One of the most popular strategies used and advocated by many plaintiff’s attorneys across the country is the “broken rule” strategy. The theory is that the most important strategy for any plaintiff is to establish a clear rule up front, and then prove that the defendant broke that rule. Some of the popularity of this theory comes from Reptile, written by David Ball and Don Keenan.
As I’ve written before, there are a variety of significant problems and shortcomings associated with the Reptile strategy, one of which is that the “science” that serves as the foundation for the theory has largely been disproven. However, just like some people still believe vaccinations lead to autism, many attorneys have brushed aside the problems with the science behind the Reptile strategy. So let’s set the science discussion to the side and take a closer look at the “broken rule” strategy. Continue reading →
A few weeks ago I was listening to a judge give his rulings on a number of pre-trial motions. With each ruling, he began by saying, “I’m inclined to find …” The first time, I didn’t really think anything of it, but a few hours and dozens of motions later, it was clear that this judge could not make a simple and strong declarative statement. While I typically do not look for opportunities to “take on” a judge, this particular example of a powerless speaking style deserves some attention namely because of the position and also because the judge was a man.
For years, I’ve studied, lectured, and written on gender communication. The “powerful – powerless” communication continuum is part of that work and is used to describe the difference between stereotypical male vs. female communication styles. The “female” end of the continuum is often associated with “powerless” speech – speech that includes hedges and qualifiers: “perhaps,” “maybe,” “I think,” “kind of,” or “I guess”; speech that includes intensifiers: “so,” “really,” and “very”; speech that includes hesitations: “um” and “uh”; and speech that includes disclaimers: “I’m not sure, but…” or “I’m not an expert, but…” Reading these, it should be obvious that the use of these types of phrases or words weaken the statements being made. Continue reading →