Deliberations

MEL GIBSON TO TIGER WOODS: The Science of Settlement Negotiation

 I kinda feel bad for Mel Gibson and Tiger Woods (he said whilst evading flying objects and hostile emails).  I agree they are terrible husbands, have done awful things and have more money than I could imagine how to spend (although my imagination can be pretty ambitious if I have some time).  However, there are few people in history who have experienced the unique sensation of watchinig one’s serious (non-criminal, as of yet) character defects scrutinized by over a billion people within a 24-hour news cycle.  Neither man was torturing puppies or attacking old ladies.  This is a matter of broken hearts, not broken laws (again, as of now). 

(Update: I've never been very politically correct. My comments above are based on the fact that no charges have been filed against anyone involved. Thanks to DA for pointing out that charges may still be coming for Gibson.  When that happens, my opinion may significantly change. In the meantime, I can't make any assumptions about the status of law enforcement investigations.)

What’s intriguing about these breakups (beyond the obvious) has been the seemingly opposite tactics utilized by Gibson and Woods in resolving them. Mel's Anger vs. Tiger’s accommodation.  Mel’s rejection vs. Tiger’s rehab.  Mel’s accusations vs. Tiger's apologies.  One would suspect that the public stances Gibson and Woods have taken in these disputes would not be terribly far from the private positioning at a mediation table.  This begs the question, which technique is more effective?

A study from the Journal of Personality and Social Psychology examined the effects of “angry negotiators” versus “happy negotiators”.  The authors demonstrated that coming to the table angry does in fact cause the other side to ask for less and give more.  However, much to Mel’s chagrin, the research also indicated that this “angry tactic” only works when the opponent feels low power in the relationship, had a low need for cognitive closure, or were under low time pressure.  As Oksana heads for “Dancing with the Stars”, I’m not getting a low-power state of mind.

One must also remember the that personality and cultural background of the opponent in a negotiation will heavily alter tactics.  An article from the Association for Psychological Science compared European American and Asian/Asian American reactions to anger in negotiations.  The study found that “appropriate” anger during negotiations caused large concessions from both European American and Asian/Asian American opponents.  However, “inappropriate” anger caused the Asian/Asian American negotiators to significantly reduce their level of concession and increase impasse.  This begs the question, what is the “appropriate” level of anger of Elin Nordegren to display towards Mr. Woods?

It would be easy to imagine Tiger empathizing with Elin’s plight, but research out of Psychological Science suggests this is not a good idea for achieving a favorable settlement.  They discovered that it is far more helpful to focus on the other side’s logical perspective and goals, rather than their emotional state of mind.  As one of the study’s authors put it:

“Negotiators give themselves an advantage by thinking about what is motivating the other party, by getting inside their head… Perspective-taking gives you insights into how to structure a deal that can benefit both parties. But unfortunately in negotiations, empathizing makes you more concerned about making the other party happy, which can sometimes come at your own expense.”

Interestingly, there is further research that supports the theory of keeping focused on your own emotions.  Another article from Psychological Science asked people to play “the ultimatum game” and try to find the most beneficial settlement that both parties could accept.  The results established that emotional self-talk significantly influenced negotiated outcomes.  The study concluded that those who were primed to “trust their own emotions” fared much better in resulting agreements than those who did not give themselves confidence building pep talks.

So, what is the answer?  If you sit down at the table too angry it may shut the other side down.  If you sit down at the table too happy it may get you fleeced.  If you try to empathize with your opponents then you may lose your own perspective, but empathizing with yourself is an odd path to victory.

Honestly, as a current litigation consultant and former mediator I have not yet found the silver bullet for negotiating conflict.  However, I will leave with a favorite quote from Lance Morrow to aid Mel and Tiger on their search for settlement:

“Never forget the power of silence, that massively disconcerting pause which goes on and on and may at last induce an opponent to babble and backtrack nervously.”  

If you can master the skill of silence, the world is your oyster.

Blogger: Matt McCusker

The other definition of "LAW PRACTICE"

 Attorney James Earhart had done an admirable job defending Karen Sypher.  For those unaware, she is the the woman who was accused of attempting to extort money from Louisville basketball coach Rick Pitino.  However, according to jurors, Mr. Earhart inexplicably went off-script at the end of the trial and lost them.  The following excerpt from an article in the Courier-Journal says it all…

…in his closing argument, James Earhart seemed to abandon his carefully scripted defense, Elder [the foreperson] and other jurors said.  First, the defense lawyer admitted that [Pitino] had been the victim of extortion, after previously arguing that it was Pitino who bribed Karen Sypher.  Then, Earhart abruptly offered up a culprit for all the threats delivered to the coach — Tim Sypher, Karen's then-husband, Pitino's longtime aide and equipment manager.

“It was a surprise,” Elder [said] “It was the first time we had heard it. There was no evidence to support it. It almost was like it was an after-thought.”

Ouch.

Many overestimate their ability to perform “on the fly” or “off the cuff,” but still choose to attempt it.  Some say the delivery of an impassioned speech is more “organic” or “real” when put together at the last minute.  Others just like the adrenaline rush or are serial procrastinators.  No matter the rationale, those who think a closing argument (or opening statement; or direct examination) is more powerful and effective without practice are mistaken.

This paper out of the University of Miami utilized quantifiable measurements to demonstrate that practicing speeches in front of an audience is very helpful to performances.  Moreover, it found that the larger the practice audience, the more adept the speaking presentation in front of a real audience.  So, while it may be more comfortable to stand in front of your bedroom mirror, it would be more useful to gather your family or co-workers.

Don’t have anyone to use as a practice audience?  No worries.  Researchers from Washington State University have shown that even simple visualization can substantially aid in the delivery of speeches.  Not only did those subjects exposed to visualization perform better than the control and placebo groups, but they also had significant reductions in trait and state communication apprehension.

Some people may feel like they are “special” or have a “unique ability” to deliver presentations extemporaneously.  That is certainly possible.  However, those who have read Malcom Gladwell’s book Outliers will know of the “10,000-Hour Rule” which suggests that the key to becoming an expert in any discipline includes thousands of hours of practice (and some luck).  How many of us could claim to even having 1,ooo hours of “off the cuff” speaking experience in high-pressure situations like a trial?

I realize that preparation levels vary by the importance of the performances (a deposition interview is not an opening statement).  However, I would suggest that we all sometimes cut corners under the belief that practice is unnecessary.  This is especially true when we are confident about our subject matter feel connected to it.  With that in mind, I leave you with this clip of testimony from a Santa Cruz City Council meeting.  This woman was passionate and felt like she had to make a strong case for her position, however she obviously skimped on the preparation.  As you can see, it didn’t quite work out. (Miss Teen South Carolina has met her match.)

Blogger: Matt McCusker

“Once Upon a Trial, in a Land Far, Far Away…”

 How many of you decided to read this blog post because the title suggested that I was about to tell a story?  What if I had use the alternative hook “Narratives and Storytelling in Case Strategy” as my opener?  Would you still have been as interested?  (I’m betting not.)

As this article by Jeremy Hsu outlines, we human beings are programmed to attach to stories.  For thousands of years we have utilized stories to teach, entertain, preserve history, and create social bonds.  Long before the written word, we spun tales around campfires and depended on the preservation of these words for future generations to avoid the mistakes of the past.  In essence, stories are our memory.

Given this propensity, why do some attorneys try to keep jurors narrowly focused on very particular facts or arguments when presenting a case?  Sure, there may be some lip service to a narrative or a key theme, but how often do trial attorneys start with “the story” and carry it as a blueprint for jurors through the entire trial? How often is the witness testimony organized by the principles of “the story” and the demonstratives created with “the story” in mind?  How often is “the story” at the base of every major strategic maneuver in trial presentation?

I would argue that the narrative must come first and then the facts can be organized (and often pruned) to support the tale told.  Trials are not about who has the heaviest bucket of facts, but instead about who is able to get jurors to attach to their plotline.  The victor is the side that is able to ride this juror attachment into a favorable deliberation where the group remembers and repeats the facts of “the story” they liked most.

A recent study out of Princeton University published in Scientific American demonstrates this exact point.  Through the utilization of active brain scans, researchers demonstrated that a good story can actually synchronize people’s brains through a form of neural coupling.  (Think Vulcan mind-meld, but without the physical contact.)  However, if the listener does not understand the story, then the bond is broken and the listener disengages.

A post on the blog Neuromarketing makes the same point through a discussion of advertising and The Narrative in the Neurons (by Wray Herbert).  In this post, it is explained that fMRI imaging studies demonstrate that successful storytelling actually activates areas of the brain that increase the experiential effects.  People actually “understand a story by simulating the events in the story world and updating their simulation when features of that world change.” (Click Here for another overview.)  While this research is focused on the written word, it further clarifies the power of a well-crafted narrative.

The law can be a foreign language to many jurors.  Making things more difficult is the high importance placed on jurors’ correct interpretation of technical words.  (As many recall from grammar school) when individuals are unsure of the meaning of a word, they search for context clues to enlighten them.  Without this contextual guidance, the words will often be discarded and forgotten.  I would argue that when presenting a case at trial, the best context an attorney can provide is a well-honed story that causes jurors to want to hear more.  Then, before you know it, they are hooked.

THE END.

Blogger: Matt McCusker