Make it Hard on Yourself: Eight Ways to Make Your Mock Trial a ‘Worst-Case’ Test

June 21st, 2018|

By Dr. Ken Broda-Bahm: In the lead-up to a mock trial, the clients often and understandably hope for a win. After all, a win might help to steady their resolve and buttress their hopes heading into the courtroom. But you know what is even more useful than that? Actually learning something to help make your message better in trial is more useful. That doesn’t just boost your confidence, it boosts your actual chances for winning. That’s the reason I like to say that attorneys, clients, and consultants will learn more by losing their mock trials. In losing, you are going

Lawyers play chess; jurors play video games

June 21st, 2018|

I “appropriated” the title of this post from a litigation graphics consultant I heard speak recently at a Florida Bar function. I thought she was on to something with this simple, contrasting, perspective. Litigation is a “game” of strategy, and like good chess players, litigators are good at these strategies. They can move all of the pieces as they file and answer the pleadings, take depositions, attend hearings, and participate in mediation, and more. These traditional activities do resemble the strategic actions and decisions in a game like chess. The game changes, however, when it comes to playing “games” with

“His face got red and his neck was splotchy.” “He was a little scary.” 

June 21st, 2018|

We pay close attention to mock juror comments on witness testimony. We typically give mock jurors about 8 minutes of videotaped testimony and then ask for their feedback in rating factors of witness credibility but also with open-ended questions about their memorable impressions of each individual witness. This feedback process has resulted in a number of blog posts over the years as we took in mock juror advice for potential witnesses: Don’t put your fist in your mouth; “I can look in his eyes and tell he is a liar”; Don’t testify with a cold or runny nose because I

Attitudes on Race: Consider that the Dog Whistle May No Longer Be Necessary

June 18th, 2018|

By Dr. Ken Broda-Bahm: How do you spot a racist? Or, to be more on point, in a legal case about racial discrimination, or another case where racial biases would matter to the assessment of the case, the parties, or the witnesses, how do you recognize potential racial animus in order to inform your cause challenge or peremptory strike? Until recently, the answer was that you had to be indirect. What the psychologists call a “social desirability bias” would mask overt expressions of racism, particularly in formal settings like a courtroom, and cause people to deny a bias that is actually there beneath the

Be Craftier than the Snake: Observations from DRI’s 2018 ‘Reptile’ Seminar

June 14th, 2018|

By Dr. Ken Broda-Bahm: I have had a long-running interest in Don Keenan and David Ball’s perspective on plaintiffs’ trial and discovery advocacy called “The Reptile,” the notion that one can motivate jurors to side with a plaintiff by tapping into the tendency of the primordial reptile brain to flee from threats and gravitate toward safety. The theory has interested me, not because I believe all of its tenets. I don’t: The notion of a quasi-independent ‘reptile brain’ responding to appeals in the courtroom, for example, is pretty dubious. Instead, I’ve found it interesting based on its ability to work

Sidebar – Episode 1: Spoofing

June 13th, 2018|

In DOAR’s web series “Sidebar,” Jury Consultant Roy Futterman, Ph.D. provides his insights, analysis and commentary on the state of the world from the intersection of the legal system, popular culture and the zeitgeist. Join us for a heady mélange of juries, judges, the nature of consciousness, physics, metaphysics, the multiverse, the Oracle at Delphi, edibles before dinner, something tangentially related to the law, and the illusory feeling of having a self, won’t you? The post Sidebar – Episode 1: Spoofing appeared first on DOAR.

Flags, Focus, and the Importance of Shifting Jurors’ Attention to Favorable Messaging

June 12th, 2018|

By Jill D. Schmid, Ph.D. When Colin Kaepernick first took a knee in 2016 during the National Anthem to protest police brutality against African-Americans, the controversy was almost immediate.  The whyhe was doing it didn’t matter much then, and it doesn’t seem to matter much now. Instead, the protest became about the flag, the military, or even Donald Trump. One survey in October of 2017 showed that while 57% of the respondents checked that “protesting against police violence” was “one” reason for the protests, respondents also checked other reasons: Donald Trump (26%), not sure (18%), something else (20%) and the

How to Make Your Best Impression With Your First Draft

June 12th, 2018|

Roughly half of our business involves the creation of PowerPoint presentations for opening statements, closing arguments and expert witnesses. To create these presentations, our litigation consultants, typically seasoned trial lawyers and communications experts, work with our creative staff to turn the trial strategy into presentations that will motivate decisionmakers to make the “right” decisions. In a trial with millions or billions at stake, our final draft for an opening is typically version 30 or higher — and I've seen version 80 in a very large trial. Why so many versions? This is the result of what great trial lawyers do: They work

Turn Your “Litigation Manager” Back Into a Trial Judge

June 11th, 2018|

By Dr. Ken Broda-Bahm: Litigation is often complex and often unwanted. So sometimes, you want someone to manage that litigation to a swift and clear conclusion. Other times, however, the forum of the trial is actually what is best for your client. As noted by many, trial judges are increasingly seeing it as their role to manage rather than to try cases, and the pendulum is swinging away from trial as the method of resolving disputes. In a recent article (Engstrom, 2018), a Stanford law professor shares the grim statistical picture: In the past 50 years, the number of federal civil trials has

Account for News Fatigue

June 7th, 2018|

By Dr. Ken Broda-Bahm:  Lately, I’ve seen increasing reports of people voluntarily separating themselves from the news. Often, this means taking a break from Facebook and its ubiquitous “Newsfeed.” In other cases, however, it involves people sounding the retreat on watching the news or reading the paper. For some, it means being more selective, in effect leaving the information wilderness for their own preferred walled garden. A recent cartoon from The New Yorker, itself widely shared on social media, captures that spirit with the caption, “My desire to be well-informed is currently at odds with my desire to remain sane.” A recent