Lose the Lectern

June 20th, 2019|Persuasive Litigator (Persuasion Strategies)|

By Dr. Ken Broda-Bahm: First, a pet peeve I just have to get off my chest: It is not called a “podium,” it is called a “lectern.” A podium is a platform that you stand on in order to be seen by an audience. And if you don’t believe me (because you have called that wooden thing speakers hide behind a “podium” all your life), then think of the Latin root. “Pod” means “foot,” as in “podiatrist.” A podium is something you stand on, a lectern is something you stand behind. Based on that Latin root (“lect,” or “read”), a

Jury Consultants Are Not Just for Jury Trials

June 20th, 2019|2's Company - Magnus Insights|

In the vein of prior posts, this is an attempt to clarify another misconception about what we do as trial or jury consultants. Usually in the context of an introduction, I hear what might be called “sales objections.” There are varieties of these objections, but one is this, if introduced as a “jury consultant” I sometimes hear a retort, “Well, we never do jury trials, we only _______.” The blank is typically either “settle our cases at mediation,” “do bench trials” or “resolve cases in arbitrations.” For the first one, see the prior post, Trial Consultants Are Not Just for

Know the Perils of a Repeated Question

June 17th, 2019|Persuasive Litigator (Persuasion Strategies)|

By Dr. Ken Broda-Bahm: It is the classic scenario for a false confession: The suspect sits in a small room answering the same questions over and over again as the detective repeating those questions grows more and more exasperated. Finally, as the suspect has been worn down by the unvarying inquisition, or perhaps out of a misplaced desire to give what is expected, the suspect finally agrees. While it doesn’t carry quite the same pressure as a police interrogation, the repeated questions of a civil deposition can act as a miniature version of that scenario. The deposing attorney might try

Is a Shadow Jury Worth the Risk?

June 17th, 2019|Litigation Insights|

Attorneys seem to be using the shadow jury (also called a “feedback jury” or “mirror jury”) less in recent years than they used to.  And that’s too bad.  Especially when the perceived risks of the technique are being given undue weight, scaring some clients away from one of the most vital sources of insight a trial team can utilize.  When words like “jury tampering” and “mistrial” get tossed around, it’s natural to get skittish about shadow juries.  But in our experience these fears are overstated and do not mirror reality.  After all, in our 25–year history of conducting shadow juries, we’ve never even had anyone call it out.  Meanwhile, we have always learned valuable information we could not have obtained otherwise.    In this blog, we want to wash away the exaggerated risks surrounding shadow

Resist the Judge’s Nudges: Sometimes Trial Is Better Than Settlement

June 13th, 2019|Persuasive Litigator (Persuasion Strategies)|

By Dr. Ken Broda-Bahm: The judge looks up at the parties before her, exasperated. Frankly sharing her view that this case really needs to settle, she also implicitly wields the undecided pretrial motions as a weapon. “Let’s resolve this case” is her message, “or you really may not like the result!” In this kind of scenario, even if the parties genuinely believe that their best resolution is to be had in a jury trial, one or maybe both of them will be pretty nervous about sticking to their guns. That is the judge’s power to nudge, and in a ‘case management’ era

Trial Consultants Are Not Just for Trials

June 13th, 2019|2's Company - Magnus Insights|

It happened again. I am introduced to a new, prospective client, a lawyer at a very large firm – one with a nationwide presence, hundreds of lawyers, and many offices. This is the kind of attorney whom I assume understands the concept of what a trial consultant does. But, no. I send an email introduction and the response is “…I’ll keep you in mind if we ever get to the trial stages of a case – very rare at a firm like this.” I know it is rare, and the truth is most of our work is conducted way before