Persuasive Litigator

Avoid Distractions on the Stand

2013-05-23T09:32:32-06:00

By Dr. Ken Broda-Bahm:

The witness sits in the box. As counsel continues to fashion a question, what is running through that witness's mind? "Where is the attorney going with this? I still haven't had a chance yet to talk about all of the things I did well. Has juror four fallen asleep? And what was it I was supposed to do with my hands? Okay, so here is what I think I'm going to say when she finally stops her question..." As the question ends, the witness begins to answer, but the answer isn't quite responsive, and the response isn't quite strategic. The reason for that has to do with one of the greatest difficulties in this complicated situation of witness testimony: distraction.

From the hundreds of channels on your television to the hundreds of messages in your inbox, from the overloaded executive to the texting driver next to you in traffic, we live in a distraction-prone world. And the many of us who surf these waters by multitasking tend to believe we're pretty good at it. We are, we think, able to keep all of our irons in the fire while effectively switching our focus from one task to another. The problem according to the research though, is that we aren't very good at it. Even when we think our minds are smoothly doing several things at once, the performance of even very experienced multitaskers is diminished by changes in focus and interruptions. Of course, the perils of multitasking apply to all aspects of a trial lawyer's job, but in this post I want to take a look at the research and what it has to say to the witness.

Can You Really Multitask?

We know that our attention is finite and our focus can become strained when we're overloaded. But surely those of us used to multitasking on a daily basis have adapted to it, right? The doctor who commonly walks down a hall while listening to a colleague, making notes in a chart, and thinking about her next patient may not truly believe that, while on the stand, she ought to think and do just one thing at a time. As an expert multitasker, she may feel she has it handled, or she may simply have trouble getting out of that mode.

While we might think that experienced multitaskers are better at it than the rest of us, the research says otherwise and suggests they're actually worse. As Katja Keuchenius writes in a recent United Academics article, "American scientists found people that multitask a lot are often sensation-seekers that find different tasks at once more stimulating and less boring than staying focused on just one thing. This actually makes them bad at multitasking; they are not able to block out distractions." The evidence for this comes from a recent University of Utah study (Sanbonmatsu et al., 2013) in which students were asked about their perceived multitasking skills (it turns out, 70 percent feel they're above average), and then tested on their actual skills at it. The result: Multitasking behavior is negatively correlated with multitasking skill.

More worrisome for litigators is the finding that multitasking is also associated with impulsivity (never a good trait on the witness stand). People who multitask do so, according to this research, because they are less able to focus on one thing at a time. That tendency makes them frequent, experienced, and confident multitaskers, while also making them ineffective multitaskers.

How Do Witnesses Risk Derailing the Train of Thought?

One problem with a distracted witness is that it creates a continual condition of "brain interrupted" similar to the scenario of the habitual and ineffective multitasker. A New York Times piece ran earlier this month reported on research showing that interruptions reduce the amount of brain power we are able to devote to any task, or in more blunt terms, "make us dumber." Asking Carnegie Mello professor Alessandro Acquisti to look into this problem, the article includes its own study in which 136 experimental subjects were placed in one of three conditions. One group simply read a short passage and answered some questions about it. Both the second and third groups were taught to expect interruptions by receiving text messages at two points during the task. Then in a second phase, the second group was interrupted again while the third group was on simply alert for possible interruptions that never came. The results, the New York Times reports, "were truly dismal" and reduced the performance of both the truly interrupted group, as well as the group that was simply distracted by the possibility of an interruption during that later phase. "The distraction of an interruption, combined with the brain drain of preparing for that interruption," the researcher reported, "made our test takers 20 percent dumber."

No one wants a witness, fact or expert, who is 20 percent dumber. And I believe that the key to having a witness who is able to focus effectively on the stand or in the deposition, is to start reinforcing those focus habits during the witness preparation meetings.

A Few Best Practices for Witness Preparation

Attorneys may not appreciate that for the witness, just the act of talking or thinking about the upcoming testimony can be exhausting, intimidating, and distracting. And unfortunately, there are some ways an unfocused or hard-charging attorney can magnify those feelings rather than diminish them. Here is my list of best practices for producing a witness that leaves the preparation session with more focus and fewer distractions than they had when they came in.

1. Divide the Preparation Into Phases. It is difficult to switch back and forth between talking about the issues, the testimonial process, the do's and don'ts, and the key messages the witness should remember. It can also be distracting to be moving in and out of practice mode to the point that the witness wonders, "Are we just talking about the answers, or am I supposed to be giving them as I plan to during testimony? To head off that confusion, expressly divide the meeting into chapters: "First, we'll resolve any outstanding legal or factual challenges, then we'll move into direct practice, then cross-practice, and finally we'll end with a list of things to work on for next time."

2. Resolve the Substantive Issues First. For a key witness, to do mock testimony without having a strategic understanding of their goals in the testimony is like taking the test without having attended class or read the book; you might do okay, but probably not. Instead, it is better to first have a session where the goal isn't practice, but is instead to get everyone on the same page regarding the facts and the most effective messages. Then, once the plan is known and relatively nailed down, it will be time to move into the practice phase to make sure that what comes across is as clear and compelling as it can be.

3. Engage in Sustained Practice with Intermittent Feedback. It is definitely possible to give too much feedback. A witness who testifies for two minutes and is then given a 30-point list of do's and don'ts will not be focused when the practice begins again. In addition, a witness who gets feedback after every single answer is going to be distracted by the continuous thought of, "I wonder what my attorney will say about this." Instead of jumping in to correct everything you see when you see it, let the witness have the experience of sustained testimony. Start with 15 minutes or so without interruption, and then build up from there. When you hear something you need to talk about, write it down instead of blurting it out. When testifying, the witness should focus only on testimony. And when receiving feedback, they should focus only on the feedback. It is the constant back and forth that puts the witness on a multitasking and distracted course.

In closing, I can't escape the irony that I've written this post in bits, pieces, fits and starts over the past few days while traveling for a witness preparation, conducting a focus group, writing up recommendations for a client, running a conflicts screen, writing a proposal, and preparing for an upcoming trip overseas. This blog lives on multitasking, and it is unrealistic for most of us to say that we could ever eliminate that need to do several things at once. But even if we can't get rid of multitasking in our personal and professional lives, we can try as much as possible to keep it out of court, off the witness stand, out of the deposition, and...wait, I just got an email.

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Other Posts on Witness Preparation:

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Sanbonmatsu DM, Strayer DL, Medeiros-Ward N, & Watson JM (2013). Who multi-tasks and why? Multi-tasking ability, perceived multi-tasking ability, impulsivity, and sensation seeking. PloS one, 8 (1) PMID: 23372720

Image Credit: Underminingme, Flickr Creative Commons

Never Rely on Self-Diagnosis of Bias

2013-05-20T11:46:17-06:00

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.

The Research: Don't Trust An "I Can Be Fair"

The authors are Christopher Robertson, David Yokum, and Matt Palmer, all with the James E. Rogers College of Law at the University of Arizona. Their 2013 paper can be downloaded here, and I should also point out that two out of three authors will be presenting a Juror Bias Symposium at the American Society of Trial Consultants' Annual Conference next month (June, 2013) in Las Vegas.

The study's conclusion should be striking to anyone who relies on self-report during voir dire, which is to say, every judge and most attorneys. That conclusion is that "juror self-assessments were not related to actual bias." The reason is that people are usually unaware of their own internal processes in rendering judgment. Given the choice between trusting what they say and trusting what they do, the preference in social science is to trust the latter. The law is another matter. "The Supreme Court has instructed courts," the authors note, "to use a simple method to determine whether jurors are biased: Ask them."

To test whether this works, the authors conducted an experiment in several phases. First, they randomized the groups and exposed them to either irrelevant material or to prejudicial publicity in a medical malpractice civil trial context. In phase two, they asked participants the voir dire questions endorsed in the most recent applicable Supreme Court case (Skillings v. U.S.). In the third phase, all jurors watched and decided the same truncated medical malpractice case. Then finally, in phase four, the researchers looked at what the effect would have been of screening out jurors based on their answers in phase two.

By presenting the prejudicial materials immediately prior to trial, the researchers purposefully designed the study to make it as easy as possible for jurors to self-diagnose their own state of mind. "If they are unable to accurately assess the impact of an article they read just moments before in a laboratory setting," they note, "it is even less likely that they could accurately assess the impact of an exposure occurring weeks prior."

Predictably, the authors found that the pretrial reading created a bias. Even after being instructed to base their verdict on the trial alone, exposure to the publicity effectively doubled the odds of a verdict against the defendant and more than tripled the median damage awards. Despite this profound effect, however, a clear majority of jurors (87 percent of those in the exposed condition) denied bias and instead expressed a certainty that they would be able to decide the case impartially, considering only the evidence presented in the truncated trial. Comparing the verdict rates before and after screening the jurors, the rates were nearly identical. Without screening, 52 percent of those exposed to the prejudicial material found against the defendant. After weeding out those who said they couldn't be fair, 53 percent found against the defendant. Overall, the University of Arizona team found no statistical relationship between a likelihood of bias and a likelihood of admitting to that bias.

The bottom line according to the authors: "Courts' reliance on such unreliable self-diagnoses to seat biased jurors may be a cause of wrongful convictions and wrongful impositions of civil liability."

Instead, Escape from Self-Diagnosis

This research, along with the large number of complementary studies reviewed in the article, should lead to a serious reconsideration of whether we can continue to leave jurors as the judges of their own bias. We can't snap our fingers and change the legal standard, but we can push for change and we can alter our own practices as a result.

Educate Your Judges

Appeals based on juror bias tend to center on the factual question of whether a juror was actually influenced or not. Despite this, it is surprising how little attention is given in the appeals to the social science that would answer that question. For example, though multiple courts have ruled on these issues of juror bias, the authors describe a very rigorous study looking at the lack of a connection between jurors' likelihood of being influenced by pretrial publicity and likelihood of admitting to that influence (Kerr et al., 1990). That study is now 23 years old, but it has never been cited by the Supreme Court or a Court of Appeals. Instead, the Court most recently upheld (Skillings v. U.S., 561 U.S. 2010) the adequacy of questions like, "Would any opinion you have prevent your impartial consideration of the evidence at trial?" and "Could you base a verdict only on the evidence at trial?" This is despite a lack of substantive social science evidence indicating that these questions are actually effective. "The Supreme Court has simply ignored the foregoing scientific literature," the researchers note, "and instead proceeded blithely, relying on jurors' self-diagnoses to affirm convictions and the imposition of civil liabilities, without requiring evidence about whether those self-diagnoses are reliable."

At a minimum, this current study (Robertson, Yokum & Palmer, 2013) should be cited in any motion or appeal bearing on the adequacy of a potential juror's own disavowal of bias.

Show More Creativity on Cause

Of course, attorneys seeking to remove a juror for cause need to, at some point, elicit whatever magic words your judge is applying in practice. But that doesn't mean that attorneys should reduce the standard to just that. Instead of beginning with the removal question, ask some lead-ins:

Tell me more about [this biased belief of yours]

How strongly or weakly are you committed to that view?

How easy or how hard would it be for you to simply set that aside?

Those questions are useful even if they don't get you to the goal by themselves. Once jurors have expanded on their views or committed themselves to a position, they're more likely to stick with that position when you or the judge asks them if they can be fair.

In addition, the study authors suggest a few additional ideas for more creatively asking cause questions. "Juror self-diagnosis might also be improved if they focused on the causal question, and were asked to imagine themselves in the counterfactual position of having not been so exposed." In other words, "If you were to imagine yourself not having had that experience, do you think you would react to a case like this any differently?" Another practical idea the authors suggest is asking potential jurors to answer the hypothetical question of whether the given belief or experience would be likely to bias another person. I've also witnessed attorneys somewhat sneaking past the Golden Rule objection by asking the venire members, "If you were in court in circumstances similar to my client, would you want someone with that [experience/belief] on your jury?"

Don't Let a Juror Promise Their Way Out of a Strike

Perhaps the most important piece of advice is that, even if the judge adopts a flawed standard for cause, don't replicate that same flawed standard when you are thinking about your own strikes. For example, here is a scenario I've been in several times in jury selection:

Me: You've really got to strike number 7. She said she hates companies like your's...

Client: But...she also said that she would set that aside and follow the evidence.

Me: And you believe her?

Based on this research, there is no indication that a promise of neutrality would make that juror any less biased. So when it comes to thinking of your strikes, think about their experiences and their attitudes, not their promises or their own self-assessments of how those experiences and attitudes would influence them.

The researchers add one other interesting point: Judicial disqualification doesn't depend on self-assessed bias, but instead on the standard of whether "impartiality might reasonably be questioned." That would be a far better standard to apply to cause challenges. If it can't be applied in law, then at least apply it in practice when dealing with your peremptories.

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Other Posts on Juror Bias:

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Robertson, C., Yokum, D., & Palmer, M. (2013). The Inability of Jurors to Self-Diagnose Bias 7th Annual Conference on Empirical Legal Studies Paper, 12-35

Image Credit: 123rf.com, used under license

Counter the Cheap Shot

2013-05-16T09:47:29-06:00

By Dr. Ken Broda-Bahm:

It happens sometimes in an argument: You know the claim you're hearing is false, but you also know that it sounds like it could be true, and it'll be a lot harder to refute the argument than it was to make it in the first place. Measured in time and effort, your adversary's initial argument is quite cheap while your response to it is very expensive. That difficulty is common in litigation, where truth is often on the side of the involved and analytical explanation rather than on the side of the compelling yet simplistic claim. Responding to that situation takes some care. Rather than just hoping your audience can follow the complexity, or giving up and becoming just as glib as your adversary, the trick is to help your listeners rise to the challenge. The trick is to use good teaching to make your explanation as simple as possible without being simplistic.

I'd like to use a current political example to illustrate both the problem and the solution. Through the 2012 Presidential election and beyond, we've seen continuing argument over the Affordable Care Act, also referred to (either derisively or admiringly) as "Obamacare." The new argument to emerge in the last couple of weeks is that Congress is trying to exempt its own staff from the ACA mandates. Attributing the story to "sources in both parties," Politico on April 24th noted, "high-level, confidential talks about exempting lawmakers and Capitol Hill aides from the insurance exchanges they are mandated to join as part of President Barack Obama’s health care overhaul." Based on this story, "they risk being dubbed hypocrites by their political rivals and the American public." Yes, they certainly would risk that. If Congressional Democrats were to apply the law to everyone except their own staff, it looks like both an admission of the Act's flaws as well as an appeal for special favors. The reality, however, is a lot more complicated and Annenberg's Pulitzer Prize-winning FactCheck.org has labeled the claim "false." The problem is that the reasons why it is false require a bit of explaining. This post uses this curent political argument as an example of the kinds of argument seen in litigation, where a charge is easily made, yet the refutation is difficult.

Obamacare and the Great Escape

When the story surfaced that Congressional Democrats wanted Obamacare to apply to all of America other than their staffs, that immediately created a very simple argument that could be boiled down to a quick news bite or a social media meme, like this one. Acknowledging that the real story is a little more complicated and a lot less interesting, the New York's Times' Ezra Klein carefully walks readers through the longer explanation, but definitely ends up with the conclusion (buttressed by the Annenberg fact check noted above) that Congress is not exempting their own staff from the ACA.

The story of what really happened is better told in steps:

Chapter One: The Setting. Congressional staff have a great policy to cover their health care. Unlike millions of Americans, they get a comprehensive health insurance plan for themselves and their families, with 75 percent of the premiums paid by the government.

Chapter Two: The Negotiation. The specific terms of the Affordable Care Act are worked out in Congress. In the process, the new policy is actually modeled after the program that members of Congress and their staffs already have.

Chapter Three: The Dare. Congressional Republicans have the idea to embarrass Democrats by floating an amendment that would force congressional staff to lose their insurance and go into the exchanges instead. In effect, the Republicans are saying to their colleagues across the aisle, "I dare you to oppose this..."

Chapter Four: The Calling of the Bluff. In a strategic move to deprive their adversaries of a talking point, Democrats signal their loyalty to the bill by embracing that amendment and making it a part of the new Affordable Care Act.

Chapter Five: The 'Oops' Moment. Even as they chose to change the law to require their staffs to enter the insurance exchanges, Congress apparently forgot about the 75 percent contribution that the government previously made to the staff's premiums. So the law as written would now quadruple their staff's health care expenses, not because Obamacare is expensive, but because the government is no longer contributing.

Chapter Six: The Cheap Shot. To save their staff, Congress tries to fix the law in order to prevent this large increase, leading the law's critics to charge hypocrisy: "They found out Obamacare quadruples their costs, so now they want to be exempt."

That is it in a nutshell. For those who take the time to understand the six chapters, the charge of hypocrisy is a clear case of political opportunism that is strongly at odds with the facts. But for those who just hear the charge without understanding the context, it sounds like a devastating and simple critique of both the law and of Washington culture. That problem has its parallels in litigation. The single line from a smoking-gun email message, for example: It may read horribly on face, while being much more innocuous in the context of the full story. But how do you get jurors to consider the whole story?

Even the Playing Field

It starts out feeling a little uneven when the response requires so much more work than the initial argument. But that doesn't mean you need to leave it there. The practical question is how you adapt to this uphill battle. Here are some ideas.

Call It Out. That doesn't mean you should call the cheap shot a "cheap shot," but it does mean that you should admit that it takes more time to understand the response than it took the other side to make the argument in the first place.

Make It As Easy As Possible. That is what I'm trying to do in laying out the "chapters" above. Rather than a long unbroken narrative or an analytical piece, it is a story in six bite-sized chunks. It is also effective to use graphics in simplifying the response wherever you can. For example, to make the six chapter sequence more memorable, it could be easily converted into a storyboard.

Make Your Audience Proud of the Effort. If it takes some time to understand the rebuttal, make jurors proud of that investment. If they avoid taking the easy way and instead devote the stamina it takes to follow a trickier argument, they should be congratulated for that. There is a psychological concept called "effort justification," reflecting our tendency to value things more highly when they require a greater effort. That's one of the reasons why people will often say that an incredibly difficult undertaking -- like Army Basic Training -- is "the most rewarding thing I've ever done." So it follows that jurors might place more value on the time it takes to follow a complex argument.

Test It. Once the explanation makes sense to you, it is tempting to believe it will make sense to any reasonable audience. Don't trust that belief; test it instead. Approach the task based on two variables: On the one hand, there is argument accessibility (how easy or hard is it to understand?), and on the other hand, there is argument quality (once understood, how believable is it?). A mock trial is a unique way to assess both of those variables.

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Other Posts on Rejoinder:

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Image Credit: Created via Quickmeme.com, captioned by the author

Beware the Anti-Theme

2013-05-13T09:53:35-06:00

By Dr. Ken Broda-Bahm:

We've written frequently on themes: those little nuggets of language and meaning that distill a case to its persuasive essence. As consultants, we create themes even more frequently, trying to find the right message to leverage a case's greatest strengths while minimizing or reframing its most important weaknesses. By definition, a theme is a simple message that helps an audience see your case in its most favorable terms. But based on some recent research, there is also a mirror image of that: an 'anti-theme' in the form of the condensed message that would turn off your audience and turn them away from your case. Considering these anti-themes when working on the contours of your message can help you know what to avoid and what to preempt in your trial strategy.

The study (Gromet, Kunreuther & Larrick, 2013) focuses on consumer choices in lightbulbs and found that buying behavior could be substantially reduced in some audiences just by adding a single, apparently positive message to the packaging. While the question of "What sells an audience?" naturally garners much academic and practical attention, the parallel question of "What kills the sale?" should merit equal attention. And this focus fits well with a goal I've written about before: the need to use those forces that attract an audience toward your message (alpha strategies), as well as the need to address the forces that potentially repel an audience from your message (omega strategies). This post applies this approach-avoidance perspective to the question of themes. In addition to looking at the research on the words that can wound your cause, I'll also share some of my own thoughts on common anti-themes that could play a role in a jury's or judge's response to your case.

The Research: When Can Your Message Harm Your Case?

Proving that you can learn about social science in just about any setting, I learned about this research from a recent Colbert Report. The article, appearing in the considerably more credible source -- at least from an academic perspective -- The Proceedings of the National Academy of Sciences reports on two studies conducted by researchers from the Wharton School of the University of Pennsylvania and Duke University. For the first study, the researchers asked 657 people to reveal their political leanings, as well as their habits and specific responses relating to the purchase of energy-saving products. From that study they found, unsurprisingly perhaps, that those who leaned in a conservative direction were more likely to buy such products if they were advertised as cost-saving investments, while those on the more liberal end of the spectrum were more likely to buy the products when they were advised as solutions to environmental problems.

But the second study is where it gets more interesting. Using an additional 210 participants, they gave each two dollars in order to purchase a lightbulb. They could buy a conventional incandescent bulb for fifty cents, or they could buy a compact fluorescent bulb for a dollar and fifty cents. In each experimental condition, the higher priced bulbs were the same, but the pitch for them changed. In one condition the bulbs were pitched as good for the planet, and in another they were pitched as a money-saver. What the researchers found was that liberal participants were likely to buy the compact fluorescent bulb regardless of which appeal was used, however conservative participants were significantly less likely to buy the bulb when it was paired with an environmental message.

You might think the message that something "protects the environment" is a positive message, or at worst a neutral one, so it might be hard to imagine how that message would reduce the product's appeal. The reason according to the researchers has to do with how people supply a frame. Based on past experience and the example supplied by other messages, conservatives have come to associate "environmental" terms with liberalism, causing them to shy away from anything connected to those appeals. So rather than just failing to help, the theme makes things worse for that audience, making it an anti-theme.

What Are Some Common Anti-Themes?

The same thing can happen in litigation messages. Juries and other legal audiences are obviously not uniform, and that fact typically leads us to advise clients to target the higher risk audience. That audience can be turned off by some of the very things that work best for your more favorable audiences. Here are a couple of examples:

Plaintiffs Should Avoid These Implied Messages:

"This case is about sympathy..." For many jurors, "sympathy" is a Devil Term representing everything that they presume to be wrong with the American tort system. For many jurors, sympathy is what plaintiffs rely on when the facts, the evidence, and the law don't support them. To make a decision on sympathy is to set aside reason for emotion, paving the way for the worst kind of abuses in the jury system exemplified by a distorted image of the hot coffee case (Liebeck v. McDonalds Restaurants). If the jury gets the message that the plaintiff -- or the defense for that matter -- is relying on sympathy, then expect their skepticism to rise by several orders of magnitude.

"We chose this Defendant based on deep pockets..." In addition to assuming that plaintiffs leverage emotion and sympathy, the tougher audience for plaintiffs also tends to assume that lawsuits are motivated by deep pockets. The idea of targeting a company based not on their responsibility for the loss but based on their ability to pay for it, also speaks to those suspecting the worst about America's legal system. Emphasize too much of the "they're a big company" message and jurors may start to believe that this fact, and not liability, is why the company is in the case.

Defendants Avoid These Implied Messages:

"We just followed the law..." Of course, defendants need to show adherence to laws, but it shouldn't stop there. The company that did the minimum or simply toed the line on regulations, especially those designed to protect health and safety, is not fully taking responsibility. Jurors who present a worst case for defendants will often expect parties to do not just what is legal, but what is right. A responsible company would want to do more than adhere to regulations. They would want to fully protect their customers and partners, and that is most credible when it means going above and beyond what the law requires.

"We didn't act responsibly, but that didn't cause any harms..." Anytime your case depends on jurors finding liability but cutting the plaintiff short when it comes to causation, you know you have your work cut out for you. Jurors are notoriously prone to jump the gap between liability and damages. In some ways that makes an intuitive kind of sense: "So, you did something wrong, did you? Okay, let's talk about how much that's going to cost you." Some jurors can get to the point of appreciating causation, but it takes an analytical step that is quite often skipped. So in most cases, a party acknowledging liability is sending a message that it deserves at least some punishment.

So How Do You Address Anti-Themes?

Those are just a few examples, and most will be specific to the facts of your case. But once you know what your own anti-themes are likely to be, what do you do about them? Beyond deciding to avoid them, are there steps that would help jurors resist them more effectively if they do emerge? Yes, there are. Once you think it is likely that an anti-theme might be invited in through an adversary's messages or through jurors' own preconceptions, you can attempt to inoculate starting in voir dire and continuing through your trial message.

To think about what inoculation against an anti-theme might look like, consider the scenario used in the study. For example, when appealing to the conservative lightbulb buyer, what if a spokesperson led with something like this:

Some people say these bulbs are good for the environment and I don't know about all that. I just know that over the life of this bulb, there will be a whole lot of money staying in my pocket instead of going to the power company.'

That would be a way of saying, "yes, we know there is a theme out there that might turn you off, but that is not what my appeal is about." You could take the same approach as a plaintiff trying to avoid the perception of a sympathy appeal:

You know, at the heart of this case, there is a terrible injury, and I know it is only human nature that some will be sympathetic to that, and it is also human nature that some of you will harden yourselves against that not wanting to be moved by sympathy. And that response is fine, because this case is going to be based on clear facts, clear evidence, and clear law...not on sympathy. I'm not asking for that and neither is my client.

A broader point to appreciate in this discussion: Cover the negative and not just the positive. Instead of simply adducing reasons and evidence for the jury to go along with you, you need to think as well about the barriers and reply to the preconceptions, good and bad, that are likely to be on your target audience's minds.

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Other Posts on Theme:

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Gromet, D. M., Kunreuther, H., & Larrick, R. P. (2013). Political ideology affects energy-efficiency attitudes and choices. Proceedings of the National Academy of Sciences.

Image Credit: By the author

Check Your Jurors' Power Level

2013-05-09T09:25:44-06:00

By Dr. Ken Broda-Bahm:

An Iowa jury just handed down a $240 million verdict on behalf of 32 mentally disabled men who lived and worked for decades at a turkey processing plant and were paid just $65 a month. That verdict, the largest ever in an EEOC case, captures the jurors' feelings about such blatant exploitation, but in addition to anger, the judgment also signals one other critical ingredient: a feeling of power. As one juror noted, she wanted to send a message: "We wanted to let people out there know that, in the future, this cannot happen." That sense of power can also be evoked when a jury returns a defense verdict. For example, last year a Manhattan federal jury found in favor of Citigroup and against the Securities and Exchange Commission. In that case, the jurors noted, "We were afraid that we would send a message to Wall Street that a jury made up of regular American folks could not understand their complicated transactions and so they could get away with their outrageous conduct." So they issued a statement along with their verdict which was read aloud by the judge: "This verdict should not deter the S.E.C. from continuing to investigate the financial industry, review current regulations and modify existing regulations as necessary." In other words, "Change the law and we'll get them next time."

What unites these examples is that in each we are hearing the voice of an empowered jury. In the right circumstances, a jury's verdict is not simply an answer to a legal question, it is a message delivered by a body that has come to feel that it has the legitimate power to deliver that message. Power, or more accurately the feeling of having it, is an important dimension to consider in analyzing any audience. So this post is going to take a closer look at this concept of juror power. Of course, a jury has real power, subject to the limits of appeal, but in given situations they can be either more or less sensitized to that fact. Becoming aware of that power can lead to more dramatic decisions, as in the examples above, but based on some new research, it can also effect some important changes to the ways jurors think.

Power and Punishment: The Research

Scott Wiltermuth and Francis Flynn, business school professors at USC Marshall and Stanford respectively, wanted to look at power in a business setting. Noting the perception that leaders often become infused with a stronger sense of right and wrong and come to perceive actions with much less moral ambiguity, they also noticed the same thing in classes based on the degree of perceived power. "We noticed in our MBA classes," Wiltermuth recently told ScienceDaily, "that the students who seemed to feel most powerful had these absolute answers about what's right and what's wrong." So, they wanted to test out the hypothesis that greater power leads to a "moral clarity" that results in greater punishment. Conducting four experiments (Wiltermuth & Flynn, 2012 - You can download the article here), they manipulated perceived power by giving individuals the ability to control resources and administer rewards and punishments. Then they presented the participants with scenarios involving transgressions of some kind. They found that those participants who were made to feel more powerful were more likely to say either "yes, the behavior is immoral," or "no, it is not immoral," but much less likely to say "it depends." The authors noted that their findings "imply that once you obtain power you become more likely to see things in black-and-white" and less likely to appreciate shades of gray. They also found that once they did perceive wrongdoing, the more powerful and "morally clear" participants were more likely to hand down severe punishments.

This finding has some clear implications for litigation since many situations in trial involve one party working hard to create that black-and-white sense of right and wrong, while the other side is working equally hard to encourage jurors to appreciate the many shades of gray and to adopt a healthy sense of doubt. So whether you want to foster or downplay a jury's sense of their own power will depend on your goals in the case. Naturally, venues and judges vary widely on what will escape objection in openings and closings, but here are some thoughts on ways to either emphasize or de-emphasize the variable of juror empowerment.

Build Up Power to Encourage 'Moral Clarity'

A jury that is helped to see and appreciate their own power are more likely to render a decision that is clear, unequivocal, and dramatic. They are more likely to reach a result that sends a message rather than one that splits the difference. So what provides jurors with that sense of power?

One, remind jurors of their power: At this point, you are the ones who will be making the final decision, so you have the power to either set things right or to leave them where they stand.

Two, frame their decision in powerful terms. You'll be answering these questions on the verdict form, but more broadly you'll be answering another question that is just as important. And that is the question that is on my client's mind: Do we as a society tolerate acts like these or do we shut them down?

Three, focus on impacts and consequences. The verdict isn't really the end of the story, it is the beginning of it. That is because the next day, and all of those that follow, will continue to be influenced by the judgment that you make here.

Play Down Power to Encourage Nuance and Relativism

Of course, one doesn't always want a jury filled with moral purpose. That is not only to escape the brunt of a verdict for the party advocating change (a plaintiff or a prosecutor), but it may also be relevant for any party whose case depends on some appreciation of ambiguity and fine distinctions. A plaintiff pursuing a theory that might seem implausible on face (e.g., McDonald's hot coffee) might not want to speak to the jury's ability to make a broad statement because that statement might well be a rebuke. Instead, that party might be more interested in playing down the "message" and getting the jury to see the controversy within the narrower frame of simple legal responsibility. So how do you dial down the power?

One, emphasize the limits of the decision. A jury isn't tasked with the goal of making everything right, because no one - at least no one on this earth - can do that. Instead, a jury is tasked with just answering some specific questions.

Two, focus on instructions. And these questions are legal questions, not broad personal matters of good and evil or right and wrong, but much more specific legal questions of what the law -- not me, or you, but the law -- punishes or doesn't punish.

Three, focus on the judge's role. As a jury, you are the final step in this process but, trust me, there have been a lot of other steps. The judge has at this point narrowed the controversy to just the issues you see on your verdict form and, when you are done, the judge will enter a verdict on them.

Of course, none of this advice takes the form of an absolute black and white statement (...because I don't have that much power). Instead, it is a matter of degree and emphasis. For example, if you are trying to empower your jury, you would still want to emphasize the legal instructions. But you would want to give a little more salience to the "send a message" components than you give to the "answer a legal question" components. In addition, in suggesting that you can play up or play down the elements that draw attention to jurors' power, I'm not suggesting that you can tune your jury like a fiddle either. Jurors have their own sense of power, and that is often independent of an attorney's control. Still, attorneys should do what they can to influence this variable as they try to influence all the other variables in persuasion. A jury's understanding of their own power -- either diminished or magnified -- can be an important part of your strategy in trial.

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Other Posts on Factfinder Power:

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Wiltermuth, S., & Flynn, F. (2012). Power, Moral Clarity, and Punishment in the Workplace. Academy of Management Journal.

Photo Credit: Justgrimes, Flickr Creative Commons (edited by author)