Persuasive Litigator (Persuasion Strategies)

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Expect a (Mostly) Willing Jury

October 12th, 2017|

By Dr. Ken Broda-Bahm:  The idea of a reluctant jury -- a jury of people who would really like to be just about anywhere else, a jury of people who tried like Hell to get out of it and failed -- that idea is fairly well ingrained in our system. Among many, especially those who don't experience the court system on a regular basis, it is considered a truism that most Americans dread jury duty, will try to find a way out of it if they can, and will hate the experience until the end of trial if they can't get

Know Your Cognitive Biases, Part 2

October 10th, 2017|

By Dr. Ken Broda-Bahm:  The law expects legal decision-making to work like a smooth and well-oiled machine. But as any experienced legal persuader knows, there is sand in those gears. That sand takes the form of cognitive biases: mental shortcuts, or heuristics. They're not necessarily mistakes, but factors that make legal decision making from a judge or jury less linear and logical than the legal model might presume. I wrote last year on advantages of knowing your cognitive biases based on a newly published list of such biases. To advance the taxonomy, Jeff Desjardins of  the media website Visual Capitalist has more recently developed

Don’t Mix up the Do’s and the Don’ts

October 6th, 2017|

Dr. Ken Broda-Bahm:    There are so many reasons why it is good to make a list, I could make a list of them (and actually, I did). But, safe to say, lists are ubiquitous in communication. We use them for shopping, for things we need to do, and steps we need to take. Mentally, we like the neat compartments of a discrete set of tasks or phases. The list can often take the form of the familiar "Do's and Don'ts." In product cases, for example, there are the sets of best practices for designing, testing, and marketing a product. In

Look Out for Group Influence in the Witness Pool

October 2nd, 2017|

By Dr. Ken Broda-Bahm:  The way trial and deposition testimony works is that you hear from one witness at a time. We have individual testimony, we don't have group testimony. Or do we? Is there a chance that when we are hearing from the individual, we are hearing a message that has already been formed and filtered in reference to a group's perceptions and opinions? New research shows that the answer might be, "Yes." Based on a release from the University of Huddersfield carried in ScienceDaily, Dara Mojtahedi, a lecturer in forensic psychology, finds support for a phenomena he calls, "co-witness familiarity

Know Your Audience: Trix Are for Kids (Who Don’t Care About Artificial Colors)

September 28th, 2017|

By Dr. Ken Broda-Bahm:  You're forgiven if you didn't notice, but for the past couple of years, the General Mills cereal called "Trix" has been available only in a "heathier" version. That means that it kept all the sugar, but lost the artificial coloring, using vegetable and fruit ingredients instead. Apparently, there are some fans of the cereal who are old enough to send emails and post to social media, and those Trix fans complained that the new colors are dull or missing (nature apparently couldn't replicate the blue or the green in Trix, so those colors were pulled from

Voir Dire on Islamophobia

September 25th, 2017|

By Dr. Ken Broda-Bahm:  President Trump has just announced the third version of his ban on travel to the U.S. by residents from specific countries. This time the ban includes the unlikely traveler from North Korea and some Venezuelan officials, but this third version is still recognizable as his 'Muslim travel ban,' the campaign promise that, in practice, has led to widespread public resistance and continuing constitutional challenges. But it certainly has its supporters as well. In fact, the persistence of this issue serves as a reminder of the fact that Trump isn't alone in his tendency to distrust individuals

Recognize the Weakness of ‘Hardball’ Rhetoric

September 21st, 2017|

By Dr. Ken Broda-Bahm:  In his speech to the UN General Assembly last Tuesday, President Trump issued a pretty blunt threat. If the United States is forced to, he said, “We will have no choice but to totally destroy North Korea." It was not out of step with his previous rhetoric on the subject, including his comment a couple of weeks earlier that the rogue regime would be met with "fire and fury," but it was jarring to many based simply on the context. From the lectern of the organization created to "save succeeding generations from the scourge of war," the commander

Look for an Increased Perception that Racism Is a Major Problem

September 18th, 2017|

By Dr. Ken Broda-Bahm:  There's a quote most often associated with Martin Luther King: "The arc of the moral universe is long, but it bends toward justice.” When applied to historical progress, these words generally connote the comforting message that "Things get better." Our recent history, however, seems dedicated to showing that if there's an arc, it isn't necessarily a smooth one, and sometimes that bend toward justice takes some jagged turns. For example, the completed administration of America's first African-American president did not soothe the country's troubled experience with race. Rather, it inflamed it. Perceptions of racism as a major

Adapt to Information Engagement Styles

September 14th, 2017|

By Dr. Ken Broda-Bahm:  You've probably heard the expression, "Minds are like parachutes: They only function when they're open." That is undoubtedly true for some people. And if you're one of the curious regular readers of this blog, then that is probably true for you. But it isn't true for others. Their minds don't function best when open. Instead, a certain amount of purposeful closed-mindedness is necessary for them to feel certain, grounded, and safe. Looking out at an audience while you are trying to persuade them to set aside a current belief and adopt something new, it is tempting

Use ‘Free Speech’ to Disinhibit Expressions of Bias in Voir Dire

September 11th, 2017|

By Dr. Ken Broda-Bahm:  One of the main goals of voir dire is to encourage jurors to express some of their actual biases so that you can use those expressions as a basis for cause or peremptory challenges. And there is one big obstacle to achieving that goal: Expressing bias is normally inhibited. This is due to the nature of bias, as well as the inclination toward 'social desirability' that inhibits the expression of anything that could be considered inappropriate or unusual. There is also the formal courtroom setting that supercharges that inhibition by putting a spotlight on what the