Persuasive Litigator

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. 

By Dr. Ken Broda-Bahm: 

So, you're conducting a mock trial and eyeballing the participants as they check in. Gradually, it strikes you: Some seem to know the drill a little too well. Later in the day during deliberations and interviews, it is all the more clear: Some have the wide-eyed and uncertain look of actual jurors, while others appear to be veterans, familiar with the research norms and the facilitator's expectations. The latter group may be what we call the "frequent flyers," or those who have participated in many focus group projects and see such participation as an important source of income. They're also a group that, for many reasons, you want to avoid. Since the entire point of conducting small group legal research like mock trials or focus groups is to hear from individuals who are substantially similar to your potential jurors, it skews your results and reduces the utility of the exercise. Instead of hearing from those who are like the true cross section of jurors, you are hearing from those who are more like professional survey takers. 

Lawyers, especially those who are trying to cut costs in pretrial research, might be prone to believe that feedback is feedback and the reactions of any available warm bodies ought to be enough. But that could not be further from the truth. The choice to engage in jury research is already a kind of compromise to the extent that you are probably not bringing in the kind of numbers that Gallup would rely on. To jeopardize the representativeness even more by using ringers as participants is definitely a bad idea. In this post, I lay out the case for avoiding "frequent flyers" and other opt in participants and, instead, basing your research on those who are recruited using the most systematic and randomized techniques available. 

By Dr. Ken Broda-Bahm: 

I have a five-year-old daughter (stay with me, it's relevant), and every night, just as she is going to bed, I tell her a story, creating each tale in impromptu fashion. I've been doing this for as long as she's been able to understand what I'm saying (and probably a little longer). We do this after the books are done, so I can't just rely on published help, and I can't just tell her any old Grimm or Mother Goose tale either. It has to be original and created just for that night -- no repeats. She gives me a character and a setting (e.g., a bear who wants to be president), and I have to just go with it. If that sounds like an exercise from a storytelling workshop, that is pretty much what it is. What enables me to do this night after night is not a wild imagination, nor is it just the inspiration provided by my (extraordinarily cute and creative) kid. What gets me through is a reliance on a bit of knowledge about narrative structure. That is, I draw from a well-established yet simple series of steps that a story needs to go through in order to be understood and appreciated as a story. 

First, I need to set a scene and flesh out some characters (so, we meet the bear who aspires to the oval office, and I resist the urge to name him "Romney the Bear"). Then, I need to introduce a conflict or a problem (Let's say the bear has great ideas for the country, but keeps scaring off the moderator and audience when he shows up for the candidate's debate). Then, I need the final step to send the child off to dreamland: a crisis and resolution that brings the story to a close (Hmm, the debate is invaded by a swarm of angry bees, and bear saves the day by scaring them away -- everyone takes a fresh look at what the bear can offer). Okay, so I won't be winning a Newberry medal for children's literature, but it does work, and works for a reason that should matter to litigators. Keeping an an eye toward the basic structural elements of a narrative is critical to telling the kind of stories jurors will want to hear and retain. Most litigators understand that they need to tell a story, but for too many, the knowledge stops there. They'll arrange the events in a sequence, but omit some of the parts (chapters; beginning, middle, and end; conflict and resolution) that help us see it as a story. This post takes a look at the ways a little knowledge about narrative structure can help attorneys tell better and more involving stories. 

By Dr. Ken Broda-Bahm: 

Early rhetorical theory and the most modern advances in cognitive science are able to find a surprising amount of common ground. Particularly when we think of the persuasive demands on legal communicators, there is much that would be recommended both by the ancients, as well as by the most current research. One place where these two perspectives meet, for coffee let's say, is on the point of the role of an active audience participating in the creation of an effective message and a persuasive result. In part one of this series, I explored Aristotle's notion of the enthymeme as a practical philosophy for conceiving of the ways your persuasive target participates in the persuasion. And in this second installment, I fast-forward to today and share a few themes from psychological experiments showing the variety of ways in which Aristotle was right.  

Today, what sells books on persuasion and influence is often the idea of simplifying: the one secret, the magic pill, the irresistible appeal that will make your audience respond in the desired fashion. But what is more accurate - and what is underscored by both ancient rhetoric and modern cognitive science - is an appreciation of complexity, a recognition that when it comes to persuasion, it is not just about the message or, necessarily, even primarily about the message. It is about the audience. Without knowing how your audience is likely to interact with a message, you don't know how to persuade. This post focuses on the question, what does science say about the way persuasive targets participate in persuasion? To answer that, I'll weave together a few different threads, some discussed in prior posts and some new ones, focusing on what we know today of the role of participation in persuasion. 

By Dr. Ken Broda-Bahm: 

This past Tuesday President Obama delivered the first State of the Union Address of his second term. It's been traditional for the party on the other side to give a response, and in what is becoming a pattern, there was a response from both the Republican Party as well as the Tea Party movement. So, if the President was like a a plaintiff putting forth his case, then Senators Marco Rubio and Rand Paul (responding for the Republicans and the Tea Party respectively) were like two imperfectly aligned co-defendants: agreeing on nearly everything (e.g., smaller government, spending cuts), yet still divided by a few key issues (e.g., immigration reform, and the culpability of both parties). Coming in the context of a widely reported "civil war" within the Republican Party following the election, the situation put Rubio and Paul on the tricky path of finding ways to advance a common case, while still noting some critical distinctions. That is a situation not unlike that of co-defendants in civil litigation: the product manufacturer and the product distributor who stand as co-defendants in a products liability suit, or the doctors and hospital who are named in a medical malpractice suit. 

The situation reminds us that any tripartite structure is inherently unstable, given to the chance that any two could find common interest against the third. In the case of a multi-defendant scenario, the best outcome from a defense perspective is for the defendants to maintain a united front against the plaintiff, because once the finger-pointing starts among the defendants, the plaintiff starts to feel that it is just a matter of "How much, and from whom?" After all, fingers wouldn't be pointed if nothing had gone wrong, and it is only natural for skepticism to attach to the party who says, "look at them, not me." Ultimately, everyone suffers but the plaintiff. Defendants tend to get this, of course, and when they find themselves in complex multiparty situations, experienced litigators will usually strive mightily to prevent a blame-fest from breaking out at the defense tables. At the same time, this accurate perception of common interest can have difficulty finding its way into the preparation process and the message itself. This post shares a few thoughts on how to improve that alignment at a communication level.