Persuasive Litigator (Persuasion Strategies)

By Dr. Ken Broda-Bahm: The lawyer preparing their case likely goes through a long list of, “What will they think about…” questions, relating to the facts, the evidence, the arguments, and the law. Eventually, that attorney might get to the question, “And what will they think about me?” Or, maybe not. I think attorneys tend to think of their own credibility as the icing on the cake — something that might matter in grabbing the jury’s attention, for example — but they expect it to be the strength of evidence that wins out. However, that may not be the case. New

By Dr. Ken Broda-Bahm: Both theory and experience say that there are two kinds of thinking. One is focused thinking, zeroing in on a topic, analytically and systematically. The other is diffuse thinking, abstract and constrained only by association or whim. If focused thinking marches across the terrain with destination and purpose, then diffuse thinking drifts over it like a cloud. We tend to value the focused side for work, productivity, learning, and problem-solving, but many thinkers say that diffuse thinking is equally necessary, at least sometimes, in supplying perspective and creativity. This distinction in these two forms, popularized by Oakland

By Dr. Ken Broda-Bahm:  The habit of sort of just filling in your speech with expressions of uncertainty, when you’re not really that uncertain, is probably a bad habit. I mean, I am fairly sure that these hedges cut down on your perceived confidence, and I think they most likely make you a somewhat less effective witness or advocate. Okay, those are enough examples to make the point, and the point should seem obvious: Don’t hedge your statements by adding in expressions of uncertainty when you actually are not uncertain. Despite that, many witnesses, and even some advocates, will let

By Dr. Ken Broda-Bahm: Harvey Weinstein goes to trial this week. Out of approximately eighty women accusing the former Hollywood mogul of sexual misconduct over the past few decades, two assault cases will be heard by a jury this week in Manhattan. Jury selection for the case (set to take place on Tuesday) is not likely to be a walk in Central Park. In any case, with as high a profile as this one, or that touches on issues with some current societal resonance, potential jurors may try to guess at what the attorneys are after and to mask the

By Dr. Ken Broda-Bahm: When you stand in front of a jury, laying out your opening story or closing your arguments, who are you talking to? “To the jury, of course.” Yes, but which jurors in particular?  The conventional wisdom is that you should be talking to your tougher audience. In other words, in thinking up and framing your persuasive appeals, you should be doing so in a way that is focused on those who are likely to be most strongly leaning the other way, on the theory that if you can persuade them, then you’ll persuade everyone else. This

by Dr. Ken Broda-Bahm: When we engage in arguments, perhaps on social media or even around the table at Christmas dinner, it is easy to notice that there is something different about those at the extremes. Extremists are so filled with confidence about all of their beliefs, while those in the middle are likely to be more unsure or vacillating. That is a tendency observed in the social science laboratory as well; those who hold views at the extremes are much more sure about their beliefs. But researchers wondered whether that confidence was just a general trait or whether there

By Dr. Ken Broda-Bahm: Let’s say the client you represent in litigation did something wrong. And, let’s further say, that they understand that they need to admit it and ask a jury to get past it. There’s still a case to be tried: Maybe it focuses on damages, or on causation, or on some aspects of liability. But part of the message has to be, “We are sorry,” and part of the goal is to obtain some measure of forgiveness from jurors, at least up to the point that they aren’t too distracted by the mistake to look fully and

By Dr. Ken Broda-Bahm: Yesterday was an historic day in the U.S. House of Representatives. For more than eight hours, Democratic and Republican members of the body gave short alternating speeches for and against the motion, before impeaching Donald Trump for abuse of office and obstruction of Congress. Watching the livestream on background as I worked in the office, I was quickly struck by how each side kept saying the same things over and over again. Democrats, in somber tones, repeated the facts and the timeline that we have all become familiar with, while Republicans, in emphatic expressions of disbelief,

By Dr. Ken Broda-Bahm: Once, while I was monitoring a science-intensive agricultural contamination case, we asked permission for one of our expert witnesses to have the jurors peer into a dark box where they could see a petri dish with a bacteria culture under a black light. Our expert, not knowing better as it was his first time testifying, asked a juror, “Can you see it glowing?” “Yes!” the juror replied. of course, the other side swiftly objected to this educational conversation with a juror, but the purpose was served: For the jurors, it was a great interactive moment, like the best day

By Dr. Ken Broda-Bahm: Every day, we are reminded that we live in a new age that can be called “post-truth.” We pay a lot of attention to external sources of misinformation, whether it is motivated public figures, partisan news networks or questionable private news blogs, not to mention the variety of memes, bots, and outright fake-news factories. These external sources of false information are definitely a factor in our increasingly strained relationship to truth. But there is also another source. As Pogo, the old cartoon possum, said many years ago, “We have met the enemy…and he is us.” In