September 20, 2018

Witnesses, Don’t Succumb to Shame

By Dr. Ken Broda-Bahm:

The witness is somewhat slumped in the chair as the cross-examination bears down on him. As the defendant, he knows he is the focus, the civil law’s version of “the perp.” As he is confronted with each of the plaintiff’s accusations, and each of the expert witness’s criticisms, he is sinking lower and lower in the chair. His answers become shorter, his volume drops lower, his eyes look away, and his chin points down to the table. The actual content of his answers might not be all that bad, but nonverbally, his communication is coming across as a confession. The dominant expressed emotion is shame, which is what we would expect of someone who has done something wrong. So it reads as “guilt.”

Shame can be a common feeling for a witness, particularly (but not always) when they’re the defendant. The simple force of accusation that comes with someone trying to find fault with your statements or your actions is a force that can be internalized. One might minimize the occurrence of genuine shame, seeing it as rare in the professional world of civil litigation. New research, however, points toward shame being a cultural universal which is hard-wired into our evolution. Based on a cross-cultural research project discussed in a recent ScienceDaily release, human feelings of shame follow essentially the same pattern in societies around the world, because shame played an important role to our ancestors who lived in hunting and gathering social groups. Even today, feelings of accusation or perceptions of social disapproval can cut deep, even if, logically, we understand that we have done nothing wrong. In this post, I’ll take a look at what shame is, how it can undermine witness credibility, and what the prepared witness ought to do about it.

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September 17, 2018

Think About Transitions

By Dr. Ken Broda-Bahm:

It is one of the basics emphasized in your first public speaking class: Have a clear transition between your main points. But it is also a rule that many experienced communicators set aside or start taking for granted. As you become more comfortable with your content and your audience, you can fall victim to that fundamental adaptation error: the belief that your audience is tracking right along with you. And when you move from one point to the next, the change seems clear and obvious, to you. But is it clear to the audience? Often, not nearly as clear. What they hear is a bunch of information, and now they’re hearing more information, but the distinctions and connections between one point and the next can be lost.

If you can get your audience to adopt your way of thinking about the issue, you are more than halfway there: The path determines the destination. So structure is key to conveying content. And the transition is key to conveying structure. It is the transition that plays the role of making sure your audience isn’t just receiving a bucket of information, but is instead moving through the right main points in the right sequence. So when  you are preparing your notes for opening, closing, or witness examination, the question of “How am I going to transition?” should be an important one. It’s not just a matter of stopping one topic and starting in on another topic, it is about briefly building a bridge that your audience can cross and know that they’re crossing. In my view, there are a few steps to doing it. Following those steps as a checklist will help to make your transitions more clear, and as a result, your structure more evident and influential.

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September 13, 2018

Damages: Know Your Anchor

By Dr. Ken Broda-Bahm:

For plaintiffs, the topic of monetary damages can be a bit of a mystery. In making the request to a jury, the appropriately named ad damnum, the question is: How much? Obviously, more is better, but common sense and experience probably tell you that there is a point at which higher requests bear diminishing returns, or even bounce back on themselves resulting in lower verdicts, or even, God forbid, a point at which the extreme request causes jurors to doubt the motives behind the suit and question their liability determination. The level at which one should propose, or “anchor” a damages amount can be tricky. And the uncertainties apply to defendants as well, in two ways: Not only do they have to estimate and react to the effects of the plaintiff’s number, they also often need to come up with their own alternate damages number.

The uncertainty on both sides about the realistic value of a case can be a practical obstacle to timely settlement. Verdict research can play a role, but with a shortage of similar cases going all the way to verdict in the same venue, attorneys will often rely on their anecdotal experience or gut instinct. Recent research, however, highlights a better option as well as a few important principles to keep in mind. In a series of studies (Campbell, 2018), a law professor at University of Denver Sturm College of Law relies on data drawn from actual cases that are tested using online samples of mock jurors, looking at whether “there is a proverbial ‘sweet spot’ for demands where the maximum anchoring effect is obtained” without bouncing back or hurting the case on liability. In this post, I will call out four quick contributions from this research — points that active litigators ought to bear in mind.  Continue reading

September 10, 2018

Don’t Shy Away from Politics (in Jury Selection)

By Dr. Ken Broda-Bahm:

Our ability to understand and to talk to each other is increasingly determined by our political leanings. When we all sit down for family Thanksgiving in a couple of months, politics is likely to be off limits at many tables. But is it also off limits in the courtroom during voir dire? Some judges and some attorneys seem to think so. The feeling is that asking about politics is too direct and potentially threatening, creating the feeling that you’re invading the privacy of the voting booth, or asking about personal details that don’t seem germane to the case. And sometimes, that practice of steering clear of politics is one that is followed even when a case is politically charged at a very high level. Take the Virginia trial last month of former Trump campaign chair, Paul Manafort, on tax and bank fraud charges. As I wrote in an earlier post, prosecutors in that case proposed a juror questionnaire that entirely avoided the attitudes of potential jurors toward politics in general and the Mueller investigation of those surrounding the President in particular. In that trial, the prosecution did not get the questionnaire, and also (apparently) did not get a fully-effective read on political attitudes. The jury ultimately convicted on eight charges, but hung on the remaining ten due to one juror, a Trump supporter, who resisted conviction on the majority of counts.

Now, attention is focusing on Manafort’s next trial set for later this month in Washington D.C. Judging from a recent article in Newsweekthe takeaway is that it is now even more important to pay attention to political leanings. The author quotes high-profile trial consultant Robert Herschorn: “I don’t think gender matters. I don’t think age matters. I don’t think race matters,” he says. “The only question they should be asking is, ‘Did you vote for Trump?’” Maybe the question isn’t voting, since in many courtrooms, that would be an automatic sustained objection. But there are more ways to get to that target. And it is not just the cases with the obvious politics of a sitting president attacking the investigation and charges against his former campaign manager. Instead, we have found that political leanings predict a wealth of attitudes that matter to cases across the board: personal responsibility, the value of regulations, the importance of civil rights, and whether a courtroom is for punishment or for reform. We’ve found that in many to most cases, political leanings will matter. In this post, I will share some practical ideas on how to ask in ways that are effective and likely to be not too threatening to the court.

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September 6, 2018

Account for Recency in Jury Deliberations

By Dr. Ken Broda-Bahm:

The common expression of the recency effect, “Save the best for last,” says that the latter parts of a message will stick in the memory and be ready for later use. The importance of that effect in your trial message has gained some recent and somewhat unexpected support thanks to some research on the effects of allowing jurors to talk about the case without waiting for deliberations. Predeliberation jury discussion is an increasingly popular jury innovation said to make trials more comprehensible and engaging for jurors without biasing the result. The research, however, puts that into question. Two researchers from Claremont (Kerr & Jung, 2018) are reporting that allowing jurors to talk about the case as that case is coming in, does bias the resulting deliberations, but not in the direction you might think.

The criticism of the innovation has been that it can lead to early commitments and cause the jury to reach premature closure by giving the greatest weight to what they hear early in the case. The researchers, however, found the opposite effect. Conducting a live mock trial in an age-discrimination lawsuit, varying the strength of the evidence and varying whether early juror discussion is allowed or not, they found that it does bias the deliberations, but it does so by encouraging jurors to put greater weight on the evidence that was heard following the predeliberation juror discussions. In their view, juries act as if the evidence heard prior to that early discussion had “already been covered,” making the new evidence especially relevant. The effect, measured in verdicts, was 26.5 percent, a very sizable difference in the social science world, where even small differences can still be statistically significant. But even more intriguing was the reason the researchers saw: “The effect of predeliberation jury discussion was a type of recency effect — the evidence presented later in the trial (and after the jury’s predeliberation jury discussion) had relatively greater impact on the jury’s verdict than the evidence presented early in the trial (and prior to the jury’s predeliberation jury discussion).” The results tell us about the potential influence of letting jurors talk about the case, but also point to other effects to look for even when there is no early discussion allowed.

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September 4, 2018

Don’t Let Your Apologies Make You Sorry: The Trial Message Checklist

By Dr. Ken Broda-Bahm:

It must be the season for corporate apologies. Twitter is sorry that it allowed itself to be a home for hate groups for so many years. Facebook is sorry that it was a gateway to companies like Cambridge Analytica and a host for Russian trolls. Wells Fargo is sorry it loaded its customers with unwanted fees and accounts. Uber is sorry it forced sexual assault victims into arbitration. And Starbucks is sorry for the racism of some of its employees. Those apologies are all aimed at the court of public opinion, but the “sorry” crops up frequently in the trial court as well. When companies find themselves a defendant in a civil suit, they will sometimes come to the conclusion that they’ll need to rely on that pinnacle of the passive voice: “Mistakes were made.”

But it’s not a simple decision, and it’s not a simple message. Delivering an apology of any form is tricky and requires planning, not an off-the-cuff comment. It should neither be truncated and curt, nor more effusive than it needs to be. The scope and the direction of any acceptance of responsibility needs to be thought out carefully, and ideally tested in pretrial research like a mock trial or a focus group. The specific decision of whether an admission helps more than it hurts will depend on your specific case. But in general, I think there is a checklist of questions that you should be able to answer before you wade into the apology.

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August 30, 2018

Encourage Your Juror to Think Like a Scientist

By Dr. Ken Broda-Bahm: 

In the wake of recent verdicts, the Johnson & Johnson defense team might be seeing its hopes of convincing jurors to follow its scientific advice going up in a cloud of smoke…or perhaps a cloud of potentially carcinogenic talcum powder. Johnson & Johnson has lost a string of suits, most recently in April ($117 million and $26 million) and July ($46 billion), with the common factor being a tendency for jurors to find the plaintiffs’ anecdotes to be more compelling than the defendant’s data. The science supporting the plaintiffs’ cases, now numbering more than 9,000, is still quite controversial. While at least some scientists might be shaking their heads, the Johnson & Johnson jurors aren’t necessarily off-base.

As explained in a recent article in Popular Science entitled, “The Problem with Taking Scientific Questions to Court,” the lack of agreement between what the scientific community says and what the verdicts say can be traced to the different standards of law and science. “What the legal system considers enough evidence to establish that exposure causes illness is different from the standards of science—and trying to fit the two together can be hazardous.” Of course, understanding that difference isn’t likely to satisfy parties like Johnson & Johnson who have no choice but to bring science into the courtroom. At times, the defense will need jurors in the courtroom to think and act a bit more likely they’re scientists in the lab. In this post, I will take a closer look at the Popular Science article and share a couple of thoughts on how to encourage jurors to adopt that mindset.

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August 27, 2018

Female Attorneys: Don’t Expect Anger to Work (as Well) for You

by Dr. Ken Broda-Bahm:

One way to stir up a controversy is to talk about the social expectations that apply to female litigators. The ABA Journal recently played host to that discussion after an article by Debra Cassens Weiss on showing anger in the courtroom quoted an essay in The Atlantic by former pubic defender and current law professor at the University of San Francisco, Lara Bazelon. Based on a review of the literature and interviews with many female trial lawyers, Ms. Bazelon shares her belief that a narrower range of acceptability actively limits what she can teach her female students in law school. Drawing from her own experience, she notes, “My supervisors also reminded me to smile as often as possible in order to counteract the impression that my resting facial expression was too severe. I even had to police my tone of voice. When challenging a hostile witness, I learned to take a ‘more in sorrow than in anger’ approach.”

This discussion led to an emphatic response from Cris Arguedas, a defense attorney in a number of high profile matters including Barry Bonds’ perjury trial in San Francisco. She argues that, rather than limiting themselves based on perceived expectations, female litigators need to employ the full range of delivery, including anger depending on the situation. “A skilled examiner must be able to use all the tools.” Differing expectations on anger is, of course, just one aspect of the context a female attorney faces, but it is one of the more salient distinctions, and one that has seen recent relevant research. As it regards acceptable expressions of anger, I believe that the exchange highlights two separate questions: One, “Are there differences in the latitude of social acceptance for female attorneys?” and two, “If so, does that mean that female attorneys should hold back?” I think the answers are, respectively, “Yes, to some extent,” and “No, not necessarily.” I’ll briefly unpack both of those in this post.

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August 23, 2018

Rebuttal: End With Your “Untouchables”

by Dr. Ken Broda-Bahm:

The two terms are often used interchangeably, but “rebuttal” doesn’t mean the same thing as “refutation.” The latter amounts to an attack on the arguments of the other side, and the former means rebuilding your own arguments after they’ve been attacked by the other side. Trial lawyers have a practical understanding of that difference, especially as they prepare for the phase in advocacy that carries that name. In rebuttal, the focus is on spending time (usually not enough time) on mending the blows that the other side was able to inflict. Thankfully, that formal time called “rebuttal” is not the only time when the more general goals of rebuttal can be pursued.

At other times throughout trial, you should focus on repairing the damage that the other side either has inflicted or is expected to inflict. Even a plaintiff’s opening statement can include a pre-emptive focus on where your case is going to get hurt. By answering the argument in advance, you’re helping jurors to develop an immunity to that argument once they eventually do hear it. The problem with this approach is that, because the focus is defense, it can come off a little defensive. The challenge is to rebuild in a way that conveys strength. One simple technique that can apply in nearly all situations is a focus on what I call “The untouchables.” Those are aspects of your case that the other side cannot deny. So it is not “untouchable” in the sense of Elliot Ness and his team of crusading gangbusters, but more like “untouchable” in the sense of M.C. Hammer’s “Can’t touch this….” Focusing on as many points as possible that the other side will not be able to substantively defeat provides a little insurance against their attacks and does so in a way that conveys offense, not defense. In this post, I’ll share my thoughts on four times in the trial sequence where the advocate can touch on their untouchables.

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August 20, 2018

Find the Music in Your Theme

By Dr. Ken Broda-Bahm:

I’ve shared before on these pages that I decided to learn music at an age where most people have either mastered their musical instrument or made peace with their inability to play one. Prompted by my daughter’s interest, I decided to have a go at guitar a few years ago, and with the help of a trusty travel guitar, I’ve stuck with it. I am able to keep up with the kid (which is the important thing), but I’m also now able to do some rough improvisations and stay in key (mostly). So my teacher decided it is time for some more advanced stuff. “A solo,” he intoned, “is not just about playing notes.” Rather, he said, “it is about creating and developing themes.” Of course, his use of the word “themes” sparked a connection with my day job, and led me to some parallels in the ways music captures and holds interest, and the ways the spoken word needs to do the same. The word “theme,” of course, refers to a central subject, and musically it is a phrase that is introduced, repeated, and varied in order to hold together a broader piece of music. In persuasion, a theme needs to do similar work. After all, in a legal persuasion context, we still talk about the way a theme “resonates” or doesn’t.

My music teacher encouraged me to listen and then take a crack at replicating some thematic solos. He suggested I start with a mid-Seventies song called Ten Years Gone, by Led Zeppelin. Throughout that song, Jimmy Page moves between delicate playing and harder-edged riffs, providing the light and the dark he is famous for. The song also includes a good example of a melodic solo that proposes and unpacks a theme. That’s still out of my reach, but while working on that song, and more broadly working to understand what musical themes mean, I’ve learned a few things that connect the musical theme to the persuasive theme. Specifically, I can hear four similarities.

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