Persuasive Litigator (Persuasion Strategies)

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

By Dr. Ken Broda-Bahm:  Why did President Trump fire FBI Director James Comey? As of press time for this blog post, the answer is that it depends on who you ask and what day, and sometimes what time of day, you ask them. A detailed timeline from the New York Times focuses on the shifting rationale, but the broad outline is that on Tuesday, May 9th, the surprise termination letter said the reason was to "restore public trust and confidence" in the FBI, and referenced that the President had accepted the recommendation of  Deputy Attorney General Rod Rosenstein, who grounded the advice in Comey's poor

By Dr. Ken Broda-Bahm:  Going to trial is a lot like going to Disneyland! But only in the sense that it is very expensive, and you will spend a lot of your time waiting. The expense and the delays of the trial process are a common focus for criticism and a big part of the reason why the vast majority of disputes never get all the way to trial, but instead find resolution through settlement or summary judgment. In a recent article, Andrew Pollis (2017), Professor at Case Western Reserve University School of Law, turns a critical focus on what he calls

By Dr. Ken Broda-Bahm:  Government law enforcement officials have a pretty high profile right now. That's especially true as they're increasingly moving into the category of being former law enforcement officials after being removed by President Trump. There was U.S. Attorney Preet Bharara in New York, and more recently, of course FBI Director James Comey who became former FBI Director this past Tuesday. And the day before that, the one in the spotlight was former Acting U.S. Attorney General Sally Yates. She served in that role for only 10 days before being removed by President Trump after refusing to enforce the President's controversial travel ban. On

By Dr. Ken Broda-Bahm:      At a recent witness preparation meeting, the doctor-defendant sat struggling to recall the details of an informed consent discussion she had with the plaintiff. "I think I told him..." she began, before finishing the statement with, "...Do you know how many patients I see? I really cannot remember." The medical record reflected that there was indeed a discussion on risks, but the notes were not specific enough to answer the key question we expected from plaintiff's counsel: Did the discussion cover the specific complication that actually occurred? Sensing that the doctor was about to

By Dr. Ken Broda-Bahm:  We live in an age of wonders, and those wonders are making it into the courtroom. Attorneys can now display, slice, and dice their documents on the fly using sophisticated presentation software, or even their own iPad. They can show demonstrative exhibits created with the kind of cutting edge design tools that used to be reserved for computer game designers. They can create complex animations using the most basic laptop computers, and even invite jurors into 360 degree immersive experiences allowing jurors to "visit" the scene without leaving the jury box. In that setting, it might seem

By Dr. Ken Broda-Bahm:  The earliest days of the Trump presidency, the Trump campaign, and Trump himself have all posed quite a bit of a quandary for social scientists. The reason for that is, while all politicians select, exaggerate, and sometimes tell an outright lie, Donald Trump seems to have a relationship to the truth that is strained to an unprecedented degree. From the crowd size at his inauguration, to the number who illegally voted, to the allegations of the Obama administration wiretapping Trump Tower, these demonstrable falsehoods have continued a chain stretching back to earlier whoppers like Ted Cruz's

By Dr. Ken Broda-Bahm:  If the panoply of strategies to persuade were a dating pool, then the fear appeal would definitely be the "bad boy," or "bad girl." By that I mean, attractive, a little shady, and potentially dangerous. The tactic of motivating your target audience by instilling and then alleviating some kind of fear is attractive because it often works, shady because it is seen as appealing to the lowest among human motivators, and dangerous because it might backfire if the fear is too strong or too difficult to resolve. In legal persuasion, that mixed bag of effects has

By Dr. Ken Broda-Bahm: This past weekend saw not just Earth Day, but also a nationwide "March for Science." On Saturday, people across the country, and in some other parts of the world, turned out in order to show support for the role of science. The message behind these marches is distilled in a four-minute viral video from Neil deGrasse Tyson, viewed more than 25 million times in the past few days. Tyson argues that science should help us understand the world and shape public policy, but due to a decline in public support for science, “people have lost the ability to judge