Persuasive Litigator (Persuasion Strategies)

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Use Present Tense

November 15th, 2018|

By Dr. Ken Broda-Bahm: You know how the joke begins: “A guy walks into a bar…”  But wait, for you to know the punch line, this has to be past tense. So wouldn’t it be, “A guy walked into a bar…?” It could be. But usually it is “walks” – present tense. Why? Because the storytelling is a little more involving when it is delivered as if it is happening in the present moment. That is why storytellers, particularly those who are speaking rather than writing their stories, will often make use of the present tense. It makes the story

See the Threads of Conspiracy Thinking

November 12th, 2018|

By Dr. Ken Broda-Bahm: As our team was conducting a recent social media analysis on a jury pool, one particular potential juror stood out. He was, as he proudly proclaimed in his public online messages, a “flat-earther.” And this belief of his, that we live on a flat plane rather than on a globe, wasn’t just a casual belief. It was something he was frequently posting about and wanting to start discussions over. So, naturally, we and the client wondered what something like that tells us about the potential juror. Our case didn’t depend on proving the earth is a sphere,

Expect that Jurors Might Think the System is Rigged

November 8th, 2018|

By Dr. Ken Broda-Bahm: The U.S. midterm elections are now in the rearview mirror, with the ballots counted and the races — most of them at least — settled. But with a mixed result, it is no surprise that we’re hearing complaints from both sides about possible corruption, with liberals focusing on online misinformation, purged voter rolls, and problems with technology at some majority-black polling locations, and conservatives focusing on illegal voting and the amount of “Hollywood money” pouring into races from out of state. The truth will vary in each of these cases, but the tendency to suspect corruption and to

Understand the Binary Bias

November 5th, 2018|

By Dr. Ken Broda-Bahm: How do humans assess large sets of evidence? We start by simplifying and internally summarizing. One of the main ways we do that is to boil the information down to a limited number categories, usually two. For example, let’s say you’re trying to assess the health effects of a glass of wine or two per day. A wealth of research results could be arranged on a spectrum of the degree of harm or benefit that the wine consumption may bring. But chances are, you won’t account for that continuum. Instead, you’ll group those studies into two

Being Useful to Jurors is No Accident (Tips for All Experts from an Accident Reconstructionist)

November 1st, 2018|

By Dr. Ken Broda-Bahm: Experts have a tough job translating sometimes technical detail to lay audiences and working closely with a party to the litigation while still maintaining the role of “teacher” rather than “advocate.” Some excellent and wide-ranging advice on how to thread that needle comes in the form of a couple of recent podcasts from New York’s Prosecutor Training Institute. Institute attorney and NYS Traffic Safety Resource Prosecutor, Lauren Konsul, speaks with John Kwasnoski, a reconstructionist, physicist, and professor emeritus of Western New England University, and the two interviews together contain a wealth of practical and well-explained advice on

Voir Dire: Account for Both Presumptions and Expectations

October 29th, 2018|

By Dr. Ken Broda-Bahm: A newly-published study about the effects of voir dire in capital cases suggests that social scientists and the courts may need to reconsider a long-held tenet. For at least the past 35 years, the belief has been that jurors exposed to the process of jury selection in capital cases, known as “death qualification” of the jury, are more prone to convict. This was based on research (Haney, 1984) showing that the focus on the penalty phase (unusual in criminal voir dire) led to a significant increase in research participants’ willingness to presume that the defendant is probably

Consider the Upside of Outrage

October 25th, 2018|

By Dr. Ken Broda-Bahm: It is almost election time again. But the normally low-turnout midterm may not be in the cards this time around, owing to the outrage on both sides of the political spectrum. And some believe that it’s a shame that we have these levels of moral outrage: It diminishes our civility and exaggerates the already-extreme polarization of society. But does it get people to vote? The social science says it does. In a new research article (Spring, Cameron & Cikara, 2018), a team from Penn State focusing on moral psychology note that the research is starting to show that

React to the #MeToo and #HimToo Scripts

October 22nd, 2018|

By Dr. Ken Broda-Bahm: I think it is now possible to divide the #MeToo movement, so far, into two phases: Pre-Kavanaugh and Post-Kavanaugh. The cultural phenomenon of women stepping up to hold sexual harassers and abusers accountable has hit a roadblock. If the charges against Harvey Weinstein was the movement’s Battle of Austerlitz, then the confirmation hearings for Brett Kavanaugh was their Waterloo. Christine Blasey Ford, and a number of other accusers, stepped up to air detailed and credible claims against the Supreme Court nominee, but in the end, it did not matter. And to say the country is split

Make It Chunky: Eight Best Practices for a Structure that Sticks

October 18th, 2018|

By Dr. Ken Broda-Bahm: It is one of those factors of advocacy that is understood at a basic level, but not practiced at an effective level: Structure. Whenever you are verbally presenting — opening statement, closing argument, oral argument, CLE’s — organize your content into clear and discrete main points. Litigators know that, of course, since it was one of the central messages of your public speaking 101 class, and is reinforced in law school. Trial lawyers know they should be organized, but they don’t always know that this means conveying information in pieces — “chunks” in the vernacular of

Explaining Probability? Use Frequencies Rather Than Percentages

October 15th, 2018|

By Dr. Ken Broda-Bahm: Jurors and judges sometimes need to understand testimony regarding probability. For a criminal jury, maybe that probability relates to the chances of a false-positive on DNA identification. In a products case, maybe it concerns a failure rate. In an employment discrimination class action, it may relate to differing hiring percentages. And in a legacy contamination case, perhaps it relates to the risks of the future spread of a toxin. In each of these situations, the judge or jury will need to understand and apply the statistics in a realistic manner. That isn’t always easy, and often won’t