ABA Journal Blawg 100!
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Archive for September, 2009
Eliot Spitzer, Uncivil Behavior & Possibilities of Redemption
This year has been a field day for anyone studying impact of sexual misadventures on the careers of public figures. It’s hard to know what the public cares about when the offense is merely a character flaw. If it doesn’t cost us money, we don’t seem to judge harshly, or at least not for very long.
When Eliot Spitzer, the NY Attorney General, was publicly shamed into resignation and labeled “Client #9″ in a prostitution ring scandal, few thought he had any future in public life. But a recent poll in the Atlantic magazine makes us wonder. Five hundred New Yorkers were asked (on September 1, 2009) if they would vote for Spitzer if he ran for public office again: “15% would vote for him “no matter what”, 39% would vote against him “no matter what”, and 47% said it would depend on what office Spitzer ran for and who else was on the ballot.”
The Atlantic goes on to say that they think a 2010 run for office is a long shot for Spitzer but who is to say what could happen? The public sometimes has a long memory for disgraced heroes and other times we are inclined to overlook past failures.
When Eliot Spitzer fell from grace, we wrote a paper identifying strategies for the litigator with a publicly disgraced client. In that paper, we focused on five basic steps to follow:
- Apologize correctly to mitigate hypocrisy
- Rebut the fundamental attribution error
- Focus on past positives and weigh them against this fall from grace
- Focus on what has been lost and how your client has been affected
- Avoid surprise
You can download a copy of this paper (Client No. 9: Defending Uncivil Behavior) at our website. Scroll to the bottom of the page and register for free access to various papers we’ve written over the past 10 years. We promise we won’t sell, trade or use your contact information for nefarious purposes. We just want to know who is interested in our ideas and we will let you know from time to time when we have new papers on the website.
The complete paper describes what to do in each of these steps and why (based on the recent research) you should do the actions recommended. We think you’ll find it useful.
While the public may be willing to look the other way when a family is victimized by salacious conduct, the rage against fiduciary violations has real sticking power. The findings in our previous paper are as relevant today for the management scandals of today and tomorrow as they were during the Enron scandal (see “Enron Effect: Uncertainty, Mistrust, and Cynicism”).
Simple Jury Persuasion: There is no such thing as “Persuasion”.
We’ve been reading Mark Bennett’s Simple Rules for Jury Selection and wishing we’d thought of that! So we are ‘liberating’ his idea with some simple rules of our own. Once you have your jury (perhaps using Mark’s ‘simple rules’) how do you persuade them?
We spend a lot of time reading the research on persuasion and have determined that we’re not sure we believe in persuasion per se. If it exists, it isn’t in the form most people think of as ‘persuasion’. We have all been working on our world view our entire lifetimes, and by the time jurors are sworn in, they aren’t subject to being swayed by your soaring oratory. The bad part is, “Wouldn’t that be nice!” The good part is, “What a relief—I’m off the hook!” Jurors want to do their own assessment of the case, and they will use their own yardstick to measure. Therefore, rather then trying to persuade them to adopt a new view, spend your time crafting a trial story that connects the case facts with their already-held values and beliefs.
There is no such thing as “Persuasion”
- What the most gifted and skilled advocates do is not “persuade”, but rather they craft a story that connects with the strongly held beliefs of jurors.
- They don’t create arguments or conflicts. They make the points of connection more compelling than the points of division. Egregious behavior isn’t bad because it offends you, it offends because of its impact on the values of jurors.
- So tell the jury’s story while you tell your client’s story. Help the jury to see that what is most important to them is manifest in a verdict for your client.
Over the next year (or so) as we see new research that reminds us of the persuasion strategies we recommend using—we’ll write blog posts about them and categorize them all under “Simple Jury Persuasion Rules”. We hope you enjoy them. We know we’ve enjoyed Mark’s excursions into jury selection!
Update: October 4th, 2009. As we’ve begun to identify our ‘simple jury persuasion’ strategies–we have realized there are too many to be categorized as ‘rules’. So we’ve modified old posts and changed the category to ‘Simple Jury Persuasion’.
I can’t hear you!
In the arena of ideas, blather often wins the first round. The question remains open about who wins the fight.
We see it in the current debates and confrontations over healthcare reform occurring in town hall meetings across the country. We see it in the persistent belief demonstrated during the 2004 election that Sadam Hussein was linked to the terrorist attacks of 2001. Or in the “birther controversy” over whether Barack Obama is really a US citizen.
Despite our best efforts to communicate a clear and persuasive story, we are often stymied by confusion, distortion, and disbelief from our audiences. Because of the work we do, we especially see it during our mock trial and focus group research when attorneys listen to deliberations from behind the darkened glass of the observation room, chewing peanut M&M’s in frustration while saying “I didn’t say that! Where did s/he hear that?!”
After fifteen years of chewing our own M&M’s and trying to understand why it is happening in a specific case, we now have research to tell us why it happens time after time. It turns out, that “for the most part, people completely ignore contrary information”. Researchers from four major research institutions labeled this tendency to ignore contrary information “motivated reasoning”.
In other words, like David Duchovny in the X-Files…we want to believe. In the case of the belief that Sadam Hussein was involved in the 9-11 terrorist attacks, researchers say Americans needed to make sense of the Bush administration’s decision to go to war against Iraq. And these believers were not being duped by propaganda. According to the researchers, they were simply trying to make sense of a current reality: we were at war and there needed to be a reason for it.
So should you just throw in the towel if your story can’t penetrate the pre-existing beliefs of jurors? Maybe not. We certainly hope not. We saw this process in action just last week while doing a mock trial where one of the parties was a financial services industry company.
This industry has certainly not had good press in the past few years and the current state of the economy has not helped their reputations. A recent Gallup poll found that only 28% of Americans view these companies positively. In our group of mock jurors, only 20% viewed the financial services industry positively. Yet, after all the facts were presented, jurors grudgingly acknowledged that while they “wanted to blame” the financial services company, the facts simply would not allow it. In fact, the financial services company was the “hero” of the story in jurors’ eyes. They didn’t like it. But they had to acknowledge it. If a financial services company can be the “good guy” in the midst of a banking crisis, there are ways to make people hear what they don’t really want to hear.
Our Rule #1 of Jury Persuasion: There is no such thing as “Persuasion”.
What the most gifted and skilled advocates do is not “persuade”, but rather they craft a story that connects with the strongly held beliefs of jurors. They don’t create arguments, they build bridges between the case and the values of jurors. They make the points of connection more compelling than the points of division. So tell the jury’s story while you tell your client’s story. Help the jury to see that what is most important to them is manifest in a verdict for your client.
They’ll hear you.
In Praise of Coffee: It’s powerful stuff
There have long been rumors about the benefits of coffee (and of course the risks, but this is all about the good stuff). Drink coffee and lower your risk of diabetes, Parkinson’s, colon cancer and dental cavities! And get this, the more you drink the more protection you have. Somehow I missed this study and have been limiting my caffeine intake. New research out this week means those days may be behind me!
I saw a study this week on how increases in the number of Starbucks in a neighborhood are associated with a decrease in crime. The article cites gentrification as the reason. Hmmm. I wonder. I remember the Starbucks shooter but Starbucks is listed as evidence of gentrifying along with ornamental grasses, three colors of paint rather than two on houses, artists and gelato. Starbucks does our neighborhood analysis for us? So, hello Starbucks and neighborhood pride, goodbye urban decay and violent crime?
Another study out this week talks about how hot coffee can influence how much we think we like someone. A new study in the journal Psychological Science shows that we like people more when we’re holding a hot beverage. The authors link this to our use of metaphorical language such as “she gave me the cold shoulder” or having “warm feelings” toward someone. Maybe a café Americano says “welcome” better than a rum and coke.
While it certainly is true that I am much less irritable after I’ve hit my neighborhood Starbucks, maybe it also means I’m less prone to violence and more genial when I’m sipping my favorite (venti skinny vanilla latte) hot drink. But I’m not sure I buy that coffee is that powerful. Still, I’ll pay more attention to my assessments of others when I have a hot as opposed to a cold drink!
I never knew Hitler had three testicles…
The power of language has always been the heart of advocacy. What is also painfully—if not shamefully true is that something stupid or inane can morph into the stuff of “amazing but true” if you say it long enough and relentlessly enough. The lies that surround Obama’s place of birth as well as the incredible ‘death panel’ nonsense should make this obvious, but of course, social science can be counted on to shore up common sense with baskets of statistics. Consider the following:
In 2007, an article was published in the Journal of Personality and Social Psychology titled: “Inferring the Popularity of an Opinion From Its Familiarity: A Repetitive Voice Can Sound Like a Chorus”. In brief, what this study says is that if we hear something often enough, we begin to believe it is true. At that time, this idea was fairly novel. What a difference a few years makes! Now we can know for sure that when you repeat even untrue ideas enough, they become part of the cultural zeitgeist—and are believed without question.
The danger is this: when we hear a phrase or fact often enough, even when it is immediately rebutted/debunked, it increases our likelihood to recall the false fact in the future, but not remember that it was false. Instead, we remember hearing, for example, that Hitler had three testicles but not that the rumor was totally false. Behavioral scientists call this phenomenon “familiarity breeds belief”. And you don’t want to actively confront these beliefs—that can make them stronger. Seed magazine recently published a really nice article on “Death and the Rumor Mill” that is worth reading to see how arguing with these sorts of rumors can actually strengthen them!
So what does this mean for litigation advocacy? How can you undermine the evocative phrases that take on a unique and short-hand meaning due to media exposure?
- Don’t repeat their phrases! If opposing counsel uses a catchy phrase to describe what your client has done, don’t use that catchy phrase yourself! All that will do is reinforce their message. Come up with your own catchy phrase to give jurors the rebuttal to opposing counsel’s message in the deliberation room. Turn “pro-abortion” into “pro-choice”. Transform “inheritance taxes” into “death taxes”. To understand the importance of this more fully, read George Lakoff’s books (“Don’t Think of an Elephant: Know Your Values and Frame the Debate–The Essential Guide for Progressives”, “Thinking Points: Communicating Our American Values and Vision”)
- Can you pull off a ‘Barney Frank’? Probably not. He has a very safe district, so his amazing rejoinder to an offensive town hall attendee was comparable to aggressively attacking a witness on cross exam when it is clear that the jury dislikes him already. It’s risky, but if you have the ability to communicate non-verbal disbelief without being offensive, it’s a strategy worth using. Then you follow-up on cross-examination in a tone making it obvious you find the testimony difficult to believe. To be effective, you need more than simple logic without drama. You challenge an emotional argument with a rebuttal that balances logic and emotion. And preferably incorporates humor.
- Appeal to jurors desire to not be duped/deceived. “This is simply wrong. Opposing counsel is trying to trick you into believing something when the facts show it is simply not true.”
The problems of false rumors masquerading as truth are not likely to disappear anytime soon. But as we see them rising in the media, we can all be practicing ways to rebut or detoxify them. Practice. When similar issues arise in trial, you stand a better chance of reacting effectively. Or employing them yourself.
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