Deliberations

Using Metaphorical Language Can Cure an Ailing Case (Research proves it!)

We have all felt beaten down at one point or another while preparing for trial. We’ve been lost in the woods and unable to keep our heads up as we slowly sank into a seemingly inescapable abyss. Then suddenly, an idea landed out of nowhere. We grasped it and utilized the concept to climb out of the desperate circumstances. After a little sweat and tears, we freed ourselves from old themes and ran to victory with a new strategy.

Okay, so going too metaphorical may be overkill. However, it is undeniable that the paragraph above relayed a palpable scene of being physically stuck and then escaping through pulling. What if I had described being lost in the dark (instead of the woods)? Would grasping a concept seem less helpful than discovering a bright idea or seeing the light?

A recent study out of Stanford University has demonstrated that metaphors may be even more powerful than we previously thought. More than simply conveying a concept, they may also subtly direct us on how to process and react to the information.

In this research, participants were given one of two versions of a media report on crime to read and then offer suggestions. The only difference was that one report described the crime as “a virus ravaging the city”, while others suggested crime was a “beast ravaging the city”. They then asked the participants to give recommendations for a solution.

Interestingly, those who read the “beast” metaphor were more likely to suggest utilizing increased police enforcement than those who read the “virus” version. Instead, the “virus” readers showed a greater propensity towards discovering the root issue of the problem and curing it.

All it took was a single word change and the result was a significant shift in problem solving style. Imagine if this was a case in front of a jury, arbitrator or judge. Could word choice have the same type of impact on the trier of fact?

This research demonstrates that beyond making a case more palatable or comprehensible, one can actually influence the manner of problem solving a jury might utilize. Ever reminding us that a good metaphor is like a key to the unconscious mind. (Damn, I think that was a simile.)

Blogger: Matt McCusker

 

Judicial Variability: To serve at the pleasure of the King (or Queen)

Judge Valerie Vega (coincidentally out of Vegas) recently made news by ordering jurors in a murder trial to stay all-night to finish hearing and eventually deliberating the case at hand.  In fact, the jury began deliberating at 3am (after 13 hours of trial) and finished at 7am. While juror overtime is not uncommon, this was extreme.  After the sun rose, the jury ended up acquitting Victor Fakoya in the murder of a 2-year old child that was in his care.

However, what made this story truly newsworthy was Judge Vega’s reasoning.  Shockingly, she was set to start a two-week vacation the next day and wanted a verdict so she could be free to leave.  While Judge Vega blamed the attorneys for the long trial, it was uncovered that many of her court days were cut short so that she could go watch her kids play soccer.  No matter the reasoning, it is hard to believe that a jury that had been up all night could fairly consider the facts in any case, much less the potential murder of a 2-year old.  It is also hard to believe that Judge Vega’s decision was completely within her rights as judge.

I would like to first say that the vast majority of judges are fair individuals who work hard at being the referees of our complex judicial system (and would never hold a cheeky blog against someone).  That said, the power a judge has over a case can be remarkably scary to those who sit outside our legal bubble.  In fact, I suggest that many would choose not to go to trial if they had a palpable sense of how little control one has over one’s fate after the case has been calendared.

As a litigation consultant, I’m often asked about the generalized procedures for jury selection and am typically embarrassed when I must reply “It depends on the judge.”  Surely someone who advises on these matters would know what the rules of the game are?  However, as many of us are painfully aware, the rules are actually guidelines that can be widely interpreted from state to state, from city to city and even from courtroom to courtroom within the same building.

There are many questions that come with jury selection: What qualifies for cause or hardship?  How are the alternates selected?  When does the day start and end?  How long is lunch?  What is the procedure for administering strikes and how much time is there to decide?  Are the attorneys given a real opportunity to ask questions in voir dire?  What questions will the judge ask the jurors?  Are juror questionnaires allowed?  However, the answers to these questions vary wildly.

To some it would be natural to ask:  why have we not developed more standardized rules and procedures for courtroom logistics?  Realizing that judging the strength of a cause strike or hardship claim comes down to personal opinion, there are still many other decisions that simply speak to the personal preference of the judge.  It could be argued that this variability of judicial inclination increases stress, the likelihood of a mistake and in some cases (like Judge Vega’s) abuse.

That being said, the true value of a litigation consultant is demonstrated through the fact that judges who preside across the hall from one another can have very different answers to all of the above questions.  A consultant who is worth their salt is ready to go into any courtroom situation and makes his or her living from the seat of the pants (figuratively and literally).  While judicial variability may be an added stress, it is one that we in the field of trial consulting are happy to help manage.

Blogger: Matt McCusker