By Dr. Ken Broda Bahm:
(Marie Colvin, Journalist, 1956-2012)
Legal cases are about loss: asserting, proving, disputing, and defending against loss. Those who study and practice civil litigation have a strong interest in knowing how people comprehend and give meaning to loss, because that is what determines their reaction to your case. And current events provide a fitting, albeit tragic, example. On February 22nd, veteran wartime correspondent Marie Colvin was killed alongside French photographer Remi Ochlik by the Syrian government’s shelling of the city of Homs. The iconic reporter had spent her career covering conflicts in every imaginable hot spot: Iraq, Palestine, the Balkans, Chechnya, East Timor, Israel, and lost her left eye while covering the civil war in Sri Lanka. Wherever she was, she was far from the only one at risk, but she was there because she chose to put her life on the line to shine a light on stories that would otherwise be invisible. Her funeral mass is today in New York City.
The journalists’ deaths have brought attention to a situation that, up to now, has had no shortage of deaths: a minimum 7,500 civilian deaths since the uprising against Bashar al-Assad began about a year ago. Referring to the fresh attention that just two deaths brought to the continuing massacre, a local activist going by the name of Abo Bakr noted the incongruency, “Just look how cheap the Syrian blood is for the international community…” Part of it is implicit tribalism: Western audiences may simply value those we consider our own more than others. But part of it is also the power of an example: the ability to identify in particular with the losses of two people. The reason is as simple as it is disturbing: We seem to be hard-wired to value most what can be framed in not just human terms, but in individual human terms. As Stalin is said to have remarked, “The death of one man is a tragedy. The death of millions is a statistic.” The implication for litigation applies not just to deaths, but to any of the losses that lie at the foundation of a case. Even when losses are measured in opportunities or in cash, we still value the individual example much more than the aggregate.
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There has never been a great piece of literature focusing on “a people” en masse. Instead, the story almost invariably focuses on a person at its center. That is because narratives require actors. We are used to understanding the world in a way that focuses attention on individuals. Given the importance of story in litigation, the same principle applies in court. I want to stress three lessons that stem from this narrative truth:
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1. Seek the Example. This is obvious advice, of course. In any communication setting, we are accustomed to the need to illustrate and exemplify in order to make our points more concrete. But in litigation, that simple idea is not always implemented and can be lost in a focus on claim elements and specific evidence. It is not just the case centered on a personal tragedy that requires such a human center, but even – and perhaps especially — those cases that focus on more abstract losses or large classes of individuals.
2. Don’t Always Pick the Obvious Example. We are used to thinking of this principle in personal injury cases where the focus is on the tragic victim. In today’s litigation environment, that impulse to place the victim at the center of the story can be disastrous for a plaintiff, inviting jurors to see the case as an appeal for sympathy. Instead, many P.I. cases come across better when framed as a story about a bad policy or a poor decision from the defendant. But personalization still plays a critical role. For example, when we set out to create a fact pattern and argument script for our study on visual persuasion, we had a fact pattern focusing on a 16-year-old baseball pitcher injured by a ball batted from an aluminum bat. Instead of choosing the boy as the example, the script personified the story by focusing on a single scientist for the corporation at a single moment of decision, when he decided to design a bat that could get around the safety standards.
3. But Strive to Make it More Than Just an Example. It is a limited view to just think of the example as the sidecar of argument — here is the argument, now here is the example. Instead, the illustration you choose should form a centerpiece. Take a case on securities fraud, for example. The investors who were harmed in the case may or may not be the plaintiffs, but either way they should be at the center of a jury’s attention. So it isn’t a matter of just picking a moment in the opening to say, “look, here is a retiree who lost her life savings,” and then move on. Instead, the story from start to finish should focus on those investors telling the tale from their perspective, as it impacts them. You should try to build a bridge to your example in every part of your argument, so it becomes the filter through which your case is viewed.
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That is exactly what Marie Colvin was doing in the final story she filed: personifying the loss experienced by an entire city by focusing on the death of one small child. It is in that context that we need to remember that the illustration is not merely a “tactic” of communication. It is a connection that is immediate, human, and profound. The final words in her final broadcast were that, “The Syrian Army is basically shelling a city of cold, starving civilians,” and we can only hope that the examples — the child’s and her own – help to focus the world’s attention.
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Other Posts on Damages:
- When Arguing Damages, “Drop Anchor” Even in Murky Waters
- Spot the Jurors Who Feel Entitled to Award Higher Damages
- A Mixture of Justice and Revenge: Target Juror Psychology in Awarding Damages
- Get the Gist of How Jurors Decide Damage Numbers
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