Persuasive Litigator (Persuasion Strategies)

By Dr. Ken Broda-Bahm:  On June 5th, three men used a van and knives to conduct an attack on pedestrians near the London Bridge and Borough Market. Just one week later, another man used a van in an attack on people leaving a mosque near Finsbury Park. Are we likely to frame both events evenly as "terrorism," and to give them the same kind and degree of attention? According to some recent research, the answer is "probably not." When terrorism is perpetrated by Muslims, as in the London Bridge attack, then we more easily define it as "terrorism," and give

By Dr. Ken Broda-Bahm:  File this in the category of, "I didn't realize just how uninformed some people are," a new survey makes the claim that seven percent of American adults believe that chocolate milk comes from brown cows. The data comes courtesy of the Innovation Center for U.S. Dairy drawn from an online survey conducted in April of 1,000 American adults. On the one hand, that stands out as an awfully daft notion, and the seven percent an awfully high number (greater than the population of Pennsylvania). On the other hand, however, we don't really know how the question was asked. One Huffington Post reporter

By Dr. Ken Broda-Bahm:  It's an occupational hazard: If you're a lawyer, then you're going to hear lawyer jokes. One that I'm fond of is, "There is really only one lawyer joke...all of the rest are true." That one was used successfully as an ice breaker in voir dire during a recent attorney malpractice defense. Or, I should say, it was used in a mock voir dire, because the case settled on the eve of trial. That result is in keeping to what we see as a general reluctance to see the inside of a courtroom when it comes to

By Dr. Ken Broda-Bahm:  For politically-oriented news junkies, this past Thursday featured must-watch fare. Former FBI Director James Comey raised his hand, took the oath, and testified about his carefully-documented meetings with his old boss, President Donald Trump. What stood out from his testimony was the number of times he called Trump a liar, by implication and, at times, using that actual word. Trump lied, according to Comey's testimony, about the disarray within the FBI, and in his many statements to the media denying that he had asked for Comey's loyalty and requested that he let go of the investigations

By Dr. Ken Broda-Bahm:  At one point back in my university teaching days, I worked with an international consulting group providing training on persuasion and argumentation to teachers around the world. Often, I would work with a translator. I remember being in Haiti, for example, providing training while my presentation in English was being simultaneously translated into both Haitian Creole and French. The three of us talking at once might have sounded like a cacophony, but it seemed to work just fine for the teachers attending. I remember being impressed that the translators could keep this up continuously, listening and speaking

By Dr. Ken Broda-Bahm:  President Trump is doing great, keeping all his promises, even as he is beset with interference from dishonest investigations. He is also failing horribly, embracing  national callousness and international isolation while scandals drag his administration into chaos. Either can be treated as absolute truth, depending on who you're talking to. The sides of the political spectrum have never been more divided, and polling backs it up: Conservatives and liberals are worlds apart. These sharpening distinctions create a situation where political leaning is one of the more salient things to know about a potential juror. It isn't just the attitudes

By Dr. Ken Broda-Bahm:  The expert takes the stand, his credentials proudly displayed to the jury as he launches into the dissertation of his testimony. Amid the complex chains of reasoning, the opaque references to other testimony, and the indecipherable jargon, it seems that he is giving an opinion on the case. But the impression the jury gets is "learned" and "detailed" but, unfortunately, not "helpful." And when it comes time to deliberate, they're likely to fall back on their own intuitions and experiences instead of using that expert's opinion. That is what happens when the expert succeeds at his own goal

By Dr. Ken Broda-Bahm:  High profile trials often lead to temporarily renewed awareness of the litigation consulting field. This time around, the rediscovery has to do with the first sexual assault trial for the actor and comedian Bill Cosby. An article entitled, "Bill Cosby's Trial is Already Showing How Twisted America Is" came out recently in the online source Vice. Beyond the click-bait headline, writer Sonja Sharp who also writes for the Wall Street Journal, targets both race-based selection as well as the role of jury consultants. While Vice is not the kind of source I ordinarily go to in this blog, I do believe that popular media references, like the

By Dr. Ken Broda-Bahm:  Good advocates will spend considerable amounts of time wondering about their audience. They'll also wonder about the parties and the witnesses on the other side. What do we know about them? Beyond what we see in the courtroom or learn about through the official procedure, what else is there? What are their attitudes, what do they do for fun, and what makes them tick? Today's advocates have a pretty big window into that world that was not available to prior generations: social media. Checking on the public profiles has become a normal step in assessing the

By Dr. Ken Broda-Bahm:  The common challenge in jury trial, and often in arbitration and bench trial as well, is to get your fact finders to follow, to understand, and to care. In pursuit of these goals, litigators will employ many tactics to continually gain and regain attention. One of those strategies is the use of graphics. Even when they are not strictly needed, photos, charts, timelines, and diagrams are common tools. What is less common, but perhaps should be used more often? Cartoons. That's right, a cartoon-strip style where one or more cells are used to tell a story or convey