By Dr. Ken Broda Bahm:
The art of training legal advocates has a long and honorable history. For example, the Socratic method used in law school is still an unbeatable way to teach critical thinking. But what about trial advocacy? On that score, many programs like NITA and some of our firm’s in-house programs have emphasized practice. At its best, that practice is conducted with actual mock jurors, and ideally, you want a systematic way of getting feedback from the mock jurors. Recently, I came across research pointing me to one tool that I’ve never used. It is called the “B.A.T.A.” or “Behavioral Assessment of Trial Attorney.” It is a scale on attorney effectiveness that any research participant, or any mock juror brought in for training purposes, could use.
The scale has been demonstrated to be valid and reliable, and in a recent post, I shared research using that scale to show that the scores can play a decisive role, with jurors treating attorney credibility in much the same way they would treat more substantive parts of the message. I wanted to return to that research to share more about the scale itself and the ways it might be used, not just in research but in training as well. The entire scale is at page 249 of a doctoral dissertation by Steven Wood (Wood, 2014). Whether the scale itself is used or not, it is worthwhile to consider each of the elements that B.A.T.A. measures as a kind of checklist of the traits that an effective and credible advocate should have. In this post, I will share each element.
The Behavioral Assessment of Trial Attorney (B.A.T.A.) measures 10 specific subjective traits. The mock jurors or research participants rate an attorney on a scale from 1 (worst) to 7 (best) with short descriptions for the lowest, middle, and highest points. In the list below, I share each item description from the scale along with the description of the highest value, as well as my own thoughts on how attorneys can develop that skill.
1. Persuasion– The ability to convince a jury to adopt the attorney’s point of view using factual knowledge or emotional connections.
Best: Attorney combines the facts of the case, uses theory and outlines, explains the evidence, and integrates visuals and technology into their presentations so that the information is easily understood.
Develop this skill by thinking about case messaging from the very start. Start to integrate the information into a message during early case assessment and discovery. Explain and justify the case using as many people as sounding boards as possible.
2. Critical Listening– The ability to listen to what other people are saying, retain that information, and ask appropriate questions.
Best: Attorney asks relevant and important questions during cross-examination and asks appropriate follow-up questions. Attorney also has excellent listener/speaker interaction with witnesses by anticipating responses of witnesses and paying attention to witnesses and clients.
Develop this skill by practicing it in daily life. When questioning, have a detailed plan but don’t follow it in a rote manner. Instead, base the next question on the last answer.
3. Oral Expression– The ability to communicate information and ideas orally so others will understand.
Best: Attorney makes understandable points by speaking clearly and using everyday language that everyone can understand without insulting individuals. Attorney connects evidence and facts of the case from each phase of the trial.
Develop this skill by distinguishing your oral style from your written style. An oral style is based on shorter and simpler sentences, more vivid and visual imagery, and conversational style. And always include the “This is important because…” part of the message.
4. Physical Presence– The quality of self-assurance and sincerity that permits the attorney to achieve rapport with jury and judge.
Best: Attorney expresses confidence by using open body language that is non-threatening and has good eye contact. Attorney has a sincere tone of voice and a professional appearance.
Develop this skill by preparing and practicing so that your experience and confidence come across. Also, the best way to show sincerity is to be sincere, so it helps to find and focus on an angle for your case that truly motivates you.
5. Interpersonal Interaction– The ability to establish effective exchanges with witness(es).
Best: Attorney develops a rapport with witnesses that involves trust, and also elicits excellent cooperation from witnesses. Attorney asks relevant questions of witnesses that elicits any relevant personal information.
Develop this skill with your own witnesses by preparing substantively in advance. Don’t neglect direct examination preparation. When your witness clearly understands your goals and your sequence, communication is much easier. And extend that same collegiality to witnesses on the other side.
6. Speech Clarity– The ability to pronounce words and enunciate speech so that it is understandable to a listener.
Best: Attorney uses proper English at all times, pronounces all words in an easily understandable manner and speaks loud enough for everyone to hear.
Develop this skill by recording yourself as you practice. Don’t underestimate the simple need to be heard and understood, and remember that when you are easier to listen to, you are also easier to believe and to trust.
7. Organization– The ability to classify multiple pieces of information and/or ideas.
Best: Attorney organizes important aspects of the case through the use of opening and closing arguments that emphasize the key points of the case, and uses graphics which list or illustrate the important facts visually. Attorney also has all files organized and knows where important papers are at all times.
Develop this skill by thinking of organization, not simply as a speaker’s tool for knowing what to say, but as a part of the message. A simple and flat structure will also make it easier for listeners to understand and absorb each new chunk of information.
8. Adaptability– The ability to “switch gears” from phase to phase of a trial without loss of efficiency or composure.
Best: Attorney is prepared for unexpected events that may occur during the trial and deals with them appropriately without losing composure. Attorney thinks ahead during the trial, is overly prepared, and knows exactly what comes next.
Develop this skill by preparing everything down to the details. When the preparation is thoroughly done in advance, you are free to devote your attention in the courtroom not to ‘working’ but to listening, thinking, and reacting.
9. Synthesis– The ability to make varied information coherent and to reorganize it for different approaches.
Best: Attorney easily handles unexpected rulings or information and reorganizes arguments appropriately. Attorney has an exceptional knowledge of case law and presents facts favorably for their client, including the use of graphics.
Develop this skill by keeping your mind open to multiple ways of making your case. Avoid becoming dependent on a single theory, witness, or fact. The more you’re able to envision and synthesize multiple paths to your verdict, the more adaptable you’ll be.
10. Social Perceptiveness– Being aware of others’ reactions and understanding why and how people react to certain situations.
Best: Attorney has the ability to draw important information out of a witness, can read how the jury is reacting to the testimony, and then use these responses appropriately. Attorney knows how to interact with witnesses to elicit the necessary testimony.
Develop this skill by watching the jury and watching the witness. You won’t always accurately assess the reactions, but just tuning in to the jurors’ or witnesses’ level of attention and their potential reactions will help to make you a more audience-centered communicator.
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Other Posts on Attorney Credibility:
- Treat Your Credibility as Central, Not Peripheral
- Don’t Corrupt Your Credibility
- Smile (For Credibility and Affect)
Wood, S. M., DeVault, A., Miller, M. K., Kemmelmeier, M., & Summers, A. D. (2019). Decision‐making in civil litigation: Effects of attorney credibility, evidence strength, and juror cognitive processing. Journal of Applied Social Psychology, 49(8), 498-518. https://doi.org/10.1111/jasp.12600
Wood, S. (2014). Decision-making in Civil Litigation: Effects of Attorney Credibility, Evidence Strength, and Juror Cognitive Processing (Doctoral dissertation).