Use Present Tense

November 15th, 2018|

By Dr. Ken Broda-Bahm: You know how the joke begins: “A guy walks into a bar…”  But wait, for you to know the punch line, this has to be past tense. So wouldn’t it be, “A guy walked into a bar…?” It could be. But usually it is “walks” – present tense. Why? Because the storytelling is a little more involving when it is delivered as if it is happening in the present moment. That is why storytellers, particularly those who are speaking rather than writing their stories, will often make use of the present tense. It makes the story

Preparing Witnesses to Pass the “Eyeball Test”

November 14th, 2018|

By Thomas M. O’Toole, Ph.D. One of the most commonly-cited statistics in communication studies is that verbal communication (i.e. the words that are actually said) constitutes only 7% of how the credibility of a message is determined. 38% is the vocal quality of the message (i.e. tone, etc.), and 55% is the nonverbal component. Some scholars have disputed how these numbers have been interpreted, but research has shown over and over again that how something is said is more important than what is actually said. Setting the research aside, anyone who has ever been in a serious relationship has lived

Mastering Group Voir Dire: Tip 8—Intersperse Majority Response Questions

November 12th, 2018|

November 14, 2018 Jeffrey T. Frederick, Ph.D. Mastering Group Voir Dire: Tip 8—Intersperse Majority Response Questions Associated Press 2012             So far, our Tips series has focused on setting the stage for effective voir dire (Tip 1; Tip 2; and Tip 3), capitalizing on open-ended questions to increase our understanding of jurors (Tip 4), avoiding the “looking good” bias (Tip 5), crafting questions with the “bad” answer in mind (Tip 6), and using questions that contrast viewpoints or positions (Tip 7).  Our next tip addresses asking questions later in voir dire where the majority of jurors will raise their hands.

See the Threads of Conspiracy Thinking

November 12th, 2018|

By Dr. Ken Broda-Bahm: As our team was conducting a recent social media analysis on a jury pool, one particular potential juror stood out. He was, as he proudly proclaimed in his public online messages, a “flat-earther.” And this belief of his, that we live on a flat plane rather than on a globe, wasn’t just a casual belief. It was something he was frequently posting about and wanting to start discussions over. So, naturally, we and the client wondered what something like that tells us about the potential juror. Our case didn’t depend on proving the earth is a sphere,

Lessons from the Kavanaugh Hearings for Trial Witnesses

November 10th, 2018|

Now that some of the heat has started to diminish from the hearings of now-Justice Brett Kavanaugh, it is useful to look at some of the lessons that can be learned for teachers and practitioners of witness testimony. His testimony provides important instruction for trial witnesses, most of whom do not have the luxury (and misfortune) of speaking to audience members who have already formed their opinion about the speaker’s trustworthiness and credibility. The most important lesson that I observed was a reinforcement of the vital role person/act reasoning plays for audience members when attempting to draw conclusions about the

Expect that Jurors Might Think the System is Rigged

November 8th, 2018|

By Dr. Ken Broda-Bahm: The U.S. midterm elections are now in the rearview mirror, with the ballots counted and the races — most of them at least — settled. But with a mixed result, it is no surprise that we’re hearing complaints from both sides about possible corruption, with liberals focusing on online misinformation, purged voter rolls, and problems with technology at some majority-black polling locations, and conservatives focusing on illegal voting and the amount of “Hollywood money” pouring into races from out of state. The truth will vary in each of these cases, but the tendency to suspect corruption and to

Faster is Better: Finding the Right Speaking Pace

November 7th, 2018|

By Thomas M. O’Toole, Ph.D.  What is the most appropriate pace of speech? A common belief among trial attorneys is that it is important to slow down in opening statement and closing argument, particularly when the issues in the case are complex and/or confusing. This belief makes sense since most of us have long been taught to slow down when someone is having difficulty understanding what we are saying. In fact, the term “fast-talker” has its own derogatory meaning, suggestive of a slick salesperson who is willing to say whatever is necessary to complete the sale. However, research in psychology

Trial Technology: What Has & Hasn’t Changed in Nearly Two Decades

November 5th, 2018|

I recently stumbled across an article I co-authored about 17 years ago for the National Law Journal with fellow journeyman and litigation consultant, Stan Sandstrom.  It was entitled, “An Ancient Art Jazzed by High Tech.” It brought me back.  I remembered that when we wrote it, I had just a few high-profile cases under my belt. Of course, now over a decade and a half […] The post Trial Technology: What Has & Hasn’t Changed in Nearly Two Decades appeared first on Litigation Insights.

Understand the Binary Bias

November 5th, 2018|

By Dr. Ken Broda-Bahm: How do humans assess large sets of evidence? We start by simplifying and internally summarizing. One of the main ways we do that is to boil the information down to a limited number categories, usually two. For example, let’s say you’re trying to assess the health effects of a glass of wine or two per day. A wealth of research results could be arranged on a spectrum of the degree of harm or benefit that the wine consumption may bring. But chances are, you won’t account for that continuum. Instead, you’ll group those studies into two

Being Useful to Jurors is No Accident (Tips for All Experts from an Accident Reconstructionist)

November 1st, 2018|

By Dr. Ken Broda-Bahm: Experts have a tough job translating sometimes technical detail to lay audiences and working closely with a party to the litigation while still maintaining the role of “teacher” rather than “advocate.” Some excellent and wide-ranging advice on how to thread that needle comes in the form of a couple of recent podcasts from New York’s Prosecutor Training Institute. Institute attorney and NYS Traffic Safety Resource Prosecutor, Lauren Konsul, speaks with John Kwasnoski, a reconstructionist, physicist, and professor emeritus of Western New England University, and the two interviews together contain a wealth of practical and well-explained advice on