Tips

Social Science and Trial Lawyering
By: James Edward Maloney

I am an avid reader of trial blogs—anything that deals with the art or science of persuasion, or bears upon the effective presentation of messages to juries.  There are a number of interesting blogs around, and I routinely circulate articles I find interesting to the younger trial lawyers at my firm.  Many of these blogs may be found in the ABA Journal Blawg 100, which lists the top 100 legal blogs each year.  One of my personal favorites is Persuasive Litigator (www.persuasivelitigator.com).  Two recent articles, both authored by Dr. Ken Broda-Bahm of Persuasion Strategies in Persuasive Litigator, caught my attention and form the basis for this article.  The first dealt with confirmation biases—the tendency to seek out and to selectively remember information which confirms our own beliefs.  The concept itself is not a new one, but looking at its influence on how we, as trial lawyers act, is.

Dr. Broda-Bahm looks at three scenarios where we need to be particularly attentive to our own needs for affirmation.  First, he looks at the design and presentation of mock trials.  In principal a mock trial should objectively test the assumptions you have made about your case, its strengths and, more importantly, its weaknesses.  The results should assist you in more precisely tailoring your message.  But all too often, lawyers stack the deck.  For example, using the lead attorney to argue your client’s position and leaving the opposite side to a less experienced, less knowledgeable lawyer tilts the field in favor of your client’s position.  Similarly, the use of “best-case” assumptions as to what evidence will and will not make it to the jury can limit the usefulness of the results.  It is far better to assume the worst case.  Finally, using your professionally-prepared demonstratives, and leaving the opposition lawyers to scramble for make-shift props, is another way to create imbalance.  Each tilts the field in favor of our own biases and consequently, skews the results, limiting or eliminating in full the purpose of the exercise.

Design issues aside, listening to the mock jurors—all of them—is critical to gathering objective responses to your themes.  Too often, we dismiss those whose statements, views, or questions do not reflect our own biases.  If we are objective, allow ourselves to be open to suggestion, we will do much more to advance our client’s position in the long run.

A second area where confirmation bias can be outcome determinative is with potential witnesses.  Our impression of how good or bad a potential witness will be is often founded on the basis of a few conversations which are not necessarily predictive of how they will perform on the stand.  The trick is not to turn that early judgment into a self-fulfilling prophecy.  First impressions may not be the best basis upon which to decide to use or not use a particular person as a witness.  That decision is better made after you have more information.  Here, as always, it is important to be open-minded and objective.  Focus on hands-on practice, encourage the witness to be his or herself, and then evaluate whether or not to use the witness.

Jury selection, which Broda-Bahm described as “a classic case of making judgments under pressure,” also provides a number of opportunities to miss important information, if you are inclined to hear only what confirms your own biases.  The use of stereotypes, or the “idiosyncrasies of past experience,” frequently leads to poor selection choices.  Questions designed to affirm pre-determined biases add little to our ability to select qualified jurors.  We need to train ourselves to listen—a talent invaluable to any trial lawyer.  Questions about the ability of a juror to follow instructions are a classic example of asking for confirmation bias.  Of course they are going to follow instructions, and what answer do we expect when we ask: “Can you be fair?”

Another article which caught my attention dealt with the notion of “entitlement” and its impact on witnesses.  Witnesses, as Dr. Broda-Bahm writes, often speak “… across a gulf of class and wealth when testifying.”  I would add education and experience to the list.  Each should be addressed in preparation.  One cannot re-make a personality and nor should we attempt to do so—far too many witnesses fail to persuade because of their lawyers’ inability to give up their own need to control, creating little automatons with no persuasive ability—but we need to recognize what juries look for.  Hearkening back to confirmation bias, juries seek common ground.  They play up the similarities to their own experiences, dismissing those which do not fit.  Meaningful witness preparation involves thinking about and addressing the cultural and educational distance between the witness and the intended audience.

Looking at the other side of the equation, you also need to deal with entitlement from the witness’ perspective.  Position or privilege may lead him or her to expect, consciously or unconsciously, to be held to a different standard of conduct than the ordinary person.  Even a hint of privilege is perceived as arrogance by juries, and is a killer with any right-minded juror.  Any successful witness preparation needs to address the self-justification, the self-serving positions routinely adopted by witnesses, and to communicate clearly that the witnesses and the jury are using the same standards to measure their conduct.

As the number of opportunities to “learn on the job” constrict, I encourage young lawyers who want to actually try cases to avail themselves of the mass of information about personality and persuasion available to us on the Internet.  The social scientists have much to offer that is useful in developing our cases and tailoring our messages.

James Edward Maloney, Partner - A trial lawyer, Jim has tried well over 100 cases to jury and bench verdicts across the nation. He routinely defends individual, derivative, and class action claims against business institutions and their directors related to public and private securities transactions. He frequently represents special and conflicts committees in connection with majority/minority transactions and interested party transactions. Beginning with T. Boone Pickens and Mesa Petroleum in the mid-1980s, he has both prosecuted and defended against hostile acquisition attempts. He represents clients before the Securities and Exchange Commission and the Federal Trade Commission. In addition to his securities/transactional work, Jim has successfully handled a wide array of commercial disputes involving various industries, including matters related to contracts, trademarks, trade secrets, taxation, estate matters, healthcare, antitrust, ERISA, noncompetition agreements, tortious interference claims, and executive/employer disputes. Jim is profiled as a leading lawyer in securities and commercial litigation by The Best Lawyers in America (2001-present), Benchmark Litigation (2013-present), Chambers & Partners USA (2007-present), The US Legal 500 (2015), Texas Super Lawyers (2003-present), and other ranking bodies. He was named Securities Lawyer of the Year for Houston by Best Lawyers in 2013. Jim earned his J.D. from Harvard and his B.A. from Yale.