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Archive for May, 2010

A recent paper published in Psychology, Public Policy and Law investigates just how accurately U.S. lawyers predict case outcome. The news isn’t good. Attorneys are over-confident in their predictions across the board.

This does make sense since you need to believe in your case in order to advocate effectively. Yet, having a better sense of potential outcome would be of obvious benefit in case selection. The outcomes from this study are varied:

  • Lawyers were extremely over-confident. This was true for defense attorneys as well as prosecutors and attorneys on both sides in civil cases.
    • Oddly, years of experience did not improve the likelihood of accurate prediction—although there is some historical evidence that having a niche specialty area does improve predictive accuracy to some degree.
  • Lawyers representing defendants in criminal cases involving victimless crimes or crimes against property were more accurate in their predictions of case outcome.
    • The authors hypothesize that in these cases (with less ambiguous fact patterns) the attorneys are relying more on objective rather than subjective factors in making predictions.
  • Gender makes a difference. Male attorneys were more over-confident than female attorneys. Thus female attorneys had better outcome predictions.

The authors suggest implications for lawyer-client relations, case management strategies, court efficiency, and lawyer training and education. However, none of the experimental manipulations were successful in improving the accuracy of case outcome predictions.

There are several take-aways from this research—although we look at different things than the authors do!

  • As you consider whether to take on a case, look at the objective facts. Do not be blinded by the sex appeal of a case, how much publicity it will bring you, or how good you will look in that brown shirt and tie (the one that brings out your eyes) on television. What are the facts—good and bad? The more you want to take on a case, the more you need to stop and consider the objective data.
  • If you are male, have a female colleague. Consult. Consider her cautionary input. Go over the objective data with her. Remind yourself (when you want to argue) that she is likely to be more accurate than you in prediction and try to see her point of view.
  • Consider the idea of pre-trial research.  Well-conducted concept or ‘discovery’ focus groups offer a more objective opportunity to see how the facts affect decision-making, instead of attorney persuasiveness and argument.  If not pre-trial research then consider the idea of talking to an experienced trial consultant for an hour or two. Get their perspective. It’s different than yours. (Remember the Bay of Pigs…).
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    My first car was a 1968 Volkswagen. Robin’s egg blue. Twelve years old when I purchased it and lovingly restored by a retired man who brought it back to like new condition. Bad defrost system. Non-existent air conditioning. Way fun to drive. I loved that car. Mainly because it was my first.

    Volkswagen played up the ‘ugly’ VW in their ads. They pointed out that it was not beautiful like other vehicles. They focused on safety and quality control. They turned the weakness (“it’s funny-looking”) into a strength. One of their slogans was “Ugly is only skin deep”. They giggled at the lack of beauty and played up fuel consumption, price point, German engineering and quality. It worked. VWs were everywhere.

    You can put this idea to work in litigation advocacy. Part of the reason VW advertising was so persuasive is that they identified weaknesses first. They were therefore seen as modest, honest and trustworthy. The idea has actually been examined in the context of litigation advocacy. Back in 1993, Williams, Bourgeois and Croyle looked at what happens if you expose a weakness your opponent will expose given the chance. They called this ‘stealing thunder’. What they found was that if you raise the bad fact yourself, it plays well for you. If, on the other hand, you let your opponent raise the bad fact—it has twice the impact. Jurors see that you did not tell the whole truth—they do not like you as much and they certainly do not trust you.

    So be brave. Get out in front of your bad facts. Turn that weakness into the strengths of likeability and trustworthiness.

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    Recently, ABC Radio’s The Science Show had a really terrific presentation on the Dunning-Kruger effect. They begin their broadcast with the story of the bank robber who rubbed lemon juice on his face thinking it would make him ‘invisible’ to the bank cameras. He was totally stunned when it didn’t work.

    The Dunning-Kruger effect is essentially this: the more incompetent you are, the more inflated your perception of your own talent in that area! And perversely, the competent under-estimated their competency. “The idiots get smart while the smart get modest”.

    We see this routinely in pre-trial research when group members take a small bit of knowledge and assume ‘expert status’. If no one questions their knowledge and they present well, a single ‘expert’ can derail your case.  That’s why it’s essential that you teach jurors clearly and thoroughly about the essential details of your case.  In highly technical cases such as patent disputes, it is often the shade-tree mechanics that are certain, while engineers and scientists presume far less.

    There is some good news in the Dunning-Kruger effect. You can lessen the impact of the ‘self-appointed expert’ in the jury deliberation room through educating all the jurors. The incompetent do become more aware of their incompetence once they become more competent, but they need to be provided information that will carry them from their initial posture to a more informed position.  They will be equally emphatic either way.  Even if they refuse to consider your evidence other jurors will take it in and have information to discredit the (not-so) ‘expert’.

    So if you find yourself feeling totally confident about a case—you may want to back up a bit and see where the narrative holes are for the average listener. Find out what questions your story elicits and then prepare your case accordingly.

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    I’ve been editing The Jury Expert since we turned it into a digital/on-line publication in May of 2008. We’ve gone from a struggling print publication with fewer than 500 readers to a highly anticipated publication with more than 23,000 readers per issue. The May 2010 issue has just uploaded and you might want to take a look at some of these pieces—all freely accessible, 24/7/365 and designed to improve your litigation advocacy.

    Atticus Finch Would Not Approve: Why a Courtroom Full of Reptiles Is a Bad Idea

    by Stephanie West Allen, Jeffrey M. Schwartz, Diane F. Wyzga

    This article questions the widespread acceptance of the ‘Reptile Theory’ and proposes an alternative to instilling fear in jurors. Four trial lawyers respond. Don’t miss the comments at the end of the article—a real discussion is taking place as to why or why not this model is a good one to embrace.

    The Shrinking Strike Zone: Avoiding Problems During Jury Selection in the Age of Batson

    by Sean G. Overland

    Here you’ll find an overview of the Batson decision and a comprehensive look at new rulings that modify how we need to think in terms of Batson challenges. Recommendations for attorneys and trial consultants are included.

    The Biggest Bully In the Room

    by Trisha Renaud

    We’re hearing numerous stories about juror intimidation in the deliberation room. Here those stories are reviewed and recommendations made for minimizing such experiences.

    Less Bad News: What Defense Advocates Can Learn from the Duke Lacrosse Case

    by Robert M. Entman and Kimberly A. Gross

    Two journalists discuss media issues surrounding pre-trial publicity using the Duke lacrosse case as an example. Three trial consultants provide reactions and further frame the article in terms of litigation advocacy.

    Beneath the Robes and Behind Closed Doors: Why Supreme Court Justices Behave as Jurors

    by Ryan A. Malphurs

    A look at how Supreme Court Justices make decisions and applying sense-making theory to help frame their decision-making processes.

    Does Jury Size Still Matter? An Open Question

    By Jill P. Holmquist

    A review of how jury size has been determined and modified over the years and a call for discussion of whether jury size should remain at 12, drop to six, or whether it matters depending on case and venue.

    If They Don’t Like You, They Won’t Hear You: An Essay on Persuasive Communication

    by Steven E. Perkel

    Looking at persuasion through the frame of attorney likeability. What would Aristotle say about persuasion and likeability? How about Justice Scalia? (Yes, Scalia.)

    Courtroom Nostalgia: The Rural American Courthouse

    Just for fun. Trial consultants recall rural courthouses with sometimes violent histories but where metal detectors still do not exist.

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    Sometimes you just have to have quick tips that help you FAST when you need it most. With that in mind, we present three recent research findings to aid you in trials for years to come.

    Is that juror blinking?

    You want jurors to pay close attention to your case. A recent study finds that when our minds wander (as in, we are not paying attention) we tend to blink more frequently. So if your jurors begin to blink more frequently, do something novel. Surprise them!  They’ll pay closer attention.

    Use babies

    But only if you want to boost altruism. If you want the jury to award money to your deserving client, baby pictures are your friend. If you want the jury to not give the greedy plaintiff a dime, baby pictures are the last thing you want in the courtroom. Why? Photos of babies appear to kick start caring feelings in us. We identify more with the person who has the baby. Or grandbaby. Or who is holding a baby and looking loving and happy. It could be anybody’s baby. But if you want to increase the likelihood of an award for your client—a picture of them with a baby is a good idea.

    Keep those exhibits on the left!

    Finally, you want to keep any exhibits to the left of the jurors. Recent research with more than 60,000 participants shows that we tend to remember things more (in the short-term) when they visually appear on our left. So line up your exhibits on the left of the jury box (while casually relocating opposing counsel’s exhibits to the right).

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