The Art of Dodging Questions

June 30th, 2011

One of the more entertaining talks at the American Society of Trial Consultants meeting this month in Seattle was given by a Harvard Business School professor, Michael Norton. He showed that a likeable witness can persuade people simply by smiling confidently and talking eloquently about a topic, regardless of the substance of a message.

Michael gave examples of how politicians skillfully move from how questions to why answers. When asked how they will solve a problem, skilled dodgers often say something like “First let me tell you why issue X is so important to the American people…” After several minutes of nodding and smiling, most people will forget the question and assume it was answered.

Another tactic: when someone begins an answer with “I’m glad you asked me that…” it feels like they will answer the question so listeners are less likely to notice a subtle dodge, such as when the speaker generalizes their response then refocuses on their preferred topic. As long as the topic of the answer has about 10% overlap with the topic of the question, people are generally satisfied with an answer if it is confidently and fluently spoken, without too many technical qualifiers.

There are several things you can do when you’re faced with a smooth-talking expert who sounds like they are answering your questions but is actually shifting the topic to their talking points:

1. You can write your question down on a board and remain standing next to it while the witness changes topics. Remind jurors of the question so they are aware that the witness is dodging it and you will win this contest.

2. You can also say something like “That is a fantastic answer. Can you try to answer my question instead of yours?”

3. Separate the likeable person from their statements by reading a transcript of their answers so jurors focus on the testimony alone. Most of our communication is nonverbal so messages stripped of a likeable person’s body language, voice tone, facial expressions and charisma sound strikingly less believable.

4. Remain calm and collected. People dislike tension — and the troublemaker who’s causing it, which makes them less credible and trustworthy. We base decisions on our emotional reactions to people. Research shows that we tend to believe people who seem confident and make eye contact, no matter what they have to say. Furthermore, jurors are unlikely to understand that testimony damages one side unless a witness, attorney or others “admit” this by emotionally reacting. If you show frustration with a witness because they are not answering your questions, jurors may misinterpret your frustration as acknowledging defeat on a point.

How Reptile and Rules of the Road approaches work

May 28th, 2011

The Jury Expert asked me to respond to an academic study that found sad jurors are less likely to become angry and conversely, that angry jurors are less likely to feel sad. This is important because anger and empathy (related to sadness) drive juror decision-making and usually lead to larger verdicts.

I used two case studies to show how the emotional blunting research helps explain surprising verdicts. I also analyzed how emotions influence juror decision-making, including, how Reptile and Rules of the Road techniques trigger cognitive appraisals for anger, i.e., how jurors’ perceptions of certainty and control drive verdicts. David Ball contributed his insights, distinguishing motivating anger from passive, “impotent” anger, which is unhelpful to plaintiff attorneys and for problem-solving, in general.

When jurors are certain that the defendant had control of a bad outcome, they return a larger verdict than when the focus of the trial is on other issues, especially if the focus is on confusing expert testimony. Interestingly, certainty about fault and causation are influenced by certainty of other, unrelated events and how angry the jurors are feeling, overall. I also discuss how jurors’ perception of risk is affected by their emotions and by the sequencing of evidence in trial. The article will be published on Monday, May 30th and is available here for download.