Persuasive Litigator

Never Rely on Self-Diagnosis of Bias

By Dr. Ken Broda-Bahm: 

Think of the situations where self-diagnosis wouldn't work very well: A police officer asking, "Do you think you were speeding?" or a doctor inquiring, "Do you believe your cancer is in remission?" Yet we still rely on self-diagnosis when trying to discover and eliminate bias in civil and criminal cases by essentially asking prospective jurors, "Are you biased?" A new study (Robertson, Yokum & Palmer, 2013) takes a look at whether we can rely on jurors to identify their own attitudes and know the sources of their own judgments well enough to say whether they would be biased or not. The result confirms our intuition: They can't. 

Of course, those of us with a background in social science have always known that a juror's self-appraisal isn't a perfect indicator of actual beliefs or behavior. But what this study shows is that the self-appraisal is not just imperfect, it's not even helpful. Joining a number of other studies pointing in the same direction, the three researchers from the University of Arizona have systematically demonstrated the basic unreliability of this central premise of voir dire. But rather than showing that the search for bias doesn't matter, the research tells litigators, judges, and trial consultants to become more savvy and more strategic when asking about bias. And they need to stop taking jurors at their word when it comes to the critical "Can you be fair" questions. This post will take a look at the study and share some thoughts on how legal practitioners should adapt. 

Practice the Pivot in Oral Voir Dire (Part Three): The Demonstration

By Dr. Ken Broda-Bahm: 

To supplement the written descriptions in the previous two entries, this post features a video demonstration designed to illustrate the approach to attorney-conducted oral voir dire that I've been writing about. Using a number of volunteers from my firm, I created this clip in order to show and discuss the on-your-feet decision making that goes into the task of pivoting off a panelist's answer in order to divide the group based on higher and lower risk. As you'll see, it's an approach that asks you to maintain, and to give up, a little bit of control.

When an attorney is eliciting evidence through testimony, especially in cross but also in direct, the bottom line is that questioning means control. In voir dire, however, the maxim is different: Questioning means learning. It means learning about the potential sources of bias that would justify a strike or cause challenge. And it also means learning about the thoughts and themes that the panelists themselves have on their minds. Good voir dire requires both learning about risk and laying out themes, and doing so in a way that makes those in the panel relaxed enough to reveal their biases. 

In the first post in this series, I shared a model for structuring the questions. In the second post, I discussed its application in trickier situations and shared a list of good oral voir dire habits. In this final post, all that's left is to show what it looks like. 

Practice the Pivot in Oral Voir Dire (Part Two): Good Habits and Tricky Situations

By Dr. Ken Broda-Bahm: 

If, by the end of oral voir dire, you've broken the ice, earned some credibility and rapport, learned the basis for at least a handful of cause challenges and strikes, and spent the balance of your time eliciting themes from jurors that help your case, then you've done your job. In part one of this series, I shared one approach for balancing these goals that I call the "pivot" approach. The basic idea is that, instead of simply opening up the forum to let jurors voice thoughts good and bad, or asking leading questions that just prompt jurors to agree or disagree with your words, you start with an open-ended question, then pivot off a juror's answer in order to divide the group so as to know who is higher risk and who is a safe bet for sharing helpful themes. In theory, it comes down to loosely following the six steps discussed in part one. But in practice, the situation is not always smooth or simple. That is because people aren't fully predictable (if they were, voir dire would be less necessary). 

Because the large group discussions in oral voir dire aren't fully predictable and individual comments can sometimes go in unexpected directions, there is a need to follow a plan, but also to stay loose in order to deal with surprises. The most important thing to be doing in voir dire is to be carefully listening to what the candidates are saying. And when those comments take you off script and into a tricky situation, what saves you is the ability to fall back on some good habits. In this post, I step beyond the basic model to add a discussion of what to do in trickier situations, and also share my own list of good habits in questioning. 

Practice the Pivot in Oral Voir Dire (Part One): The Basic Model

By Dr. Ken Broda-Bahm: 

When voir dire goes well, it creates a balance between the goals of spotting the high-risk jurors and safely drawing themes from the more favorable jurors. At the same time, the questioning process should build rapport and feel natural to both the attorney and the panelists. When voir dire goes wrong, it is often in one of two ways. On the one hand, some attorneys will ask only tightly controlled questions (yes/no, or cross-examination style) that are designed to lead and minimize the risk that prospective jurors will taint the panel by sharing opinions and experiences that run counter to your messages 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 your message. The first approach errs in learning too little: constraining the discovery of relevant information on 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 only be discovered, but given a soapbox as well.

The right balance is to 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 admitting to 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 limit the soapbox opportunities offered to less favorable jurors, you also need to ensure that the panelists believe that you are genuinely interested in hearing all they have to say. 

In this post, the first of a three-part series, I will be introducing an approach to question structure that I call the "pivot." The basic approach is to ask open-ended questions (so panelists don't feel hemmed in or led), but then strategically pivoting off those answers in order to focus discussion in ways that reveal the higher- risk jurors while talking to the lower-risk jurors. In this post I'll describe the basic model, in the next post I'll discuss some adaptions to make when the conditions get tricky, and in the final post I'll share a short video demonstrating the process. 

Don't Hate on Younger Jurors

By Dr. Ken Broda-Bahm: 

The fact that we ourselves are bracketed in time makes us want to see that span - a generation - as terribly important to who we are. Projecting that onto others as well, we tend to see people as products of their generation. That is the frame of mind that leads us to draw conclusions about what older jurors and younger jurors are like. In the case of the younger jurors, the stereotype-driven reaction might be something like this:

Great, here is a juror with an attention span of two minutes. They'll have a sense of personal entitlement, but a sphere of moral concern extending only to themselves, their friends, and their favorite celebrities. They'll be cynical and distrustful of every representative of "authority" including me and this court. They'll love technology but even if I could use holographic projections as demonstratives, they'd still believe that they have better technology in their own pocket. And they'll feel a need to post, tweet, check-in, follow, like and share on that device roughly every two minutes. They'll devote less mental attention to this case than to their latest piercing or tattoo because the claims, the law, and the broader notions of "justice" aren't personally relevant. Ultimately, me, my client, and this case will be about the most boring thing they've done all day. 

While your own perceptions may be different, many of those elements are shared when it comes to thinking about younger jurors. But there is a problem when it comes to perceptions and stereotypes: They can be compelling, particularly when they're formed on the basis of your own experience, but that doesn't make them reliable. Effective litigators and other persuaders should work hard to set aside stereotypes in order to deal with the true target. To the greatest extent possible, our analysis of our audience should be based on data and not assumptions. In this post, I review a bit of what is believed and known (mostly believed) about the newcomers to the venire and provide some ideas on the best ways to communicate across the generational divide.