Persuasive Litigator (Persuasion Strategies)

By Dr. Ken Broda-Bahm: Here’s the situation. A large number of strangers are gathered in a formal courtroom — a hushed atmosphere, dark-wood paneling, flags for the state and the U.S., a raised bench with a stern-looking judge. Nothing about that situation says, “Get ready to candidly share your personal beliefs and attitudes!” In fact, nearly every aspect of the situation says the opposite: keep your head down, follow expectations, and make it formal. Many of the potential jurors attending will proffer their promise to be fair with the same solemnity that was attached to the oath itself. It’s a

By Dr. Ken Broda-Bahm:  About once every other month, I will present at a seminar for doctors and other medical professionals. They attend because because they’ve been sued, and they’re learning how to cope with their newfound role in the legal process. At one point in the seminar, a psychiatrist presenting on litigation stress will usually ask the group if the subject of lawsuits was ever covered during medical school. I don’t recall there ever being an affirmative answer.  The lack of attention to litigation as a part of medical education is surprising, especially given that the chances that medical students

By Dr. Ken Broda-Bahm: Testifying is difficult enough already. You’re trying to give complete and honest answers while a trained attorney is asking hypotheticals, making distinctions, digging into details, sometimes applying arcane legal standards and language, and all the while, hoping to trip you up. Now, imagine trying to do that in a language that isn’t your mother tongue. You know English well enough to be fully competent at work and in conversations, but this – a minefield of language tricks and traps – is something different. When I work with witnesses who are nonnative English speakers, I get that:

By Dr. Ken Broda-Bahm: Across the U.S., physicians are increasingly allowed to say “I’m sorry” without it being used as evidence against them in court. These apology laws, now on the books in 39 states and the District of Columbia, are directed at reducing the risks and the costs of litigation. Reformers, including physician and insurer groups, tend to have strong experience-based feelings that the laws work. The act of apologizing, the thinking goes, restores dignity and respect to the patient, and adds humanity and credibility to the physician, and that drains away the anger that often motivates lawsuits and high settlements.

By Dr. Ken Broda-Bahm: A jury’s decision in a case will often come down to their view of fairness. That word, of course, is subjective. However, even when jurors delve into the legal instructions and understand those instructions, they often find that the law opens the door to those subjectivities, hinging as it often does on what is “reasonable.”  A jury deciding a commercial case, for example, won’t have to stretch too much in order to find a role for their own personal views on fairness when deciding “good faith and fair dealing” or “unjust enrichment.” Just what “fairness” means

By Dr. Ken Broda-Bahm:  It isn’t uncommon for lawyers to see a jury in static terms. An attorney I once worked with referred to a jury as “Twelve bales of hay.” Because it isn’t possible to fully know what a jury is thinking until the end, that fundamental uncertainty can lead some to diminish the complexity or humanity of a jury. The real picture, of course, is more complex. A jury is both nuanced and dynamic. They are individuals to start with, but begin to coalesce into a cohesive group as the trial moves on. A recent article highlights this dynamic quality

By Dr. Ken Broda-Bahm: Lawyers tend to think of opening statement as the time for stories. But I think you’re telling a story in closing argument as well: not the same story, but a different one. And I don’t mean you should change the facts or present new evidence — a confused jury would be the least of your troubles. I mean you are no longer telling the story about what happened between the parties that led them to court. Instead, you are telling a new story about what is about to happen to the jurors: their deliberation and decision.

By Dr. Ken Broda-Bahm: Prior to deposition or trial testimony, it is common for witnesses to have one or more meetings. These are sessions with their attorneys, and sometimes with others including trial consultants or client representatives. One goal of these sessions is uncertainty reduction: both client and counsel need to know what to expect. Another goal, of course, is to prepare. You want to have some control over your adversary’s discovery, and you want your witness and their testimony to be as effective as possible. In conducting these meetings, every attorney has their own way of doing things. I

By Dr. Ken Broda-Bahm: Let’s say you want to know something from your prospective juror: “Do you tend to think that corporations are basically dishonest, or not?” You get a chance to talk to them in court during oral voir dire, or even better, you get to give them a questionnaire that they’ll fill out in advance. Their response will be the basis for that consequential choice: Do I strike or do I keep? Now, if you have a social scientist near you, they might whisper in your ear that it matters how you ask, and it matters a great deal. And

By Dr. Ken Broda-Bahm: Americans finally got to see the redacted report from Independent Counsel Robert Mueller last week. The report on Trump campaign issues relating to Russian election interference raised questions in a great variety of categories, one of those categories being the accuracy of Robert Barr’s summary of that report to Congress a few weeks earlier. While the Attorney General had, at that time, only set out to report the main conclusions, a number of critics have pointed to some substantial discrepancies between Mr. Barr’s summary and the actual report. To take one example, the summary suggested that the