Persuasive Litigator (Persuasion Strategies)

By Dr. Ken Broda-Bahm: It is one of the basics emphasized in your first public speaking class: Have a clear transition between your main points. But it is also a rule that many experienced communicators set aside or start taking for granted. As you become more comfortable with your content and your audience, you can fall victim to that fundamental adaptation error: the belief that your audience is tracking right along with you. And when you move from one point to the next, the change seems clear and obvious, to you. But is it clear to the audience? Often, not nearly as clear.

By Dr. Ken Broda-Bahm: For plaintiffs, the topic of monetary damages can be a bit of a mystery. In making the request to a jury, the appropriately named ad damnum, the question is: How much? Obviously, more is better, but common sense and experience probably tell you that there is a point at which higher requests bear diminishing returns, or even bounce back on themselves resulting in lower verdicts, or even, God forbid, a point at which the extreme request causes jurors to doubt the motives behind the suit and question their liability determination. The level at which one should propose,

By Dr. Ken Broda-Bahm: Our ability to understand and to talk to each other is increasingly determined by our political leanings. When we all sit down for family Thanksgiving in a couple of months, politics is likely to be off limits at many tables. But is it also off limits in the courtroom during voir dire? Some judges and some attorneys seem to think so. The feeling is that asking about politics is too direct and potentially threatening, creating the feeling that you’re invading the privacy of the voting booth, or asking about personal details that don’t seem germane to the case. And

By Dr. Ken Broda-Bahm: The common expression of the recency effect, “Save the best for last,” says that the latter parts of a message will stick in the memory and be ready for later use. The importance of that effect in your trial message has gained some recent and somewhat unexpected support thanks to some research on the effects of allowing jurors to talk about the case without waiting for deliberations. Predeliberation jury discussion is an increasingly popular jury innovation said to make trials more comprehensible and engaging for jurors without biasing the result. The research, however, puts that into question. Two researchers

By Dr. Ken Broda-Bahm: It must be the season for corporate apologies. Twitter is sorry that it allowed itself to be a home for hate groups for so many years. Facebook is sorry that it was a gateway to companies like Cambridge Analytica and a host for Russian trolls. Wells Fargo is sorry it loaded its customers with unwanted fees and accounts. Uber is sorry it forced sexual assault victims into arbitration. And Starbucks is sorry for the racism of some of its employees. Those apologies are all aimed at the court of public opinion, but the “sorry” crops up

By Dr. Ken Broda-Bahm:  In the wake of recent verdicts, the Johnson & Johnson defense team might be seeing its hopes of convincing jurors to follow its scientific advice going up in a cloud of smoke…or perhaps a cloud of potentially carcinogenic talcum powder. Johnson & Johnson has lost a string of suits, most recently in April ($117 million and $26 million) and July ($46 billion), with the common factor being a tendency for jurors to find the plaintiffs’ anecdotes to be more compelling than the defendant’s data. The science supporting the plaintiffs’ cases, now numbering more than 9,000, is still quite controversial. While

by Dr. Ken Broda-Bahm: One way to stir up a controversy is to talk about the social expectations that apply to female litigators. The ABA Journal recently played host to that discussion after an article by Debra Cassens Weiss on showing anger in the courtroom quoted an essay in The Atlantic by former pubic defender and current law professor at the University of San Francisco, Lara Bazelon. Based on a review of the literature and interviews with many female trial lawyers, Ms. Bazelon shares her belief that a narrower range of acceptability actively limits what she can teach her female students in law school. Drawing from

by Dr. Ken Broda-Bahm: The two terms are often used interchangeably, but “rebuttal” doesn’t mean the same thing as “refutation.” The latter amounts to an attack on the arguments of the other side, and the former means rebuilding your own arguments after they’ve been attacked by the other side. Trial lawyers have a practical understanding of that difference, especially as they prepare for the phase in advocacy that carries that name. In rebuttal, the focus is on spending time (usually not enough time) on mending the blows that the other side was able to inflict. Thankfully, that formal time called

By Dr. Ken Broda-Bahm: I’ve shared before on these pages that I decided to learn music at an age where most people have either mastered their musical instrument or made peace with their inability to play one. Prompted by my daughter’s interest, I decided to have a go at guitar a few years ago, and with the help of a trusty travel guitar, I’ve stuck with it. I am able to keep up with the kid (which is the important thing), but I’m also now able to do some rough improvisations and stay in key (mostly). So my teacher decided it is

By Dr. Ken Broda-Bahm: Recently, I was running a mock trial exercise with three retired judges. Reviewing the testimony, one shared a skepticism toward the “hired-gun” engineers they had heard, and opined that what is “more important is the intuitive sense about the nature of this subject area.” The other two judges quickly nodded in agreement, becoming in that moment quite a bit like a jury. Experts are not automatically believed because they are experts. To be credible, they have to overcome a few hurdles, and probably the biggest hurdle is, “To be useful, you have to be better than