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Archive for October, 2010

If you don’t think litigation advocacy is about selling ideas, stories and yourself (or your client), we invite you to think again! Robert Cialdini is one of those best known for applying marketing concepts to persuasion. A new post by Steve W. Martin at Harvard Business Review’s blogs focuses on what truly effective and persuasive salespeople do and we’re going to translate those tactics into what truly effective and persuasive trial lawyers do. There are three basic tactics used by what Martin calls “the heavy hitters”:

Every customer has his or her own unique language.

In sales: Rather than using the company ‘spiel’, you want to personalize the pitch to the individual customer.

In litigation advocacy: You want to craft a case narrative and present your witnesses and case in chief in a form that resonates with the jurors on your panel. You do this through a combination of pre-trial preparation and careful voir dire and jury selection and then some final tweaking once your jury is seated.

Successful salespeople build rapport through harmonious communication.

In sales: Avoid talking about yourself, focus instead on ‘them’. Learn about their concerns, values, problems and desires.

In litigation advocacy: You are telling a story that reflects the values, concerns, problems and experiences of the venire (and therefore, of your jurors). While you are telling the story of your client (and of their injury, invention, deception, mistreatment, or bad behavior) you are telling that story in a way that draws jurors in and therefore builds rapport.

3. People are persuaded through personal connections.

In sales: You have to make a personal connection in order to get the person to act. That may be done through any number of strategies or even shared experiences.

In litigation advocacy: You make the personal connection through your interactions with jurors over the course of the trial. You do not waste their time. You show them you care about the case. You are direct, genuine, and straightforward. You make them want to right this wrong, correct this injustice, fix this error. In short, you connect with their desire to do the right thing.

Advocacy in litigation has much in common with the persuasion aspect of sales. But what you are selling is a story, a vision of the future if a wrong is allowed to continue, and the duty of the good citizen to respond.


The idea of using a narrative to tell your litigation story is so widely accepted it’s almost surprising someone would research the power of a story But Kenneth Chestek did just that with appellate professionals in his article recently uploaded to the SSRN network.  And what he found is intriguing.

Chestek covers familiar ground in his hypothesis that using a story narrative to “weave a pathos-based appeal into a brief will produce a more persuasive document”. He asserts that this idea is almost true at trial but that judges are not in agreement as to whether briefs should tell a story as well. So Chestek sets out to measure the effect of story reasoning on a judge’s thought process.

“In early 2009, I conducted a study in an attempt to fill that gap. I wrote a series of test briefs in a hypothetical case and asked appellate judges, their law clerks, and appellate court staff attorneys, appellate lawyers, and law professors to rate the briefs as to how persuasive they were. My purpose (which I did not disclose to the test participants) was to measure whether a brief with a strong strand of story reasoning, woven in with the logos-based argument, would be more persuasive than a “pure logos” brief.” –page 8

Chestek gave his briefs (two were strictly factual and two were in story format) to appellate judges, appellate law clerks, appellate court staff attorneys, appellate practitioners, and law professors—95 participants in all. Chestek’s main finding is that, yes, the story form brief is persuasive. But more intriguing is how the persuasiveness of that brief varies by age and experience. In short, the longer you have been doing your job (i.e., the more experience you have at the appellate level) the more persuasive you find the story style brief.

Chestek explains that law clerks were the only group that did not express an overall preference for the story brief. Chestek hypothesizes that these ‘new’ professionals (with less than five years experience) prefer a focus on “the facts” to aid them in helping their supervisors (the judges) identify laws at issue. In other words, new professionals see the informational brief as one that more represents “thinking like a lawyer”.

“Perhaps it is because “the law” becomes familiar and the stories become the “new” information that is interesting and engages the attention of the reader. Or perhaps it is related to the fact that emotional reasoning (the “story strand” of our DNA molecule) evolved in the human brain long before logical reasoning. Perhaps as we mature, we learn to trust our emotional reasoning processes more.” (p 31)

What isn’t considered in his hypothesis is the generational difference that is well documented between Gen Y (the law clerks) and the Gen X/Baby Boomer lawyers and judges.  We have written exhaustively on the subject, and can tell you that the difference between generations can explain the difference just as well.  As a member of one of these older groups who reads hundreds of pleadings, motions for summary judgment, and appellate briefs every year, I know how much more I look forward to reading those written in story form.  My kids would probably tell me that they wish the author would cut that stuff out and just explain what needs to be shared.

This gives credence to the old advice to “know your audience”. If you are speaking (or writing) to a professionally “newer” group, you may want to use a more stream-lined and factual approach. If your audience is more experienced, a story narrative may be both more interesting to them and more persuasive.

Chestek, K. (2010). Judging by the Numbers: An Empirical Study of the Power of Story. SSRN:

Chestek, K. (2010). Judging by the Numbers: An Empirical Study of the Power of Story

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Hard to be a woman? The beat goes on….

Monday, October 25, 2010
posted by Rita Handrich

If you like to keep track of such things, we’ve written a number of times on how it’s hard to be a woman. Tammy Wynette did the original (although it’s better if you don’t listen to the lyrics too closely) and the hits just keep on coming!

You may remember the controversy around Clarence Thomas’ nomination to the Supreme Court. If we had been blogging then, that would have been an entry in this series. But now, a different woman is in the news with now Justice Thomas. His wife. Virginia (Ginni) Lamp Thomas is active in national Tea Party leadership and this causes consternation from some. Should a Supreme Court Justice wife be allowed to go this route? Would we respond the same way to the husband of a supreme court justice, or just a wife? [We are not commenting on her recent phone contact with Anita Hill.]

Even training programs in female leadership send mixed messages. A Harvard Business Review blog post decries the tendency to over-focus on woman leader as superwoman (an unreasonable model) and the constant focus on the woes of women in leadership. They call for disrupting stereotyping while acknowledging we sure aren’t there just yet.

And Miller-McCune reports on women in high-profile but non-gender typical careers. The good news is that your choice will be respected and you will be accepted in that role. The bad news (yes, there is bad news) is that you better not make a mistake or you will be judged incompetent. According to the lead researcher, “those who buck accepted norms are given only a limited opportunity to succeed”. [This unforgiving reaction happens to both men and women who seek careers inconsistent with traditional gender roles and is doled out by both male and female observers.]

It’s no wonder some women are drawn to a new video game called “Hey Baby” that allows them to respond violently to sleazy come-on’s and street harassment.

Brescoll VL, Dawson E, & Uhlmann EL (2010). Hard Won and Easily Lost: The Fragile Status of Leaders in Gender-Stereotype-Incongruent Occupations. Psychological science : a journal of the American Psychological Society / APS PMID: 20876882


I swear there are times when simply reading a research report gives me chills. This is one of those times. We’ve written a lot about making your client more “like” jurors. In our posts on witness preparation you will see a lot of thoughts about making witnesses relatable to jurors without pandering to them.  It’s a good thing. It helps jurors see your client (who may seem different from them) as more similar to them than they may have realized. And we’re seeing just how powerful the concept of “that person is ‘different’ than me” is in recent research. So, generally it’s good to build a bridge between your client and the jurors themselves. Ahem… [drumroll]  Even when your client has done very, very bad things. (This is where the chills come in.)

Gino & Galinsky (2010) found that feeling similar to someone who has been selfish or dishonest led participants to “vicariously justify the actions of the wrongdoer and to behave less ethically”. Further, the ‘badness’ of the acts will be downplayed and framed in the participants’ mind as legitimate.

In other words, you can cause the morally upright to see how they are also capable of straying into serious errors of behavior.  Or as some of us pondered during the Carter administration, “who among us has not sinned in their heart?” Gino & Galinsky describe it a bit differently:

“a psychological connection to another individual who engages in selfish or dishonest behavior, however subtle, creates distance from one’s own moral compass.” (p 7)

One would think the implications for criminal defense attorneys are straightforward. Be subtle about it, but you will want to draw parallels between your client and the jurors.  Obviously, don’t suggest that another person would have acted the same as he or she did, but build a bridge that they can relate to. Identify shared values of family, community, church, work, whatever you have. Attribute your client’s bad behavior to situational (i.e., external) factors rather than to character. Give the jurors a reason to discover in your client a person that they recognize, which allows them to recognize the humanness in their accused behavior.

There is also a ‘recovery dynamic’ for criminal prosecutors and civil defense counsel. Despite study participants’ willingness to embrace the bad actor with whom they felt a kinship—when they were observed by those who challenged their beliefs, the results reversed.  [My Dad is a minister who was very well liked for his sense of humor and joviality, but he was never invited to parishoners New Years Eve parties.  I mean seriously—who wants to walk the line of drunk and inappropriate behavior with your moral arbiter looking on?  To their credit, my parents never took it personally.] In essence, when participants in this study became aware that they were being watched by ‘outsiders’, they behaved ethically and honestly. We’ve written about raising the “flag of self-awareness” before. When defense counsel makes the bad-acting client similar to the jurors—opposing counsel can negate that connection through strategic questioning of other witnesses. Opposing counsel can address the similarity in closing. “You may have been angry too but I would guess most of you have not embezzled from your employer.”

Defense counsel wants to underscore similarity and psychological identification. Prosecution wants to invoke the “flag of self-awareness” to ensure the voice of “the other” is present in the deliberation room.

This is a powerful piece of research, and worthy of thoughtful study. We hear so much about moral psychology research. While it is not accurate to call this “immoral psychology research”, it is fascinating to see how persuasion works to draw even the innocent to the lure of the dark side.

Gino, F. & Galinsky, A. (2010). When Psychological Closeness Creates Distance from One’s Moral Compass. SSRN.

Gino, F., & Galinsky, A. (2010). When Psychological Closeness Creates Distance from One’s Moral Compass SSRN


Should you try online jury research?

Wednesday, October 20, 2010
posted by Rita Handrich

I mean really. How do you know who is out there as your sample mock jury? There are a number of companies offering online jury research these days. And, as they say, it’s cheaper, it’s fast, and it gives you a window into the potential reactions to your case. Obviously, we have some bias about online jury research as opposed to participants you can actually see and speak to (and who wear clothing).

We have concerns with online jury research about recruitment, making sure participants have never done a legal discussion group before, being able to make sure they are all paying attention, underscoring the importance of confidentiality, ensuring the group truly does represent the venire, being able to identify the outlier through visual as well as verbal and written responses, and so on. The very best online researchers go to substantial efforts to make it more likely that jurors aren’t watching television or playing beer pong while they are watching the presentations on-screen, but you can’t be sure.  Heck, even when mock jurors (or real jurors) have the world watching them they doze off or become distracted. We just think you get a better sense of the ‘why’ in person, in addition to the ‘what’ you get in responses to written questionnaires.

And (we always like it when this happens) we have some research to further encourage you to think again when considering only on-line research for an important case. A recent study featured on the Research Digest blog examined (using software) what behaviors questionnaire responders engaged in while they were completing online questionnaires.  They examined how often users completed items too quickly, how often they clicked through to other pages, and multiple other extraneous movements by tracking the mouse movements of the online participant. (Which is sort of creepy.)

The researchers summarize the results this way: “We found that only 10.5% of participants showed more than five single behaviors with a highly negative influence on data quality in the whole online questionnaire (out of 132 possible single behavior judgments).” 10.5%. It isn’t bad. But you don’t know who that 10.5% are and that is bad.  And as far as the research is concerned, you can’t know whether filling out an online questionnaire requires the same sort of vigilance as is required to watch and evaluate 2 or 3 hours of case presentations and testimony. We’re sure the online jury research trend will continue, so we offer this advice:

Know what you are paying for and how participants are screened/recruited.

Know how often they are being used.

Know the backgrounds of the people running the business.

Know as much as you can because you won’t be able to see any of your participants and that leaves a big question mark for us as to the reliability of the themes you’ll receive from the investment in time, energy, and money.

Sometimes the faith you put into research results is weighed by the credibility of the research environment.  With online research, the ‘virtual courtroom’ might be someone’s bedroom, living room, or their favorite Starbucks.

Stieger, S., & Reips, U. (2010). What are participants doing while filling in an online questionnaire: A paradata collection tool and an empirical study Computers in Human Behavior, 26 (6), 1488-1495 DOI: 10.1016/j.chb.2010.05.013

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