Tag Archives: Broda-Bahm

September 1, 2014

Consider Confidence

By Dr. Ken Broda-Bahm: 

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In foreign policy, the projection of certainty and confidence can be as important as the strategy. On that score, it hasn’t been an easy few weeks for the Obama administration. While some find it refreshing for leaders to avoid quick bravado in response to complex world events, others have attacked everything from the President’s choice in suit color (“The Audacity of Taupe”) to the admission of a lack of strategy in response to events in Iraq and Syria. Critics argue that this lack of confidence projects uncertainty which weakens our position and emboldens our enemies. And there is another area where a lack of confidence can do the same: trials. When an attorney or witness conveys discomfort, uncertainty, or a lack of confident composure, jurors and judges will take that as a reflection on the case. Even when we know it isn’t true, we act as though it is: Winners are confident and losers aren’t. 

The research backs that up as well. In addition to decades of studies showing that confidence is a key component of credibility, a new study (Lamba & Nityananda, 2014) shows that even false confidence can be very convincing. People who overestimate their own abilities end up being seen as more talented than others and are more likely to get positive breaks in life. And the converse goes for those who underestimate their abilities. Both uncertainty as well as the overconfidence are likely to bleed over into an audience’s analysis. For jurors or judges, that means that their own sense of how a witness is doing on the stand, for example, will be strongly influenced by the witness’s own sense. This post takes a look at the study and then, confidently, draws out a few implications for witness preparation. 

Research: Confidence Drives Credibility

It has long been noted by those studying the psychology of credibility that one of its strong components is confidence (along with competence and similarity). The reason confidence plays such an important role in our evaluations is probably because we see confidence as an outward sign of an inward certainty. And we believe, wishfully, that those who are most certain are also most likely to be right. We see this connection in a variety of settings, but in litigation particularly. Jurors are even asked as part of their instructions to look at a witness’s demeanor in evaluating the truthfulness of their testimony. 

The new study (Lamba & Nityananda, 2014) is covered in a recent Psyblog post that provides a handy overview. The authors looked at interactions in university tutorial groups. Students were graded at the end of the term, but predicted their own grades and the grades of their group-mates along the way. The result: “Overconfident individuals are overrated by observers and underconfident individuals are judged by observers to be worse than they actually are.”

Overconfidence, it turns out, is persuasive. As co-author Vivek Nityananda is quoted in Psyblog, “It can be beneficial to have others believe you are better than you are and the best way to do this is to deceive yourself — which might be what we have evolved to do.” In other words, fake it until you make it. 

Consider Confidence in Witness Preparation

Of course, no witness should ever be encouraged to “fake” anything. At the same time, because confidence is such an important factor in interpersonal evaluations, it should never be ignored in witness preparation. 

Don’t Take Confidence for Granted

Experienced attorneys, consultants, and the witnesses themselves understand that confidence is important. Still, there can be a temptation for all three groups to treat confidence as the norm, or as the natural consequence of preparation. It certainly can be, but there might also be other reasons for a lack of confidence. Testimony also carries a substantive dimension, and for many witnesses, their confidence will come down to the question, “Did I do the right thing?” It is a question that matters equally for plaintiff and defense witnesses. In addition to familiarizing and practicing, diagnose the reasons for any lack of confidence on your witness’s part.  

Don’t Use Preparation to Reduce Confidence

Lawyers tend to operate under the principle that working on something is the way to improve it. That’s often the case, but not always when it comes to the complicated and fragile phenomenon of human confidence. When working with witnesses, it is critical to avoid anything which would serve to make the witness less confident as a result. One example is what I call “prescription and proscription without practice.” In other words, many lawyers feel like a witness is “prepped” once they’ve experienced a briefing in which the lawyer has simply shared their list of “Do’s” and “Don’ts” as they apply generally and in the case. Without practice, and without the witness getting to the “Okay, I can do this” feeling, that list can simply serve to increase witness stress and reduce performance. Another tip is not to uncritically use video. I will often use it, but typically I do so when I can show the witness their own improvement. Few like to see themselves on video to begin with, and showing flaws alone just undermines confidence. 

But Don’t Promote Overconfidence

In many settings, we think that the more confidence someone has, the better. Trial testimony is probably not a setting like that: There’s no cure for over-confidence quite like cross-examination. In the study discussed above, a little self-deception turns out to be a good thing, making others more likely to think highly of you. But in trial preparation, I think the goal is realism, not self-deception. That means that for some witnesses (e.g., those who are arrogant, who have an exaggerated view of the virtues of their own position, or have blinders toward the other side), you will need to talk them off that ledge of self-delusion and back down toward realism. The trick is to do so without reducing confidence. In some cases, leaving the witness with a little delusion is better. Ultimately, the question for preparation is always, “Am I making it better?”

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Other Posts on Credibility:

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Lamba, S. & Nityananda, V. (2014). Self-Deceived Individuals Are Better at Deceiving Others . PLOS ONE, August 27, 2014: DOI: 10.1371/journal.pone.0104562

Image Credit: 123rf.com, used under license

July 14, 2014

Your Message Sequence: Go Big Then Get Small

By Dr. Ken Broda-Bahm: 

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Here is an important technique. Experienced persuaders may already have it internalized, but it still helps to make it explicit and look at why it works. The technique is this: Begin ‘big’ with an abstract statement (This is a case about a betrayal of trust) and then get ‘small’ by filling in the details (So let’s look at exactly the steps in which that betrayal occurred…). That sequence contrasts with the rational legal model which might prefer stacking detail upon detail until it finally reaches a conclusion. In spoken communication, the idea of leading with the broad statement works for the same reason it works to have headings in your written communication. Longtime readers of this blog know that I like headings. In addition to framing and breaking up a post, they also help the “skimmers” who want to broadly understand the focus of a post before they commit to reading it.

This step of putting the big picture first and then filling it in with details is a broadly important communication technique. It has been addressed recently by psychology blogging superstar Jeremy Dean, as well as legal persuasion blogging superstar Mitch Jackson. In different ways (tellingly, one more abstract and one more concrete), these two commentators both reinforce the good advice for communicators to first go big (by grounding their messages in broad or abstract language) and then to get small (by adding in the concrete implications and details). To practice what I preach, the big picture for this post is that it’s about strategic sequence. The smaller details are that it is about Jeremy Dean’s and Mitch Jackson’s different takes on the technique and what that advice, plus my own take, has to say to litigators putting a message together. 

One, Put the Big Picture First

We might tend to think of ‘abstraction’ as bad thing. And it is true that immediacy and concreteness can be achieved by moving down the ladder of abstraction into the realm of more specific meanings. But there are some benefits to abstraction as well. A recent post in Dr. Jeremy Dean’s Psyblog reports on research showing that those in power are more likely to rely on broad abstract expression rather than details. The study (Wakslak, Smith, & Han, 2014) reports on seven experiments in which research participants read quotations attributed to politicians. Some quotations were concrete and others abstract. For example, a speaker describing an earthquake might list the total deaths or injuries (concrete), or might speak about it as a national tragedy (abstract). “Use of abstract language that captured the gist or meaning of an event,” the researchers found, “led a speaker to be perceived as more powerful; relative to concrete language that focused on specific details and actions, regardless of whether the speaker was discussing a person, a societal issue, or a product; describing something negative or positive; or saying a few words or several sentences.” 

Now that might go against intuition if we believe that concrete details are what convey the most information. But the reason for the abstract advantage, according to the authors, is that the broader statements convey judgment and powerful people are viewed as more likely to render judgment. “When people use abstract language,” the researchers explain, “they communicate that they are removed from the action and able to distill the gist or essence of the situation, instead of focusing on the concrete actions that would be most salient if they were ‘on the ground.’”

Two, Follow It With Details

There is one important difference, however, in how this works in trial: Litigators cannot simply stay at the abstract level in order to appear more ‘powerful.’ At some point, they need to move down into the details in order to prove or defend their case. But there is a way to do that, while at the same time gaining the advantages of the broader and more abstract expression. Orange County lawyer Mitch Jackson writes about a method in a blog post entitled “Make Your Point Using This Two-Step Approach.” Using a trial story of a case in which a patient died after releasing himself from soft restraints in an ambulance, Jackson notes that the first step is to “share the broad brush strokes,” in that case the ambulance company’s broad awareness and professed commitment to patient safety. Then the second step, he says, is to “elaborate to make your point,” which in that case involved sharing the specific warnings the company circulated regarding the soft restraints.  

Jackson recommends this approach generally. “During almost any kind of presentation, structure your approach using broad brush strokes to paint the initial picture on one or more important issues,” he writes. “Once you’ve done that, elaborate upon each specific issue sharing more detail. Remember, you’re not repeating what was already discussed. Instead, you’re adding more color, flavor, feel and texture to the discussion for your audience to appreciate and digest.” 

The strategy boils down to presenting a broad strokes heading first, and then filling in the details next. That second step can also be seen as an example of saving the best for last. Overall it is also parallel to the funnel technique in taking depositions. The approach applies in many other situations including witness order as well: Lead your case with those who can give jurors a broad-brush understanding, then fill in with the witnesses who can get into the details. 

Three, How About a Sandwich?

Different approaches will make sense in different settings, but when the focus is on simply offering an explanation — as you might in opening or closing — then one additional thought makes sense. To add my own thoughts to what Dean and Jackson are sharing, I’d say that after starting big, then getting small, it makes sense to end back on the big. By sandwiching the details in a broad statement on either end, the trial lawyer is providing the necessary details while still maximizing the advantages of the broader and more abstract message.

In a products liability defense, it might look like this:

Big: A product that meets and exceeds the carefully-developed standards and regulations is not an unreasonable danger. 

Small: There are industry standards, as well as federal regulations, on how well an automobile’s fuel tank can and should be protected in the event of a crash. And those were hard-won standards and regulations. Thirty years ago and earlier, tragedies involving fuel tank explosions were far more common than they should have been. Working through those tragedies, the courts, the industry, and the regulators all learned. In response, we developed designs to add much greater protection to the fuel tank and to make those explosions less and less common, even in the event of a very high speed or catastrophic collision. Not impossible — but much less common. The car at the center of this case meets all of those standards by complying with all of those hard-won design improvements, including many that are not even required.  

Then Big Again: Because this car meets and exceeds all of these reasonable standards and regulations, it cannot be unreasonably dangerous. 

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Other Posts on Message Structure: 

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Wakslak, C., Smith, P. K., & Han, A. (2013, January). Using abstract language signals power. In Academy of Management Proceedings (Vol. 2013, No. 1, p. 14467). Academy of Management.

Photo Credit: 123RF.com, used under license

April 21, 2014

Treat Body Language as Unproven, Yet Trusted

By Dr. Ken Broda-Bahm:

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On a recent trip returning to the U.S., I was eyed closely as I answered a series of apparently mundane questions from the uniformed American agent. Where was I born? Where do I live in the U.S.? How long had I been gone? What cities had I visited? And so on. My interviewer may have been a “Behavior Detection Officer,” a role described in a recent article in The New York Times focusing on the program in which the Transportation Security Administration (TSA) invested over $1 billion in order to train screeners to read body language in order to identify potential terrorists. By checking to see who seems stressed, who is blinking too fast, who is averting their eyes or looking up and to the left, the trainers and their government pupils believe that they can improve their odds at spotting liars. But after a review, the Government Accountability Office (GAO) is recommending that the program be cut off, for one simple reason: It doesn’t work. A thorough review of the science, including a review of more than 200 studies (Bond & DePaulo, 2006), the conclusion is that people are notoriously bad lie detectors, and training just seems to serve to increase people’s confidence in their lie-detecting ability, but not their actual performance in it. 

Focusing on what are supposed to be the classic “tells” of deception, the ability of human lie detectors tends to hover at about the same level as chance: 47 percent correct in spotting a liar and 61 percent correct in spotting a truth teller. Despite this, the TSA and scores of other law enforcement agencies continue to invest heavily in that training. More than science, that emphasis reflects a folk belief that body language must be important. Based on all the attention we put into it, people are led to think that there must be some kind of definite and reliable meaning in it. But the reality is more complicated. Yes, nonverbal communication matters as part of the message. But, no, it does not carry clearly defined or universal meanings that make it a reliable test of credibility and truthfulness. Both sides of that equation carry some important implications for legal persuaders. For the witness on the stand evaluating the jurors during testimony, it means you cannot really tell what they’re thinking. But for those jurors looking back and evaluating the witness, it means that at least some of them will feel that they can gauge honesty by looking at the witness’s body language. And the legal instructions will even aid and abet that focus by telling jurors to look at “demeanor.” In this post, I’ll take a look at the disconnect between our beliefs on body language and the scientific reality, along with some of the implications for legal communicators. 

The Proof: No Case for Reliable Body Language

The New York Times piece on the fated TSA program is worth a read. It does a good job of pulling together and explaining the scientific results. While a belief in a body language that we can specifically read and rely on has sold many books and even served as a prop for some litigation consultants who have claimed the ability to “read” jurors’ nonverbals during voir dire and trial, the lack of scientific support for the idea is a little surprising. The Times article pulls together a number of explanations from some leading academics on the subject, and here are my favorites: 

  • “The commonsense notion that liars betray themselves through body language appears to be little more than a cultural fiction” (Maria Hartwig, John Jay College of Criminal Justice). 
  • “There’s an illusion of insight that comes from looking at a person’s body.” “Body language speaks to us, but only in whispers.” “Reading people’s expressions can give you a little information, but you get so much more just by talking to them.” (Nicholas Epley, University of Chicago). 
  • “There is no Pinocchio’s nose – no one cue that will always accompany deception” (Leanne ten Brinke, U.C. Berkeley). 

The Belief: High Trust in Body Language Anyway

Despite these conclusions, and the studies that support them, the cultural belief in the power of body language persists. The TSA, many law enforcement agencies, and scores of associated training firms are still committed to the idea. And if you try searching “body language” online, you’ll find that for every article that seriously looks at the meaningfulness and reliability of body language, there will be dozens purporting to teach you ‘the tricks’ for being believed, for spotting a liar, for acing that job interview, or for winning your mate. The reason for this belief, as Nicholas Epley explains in his book Mindwise: How We Understand What Others Think, Believe, Feel, and Want, is that we project our own feelings onto others. As quoted in the NYT article, “When you’re lying or cheating, you know it and feel guilty, and it feels to you as if your emotions must be leaking out through your body language.” Because of this, he adds, “You have an illusion that your emotions are more transparent than they actually are, and so you assume others are more transparent than they actually are, too.” It may also be because body language has a powerful and demonstrated influence on how we see ourselves (e.g., see Amy Cuddy’s TED Talk).

The Lesson: The Body Isn’t a Language…But It Still Matters

Saying that particular gestures and facial expressions cannot be reliably reduced to definite meanings is not the same thing as saying that nonverbal communication, including bodily communication, is unimportant. It is important. As part of the overall package, our behavior still contributes mightily, rightly or wrongly, to how we judge others, and to how we ourselves come across. 

So what do we do with the information of a strong disconnect between the science and the folk beliefs on the reliability of nonverbals? When our own nonverbals are being evaluated, it means that we should be aware that everything must might be overinterpreted. Aspects of tension, facial expression and gaze will be scrutinized by jurors just as surely as they are by TSA agents, so witnesses and attorneys need to be conscious of conveying the right message in both words and behavior. And when we’re evaluating the nonverbals of others, it means that we should be wary of overinterpreting. When talking to witnesses and attorneys, for example, I tell them to look at the jury in a polite and engaged manner, but not to waste a second trying to figure out what they’re thinking and whether they like and trust you or not. Beyond being unreliable, it is also a major distraction that can only serve to worsen your performance. 

More broadly, perhaps, the lesson is that we shouldn’t over-determine communication itself. Messages – not just the nonverbal ones, but the verbal ones as well – resist all efforts to being boiled down to definite meanings and simple causes and effects. Communication is rich and complex with no secret tells or tricks. 

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Other Posts on Body Language: 

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Image Credit: 123rf.com, Used under license

December 30, 2013

Chunk Your Trial Message

By Dr. Ken Broda-Bahm: 

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Give me the bite-sized version, break it down into pieces, and tell it to me step-by-step. The brain loves to segment, and the process known as “chunking” seems to be a central part of how we recognize patterns, manage information, and form new insights. A recent perspective on the process is articulated by Cambridge neuroscientist Daniel Bor in his book, The Ravenous Brain (2012). According to Dr. Bor, this ability to chunk is a key feature — perhaps the key feature — in human consciousness. “The process of combining more primitive pieces of information to create something more meaningful,” he writes, “is a crucial aspect both of learning and of consciousness and is one of the defining features of human experience.” 

The book covers a broad sweep, and it is likely that I’ll be mining it for future posts. But one of the clearest implications of Bor’s thesis is that practical persuaders need to adapt to the brain’s preference for patterns by giving the gray matter what it’s looking for. And if it’s true that an essential element in making meaning is conveying these chunks of information, the “small nuggets of meaning that are particularly salient,” then that is a very important concept for persuaders to understand. While much of the media attention regarding Bor’s work (e.g. this piece from Lifehacker) has focused on use as a memory aid to remember longer and longer chains of numbers, for example, the more basic implication of chunking lies in giving us insight into how we experience and perceive. Though chunking “can vastly increase the practical limits of working memory,” Bor clarifies, “it is not merely a faithful servant of working memory — instead it is the secret master of this online store, and the main purpose of consciousness.” A recognition of components and an ability to organize them into patterns is nothing short of the substructure of how we perceive, think, and are persuaded. This need to break information into chunks has implications for all communicators, including litigators at all phases of trial: voir dire, opening, witness examination, and closing. 

What Does It Mean for Litigators to Chunk?

The first reaction from the communication-savvy individual to this advice about breaking a message down into chunks might be, “thanks, Captain Obvious!” And of course, the need to have structure in any message is something that is drilled into us from Speech 101 on. But in my day-to-day work, I continue to believe that attorneys who truly take this to heart are the exception rather than the rule. Yes, the attorney may be clear in his own head that he is following an outline, but are the jurors and the judge? What if one were to ask at the conclusion of an opening, “Okay, who can tell me what the structure was — how many main points were there?” Following the average opening statement, how many would know the answer, other than the speaker? 

My belief — and I’ve sometimes checked this belief after mock openings — is that the answer is few to none. It is one thing for the attorney to get that structure, and it is another thing for her listeners to get it just as well. Litigators and other communicators often believe that they’re breaking things down based on a clear, explicit, and meaningful structure, but their audience instead simply experiences a continuous and unbroken flow of information or arguments. Here are a few rules of thumb for making sure you’re actually chunking when you think you’re chunking: 

    • It has to be simple (which usually means flat, without substructure, and limited to a manageable number of main points). 
    • It has to be explicit (which usually means actually saying something like, “First point,” “Second point,” and “Third point”).
    • It usually should be previewed (“Tell them before you tell them,” unless you having a strategic reason for preserving a surprise). 

With these requirements in mind, here are a few reminders on where and how litigators should chunk their trial messages. 

Chunk Your Oral Voir Dire

Attorney-conducted oral voir dire should not consist of a long list of questions. Instead, there should be topical divisions, each with its own goal. For example, in a products liability case, you might move from general to specific, focusing first on attitudes toward personal responsibility, then on views of product cases in general, then on reactions to the situation involved in the case at hand. Within each topical segment, there might be a natural sequence: A set-up that encourages jurors to call their experience to mind; a choice of some kind that divides higher-risk from lower-risk jurors; and a follow-up that elicits supportive themes. At the end of each segment, transitioning and signposting the next topic will help the venire members maintain their interest and focus. 

Chunk Your Opening Statement

The goal of opening statement is to give jurors a way to think about your case and structure can be key to that. Of course, most attorneys now know that the best way to open effectively is by telling a story. But telling a story doesn’t simply mean tying all the facts all together with an “and then…” link between each. Most books have chapters and most plays have scenes. They follow that format because structure is really the essence of story. As you move through your opening story, make sure that your listeners will have a sense of that movement. That means knowing when each new chapter begins. 

Chunk Your Witness Examination

Examination amounts to a series of questions, but to the juror watching it, the examination also should break down into discrete topics and themes. In either direct or cross examination, the same principle of telling the story in chapters applies. Each section should be united by its own goal (e.g.,  in the “Experience” section of cross, the goal is to show that, while impressive, the expert’s experience is irrelevant to the issues in this case). In addition, each segment should follow a common pattern: first an orientation, then a fleshing out of greater and greater detail, and then a punchline or conclusion. In direct, it is important to have witnesses familiar with the sequence as well, so they are prepared without being over-prepared

Chunk Your Closing Argument

In most cases, the closing should follow the verdict form order, with those questions providing the chunks that are most relevant at that stage. Instead of telling the trial story over again, you will want to focus jurors on the story that lies ahead: deliberations. The problem is that by this point, jurors have heard a lot, and your focus cannot simply be on repetition. Instead, you need to organize and synthesize what they have heard, and that is where chunking comes in. Treating each of the verdict form questions as a basket in which to group the relevant evidence and argument provides jurors with the most meaningful and motivated way to organize their recollections of the trial. 

At this time of the year, there is one more timely application of chunking. That is the reminder that we don’t  experience time as free-flowing. Instead, we impose a human order on those natural rhythms and chunk time into years, then months, then hours, minutes, and seconds. So, as 2013 winds down, I offer this wish: May your next chunk be at least as good as your last. 

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Other Posts on Message Structure: 

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Bor, D. (2012). The Ravenous Brain: How the New Science of Consciousness Explains Our Insatiable Search for Meaning. Basic Books.

Photo Credit: Trekkyandy, Flickr Creative Commons

December 26, 2013

Defendants: Be the Mongoose

By Dr. Ken Broda-Bahm: 

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What does it take to beat a reptile? In most cases, a mongoose will do the job. As attention to the Reptile perspective on plaintiffs’ advocacy has been growing, an interest in the best modes of defending against it has finally started to catch up. The “Reptile,” of course refers to the David Ball and Don Kennan approach of reforming the plaintiffs’ trial strategy based on the belief that a “reptilian brain” will be motivated by appeals to personal safety and security, and these basic needs will drive the more advanced and cerebral regions of the mind. I’ve written about the approach on a few prior occasions (see ‘related posts’ section below) and also authored a piece for The Jury Expert. The readership of those articles suggests that defendants are taking a new interest. The handbooks, articles and seminars, however, are not yet available to defendants at a level that comes even close to matching what the Reptile-Plaintiffs’ bar has to offer. 

A reader, attorney James M. Lloyd of Santa Ana, recently wrote to ask if I knew of any “Mongoose seminars” for opposing the Reptile. So the credit for the genius name for this post must go to him. However, I couldn’t return the favor by recommending any seminars yet. But it did get me thinking and gave me the idea for a somewhat lighter-hearted post-holiday post. Mongooses are famously effective at attacking and defeating snakes — in both literature and real life. So what would a “Mongoose theory” in response to the Reptile look like?

For the moment, I will set aside the psychology on the Reptile brain and clarify that these thoughts on the Mongoose brain, as a counter, are purely metaphorical (I’d argue that so is the Reptile brain, but that is an argument for another place). Instead, for this post I want to focus only on the practical. Based on some research on ways mongooses fight reptiles (e.g., see this powerful National Geographic video), and aided by the power of analogy, let me share a few initial thoughts on what the Mongoose perspective might look like.  

One, Be Fearless

As Rudyard Kipling wrote of the Jungle Book‘s Rikki-Tikki-Tavi, “It is the hardest thing in the world to frighten a mongoose,” and  National Geographic agrees that this boldness is not merely fictionalModern defendants need to take a lesson from that level of fearlessness. Plaintiff adherents to the Reptile perspective will act as though they have a magic bullet for winning cases. But in reality, they don’t. Appealing to fear and personal insecurity can work, but it can also fail or even lead to a backlash if the attempt is too heavy-handed. In addition, defendants have plenty of their own strong motivators to appeal to: personal responsibility, the limited nature of the law, and protection from the harms of frivolous suits. Numerically, it is still an uphill battle for plaintiffs in many civil arenas, like medical malpractice. All of that should give defendants a fair amount of confidence.  

Mongoose defendants never settle out of fear of trial when they have a defensible case. 

Two, Have Quick Reflexes

Another feature of the mongoose fighting style is speed. “The victory,” again according to Kipling, “is only a matter of quickness of eye and quickness of foot — snake’s blow against mongoose’s jump.” A reptile’s strike will often come with incredible speed, and so the mongoose needs to be as fast or faster. For the defendant, that speed of reaction means answering everything. I recently conducted a post-trial jury interview after a defense verdict in an energy case, and one of the jurors explained, “When the plaintiff would talk about something they had, you know, the defendant would just wipe it out really quick.” A prepared defendant will know the plaintiff’s best case — the arguments, the themes, and even the Reptile motivators — well in advance. Being able to anticipate and answer effectively is critical to a good defense. That is why role-playing the other side in a mock trial can be so valuable. And wherever possible, you should try to get there first, for example, by introducing plaintiff themes in voir dire. In opening statement as well, if the plaintiff has not covered it yet but you know it is coming based on the evidence, then cover it.

Mongoose defendants know what plaintiffs are thinking, so they can anticipate and react.  

Three, Have a Thick Hide

When dealing with venomous snakes, it helps to have thick fur and skin: That makes it hard for snakes to get their venom in. What does it mean for the defendant? It means a few things. First, it means that attorneys and clients as well need to practice patience: sitting through plaintiff’s voir dire and opening statement, hearing all manner of horrors being attributed to you, all the while biding your time and knowing that you will have your chance. Second, it means not sweating the small stuff. While you must react to the important issues that can truly harm you, that does not mean chasing down every single stray fact or theme that the plaintiff offers. Knowing the difference, of course, is the key. That provides another benefit of testing both sides of the case in a mock trial. 

Mongoose defendants are able to recognize and deflect the blows, and wait for their opportunity. 

Four, Aim for the Head

For a small mongoose to succeed in defeating a much larger reptile, it needs to know where to strike. The mongoose avoids the coils, and instead, as Kipling’s Rikki-Tikki-Tavi said to himself when choosing how to strike the cobra, “It must be the head.” For the defendant, aiming for the head means striking at the most critical element of the case. When plaintiffs are following the Reptile recipe, or the earlier Rules of the Road approach, they will have one clear, simple, and predominant “Safety Rule” that wasn’t followed in this case. That rule — e.g., “a good doctor will not choose a more harmful procedure over a less harmful procedure” — will be one that is immediately understandable, as well as personally relevant to the juror. As we’ve written before, however, the reality is not generally so simple. When defendants can counter the safety rule and respond with a more accurate rule of their own, they’ve struck at the head of the Reptile. 

Mongoose defendants aim at the most important and most vulnerable spots of a plaintiff’s case.   

So this is my initial try at a few mongoose principles to answer the Reptile perspective. If this  idea has any legs, then I am sure that these thoughts can be taken even further. For now, perhaps it is enough that defendants are starting to think about ways to defeat what has become a very compelling plaintiff’s idea. As plaintiff’s embrace the Reptile, defendants should learn a few moves from the Mongoose.  

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Other Posts on The Reptile:

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Photo Credit: MizaPhoto, Flickr Creative Commons

December 16, 2013

Stop Trying to Adapt to ‘Left-‘ or ‘Right-Brained’ Jurors

By Dr. Ken Broda-Bahm: 

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Okay, let’s line up: Emotional people on the right, logical people on the left. Where would you line up? Too simple? Turns out it is. The idea of classing people in broad categories like emotional/logical, creative/analytic, or “left-brained”/”right-brained” is a staple of folk psychology commonly applied to the task of audience analysis. The brain difference in particular is a common enough reference point that it no longer may be necessary to point out the association between the emotional, intuitive and creative right-brained thinker and the logical, mathematical, and analytic left-brained thinker. The terms have naturally bled into juror analysis as well, with some commentators suggesting that speaking to the left- or right-brained jurors can be an important step in courtroom persuasion. It turns out, however, that we simply aren’t either left- or right-brained. The theory was never very well-supported, and now a new study has used fMRI imaging to show that it is flat out wrong.

The case of the left- and right-brain belief provides another reason to be suspicious of science commentaries that purport to provide simple and comprehensive classifications for people. It is also another good example of science that is created and persists more because it is seen as useful rather than because it is valid. That observation about what sticks in science carries a lesson for scientific expert witnesses as well. This post will look how at we know the popular belief is wrong, and will consider implications for both audience analysis and how we understand science. 

The Science: A ‘Left-Brained’ Indictment of a ‘Right-Brained’ Idea

The appeal of the theory is obvious. After all, people do seem to distinguish themselves in some clear ways: poetic or political, creative or rational, passionate or detailed. We want to believe these differences come from a very basic source, and in these times of cognitive research, the brain now stands in as the cause of things that, in earlier times, we might have attributed to the soul. But research continues to send the message that “it is more complicated than that.” Jeremy Dean’s Psyblog, for example, notes that the evidence for hemisphere-dominance in individuals was never strong to begin with. Only now an fMRI study (Nielsen et al., 2013) has driven a stake through the heart of the theory. Looking for patterns in the brain scans of more than 1,000 individuals, the study failed to find observable support for the idea that different people think with a greater ‘dominance’ of one hemisphere of the brain or the other. “We just don’t see patterns where the whole left-brain network is more connected or the whole right-brain network is more connected in some people.” Psyblog quotes lead author Jared Nielsen, “It may be that personality types have nothing to do with one hemisphere being more active, stronger, or more connected.” 

National Public Radio‘s Cosmos & Culture blog also includes an on-point discussion of the research, based on an interview with cognitive neuroscientist Kara Federmeier. She notes that it is true that different brain functions are lateralized in the sense of being associated more with one hemisphere than the other, and also true that the hemispheres operate in an independent fashion at times. “However,” Dr. Federmeier notes, “it seems safe to say that for the most part we all use both sides of our brains almost all the time.” 

Of course, it is still the case that some people prefer creative and holistic thought while others lead with logic and analysis. The correction that this science provides is the reminder that these are behavioral preferences, not hard-wired cognitive differences. That distinction should encourage us to view those traits realistically as ones that vary in response to circumstance and message. 

The Implications for Juror Analysis

The chief takeaway for jury selection and analysis is that one should be skeptical of all efforts to put people into discrete boxes, including but not limited to the right-/left-brain dominance box.  While some jurors will have adopted the behavior of leaning toward the emotive and others toward the rational, nearly all jurors have the potential for either orientation to come to the fore in different situations.

Instead of basing your selection and your adaptation on those broad categories, base it on the specific experiences and attitudes jurors or potential jurors bring to the courtroom. That means finding out as much as possible — through oral voir dire and questionnaires, where allowed — to identify the specific and not the general. And it also means thinking about both the emotional and the logical, the holistic and the analytic, in persuading your fact finders.  

The Implications for Understanding Scientific Stickiness 

Even with conflicting evidence, it seems likely that decades from now, we’ll still be talking about left- and right-brained people. Why? Because it is useful. As Jeremy Dean notes in Psyblog, “Despite having no solid basis in science, the expressions ‘left-brained’ and ‘right-brained’ will probably survive because it’s an easy way to talk about two aspects of personality.” I’ve noted the same about the Reptile perspective currently in vogue. Tell plaintiffs’ attorneys that science hasn’t and doesn’t support the idea of a reptile brain controlling the cerebrum, and you’ll probably be met with a great yawn of indifference. They stick with it because it is useful. 

That presents a fundamental lesson to those providing scientific testimony. No, the lesson is not to stake your position on dubious or unsupported information. Instead, it is to think about what, other than validity, makes an idea stick. In the case of both Reptile and the left-brain/right-brain motif, two things stand out: 

  • One, the idea is simple enough in each case to be explained in a few sentences. 
  • Two, the idea seems to comport with our views of how people are, and how the world works. 

That second feature corresponds to what the narrative theorist Walter Fisher called narrative fidelity, or the tendency for a story to be seen as more truthful when it jibes with the rest of our worldview. When new information carries that narrative fidelity, we are more likely to see it as useful. Even as it over-generalizes and makes the circumstantial seem intrinsic, the notion of left- and right-brained people is still useful because it gives us a vocabulary and a guide for what we should notice. 

The implication for scientific testimony is this: Don’t just tell us why it is valid; tell us why it is useful as well. 

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Other Posts on the Brain and Persuasion: 

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Nielsen, J. A., Zielinski, B. A., Ferguson, M. A., Lainhart, J. E., & Anderson, J. S. (2013). An evaluation of the left-brain vs. right-brain hypothesis with resting state functional connectivity magnetic resonance imaging. PloS one8(8), e71275.

Image Credit: jvleis, Flickr Creative Commons

December 12, 2013

Don’t Whine About ‘Argumentative’ Demonstratives (and Argue Back Against Whiners)

By Dr. Ken Broda-Bahm: 

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I have a few pet peeves. Some relate to language (don’t say “literally” when you mean “figuratively,” and don’t say “jive” when you mean “jibe”). Those I can live with. But a larger pet peeve that I have trouble living with relates to demonstrative exhibits in the opening statement. Or, more specifically, it relates to how frequently and how easily good demonstratives are yanked out of an opening statement because they are “too argumentative.” Listening to opposing counsel playing the “argumentative” card, I feel like repeating that line from The Princess Bride: “You keep using that word. I do not think it means what you think it means.” Though it is not inconceivable that a demonstrative could cross the line in various ways, I do think that the label “argumentative” has become a catch-all objection that really means something like, “that is a bit too effective,” or “that is likely to be persuasive,” or “I’d simply prefer that you not make the point in quite that way.” 

Don’t make that objection. It just worsens the communication experience for both sides, and for jurors as well. But in addition, don’t be too quick to accept that objection or to self-censor before opposing counsel or a judge has a chance. Of course, there are reasons to be cautious: No one wants an objection to break the flow of their opening or, worse (but rare), to be reversed based on improper argument in opening. But there are also reasons not to be overcautious. Your opening statement is a precious opportunity to teach the case, and to set a tone. It may not determine the verdict, but it does often help jurors reach a durable first impression. Forswearing the use of good visual tools simply because they’re too good amounts to tying one arm behind your back. This post takes a quick look at what the “argumentative” objection means, or ought to mean, and shares a sample argument. 

What is Argumentative? 

We all know the legal standard: An opening statement is not evidence, it is just a preview of the evidence. That distinction, however, can quickly break down once you get past the simple analogies of pictures on the top of a puzzle box and such. While there isn’t a great deal written on what “argument” means in opening statement, I did find a couple of articles that both voice a common theme: It isn’t very clear. 

University of North Dakota law professor Michael Ahlen (1995), for example, notes that “argumentative” is the most common objection raised in opening statement, and yet American courts have not provided clear guidance on what constitutes improper argument. It appears that the objection for arguing is a catch-all for any improper remark.” Pepperdine law professor Timothy Perrin (1999) agrees: “Surprisingly, this most fundamental question — ‘What does it mean to argue in the opening statement?’ — has never been subjected to serious in-depth analysis. Despite over a 100 years of practice under its limits, the meaning of argument within the opening statements is one of the least analyzed or understood principles of trial practice.” 

While on face, the rule “forbids advocates from interpreting the evidence for the jury by drawing conclusions or inferences from facts,” that is often defined in the negative, as forbidding anything other than the proper goal of explaining (but not arguing) what one’s own case will be. Perrin writes of the “witness test,” meaning that advocates may only discuss evidence based on a good faith belief that it will be admitted in trial. But that is not much of a limit given the broad parameters of what a witness may testify to.

In practice, the rule is more honored in the breach. Based on a content analysis of openings from a number of high profile trials (e.g., California v. Simpson, U.S. v. McVeigh, Minnesota v. Phillip Morris), Perrin finds that argument is rampant, rarely brings an objection, and the objection is generally not sustained. “The findings suggest that the rule against argument fails miserably in eliminating argument from the opening statement. At the same time, however, the rule overwhelmingly succeeds in confusing lawyers.” 

Based on that confusion, lawyers default to trying to apply the rule during the one time they safely can: before opening when reviewing disclosed demonstrative exhibits. But if the meaning of “argumentative” is indeterminate when applied to verbal utterances, how much less clear is it when applied to visual communication? In that context, the objection just breaks down to a way to limit the other side’s flexibility. That of course would be a good idea only if you weren’t simultaneously limiting your own. 

Unfortunately, that is just what the broad and imprecise use of “argumentativeness” does when applied to opening statement demonstratives. Instead of sticking to bland documents and descriptive timelines, advocates need to fight for effective visual communication during opening. Here is an example of how that fight might go. 

A Sample Argument Over Argumentativeness

The Case: A chemical company sold a herbicide chemical (we’ll call it ‘Orthvan’) to a third party who used it, causing high levels of crop damage to nearby farmers when the chemical moved off target. Part of the plaintiff’s argument was that the chemical had known dangers which were not fully disclosed to either the third party or to those who were in harms way. 

The Demonstrative: For simplicity’s sake, let’s just focus on one demonstrative making the basic point that this advanced chemical is much more potent than other chemicals jurors might know and use. The accurate version actually was scrapped from an opening for being too argumentative. 

Potent(Click to see full sized image)

 The Objection:

Your honor, a thousand skulls and crossbones? This is clearly argumentative and clearly prejudicial. The inference is that it is too deadly to be on the market. They can put an expert on the stand and explain the toxicity, and they can argue in closing that we’re the worst thing since plutonium, but it is improper in an opening statement. 

The Response:

Your honor, I disagree. The purpose of opening is to preview evidence and this previews evidence. As disclosed in the expert report, we will have a witness who will testify to this basic factual ratio. I think it is well-established that people will understand a comparison like this better visually rather than just verbally. And the skull and crossbones is a universally understood symbol for toxicity — that’s why they use it on their own label! The bottom line, your honor, is that this is a clear and visual way to preview a relevant point in this case. The fact that opposing counsel does not like it is not grounds for an objection.

Depending on the judge, a response like that may or may not prevail. In the end, the whole exchange might not seem worth it: It isn’t a game winner for the plaintiff to use it, and it isn’t fatal for the defense to allow it. The defense could even minimize it by saying, “All this shows is that the chemical is concentrated…and that the Plaintiff is trying to scare you.” In the end, just doing your own good job of persuading verbally and visually is a better course than complaining about their opening arguments or visuals. Don’t whine, but also don’t give up too easily when they whine.  

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Other Posts on Demonstrative Exhibits: 

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Ahlen, M. J. (1995). Opening Statements in Jury Trials: What Are the Legal Limits. NDL Rev.71, 701.

Perrin, L. T. (1999). From OJ to McVeigh: The Use of Argument in the Opening Statement. Emory LJ48, 107.

Photo Credit: frotzed2, Flickr Creative Commons. Demonstrative exhibit created by Pam Miller, Persuasion Strategies. 

December 9, 2013

Take Your Time and End Strongly (a Legal Lesson from Nelson Mandela)

By Dr. Ken Broda-Bahm: 

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There has been an appropriate swell of attention to the life and words of Nelson Mandela since the world leader’s death last Thursday. Less emphasized in the tributes is the fact of what Nelson Mandela was before he was a protest leader, then prisoner, then president, then father of a new South Africa. Before that, he was a lawyer. In fact, he founded the first black law practice in Johannesburg. That experience came to the fore in his 1964 trial in Pretoria for sabotage. Facing a potential death by hanging, Mandela addressed the court in a “Statement from the Dock.” Often it’s an occasion for an expression of remorse or a plea for leniency. But Mandela, the lawyer, turned it into a detailed factual and historical exposition seeking to make his case much as a closing argument does in U.S. courts. 

For more than four hours, Mandela spoke carefully and in detail, not only to his own charges, but also to the larger injustice of South African Apartheid. Addressing the brutal inequalities, as well as the stark history of atrocities like the Sharpville massacre, he was speaking not only to the white judge, but to the world as well. He ended that argument with words the world remembers: 

During my lifetime I have dedicated myself to this struggle of the African people. I have fought against white domination, and I have fought against black domination. I have cherished the ideal of a democratic and free society in which all persons live together in harmony and with equal opportunities. It is an ideal which I hope to live for and to achieve. But if needs be, it is an ideal for which I am prepared to die.

The trial ended with a sentence of life, not death, and Mandela spent 27 years in prison on Robben Island before he emerged and changed the world. In this post, I’d like to try to wring one more lesson from this great man’s life by taking a closer look at the speech that ended on that note. 

Learning from Mandela

I won’t make former Senator Rick Santorum’s mistake of trivializing Mandela’s challenges by comparing them to much smaller matters. That is, an individual seeking monetary recovery or a company looking to limit its liabilities has nothing in common with Mandela’s historic struggle and triumph. Still, Mandela’s Statement from the Dock (available in full here) can be considered on its own terms and still provides some basic lessons. 

One, Take Your Time

The speech clocked in at over four hours. And that length shouldn’t suggest that it was meandering or stream of consciousness. It was logically ordered and tightly structured…but long. There is, of course, a whole religion of “keep it simple,” and “keep it short” when it comes to communication and persuasion. But there are moments, and this was one, where your target audience is not looking for that. In closing argument, for example, lawyers might be tempted to think, “well, they’ve heard it all and now they just want to deliberate.” But, setting aside the generally false notion that jurors have already made up their mind at this point, closing provides a final and irreplaceable opportunity to persuade those who are on the cusp of a decision, and to arm those who are already supporting you, but need details to convince others. Don’t repeat or go off-topic, but take the time to give decision makers what they need when they’re about to decide. 

Two, Tell a Story

Rather than just presenting a detailed legal argument in his Statement, Mandela tells a story. Starting with an explanation of his life all the way back to his childhood in South Africa’s Transkei region, he provides the context to help listeners understand why he moved from law to leadership of the African National Congress, why the ANC initially committed itself to nonviolent struggle, and why after 50 years of increasing repression from the Apartheid regime, the ANC turned toward sabotage of roads, power lines, and empty buildings – the crimes Mandala was ultimately tried and sentenced for. Acknowledging that a white judge may have trouble understanding the situation and mindset that would motivate these acts, Mandela uses the story of his life to try to provide that context. Persuaders in all situations should remember that context is often best provided in a story structure

Three, End Strongly

A powerful ending is essential, and the Statement’s conclusion is the moment that still echoes today. Mandela’s defense attorneys had pleaded with him to delete the line, but instead he delivered while looking the judge directly in the eye: “It is an ideal which I hope to live for and to achieve. But if needs be, it is an ideal for which I am prepared to die.”

In his autobiography, Nelson Mandela described the scene in the courtroom while his last words were still ringing. “The silence seemed to stretch for many minutes. But in fact it lasted probably  no more than thirty seconds, and then from the gallery I heard what sounded like a great sigh, a deep, collective ‘ummmm,’ followed by the cries of women.”

This approach of taking your time to present solid and detailed information, telling your story, and ending strongly applies not just to Mandela’s Statement at the Dock, but to his life as well. He took a long view throughout his days, enduring a prison sentence that would have led most to feel that their ability to contribute was ended. Instead of choosing despair, he took his time and emerged in a way that changed his country and provided an example to the world. At tomorrow’s memorial, leaders from around the world will remember him as a beloved global statesman.  

In 1964, Mandela stood before the bench during a time when the Apartheid regime still felt it could persist by silencing the leaders of the opposition. That approach became even more violent as Mandela waited in prison, reaching a nadir in the 1977 killing of one of Mandela’s successors, Steven Biko, almost irrefutably at the hands of police interrogators. We now know that it didn’t end there. As the musician Peter Gabriel wrote about that killing and the larger historical arc:

You can blow out a candle, but you can’t blow out a fire. 
Once the flames begin to catch, the wind will blow them higher.  

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Other Lessons from Notable Lives: 

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Photo Credit: George Rex, Flickr Creative Commons (Bronze bust of Nelson Mandela by sculptor Ian Walters, Royal Festival Hall, London) 

November 28, 2013

Cultivate New Sources of Trial Experience (A Third Lesson from the ABA Journal’s Blawg 100)

Where does trial knowledge live now? As always, it is a safe bet that it lives in the hearts and minds of very experienced trial attorneys: Those who frequently see the inside of a courtroom and commonly take a case all the way to a jury verdict. But based on many reports, those “frequent triers” in the courtroom are more scarce than they were a generation ago, or even a decade ago. So the nature of what “trial experience” means is changing as well. To be sure, there are individuals, venues, and areas of practice where the jury trial is as alive as its ever been. But on the whole, particularly in the higher stakes civil litigation arena, the actual experience of taking a case to jury verdict is in decline. Cases that used to try, now settle, or get dispensed in summary judgment, or are never filed because tort reform has limited the potential return.

So, if we can rely less on the iconic veteran trial-warrior whose cases number in the hundreds, where else does trial knowledge live now? I would say that the shifting nature of the litigation scene calls for a broader definition of trial experience, and I’d humbly add that an increasingly important part of what we call trial experience lives right here: In the blog you’re reading and many other blogs like it.

By Dr. Ken Broda-Bahm: 

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Where does trial knowledge live now? As always, it is a safe bet that it lives in the hearts and minds of very experienced trial attorneys: Those who frequently see the inside of a courtroom and commonly take a case all the way to a jury verdict. But based on many reports, those “frequent triers” in the courtroom are more scarce than they were a generation ago, or even a decade ago. So the nature of what “trial experience” means is changing as well. To be sure, there are individuals, venues, and areas of practice where the jury trial is as alive as its ever been. But on the whole, particularly in the higher stakes civil litigation arena, the actual experience of taking a case to jury verdict is in decline. Cases that used to try, now settle, or get dispensed in summary judgment, or are never filed because tort reform has limited the potential return.

So, if we can rely less on the iconic veteran trial-warrior whose cases number in the hundreds, where else does trial knowledge live now? I would say that the shifting nature of the litigation scene calls for a broader definition of trial experience, and I’d humbly add that an increasingly important part of what we call trial experience lives right here: In the blog you’re reading and many other blogs like it. I’m thankful (it is Thanksgiving, after all) for making it, for the third time, on the ABA Journal’s list of the 100 best legal blogs, one of only eight in the category of “litigation,” by the way. Online communities, like the ABA Journal’s Blawg 100, are creating new sources of trial advice and we at Persuasive Litigator are honored to be among them. So, on this occasion of the blog’s third induction into the ABA list, I wanted to share a justification for the “Blawgosphere” as a important supplemental source of trial knowledge, and share a few resources you may not be aware of.

The Changing Nature of Trial Experience

I have written before on the data, the reasons, and the responses to the decline of the American jury trial. But here is another sign of the times: A Georgetown Journal of Legal Ethics article on an attorney’s disclosure obligations (McCormack & Bodnar, 2010) declares “It’s time to disclose lack of jury trial experience.” The relevance of that disclosure is all the more salient now. In years past, it might’ve been seen as self-evident: Clients would assume a younger trial lawyer would have little to no trial experience, and an older trial lawyer would have lots of trial experience. That is not a reliable assumption any more, as even very good litigators at major firms can end up taking a case to a jury only rarely. That could prompt clients to ask, “Okay, you’ve been a litigator for ten years… but how many trials is that? And when was your last one?” 

That question, of course, is easy to answer for many litigators, and harder to answer for some. But for the next generation of lawyers just now coming into to civil practice, it is downright terrifying. In most practice areas, these litigators simply will not have the foundation of trial experience to develop and hone their skills. “The declining number of jury trials in both state and federal courts and in civil and criminal cases,” notes the Florida Bar in a recent report, “can undermine public confidence in the judicial system and decrease the skills of lawyers and judges when they actually do have a trial.”

Now, I don’t intend this to be a gloom and doom post, especially not on Thanksgiving. As with other changes, you take the good with the bad and adapt. Recognizing that the old model, in the form of individuals who are courtroom fixtures always either in trial or about to be in trial, is becoming a thing of the past, the question is how to broaden that net of experience. 

I am going to point to litigation-focused blogs as part of the answer to that. There are certainly other answers. Cultivating good mentor relationships with people who are or have been frequently in trial is one. It is also likely that the waning frequency of the jury trial will make the services of good trial consultants more, not less, important. Though they don’t often have the experience of directly addressing juries, consultants these days are likely to pick more juries, frame out more strategies and opening statements, and even prepare more witnesses than the average civil litigator. 

Emphasizing these relationships can partially make up for a decline in direct trial experience. But for this post, I want to emphasize the experience gained by reading widely in the emerging law- and litigation-focused blogosphere (or ‘Blawgosphere’). Beyond the self referential nod, I genuinely believe that the profusion of posts provides a resource that earlier generations simply did not have. 

Why is Online Experience Different? 

Of course, we have always been able to learn about trial strategy and technique in articles, books, and seminars. I think that the current online articles are qualitatively different. The posts aren’t necessarily better in and of themselves – though often they are. Instead, I think the greatest advantages are in format.

  • Blogs are faster. A book can be conceived and then published up to a year later. We still wait months for an article or a seminar. A blog post can be conceived in the morning, and then posted still in the morning. 
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  • Blogs are reactive to current cases and controversies. Because we can talk about stories while they are still in the news cycle, we have the opportunity to speak to some common reference points. 
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  • Blogs have the opportunity to be very topically specific. Some areas of legal practice, like bellwether trials for example, are limited to a given niche. It isn’t easy to find research on them, but you can find blog posts on just about any legal scenario a writer can dream up. 
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  • Blogs are searchable. Remember when you used to plow through tables of contents or the index at the back of the book to find exactly the on-point content? Not so much any more. Searching for a key word or a phrase in online content opens up a much better opportunity to find exactly what you’re looking for. 
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  • Blogs are interactive. Whether the blog includes a comment option, or whether the blogger prefers to move discussions to other places like LinkedIn, the blog model opens up a much greater potential for interaction between author and audience to the point that the two categories become blurred. 
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What Resources Might You Be Missing? 

In citing these advantages, I don’t mean to be an uncritical blog-evangelist. Just as with anything, there are good and bad sources of information. Because blogs don’t often have editors, you have to do more of your own work in considering the source and the quality of the advice. But there are a few resources for improving your access and use of litigation blogs that you may not know about. 

The ABA Journal Blawg 100. It isn’t just a badge that some get to post on their blogs, and it isn’t just a somewhat silly ‘voting’ contest. It is a really useful list that is guaranteed to introduce you to some good, relevant content you didn’t know about before. In the litigation category, in addition to this blog, there are also a number of other excellent sources. There is the always thought-provoking The Jury Room by Keene Trial Consulting. There is also the more recent source of some great practical posts, The Litigation Consulting Report from A2L consulting. There are also some newer discoveries for me, like the Seattle plaintiff’s attorney blog, The Velvet Hammer, and the broadly-focused At Counsel Table as well. 

The Red WellFull disclosure: I am editor of this blog aggregator that brings together the content from blogging members of The American Society of Trial Consultants. But I humbly think that the site offers a great one-stop-shop for tracking the daily updates of a number of closely related sources. Right now, the site is home to twenty-five blogs, with at least ten of those being pretty active posters. There are two or three new posts there just about every day. And best of all, the resource has a search feature allowing you to sift through all of the content at the same time, and at present, that means 2,396 individual posts. 

LinkedIn Discussions. You’ll notice that in my title I use the word “cultivate” rather than just “read.” The greatest advantage of the online mode in that list above is the last one. Blog posts often lead to some really good discussions, and at present, LinkedIn is the place where those discussions happen. Many in my own field look at an active blog like this one and say, “That’s great, but I don’t have the ____ to do that,” inserting ” time,” “resources,” or “love of writing” into that blank. That is fine, but participation still remains a great option. Read, respond, discuss, repeat. That is what creates a community that shares and magnifies the precious resource of experience. 

In recognition of the day, I am thankful for that community.

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Past Posts on the ABA Blawg 100: 

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McCormack, T. W., & Bodnar, C. J. (2010). Honesty is the Best Policy: It’s Time to Disclose Lack of Jury Trial Experience. Geo. J. Legal Ethics23, 155.

Photo Credit: Twicepix, Flickr Creative Commons

October 21, 2013

Avoid Market Research Mistakes in Your Mock Trial

By Dr. Ken Broda-Bahm: 

Market Research Sphere
In a recent piece in Forbes online, Roger Dooley tells his own story of a spectacular market research failure. His company was involved in metal sales and competed in a market with an overall price similarity. Thinking that their product had some quality advantages over the competition, the company wanted to charge a higher price. The market research they did showed that price came in dead last as a concern, with likely customers focused on quality, delivery speed, and customer service instead. With that reassuring message in hand, up went the price…and down went the sales. It turns out that price mattered after all, and it mattered a great deal. So why didn’t the market research catch that? Because there were at least two problems with the data they collected. One, they looked at attitudes and not behavior. People like to think that they’re not so stingy as to put price above quality, but in this case they did. Two, they failed to account for changed circumstances. Sure, price didn’t matter when all the suppliers were essentially charging the same price. But when one supplier started charging more, then suddenly price matters.

Roger Dooley’s audience for this piece is market researchers, but the critique and the caution applies just as well to those who conduct litigation focus group and mock trial projects. There are definite similarities between the legal pretrial research and the market research fields, since we often use the same recruiters, the same facilities, and have similar goals in testing the public’s reaction to new information. Some litigation consultants even have a background in market research. So for this post, I’m going to draw some lessons from this market researcher’s observations and share some thoughts on what not to do in your legal small group research. 

In seeking to avoid bad habits that may have come from market research or other settings, I think four pieces of advice stand out. 

1. Separate Beliefs, Beliefs About Behavior, and Behavior

Treat these as three different things: First, there is what you believe; second, there is what you believe about what you would do in the future; and third, there is what you would actually do. A fundamental mistake in any kind of research is to blur these distinctions. As Dooley writes in the piece, “People are often incapable of articulating why they do things or how they would behave in the future.” As we have also noted, the research shows a wide difference between the articulated rationale people give and the underlying motivator for it. So it helps to think of those three levels. Sometimes beliefs matter because beliefs are what jurors will be sharing in deliberation. Sometimes predictions of future behavior matter, because jurors are likely to apply those same predictions to other people. But most often, behavior matters: What will jurors actually do in response to new information?

2. Vary the Circumstances

By nature, a focus group or a mock trial exposes a mock jury pool to limited information. You cannot recreate the full fact pattern and you cannot duplicate the ebb and flow of an actual trial. Based on that reality, it is wise to remind yourself of the limits and the fact that you are testing a “thin slice” of the case. That thin slice can be enormously influential because it captures the reaction to the overall story, and that reaction will exert a strong pull on all the evaluations down the road. But the thin slice does not capture everything. For that reason, when you can, you should vary the circumstances that you are testing in your research. Give jurors more information in the final interview and see how they react to the revised landscape. Or even better, divide out the groups so two mock juries hear the basic story and two other mock juries hear that story with additional information (e.g., a key document or expert subject to a motion in limine)

3. Trust What You Test, More than What You Ask

Self-reported data, Dooley notes, “can be fine for simple facts like, ‘Did you eat breakfast today?'” but it will rarely answer questions like, ‘Why do you prefer Grey Goose vodka?'” Asking about attitudes or reasons for behaviors makes your research subjects or mock jurors into interpreters. Testing, on the other hand, makes you the interpreter. If you want to know whether jurors are primed to believe a large company is more likely than another party to have been dishonest, you could ask that question directly: “Would knowing that a given party in litigation is a large company influence your likelihood of finding that party had been dishonest?” They will answer, but that answer will be strongly influenced by the social desirability of fairness. Most will say the fact of a large company would not make a difference. But if you test that, for example by providing a one paragraph description of a scenario, varying whether the party is identified as an individual or a corporation, you are likely to get a different answer, one much less favorable to the corporation. This is parallel to Dooley’s recommendation to market researchers: If you want to see if a 20 percent discount makes a difference, don’t ask about it, test it. 

4. Generally, Use Focus Groups to Measure Attitudes and Mock Trials to Measure Behavior

The dominant ways we test in a litigation context are through focus groups and mock trials. Now, a terminological note is in order, since these terms are sometimes used interchangeably. To us, a focus group describes a project in which a legal case is presented piece by piece (for example, statement of the case, then liability, then cause, then damages) interspersed with detailed interviews. A mock trial, on the other hand, is a project in which the goal is to more closely simulate the trial and to put primary emphasis on the jury’s unmediated deliberations. A focus group does a good job of unearthing at least the explicit attitudes jurors will bring to the case. For that reason, a focus group is helpful to conduct during discovery, so you can answer the questions, “What information is clear and what isn’t?” and “What questions do you have?” A mock trial, where you’re able to watch jurors deliberate on their own, is the only way to view the behavior of coming to a verdict. That is the point at which the “what they feel,” that is so often the focus of market research, becomes the “what they do” that litigators need to know. 

When trying to elicit information from other humans, there is a sliding scale of reliability. On one end of the scale, there is the purely descriptive (“Do you work for a company with more than 500 employees?”), and on the other end of the scale, there is the completely subjective (“Do large companies help or hurt the American dream?”). The tools you choose will depend on where your interest lies on that spectrum. The more a decision carries an emotional component, the less researchers can depend on self-reports on the causes or reasons for that decision. 

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More Posts on Focus Group or Mock Trial Research: 

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Image Credit: 123RF.com, Used under license. 

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