The Vocabulary of Persuasion

This is the second in a series of articles on persuasion. In the first lesson

1. we described the process of reasoning as a path made of one or more premises on which we step to a destination or conclusion and
2. we suggested that persuasion is best accomplished when person is allowed to arrive at the conclusion himself rather than having the conclusion thrust upon her by force

In this lesson we shall add additional concepts so that our framework of understanding can handle problems of persuasion. Please note that insights for the framework of understanding were obtained from The Meaning Of Meaning  by C. K. Ogden and I. A. Richards. Let us develop the vocabulary that lives within persuasion's framework of understanding.

Inside the mind of a witness is "information"; outside are “facts”; and inhabiting both worlds is a hybrid creature known as the "allegation". An allegation has some noteworthy properties.

1. One property of an allegation is polarity. There are always two versions of an allegation: a positive version and a negative version. The word, ‘not’, makes a positive allegation negative.  An example of a positive allegation is "the traffic light was red."  The negative version of the allegation is "the traffic light was not red.


2. Another property of an allegation is fidelity. Fidelity is the accuracy of an allegation when compared with “the facts”.  A high fidelity allegation corresponds to “the facts”, i.e., is true. A low fidelity allegation is contrary to “the facts”, i.e., is false.  Furthermore, it is an axiom that the fidelity of a positive allegation is the opposite of the fidelity of its negative and vice versa. Simply stated both the positive version of an allegation and its negative version cannot be true at the same time. A properly working traffic light cannot be both red and not red simultaneously. Like matter and anti-matter, the truth of one destroys the truth of the other.   A comparison of a positive and a negative allegation with "the facts" tells which is true and which is false. 


3. The last noteworthy property of an allegation is specificity. An allegation is general or particular. A general allegation allows the contribution of particulars to it. A particular allegation leaves no room for a contribution. To borrow from mathematics, a general allegation is a variable and a particular allegation is a value for the variable.
   
   Q1. The traffic light was red, correct?
   A1. Yes.
   
   In Q1, the particular comes from the interrogator. Such a question is a leading question.
   
   Q1.  What color was the traffic light?
   A1. Red.
   
   Here, the interrogator makes a general allegation. The witness is offered an opportunity to contribute the particulars. The question is a variable to which a witness is asked to supply a value. A question in the form of a variable is a non leading question.

When an allegation is brought to the attention of a witness, a witness evaluates it. A witness can believe that an allegation is true; he can disbelieve it; or he can be ambivalent to both belief and disbelief. Moreover, the certainty with which a witness makes an evaluation can vary from weak to strong. The evaluation done by a witness about an allegation is considered the opinion of a witness and varies along a spectrum. At one end of the spectrum of opinions is 100% belief; uncertainty is in the middle and 100% disbelief is at the other end. As a witness approaches the ends of the spectrum, his opinion grows stronger; as he approaches the middle, his opinion grows weaker. The location of a witness on the spectrum of opinions is one of the “somethings” that a witness tells an interrogator about an allegation.

The other “something” is the reason that moves a witness to occupy a location along the spectrum of certainty. Why does a witness believe an allegation? Why does she disbelieve it? What makes her uncertain? The answer is the basis of a witness' opinion on the spectrum of certainty. Some evidence may point to belief; other evidence may point to disbelief or the evidence may be in such conflict that a witness is uncertain.

Let us summarize the vocabulary that lives within our framework of understanding of the art of persuasion:

1. the facts: that which exists outside the mind of a witness
2. information: that which exists inside the mind of a witness
3. allegation:  a hybrid creature inhabiting the mind of a witness and existing outside it as well
   1. an allegation possesses the property of polarity: It comes in both a positive and negative version
   2. an allegation possesses the property of fidelity: It corresponds with the facts or does not
   3. an allegation possesses the property of specificity: It can be general or particular.
4. the opinion on the spectrum of certainty of a witness toward an allegation.A witness can occupy a location anywhere on the spectrum of possible opinions about an allegation.
5. the basis of a witnesses opinion. The basis of a witnesses opinion drives the witness to occupy a position on the spectrum of possible opinions about an allegation

The vocabulary needed to understand the art of persuasion is few Though few, they are valuable because they are useful. They give us a common language with which to discuss persuasion.

In the next lesson we shall explore the relationship between the opinion of a witness and its basis. We shall learn that both direct and cross examination at a trial revolves around the basis of the opinion, its strength and weakness. Stay tuned.

Causation in a negligence case

Causation is always an element of a theory of liability in negligence cases. For a plaintiff to win, the injuries must be caused by the accident. 

Many years ago, the Committee in Charge of Jury Instructions changed the Causation Jury Instructions. They substituted the word, "substantial" for the word, "proximate", as a modifier of the word, "cause".  Juries today are told that the accident must be a substantial factor in bringing about the injuries.   The change of this one word makes juries think about the size of a defendant's culpable conduct when they deliberate on negligence and when they deliberate on causation. Before the change, juries only considered the size of a defendant's culpable conduct when they deliberated on negligence.

In negligence cases, a jury allocates percentages to the people who participated in an accident according to the size of their culpability. A participant who is highly culpable is assigned a higher percentage than a participant who is culpable not so much.  The total of culpability must add up to 100%.  This is how a jury accounts for the size of culpability.

Now, however, by the introduction of the word, 'substantial', a jury gets an undeserved second opportunity to take into account the size of culpability first in their deliberations on culpability and again in their deliberations on causation. 

This is akin to making a plaintiff pay the same bill twice. Double charging a plaintiff is simply not fair.

Because a judge does not explain the meaning of the word, "substantial", jurors mistakenly think it refers to the size of culpability. It does not.  The word “substantial” in the context of causation does not mean big but means “has substance” or “is real”.  Juries deliberate on causation in order to filter out 'no cause' cases. Causation deliberations are not the place for juries to filter out 'small cause' cases - that is done by the allocation of percentages.  Both "big" and "small" acts or omissions can be regarded as causes of the accident.  To be considered a cause, an act or omission must be a link in the chain of causation.  Only if an act or omission is outside of the chain of causation shall it not be considered a cause. 

Unsophisticated plaintiffs who are not aware of this defect in the causation charge fall victim to double charging.

On opening, in summation and in the request to charge, a plaintiffs attorney ought to talk about causation in the following manner. Causation is the chain of events that began somewhere, includes the defendant’s conduct and ended in the accident. In deciding the question of causation, the role of the jury is to decide whether the defendant’s conduct is a link in the chain of causation or a stranger to the chain. It is not the job of the jury to evaluate the size of the links in the chain of causation. Links in the chain of causation can be big or small. If a defendant’s conduct is a link, it is a cause of an accident no matter its size; only if a defendant’s conduct lies outside the chain of causation is a finding of no causation justified. The doctrine of causation is not intended to filter out small cause cases, only no cause cases.

John Bosco, a partner in the accident law firm of Bosco and Mascolo, Esqs. LLP, has written extensively on the subject of causation

1. Letter to the New York Law Journal July 3, 1997
2. New York State Trial Lawyers Institute's Bill of Particulars March 2000 in an article entitled, 'Size Matters'
3. Journal of the Association of the Trial Lawyers of America, Trial, December 2003 in an article entitled, 'What a difference a word makes'
4. New York State Bar Association, Torts, Insurance and Compensation Section Journal Winter 2004 Vol. 33 No. 1 in an article entitled 'Making a Lightening Bug'

The Tort of Malicious Prosecution

On November 20, 2012, the New York State Court of Appeals - NYS's highest court - issued its opinion in the case of Grucci v. Grucci.  Divorce generates heat and, in this case, fire as well. An ex-wife obtained an order of protection against her ex-husband. The ex-wife then complained to the Police alleging that her husband was harassing her by repeated telephone calls with no legitimate purpose and that he put her in fear of death and injury during these telephone conversations. The ex-wife gave a sworn written statement to the police that the ex-husband threatened to have her killed.  The evidence was presented to a grand jury which indicted the ex-husband. After a trial, the ex-husband was found not guilty so the ex-husband sued his ex-wife for malicious prosecution in a civil lawsuit. He alleged that she lied about the harassment and threats. This time, the wife won.

The opinion of the Court of Appeals listed the elements that a plaintiff must prove to establish the tort of malicious prosecution:

1. the defendant commenced or continued a criminal proceeding against the plaintiff
2. the prosecution terminated in plaintiff's favor
3. probable cause was absent and
4. actual malice

The ex-husband lost the civil case when the jury found that the ex-wife did not commence or continue the criminal prosecution. Even though the ex-wife gave a sworn written statement, the ex-husband, for some reason, called the DA who prosecuted the criminal case to testify who said that a standing policy existed in which the police had no discretion whether or not to make an arrest in a domestic violence incident and that the District Attorney makes the decision to prosecute not the victim of domestic violence." The Court of Appeals indicated that such evidence supported the jury's findings.

The ex-husband complained on appeal that the trial court excluded evidence that would have showed the jury that the ex-wife's sworn statement to the Police was false. A dissenting judge on the Court of appeals said that if the complainant engages in bad faith conduct that results in a prosecution, she has "commenced" the prosecution. The majority of the Court of Appeals said that the ex-husband did not present enough evidence that would have made the excluded evidence admissible at trial.

What was the key evidence? During the pendency of the case the brother of the ex-husband recorded a conversation with the wife in which she allegedly admitted that she did not feel threatened by her ex-husband and allegedly lied to the police for a different reason. The trial court excluded the audio tape from consideration because the ex-husband did not lay a proper foundation for the admission into evidence of the audio tape. To lay a proper foundation for the admission of the audio tape into evidence, the Court of Appeals explained, clear and convincing evidence needed to be presented proving that the tapes were genuine and had not been altered. Such evidence would consist of testimony that showed who recorded the conversation, how it was recorded (e.g., the equipment used) or the chain of custody of the audio tape during the time between when the conversation took place and the trial. All the ex-husband offered as a foundation was to have a party to the conversation, the brother, identify the voices on the audio tape and to state that the audio tape was fair and accurate.

The Court of Appeals also said something interesting. It said that even though the State of New York was prosecuting the criminal case against the ex-husband, the statements of the ex-wife to the brother of the ex-husband could have been introduced into evidence as "admissions of a party opponent". However, the Court of Appeals said, this argument was never made to the trial judge.

Thus, the ex-husband seems to have lost this case by failing to present the proper evidence. A false statement from a complaining witness from which arises a criminal prosecution still is the first prong of a malicious prosecution case. However, in this case it seems, the ex-husband did not prove it.

Jury renders a $520,000.00 verdict for a motor vehicle accident on Staten Island

Sometimes jurors are hard to figure out. 

An independent witness saw the entire accident.  Her name was on the police report. John Bosco, a lawyer in the accident law firm of Bosco and Mascolo, Esqs., subpoenaed her to testify.  She testified that a NYCTA bus ran the red light and struck his client's car - who had the green light.  Despite this evidence, the jury returned a verdict on the liability half of the trial declaring that the bus driver deserved 60% of the blame and his client deserved 40% of the blame - even though Bosco's client had the green light. Go figure.

On the damages half of the trial, the jury returned a verdict of $400,000.00 for past pain and suffering and $120,000.00 for future pain and suffering for a total of $520,000.00

Victory Lap at Raceway Park, Englishtown, New Jersey- $200K Settlment

On Sept 20, 2003, our client was part of a group that brought two tow trucks to compete at Raceway Park, in Englishtown, NJ.   They were in the Heavy Tow Truck Category for the Diesel Truck Nationals.  One of the trucks won.  The winning truck was stopped taking on spectators to carry them around the track for the victory lap.  As our client was climbing aboard, the tow truck suddenly lurches forward and begins to go throwing our client off the truck and onto the ground where he injures his knee.  When the case came into the office, it was thought to be a good case.  Then we took the driver's deposition.  The driver testified under oath that our client did not get hurt while he was climbing aboard.  The driver saw our client leap over a barrier, loses his balance and fall onto the ground.  At trial, if the jury believed the defendant, we would lose the case.  It would be our client's word against the driver's word. Or would it?  Security at Raceway Park had witnessed the accident.  For trial, our investigation located the security guard and brought him to Court to testify after the defendant had already testified in Court.  The security guard would show that the Defendant was not telling the truth. Before the security guard appeared, the Insurance Company for the Defendant offered $35,000 to settle.  After the security guard, the case settled for $200,000.00.