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Persuasive Litigator (Persuasion Strategies) – The Red Well

Persuasive Litigator (Persuasion Strategies)

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Tell Your Mind to Wander

April 20th, 2017|

By Dr. Ken Broda-Bahm:  In the law, the ability to mentally focus is prized. We expect it of our partners and advocates, look for it in selecting our teams, and encourage our jurors to practice it. Following the story, understanding the details, comprehending the legal standards, all of that can require mental concentration. At the same time, part of law and legal persuasion requires a creative spark. Slogging through a deposition or sifting through the case law might be just a matter of putting in the time, but ginning up a good trial theme, creating a good metaphor, or trying to

Learn From (the Lack of) Civil Trial Movies

April 17th, 2017|

by Dr. Ken Broda-Bahm:  Movies about courtroom trials are enjoyed by lawyers and the general public alike. The genre has earned its place among the classics with titles like To Kill a Mockingbird, 12 Angry Men, Witness for the Prosecution, Inherit the Wind, and even My Cousin Vinnie. But there is one commonality in all of those movies: They focus on criminal trials. While there are a handful of films that focus on civil litigation -- Philadelphia, Runaway Jury, or The Verdict -- they are far fewer in number, and none have reached the same level of pop culture familiarity. Taunya Lovell Banks, Professor at the University of

Ask About Others

April 13th, 2017|

By Dr. Ken Broda-Bahm:  In voir dire, the whole point is to find out information about the potential juror. When you're seeking out experiences or attitudes that you might use to warrant a strike or to mount a challenge for cause, you care about what that individual thinks, not about what anyone outside the courtroom might think. But it can be a great strategy to ask those venire members what they think others think. Why? Because people will sometimes externalize their own opinions or experiences. For example, awhile back I wrote about the 2014 election for Scottish independence. The polls that asked individuals for their own votes were off

Expect Reptiles to Invade New Habitats

April 10th, 2017|

By Dr. Ken Broda-Bahm:  On the defense side of the bar, attention has been exploding over plaintiffs' Reptile approach. If you Google "Reptile" and "Litigation," you'll see a profusion of articles. But so far, at least, the strategy of leveraging the perceptions of "safety" and "danger" has been the subject of attention from a subset of defense lawyers: those who deal with death and injury focused on the human body, including personal injury, medical malpractice, workplace safety, and products liability. For litigators who don't generally defend these kinds of cases, the plaintiff bar's strategic focus on "the reptilian brain," can seem like something from an

Use Your Deposition as Your Sword and Shield

April 6th, 2017|

By Dr. Ken Broda-Bahm:  Trial is coming up, the witness is told: "Be at the courthouse by 7:30 Monday morning, meet us in the office on Friday, and oh, remember to carefully review your deposition." The court date might be a relief after a long wait, the meetings with counsel should help to add focus and calm your nerves, but the reading and the rereading of the deposition? That seems like "homework," a chore, or the forced reliving of a bad experience. But it is actually one of the most important steps, and a stage in the preparation process that the

Expect Obedience

April 3rd, 2017|

By Dr. Ken Broda-Bahm:  In the early Sixties as Adolf Eichmann's Nazi war crimes trial was taking place in Jerusalem, the world was asking, was there something different about those who committed crimes on that scale, or were they just obeying orders? Just a few months later, a social scientist began a series of experiments in a small basement at Yale University to arrive at what's become probably the most famous finding in social science. Stanley Milgram's research, first published in 1963, involved a setting where one research participant is a "teacher," and another (actually a confederate working for the

Excluded Evidence: If Jurors Can’t Know "What," Help Them Understand "Why Not"

March 30th, 2017|

By Dr. Broda-Bahm:  When I give the orientation at the beginning of a mock trial, I'll typically say something like, "Because this is a shortened version of a trial, you aren't going to be able to hear everything. We will boil it down, summarize, and avoid some of the details, and we do that only for the purposes of time. We know it can be frustrating when there are things you're not hearing, but what we want is your reaction to what you are hearing." Though it is incomplete, that explanation is probably more comprehensive than what jurors hear in court. When evidence

Expect Less Gender Bias from Professional Fact Finders

March 27th, 2017|

By Dr. Ken Broda-Bahm:  It is one of those research findings you would expect to be true, like: "Studying improves performance" or "Happier people are more productive." But it is reassuring to find that research supports the notion that legal professionals are less likely to exhibit bias based on gender. After all, it does make sense that those in the profession dedicated to justice and fairness, would be less likely to act on stereotypes that disadvantage women. It is useful to check on some of these assumed findings, however, because they aren't always bourn out in the research, and they

Make Your Opening (Sort of) Like a Closing: A Review of Representative Schiff’s Russia-Election Hearing Introduction

March 23rd, 2017|

By Dr. Ken Broda-Bahm:  Well, it has been yet another fascinating week for people like me who are interested in political communication. This week, Congress kicked off hearings dealing with some explosive charges regarding a foreign country's influence on our election, and possible coordination with a political campaign. On Monday, Adam B. Schiff, who represents California's 28th Congressional District in the U.S. House of Representatives and is a ranking member of the House Permanent Select Committee on Intelligence, provided a compelling introduction when opening the hearings looking at contacts between President Trump's campaign and Russian officials.  As I watched his remarks (video

To Address Implicit Bias, Rely on Rules Not Standards

March 20th, 2017|

By Dr. Ken Broda-Bahm:  In the first of Disney's Pirates of the Caribbean movies, the heroine of the story is demanding to be taken back to shore and invoking something called "The Pirate Code" to make her case. The pirate, Captain Barbossa, responds:  First, your return to shore was not part of our negotiations nor our agreement so I must do nothing. And secondly, you must be a pirate for the pirate's code to apply and you're not. And thirdly, the code is more what you'd call "guidelines" than actual rules. Welcome aboard the Black Pearl, Miss Turner.  And that's the failed