By Ken Broda-Bahm, Ph.D.
Dear legal psychology and legal communication research fields:
First of all, thank you! Speaking, I believe, for all litigation consultants and for many savvy litigators, we rely on your work. We conduct our own research too, of course, through mock trials and focus groups. But because we’re generally using economical sample sizes in those projects, it also helps enormously to have larger-scale and peer-reviewed experiments, surveys, and theory-building to fall back on. As responsible social scientist-practitioners, we obtain knowledge from these research findings and trends in legal communication and psychology that directly inform our advice to clients, and that plays a very direct role in helping our advocacy-based legal system work better. So thank you.
But second of all, is there anything we can do to help you balance out the civil and the criminal sides of the house? What I mean is that, in addition to getting nearly all of the good legal dramas on TV and the movies, the criminal trial sphere also seems to benefit from the vast majority of research.
The Research Skew
Here’s the problem. Based on data from 2012, U.S. District Court filings were 75 percent on the civil side and 25 percent criminal. State courts are naturally less skewed, but the most recent data I could find in 2009 still showed that completed cases were still 55 percent civil and 45 percent criminal.
So, if the research followed that distribution, you would expect it to cover criminal and civil trial contexts either equally, or lean more heavily on the civil side. But that isn’t even close to how the research breaks down. Taking one of the top refereed journals in Legal Psychology Law and Human Behavior as an example, the journal’s stated focus is on “issues arising from the relationship between human behavior and the law, the legal system, and the legal process.” That doesn’t connote an exclusive or primary focus on criminal cases, but looking back on my own stack of the last twenty five issues, fully 85 percent focused on criminal justice contexts, with another 11 percent focused on mental health. Just 8 articles out of 192 – about 4 percent -- focused on civil trial settings. Content naturally differs across different research sources, but a de-emphasis on the civil justice system is repeated in other journals, conference papers, and other research available online.
If someone had dropped down from outer space and was trying to piece together the nature of our court system based solely on the proportions of research output and the content of our publications, they would conclude a few things:
- Nearly all trials are criminal trials
- These trials generaly start with a false confession
- Then these trials generally end in the death penalty
- Nearly all witnesses are eye witnesses
- And most of those witnesses are children
Why the Criminal Overemphasis?
Of course, all of these issues – and some other common themes such as interrogation and line-ups – are critical. But this proportion of emphasis downplays the reality of our justice system. In addition to these criminal settings, our court system also focuses to a very large degree on contract cases, torts, and property cases. Granted, in criminal cases, someone’s freedom is at stake, and in civil cases, it is often just their fortune. That arguably justifies a greater emphasis on the criminal side, but not to the point that fewer than one study in twenty focuses on civil trials.
Part of the emphasis on the criminal side may stem from what are often, though not always, the higher personal stakes of criminal justice. But some also likely stems from the reasons that Law and Order focuses where it does: Crime seems to be inherently more dramatic and more interesting. In addition, once there is a skew, then the skew tends to feed on itself due to the recursive tendencies of research itself: Old research drives new research, and studies tend to march forward on the momentum of past results.
Where the Consultants Are
The question is whether this focus is serving those of us who are putting the research into practice. To be sure, there are many consultants, including some of the greatest, who work primarily on the criminal side. But I would hazard the guess that there are more consultants – probably a lot more – who do most of their work on the civil side. Part of the reason for that is, admittedly, not the best reason: Civil cases tend to draw more paying clients. But, speaking for myself and probably many others who have some experience but less day-to-day work on criminal cases, I’d be willing to do much more, even on a pro bono basis (hear that, defense attorneys?).
But even if consultants were more evenly distributed in criminal and civil cases, there would still be a clear need for greater empirical attention to civil litigation than the research community currently affords.
The Questions on the Civil Side
There are definitely some exceptions to this general rule, and many examples of quality research that has helped our understanding of civil trial persuasion. Many examples could be mustered, including all of the work on anchoring when it comes to awarding damages numbers, as well as Dr. Edie Greene and Dr. Brian Bornstein’s work on the intersections of liability and damages. Once this post makes the rounds in LinkedIn discussions, I hope that others will comment pointing us to other examples of good recent research on the civil side. To me, however, these examples just serve as tantalizing clues of the kinds of research support we could have if there was more parity between the criminal and the civil research arenas.
But to start the ball rolling, here is my list of some of the questions that could benefit from some empirical attention in a civil trial context:
- Will the ‘Reptile’ approach fare better in a controlled experiment?
- What is the nature, extent, and effect of anti-corporate bias?
- What factors mediate the effectiveness of negotiations and ADR?
- What is the nature, extent, and effect of anti-plaintiff bias?
- To what extent does bias against a company or party hurt that entity (via prejudice) or help that entity (via lowered expectations)?
- How effective are attorneys at predicting civil case outcomes?
- What mediates damages anchoring in a civil trial context?
- What is the effect of civil defendant apologies offered in trial?
- What increases or decreases the credibility of a company representative (30(b)(6)) witness?
Ken Broda-Bahm is a Senior Litigation Consultant for Persuasion Strategies, a service of Holland & Hart LLP, based in Denver, Colorado. Ken assists litigators for plaintiffs and defendants who are seeking to maximize their message effectiveness in jury trial, bench trial, arbitration, and mediation settings. He provides strategic advice, messaging, opening statement assistance, witness preparation, demonstrative exhibit advice, jury selection, mock trial and focus group research. Work is always tailored to both the needs of the case as well as the budget. His background is in legal communication, small group research, persuasion, and rhetoric.
Ken blogs at the ABA Journal Blawg 100 publication, Persuasive Litigator (www.persuasivelitigator.com).