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Archive for April, 2010
Communication is essential (and fraught with missteps)
Most of us have had the experience of thinking we were communicating well and then discovering that the other person was ‘hearing’ it along completely different lines than we were intending to communicate. A recent study found, shockingly, that there is not even consensus in the definition of what we mean when we say we “had sex” (apologies to Bill, Hillary, and even Monica). If we can’t communicate clearly about whether we “had sex”, we really need to pay attention to how we communicate about less engaging topics.
Legal Crisis Strategies recently posted about the need for attorneys to learn basic ground rules for talking to reporters. This is really important information—it’s all about understanding the language and phrases so you know how what you say will be used (or not used). They refer to four ‘voices’: on the record; on background; deep background; and off the record. But they go further and explain what you might say in any of those situations. It’s terrific information.
Another recent example of the importance of communication comes from PsyBlog’s post on the power of simplicity. They describe 8 different studies on simplicity but what is interesting is that all of them can be thought of as describing communication.
- The lessons are to keep it simple (studies 1, 3, and 8);
- to rename (assign a ‘nickname’ to) hard-to-say products or companies (studies 2, 4, 6 and 7); and
- to consider how you might use hesitation to best effect with jurors (study 5).
Improving your courtroom communication (as well as your other professional and personal communications) is an important goal for all litigators. Use these two resources as a good place to begin.
Simple Jury Persuasion: The Alpha Strategies
Today’s is a long post. Get a beverage.
We’ve blogged before on alpha and omega strategies in persuasion but want to take a bit more time to explain the differences between the two strategies. This week, our Simple Jury Persuasion tip focuses on the alpha strategies in persuasion. Alpha strategies are a direct form of persuasion where the goal is simply to entice the listener to join with you on the particular topic. The following are among the most common alpha strategies—you’ll see familiar ideas here—but applied to the courtroom rather than to sales (the most common forum in which these principles are taught).
Make messages more persuasive (create strong arguments)
We’ve written almost 30 posts on increasing message persuasion thus far—so this isn’t a short answer. Read through our posts on simple jury persuasion and remember to make your case story vivid, emotionally appealing and, where appropriate, use humor.
Add incentives (“inducements” for compliance)
Most jurisdictions will not allow you to slip jurors extra cash or even chewy chocolate chip cookies. But you can let jurors know that you respect and like their willingness to participate on the jury and that you see their thoughtful consideration of the evidence positively. In other words, communicate that you respect and like them. Recognition, admiration and respect are powerful inducements.
Increase source credibility (make the source more expert or attractive)
This refers to you, your witnesses and your client. See our blog posts on witness preparation for insights on preparing your witnesses and your client. We also have multiple posts on presenting yourself (for example, here and here and here). You also want to pay attention to how you present your expert witness. Overall, pay attention to a unified and credible presentation for everyone involved in your case.
Provide consensus information (show that many, many people are doing it, thinking it, wanting it)
This can be tricky in the courtroom setting. You can imagine a statement like “all my past jury trials have resulted in acquittals” would not go over so well with either your opponent or the judge! You can use this concept to talk to your expert witness during their testimony. Ask them to talk about alternative hypotheses to their testimony (for example, the opposing side’s expert witness position) and have them address why the opposing expert’s ideas are not the consensus of the scientific community. Or, if the opposing expert does represent the consensus opinion, have your expert talk about why that consensus opinion is in error, or how it doesn’t fit the current picture.
Emphasize scarcity (few opportunities, few products, scarcity makes products more attractive)
Another tricky concept to use in the courtroom. Focus here on your appreciation for the juror’s time (see strategy #2) and let them know you will present your case as briefly and concisely as possible. Their time is scarce, but in a hurried world, so is vigilant thoughtfulness and careful consideration. You are asking them for the trial trifecta—time, attention, and integrity. You know they can deliver, and you appreciate it. You want to be careful about encouraging them to deliberate briefly—as time pressured deliberations are more likely to result in shortcuts (such as using stereotypes for processing information) in the deliberation process. While there are times your case will benefit from what is called heuristic processing, it’s a risky business.
Engage a norm of reciprocity (small favors from you obligate the recipient to return the favor)
Small favors in court can be many things. It is seen in asking the judge to allow a bathroom break, or noting you are trying to make technical information ‘make sense’ because you found it confusing when you first heard it, or self-effacing smiling with the jurors when they laugh at something you did (or forgot to do). Reciprocity can be enhanced if your likeability and consideration for jurors is enhanced. Perhaps their reciprocity to you comes in the form of repeating your case themes in the jury room. Who knows?
Emphasize consistency and commitment (create small actions or reframe target’s prior actions to seem consistent with the requested behavior)
Getting jurors to commit to a small action is an effective way to get them to comply with a later request. So, for example, getting them to commit to hearing the whole story before leaping to judgment in voir dire can make them more likely to deliberate carefully if you request that in your closing statement.
These 7 alpha persuasion strategies are ones you can employ over and over again in the courtroom but they do require some planning up front in terms of how you are going to use them/incorporate them into your case presentation. Our next Simple Jury Persuasion post will be on the omega strategies (indirect, resistance-reducing techniques) and how you can use them in the courtroom.
Knowles, E. and Linn, J. (2004). Approach-Avoidance Model of Persuasion: Alpha and Omega Strategies for Change. In E. Knowles & J. Linn (Eds.). Resistance and Persuasion (pp. 259-282): Lawrence Erlbaum Associates: New Jersey.
You can stop smoking and lose weight without much effort at all!
Science should make life easier for all of us. And this time, maybe it has (or maybe not). Neuroskeptic has a post on how to stop smoking that they distill down to two words of advice: “Don’t start”. They go on to discuss the reality that most smokers who quit (75%) do so without assistive aids or programs. They simply quit on their own, without assistance. And that’s hard. Smokers who quit have a 75% relapse rate (which is the same rate as recovering alcoholics and heroin addicts).
Another report offers a bit more practical advice: think abstractly. PsyBlog describes recent research by Fujita & Han (2009) who found that if participants engaged in ‘why’ (abstract thinking) to do something rather than ‘how’ (concrete thinking) to do something (like maintain relationships or lose weight), they were more successful in resisting temptation.
The application to litigation advocacy is simple, both in terms of what you tell yourself and what you tell others:
- Jurors don’t want to rush through deliberations to avoid rush hour traffic. They want to carefully assess the evidence to ensure justice is done.
- You don’t want to non-verbally react like a snake about to strike when opposing counsel pulls a fast one. You want to communicate a sense of capability and likeability to the jurors and so you prepare internally (in advance) to have a “there s/he goes again” non-verbal response and look quizzical and shake your head before you object. The head shake could draw a side-bar objection, but the occasional offensive foul is crucial to a win (please forgive a basketball analogy—March Madness has yet to vacate my brain).
- Expert witnesses don’t ‘want’ to impress jurors with how accomplished and smart they are in their specialty area. Instead, they need to remember the goal of their testimony: To educate with sincerity and clarity. That’s why they were asked to testify.
You can also (naturally) use this idea to lose weight or stop smoking by focusing on the goal of increased health and lifespan rather than calorie counting or how wonderful it would be to have just one cigarette. Up to you!
Civility at work, at school, and in the courtroom
Civility has become a popular topic for researchers, business owners and human resources personnel. We know that uncivil or rude behavior at work causes stress and other physical ailments for employees.
Now, however, we are seeing that even just witnessing the rude behavior of others can harm you even if you are not the target. It’s also bad for business. Customers who see rude behavior between your employees don’t like it and they evaluate your business negatively both in the short-term and the long-term.
These issues do not only affect workplaces. They affect juries and they affect the courtroom. From reports of gang signs in the Astor trial jury room intended to intimidate a juror to a juror throwing a chair in the Fosamax trial to deliberations “turned poisonous” in the Tyco trial– it is apparent that uncivil behavior is commonplace.
Judge John DiMotto writes the Bench and Bar Experiences blog and talks about the judge/jury relationship in its many facets. He sees it as the judge’s responsibility (as courtroom host) to encourage juror civility. Judge DiMotto says the judge should not only talk to jurors about not discussing the case amongst themselves until deliberation and that they should not do internet research. He expects judges to go further and talk to jurors about how to deliberate civilly and just what that means in terms of behavior. When judges set a high bar for courtroom behavior, and jurors see civility between the attorneys during a trial, they can take that behavior forward in the jury room. If more judges did what Judge DiMotto does, perhaps we would see fewer flying chairs, gang signs and “poisonous” deliberations.
[Note: Dr. Handrich has presented workshops on “Workplace Civility” to thousands of participants and is an expert in this area—DK]
Simple Jury Persuasion: Use pre-factual thinking to your advantage in litigation
Many of us know about counter-factual thinking and use the story model as a guide to help us disrupt juror tendencies to engage in counter-factual thought (i.e., “if only she’d gotten a second opinion”). Counterfactual thinking results from hindsight bias (the tendency to believe events are more predictable than they actually were in the moment). You can also, however, use ‘anticipated future regret’ as a persuasive device with jurors.
This is called ‘pre-factual thinking’. If counter-factual thinking represents thoughts such as “if only he’d taken his usual route to work”, pre-factual thinking is represented by such thoughts as “what if I find it cheaper somewhere else?”. In essence, you would have jurors consider their own future regrets as to any decision they may make:
- “No matter what number you choose for future healthcare needs, you’re going to get it wrong. Because no one can be sure. So the question becomes— ‘Which mistake would I rather risk?’ Would you rather risk that [plaintiff] has a bit more money than necessary to provide medical care, or risk that the money runs out too soon, and she lives her last years in poverty?”
- “This is a small business with a really good idea stolen by their competitors. Would you rather tell them ‘too bad’ and end their efforts, or reward their creativity and encourage additional development?”
- “This company is huge. You’ve all heard of them. Most people have purchased their products. Will you feel better about rewarding a plaintiff going after ‘deep pockets’ or helping a large business keep providing the products we all use at a reasonable price?”
Think about how you can present rhetorical questions to the jury to evoke concerns about future regrets. Pose questions to witnesses that allow them to address potential ramifications of one choice over the other. Use closing statement to again cue the specter of future regrets. Tell your story effectively. Help jurors consider the impact of their choices.
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