commercial message, the knife seller will trot out each of these perks in sequence, so just as you are wondering if the knife set itself is worth it, you hear "There's More!" and you're given yet another benefit. 

As cheesy as it sounds, the technique works.  A sequenced delivery of arguments is better than a more straightforward listing of arguments, because it helps the target customers get past any doubts that they may be having over the sale.  New research shows that the same principle applies beyond the world of advertising, and works in the world of legal evidence as well.  This post will take a look at the study and draw out a couple of important implications that apply to the structure and content of your opening statement and trial plan.

Remember Herman Cain's "9-9-9" Plan, and Don't Forget the Power of a Good Mnemonic

By Dr. Ken Broda-Bahm:

Whatever you think of Republican Presidential contender and former pizza magnate Herman Cain, you've got to give him credit for creating a theme using only three digits... and a theme about tax policy, no less.  Mr. Cain has been ascendant recently in the race for the GOP nomination, largely based on the strength of a simple idea:  a 9 percent business flat tax, a 9 percent individual flat tax, and a 9 percent national sales tax.  Even voters who wouldn't otherwise favor the candidate can see a certain appeal in its simplicity and apparent fairness, with fully 56 percent of likely GOP voters and 36 percent of unaffiliated voters saying that they support "9-9-9."  The tax plan is getting closer scrutiny now as the candidate's star is rising, and much of that scrutiny is negative.  For example, Michelle Bachman has cogently pointed out that if you flip it over, it is the number of the beast.  To be fair, she used that as a springboard for noting that "the devil is in the details," which is itself a good mnemonic for the argument that most Americans would see increased taxes from "9-9-9." 

But one fact that legal communicators should take heed of is the power of a simple mnemonic expression.  If the plan lacked that easy handle, then chances are that it would be just one of the many policy positions that politicians cart around, and the public would not be talking about it.  In this post, I take a look at some of the research and experience on what makes a good mnemonic, and how litigators should apply that knowledge in creating your trial themes. 

Take a Lesson from the Conrad Murray Defense: Don't Make Promises in Opening that You Can't Keep

Dr. Ken Broda-Bahm:

It is generally a mistake to change strategies in the middle of trial.  Dr. Conrad Murray, the personal physician hired to care for Michael Jackson during the rehearsals for his comeback tour, is now in trial on involuntary manslaughter charges in the entertainer's death, based on his administration of Propofol, a drug usually administered only in hospital settings.   Over the course of more than a year leading up to the trial, the theory the defense touted in the press has been that the singer, unable to sleep, dosed himself with the powerful sedative by drinking it in a glass of juice. 

In telling the jury the same story in opening statement, defense attorney Edward Chernoff said, "When Doctor Murray left he room, Michael Jackson self-administered a dose of Propofol that, with the lorazepam created a perfect storm in his body that killed him instantly."  But the appearance, at least, is that this theory is being abandoned.  This past Wednesday, attorney Michael Flaningham told the judge that the team would no longer pursue the defense that Michael Jackson killed himself by ingesting Propofol, after doing their own study showing that ingestion would not have been fatal.

As the trial resumes tomorrow, this puts a large question mark over the defense, while also providing a good lesson on caution in opening statement:  don't overpromise, and don't violate the jury's or the court's trust by telling a story that you cannot prove.  This post takes a closer look at the Murray defense shift, along with some relevant research on the effects of weak evidence, and provides a few recommendations for keeping your opening and your case on the right side of caution. 

No Blank Slate (Part 1): In Opening, Treat Your Jurors as Motivated Reasoners

By Dr. Ken Broda-Bahm -

The Plaintiff's opening statement in the medical malpractice trial began predictably:  This is a case about "incompetence," and "arrogance," and "dangerous decisions," jurors heard.  But rather than fostering even an initial leaning against the doctor, this message brought about a defensive response.  Jurors were left feeling that all their stereotypes about medical lawsuits and plaintiff attorneys were confirmed, and as they listened, they generated responses, reasoning that "doctors are only human," "medicine is still an art, not a science," and "even the best efforts don't guarantee good outcomes." 

What led to the defensive response to the Plaintiff's opening?  The answer can be found in a self-protective tendency.  A deep-seated desire to justify the trust we place in doctors provided a powerful motive for jurors to reason in ways that countered the Plaintiff's case.  We like to see jurors as neutral evaluators who listen, weigh, and decide the case -- as the metaphoric blank slate we write our arguments upon, or the empty vessel into which we pour our evidence.  Experienced litigators know this isn't true, and research is increasingly showing us the degree to which it isn't true.  The concept of "motivated reasoning" is one example.

Show, Don't Just Tell: Part 5, Caution (Persuasion Strategies Visual Persuasion Study)

By Dr. Ken Broda-Bahm -

 
As we get to the final post in this series, astute readers will have no doubt noticed one claim that we haven't made:  namely, that graphics will win your case.  By themselves, they won't.  That is what we found in our experiment focusing on the reactions of 1,375 mock jurors.  When we compared five different approaches to graphics (no graphics, flip charts, static graphics, animations, and continuous graphics use), and compared the reported case leaning, and verdicts on liability and causation, we found no one method presented a statistically significant advantage over the others. 

I'll admit, even for a dispassionate researcher, this was a  bit of a dissapointment.  As we designed and prepared the study, we had allowed ourselves to dream,  "Wouldn't it be great if, keeping the script constant, we could find the difference between winning and losing in graphics alone?"  Alas, not in this case.  Perhaps that is a necessary dose of reality.  The central caution we leave you with is you won't win your case because you use graphics.  Good visuals do provide a definite edge:  they improve comprehension, allow you to compare more favorably to the other side, and help to make the key points more memorable.  By themselves, good graphics won't turn the case in your direction.  In this final post, we take a sober look at this final caution and provide some parting advice on focusing your visual persuasion in litigation on what it does best.