Persuasive Litigator (Persuasion Strategies)

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Address Universal Core Values: Seven of Them

March 18th, 2019|

By Dr. Ken Broda-Bahm: Our thinking about morality is often that it is some kind of divine spark in humans, or something spiritual that comes from within.  But what if it is merely a set of habits that developed as we evolved, a set of rules that originated and persisted because they helped societies to survive? If a set of moral values make it possible for societies to function, then it stands to reason that societies would universally value them. This perspective on codified cooperation is called “mutualism,” and it finds what may be definitive support in a recent broad-based survey conducted

Trial Witnesses, Un-Lead the Questions

March 14th, 2019|

By Dr. Ken Broda-Bahm: When testifying, there are some situations where a “less is more” rule applies. In a deposition, for example, you don’t want to aid the other side, and will often prefer conciseness. However, when undergoing cross-examination before a jury in trial, less isn’t more…it is less. That is, if you limit yourself to simple “yes” answers, then you have less control (with your adversary choosing all the words) less power (since you’re just confirming the facts that opposing counsel has selected), and less overall usefulness to the jury (since you aren’t saying much). In a courtroom cross-examination,

Experts, Cultivate Awe

March 11th, 2019|

By Dr. Ken Broda-Bahm: Remember Carl Sagan and the original show Cosmos? It was a beloved series in the late 70’s, not just for its accessible explanations of something as complex as the history of the universe, but also for its ability to evoke a sense of wonder. As a gifted science communicator, Sagan used that sense of wonder as an entry point to create a desire to learn more about the science. The same for Neil DeGrasse Tyson who took up the Cosmos mantle nearly forty years later in 2014. The common factor is a focus on a sense

In Opening, Dispense With “The Evidence Will Show”

March 7th, 2019|

By Dr. Ken Broda-Bahm: Unlike many other moments in trial, the opening statement is often defined in terms of what it isn’t. It isn’t evidence, and it isn’t argument. So, what is it? It is a preview of what the evidence will be. That creates a conventional practice, reinforced in nearly all trial advocacy courses and moot court competitions: When delivering an opening statement, precede your claims with the phrase, “The evidence will show….” Some believe that this functionally is required, and there are at least a few judges who will act as though it is. But not all judges

Savor It

March 4th, 2019|

By Dr. Ken Broda-Bahm: Trials and litigation are unpleasant, right? For one party, it stems from a loss or injury that forces them into court as a last resort, and for the other party, it’s a quite-unwelcome need to defend oneself against an accusation. So what’s to enjoy? As a communication experience, it is often thought of as something to “weather,” to “bear,” or to “get through,” and not something to enjoy. In some cases, some points during those cases, and for some parties, that is going to be true. But in other cases and moments, might it be possible

Rehabilitate Your Lying Witness

February 28th, 2019|

By Dr. Ken Broda-Bahm: It was another big moment yesterday as Michael Cohen, President Trump’s former personal lawyer, testified publicly before the House Oversight Committee. Widely seen as an opening act prior to Special Counsel Robert Mueller’s report on Russian interference in the election, Cohen’s testimony focused on continuing business in Russia during the campaign, on the pre-election “hush money” payments to former mistresses of Mr. Trump, as well as various other allegations of legal and ethical failings. Several Members of Congress, including the Committee Chair, Elijah Cummings, noted the central problem: Given Mr. Cohen’s past dishonesty, and indeed his conviction for

Beware of ‘Participation Deception’ in Your Surveys and Mock Trials

February 25th, 2019|

By Dr. Ken Broda-Bahm: Imagine that you receive a phone call and the voice on the line offers participation in a research project, and also offers pay. Then, the caller walks you through a series of questions to determine your eligibility, and it becomes clear what the “right” answer is. And let’s say you could use the money. Do you shade your answers to lean toward what you think they’re looking for? Now, I like to think that readers of this blog, many of them lawyers, are more honest than the average person, so perhaps the answer is “probably not.” We

Assess the Generation Gap In Your Intellectual Property Suit

February 21st, 2019|

By Dr. Kevin Boully and Katerina Oberdieck: “Just because you came up with something doesn’t mean somebody else can’t come up with it, too. Don’t hate the player, hate the game.” Juror 12 makes his case: It isn’t fair to protect the Plaintiff’s claimed intellectual property. “But they were first,” Juror 17 responds, supporting the Plaintiff. Then, Juror 12 – a 19-year-old male – jumps in again,  “Anyone can come up with this thing, it’s nothing special.”  The mock jurors’ discussion is resolved with the conclusion that if the Plaintiff did not adequately prove the novelty and value of the claimed

For Better Comprehension, Let Jurors Read Along During Instructions

February 18th, 2019|

By Dr. Ken Broda-Bahm: Whenever I am running a mock trial and playing the role of the judge, I read the instructions out loud to the mock jurors while they also read along using their own paper copies. I sometimes think that is overkill: If it were me, I think I would just  listen or just read, but I wouldn’t need to read along with the judge. When I think that, however, it is my bias talking. Based on my work and my training, I am analytical, a bit overeducated, and have a lot of familiarity with the law. When

Address Fearful Conservatives and Angry Liberals

February 14th, 2019|

By Dr. Ken Broda-Bahm: Social scientists who study political orientation are realizing that it is something more than discrete attitudes about issues or candidates. Research shows that one’s identification as “liberal” or “conservative” also has to do with brain wiring. For example, some studies have found that conservatives tend to be more motivated by fear and are primed to respond to threats to established order, while liberals are more motivated by anger and want to right wrongs. New research extends our understanding of that orientation by tying it to different styles of information processing. Researchers from University of Texas at Austin