Tag Archives: Persuasion Strategies

April 4, 2011

Avoid Lockout: Address Judges and Arbitrators Persuasively

By: Dr. Kevin Boully –

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Lockout.  If you’re a sports fan or even a casual news surfer, you cannot escape word that America’s favorite sport – professional football – is in jeopardy.  Players and owners are at odds and this Wednesday, the National Football League Players Association will face off against the NFL and its owners in an injunction hearing before a Minneapolis Judge (for some flavor click here to see the NFLPA’s brief filed last week).  There is a real chance the 2011 NFL season will be disrupted. A few lawsuits (including one by former NFL players) have already been filed and there is talk of a similar dispute playing out later this year between professional basketball players and the National Basketball Association.  Continue reading

September 11, 2010

Address Your Jury’s Inevitable Difficulty With The Instructions

by: Dr. Ken Broda-Bahm

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In the recently concluded trial against former Illinois Governor Rod Blagojevich, the jurors came to refer to it as “The Bible,” based both on its power and on its frequently obscure meaning.  In this case, the “it” being 105 pages of fairly complex instructions coming at the end of a thirty-nine day trial.  The resulting fourteen days of deliberations were filled with heated arguments, and frequently unsatisfying attempts to understand exactly what the law was asking them to do.  While some experienced trial lawyers cling to the belief that juries routinely disregard the instructions and substitute their own personal notions of fairness, the lesson of the Blagojevich trial, as well as our experience in a great many other trials, is that jurors will strive mightily to understand and apply the instructions – they just won’t necessarily have an easy time of it.  Your role in trial is to help make it easier for them.  Continue reading

August 12, 2010

Remember That Argument Isn’t The Most Important Part of Closing

by: Dr. Ken Broda-Bahm

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The common wisdom is that closing argument it the time to, well, present arguments.  However, a sensitivity to your audience and to what jurors are trying to do during your closing argument, suggests that straightforward argument may not be the best way to help jurors feel like they’re 1.) coming to their own conclusions (which they desperately want to do), and 2.) able to convince opposing jurors during deliberations to come around to your favored verdict (which you desperately need them to do).  There is an alternate perspective, one that is based on jurors’ tendency to think in terms of stories, that arranges just the right pieces of the jurors’ trial memory, helping jurors arrive at and defend their own conclusions, while making sure that those are your conclusions as well. 

That alternative is substantially at odds with the traditions of closing that you may have learned in law school.  The common view is that closing argument is the time to put it together for the jury, and – now that the rules finally permit it – to argue, argue, argue.  The thinking is that after they’ve heard the evidence, jurors have all the pieces to the puzzle, but it is up to you, the smart and knowledgeable attorney, to arrange those pieces just right so they come out supporting your case.  But the logic of that approach can produce a scenario where you are arguing at the jurors instead of reasoning with them. Continue reading

August 5, 2010

Keep Your Burden of Proof in Your Back Pocket

by: Dr. Ken Broda-Bahm

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At the close of the corruption trial of former Illinois governor Rod Blagojevich for, among other things, trying to sell Barack Obama’s vacated Senate seat to the highest bidder, the defense surprised many by putting on no witnesses and by reneging on an earlier promise that Mr. Blagojevich would testify in his own defense, answering the prosecutor’s case.  When the defense instead decided to rest on burden of proof (the prosecution “proved nothing, attorney Sam Adam Jr. argued in closing), it was hailed as either a brilliant move or a shining mistake.  Now that the Blagojevich jury continues to deliberate, or is potentially hung agreeing on only two of 24 counts, the question is whether the result will confirm the traditional wisdom that a reliance on burden of proof is the law’s equivalent of a “hail Mary pass.”  Though the jury’s verdict in this case will relate to criminal charges, this traditional wisdom applies equally to the civil realm:  burden of proof is a strategy best kept in your back pocket: as a tie-breaker at best, but rarely as a central component of what you are offering to the jury. Continue reading

July 19, 2010

Build A Persuasive Construction Case

by: Dr. Shelley Spiecker

Spiecker_88_120 Our research consistently indicates jurors, arbitrators and judges evaluate cases through two perceptual filters, or lenses.  The first is a filter of “power” and the second is a filter of “choices”.  Specifically, they seek to know which party had the most power to alter the outcome of the dispute, and which party had the most choices.  Our pre-trial research consistently demonstrates the more powerful party bears the burden of persuasion in the courtroom.  Furthermore, social science

research documents that the more choices a party is perceived as having, the more responsibility is attributed to that party and the more likely decision-makers are to perceive the consequences to the party with fewer choices as being damaging. Continue reading

July 9, 2010

Don’t (Always) Waste a Strike on the Crazy Juror

by: Dr. Kevin Boully

Boully_Kevin_88_120 They show up in nearly every jury panel.  An unexpectedly flamboyant or oddly eccentric juror who offers too much (irrelevant!) information at the drop of a hat, responds to your oral voir dire question about lawsuits against corporations by telling you about his third cousin Simon’s run-in with a cantankerous Big Box store employee in Akron, Ohio.  “That store is a spacestation for dictators!”

 

He looks like a wildcard and he’s given you reason to fear he may be opposed to your case.  You hate the risk of leaving him on the panel for simple fear of what he may say and do in deliberations, but you also expect the quiet female juror in the corner may have it out for your corporate defense client.  What can you tell your client if the oddball commandeers the jury?  Shouldn’t you have seen it coming?  You use your last peremptory strike on “Kramer,” allowing the high risk female juror to sneak into the jury room and help decide the fate of your case.  A few insights help inform this either/or jury selection choice in the future.  Continue reading

June 21, 2010

Take It From Rep. Joe Barton: Don’t Be A ‘Friend Of The Devil’

by: Dr. Ken Broda-Bahm

Ken_107 tight Here is a litigation lesson from the world of politics.  The Vice President, along with many other Americans, described it as ‘incredibly insensitive, outrageous, and astounding,’ but last Thursday, in the U.S. House of Representatives, Texas Congressman Joe Barton was facing BP CEO:

“I’m ashamed of what happened in the White House yesterday.  I think it is a tragedy of the first proportion that a private corporation can be subjected to what I would characterize as a shakedown — in this case a $20 billion shakedown.  … I’m not speaking for anybody else, but I apologize.”

Hours later, Representative Barton was taking back that statement in order to deal with the ensuing uproar from both Democratic and Republican circles.  

I apologize for using the term ‘shakedown’ with regard to yesterday’s actions at the White House in my opening statement this morning, and I retract my apology to BP.

What we see here is an unsuccessful attempt by Rep. Barton to reframe the issues.  On the 59th day of the continuing Deep Horizon oil spill, and two days after President Obama’s oval office speech asking BP to set up a $20 billion dollar fund in order to deal with the consequences of the oil spill, the Congressman seemed to sense a chance to focus the public’s attention on something other than the flowing oil, suffering wildlife, and spoiled beaches.  The President’s demand was unprecedented, and on the heels of an unpopular health care reform law and in the run up to a climate bill being successfully framed as an “energy tax,” the public might have seemed primed to accept Barton’s characterization of the fund request as yet another example of an outrageous power grab by the Democratic President.  Continue reading

June 1, 2010

Personal Responsibility or Impersonal Irresponsibility? Know Which Filter Jurors Are Likely To Apply to Your Next Products Case

by: Dr. Ken Broda-Bahm

Broda_Bahm_Ken_88_120 For many years, the phenomena of ‘unintended vehicle acceleration’ was treated as a simple problem of driver error:  step on the gas instead of the brake, and you have no one to blame but yourself.  But as the recent raft of lawsuits against Toyota indicates, that frame of individual responsibility can be swiftly replaced by a narrative of corporate irresponsibility when personal choices come to matter less than company decisions.

In many cases, jurors have stuck with a personal responsibility focus, and have viewed the case through the coffee-stained lens of the Stella Liebeck McDonalds spill case.  Over the years, juries have sent the message that it is the individual’s responsibility to protect themselves from possible poisoning from Botox injections, collapsing step-ladders, and tire-tread detachment.  There are strong reasons to believe that this is a self-protective tendency.  Jurors can avoid the discomfort of feeling personally at risk by believing that the injured party brought it on themselves somehow.   Continue reading

April 30, 2010

In Voir Dire, Improvise with Structure

by: Dr. Ken Broda-Bahm

Broda_Bahm_Ken_88_120 When you have the ability to ask your own questions in voir dire, make the most of them.  Done well, attorney-conducted voir dire should create a balance between the goals of spotlighting high risk jurors and safely drawing themes from more favorable jurors.  At the same time, the questioning process should build rapport and feel natural to both the attorney and to the panelists.  When attorneys err, it is often in one of two directions.  On the one hand, some attorneys will ask only tightly controlled (yes/no, or cross-examination style) questions that are designed to restrict free expression and minimize the risk that prospective jurors will taint the panel by sharing opinions and experiences that run counter to your message in the case.  On the other hand, some attorneys will simply ask jurors what they think on topics relating to the case, giving equal voice to those whose views would help and those whose views would harm it.  The first approach errs in learning too little, and in constraining the expression of those who will judge your case.  But the second approach errs in potentially learning too much:  creating the real risk that unfavorable jurors will not just be discovered, but will be given a soapbox as well.

The right balance can be boiled down to this: identify the bad jurors, but talk to the good jurors.  In other words, your questions should create a context in which less favorable jurors are comfortable identifying a bias (often, by simply raising a hand to agree or disagree with a statement made by another panelist), while eliciting the greater balance of thematic statements from favorable jurors when they are in a safe and strike-proof majority.  Even as you try to minimize the expressive statements offered by less favorable jurors, you also need to make sure that the panelists believe that you are genuinely interested in hearing all that they have to say.  Continue reading

February 8, 2010

Never Underestimate a Pro Se Plaintiff

by: Dr. Shelley Spiecker

Spiecker_88_120 In-house counsel calls you on the eve of trial, admonishing “I trust you know I expect you cannot lose this case.  After all, your opponent is a pro se plaintiff.”  But surprisingly, you can lose.  In addition to never underestimating a pro se’s appeal to jurors, the following steps will help insulate your advocacy and case’s persuasiveness against juror bias in favor of, and judicial deference toward, a pro se litigant.

1.  Secure protective procedures for the pro se’s direct examination.  At your earliest opportunity, seek clarification from the court on how the pro se’s direct examination will be conducted.  Various structural ground rules can be implemented to protect against the pro se interjecting inadmissible information into a direct examination monologue.  These include:

  • Advance exchange of the pro se’s direct examination outline [1],
  • Having the court require the pro se to introduce direct testimony in a topical format.
  • Previewing each new topic area in advance and thus affording you the opportunity to object to subject areas before the testimony is asserted.
  • An admonition by the court reminding of the rules of admissible and inadmissible evidence.

Continue reading

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