Home/Persuasive Litigator (Persuasion Strategies)

Med-Mal Defendants: You Want a Jury of Educated Legal Skeptics

September 17th, 2020|

By Dr. Ken Broda-Bahm: For trial lawyers, there is a great deal of lore on the kinds of jurors you would want for particular cases. While some attorneys will focus on traits like gender, age, or occupation, the smarter course, in my view, is to focus on mental habits and attitudes. In a medical malpractice defense, for example, you will want a jury who can look at the situation analytically and dispassionately, instead of being moved by sympathy, as well as those who have a good respect for doctors and an understanding that they do their best in an often

Respect Your Jurors (Especially in a Pandemic)

September 14th, 2020|

By Dr. Ken Broda-Bahm: There’s something that judges will often tell potential jurors at the start of the voir dire process: “We know jury duty is an inconvenience, but it is a necessary duty.” But what if it is more than an inconvenience? What if it was a threat to health, or even life? In the context of the current coronavirus pandemic, jury duty may indeed be exactly that: Summoning a broad cross section of strangers to sit together in a room that may be small, old, and lacking in ventilation, before asking them to discuss issues at a common

Assume Your Potential Jurors Won’t Call Their Bias a “Bias”

September 10th, 2020|

By Dr. Ken Broda-Bahm: Ms. Gray, if you were selected for this jury, do you believe that your experiences or views would bias you in any way against my client?  There is a predictable answer from Ms. Gray: No, I would not be biased, or I feel that I would be able to set aside that bias and not let it influence my decision. That is a predictable answer because, after all, jurors and other humans like to see themselves as fair-minded and reasonable. Fair-minded and reasonable people aren’t biased, or are at least able to temporarily conquer that bias when an authority figure

Expect Attorney Resistance to Online Trial Innovations

September 7th, 2020|

By Dr. Ken Broda-Bahm: Across the country, restaurants are changing what it means to be a restaurant, movie theaters are changing what it means to be a movie theater, and conferences are changing what it means to be a conference. So maybe it’s time for courtrooms to look into changing what it means to be a courtroom. With the frequency of communication by Zoom these days, many have advocated and tested the idea of a trial that is run substantially or entirely via web-conferencing. Reactions from attorneys can be arranged along a spectrum that runs from “Let’s try it, carefully…” to “Hell no!”

Comfortably Numb: Account for Desensitization

September 3rd, 2020|

By Dr. Ken Broda-Bahm: Recently, I heard about an in-person mock trial during the pandemic conducted by another consultant outside our group. At the beginning of the day, this consultant said, the jurors and the attorneys attending were all pretty diligent about wearing their masks. By the end of the day, however, most had gotten comfortable enough that their masks were around their necks instead of their faces, or were lying on the table. Now, think about it logically: Nothing about the actual chances of getting the coronavirus had changed over the course of the day. There was just as

Ask Your Online Witness About Their Off-Camera Resources

August 31st, 2020|

By Dr. Ken Broda-Bahm: So you’re conducting a deposition or cross-examination: Where is the witness? Are they right there in the room with you, or are they many miles away in a room with their computer? With the pandemic still raging across the U.S., many are social distancing their testimony via Zoom or other web-conferencing platforms. Instead of being in a crowded conference room or courtroom, they are alone in a separate space in front of their laptop. Or, perhaps I should say, presumably alone. A consulting colleague of mine, Dan Dugan, recently shared his experience of discovering that a remotely testifying

The Reptile Question: Give a Good Answer

August 27th, 2020|

By Dr. Ken Broda-Bahm: “You would agree with me, wouldn’t you doctor, that a physician should never needlessly endanger his patient, right?”  That is a recommended question, probably the main recommended question to plaintiff attorneys who are applying the Reptile approach to persuasion. At first, it sounds like the answer would be an easy “Yes,” or even an “Of course.” But on further examination, there are a number of problems with that concession. It oversimplifies patient care. It leaves out a doctor’s main objective (which is not just to avoid additional danger, but to obtain a good medical outcome). Worst of all,

Experts: Use Counterfactuals

August 20th, 2020|

By Dr. Ken Broda-Bahm: As of press time for this post, 173,094 Americans have died from the novel coronavirus. If the United States had followed the example of other developed countries by taking earlier and more decisive actions against the virus, our country could have prevented approximately 70 percent of these deaths. That, at least, is the conclusion of an analysis conducted by Isaac and James Sebenius of Harvard University. It is also a causal statement that attributes responsibility: If American leaders had acted differently, many of these lives would have been saved, our reopening would be safer, and our

Note the Stability of Anti-Corporate Bias

August 17th, 2020|

By Dr. Ken Broda-Bahm: Society changes: leaders come and go, the economy goes up and down, wars start and end, and now, medical emergencies arrive and (hopefully soon) depart. But through all of that, for the 12 years we’ve measured it, one thing has stayed pretty consistent: People generally don’t like or trust large corporations. Anti-corporate bias has remained remarkably stable with roughly eight in ten people saying that they distrust large corporations. Our group was recently contacted by an analyst who works in the insurance industry in Zurich, Switzerland. He is looking at changes in the liability claims environment facing

Whatever Your Trial Solution, Don’t Forget About Communication

August 13th, 2020|

By Dr. Ken Broda-Bahm: As our court system looks at the possibilities for trials under the current pandemic conditions, it seems like we face a choice: Restart trials in person, with distance, disinfectants, masks, and barriers; or move the process online with unequal technology, glitches, and lower fidelity. While there are certainly practical challenges with either option, so far I think I’ve seen more critical attention focused on the second option, the online trial. For example, yesterday the Washington Post covered what seems to have been the first online criminal jury trial with the headline, “Criminal Jury Trial by Zoom: Frozen