Beware the Bias for the "Safe" Call in Case Assessment

October 30th, 2014 by

By Dr. Ken Broda-Bahm: 


The 2014 World Series ended yesterday in a 7th game win by the Giants. The game had some recalling the last time the Royals were in the World Series: 1985, where an infamous blown call by the umpire in game six led to a Royals win in game seven. Those are the calls that umpires desperately want to avoid. And recent research shows the lengths they will go to avoid them. A study discussed earlier this week by NPR social science correspondent Shankar Vedantam demonstrates statistically that Major League Baseball umpires fear blowing big calls and have a bias toward making calls that preserve the status quo in any given game. The study is the work of Stanford Business School Ph.D. students Etan Green and David Daniels (2014) who take a surprisingly detailed look at more than a million calls made by 75 Major League umpires and notice several biases, one of the most interesting focusing on a conservative tendency toward safer calls. Etan Green explains, “If you’re an umpire and you’re unsure about what the correct call is and you’re given a choice between one call that’s particularly consequential and one call that’s relatively inconsequential, they will more or less preserve the status quo.” And interestingly, the higher the profile of the game, the greater the associated bias. 

Of course, that’s baseball and not litigation. But attorneys are often in a similar position of calling the balls and strikes that relate to the strengths and weaknesses of the case. Given that case assessments can carry stakes that are as high as a seventh game in the World Series, these calls can fall victim to the same conservative species of bias. If a case trajectory is heading in a particular direction, toward trial or toward settlement, could there be a tendency to make case assessments that align with that trajectory? The study discussed by Vedantam doesn’t say that, of course, but anecdotally, I believe the answer is at least sometimes “Yes.” This post shares some thoughts on practices that can lead your case assessments away from the safe calls and toward the more accurate calls.  

Don’t Set Up Your Case Assessment to Confirm the Status Quo

Chances are you think you’re right. Your facts are good, your arguments are strong, and justice is on your side. That belief in the virtue of your own position that often — not always, but often — accompanies trial work is part of what encouraged the client’s choice to litigate, and is part of what makes you a good advocate. So don’t set aside confidence. But do try to avoid a couple of traps that can lead you to a “safer” case assessment that essentially confirms the status quo of what you already believe. 

Avoid “The Advocate’s Assessment” 

It’s only natural to turn to the person closest to the facts and the day-to-day preparation when you want an understanding of the up-sides and the down-sides of your case. But that clear-eyed assessor ends up being the same person you expect to be the passionate advocate: the lead counsel. Many can be exceptionally objective on that score, and some end up so focused on the other side’s position that they naturally bend in that direction. But more often, I see advocates who have come to believe in their case so fully that they can no longer be completely objective about it. A kind of ”vicarious entrapment” has occurred, where they have come to identify with the client’s interests and to see the case through the same lens. The perspective of lead counsel is vital, but as a hedge, bring someone else into the assessment picture: a co-counsel, a consultant, or another uninterested attorney.  

Avoid “The Loaded Mock Trial” 

Because you are in control of the mock trial, it is pretty easy to load the research project with the facts that work best for you: Your best exhibits but not theirs, your demonstratives but not theirs, your preferred theme but no comparable theme from the other side. In addition, another far too common practice is for lead counsel to present its own side in the mock trial while a far less experienced co-counsel or an associate stands in for the other side. Those practices set the research project up to confirm what you already believe: Your side is stronger. A better practice is to make sure that you are giving the other side every benefit of the doubt, providing them with the strongest version of their case you can muster, and breaking all the ties in their favor. 

Instead, Design Your Assessment to Reveal the Unexpected

You can substantially improve your own case assessment by running a good mock trial — one that follows a solid set of best practices. Beyond that, there are a couple of other considerations for keeping your case assessment out of the “safe” zone of confirming current expectations. 

Aim for a Diverse Team

Groupthink can affect any close working team. Within a trial team, that groupthink can continually reinforce the perception that “we’re right, and they’re wrong” and foster unrealistic expectations of your strengths and weaknesses. A diverse team is less likely to fall into that kind of lock-step, and more likely to bring a diversity of views. So when you are putting your team together, think about broadening your group in a number of different ways: Do they have different backgrounds, or different levels of experience with the case? Are you getting a fresh perspective from time to time from someone who has been less involved? 

Aim for an Open Dialogue

Particularly on the subject of sharing the strengths and weaknesses of your case, it also has to be okay to share dissenting views. Research also supports the principle that active disagreement leads to better decisions in the long-run. So it has to be an option to fight within your trial team as long as you are able to hear those disagreements out and resolve them. You don’t want to just attend to the consensus, or just hear the opinions of those who are most experienced, you want to hear as many opinions as possible. You should strive to create conditions for a creative trial strategy. “Out of the box” thinking is often praised in principle, but shunned in practice. That causes teams to act like the nervous umpire and to err on the side of making calls that maintain the status quo of current expectations. Consciously preserving an open dialogue and paying particular attention to disagreement can guard against hasty conclusions, unrealistic assessments, and a host of other bad calls.


Other Posts on Case Assessment: 


Green, E., & Daniels, D. P. (2014, February). What does it take to call a strike? Three biases in umpire decision making. In 8th Annual MIT Sloan Sports Analytics Conference (p. 8).

Image Credit: Shutterstock, used under license

Microsoft OneDrive Goes Unlimited

October 30th, 2014 by

Some time ago, I covered several of the most popular cloud files storage apps. Since that time, as the reliance upon cloud-based file storage has pushed the limits of bandwidth (to transfer all of this data), Dropbox has upgraded their Pro account to 1TB (that is 1000 gigabytes). YouSendIt has added nice features, including a convenient personal upload page link that others can use to send you files.
OneDrive(Microsoft) came out with a full terabyte about the same time as Dropbox, keeping them running head-to-head with Dropbox in the capacity department. Although Dropbox is still the cloud-storage provider in direct connectivity to numerous mobile apps, those who have upgraded to Microsoft Office 365 can enjoy the cloud storage option at no extra cost. For those running earlier versions of Office, they do offer a free basic account with 15 GB.
For many, some big news came just this week:
Your Office 365 subscription comes with OneDrive, which allows you to store and share your documents, photos, and videos, and access them from virtually anywhere.

Today we announced we will be increasing the amount of OneDrive storage that comes with Office 365 Home, Personal, and University subscriptions from 1 TB to be unlimited! As a valued subscriber, you will get this at no additional cost in the coming months.

You’ve been selected to be one of the first to get more storage. While we work on removing all storage limits we want to get you well on your way and have added 10 TB to your account.
While this scenario doesn’t fit everyone, it certainly works nicely for many individual users, small firms and business. Unlimited storage is truly a game-changer, and clearly sets OneDrive at the forefront of reasonably-priced data storage. Of course, the fact that this service is a Microsoft product does not mean it is infallible, but you can rest assured that some of the best programmers in the world are working on it.
I have been using Dropbox and OneDrive for some time now, and really like the sync features, providing an automatic backup. Dropbox still has a little more flexibility, and download speeds seem to be faster than OneDrive. There is something nice about that “Unlimited” part though. For now, I will continue to use both (along with a few others for occasional use and testing purposes).
As a final note, OneDrive and Dropbox both offer a direct photo download option via their mobile apps. This is a very convenient way to have access to your photos and videos from any computer – not just your phone.

The 5 Very Best Reasons to Conduct a Mock Trial

October 29th, 2014 by


by Kaitlin Rothstein 
A2L Consulting

Have you ever noticed that when you have someone else take a look at a problem or help edit a document, they find another way to address the issue or find additional areas that can be tweaked?  That is what mock trials serve as, a tool to put additional eyes and minds on a massive set of data and find out where it can be fine tuned and perfected. 

The purpose of the mock trial is to educate the lawyers and clients on the case’s…


How to Get the Judge to Accept a Supplemental Juror Questionnaire

October 29th, 2014 by

We often have this conversation with our clients when it comes to a supplemental juror questionnaire. Here’s how the conversation goes some weeks before trial: LI Consultant: How about a supplemental juror questionnaire? Attorney: The judges around here will never go for that. LI Consultant: Have you ever asked for one? Attorney: No There is [...]

The post How to Get the Judge to Accept a Supplemental Juror Questionnaire appeared first on Litigation Insights.

Is that eye witness lying? Let’s just check those P300 brain waves…

October 29th, 2014 by

p300 brain waves and deceptionWe’ve written before about the inaccuracy of eye witness testimony despite the familiarity of the saying, “I know what I saw!”. But here is newly published research purporting to have been “able to discriminate perfectly between 12 knowledgeable subjects who viewed stimuli related to their activities and 12 non-knowledgeable subjects who viewed only irrelevant items”. What does that mean? Well, let us tell you (and you can also see a more complete description of the experiments here).

These researchers wanted to test eye-witness memory through the measuring of brain waves (called the P300 event-related-potential-component, as I am sure you knew already). The P300 wave is thought to represent the transfer of information to consciousness, a process that involves many different regions of the brain. Some say the P300 wave occurs when the observer sees something that stands out for them, “an oddball” stimuli. In order for a P300 wave to occur, the subject must be consciously paying attention to targets presented. These researchers thought they could present familiar (e.g., “Hey! I’ve seen this before!”) stimuli to research participants and those who had seen something similar the day before would have a corresponding P300 spike in their EEGs.

To test, they had 26 students (6 males and 20 females) wear a camera attached to their clothing for four hours. (Two participants were removed from the analysis due to concerns about the quality of their data.) The camera footage obtained was then used to construct a concealed-information-test (CIT) also sometimes referred to as the “guilty knowledge test”. What this means is that various keywords relating to events taken from their actual camera footage filmed the day before were assembled along with other unrelated words. The researchers thought that if the participants saw situation relevant words describing events/places they had actually traveled past the day before, they would recognize it and their EEGs would show a P300 spike. This spike, if it happened, would tell the researchers that the witness had indeed seen the item described.

Half the participants were put into a condition called the “knowledgeable” group. Their footage would be described in the key words they were shown the next day. The other half were put into a condition called the “non-knowledgeable” group. Their footage would be entirely composed of irrelevant words that had nothing to do with what they had seen or passed by the day before. The researchers believed that the “knowledgeable” group would show the P300 spikes on their EEGs while the “non-knowledgeable” group would see nothing familiar and thus have no P300 spiking.

And they were right. The use of the P300 brain wave was highly effective in this particular scenario and the researchers believe this work moves the CIT closer to use in the courtroom. Specifically, they think details of the crime scene or a cell phone dropped at the scene could result in the P300 spike in perpetrators being interrogated. It would not really matter what the perpetrator said out loud. We can simply look at their P300 brain waves to see what really happened. The researchers report they were able to differentiate between knowledgeable and non-knowledgeable subjects with 100% accuracy.

From a litigation advocacy perspective, we think, as does, that this idea is just plain creepy.

Perhaps, like the two subjects in this article whose data was thrown out, the words or objects used could have idiosyncratic meaning and the P300 spike could occur and mean something very different from that the person being interrogated had been at the scene.

Perhaps, anxiety can trigger a P300 spike.

Who knows what P300 spikes are related to in total? Or even if they are related to different things for different people?

The way in which the words were introduced seems likely to affect response. If presented on a computer screen, what size is the font? What is the subject’s reading ability? Is there music accompanying the words? If the words are spoken aloud, the person speaking the words would need to be carefully trained, and the reliability of the results could be questioned on this basis, among others.

This would surely be subject to the same limitations that lie detector tests are, and the results are far from acceptable levels of reliability.

There is so much to question when scientists suggest a brain wave can tell us information that can result in the removal of liberty and freedom. We’d say this interrogation strategy has a long long ways to go before it’s ready for prime time.

Meixner JB, & Rosenfeld JP (2014). Detecting Knowledge of Incidentally Acquired, Real-World Memories Using a P300-Based Concealed-Information Test. Psychological Science. PMID: 25231899



Illustrate Digitally to Show the Details Clearly

October 29th, 2014 by

Litigators often need to show details of evidence in court. For example, I’ve litigated a number of cases involving computer programs over my career, and I’ve needed to show images from a computer screen as evidence or in argument. However, a computer screenshot can become ugly and unreadable when blown up and projected in court. This post discusses how you can avoid that problem by having images redrawn with vector graphics that magnify to large sizes smoothly.

Avoiding Pixelation in Your In-Court Blow-Ups and Projections

The image below shows how magnification can distort an image. On the left is a magnified view of a computer screenshot from As you can see, the magnification has exposed the pixels that were used to show the image on my computer screen. (The use of pixels to show an onscreen image is called “raster graphics“). On my computer screen, the letters making up the word “Amazon” looked completely smooth and solid. However, when I took a screenshot and magnified it, we see that the image on the computer screen was composed of small colored squares, pixels, that show up at high magnification.



On the right side of the image above, I’ve redrawn the computer screen in Adobe Illustrator using vector graphics. Vector graphics use points, lines, colors and mathematics to define an illustration – this allows the image to be magnified to any size while retaining its sharpness, including a billboard or a side of a building (or a large blow-up for court).

Adobe Illustrator has many tools to allow quick drawing of a screenshot, photograph or other image. For example, on the images above, I put the source image in the background and traced over it to match the lines. A color picker eyedropper tool allowed me to match the color of the Amazon arrow.

The Importance of Sizing Your Output Image Correctly

To show crisp and clear magnification, you must also remember to output your vector graphic file to the correct, final size (as opposed to magnifying a smaller output file). For example, the images above are output at 792 pixels wide, and they should look clear at that size. However, if you tried to use that web file for printing a 4 by 6 foot poster, it would be pixelated too because there is only enough detail for a 792 pixel wide output. Thus, if you want to print a big poster, you need to output it to that size from Illustrator (which will give you a very large file size).

Applications With In-Court Demonstratives

Reading this post thus far, you might be questioning how a drawing based on a source photograph or screenshot can be used in court, and whether it might be admissible.

At Cogent Legal, we create vector images from photographs or other source images every day. Many of the drawings we create using these techniques are not intended to be admitted as evidence, but are rather shown to a jury as demonstratives or to a judge accompanying argument. In California state court, the California Supreme Court held in People v. Duenas that demonstratives like animations can be shown to a jury if they accurately illustrate an expert’s opinion. People v. Duenas, 55 Cal.4th, 1, 23 (2012). (For more about the standard under Duenas, see our post How to Get Your Animation In Front of a Jury.)

As an example, check out these samples of creating a vector graphics map.

Below are examples of both a Google Map and a Google Satellite View where an accident occurred:

In general, Google Maps have either too much or too little information and are not specific to the case. For example, taking the photograph above, we created a to-scale vector diagram that laid out all the information of the police report, which can be used by experts. (For more information, see our post Go Beyond Google Maps: Powerful Ways to Illustrate Location in Your Case.)

My Search Bar Drawings in the Context of a Poster

I did not start out drawing the Amazon search bar just for this blog post. Rather, I used this illustration for a poster for an Illustrator class that I’m taking at UC Berkeley Extension. Below is a comparison of the full search bar that I reproduced in vector vs. the raster screen shot version:

Amazon search bar redrawn in vector graphics as compared to screen shot original

Amazon search bar redrawn in vector graphics as compared to screen shot original

And below is a view of the poster that I made for my Illustrator class using this image:

Poster for Adobe Illustrator class showing use of a vector redrawn screenshot

Poster for Adobe Illustrator class showing use of a vector redrawn screenshot

Finally, I’m proud to say that my poster is now hanging in the window at A Great Good Place for Books in Montclair (a fine community bookstore where I help with the website). Check it out:

2014-10-28 Poster Hanging at Great Good Place for Books

Contact us at 510-350-7616 or by email if you would like assistance with your next case presentation.

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[New and Free E-Book] Litigation Storytelling and Persuasion – 3rd Ed.

October 28th, 2014 by


by Ken Lopez
A2L Consulting

A successful trial lawyer is one who is able to persuade a jury or judge of the truth of his or her client’s case. In order to do that, a lawyer must connect with people on an emotional level. The only way to do that is to tell a compelling story. Stories are the way in which people learn and the way in which they organize reality.

Law school may prepare lawyers to build a case around the law, but it doesn’t teach the science or art…


And The Winner is . . . ?

October 27th, 2014 by


by Laurie R. Kuslansky, Ph.D.Managing Director, Jury Consulting
A2L Consulting

Nurse Kaci Hickox.  After she volunteered in Sierra Leone to treat Ebola patients, she headed to Newark airport to come home. Her timing was impeccable, because a mandatory quarantine was instituted on the ground while she was in the air. That day’s rule change was a reaction by New Jersey’s Gov. Christie to the frenzy caused by New York’s first Ebola patient, Dr. Craig…


Don’t Assume Prior Convictions Kill Credibility

October 27th, 2014 by

By Dr. Ken Broda-Bahm: 


The witness is in good shape and the testimony looks to be great. There’s just one little problem in his past: a conviction. Litigators are understandably concerned about any threats to witness credibility, but if that threat comes in the form of a rap sheet, that’s viewed as a very damaging fact, if not a ticking time bomb. The effects of a prior conviction are most often written about in a criminal defense context where the research generally shows that the fact of a prior conviction significantly increases the chances of a current conviction, particularly where the prior conviction is for a similar crime. But it can be a factor for any witness who’s had a prior brush with the law. In civil cases, crimes involving dishonesty can be admitted for the narrow purpose of impeaching a witness’s credibility. A recent study (Stanchi & Bowen, 2014) that focused on a civil trial context looks at the question of whether the damage is as bad as one might suspect. The results? No it isn’t. In a realistic controlled study, the researchers found that prior conviction evidence did not increase the chances for an adverse verdict. Instead, emphasis on the conviction caused mock jurors to frame the trial as more of a zero sum contest on witness credibility — a frame that can end up actually benefiting the convicted witness.  

These results have some implications for attorneys assessing the risks to their witnesses’ credibility. Those risks can factor heavily into case assessment and strategic choices, with attorneys sometimes making an extreme effort to keep prior convictions out, or keeping their witnesses off the stand in order to limit this evidence. If the effect of prior convictions is not as damning as attorneys assume, then some of these cures could be worse than the disease. This post looks at the new study and shares some practical implications for those who are considering the effects of a prior conviction on either their own witness or the other side’s witness. 

The Study: 

Kathryn Stanchi of Temple University School of Law and Deirdre Bowen of Seattle University School of Law conducted this study (available for download here), and it has a number of unique features: 

  • Unlike most studies on prior convictions, it is conducted in a civil litigation context focusing on a witness for the plaintiff. 
  • It uses a scenario designed to be as realistic as possible. Instead of relying on paper descriptions, the researchers used 40-minute video clips including openings, testimony, and closings. 
  • The way the prior conviction was addressed and framed in the script was vetted by trial attorneys. 
  • Both a white and a black plaintiff’s witness were tested, with and without information on a prior conviction. 
  • Whether the prior conviction was brought up by the plaintiff or the defense was also varied. 
  • The researchers used actual jury pools (dismissed during voir dire) from Philadelphia, Pennsylvania and Everett, Washington. 

As noted in the introduction, the big finding was the lack of one: Prior conviction information did not impact either the outcome of the civil trial or the credibility of the specific witness. In addition, it also did not matter whether the witness was black or white. Ultimately, however, the authors concluded that the prior conviction information did make a big difference in making mock jurors more likely to see the case as a zero sum dispute. In other words, it’s now about whether you believe the witness or not, and if you do, you side with the plaintiff. If you don’t, you side with the defense. This has some implications for dealing with both your own as well as the other side’s witness with a past. 

If You’re Dealing With Your Own Witness’s Prior Conviction…

The main messages for witnesses who have prior convictions and their attorneys are both reassuring and strategic. 

Don’t Assume the Worst

The authors concluded that, “not only did our results show that prior conviction evidence does not play a substantial role in case outcome, prior conviction evidence also appears to be of low importance to jurors’ verdicts and to their assessment of plaintiff’s credibility.” At least as tested in this study, a prior conviction isn’t the death-knell for credibility, as jurors will still use their own judgment on whether it matters and by how much.” Jurors can register particularly negative facts, like a criminal conviction,” the authors note, “but compartmentalize them when examining the merits of the case.” 

 Frame it Carefully

That reassurance should be tempered by the fact that the authors looked at one particular case scenario. But the way they approached that scenario provides a possible template for handling convictions more generally. The authors explain, “We had the plaintiff’s lawyer strategically frame the prior conviction as an aberration in plaintiff’s otherwise law abiding life and argue to the jury that the conviction was wholly irrelevant to the case at hand.” This jibes well with our general advice: If you’ve got bad information and you know it is coming out, then go ahead and get it out early in order to seize the opportunity to frame it yourself.  

If You’re Thinking About Raising an Opposing Witness’s Prior Conviction…

For those on the other side, a prior conviction isn’t automatically a good weapon. As the authors note, “advocates should think twice about raising and arguing a prior conviction against the other side” in civil cases. 

Beware of the ‘Zero Sum’ Credibility Effects

The information on prior conviction didn’t reliably change the outcome, but did reliably change the frame, turning the trial into a more black and white question of whether the witness was believable or not. ”Jurors who did not hear the prior conviction tended to view the case in terms of the credibility of case theory or narrative as told through the evidence,” the authors explain. “On the other hand, jurors who did hear the prior conviction evidence tended to view the case in terms of credibility of the witness — i.e., in order to determine which side won, these jurors believed one witness and rejected the testimony of the other witness.” Depending on the case, it might benefit your side to make the trial that kind of zero sum contest on credibility, or it might not.  

Mind the Possible Backlash

The most important message for those seeking to use a prior conviction against a witness is the knowledge that the sword can become the opposing witness’s shield. Stanchi and Bowen point to a prior study (Wissler & Saks, 1985) showing in a criminal context that information on a prior conviction for a less serious crime (e.g., auto theft when charge is murder), can actually reduce the conviction rate. That kind of information seems to lead jurors to the view that the prosecutor is trying to manipulate them through the introduction of biasing information. That same dynamic can apply in a civil setting, as Stanchi and Bowen note, ”If that prior conviction is of only moderate seriousness and of dubious relevance to the case, jurors may see it as a smokescreen and could have a backlash response.” 

One important caveat on this advice is that the research is focused on one specific fact pattern in order to preserve the realism of the study. Whether it holds true in the context of another specific case, witness, and prior conviction is a matter for your own investigation. It is another reason to check what the effects will be in your own mock trial. But the study shows that a prior conviction isn’t necessarily the credibility threat that lawyers and the law might assume it to be. 


Other Posts on Witness Credibility: 


Stanchi, K., & Bowen, J. D. (2014). This is Your Sword: How Damaging are Prior Convictions to Plaintiffs in Civil Trials? Washington Law Review 89. 

Photo Credit:, Used under license, Copyright: ra2studio / 123RF Stock Photo

So, potential juror, how much online porn do you watch?

October 27th, 2014 by

online pornWe can hear the snickers and gasps now–and likely the immediate objection from (probably) the opposing counsel or (unquestionably) the judge. But not always. So why might this be something you want to know? According to new research in the Journal of Sex and Marital Therapy, a distinguishing characteristic of narcissists is that they watch more porn online. That actually makes intuitive sense since narcissists would want to avoid rejection and objectify others as sexual objects. We are not sure how you would get this sort of question in though–unless the case actually involved online pornography.

More interesting to us (by far) was the information on the frequency of porn viewing online. For the study, researchers asked 257 participants (aged 18-61 years with an average age of 29 years, 63% female, 89.1% heterosexual, 70% White, 12.1% Hispanic, 7.4% Black, and 10.5% Other) to complete measures of narcissism (using the Narcissistic Personality Inventory, the Pathological Narcissism Inventory, and the Index of Sexual Narcissism) and report on the specifics of their internet pornography viewing (they were asked if they had ever viewed, and if they currently viewed internet porn as well as how many minutes per week they viewed internet pornography).

79% reported they had viewed internet porn.

44% reported currently (recently) viewing internet porn.

Current viewers, on average, viewed internet porn 85 minutes per week (or about an hour and a half).

Men spend more time on internet porn (an average of 3 hours per week) than do women (an average of about 1/2 an hour per week).

There was a significant difference in level of narcissism between those (79%) who had ever viewed internet porn and the 21% who had never viewed internet porn.

The researchers comment the sample of those who had viewed porn (the 79%) was skewed by gender since 96% of men reported they had viewed internet porn. Nonetheless, the 4% of men who had not viewed internet porn was lower in narcissism than the 96% who had. As for women, 68% of women had seen internet porn and again, those who had not scored lower in narcissism than women who had seen porn on the internet.

There was also a difference in level of narcissism between those who currently use internet porn for all measures of narcissism. Current users of internet porn (67% of men and 30% of women) were higher in narcissism than were non-current users.

Finally, as the frequency of internet porn use increased, so did the levels of measured narcissism.

What the researchers say is that there is a relationship between “internet pornography use, narcissistic behavior and psychological harm” to the viewer. They believe that using internet porn “inflates an individual’s narcissism (i.e., selfishness, isolation, and entitlement)”. For the researchers, this work focused on narcissism and how it harms relationships.

While we don’t recommend using this as a method for spotting narcissists (the study falls far short of suggesting that), there are clearly cases (copyright cases, sexual violence cases, premises liability cases, and various wrinkles in family law, to name a few) where attorneys and jurors need to be comfortable talking about salacious topics such as this. From a litigation advocacy perspective, this research validates being able to ask about sex and pornography in court* with a reduced fear of offending jurors.

The asterisk is that you need to tell them that virtually all men and over ⅔ of women have watched pornography on the internet. Otherwise, many will feel embarrassment and anxiety. You can normalize by pointing out the truth. When more than 3/4 of a group of 250+ have viewed internet porn, it takes much of the fear of stepping on juror sensibilities away. In fact, you could even say you’ve seen studies saying almost 80% of adults have viewed internet porn at some point in their lives.

There are many times we think the themes in our case are sure to alienate the triers of facts. What we’ve learned in our pretrial research is that when you matter of factly explain the issues, without giggling, blushing, or perspiring, jurors are willing to join you in an adult discussion of case facts.

We’ve also seen glib puns, one-liners, and shared glances with disbelieving grins shared among our mock jurors but they have always been able to quickly redirect their attention when their humor was acknowledged and a focus drawn back to the issues at hand.

Kasper TE, Short MB, & Milam AC (2014). Narcissism and Internet Pornography Use. Journal of Sex & Marital Therapy, 1-6 PMID: 24918657



So Little Trust, So Much Double-Speak

October 25th, 2014 by


by Laurie R. Kuslansky, Ph.D.
Managing Director, Jury Consulting
A2L Consulting

Funny how officials repeat how hard it is to get Ebola, that the NYC doctor did all the right things, that you can’t catch it when there aren’t symptoms, so there’s no need to sanitize the subway because there’s essentially no risk. New York’s health commissioner at the first press conference related that the doctor at issue kind of self-quarantined, but not really… 


Ebola worries? Fear-bola? Who do you believe?

October 24th, 2014 by

stewart_ebola-1280x900Earlier this month I was on a Wi-Fi and Cable TV enabled flight. Passengers thought it very funny that two of the shows accessible on the cable TV channels were on plane crashes and jetliner engine failures. Well, some of the passengers thought it was funny. I was fortunate enough to be in the window seat while an over-sized traveler was in the middle seat and a man with a horrific and very productive cough (thank you very much!) was in the aisle seat. He hacked and hacked and hacked during our 6 hour flight and at one point, I looked at the middle seat passenger and whispered “ebola”. It was intended to be a joke but she began to sweat profusely and lean into me. It was not a good flight and from now on I will not crack jokes about potentially deadly things.

So today, I saw the headlines on CNN: Ebola hysteria. And then I checked my email to find an update from Rasmussen Reports saying Americans are not panicking over ebola. While I certainly prefer the Rasmussen Reports perspective, it does give a moment of question often voiced by our mock jurors: when you have dueling experts–how do you know who to believe?

We’ve answered this question before, but here are a few ideas on how to make your witness be the voice of authority in the jury room:

Establish the expert’s credentials, then let it go. If the expert is so insecure that they insist on acting intellectually superior, the jury will hate them. And as ridiculous as it might sound, during preparation emphasize to the witness the need to be nice.  Expert witnesses are the worst when it comes to arrogance and gamesmanship.  Getting them to be friendly, useful, and charmingly geeky is often quite a challenge.

Your expert witness is not there to tell what they know. Their job is to teach the material to a (usually) ignorant but motivated class of students. Not to teach the attorneys or the judge, but to teach the good folks in the jury box.

Give the jurors the dueling testimony but also let them know why what you are offering is more supported by the literature, has stronger support from professionals in the field, or other pieces of data that bolster your expert’s testimony.

Frame the testimony in a way that mitigates the values or belief conflicts that the skeptical jurors are likely to have.  We know that (as with political polarization) jurors are going to ‘hear’ what supports their own belief systems, giving jurors for whom your message is pro-attitudinal the ammunition to support your position in the deliberation room is essential.

Make sure your expert’s testimony is factually accurate and examine the opposing witness’ testimony for factual accuracy. Showing jurors how a portion of an expert’s testimony is self-serving will kick in their tendency to doubt the expert’s credibility in total.

These are but a few strategies to help jurors to choose your expert as the one they believe or find most credible. You can find more on the blog by simply clicking here: dueling experts.



What the Royals and the Giants tell us about persuasive statistics

October 23rd, 2014 by

I love sports. But I never have time to watch as many games as I’d like. In fact, I rarely find time to watch any games live, so I have to get my sports fix in other ways. I watch SportsCenterSportsNation, and Numbers Never Lie. But I prefer the competitive banter of sports talk television – Around the Horn and First Take are my favorites.

While each of the shows embraces a slightly different tone and style, the one remarkable similarity between them is the use of evidence — sports and sports commentary are awash in statistics. My favorite recent stats involve this year’s World Series. For the first time EVER, neither team won 90 games in the regular season, and their combined winning percentage of .546 is the second lowest of all time.

These teams’ stats also show why the Royals stand a good chance of winning the World Series: the Royals have 13 stolen bases in the playoffs, while Giants’ catcher Buster Posey only throws out base stealers 29.8% of the time.

Why so much about Royals and the World Series? For one thing, I haven’t been able to talk about the Royals and the Series for 29 years, so I’m taking full advantage of it now. But more importantly, baseball stats illustrate a key strategic question when presenting information: What is the best way to show your statistics?

Consider the Royals’ stolen base total. It could be expressed as a percentage (81.25%), an absolute frequency (13), as odds (.23 to 1), or as a probability (.8125). All these numbers have the same value, but they don’t have the same meaning. Dozens of studies have confirmed that people have different perceptions of a statistic based on its format.

Which format you use depends upon what you’re attempting to accomplish. Here are some general guidelines to consider as you think about your options.

  • Small frequencies and percentages are clearer and easier to understand. We can easily understand the meaning of 1 of 10, or 10%. Most people have little experience with reading odds ratios and probabilities which can make those confusing to a jury.
  • Problems expressed as absolute frequencies are perceived as more accurate than those expressed as a probability. If you were the editor of the New York Times sports section, you wouldn’t say that .01% of the American population attended a parade to celebrate the Boston Red Sox’ victory in the 2004 World Series; that sounds boring and is difficult to visualize. Rather, you’d say that 3 million people attended the parade, making the statistic more concrete.

Attorneys must also choose how to frame the statistic. One very important framing choice involves the use of relative risk and absolute risk in the following imaginary scenario. A new drug called Royalsaminophen is being tested for use in treating Giantsphobia, a severe medical condition. It is discovered the Royalsaminophen increases the risk of vertigo from 1 in 100,000 to 3 in 100,000. The absolute risk has increased by 2 in 100,000, but the relative risk has increased to 200%. Which would be more frightening? That the risk has increased to 3 people in 100,000, or that the risk has increased by 200%.

As you can see from the above example, statistics can convey different meanings to a jury depending upon their presentation. In some cases, attorneys will want to equip the jury to see the problem as very large, and can accomplish this through the use of absolute frequencies and/or relative risk framing. In other cases, attorneys will want to minimize a problem, so here it’s more persuasive to draw upon probabilities and absolute risk.

One word of caution is in order: simply using the “right” statistic won’t guarantee that a jury will reach the “right” conclusion. In fact, the overuse of statistics could easily overwhelm a jury, especially one low in numeracy. Time and effort should go into deciding the format of the statistics that will best convey the information in the case. Jurors need to be equipped to fight for your side – that includes making sure they have access to the best statistics.

Which team will win the World Series? I’m in Kansas, rooting for the Royals. I’m comforted by the fact that they’ve already stolen 13 bases while the Giants’ catcher has a probability of .298 to throw them out. I’m worried, though, because the Royals probability of stealing a base is .8125, and the Giants have only given up three stolen bases this postseason. But what I’m most excited about is making time to watch the games!  Go Royals!



Rest and Reflect (in Order to Learn More)

October 23rd, 2014 by

By Dr. Ken Broda-Bahm: 


A couple of weeks ago I was working with a trial team and was present when one lawyer was profusely apologizing to another for wanting to go home. She knew there was still work to be done, she said, but she wanted to see her son before he returned to college. It was 9:45 at night. That dynamic can be pretty familiar for trial veterans. The stakes, the volume and difficulty of work, and the team structure can all create a psychology that discourages and penalizes that most basic of human needs: rest. I once worked for an attorney who saw it as a sign of weakness if any members of his team wanted to eat lunch. He ate very late at night, he explained, only when he was too exhausted to do anything else. That might feel productive, but it isn’t. Any short-term advantage in making a little more progress in the moment is going to be outstripped by the long-term harm. And it is not just that exhaustion leads to mistakes. It is that, without a chance to pause, there is also no time to reflect and to relax into the kind of quality thinking and assimilation that a complex litigation situation demands. 

Research confirms that rest and reflection improves processing and learning. A recent study reported in Psyblog (Schlichting & Preston, 2014) provides fresh confirmation of the cognitive benefits of relaxation. Study participants who were able to take a break to reflect on what they had learned were able to perform better on subsequent memory tasks. Dr. Alison Preston of the University of Texas at Austin explains the reasoning behind the results: “We think replaying memories during rest makes those earlier memories stronger, not just impacting the original content, but impacting the memories to come.” That experimental finding is buttressed by my own practical experience as part of many trial teams. A “No Rest for the Wicked” attitude is sometimes necessary for short sprints during emergencies, but over the marathon of a long trial it ends up holding parties and witnesses back from optimal performance

Experienced trial teams know that some rest and reflection helps. There are kinds of background processing and creative idea-generation that are able to kick in only when we are able to relax and free ourselves from routines and deadlines. But an understanding of the benefits of that kind of retreat is always at risk of being set aside as soon as things get busy. For litigators and the consultants who work with them, here are three ways that we can take an appreciation for the benefits of rest and reflection more seriously. 

Rest and Reflection for the Trial Team

Different teams have different methods for seizing some rest where they can. Some lawyers just need some time away — and I say, take that time without guilt — while other lawyers can get the same level of rest just by taking social breaks to share the day’s war stories and jokes in a more relaxed setting. In both cases, the rest from the “real work” is still serving a very real function, and the team as a whole — especially its leaders — should respect the downtime. 

Rest and Reflection in the Mock Trial Design

A mock trial generally packs much into the design: There is a lot to test and only a little time. Mock jurors, however, need at least a little time to rest and reflect on what you’re giving them. It is easy to say and harder to do, but don’t skimp on the breaks you are giving to participants. In a one day mock trial, it often occurs that deliberations follow the lunch break, and that is a good thing: Mock jurors will probably be more focused and productive once they’ve had a chance to let the information sink in and settle a bit. The same goes for mock trials that extend into two or more days. The time off between days will help mock jurors process information, just as it does for the actual jurors in trial. 

 Rest and Reflection for the Actual Jury

I’ve noticed that lawyers on both sides, whether winning or losing, tend to be suspicious or even superstitious about gaps. They worry about the long holiday weekend that follows openings, or the delay in trial that comes before closing. There is a tendency to worry that, if time passes between the delivery of a message and time that fact finders are going to act based on that message, then the attorney will have lost influence. What the research tells us is that a period of reflection isn’t a bad thing and is key to the self-persuasion that is really going on. Of course which side the reflection will favor is a matter of speculation, and it is going to depend on the case facts. But if, for example, your case depends on jurors getting past an easy or “obvious” answer in order to work their way to the harder answer, then you would want that time for rest and reflection. That gap may well increase the chances for a result that comes from greater cognitive effort. 

As for you, if you’re planning a vacation two weeks before trial, or if you need to cut out of your team’s prep session in order to take in your kid’s ball game, go ahead and take off. Tell them, “I’m not slacking…I’m reflecting.” 


Other Posts on Balance: 


Schlichting, M.L. & Preston, A.R. (2014). Memory reactivation during rest supports upcoming learning of related content PNAS 2014 ; published ahead of print October 20, 2014, doi:10.1073/pnas.1404396111

Image Credit: Rameez Sadikot, Flickr Creative Commons (Edited)


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How to Turn Financial Data into Trial Graphics to Tell a Story

October 23rd, 2014 by

Reading and understanding balance sheets, income statements or cash flow statements might be commonplace for you and your expert, but it’s not for the average juror. Most jurors find this type of data dry and difficult to understand. Unless your jurors have some background in finance or own their own businesses, chances are financial reports [...]

The post How to Turn Financial Data into Trial Graphics to Tell a Story appeared first on Litigation Insights.

6 Traits of Bad Business Developers You Never Want to See

October 22nd, 2014 by


by Alex Brown
Director of Operations
A2L Consulting

In my last article on business development I discussed the traits of great business developers I like to see when hiring. Today, I focus on traits I like to avoid.

If you close your eyes and try to picture a business development professional, what do you see? Depending on your age and whether you work in a law firm or elsewhere, some of the common images are:
 Bud Fox from Wall Street      …


Changing American Attitudes: Gay/Lesbian Issues

October 22nd, 2014 by

FL21 Lesbian pride FlagRecently, Governor Jerry Brown of California signed AB2501 banning the “gay panic” defense in California. The story in the Visalia Times-Delta says, Californians cannot claim in court that they were

“acting from panic or passion when they killed someone who they either knew or found out was gay or transgender.  Now they will face the full charges for their crime, just as if they had killed a heterosexual person.  No more “momentary insanity” claims because someone of the same gender (or transgender) made a pass (or you thought they made a pass) at you”.

And it isn’t just California. Attitudes toward gay/lesbian people are changing across America. We see those shifts in surveys by secular polling groups routinely. But when we see them in surveys hosted by the Public Religion Research Institute (PRRI), we need to take notice. In June of 2014, PRRI posted a fact sheet on gay and lesbian issues based on recent survey results. In brief, here is what they had to say:

Same-sex marriage:

A majority of Americans favor legal same-sex marriage (53%) while just 41% oppose.

Democrats support legal same-sex marriage (64%) as do Independents (57%), but only a minority of Republicans have support for legal same-sex marriage (34%).

Young adults (aged 18 to 29) support legal same-sex marriage (69%) while senior citizens mostly do not (56% oppose).

Same-sex marriage and religion:

51% of Americans say same-sex marriage is against their religious beliefs, but 45% disagree.

Americans tend to perceive three religious groups as unfriendly toward lesbian, gay, bisexual, and transgendered (LGBT) people: the Catholic Church (58%), the Mormon Church (53%), and evangelical Christian Churches (51%).

Discrimination against LGBT people in American society and workplace protections:

More than 2/3 of Americans (68%) think gay and lesbian people face a lot of discrimination in the US.

72% favor laws that would protect gay and lesbian people from job discrimination. 23% oppose these laws. 75% of Americans think Congress should pass laws to protect transgender people from job discrimination, while 21% disagree.

Morality-Acceptance Gap on Gay and Lesbian Relationships:

51% of Americans say (despite the majority support for same-sex marriage) that sex between adults of the same gender is morally wrong.

Parenting and Adoption by Gay and Lesbian Couples:

58% of Americans favor allowing gay and lesbian people to adopt children, and 37% are  opposed.

Nature vs. Nurture Debate About Sexual Orientation:

44% of Americans think being gay and/or lesbian is “something a person is born with” while 36% think it is “due to factors such as upbringing or environment”. 12% think it is some combination of the two (i.e., nature + nurture).

There is more in this fact sheet that we have not covered here. You can find information on the breakdown of attitudes by religious affiliation, attitudes about the Defense of Marriage Act (DOMA) and Federalism, a breakdown of attitudes by political affiliation, and attitudes on ordination of gay and lesbian people. Overall, it’s a good primer on where attitudes are now in the United States about wide-ranging issues related to gay lesbian people.

Fact Sheet: Gay and Lesbian Issues. 2013. Public Religion Research Institute.



Enumerate: 7 Reasons Why Numbering Your Reasons Works

October 20th, 2014 by

By Dr. Ken Broda-Bahm: 


In previous posts, I’ve revealed a near-missionary zeal for structure. The division and sequence of presentations should be not simply known by the presenter, but emphatically obvious to the audience. I think that is better communication. It is also especially suited to legal persuasion during trial where litigators use a mostly-oral medium in order to help lay audiences understand what are often highly complex facts and evidence. Key questions should guide the opening, chapters should break up the direct examinations, and steps should lead your jury to the right verdict. And all of these dividers will be more clear to your target audience of jurors, arbitrators, or judges if they are not simply sequenced, but explicitly numbered as well. As much as I emphasize that, however, the attorneys I work with don’t always number as clearly as I’d like. So, to take another run at it, here are seven reasons why explicit enumeration is better.

1. Numbering “Chunks” Your Message

“Chunking” refers to the practice, supported by research, of breaking a larger message into smaller parts. Separation into segments makes the message, argument, or story more understandable, just as adding a couple of dashes to a telephone number (3 groups of 3 or 4 numbers instead of one group of 10) makes it easier to remember the full sequence of numbers. But it is only a chunk if the audience knows it’s a chunk. For that reason, adding explicit numbers to your list is the way to go.

2. Numbering Focuses Your Labels

When you give a number, you are forced to follow that number with a short and punchy label for your argument. You don’t say “number three,” and then just continue speaking in paragraphs. Instead you say something like, “Number three, the contract was complete and consensual.” That short tag is vital for projecting simplicity and for giving the audience a handle for recalling the information.

3. Numbering Highlights the Transitions

Attention span is more limited than you think. Research indicates that attention drops precipitously within the first ten minutes of a presentation. Because a juror’s attention is temporary, it is best to remind yourself that you will continually need to be regaining attention. It shouldn’t be a 60-minute opening statement, it should be six 10-minute openings. The transition from one topic to another, combined with the clear message that, “This is new!” provides a great opportunity to grab your listeners again.

4. Numbering Leads to Notes

In courtrooms where jurors are allowed to keep their own written notes, enumerating your points is a vital way to encourage note-taking. One criticism of notes is that what any juror ends up writing down can be a crap shoot. But we have all known since grade school, that the numbered list coming from the teacher means that it’s time to start writing. And if you can cause even one juror to write down your list, then you are composing a note that will be brought into the jury room for deliberations. That’s pretty powerful.

5. Numbering Creates a Sense of Progress

When I conduct post-trial interviews of jurors, one common criticism of the trail lawyers is that they’re repetitive. Sometimes, the lawyers actually are repetitive, but more often, I think the attorney is emphasizing a new point and the juror has just missed the distinction. “He was talking about the contract ten minutes ago,” the juror thinks, “and he’s still talking about the contract now.” Numbering your points will tell that juror that you’re not repeating yourself, but have instead moved on to a different section or a different reason.

6. Numbering Creates Anticipation

When a speaker signals that they have a list of points to provide, that tells listeners what to expect. They know to keep an open mind, for example, when they understand that they’ve heard only three out of the five points. In addition, an enumerated structure creates the opportunity to follow a strategic sequence: one that emphasizes primacy and recency, and builds to a climax by saving the best for last

7. Numbering Keeps the Door Open

The previous six on this list all provide good reasons why presenters should number, but this 7th reason provides an especially important rationale for the witness on the stand: Using a number as a framework for your answer acts as a kind of insurance. If you start out an answer in cross with, “Yes, and there are three reasons for that…” opposing counsel is more likely to let you finish. And even if you are cut off after the first reason, jurors will know that you had more and will remember when your own counsel comes back to that point on redirect.

Social media savvy readers will recognize the post above as what’s called a “listicle,” or a quick article framed around a numbered list that is geared toward scanning or easy reading. Some longer-form writers might sneer at such lists, and it is true that highly analytic prose is unlikely to be delivered in a quick and punchy list. But the blogosphere is awash in them, and for a good reason. Lists are more accessible to the reader, and as a result, are more likely to be clicked on. That clear example – lists motivate attention – is one that should be taken to heart by trial lawyers. 


Other Posts on Structure: 


Image Credit:, Used under license, Copyright: studiom1 / 123RF Stock Photo

Morality in everyday life for the religious and the nonreligious

October 20th, 2014 by

morality in everyday life

The researchers recruited a sample of 1,252 adults ranging in age from 18 to 68 years of age who reside in the US and Canada. Each participant completed measures of religiosity and political ideation prior to participation in the actual study. All participants had smartphones and were randomly signaled on their phone for 3 days between 9am and 9pm. “At each signal, participants indicated whether they committed, were the target of, witnessed, or learned about a moral or immoral act within the past hour”.

The participants wrote a text back to the researcher describing the event, where it happened, and completed a scale describing their emotional experience. In total, participants sent in 13,240 text message “reports”.

On close to a third of the text message reports (28.9%), they reported either a moral (15.3%) or an immoral (13.6%) event.

They were more likely to report either committing or being the target of a moral act and more likely to learn about an immoral act. The researchers say the participants were more likely to learn about an immoral act via personal communications–also known as gossiping.

Political ideology was associated with moral content with liberals mentioning events related to fairness/unfairness, liberty/oppression, and honesty/dishonesty, while conservatives were more likely to mention events related to loyalty/disloyalty, sanctity/degradation, and authority/subversion.

There was no real difference in the frequency of positive moral experience by religiosity. Religious people did not commit moral acts more frequently than nonreligious people but they did report fewer immoral experiences (the researchers think this might be a reporting issue rather than one of the religious actually having fewer immoral experiences). Religious people experienced more “intense self-conscious emotions such as guilt, embarrassment, and disgust in response to the immoral deeds they had committed, and more pride and gratefulness in response to moral deeds”.

For all participants, moral acts were associated with higher happiness levels than immoral acts. Benefitting from the good (moral) acts of others resulted in the highest levels of happiness while doing good (moral) acts for others resulted in the highest sense of purpose.

Finally, when participants did a good (moral) act earlier in the day, they were more likely to commit a bad (immoral) act later in the day and less likely to do another good (moral) act.

In other words, we are inveterate gossips. We see the world through our particular political ideology’s lens. Religious people commit the same number of immoral acts as the nonreligious but they feel worse about those acts. Conversely, when behaving well, the religious feel better. We all feel better when we do good and worse when we do bad.  Having someone else do something nice for us makes us happiest but doing something for others gives us the highest sense of purpose. And, finally, if we do something nice at the start of the day, we seem to believe we have a license to act in any way we so choose for the rest of the day.

From the perspective of litigation advocacy–there are some important lessons buried in this very short (4 pages!) article.

We like salaciousness and are likely to pay close attention to it. Where morally questionable behavior might be perceived, it will be. If it concerns you, make sure  you address it– someone on the jury is likely to be guessing something improper occurred. 

Give jurors a choice to do the right thing. They want a constructive motive, not just to punish. That’s what we find our jurors want to do in every case and this research says it will make them feel good and give them a sense of purpose!

We all see the world through our own particular lens–crafted of our attitudes, beliefs, values and political ideology. Make sure to tell your story in a way that focuses on universal values rather than merely pressing hot buttons.

In other words, give jurors something to vote for, not against.

Hofmann W, Wisneski DC, Brandt MJ, & Skitka LJ (2014). Morality in everyday life. Science (New York, N.Y.), 345 (6202), 1340-3 PMID: 25214626



The “life cycle effect”: To raise your income, do not become a mother! 

October 17th, 2014 by

workingmomOr if you already are a mother, do not have any more children. On the other hand, if you are a man, have as many children as you would like. And preferably with a woman who doesn’t mind taking a dramatic payroll hit at work. With children (as a man) you get an average 11.6% bump in your salary according to this report. The author opines that fatherhood “is a valued characteristic of employers, signaling perhaps greater work commitment, stability, and deservingness”.

But we must remind you that this applies only if you are a man who is a father. And if you are a woman? According to today’s research report, with every additional child, you lose another 4% in income. So it isn’t just gender that reduces your salary. It’s having children as well. And yes. It is an article written in 2014. Don’t shoot the messenger here, it isn’t our research or our vision of a “just world”.

“For men, it’s just the status of being a father that raises their wages. For women, each additional child she has makes the penalty worse.”

Becoming a mother means women will earn less over their lifetimes while fathers earn more. This is but a small part of the disconcerting, disturbing, and depressing findings in a new report from the Third Way think tank. You may wonder what happened to the 2010 ABC World News report of women now earning 8% more than men. Well, that report only referred to young (early career) and childless women–not women with children.

Michelle Budig, the author of this report, calls what happens to women the “life cycle effect”. She points out the small gender gap in pay for 20-somethings (women earn about 96 cents on the dollar compared to men). That small gender salary gap grows as you hit 30-something and then 40-something though, and Budig thinks it is because of developmental milestones like marriage and children.

“Things happen in people’s lives like marriage and children, that trigger new behaviors and differential treatment in the workplace” for men and women.

Specifically, she says, the period between age 35 and age 44 is when we generally see the largest growth in salaries. This is also the time when many college-educated women stop delaying childbearing and are actively involved in caring for young children.

A caveat to this news comes if you are at the top of the salary distribution. If you are a man you get an even larger fatherhood bonus. And if you are a woman, while you don’t get a bigger bonus for being at the top of the income distribution, there is no motherhood penalty at all.

Another caveat also relates to privilege. White fathers receive larger fatherhood bonuses that Latinos or African-American men. In fact, African-American men have the lowest fatherhood bonus of any racial/ethnic group.

Budig suggests stereotypes of what makes a “good mother”, a “good father” and a “good worker” are likely at play here. If we believe that mothers should be focused on caring for children over workplace/career ambitions, they “will be suspect on the job and even criticized if viewed as overly focusing on work”. The opposite is apparently true for fathers who are likely perceived as trying hard to be a “good provider”.

From a workplace perspective, this report is a pointed reminder of the importance of identifying (and using) concrete, behavioral indicators for salary increases. That is one way to avoid making salary decisions based on stereotypes that cast either a halo effect (on fathers) or the opposite (on mothers). Creating a professional environment that welcomes both men and women means having specific indicators of “success” that apply equally to all employees, regardless of gender, ethnicity, age, or parenthood status.

Budig, M. 2014 The fatherhood bonus and the motherhood penalty: Parenthood and the gender gap in pay. Third Way.




October 16th, 2014 by

By Dr. Ken Broda-Bahm: 

7244729110_c024182df5_zIt’s an unfamiliar word, “entrain,” but here’s what it means. In the hotel bar where I’m writing this, there are two conversations going on. At a table toward the back, two women are having what looks like a serious conversation. They’re leaning in towards each other at identical angles, both dropping their chins in the same way, both speaking in the same quiet tone, and both mirroring facial expressions that show concern, then warmth, then humor. Meanwhile, up at the bar, two men are blowing off some steam. Both sit with their backs to the bar as they gaze around the room. Both have their chests out and shoulders back in the same expansive posture. Both are joking in the same loud voice, and both share the same booming laugh at the same times. When one says something funny, the other one repeats it. In each conversation, the two speakers have synced their own verbal, vocal, and physical communication styles. They’ve unconsciously shared these behaviors in order to create a joint style that sets the tone for the conversation. 

That is what it means for communicators to entrain. The definition in a communication context is to match one’s behavior to the other in communication. In my post earlier this week, I wrote about attorneys and judges adapting the same disfluencies (“um”) and that being predictive of the judge’s likelihood of agreeing with the advocate. That is an example of entrainment, but it goes beyond being simply a tactic of communication. The process is a basic building block of communication, even if it is one that we aren’t generally consciously aware of. It is also an important principle of human influence. To reach across the barrier that separates us humans from each other, we use physical and verbal mimicry to send and receive basic messages of credibility, likeability, and common purpose. Litigators and others who persuade through an oral medium should be aware of this principle, so this post aims to provide a simple introduction, as well as a few thoughts on litigation contexts where it applies.

The specialized term is warranted, because to “entrain” means more than to “adapt.” It is not just a matter of consciously adapting a behavior because we feel a given audience expects it. Instead, it is a more subtle process of coming into sync. So why do communicators tend to sync their style and substance? The answer seems to go back a long way. Alex Pentland of MIT’s Media Lab wrote that “social species are likely to develop honest signals, a reliable communication system that serves to coordinate behavior between individuals” (Pentland, 2010). Entrainment is one such set of systems that “seem to be evolutionarily predating language” (Benus, Levitan & Hirschberg, 2012). As a foundational communication tool, entrainment is a powerful force. 

One feature of entrainment is that it is not always conscious. That doesn’t, however, mean that we should ignore it. Instead, persuaders should be open to it, and sometimes even consciously focused on entraining their form and content to a persuasive target. Here are a few settings where litigators might do that. 

Entrain During Interviews

Of course, litigators don’t just persuade and influence when they’re in front of a jury. Meetings and interviews with clients and witnesses represent an important setting where it helps to be in sync with your target. It helps to put the other person at ease if you want to get more information and work more effectively. In a psychiatric setting, the technique is called “mirroring.” The analyst consciously copies the interview subject’s behavior. Lawyers don’t practice psychiatry of course, but the goals can come pretty close at times, and there is no reason attorneys shouldn’t try some of the same techniques. 

Entrain During Examination

Anything that is a good interviewing strategy is also probably a good technique for setting a tone with your own witness in direct examination. There is one situation where an understanding of entrainment is a good idea for witnesses as well. Benus, Levitan and Hirschberg (2012) also write of the tendency to “dis-entrain” or to “consciously decrease the similarity to people in order to increase their social distance to the interlocutor or to show a negative attitude toward the interlocutor.”  That is a bad idea for witnesses, no matter how much the opposing counsel is disliked. Jurors and judges need to see the same person in the witness box in direct and cross. If the witness even subtly becomes more hostile in cross (e.g., through distancing behaviors like dis-entraining) then credibility comes into question. 

Entrain During Argument

In the article I have referenced above, the focus is on entrainment during Supreme Court arguments and the conclusion is that a stylistic sync (on something as basic as saying “um”) predicts success for the advocate. There is reason to believe that the benefits of syncing at the level of substance are even greater. Going all the way back to the rhetorical idea of the enthymemefor example, the principle is that the best argument is the one in which your audience participates. Instead of just giving your target reasons, it is better to build your argument by adding to the reasons your target already believes. Viewed this way, the enthymeme is simply an entrained argument. Beyond borrowing premises from your audience, it also is effective to draw from the same linguistic terms. By using the same “God Terms” and “Devil Terms,” for example, you are showing your affinity for your target and speaking in a language that will resonate. 

The habit of entrainment provides a good reminder that persuasion is best approached, not as a speaker’s creation, but as a speaker and target’s co-creation. Like the conversations in the hotel bar mentioned above, comfort, trust, and influence are all a product of first getting in sync.


Other Posts on Finding Common Ground With an Audience:


Benus, S., Levitan, R., & Hirschberg, J. (2012). Entrainment in spontaneous speech: the case of filled pauses in Supreme Court hearings. In 3rd IEEE Conference on Cognitive Infocommunications, Kosice, Slovakia.

Pentland, A. (2010). To signal is human. American scientist98(3), 204-211.

Photo Credit: Jordi Payà, Flickr Creative Commons

4 Ways That Juries Award Damages in Civil Cases

October 15th, 2014 by


by Elise Jefferson, MA
A2L Consulting

An intriguing and complex aspect of civil litigation is the use of damage awards as a means of achieving justice. This remains an inexact science; no one can predict the amount of money that a jury is going to award the plaintiff if liability is found. However, a good deal that is worth knowing has been learned about what goes into that decision. For example, studies have examined damage awards when jurors are asked to award a specific amount, as…


The Libertarian Orientation Scale: Who’s the (real) Libertarian?

October 15th, 2014 by

Libertarian orientation scaleAfter years of not having a way to measure those who consistently respond in a Libertarian direction, the Public Religion Research Institute (PRRI) has offered us a new scale to do just that. We posted on Monday about their survey of Libertarians and this is the measure they used to determine who was really Libertarian, who tended to lean Libertarian, who was not Libertarian, and who was a mixture of Libertarian and non-Libertarian attitudes. It’s an intriguing scale. But first, some terminology is in order.

Libertarians are–in some cases rugged–individualists and thus notoriously (and probably proudly) difficult for researchers to pigeon-hole or label. A 1984 publication defined libertarianism as composed of two dimensions: personal freedom and government intervention. Since 1984, these current authors say, the “issue agenda has evolved” and they therefore used 9 separate questions to examine three dimensions of present-day Libertarianism: national security and international intervention, economic policy, and personal liberty issues.

Second, they define non-Libertarians as “Communalists”. Why? Because their responses were the opposite of the Libertarian responses on this scale. Libertarians score low in their desire for government intervention at the cost of personal liberties–while Communalists preferred (i.e., scored higher on desire for) government intervention even when it cost some personal liberties.

As you can see in the graphic illustrating this post, 54% of Americans have Mixed Libertarian and Communal attitudes/beliefs. Those who respond consistently Libertarian or Communalist each make up 7% of the population, while 15% lean Libertarian and 17% lean Communalist.

So. With those definitions in mind, the researchers asked the respondents if they would identify with the label “Libertarian”. Thirteen percent did (but their response pattern was less consistent ideologically than those who were identified by the Libertarian Orientation Scale as either Libertarian or Libertarian leaning). Without further ado, here are the questions (from page 7 in the full report) the researchers used to identify the Libertarians in their sample.

Libertarian Orientation Scale items

Each question was placed on a 7-point Likert scale (ranging from 1 to 7) with a low score representing the Libertarian position and a high score representing the Communal position. Thus, the most Libertarian score would be a 9 and the most Communal score a 63 for the total scale. Scores in this sample ranged from 12 to 63. Scores from 9-25 were classified as Libertarians, scores of 26-31 were classified as Libertarian Leaning, scores from 32-42 were classified as Mixed, scores from 43-48 were classified as having Communalist Leanings, and those with scores from 49-63 were classified as Communalists.

The remainder of the PRRI report looks closely at the difference between the groups (i.e., Libertarian, Lean Libertarian, Communalist, Lean Communalist, Mixed) as defined by this measure. It is interesting and easy reading, as well as a nice way to modify your beliefs (aka stereotypes) about this group. While these are not likely questions you can use in voir dire to classify potential jurors based on these categories, it is a clear look at the issues that may be particularly important to those with either Libertarian or Communalist leanings.

Libertarians, like the rest of us, have changed over the years. Thanks to PRRI for bringing our awareness up to date.



8 Traits of Great Business Developers (In or Out of Law Firms)

October 14th, 2014 by


by Alex Brown
Director of Operations
A2L Consulting

These days, there’s no question that sales (or business development as law firms like to call it) is essential to the success of nearly every law firm. Law firms can’t exist without clients – and whether a firm prefers to expand its client base or to get more work from its existing clients, it needs to have a business development function. Accordingly, any law firm needs to hire people who know how to bring in business.

Some law…


Don’t, uh, Necessarily Worry About "Um"

October 13th, 2014 by

By Dr. Ken Broda-Bahm: 

Confusion - Table of Elements

Back when I taught public speaking in college, I had a colleague who was so committed to exorcising her frequent use of “um,” that she asked an associate to sit at the back of her classroom and hold up a sign with “um” written in foot-high letters every time she made that sound. That, of course, is the overreaction of a perfectionist. But most speakers — particularly the less experienced ones — are troubled from time to time by their tendency to add “um” or “uh” or “oh” to their speech. In practice, however, it is generally not worth the worry. Aside from being forgiven — particularly for less experienced speakers — these communication characteristics are shown by the research to be not just generally benign but actually helpful in some circumstances. 

The “um,” the “er,” or the “ah” are referred to as a “filled pause,” because that is how they function. Speech-wise, it is simply a pause to which you’ve added a vocalization. You make a sound essentially to hold the floor and to keep the communication channels open while you think of the next word or phrase. From an audience’s perspective, much of the benefit comes from the pause: Listeners need a break and a chance to focus on what is coming next. But some of the benefits are independent of the pause, because they play a role in conveying and augmenting the speaker’s own thought processes. That doesn’t excuse a speech that is chock-full of disfluency, but when it comes to the normal and natural use of a few “um’s,” this post aims to reduce your guilt. 

The Research: It’s, ah, Not Really a Bad Thing

We are aware of the advice from our public speaking teachers and our speech coaches. But what do the studies say on the effect of filled pauses?  I bet you didn’t know there is research on “um,” but it turns out there is, and this is just a small sample of it.  

One study (Fox Tree & Schrock, 1998) looked at speech comprehension of words followed by a filler “oh,” in one condition, or with the “oh” excised in another, or followed by a pause of the same length in the third condition. Comparing the participant’s recognition speed in all three conditions, the researchers found that word recognition was faster after the “oh” even though the “oh,” of course, adds no real meaning.  

Another study (Corley & Hartsuiker, 2003) tested the theory that filled pauses serve the function of setting the audience up to understand slightly harder content. The theory goes that it is slightly harder for the speaker (prompting the “um” as the speaker composes on the fly), so it is likely to be slightly harder for the listener as well.  This team conducted two experiments showing that when filled pauses occurred before words, the use of the filled pause led to a quicker response from the research participants. 

In another study (Brennan & Schober, 2001), subjects were given instructions for selecting an object on a computer screen, and those instructions were given in a manner that was either fluent or disfluent (accompanied by “uh’s,” “um’s” and corrections). Listeners were able to select a target more quickly and with no less accuracy after the disfluent instructions. The researchers theorize that the disfluent instructions gave listeners more time to process and more time to mentally correct misleading information. 

Finally, more recently, and most applicable to a legal setting, a group of researchers (Benus, Levitan & Hirschberg, 2012) looked at filled pauses during Supreme Court oral arguments. They found that a correlation in similarity between counsel’s and a given justice’s filled pauses correlated with a favorable vote from that justice. In other words, when persuasion was occurring, then the lawyer’s and the judge’s filled pauses tended to be in sync: “Um” together and your arguments will hum together. 

The Caveats: Don’t, er, Go Overboard

I can’t responsibly end this post without cautioning that nothing in either the research or the practicalities suggests that communicators should go hog-wild on the use of filled pauses. It isn’t a “the-more-the-better” kind of thing. Instead, the filled pause is generally benign or even helpful when it is natural and conversational. That suggests a few final notes. 

Don’t Fall Into a Pattern

When an “um” falls in between every single sentence, the filled pauses call attention to themselves and become a distraction. For that reason, it makes sense for speakers to still try to eliminate “um’s.” For most of us, some will still leak through, but they’ll occur in more natural ways, like when we are truly thinking. 

Don’t Let “Um” Be a First Impression

There is research on the other side of the question showing that the use of “um” and “uh” in some settings also invites the impression that speakers don’t know what they’re talking about (Brennan & Williams, 1995) . On the one hand, that underscores the need to still keep filled pauses to a minimum, but it also reinforces the need to manage first impressions, and perhaps save your “um’s” for after you have demonstrated your credibility.  

Don’t Feel Like You Need an Excuse to Pause

Pausing is power. For either a speaker or a witness, it conveys control over content and pacing, and it draws attention like a magnet to whatever is coming next. Unless you’re in a rapid-fire conversation, you generally don’t need to hold the floor with a vocalization. Just pause, there’s no need to fill that pause in with anything. Silence can feel odd to the speaker, but generally doesn’t seem so to the audience. 

This is one of those topics where it is nice to have the privileged position of the writer. I edit, not as much as I should in all likelihood, but I do have the luxury of being able to pause, select and revise all without the reader seeing it. Bottom line: If you could read my “um’s,” they’d be all over the place. 


Other Posts on Delivery: 


Benus, S., Levitan, R., & Hirschberg, J. (2012). Entrainment in spontaneous speech: the case of filled pauses in Supreme Court hearings. In 3rd IEEE Conference on Cognitive Infocommunications, Kosice, Slovakia.

Brennan, S. E., & Williams, M. (1995). The Feeling of Another′ s Knowing: Prosody and Filled Pauses as Cues to Listeners about the Metacognitive States of Speakers. Journal of memory and language34(3), 383-398.

Brennan, S. E., & Schober, M. F. (2001). How listeners compensate for disfluencies in spontaneous speech. Journal of Memory and Language44(2), 274-296.

Corley, M., & Hartsuiker, R. J. (2003, July). Hesitation in speech can… um… help a listener understand. In Proceedings of the 25th Meeting of the Cognitive Science Society (pp. 276-281).

Fox Tree, J. E., & Schrock, J. C. (1999). Discourse markers in spontaneous speech: Oh what a difference an oh makes. Journal of Memory and Language,40(2), 280-295.

Image credit:, used under license

Libertarians in America: Who they are (what we know now)

October 13th, 2014 by

ISO LibertariansBack in 2010 we blogged on a survey of more than 150,000 Libertarians. We now have an update on Libertarians in America courtesy of the Public Religion Research Institute! Unlike the original survey, this one was based on a random sample of 2,317 American adults (from people who are part of GfK’s Knowledge Panel). Interviews were conducted online in both English and Spanish between September 21, 2013 and October 3, 2013. The results offer multiple tidbits potentially useful in voir dire (or simply for expanding your knowledge of Libertarians in America). The full text of their study is accessible online, but here are a few of the findings we found interesting.

Only 7% of Americans are consistent Libertarians although an additional 15% lean Libertarian.

Libertarians are nearly all non-Hispanic Whites (94%), male (68%), and under age 50 (62%).

Political affiliation skews more Republican (45%) than Democratic (5%) although (as we’ve pointed out in other posts on how the country is changing) half (50%) say they are either unaffiliated, politically independent, or belong to a third party.

Tea Partiers? A substantial portion are, but not entirely. 39% of Libertarians identify as part of the Tea Party movement but 61% do not. Libertarians are about 26% of the Tea Party movement while the majority of Tea Partiers (52%) describe themselves as part of the religious right and 35% say they are white evangelical Protestants.

Libertarians are more likely to pay attention to what is going on in government or politics than the average American. Only 38% of Americans say they pay attention to politics and government “most of the time or always”. Among Libertarians, the majority (56%) endorse this response option.

Libertarians are more strongly opposed than most to raising the minimum wage, Obamacare, and increasing environmental protections (all issues reflecting government involvement in economic policy).

The libertarian profile on social issues diverges from their conservative economic outlook: 57% of Libertarians support abortion rights, 70% support MD-assisted euthanasia, and 71% favor legalizing marijuana. Oddly, considering these liberal views on social issues–a majority of libertarians (59%) oppose same-sex marriage.

Libertarians have more positive feelings toward atheists (46%) than either Tea Party members (33%) or white evangelical Protestants (25%). They are also more positively disposed toward gay and lesbian peoples (49%) than are members of the Tea Party (44%) or white evangelical Protestants (38%).

Nearly 2/3 of Americans (65%) support making pornography more difficult to access on the internet. However, among Libertarians, only 31% favor making pornography more difficult to access while 68% oppose this movement.

This study offers a close-up view of those Americans who consistently respond to questions in a pattern the authors identify as Libertarian. Their responses, according to this report, are much more consistent than those who call themselves Libertarians but are not really identifiable as such based on their responses to a scale measuring political orientation. (We will write about this scale, the Libertarian Orientation Scale, in our next post.)

It isn’t at all clear whether there is a consistent notion of “I am Libertarian”, and whether those jurors and mock jurors we follow carefully are comparable to those in this study. Stay tuned to a post we have scheduled for Wednesday of this week, and we will let you know how to determine whether a person fits the definition of Libertarian used by researchers. And we will continue to observe and track the reactions of our mock jurors who say they are Libertarian and see how their responses relate to their eventual verdict.

Jones, RP Cox, D Navarro-Rivera, J 2013 The 2013 American Values Survey: In Search of Libertarians in America. Public Religion Research Institute.



PowerPoint Skills for Litigators Webinars: Recording and New Session on Animation, Video & Hyperlinks

October 12th, 2014 by

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Free Recording Available:  title="Recorded Webinar-PowerPoint Skills for the Litigator: Templates, Timelines and Tools" href="" >PowerPoint Skills for the Litigator: Templates, Timelines and Tools

Our webinar on PowerPoint Skills for Litigators last week had great attendance and enthusiastic reviews from attendees. The webinar recording is now available for viewing, and you can download the slides used in the presentation for your own use.

In  href="" >this recorded webinar, Mike discusses how litigators should customize PowerPoint to their needs with templates and layouts, how to create and edit timelines, and some key PowerPoint tools that litigators should understand. Along the way, we learn how to create and edit master slides and slide layouts, how to draw and edit simple objects in PowerPoint, and how to create and use images of your evidence in your PowerPoint presentation. We’ll be submitting this webinar to the State Bar of California for approval for continuing legal education credit. Click  href="">here to register and view this free recorded webinar.

The PowerPoint template that we used in this webinar is available for free download at this link:  href="">Slides Used for PowerPoint Skills for Litigators Webinar. Feel free to download it and adapt it to your uses.

There was so much to cover that we’re going to hold another PowerPoint webinar with new content:

style="color: #1d1d1d;"> href="" >PowerPoint Skills for Litigators II: Animations, Video and Hyperlinks, Free Webinar, Thursday, December 11, 2014, Noon Pacific to 1:15 PM

Click  href="">here to register.

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style="color: #000000;">Mike Kelleher of Cogent Legal will demonstrate a number of basic and advanced PowerPoint techniques, including animations, hyperlinked navigation systems, video, and differences between PowerPoint 2013 and PowerPoint 2010. This event will be submitted to the California State Bar for approval as one hour of California MCLE credit.


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1-Question Survey: How Does In-House Hire Outside Litigation Counsel?

October 10th, 2014 by


by Ken Lopez
A2L Consulting

As part of A2L’s jury consulting, litigation graphics and litigation consulting work, I routinely have the privilege of closely observing some of the best litigators in the business. I get to watch their preparation styles and see how they perform at trial. I also have a chance to witness opposing counsel’s performance at trial. The comparisons between the two are fascinating for me.

Chances are, if a litigator is working with A2L (or a firm…


Expect Fear to be Driven by Dread, Not Data

October 9th, 2014 by

By Dr. Ken Broda-Bahm: 


As of the press time for this post, panic over Ebola is rising in the United States. With the first U.S. diagnosis of a patient last week, and that patient’s passing shortly afterward, it seems that the media — both social and institutional — are dominated by fears of a wider outbreak. As new cases continue to reach the U.S., and deaths abroad near the 4,000 mark, there seems to be a widening disconnect between public reaction and the reassuring messages delivered by medical professionals in the developed world. According to a recent survey conducted by the Harvard School of Public Health, the U.S. public’s concern over a domestic Hollywood-style epidemic is fueled by many misconceptions about the disease. With the CDC and other experts on auto-repeat saying Ebola doesn’t spread easily like the cold or the flu, and emphasizing that an outbreak is unlikely in the United States, that message isn’t getting traction, in part, because it appears to be refuted by each new case and each new headline.  

This difference between the public and the expert response is part of a wider disconnect between actual and perceived risk. For all of us, the chances of dying due to a car accident, heart disease, or kidney failure are far greater than the chances of succumbing to an infectious disease like Ebola or its kin. Why then does the disease inspire greater fear? Of course, it could be the grisly manner of death, or the rapid spread of the disease in West Africa and beyond. Those are two factors that contribute to what psychologists call the “Dread Factor.” “Ebola’s the kind of disease that zombie movies are made out of,” said Abdulrahman El-Sayed, a researcher at Columbia School of Public Health. That dread is what tips the scale and causes people to fear situations out of proportion to their actual risks. For this reason, looking at that factor of dread (Gigerenzer, 2004) is important for anyone seeking to understand popular risk perceptions and reactions. This post will take a closer look at the factor and provide a list of the situational elements that tend to cause people to dial up from caution or fear all the way up to dread. 

There are many scenarios where litigators would have an interest in promoting or preventing dread. A products plaintiff, for example, would want to get jurors past the point of simply seeing statistical risk associated with a product and all the way to the point of feeling a kind of dread associated with its dangers. A securities defendant, on the other hand, would want to mitigate any feelings of dread that jurors have learned to associate with bankers, investors, and traders. Naturally, dread is a complex feeling and lawyers can’t simply start or stop it based on a turn of a phrase. However, there are a number of well-studied factors that tend to be associated with dread. Emphasizing those factors can dial it up, and downplaying those factors can dial it down. 

High Consequences

This is the obvious one: When the result is viewed as really bad, then it is more likely to inspire dread. Note, however, that high consequences does not necessarily mean high numbers. In fact, the classic threats that inspire dread, like terrorism, tend to be high-impact combined with relatively low likelihood. As some research indicates (Galesic & Garcia-Retamero, 2012), even very low numbers can drive perceptions of catastrophe.

Absence of Control

Factors seen as uncontrollable by those on the receiving end are more likely to inspire dread. In the case of Ebola, the lack of a reliable treatment contributes to the perceived crisis. In a litigation context, the risk becomes an object of dread to the extent that victims are unable to shield themselves from the harm.

Involuntary Exposure

Part of that absence of control relates to involuntary exposure: The most sympathetic victims did not in any way choose to place themselves at risk. That explains the particular horror over the new Ebola cases in the West that have extended beyond medical workers. When a problem begins to touch those who have not placed themselves at risk, then it escalates to a more personal level of perceived threat.

Social Disruption

Public health expert Philip Alcabes wrote about epidemics in the book, Dread: How Fear and Fantasy Have Fueled Epidemics from the Black Death to Avian Flu. Based on his analysis, one constant in defining ancient and modern epidemics is some level of social disruption. For example, heart disease carries a risk that is far greater than Ebola, but it isn’t considered an epidemic. In the Hollywood outbreak script, one factor is the breakdown of social order, and that is perhaps the most frightening aspect.

A Story

Individual stories help to make events more meaningful, as we’ve written before, but there is also the broader story of the harm itself. Epidemic stories have a common narrative trajectory, starting small, building, breaking out, and then succumbing to some kind of control. In that frame, the dreadful factor itself is the main actor.

A Scapegoat

Phillip Alcabas also writes that conditions tend to be scarier when they’re seen as emanating from a clear source. The presence of identifiable blame tends to provide a focus for the fear. In Medieval Europe, the bubonic plague was blamed on Jews, and today, the focus for Ebola is on West Africans. As Alcabas notes, “In sum, if there’s no one to blame, then we don’t use the term epidemic.”   

Few if any of the ills that become the subject of litigation will rise to the level of perceived threat that accompanies an epidemic like Ebola. At the same time, the common factors that tend to escalate the subjective experience of threat and fear don’t tend to change. To the extent that a plaintiff can emphasize a version of each of these factors in the context of their case, they are tapping into a powerful psychological motivator. To the extent that defendants lead jurors away from these elements, they are helping to keep jurors in a rational rather than emotional frame. 


Other Posts on Fear Appeals:


Alcabes, P. (2009). Dread: how fear and fantasy have fueled epidemics from the Black Death to the Avian Flu. PublicAffairs.

Galesic, M. & Garcia-Retamero, R. (2012). The Risks We Dread: A Social Circle Account. PLOS One.

Gigerenzer, G. (2004). Dread Risk, September 11, and Fatal Traffic Accidents. Psychological Science, April.

Image Credit: Robert van der Steeg, Flickr Creative Commons

14 Differences Between a Theme and a Story in Litigation

October 9th, 2014 by


by Ken Lopez
A2L Consulting

Twenty years ago in my trial advocacy class, we talked a lot about developing a theme for a case. We learned to say things in an opening statement like, “this is a simple case about right and wrong” or “no good deed goes unpunished.”

The goal of developing and communicating a theme is to give your fact-finder(s) an organizing principle that they can fit the evidence into neatly. However, for as much as we talked about themes, one thing I…


How To Help a Jury Understand Complex Litigation?

October 7th, 2014 by

We hear this quite a bit from our clients. An attorney, when introducing us to his pending complex litigation matter, tells us upfront, “This is a complicated case.” It’s code for, “I don’t think jurors will understand this case.” We hear it again in opening statements: “This is a complicated case.” So now, the attorney [...]

The post How To Help a Jury Understand Complex Litigation? appeared first on Litigation Insights.

Speed Up to Limit Counterargument (and Slow Down When Preaching to the Choir)

October 6th, 2014 by

By Dr. Ken Broda-Bahm: 


The belief is that “fast-talking” applies easily to “lawyer,” just as it naturally attaches to “salesman,” “politician,” or other perceived “slicks” who are able to persuade before their targets quite realize what is happening. But does speed of speech really convey an advantage in persuasion? The answer is a solid, “It depends.” The research cuts both ways. It turns out that faster or slower speaking doesn’t just influence comprehension or credibility, but cognition as well: The factor that makes faster speech more effective in some contexts, but not in others, has to do with what is going on in the minds of those on the receiving end of the message.

It is a practical point for litigators, and one of many questions they need to ask as they adapt to the jury, the bench, the arbitrator, the mediator, the client, or the other side. When do you ramp things up and when do you ease off? The somewhat nuanced advice from the research is that it depends on whether your target audience at that moment is more likely to lean in your favor, or to lean against you on the specific point you are making. When that audience is predisposed against you, then a faster rate is more effective because it tends to limit the amount of internal counterargument the audience is able to engage in. But when the audience is likely to be in your corner already, then a slower rate will free that audience up to reinforce your message as you present it. This dynamic is one more example of a fundamental principle of persuasion: Audiences are active, not passive. Instead of just thinking about what works on them, it helps to also think about what they’ll do with your appeal.

The Slowly Evolving Understanding on the Power of Fast Speech

A post in Psyblog does a good job of providing an overview of the research. In this case, there is a story that occurs in three chapters.

The first chapter is the early research that seemed to show that fast-talking was simply better. A study (Miller et al., 1976) focused on persuading targets on the effects of caffeine. In that study, a message delivered at 195 words per minute (a speed at the upper end of what occurs in conversations) was more persuasive than the same message delivered at 102 words per minute (the lower end of conversational). Based on this study, the early received wisdom was, as Psyblog’s Jeremy Dean notes, “Talking fast seemed to signal confidence, intelligence, objectivity and superior knowledge.”

The second chapter, however, involved some conflicting results. Some studies failed to demonstrate that advantage, and some practical speech coaches began to wonder if advice to the effect of “speak faster” could really be valid advice in all situations.

The third chapter brought in the additional detail. Based on a 1991 study, it turns out that it matters who your audience is and whether they are likely to agree or disagree with you at the moment. Smith and Shaffer (1991) looked at arguments made to college students on the drinking age. When the message was counterattitudinal (an argument made for keeping the age at 21 made to college students below that age), the researchers found that a faster rate of presentation was more effective. But when the message was pro-attitudinal, the opposite effect was observed: The slower rates of presentation were more persuasive. 

That stands to reason based on one of the fundamental principles of persuasion: The listeners’ minds are not at rest. Instead, they are processing and elaborating on what they hear. When they hear views they’re motivated against accepting, then their minds are generating counterarguments. The slower that message comes at them, the more counterarguments they are able to develop. That is why a quicker rate is more effective at limiting those arguments. When listeners are hearing something they want to accept, on the other hand, then that time to process, think, and elaborate works in your favor.  

The Implications: Slow or Fast Speech in Litigation? 

Obviously a presenter in trial cannot take the time to precisely gauge their own words per minute while still communicating conversationally. Experienced persuaders will still have a sense of when they want to accelerate and when they want to ease off the gas. Often, however, that sense is based on the speaker’s own mood. Instead, that choice should be based on how challenging you perceive the message to be at that moment. When you’re covering a point that your audience is at risk of rejecting, don’t slow down in order to spoon feed it. Instead, speed up in order to hammer the point home. 

This need to pace yourself applies in cross-examination as well. A rapid cross-examination is not just advantageous because it induces witnesses to copy that faster pace and give their answers less thought, the faster pace can also encourage the witness — and the jurors as well — to engage in less counterargument in response to the question. 

Before I end the post, let me stress one important caveat: When we talk about “fast” or “slow” speech, we are talking about speech at the faster or slower ends of the spectrum that is considered conversational. If your speed exceeds your audience’s comprehension or outstrips your audience’s patience, then you are not communicating. 


Other Posts on Delivery: 


Miller, N., Maruyama, G., Beaber, R. J., & Valone, K. (1976). Speed of speech and persuasion. Journal of Personality and Social Psychology34(4), 615.

Smith, S. M., & Shaffer, D. R. (1991). Celerity and cajolery: Rapid speech may promote or inhibit persuasion through its impact on message elaboration.Personality and Social Psychology Bulletin17(6), 663-69.

Photo Credit: Amanda Slater, Flickr Creative Commons

The changing American juror: Does it matter if that juror is single or married?

October 6th, 2014 by

american marital statusWe’ve known for a while that the proportion of American adults who are married is decreasing but in mid-September, 2014 there was a flurry of media coverage over economist Edward Yardeni’s report (titled “Selfies”) that the majority of Americans are now unmarried (he calls that “remarkable”) and believes they are driving economic changes. Unfortunately, his report is behind a paywall and we cannot access it but thanks to Bloomberg, we know some of what he had to say (and much of it appears to be drawn from publicly accessible statistics from the US Census Bureau).

In short, in 1976, 37% of Americans were single and now, in 2014, more than half of Americans are single. Yardeni thinks this changing demographic will result in fewer of us having children and in fewer of us owning homes.

The numbers support his conclusion: Young singles, in particular, are more likely to rent than own.

Never-married singles are less likely to have children and (now divorced and single) older adults are unlikely to have young kids. Yardeni thinks this will have an effect on how much money they spend and what they buy since they have fewer expenses than married people with children.

The percentage of never-married singles in 1976 was 22.1% and now it is 30.4%. (The proportion that are single by divorce, separation, or death of a spouse increased to 19.8% from the 1976 level of 15.3%).

It’s an intriguing set of information, but it is hardly news. In the past ten years, just as we’ve watched political affiliations of our mock jurors shift dramatically, we’ve also been watching the marital status of our jurors shift. While we used to consistently have a majority of jurors report they were married, now we often have a majority who are either never married or have been married previously but are no longer married. It’s another short-hand that has changed for us.

We used to think of our married mock jurors as “connected” to others. Now, we look for other signs of connectedness. Are they in a relationship? Are they involved in community groups or activities? Do they volunteer?

Just as union membership (in many areas of the country) has declined as a short-hand way to assess politics and SES, we can no longer rely on political affiliation or marital status to use as short-cuts to categorize our mock jurors. It is sometimes frustrating as we struggle to understand research results but it is also reassuring to see that change happens and to know that eventually we will wrap our brains around it and have a new short-cut defined–just in time for a new shift to occur.




October 3rd, 2014 by

My son woke up this morning and said, “Yay! It’s Friday. Hashtag no homework for two days. Hashtag let the weekend begin.” (That’s a direct quote; he actually said the word “hashtag.”) Then my daughter chimed in, “Hashtag crush Lincoln.” (Referring to tonight’s high-school rival varsity football game.) Now I’m not so out of touch that I don’t know what a hashtag is, but has social media infiltrated our modern day vernacular to the point of transforming it into bite-sized labels of our feelings? The answer is epitomized in the 2013 hashtag parody by Justin Timberlake and Jimmy Fallon on Late Night With Jimmy Fallon.

When I first heard my children’s morning hashtags, I shuddered at the thought that my kids have become walking Facebook posts. But then I started to see the brilliance in it. I didn’t have to hit my kids with a barrage of questions to find out what their day ahead looks like (which usually results in a shoulder shrug or “I dunno”). In contrast, their hashtag declarations told me all I needed to know. It occurred to me that they established the “themes” of the day – No school; no homework; go team.

Hashtags originated in the 70s to highlight special meaning in information technology. Twitter, Instagram, and other popular social media sites brought hashtags to the forefront of our communication. Hashtags make it possible to group messages into similar categories. Social media users can search for a hashtag and retrieve the set of messages that contain it. But hashtags have moved beyond being just a sorting tool. Now hashtags are commonly used on social posts to express moods and feelings. “Heading on vacation with the family” #neverbeenhappier. “Why can’t my kids just share their toys?” #greedy #selfish. These hashtags are used informally to express context around a given message, with no intent to categorize the message for later searching. This can help express emotion, tone, and context. For example, “Just found out my boyfriend is my math teacher’s son” #awkward.  “Week two of my diet!!” #excited #sarcasm

Trial themes are similar. Creating your trial themes can be as easy as thinking of how you would hashtag your case since themes are often a short and memorable word or phrase that influences (or changes) the way one views a message. If you think about your case as a Facebook or Instagram post, how do you think you would hashtag it? For example, if you’re defending a hay baling company against a claim that the machine caused the plaintiff to lose his arms, you might have a case about a company with a 25 year history of no accidents and a man who was careless. #perfectrecord, #lookbeforeyoureach. Or maybe you’re alleging that a competitor misappropriated your trade secrets and infringed your patent. Amidst the complicated, technical explanation there are simple ideas. #copycat, #secretrecipe, #makeyourown.

Okay, so maybe you wouldn’t verbalize these hashtags at trial (or maybe you would), but they can become a categorizing mechanism for trial preparation. We often say, “If everything is important, nothing is important,” meaning you can inundate the jury with every fact, document, and line of testimony you have without sending them into information overload (especially in this sound-bite world), if you give them a way to organize the data. This is where your hashtags come in.

Before trial, you can evaluate the use and importance of a document by associating it with a hashtag. Would this document be found in a #copycat search? Does it fit with #secretrecipe?  If the answer is no, consider not using the document. Or, when selecting your witnesses, think about what “search term” they belong to. Will they testify about the #perfectrecord? Will they explain that employees become complacent and fail to follow the #lookbeforeyourreach rule? At trial, incorporate the hashtag into your examination to cue the jury as to its relevance. “So, Mr. Smith, I’d like to talk about your company’s perfect record. Can you tell the jury how many accidents you’ve had in the past 25 years?” In a sense, you create your own search terms that not only express the tone of your case, but also provide contextual cues to what point the various pieces of your case are trying to make.

Try it now. Think about a case on your desk at this very moment. If you were going to post it on Facebook or write a blog about it, what hashtags would you assign to it? You never know, you may just find your next trial theme. #tryityoumighlikeit #moderndaytrialconsulting.

7 Litigator-Friendly Conferences Worth Attending

October 3rd, 2014 by


Elise Jefferson, M.A.
A2L Consulting

Some of the most valuable learning opportunities are provided through educational forums such as conferences or webinars. These forums allow for litigators to learn skills directly from individuals with expertise on everything from presentation styles to issues with expert witnesses. Many of the articles on the A2L Website offer advice and examples on how to improve your overall skills as an attorney. Several articles also address how to approach…


Are you a White American? How Black is your network?

October 3rd, 2014 by

how white is your network imageNot very Black at all. In fact, according to the 2013 American Values Survey from the Public Religion Institute, “the average white American’s social network is only 1% black”. But wait. It gets worse.

“Three-quarters of white Americans haven’t had a meaningful conversation with a single non-white person in the last six months.”

We are not talking about Facebook networks. Instead, we are talking about a much more meaningful definition of network. The researchers asked respondents to identify “up to seven people with whom you have discussed important matters in the past six months”. Respondents were then asked to provide descriptors of those individuals’  “gender, race and ethnicity, religious affiliation, 2012 vote preference, and relationship to the respondent”. In fairness, seven people in 6 months could mean that you have a pretty small circle for sharing significant things, but the results remain telling. For most people, this circle could mean family and close, intimate friends. For others, it could mean work collaborators and neighbors. It’s hard to predict. But what is clear is that most people live insular lives, accompanied by others much like themselves.

As you might imagine, the networks of some people were actually quite small.

While only 8% had no one identified in their network, 50% named between 1 and 3 people, and 43% named 4 or more people (up to 7).

People in the networks of Americans responding to this survey were only slightly more likely to be immediate family members (average: 1.8 people) than to be non-immediate family members (average: 1.5 people).

The picture becomes more surprising when we see just how segregated American society is by race and ethnicity. The following is a direct quote from the report.

“The degree of racial and ethnic diversity in Americans’ social networks varies significantly according to their particular race or ethnicity.

Among white Americans, 91 percent of people comprising their social networks are also white, while five percent are identified as some other race.

Among black Americans, 83 percent of people in their social networks are composed of people who are also black, while eight percent are white and six percent are some other race.

Among Hispanic Americans, approximately two-thirds (64 percent) of the people who comprise their social networks are also Hispanic, while nearly 1-in-5 (19 percent) are white, and nine percent are some other race.”

This table shows the tendency toward racial segregation among those with whom we talk about “important issues”.

how white is your network


You may think you know why this is the case. It is likely due to commonalities and differences other than race. But we cannot explain away the lack of racial diversity in our social networks by using our go-to arguments like age, political affiliation, gender, or even geographic residence. What differences there are, are fairly small.

It is a startling picture to contemplate considering the way race and the different ways the racial groups view race in this country have been highlighted with first, the Trayvon Martin shooting and now the Michael Brown shooting. We simply “self-segregate” says Robert P. Jones recently in the Atlantic in an article on Ferguson, Missouri. We self-segregate so much that it is no wonder white Americans and black Americans have very different perspectives on race in America. We just don’t talk to each other.

It’s another good reason to reinforce the idea that your client, witness, party is similar to the jury even if they are racially different. We need to expose our white jurors to the experience of black and brown Americans. We call it using universal values. This survey data would say our social networks and our day-to-day lives are not filled with an awareness of how universal those values actually are.

The American Values Survey: Race and Americans’ Social Networks. 2013 Public Religion Research Institute.



Take the Oath Seriously

October 2nd, 2014 by

By Dr. Ken Broda-Bahm: 

Bible - hands holding a Bible

The “swearing in” that precedes testimony is a ritual steeped in religious tradition, though it is routine these days for the oath to simply involve a solemn promise to tell the truth, without any specific religious trappings. But the form of the oath is still often within the judge’s discretion, and in some courts, that still means a hand on a Bible. Or for one defendant in a recent trial, it means a hand close to, but not quite touching that Bible. As reported in the New Jersey Law Journal, the near-touch occurred when a defendant of Indian descent, Dr. Abez Husain, apparently felt that touching a holy book with his left hand would be a sign of disrespect. For members of the jury who noticed the gesture, however, it carried a different meaning altogether, bringing the doctor’s credibility into question. The case ended in a verdict for the plaintiff, but is now the subject of an appeal. 

Of course, that is not a typical situation. But the mechanics, as well as the broader meaning of the oath, should not be overlooked. Whether its administration involves a religious text your witness does not recognize, or is phrased so as to include a “So help me God” that troubles your witness, it is best to work that out in advance. Some muslims, for example, are understandably reluctant to swear on a Bible, but even without the Bible, some draw from the Hadith that they must “Make oaths only on Allah almighty,” meaning that they could not swear without a Koran. Whether the courts need to provide a Koran has been the subject of litigation. For atheists and members of nonmajority faiths, including some Christian groups like Quakers (who reject oaths of all kinds), you obviously want to respect the witnesses’ conscience. But you also don’t want to begin testimony with a moment in court that says to the jury, “I don’t respect your religious traditions.”  

The Oath Is an Archaic Ritual

Look at any society and you will find some version of the oath, a promise said out loud for ceremonial purposes. Before Christians were raising their right hand and placing their left hand on a Bible, ancient Romans were swearing on a sacred stone in the temple of Jupiter. One component to an oath is often a belief that something bad will happen if one takes the oath dishonestly. One article (Silving, 1959) refers to the trial court’s oath as “a primitive self-curse.” The idea is that anyone who would swear an oath falsely would be revealed or struck down by God himself. 

But It Still Serves a Modern Function

The notion of a dire consequence, albeit not a supernatural one, persists. If for no other reason, the oath is still relevant because it provides a reminder of the consequences of perjury, and sometimes sets a false witness up for legal sanction. Both the threat or the reality of those sanctions can be useful. For example, I work once or twice a week with witnesses who are about to give a deposition or testify in trial. Over the course of hundreds of these meetings, it has happened occasionally that a witness in a weak moment, will flirt with the idea of avoiding or shading the truth. Whenever that comes up, the response from both counsel and from me is emphatic: Absolutely not! You’re under oath. You can put it in context, and you can even put it in the best possible light, but the bottom line is that you have to put it in truthful terms. 

And Remember, It Is Only One Means — Not the Most Important Means — of Showing Truthfulness

The oath might be an important ritual, but jurors understand that it is still a ritual. After all, witnesses on both sides are taking the same oath before telling what often amounts to dramatically different stories. Witnesses should never act as though the fact that they took an oath and took the stand means that jurors will believe them. Naturally, the panel will look at many other factors to determine truthfulness. Demeanor, for example, matters more: Does the witness look confident and relaxed the way (we believe) truth-tellers look? Consistency matters as well. Even on facts that aren’t quite material, the witness needs to present an unwavering account. 

Here is one other way to add to your perceived truthfulness: Freely admit to some of the bad stuff, particularly when jurors are going to get to that conclusion anyway – it adds to your perceived truthfulness to acknowledge something that doesn’t strictly help your case.

Ultimately, as an outward sign and performance, the oath is not nearly as important as these and many other factors of credibility. Still, the oath is an important moment: The jury’s first impression of you coincides with your participation in this ritual of hand raising, swearing, and affirming. You don’t want to mess it up (like President Obama and Chief Justice Roberts at his first Inaugural). 


Other Posts on Testimony: 


Photo Credit:, used under license

19 Ways in Which the World Has Changed Since 1995

October 1st, 2014 by


by Ken Lopez
A2L Consulting

Today marks A2L Consulting’s 19th anniversary. Almost 20 years ago, I began planning to set up this company even while I was finishing law school. Now we are one of a small handful of top litigation consulting and visual persuasion consulting firms in the country.

In these past 19 years I have observed massive changes in the ways in which people communicate, both inside and outside the courtroom. In 1995, it was still fairly novel to have a…


Admissibility of brain scans in criminal trials

October 1st, 2014 by

brain normal or murdererIt’s been a while since we’ve done an update on neurolaw issues and we think you’ll want to read the entire article upon which this post is based. The article is published in Court Review: Journal of the American Judges Association (which is probably a journal you would benefit from perusing regularly). The article (authored by a psychiatry professor with both MD and JD degrees) offers a review of past courtroom use of the Positive Emission Tomography (commonly referred to as a PET scan) and their potential admissibility for criminal trials. This is obviously a very contentious topic but one that is essential for trial advocates to monitor.  Here are just a few of the thoughts on (past and future) admissibility of the PET Scan that Dr. Rushing offers to the judges for whom the journal is written.

Pretrial Competency Hearings:

If during pretrial examination, a defendant is found incompetent to stand trial, the examiner offers a diagnosis and a prognosis for when (and how) competency can be restored. If the examiner believes competency cannot be restored, “a PET scan can help illustrate the brain-based abnormality that the examiner detected”.

Guilt Phase of Criminal Trials:

During this phase of a criminal trial the PET can “elucidate damage to areas of the brain that are involved in cognitive functions such as judgment and impulse control”. The author comments that prosecutors may challenge the defense expert’s ability to establish a causal link between the violence and the brain damage (and those challenges have often been successful in excluding PET evidence). However, she says, “PETs colorful imagery of brain damage can be useful during trial or in plea bargaining discussions”.

Penalty Phase of Criminal Trials:

The author comments brain-based deficits are a mitigating factor in cases of both capital and non-capital defendants. She cites 2004 case law mandating the consideration of cognitive and/or neuropsychological limitations even when those limitations have no direct link with homicidal behavior. Thus, she recommends the use of PET scans as mitigating evidence during the sentencing phase of a capital murder trial. This evidence could help a jury understand the limitations of the defendant and thus, they may impose a lesser sentence.

Ineffective Assistance of Counsel Claims for Failure to Explore Brain-Based Abnormalities:

Failure to present evidence on brain damage has been a “factor in overturning death sentences in ineffective-assistance-of-counsel cases”.

Finally, the author opines that the rules of evidence offer clear guidelines regarding “when and for what purposes” evidence such as PET scans can be introduced. She identifies a list of questions for judges to considering at various stages of trial.

Whether you think, as we do, that the colorful PET scans are not yet ready for prime time use in courtrooms around the country or not–when an article is published in a journal directed at judges–it’s probably a good idea to have a look!

Rushing, SE (2014). The admissibility of brain scans in criminal trials: The case of positron emission tomography. Court Review, 50 (2)



Two Webinars for Litigators: Adobe Acrobat (10/1 at noon) and PowerPoint Skills (10/8 at noon)

September 30th, 2014 by

href=""> class="aligncenter size-full wp-image-4110" src="" alt="two webinars 569x230_two webinar announcement" width="1185" height="479" />

I’m leading two webinars in the coming week that litigators may want to join.

First, tomorrow Wednesday, October 1, 2014 at noon Pacific, I’m leading “ href="" >Technology Tips for the Litigator on Using Adobe Acrobat” for the Law Practice Management and Technology Section of the State Bar. In the session, I’ll cover power user tips for Adobe Acrobat including creating PDFs, editing PDFs, annotating PDFs, Bates Numbering, redacting, E-briefs, and hyperlinking. You can preview a copy of the slides that I’ll be using for the webinar at this href="" >link. This program offers 1 hour participatory MCLE credit. You must href="">register in advance in order to participate.

Second, on Wednesday, October 8, 2014 at noon Pacific, I’ll be leading “ href="" >PowerPoint Skills for Litigators,” a webinar hosted by Cogent Legal. Here’s a short video preview of the PowerPoint webinar and some of what we’ll be covering: /> id="_ytid_57238" width="480" height="298" src=";cc_load_policy=0&%23038;iv_load_policy=1&%23038;loop=0&%23038;modestbranding=0&%23038;rel=0&%23038;showinfo=1&%23038;playsinline=0&%23038;autohide=2&%23038;theme=dark&%23038;color=red&%23038;wmode=opaque&%23038;vq=&%23038;controls=2&%23038;" frameborder="0" type="text/html" class="__youtube_prefs__" allowfullscreen webkitallowfullscreen mozallowfullscreen > /> id="more-4107">


href=""> class="aligncenter size-full wp-image-4074" src="" alt="PowerPoint Skills for Litigators" width="569" height="230" />In href="">the PowerPoint webinar, I’ll talk about key features of PowerPoint that you should understand, including the following:

  • Themes and Layouts: Themes and layouts control the look of your slide, and they also help you make slides more quickly. For example, below are slides that I created using layouts for timelines and for document callouts (zooming in on a section of a document). In this webinar, we’ll talk about how to create and edit your own custom layouts, and we’ll let you download the theme that we use in the webinar.
id="attachment_4095" style="width: 510px" class="wp-caption aligncenter"> href=""> class="wp-image-4095" src="" alt="A PowerPoint layout for presenting a zoomed section of a document" width="500" height="281" /> class="wp-caption-text">A PowerPoint layout for presenting a zoomed section of a document

id="attachment_4096" style="width: 510px" class="wp-caption aligncenter"> href=""> class="wp-image-4096" src="" alt="A PowerPoint layout for a timeline and document call-out" width="500" height="281" /> class="wp-caption-text">A PowerPoint layout for a timeline and document call-out

id="attachment_4099" style="width: 510px" class="wp-caption aligncenter"> href=""> class="wp-image-4099" src="" alt="Using Sections in PowerPoint allows you to organize your deck during presentation" width="500" height="281" /> class="wp-caption-text">Using Sections in PowerPoint allows you to organize your deck during presentation


The PowerPoint webinar will be live, so I’ll answer questions as we go along. If you need CLE credit, please note that we’ll be submitting this webinar to the State Bar of California for approval for continuing legal education credit. Click href="">here to register.

For information about this and other webinars, please visit our webinars page at href="" >

If you’d like to receive updates from this blog, please  style="color: #ed702b;" title="click to subscribe by email" href="" >click to subscribe by email.


Document from Adobe webinar:

The slide about how to Bates number in Acrobat is difficult to read, so here is an Adobe document with all the steps:  href="">Tip – Acrobat – Bates Numbering

src="" width="1" height="1" style="display: none;" />


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Jury Selection in Ten Questions or Less

September 30th, 2014 by

How much can you learn about a person in 10 questions? Can you learn enough to know whether he or she can be a fair and impartial juror? If you could, what questions would you need to ask?

An article in the New York Times asked the question, “Will you be seated on a jury?” To answer that question, they posed 14 questions. Each answer would move the needle closer to either the plaintiff’s or defense’s end of the scale, and provide the rationale for the direction of the needle’s movement as well as why the defense or plaintiff attorney would strike you from the panel. The hypothetical case involved a woman suing an investment manager for $200,000 and punitive damages, claiming the manager mismanaged her investments.

I’ve helped with jury selections all over the country, and as I watch attorneys and judges ask their questions, I am intrigued not only by the questions that are asked, but by those that aren’t. How many questions are asked simply because it’s habit and “that’s what I do,” versus the question being tied to finding a high-risk juror? What questions should have been asked? Often there’s far too much time wasted on questions that don’t “move the needle,” and not enough time on those that do. That’s part of the reason I found the New York Times piece so interesting—it made me wonder if it’s possible to uncover high-risk jurors in 14 questions. I believe that not only is the answer yes, but (as the title of this blog suggests), I think we can do it in fewer questions. However, to do so one has to let the old habits go; one has to stop asking questions that are designed to argue your case, and instead do the work of creating the high-risk profile ahead of time, then writing questions which uncover those attitudes and experiences.

In the New York Times article, the 14 questions covered five areas: 1) Demographics (blue or white collar job, employment status, age, and income); 2) Experiences (Knows someone working in finance industry? Volunteers for specific kinds of organizations?); 3) Attitudes (Believes there are too many frivolous lawsuits? Thinks investing is similar to gambling?); 4) Personality type (Likes crossword puzzles or other games that require concentration? Agrees/disagrees with the phrase, “everything happens for a reason”?); and 5) Leadership potential (Would try to get out of jury duty? Manages employees? Relationship to other jurors – keeps to self or chats with them? Works alone or in groups?).

I don’t want to quibble with the list or address whether or not I agree with their assessment of which way the answer moved the needle. You should take the test yourself to see how you fare. Instead, I want to suggest – make that “strenuously” suggest – that you re-think how you plan for jury selection: What are 10 things you absolutely need to know? Can you ask one question instead of five on the same topic? Are there any questions that you should ask EVERY time? And can you simply and directly ask the question? If you’re guided by these questions as you plan your next voir dire, what 10 questions would be on your list? Try it, and send me your lists – I’ll do a follow-up blog in a few months and anonymously share some of the best lists.

Here are 10 of my favorite go-to questions. These won’t apply in every situation, and these are primarily written from a defense perspective, but if I’m going to make you do the exercise then I will as well.

  1. Tell me about your job/occupation, including your primary responsibilities and whether or not you manage anyone.
  2. How would those who know you best describe you?
  3. How many of you have served on a jury before? Were you the foreperson? Did your jury reach a verdict? In favor of which party? [I know – I just cheated – but these were follow-ups!]
  4. How many of you think that if a lawsuit makes it all the way to trial, it must be a really strong case?
  5. How many of you would have difficulty NOT awarding money to someone who has been injured?
  6. How many of you think that large damage awards are one of the best ways to hold corporations accountable for their wrongdoing?
  7. Have you heard of “Company X” – and if so, have you ever had any kind of association with the company and/or what is your opinion of the company?
  8. How many of you believe that large corporations put profits above everything else [or amend by stating “employees,” “safety,” etc.]?
  9. How many of you strongly agree with the phrase, “Bad things don’t ‘just happen – usually someone or something is to blame?”
  10. After hearing everything you have heard to this point, is there any reason you think you could NOT be a fair or impartial juror on a case involving these issues [be specific], and these parties [be specific]?

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Check Your Mock Trial Against This List of Thirteen Best Practices

September 29th, 2014 by

By Dr. Ken Broda-Bahm: 

10930800_mI have learned from talking with clients that the phrase “mock trial” can refer to many different things. There is a common core — mock jurors hearing parts of a case and deliberating while you watch — but beyond that, the way that it is executed can vary quite a lot. So for this post, I thought I would share my own list of 13 “best practices.”  

1. Randomly Recruit Your Mock Jurors

The quality of your results will only be as good as the quality of your participants going in. As I have written before, mock jurors who are randomly recruited will be more like your actual jurors than any pool gathered from a database or, worse, from a “Friends and Family” panel. Results from those poorly recruited projects can be worse than nothing, because they can be misleading. The best practice is still to rely on a mechanism, like Random Digit Dialing (or RDD), to ensure that every member of your target population has an equal chance of being contacted for the project.

2. Conduct Your Mock Trial In Your Venue

It is not just a matter of replicating the demographics of your trial venue; it is a matter of capturing a specific local knowledge that cannot be replicated anywhere else. Your consultant might have a fancy mock courtroom in their home office (as we do), but you should only use it when your trial is venued in that city. Occasionally, when the town is simply too small to trust in confidentiality (see #4 below), there will be a good reason to conduct the research in a matched venue nearby, but that is the rare exception, not the rule. 

3. Screen For Your Likely Trial Conditions

You want your jury to not just represent the population in your venue, but to represent the pool most likely to be seated for your trial. That means considering factors like disqualifying knowledge and personal hardships, and to not recruit individuals who would be unlikely to survive those challenges in the actual trial. For very long trials, for example, we have often questioned potential recruits as though we were recruiting them for the duration and not for a one day trial, asking whether their employer compensates for jury duty, for example. 

4. Commit Your Mock Jurors to Confidentiality

Naturally, you want the mock jurors to understand that the project is like Las Vegas: what happens here, stays here. Two additional steps are necessary. One, have participants sign a contract to that effect. And two, and more importantly, make sure they understand why projects like these have to be confidential. The best reason we give is that confidentiality is necessary to respect the actual process and to avoid tainting the jury pool for the real trial. 

5. Tell Your Mock Jurors Why the Project Matters

That rationale brings up another point: We have found that it helps if jurors know that there is a real trial. They should know that their participation matters to the actual parties. Don’t lie and tell participants, for example, that the two sides have come together and agree to follow this mock jury’s verdict. But do truthfully let them know that their feedback will play an important role in assessment, settlement, and if necessary, trial preparation. 

6. Have Attorneys Present Live Where Possible

Some consultants rely on video-recorded presentations, seeing them as more controllable. But we have found that jurors pay attention differently when they are watching the screen instead of watching a person. It can be a subtle difference, but the attitude can shift a little, as if the jurors are watching in their own living room. Some consultants also like to present the information themselves instead of using attorney presentations. We occasionally do that too, but find that jurors appreciate the clear adversary component in hearing from both sides.  

7. Present Summary Arguments Rather than Strict Openings

Attorney presenters should banish the phrase, “the evidence will show,” and summarize the evidence as they tell the story. That approach of combining opening and closing (or “clopening”) allows you to test more information in less time. Of course, mock jurors need to understand that attorneys have that permission. We will tell them that they can trust that the attorneys are summarizing accurately, but the importance and weight they have given that summarized evidence is their decision. 

8. Make Sure Attorney Presentations are Balanced

In a mock trial, one side of the case controls all of the content. The goal is not to “win,” but to present a balanced view of both sides. When in doubt, err on the side of a worst-case test for yourself. It is nearly always the case that the attorneys and consultants alike will learn more from a mock trial loss than a mock trial win. To make sure the opposing side gets the very best shot, it is a good idea to have the lead counsel present the other side. That can also be an invaluable way of getting inside the other side’s head. 

9. Review and Critique Attorney Outlines in Advance

Attorneys should present live whenever possible, but the outlines for those live presentations should be reviewed and critiqued by the consultant in advance. That review serves three functions. One, it makes sure the presentations are balanced and fair to the other side. Two, it makes sure that the presentations are parallel, each focused on the same issues. And three, it allows the trial team to get some strategic advice in advance — theme, structure, arguments to emphasize — and that informs the test and makes it more valuable. 

10. Use Three or More Juries

Some consultants will use just one mock jury, and some clients prefer that, either because it is cheaper, or because it is simpler. But it is a dangerous practice in my view. Looking at just one panel, you don’t have a good sense of which reactions are reliable and which are idiosyncratic to the group you’re watching, due to that group’s composition and leadership. Watching at least two, you can see which reactions are more reliable because they cut across both groups. And adding that third group is very good insurance for breaking a tie in the event that the first two juries strongly differ. 

11. Set the Juries Up for Maximum Disagreement

Ultimately, the goal is to have fruitful dispute during the deliberations phase. To accomplish that, we do two things. First, we look at jurors’ leanings expressed in the final questionnaire prior to deliberations, and then make sure that the three groups are each balanced based on the pro-plaintiff and pro-defense jurors. Then, whether the venue requires it or not, we tell the jury to work toward a unanimous verdict. That maximizes the chances that they’ll hear dissenting views, and that they will have to grapple with those views instead of just dismissing them and moving on. 

12. Look for Patterns, Not Necessarily for Statistical Significance

As you review the questionnaire data and observe the deliberations and interviews, useful patterns and tendencies will emerge. Some of those patterns, especially on the questionnaire side, may manifest as statistically significant relationships. But, for many reasons, statistical significance is not the sin qua non for this kind of research. Mock trials generally lack the verisimilitude, as well as the sample size for that kind of analysis. Instead, reliability is going to be more subject to judgment. But that is okay, due to this last best practice. 

13. Use Your Results for Preparation, Not Prediction

Sometimes clients, or their claims adjusters, enter the mock trial with a single question in mind: What will happen in trial? There is a very short answer to that: no, it won’t. A short mock trial simply cannot replicate the conditions at trial, and even a representatively-selected panel cannot identically match the ultimate jury. So the mock trial result does not tell you what your trial result will be. But that is okay, because a mock trial is not supposed to do that. Instead, the mock trial should serve a heuristic function: telling you what to explore and what to improve. It is a way of working rather than a way of knowing. That work can payoff in either a better message at trial, or in a more grounded case assessment for settlement. But either way, having gone through the exercise, you will be better prepared. 


Other Posts on Mock Trials: 


Image Credit:, used under license


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Simple Jury Persuasion: Should you consider 3-D for your courtroom videos?

September 29th, 2014 by

3D-image-water-parkEvidence admissibility issues aside, the answer is, “only if you can do it as well as they did in the 3D movie Polar Express”. As it turns out, 3D isn’t that much more impactful than 2D unless it’s done really, really well.

Psychologists and neuroscientists studying emotion often use film clips for their research. So when these researchers from the University of Utah thought about the influx of 3D films, they wondered if those films would have more emotional impact than the older 2D films–especially for younger viewers (whom we might consider potential jurors). Theoretically, 3D movies heighten the emotional experience (since you really don’t know what to expect or when the character will suddenly reach out from the screen and take a swipe at you). These researchers looked at a few movies that came in both 2D and 3D versions (My Bloody Valentine, Despicable Me, Tangled, and The Polar Express).

Rather than asking their 408 undergraduate participants (between 18 and 64 years of age; 62.75% female; 80% Caucasian, 9.8% Asian, 7% Hispanic, 1.23% Black or African-American, 1.23% Native Hawaiian or Pacific Islander, and .98% as American Indian or Alaska Native) for their emotional reactions to the 2D and 3D movies, they hooked them up with electrodes and measured heart rate, skin conductance (how much they were sweating), and other physiological responses to film scenes during the duration of the five-minute clips they were shown.

What they found, in brief, was that whether a film was 2D or 3D didn’t really matter in terms of the participants reactions. While they reacted emotionally, there were no real differences in how they reacted to the 2D versions of the films versus the 3D versions–with the exception of small differences in “electrodermal responses” between the 2D and 3D versions of The Polar Express. (They reacted more strongly to the 3D version.)

The researchers underscore the fact that the clip was far and away the best example of the 3D technology in the study, and the differences measured were small. But, they say, overall, there were no real differences between the emotional impact of 2D and 3D films.

This is good news for litigation advocacy as the cost of creating a 3D film and animation is high compared to 2D, and the road would likely be fraught with legal wrangling before any 3D film (sanitized of undue influence) made it to the jurors. (You may be interested in reading a Canadian author’s perspective on forensic 3D animation in The Jury Expert.)

Bride DL, Crowell SE, Baucom BR, Kaufman EA, O’Connor CG, Skidmore CR, & Yaptangco M (2014). Testing the Effectiveness of 3D Film for Laboratory-Based Studies of Emotion. PLoS ONE, 9 (8) PMID: 25170878



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Would you prefer a smaller government? Actually, no you would not. 

September 26th, 2014 by

big-governmentFor a number of years now, we have been asking our mock jurors what role they think government should play in our society and giving them a number of options among which to choose. Most of them say government should play a smaller role and we certainly have all heard the media messages that tell us “smaller government is better”. The research we are covering today says that, in truth, big government (or at least bigger government) makes people more satisfied with their lives (at least if they live in advanced and industrial democracies).

The researchers examined World Values Surveys between 1981 and 2007 and focused on a question asking about life satisfaction.

“All things considered, how satisfied are you with your life these days?”

On the survey, respondents can rate their life satisfaction on a 10-point scale (with higher scores indicating higher satisfaction). The researchers were interested in examining life satisfaction in the context of how much the government intervened in the market economy. They looked at the size of the government, the country’s total social welfare expenditures compared to its GDP, used a measure of welfare state generosity (that includes how easy it is to get benefits among other things), and measured the degree of labor market regulation. (All these measures are explained in their full article which is available online here.) They also used multiple statistical controls to attempt to isolate the impact of government intervention into the economy.

What they found, over and over again, was that “citizens living in countries where the government more actively intervenes in the market economy report higher levels of life satisfaction even after accounting for a host of alternative explanations. Moreover, the substantive effect rivals or exceeds that of other traditional predictors of life satisfaction.” Poor people were no more positively impacted by government intervention than were the wealthy. That is, personal or household income had no relationship to the effect of government intervention upon life satisfaction.

The researchers are quick to state that they are not attempting an ideologically based defense of progressive public policies. They are simply attempting to answer the question of whether more or less government helps or hinders human happiness.

“We found what we believe to be conclusive evidence that indeed it does. Further, we can add that politics itself matters. Specifically, the preferences and choices of citizens in democratic polities as we have shown, have profound consequences for quality of life. In short, democracy itself thus matters.”

It’s an intriguing article when considering the debate over equalizing income differentials and the impact it would have on American society. This research would say that perhaps many of us are parroting the media and saying we think smaller government is better, when, in truth, the opposite appears to be true. In our pretrial research, we don’t care so much about whether the opinion endorsed by our mock juror is “true” or not. We care a lot more about whether their pre-existing opinion is related at all to their eventual verdict for the Plaintiff/Prosecution or the Defense. And sometimes, it is. So we’ll keep asking the question. But we’ll know (and you will know) that those citizens who live in advanced industrial democracies where government plays a larger role are most satisfied with their lives–whether they are rich or poor.

Flavin, P., Pacek, A., & Radcliff, B. (2014). Assessing the Impact of the Size and Scope of Government on Human Well-Being. Social Forces, 92 (4), 1241-1258 DOI: 10.1093/sf/sou010



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$300 Million of Litigation Consulting and Storytelling Validation

September 25th, 2014 by


by Ken Lopez
A2L Consulting

A2L supported a major win at trial last week, and the lessons from that win are extremely useful for any litigator.

The case involved two of the world’s top litigation law firms and, respectively, two of their top litigators, both of whom have storied careers. A2L worked for the plaintiff, an inventor. The defendant was a multi-billion dollar technology company that had licensed the plaintiff’s technology.

The dispute largely centered around…


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The Top 5 Qualities of a Good Lawyer

September 25th, 2014 by


by Ken Lopez
A2L Consulting

I’m often asked for advice on hiring a lawyer. In fact, I refer about two dozen cases/clients out to trustworthy lawyers each year. Usually, they range in value from family law-types of cases to $100 million complex commercial disputes.

I am in a unique position. While trained as a lawyer, I don’t practice. I spend the majority of my time running A2L, a litigation consulting firm, and I publish what is likely the most widely read litigation…


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Roger Goodell, the NFL, and the Importance of Central Facts

September 25th, 2014 by

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By Thomas M. O’Toole, Ph.D.

The current NFL scandal surrounding Ray Rice and his wife, and the numerous subsequent incidents with other players (i.e. Greg Hardy, Adrian Peterson, etc.), offers a perfect example of the problem with the “storytelling” advice that pervades the jury consulting industry these days. In many respects, the story for the NFL was strong. It had all the components of apology that scholars recommend for corporate scandals. It indicated that change was imminent. In short, it was a good story and everyone probably (understandably) felt good about themselves when the team developed the story in some conference room somewhere.

The NFL is a lot like many corporate defendants. As Gregg Easterbrook argued in a piece for ESPN, the public has been waiting for an opportunity to criticize the NFL due to its arrogance in recent years, and the NFL had no reserve of goodwill to help it through the situation. Corporate defendants are similarly situated. Large portions of the American public have strong, negative opinions of corporations and their actions. When a corporation is named as a defendant in a lawsuit, there is rarely a reserve of goodwill at trial that softens the critical orientation of jurors. This poses a significant burden on the corporation as we have seen with the NFL.

A good story is rarely enough, particularly for a party under heavy scrutiny. Instead, central fact selection and the presentation take center stage. Any single case has hundreds if not thousands of facts associated with it. Jurors care (and think) about few of these. Research shows they might remember as little as 10% of them by the time they reach deliberations. Central fact selection is about choosing which facts the presentation will make most prominent to the jurors. It is a choice about, if jurors will only remember a few facts at the end of trial, which facts you want them to remember. Fact selection is critical for three reasons: 1) it establishes immediate credibility by proving something to jurors (rather than asking them to take your word for it); 2) a strategically-chosen central fact of the case tells your jurors everything they need to know about the case while organically tapping into psychologically-satisfying principles that will drive the way they make sense of it; 3) it substantiates the central message and what jurors want to believe after-the-fact. In most cases, 3-5 facts can tell jurors everything they need to know about the case.

The situation with Roger Goodell, the NFL, and Ray Rice can teach defendants in litigation a lot about the shortcomings of mere storytelling and the importance of central facts. Let’s look at three key issues in the NFL’s current dilemma.

1. The perception of “hired guns.” Goodell hired Robert Mueller from Wilmer Hale to conduct an independent investigation of the NFL’s handling of the Ray Rice situation. In response to a question from ESPN’s Rachel Nichols, Goodell posed the rhetorical question, “You are questioning the integrity of the director of the FBI?” Judging by this response, Goodell thought Mueller’s credentials (technically the former FBI director) would carry the day. Yet, the public was quick to question the neutrality of Mueller, since his firm, Wilmer Hale, had employed the president of the Baltimore Ravens for about 31 years. Maybe it is a legitimate criticism. Maybe it’s an audience motivated to explain away any action Goodell takes. Who knows? But here we have a situation where the NFL banked on a highly credentialed expert to carry the day and the strategy failed. In short, the public feels this strategy lacks substance and even the most credentialed experts cannot hide a perceived lack of substance.

2. The failure to substantiate the story that was being told. Goodell failed on two levels in his press conferences. First, he failed to offer anything that could substantiate the NFL’s contention that it had not seen the video from inside the elevator. Sure…perhaps it is difficult to identify evidence that proves you did not see something, but Goodell failed to even offer anything that helped the public understand why it might be reasonable (or more important, believable) that the NFL did not or could not view the video. In fact, the latter is sometimes more important than the former. I’ve seen instances in trials where a party had direct evidence of something, but despite the direct evidence, the jurors did not understand why it would make sense that the contention the direct evidence supported would be true, so the jurors dismissed it. In other words, sometimes the direct evidence is not enough and the party has to go further and help jurors understand why something would be true.

The second way in which Goodell failed to substantiate the story relates to the path forward. Goodell insisted the NFL would change and declared that such changes would happen by the Super Bowl. This exactly what everyone would expect the NFL to say, so saying it does not accomplish much. Here, the NFL needs to exceed the public’s expectations if it wants to have any credibility and substantiate this plan by offering something tangible to jurors. In other words, the NFL needed to show something to the public, but instead, it chose ambiguity. The NFL may have thought it was doing this by creating a Super Bowl deadline, but it fell far short.

3. The NFL only reacted when it was forced to do so. No one believes the NFL took the right actions with the Ray Rice situation. Instead, the general opinion is that the NFL only took the appropriate action when it was forced to do so when TMZ released the elevator video to the public. This can have devastating consequences because the more important message that comes from these kinds of selfish, reactionary steps is that the public starts to think the NFL doesn’t really care about the issue and is only trying to save face for the sake of saving dollars. This strikes at the heart of the NFL’s credibility, which has spillover effects. Everything the NFL says or does will be approached with skepticism. And, in trial, the last thing a corporation wants to do is send the message that money is the only thing that will force it to change its ways. That is how extraordinary verdicts are born.

The overall point is that, when you are in the critical spotlight, your audience wants substance, not just story. Jurors have what an old colleague used to describe as “finely-tuned bulls**t detectors.” They need substance right off the bat if the defendant hopes to have the credibility to tell a story that jurors will listen to and might believe.

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How Much Money Does Someone Earn for Participating in a Mock Trial? | Jury Research Education Series

September 25th, 2014 by

A Penny for Your Thoughts?  Mock Trial/Focus Group Compensation The amount of money a person can earn for his or her participation in a mock trial or focus group varies widely. When planning for compensating participants for a mock trial, a few factors determine the level of compensation to expect. Certainly the geographic location a [...]

The post How Much Money Does Someone Earn for Participating in a Mock Trial? | Jury Research Education Series appeared first on Litigation Insights.

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September 25th, 2014 by

By Dr. Ken Broda-Bahm: 

People smiling

One of my pet peeves is referring to individuals as “diverse.” For example, it’s never felt right hearing something like, “The firm is pleased to announce three new diverse hires.” I understand that the word is being chosen in preference to the word “minority,” a word that has its own flaws. But it is the whole and not the individual who is “diverse” as a result of greater inclusion. The firm is more diverse, not the individuals who join the firm. That reasoning, it turns out, extends to the benefits of diversity as well: It is the whole and not just the individual who benefits. And that isn’t just a feel-good sentiment; that is the conclusion drawn from an impressive body of social science research. 

It is well known that the legal profession is not diverse enough, and actually lags behind many other professions in diversity. That is not just a limit on the field’s progressive credentials; it is also a limit on the field’s performance. I have written before, teams with greater diversity do a better and more thorough job when making decisions. Katherine Phillips of Columbia Business School has written an article in the current Scientific American covering some of the ways diversity is justified on grounds other than altruism. “Being around people who are different from us,” she writes, “makes us more creative, more diligent and harder-working.” These benefits of creativity, diligence, and hard work carry a clear relevance to litigation teams. 

Diversity Works

Why do diverse groups do better? Katherine Phillips analogizes social diversity to diversity in expertise:  You wouldn’t design a new car without mechanical engineers, electrical engineers, designers and many other experts. All bring their own expertise as well as their own perspective. Phillips argues that these same forms of “informational diversity” apply at a social level. ”Diversity enhances creativity. It encourages the search for novel information and perspectives, leading to better decision making and problem solving.” 

The following are some of the research findings she summarizes in the Scientific American article:  

    • Female representation in firm management leads to greater innovation and profitability (Deszö & Ross, 2012; Credit Suisse, 2012).
    • Racial diversity in banking management leads to better financial performance (Richard et al., 2003).
    • Racially diverse small working groups performed better than racially homogeneous groups in a mystery-solving exercise (Phillips, Northcraft & Neale, 2006).
    • Members of racially diverse working groups are more likely to pay attention to dissenting opinions (Antonio et al., 2004).
    • Ethnically diverse research teams are more impactful (measured by citations) than ethnically homogeneous ones (Freeman & Huang, 2014). 
    • Diverse racial groups in jury deliberations exchange a wider range of information, make fewer informational errors, and deliberate in a more diligent and open-minded manner (Sommers, 2006)

In addition to more diverse groups bringing greater informational diversity, Phillips also points to the power of anticipation: “Simply adding social diversity to a group makes people believe that differences of perspective might exist among them and that belief makes people change their behavior.” 

Toward More Diversity in Litigation 

If there is a setting where diligence, thorough deliberation, and creativity are needed, it’s litigation. Preparation and persuasion both can benefit from conscious efforts to avoid homogeneity. 

On the Trial Team

It’s not just about the question I’ve been asked a time or two, “Will a jury in this venue expect us to have a more diverse team?” It’s about whether your trial team is benefiting from the full range of perspectives and ideas. A more diverse trial team is greater insurance against groupthink as you assess your case and prepare for trial. 

On the Witness List

That benefit extends beyond the trial team as well. Your fact witnesses will, for the most part, be chosen by the facts themselves. But when you are retaining experts, think about whether you are adding to or detracting from diversity. Particularly in a large trial where experts will be more numerous and will, to some extent, work in a coordinated fashion, a more diverse team is likely to come up with more ideas. 

On the Jury

When selecting your jury, the dominant ideas guiding your strikes should be the elimination of bias and risk to your side. But in thinking about the resulting panel as a whole, it helps to think about how homogeneous or how diverse that group will be. Particularly when you need a jury that will apply heavy scrutiny and get beyond the easy assumptions, a more diverse panel is more likely to deliberate more fully and with less groupthink. 

Phillips also notes a downside to diversity: It can lead to discomfort, less communication, less trust, and greater perceived conflict. But, as Phillips notes, that discomfort can be analogized to physical exercise: If there is a little pain, then we accept that because the benefits make it worth it. Ultimately, diversity isn’t charity, and it isn’t for any “them” that’s out there. Its for all of us. 


Other Posts on Diversity: 


Antonio, A. L., Chang, M. J., Hakuta, K., Kenny, D. A., Levin, S., & Milem, J. F. (2004). Effects of racial diversity on complex thinking in college students. Psychological Science15(8), 507-510.

Credit Suisse (2012). Gender diversity and corporate performance. Credit Suisse–Research Institute.

Dezsö, C. L., & Ross, D. G. (2012). Does female representation in top management improve firm performance? A panel data investigation. Strategic Management Journal33(9), 1072-1089.

Freeman, R. B., & Huang, W. (2014). Collaborating With People Like Me: Ethnic co-authorship within the US (No. w19905). National Bureau of Economic Research.

Phillips, K. W., Northcraft, G. B., & Neale, M. A. (2006). Surface-level diversity and decision-making in groups: When does deep-level similarity help? Group Processes & Intergroup Relations9(4), 467-482.

Richard, O., McMillan, A., Chadwick, K., & Dwyer, S. (2003). Employing an Innovation Strategy in Racially Diverse Workforces Effects On Firm Performance. Group & Organization Management28(1), 107-126.

Sommers, S. R. (2006). On racial diversity and group decision making: identifying multiple effects of racial composition on jury deliberations. Journal of Personality and Social Psychology90(4), 597.

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Unfaithful partner? Would you rather be seen as mature– or as competent and strong?

September 24th, 2014 by

forgiving infidelityAccording to new research, you can’t have both. Inspired by women who told them they “would not vote for Hillary Clinton [in the Presidential primaries a decade later] because she forgave then-President Bill Clinton’s infidelity”, these researchers looked at how male and female observers viewed male and female victims of infidelity based on how they responded to their partner’s behavior.

The researchers did three separate experiments:

The first experiment used 100 male fraternity members (aged 18 to 24 years) who read a story about (ostensibly) a member of their own fraternity whose significant other had posted photos of her infidelity on Facebook. (This is tempting to visualize–what sort of photos do you imagine were purportedly on Facebook?) When confronted, the woman apologized and in response, the fraternity brother either forgave her, broke up with her, or slashed his (ex-)girlfriend’s vehicle tires.

In the second experiment, 114 “female voters” (aged 20 to 79 years) read the story of a woman who was presented as a political candidate. Her spouse of 25 years had an affair with his secretary and when confronted, he apologized. The “female voters” in this study read that the woman either forgave him, divorced him, or slashed his car seats.

In the third experiment, (dare we anticipate the use of a knife again?), 94 male and 131 female undergraduate students (ranging in age from 17 to 55 years of age) participated. Half of them read the story (ostensibly published in their college newspaper) of “Natalie Lewis, a student at a “sister” campus who learned that her male partner, a student body president at another campus and chair of the statewide student senate, was unfaithful”. The other half read a similar scenario but in this case it was a male student leader (“Brandon Thomas”) who learned his female partner had been unfaithful. When confronted, as in the other two experiments, the unfaithful partner apologized. In response to the infidelity, the victim either forgave the partner, broke up with the partner, or (wait for it) posted embarrassing details about the partner’s sexual inadequacy on Facebook. (Well, at least the aggression avoided knife-play!)

We think maybe these researchers have some anger issues (and what is it with all these knives and public shaming?), but here is what they found:

The young fraternity brothers in Experiment 1 rated the “brother” who forgave as about the same level of maturity but as less competent than the brother who left the relationship. However, they did see the forgiving brother as violating shared values as to how one should respond to a publicly revealed infidelity. They rated the brother who forgave as more competent and less damaging to their group reputation in comparison to the brother who slashed her tires. (This is reassuring.)

The “female voters” in experiment two rated the forgiving politician as less competent, slightly weaker, and less worthy of support in comparison with the politician who divorced her philandering spouse. The female voters thought the forgiving politician damaged the group’s (presumably all of womankind) power and status and violated their shared values. They did see the car seat slashing politician more negatively than the forgiving politician (which again, is reassuring).

Finally, in the third study which included male and female undergraduates and featured male and female student leaders with unfaithful partners–observers rated the leader who forgave his or her partner as just as mature as the leader who broke up with the partner and as more mature than the one posting scandalous information on Facebook. However, the one who forgave was seen as weaker, less competent and less worth voting for than the student leader who left the relationship. The one who forgave was seen as violating shared group values and damaging the group’s power and status more so than the one who left. Overall, they preferred the leaver to the forgiver, but in one final gesture of reassurance, these undergraduates preferred forgiveness to retaliation.

In other words, even though participants across all three studies agreed that forgiveness can be mature–it also can make the forgiver appear weak and incompetent. In every experiment, the participants preferred the partner who left the relationship (despite the researcher’s insistence on incorporating slashing knives and public shaming into the scenarios) to the one who forgave–although they preferred the one who forgave to the one who retaliated.

From a litigation advocacy perspective, you need to think carefully about how to repair perceptions of competence and strength if your client has chosen to remain in a relationship after a public infidelity. Obviously, this is more often in the news with male politicians publicly apologizing to their constituents and to their spouses who stand (publicly shamed and likely humiliated) behind them. But, regardless of whether your client is male or female–choosing to stay has consequences. Mature but incompetent and weak political candidates are less electable. We’d guess Hillary’s consultants are on this one, and, if not, she can call us.

It would be interesting to see whether there are correlates of these findings for other forms of trust betrayal. What happens if a company finds an employee has used company assets improperly for personal reasons? Or violated confidentiality? Or violated behavioral guidelines (drinking or drugs on the job, or making sexist jokes, or aggressive behavior). Certainly the current controversy about the degree to which domestic violence should result in workplace ramifications is the biggest headline in professional football right now. Is this going to be treated as an anger management problem that calls for treatment, or misogyny and thuggery that is intolerable? This is an intriguing first phase of a research design with huge social ramifications.

J. Smith, H., Goode, C., Balzarini, R., Ryan, D., & Georges, M. (2014). The cost of forgiveness: Observers prefer victims who leave unfaithful romantic partners European Journal of Social Psychology DOI: 10.1002/ejsp.2054



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