Persuasive Litigator (Persuasion Strategies)

By Dr. Ken Broda-Bahm: It looks like we are heading into another one of those times, like the OJ or Casey Anthony trials, when all of the nation’s attention will be fixated on an interesting and high-stakes legal process. As the impeachment inquiry moves into the public realm this week, it is sure to grab an even greater share of the nation’s eyes and ears. And the difference between this legal process and the trials of OJ and Anthony is that, in a way, we all feel like we are parties to the case. Whether we voted for or against

By Dr. Ken Broda-Bahm: What started with an anonymous whistleblower report regarding President Trump’s pressure on the government of Ukraine to investigate his political opponents has blossomed into a parade of witnesses testifying in a soon-to-be public House impeachment inquiry. So, who was this whistleblower? A lot of people really want to know. Kentucky Senator Rand Paul said at the President’s rally earlier this week, “I say tonight to the media, do your job and print his name!” That is a sentiment that seems dramatically at odds with laws protecting federal whistleblowers, and it is also, arguably, a transparent attempt to provide the

By Dr. Ken Broda-Bahm: I spoke with some defense attorneys recently who were surprised to learn of existence of third- party litigation funding groups. These financial companies who will front cash for litigation and trial expenses in hopes of recovering if the case succeeds, have been around for awhile. But the field is still relatively new and somewhat under the radar. It seems there are about a dozen prominent commercial litigation funders, in addition to smaller-scale funders for individuals pursuing claims, and even crowdfunding options. I recently came across an article that gives some insight into the thought processes of

By Dr. Ken Broda-Bahm: Since it’s Halloween, let’s consider a frightful topic. Experienced trial lawyers usually get past their stage fright early on, and even come to relish the idea of standing in front of a jury, or most any audience. But younger attorneys, law students, or those who simply haven’t had that many live-speech opportunities yet, may still be coping with it. And even for those who are trial tested, a new or difficult situation might bring the butterflies back. For those in the grip of stage fright, the internal monologue can look like this: How am I doing?

By Dr. Ken Broda-Bahm: There’s a cartoon that shows a the philosopher, Plato, sitting on the grass of Athens with a modern-day politician (variously, it is Karl Rove or Donald Trump), with the latter character saying to Plato, “But surely you agree that truth can be created by the repetition of a lie.” We might think that smart listeners would be wise to that, but the research seems to suggest otherwise. A recent research release from the British Psychological Society reports on a study showing what is called the “Illusory Truth Effect” (Brashier, Eliseev & Marsh, 2020), or the tendency to treat a claim

By Dr. Ken Broda-Bahm: The law allows counsel on the other side to deliver their opening statement first, so they get the early opportunity to tell you their story. But, there are two sides to every story. And, despite all you have heard, I encourage you to keep an open mind…  That is a common sort of thing for defendants to say in the beginning of their opening statement to the jury, but does it actually work? In my experience, it might help a little to beg jurors to keep an open mind. But, mostly, I think it is a

By Dr. Ken Broda-Bahm: So you’re conducting the cross-examination, and the witness is fighting like a three hundred pound marlin at the end of your fishing line. And they’re not fighting by legitimately drawing distinctions or by using their own words, they’re fighting with obvious evasion and misdirection. It’s frustrating. You feel like slipping into a scene from “A Few Good Men” and shouting, “I want the TRUTH!!” But instead, you pause, you take a deep breath, and you politely continue. Recently, a reader of this blog, a third-year law student looking to go into litigation, asked me how the

By Dr. Ken Broda-Bahm: On a recent series of flights, I watched “Valley of the Boom,” an unconventional but highly- entertaining miniseries focusing on all of the shenanigans that accompanied the early 1990’s Silicon Valley technology boom and bust. It was a time when the public and investors alike were fascinated by the bright shiny new ideas of online interaction and retail, and a time when a few kids with a web address but no workable business plan could become overnight millionaires. For awhile there, we acted as though someone simply lacking the business fundamentals could instead be “rewriting the

By Dr. Ken Broda-Bahm: You probably learned it in one of your earliest writing classes: Active voice means the grammatical subject is doing the acting, and passive voice means the subject is acted upon. It is the difference between “The dog bit the boy” (active), and “The boy was bitten by the dog” (passive). In many contexts, but particularly in legal writing and speaking, the active voice is preferred, because it leads to shorter and more direct sentences, and because it avoids the need for a prepositional phrase (“…by the dog”) in order to clarify who did the biting. Active

By Dr. Ken Broda-Bahm: There is a persistent belief among many mock jurors that I have seen in certain kinds of cases. The belief is that liability attaches automatically to possession, and jurors usually express it through the lens of home ownership. As one individual shared at a mock trial last week, “It is my house, so if an injury or something bad happens in my house, it is my responsibility, automatically. That’s the law — my house, my responsibility.” Now, I’m no premises-liability expert, but that sounds like an oversimplification to me. But in that mock trial, the juror