Treat Your Credibility as Central, Not Peripheral

Treat Your Credibility as Central, Not Peripheral by Dr. Ken Broda-Bahm

The lawyer preparing their case likely goes through a long list of, “What will they think about …” questions, relating to the facts, the evidence, the arguments, and the law. Eventually, that attorney might get to the question, “And what will they think about me?” Or, maybe not. I think attorneys tend to think of their own credibility as the icing on the cake—something that might matter in grabbing the jury’s attention, for example—but they expect it to be the strength of evidence that wins out. However, that may not be the case. New research shows that jurors treat credibility as a substantive or core part of the message, comparable to evidence, and not just as a peripheral or heuristic cue.

The research team, including consultants from the firm Courtroom Sciences and academics from the University of Nevada, Reno, published the results of their study in the Journal of Applied Social Psychology (Wood et al., 2019). They found, not just that credible attorneys do better (they do), but also that when it comes to damages, attorney credibility matters more than evidence. And this result is coming not so much from the jurors who are half-paying attention, but from those that seem to be thinking most deeply about the case. In fact, those with a higher “need for cognition,” defined as a tendency to engage in and to enjoy effortful thinking, were more influenced by a credible attorney than those with a lower need for cognition. That seems to suggest that, based on the way that credibility is treated, it is the cake rather than the icing. They conclude, “Jurors view attorney credibility as a piece of case evidence and not a peripheral cue as is often assumed.”

We have known for a long time that highly credible sources are more persuasive. But that question has not been fully researched with attorneys, and in a legal setting, we have not had a full understanding of how credibility interacts with evidence and with juror characteristics.

In this study, the team engaged 446 research participants who heard a video-recorded civil trial including opening statements, witnesses, closing arguments, and instructions. They manipulated the strength of evidence, and manipulated credibility using a scale that was developed to assess attorney believability, the Behavioral Assessment of Trial Attorney (BATA) scale, and also measured jurors’ Need for Cognition (NFC), or preference for engaging in difficult mental work, or not.

What they found is that when the evidence is strong or ambiguous, more credible plaintiff attorneys fare better than less credible plaintiff attorneys. Interestingly, attorney credibility was the only significant predictor of compensatory damages, not evidence strength. Apparently, the more credible plaintiff’s attorney is able

10 Attorney Journals Orange County | Volume 169, 2020 to be more persuasive and to evoke more anger, they concluded; “attorneys do matter to the outcome of cases.”

It was really the finding regarding NFC that attracts the most attention, however. In previous research on NFC, which we have written about here, the typical finding is that people who are high in the trait (agreeing, for example, that they “prefer complex to simple problems”) are more attuned to the evidence, while those who are lower in the trait (agreeing, for example, that “thinking is not my idea of fun”) would focus more on peripheral traits, like credentials or likability. These typical findings led the team to expect that the tendency to focus on factors other than evidence would be solved when we have a more sophisticated or higher NFC jury.

But, they found the opposite: Attorney credibility mattered for high, but not for low NFC jurors. The fact that those with a higher preference for cognitive work would emphasize attorney credibility more rather than less leads them to believe that credibility is being treated as a substantive dimension, not a superficial one. “Source credibility is not inherently a heuristic or peripheral cue,” they concluded; instead attorney credibility, “can act as an additional piece of information that jurors use when making verdict decisions.” One implication is to see it all as substance. Attorneys should treat their own credibility as one of the factors that jurors will consider in deciding whether their client has a strong case or not. The researchers write, “Attorneys must approach each case with a heightened understanding that strong evidence will not necessarily carry the day. There will be instances in which the jurors will integrate the attorney’s perceived credibility into their decisions.”

The other implication is to prepare one’s credibility and defend it as much as you would prepare and defend your evidence. Practicing and assessing your own presentation and streamlining and refining your message is as important a step as discovering and organizing the evidence. It is not a matter of having to display excellence at every step, but it is a matter of being clear, honest, and useful, and in showing respect to jurors. Your case facts and evidence certainly matter, but a credible attorney will always have an edge.

Dr. Ken Broda-Bahm has provided research and strategic advice on several hundred cases across the country for the past 21 years, applying a doctorate in communication emphasizing the areas of legal persuasion and rhetoric. As a tenured Associate Professor of Communication Studies, Dr. Broda-Bahm has taught courses including legal communication, argumentation, persuasion, and research methods. He has trained and consulted in 19 countries around the world and is Past President of the American Society of Trial Consultants.

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