Home/Persuasive Litigator (Persuasion Strategies)

Voir Dire on Civil Disobedience

July 9th, 2020|

By Dr. Ken Broda-Bahm: What do your potential jurors think about the necessity to follow the law at all times? While it won’t apply in all cases, it will apply to many. Recent protests against police brutality across the country have led to scores of non-violent protestors being arrested for crimes such as “failure to disperse,” “failure to obey a lawful order,” or the catch-all “disorderly conduct.” Add these new protests to the continuing backdrop of protests against pipelines, climate change, and many other issues, and there is some regularity to the law enforcement response. While most of these cases

Voir Dire on Willingness to Serve

July 6th, 2020|

By Dr. Ken Broda-Bahm: When jury trials start up again, one way or another, it is going to be a strange and potentially uncomfortable experience for the jurors. If reporting in person, they will be dealing with distancing, masks, temperature checks, hand washing and a risk of infection. Alternatively, if they are logging in to participate via Zoom or similar web-conferencing technology, then they will be contending with their own technology, and finding a location where they can sit alone for long periods of time in front of a screen. In either scenario, the ability and willingness of the juror

Consider COVID Attitude Changes, Part 10: Greater Solidarity

July 2nd, 2020|

By Dr. Ken Broda-Bahm: As the number of our posts on attitude changes in the midst of the coronavirus pandemic reaches double digits, astute readers will note that there are some apparent inconsistencies emerging in the reports. For example, the public feels a greater disconnect with big corporations, but also greater trust for “Big Pharma”.They are more supportive of local government, but also more polarized about science and the level of precautions being recommended. Society is complex, and sometimes trends moving in opposite directions can happen at that same time. For example, I’ve previously written that the contagion is prompting a tendency to become

Online Trials: Expect Both Challenges and Opportunities

June 29th, 2020|

By Dr. Ken Broda-Bahm: This past Friday and Saturday, June 26-27, an unusual exercise was held, exploring both the promise and the perils of a fully online jury trial. The Online Courtroom Project, which I am a part of, conducted an eight-hour exploratory trial on two web-conferencing platforms. There have been other demonstrations and tests in the past few months, but to my understanding, this one was the most comprehensive in including all or nearly all of the features that one would expect in an actual trial. Over the course of two days, attorneys, judges, consultants, and a gallery of viewers

Consider COVID Attitude Changes, Part 9: Precaution Is Partisan

June 25th, 2020|

By Dr. Ken Broda-Bahm: President Trump told the Wall Street Journal last week that Americans currently wearing face masks over their mouths and noses might be doing so, not so much to stop the spread of the virus, but to “signal disapproval” of him as President. That statement might be equal parts exaggeration and self-fulfilling prophesy, but it probably reflects rather than causes a growing partisan split on the role of personal protection in the midst of the pandemic. Few masks have been in sight at the President’s rallies, and there are places in the U.S. where it is rare

Consider COVID Attitude Changes, Part 8: Population Density Matters

June 22nd, 2020|

By Dr. Ken Broda-Bahm: As I write this, a crowd of Trump supporters is entering the BOK Center in Tulsa, Oklahoma, to attend the President’s first mid-pandemic rally. In other parts of the country, and at opposite ends of the political spectrum, large groups continue gathering to protest racial bias in policing. In both cases, attendees are playing down the advice of medical professionals to avoid large groups of people. The same could be said of the many out shopping and visiting local attractions. After close to four months of lockdowns brought about by the coronavirus, and even as the

Treat Truncated Voir Dire as Useless

June 18th, 2020|

By Dr. Ken Broda-Bahm: Okay, my title is purposefully provocative, but it is not an exaggeration. Based on a recently released, first-of-its-kind, comprehensive study on the effectiveness of voir dire following common practices in civil trials (Campbell et al., 2020), the verdict is that voir dire is often of no value when it comes to discovering or curing bias. “Information provided by generic, minimal voir dire questions,” the research team concludes, “did not prove useful in predicting jurors’ judgments, and thus is of no value in informing decisions about whether to exclude such individuals from a jury.” The study, a legal research

Prepare for (Psychological) Authoritarianism

June 15th, 2020|

By Dr. Ken Broda-Bahm: With protests continuing in many major American cities, the civil unrest and violence has had a polarizing effect on the public. While some call for reform and for understanding of what motivates these marches, others call for a return to law and order, with force if necessary. If the past is a guide, then times of turmoil like these will lead to a rise in authoritarianism in parts of the population. There is some evidence that over the past few years, the political attitudes characterized by reduced support for diversity and civil rights, along with increased support for strong

Prime Your Jurors on the Pandemic, Make Them More Conservative

June 11th, 2020|

By Dr. Ken Broda-Bahm: Take a moment and visualize what your next in-person jury trial might look like. The jurors arrive at the courthouse and have their temperature checked while being asked whether they or anyone in their household have been coughing, sneezing, running a fever, or showing any other symptom of COVID-19. They come into the courtroom and sit in the gallery at least six feet apart from each other. They have constant access to hand sanitizers and frequent hand-washing breaks. They may have another temperature check mid-day. And throughout trial, they and everyone they see — the judge,

Prepare for Your Zoom Hearing

June 8th, 2020|

By Dr. Ken Broda-Bahm: It has long been an option, but it is happening quite often now: The judge lets you know that if you want to move your case forward, we will need an online hearing using Zoom web conferencing or similar media. The experience will not be as communicatively rich as an in-person hearing, but it will be better than conducting it by phone, and much better than waiting for the return of live proceedings and the easing of the backlog. One example of the approach in state courts comes from a recent report by Michaela Paukner in