Account for the Contagion of Bias

October 19th, 2017|

By Dr. Ken Broda-Bahm:  Every persuader, and legal persuaders in particular, understand that bias is both pervasive and powerful. The idea that potential jurors will be carrying attitudes and experiences that could influence their decision is the norm and not the exception. As a trial attorney, your goal is to eliminate it. In practice, however, it is more likely that you'll be minimizing it. There aren't enough strikes in the world. But is it enough if the biased jurors on your panel are numerically outweighed and outvoted by the other relatively unbiased jurors on your panel? Will deliberation take care

Cialdini’s Principle of Persuasion: Liking — Part 3

October 18th, 2017|

Dr. Robert Cialdini has identified six basic principles of persuasion. One of them is liking. If people like you, they are more likely to say yes. Why is that important to a litigator? Quite simply, any litigator wants to persuade a jury, judge or other adjudicator to agree with her, and if the adjudicator likes her, she is more likely to win her case.  The key to getting someone to like you is to remember that it’s not just a momentary feeling but a sum of everything that the person thinks about you – and that the feeling is not

Treat Cross-Examination Questions as a Flashlight in a Dark Room

October 16th, 2017|

By Dr. Ken Broda-Bahm:  What do I mean when I say the witness should treat cross-examination questions like a flashlight in a dark room? I mean that the questions are designed to shine a light on some things and to purposefully leave other things in the dark. Imagine, for example, a series of questions designed to show a hotel room is unoccupied: The TV is off, right? The luggage is gone? There's no one in the chair? And there's no one in the bed, all true? These may all be true, but what are they leaving out? The bathroom door is closed. The room's

Expect a (Mostly) Willing Jury

October 12th, 2017|

By Dr. Ken Broda-Bahm:  The idea of a reluctant jury -- a jury of people who would really like to be just about anywhere else, a jury of people who tried like Hell to get out of it and failed -- that idea is fairly well ingrained in our system. Among many, especially those who don't experience the court system on a regular basis, it is considered a truism that most Americans dread jury duty, will try to find a way out of it if they can, and will hate the experience until the end of trial if they can't get

Know Your Cognitive Biases, Part 2

October 10th, 2017|

By Dr. Ken Broda-Bahm:  The law expects legal decision-making to work like a smooth and well-oiled machine. But as any experienced legal persuader knows, there is sand in those gears. That sand takes the form of cognitive biases: mental shortcuts, or heuristics. They're not necessarily mistakes, but factors that make legal decision making from a judge or jury less linear and logical than the legal model might presume. I wrote last year on advantages of knowing your cognitive biases based on a newly published list of such biases. To advance the taxonomy, Jeff Desjardins of  the media website Visual Capitalist has more recently developed

Millennials managing older workers: “Get over feeling  awkward” 

October 9th, 2017|

  We know you will be shocked by this but we are featuring two articles with opposite perspectives on Millennials as managers. One article offers support to the Millennial new to managing those who are (in some cases) the age of their parents. The second says Millennial managers cause “negative emotions” in the workplace (spurred on by the anger of their older subordinates). It’s like the two positions we often hear on the internet—either a positive perspective advocating education and support for Millennials or a negative perspective that we don’t think really makes sense (and that is certainly not consistent

Don’t Mix up the Do’s and the Don’ts

October 6th, 2017|

Dr. Ken Broda-Bahm:    There are so many reasons why it is good to make a list, I could make a list of them (and actually, I did). But, safe to say, lists are ubiquitous in communication. We use them for shopping, for things we need to do, and steps we need to take. Mentally, we like the neat compartments of a discrete set of tasks or phases. The list can often take the form of the familiar "Do's and Don'ts." In product cases, for example, there are the sets of best practices for designing, testing, and marketing a product. In

Should an ESL Witness Testify Through an Interpreter?

October 5th, 2017|

When presented with a witness who speaks English as a Second Language (ESL), it is difficult to predict how they will be perceived by a jury.  In a previous post, we examined the challenges of identifying juror bias against foreign witnesses, but that raises a separate, yet related issue as to whether that witness is […] The post Should an ESL Witness Testify Through an Interpreter? appeared first on Litigation Insights.

Find Your Own “Sputnik Moment” at Trial

October 4th, 2017|

On this day sixty years ago, a 34-foot-tall Soviet rocket lifted off the Earth from a Cosmodrome in present-day Kazakhstan.  Its payload -- a shiny silver globe with four external antenna masts to broadcast a repeating radio chirp back to Earth.  The Soviets called it Prosteyshiy Sputnik 1 -- “Simple Satellite 1.” The world’s first successful orbiting satellite was tiny, just 22 inches in diameter and weighing 184 pounds.  But its “beep-beep -- beep-beep” signal was rebroadcast everywhere and easy to pick up directly by shortwave radio.  Sputnik could also be seen in orbit by the naked eye, the sun

Look Out for Group Influence in the Witness Pool

October 2nd, 2017|

By Dr. Ken Broda-Bahm:  The way trial and deposition testimony works is that you hear from one witness at a time. We have individual testimony, we don't have group testimony. Or do we? Is there a chance that when we are hearing from the individual, we are hearing a message that has already been formed and filtered in reference to a group's perceptions and opinions? New research shows that the answer might be, "Yes." Based on a release from the University of Huddersfield carried in ScienceDaily, Dara Mojtahedi, a lecturer in forensic psychology, finds support for a phenomena he calls, "co-witness familiarity