Persuasive Litigator (Persuasion Strategies)

By Dr. Ken Broda-Bahm: While it still might be a stretch, it is a lot more thinkable now than it was two weeks ago. The jurors sit down separately in front of their screens, log in, and watch while the attorneys and witnesses present the evidence, and the judge makes rulings and provides instructions. When it is time, the jurors deliberate as part of an online meeting, with their six to twelve faces on the screen. And everyone — attorneys, witnesses, judges, and jurors — is in a different physical space, but together in the virtual space of an online

By Dr. Ken Broda-Bahm: Okay, show of hands: Two weeks ago, how many of you were familiar with Zoom, Webex, GotoMeeting, and/or MS Teams? And how many of you are familiar with them today? These tools for multi-party videoconferencing over the internet have been around for years, and in some law offices have even been regularly used. But with the continued coronavirus lockdown, these tools are now seeing a renaissance, being routinely embraced for meetings, presentations, and other professional interactions.  That may end up being one aspect to all of this that does not fully return to normal once all of

By Dr. Ken Broda-Bahm: Most of us are now entering our second week, or longer, of isolation to maintain social distance, limit transmission, and help “flatten the curve” of the current Coronavirus pandemic. For lawyers, of course, that generally means working from the home office. For others, though, it can mean days of “Netflix and chill.” And what are people watching during this disaster? While you might not expect it, they’re watching disaster movies, and in particular, movies about contagious pandemic infections are surging in popularity. Movies with titles like Outbreak or Containment are trending highly, and a movie called Contagion was the third most popular

By Dr. Ken Broda-Bahm: One after another, like dominos, court systems are shutting down or moving to drastic restrictions. In the process, court dates are being pulled and cases are moving into limbo. As that happens to your own once trial-bound cases, you think, “What now?” What do you do with the time that you now unexpectedly have as your case is put on pause? Clients will often issue a “Stop work” notice, thinking, “Let’s put a pin in it, package everything so it’s fresh, then revisit the situation down the road, closer to the new date.” Limiting the expenses is,

By Dr. Ken Broda-Bahm: As the Coronavirus spreads, and mock trials are being rescheduled, many courts are restricting operations or shutting down completely, and people are rapidly adapting to a new normal of restricted events and “social distancing.” So, what’s with the run on toilet paper? Partly, you could say it is a rational response to the fact that we might be in our homes for some time, and partly, it is simply because everyone else is doing it and no one wants to be the last one to stock up. But, more broadly, the hoarding could be seen as

By Dr. Ken Broda-Bahm: A few weeks ago, presidential primary candidate Joe Biden seemed to be on his way to a quick exit from the race. He didn’t have the crowds, didn’t have the stand-out debate performances, and most importantly, didn’t have even a top-three finish in the early primaries and caucuses. But then came a strong performance in North Carolina and then a dominant performance on both Super Tuesdays. As of this writing, he has all but cleared the field and wrapped up the Democratic nomination. Where Biden had been seen as low in voter enthusiasm, especially in contrast

By Dr. Ken Broda-Bahm: Last week, I wrote about the defense team in the recent criminal case against Roger Stone, and their post-conviction focus on the alleged bias of the jury foreperson. More recently, I saw news of a parallel tack being taking by the former Hollywood producer Harvey Weinstein, following his conviction for sexual assault and rape. Based on a story in Law 360, the Weinstein defense is similarly taking aim at the alleged misconduct of a single juror. In this case, the team knew that Juror 11 was writing a book whose description includes a focus on “predatory older

By Dr. Ken Broda-Bahm: When Trump associate Roger Stone was sentenced last month for obstruction of Congress and witness tampering, there was some pushback from media, Stone’s legal team, and the President himself targeting the jury’s foreperson, a focus of a recent post in this blog. As part of that pushback, we have seen some claims that she could have been a “stealth juror,” or an individual who purposefully answered questions so as to conceal views or experiences that could have kept her off the jury. Without commenting on the merits of that claim (the questionnaire responses have not been made

By Dr. Ken Broda-Bahm: The art of training legal advocates has a long and honorable history. For example, the Socratic method used in law school is still an unbeatable way to teach critical thinking. But what about trial advocacy? On that score, many programs like NITA and some of our firm’s in-house programs have emphasized practice. At its best, that practice is conducted with actual mock jurors, and ideally, you want a systematic way of getting feedback from the mock jurors. Recently, I came across research pointing me to one tool that I’ve never used. It is called the  “B.A.T.A.”

By Dr. Ken Broda-Bahm: “Love” may mean, “Never having to say your sorry,” but litigation does not mean that. In some defense cases, sure, what’s needed is an all-out answer that denies everything the plaintiff is saying. But in other cases, there might be something to apologize for. Consider, for example, a large corporation’s CEO wanting to acknowledge a pattern of sexual harassment complaints that was allowed to persist for too long. In that situation, the single “sorry” is unlikely to cut it. I’ve previously written, drawing from the research of my colleague Dr. Kevin Boully, that an apology requires