Persuasive Litigator (Persuasion Strategies)

By Dr. Ken Broda-Bahm: As I’ve written before, it is never safe to trust a potential juror’s own opinion about whether they are biased or not. That is because there has never been much support in the social science for that ability to self-diagnose. That, of course, has not stopped self-diagnosis from being the courts’ most common assumption in voir dire. Somewhat recently, the U.S. Supreme Court, in the case of Skilling v. U.S., has reinforced that the proper and reliable way for trial courts to uncover bias is the simple way: ask them. As an earlier decision held, “It

By Dr. Ken Broda-Bahm: In one of the many classic scenes from “My Cousin Vinny,” the hapless defense attorney played by Joe Pesci, delivers his brief but to-the-point opening statement (“Yeah, everything that guy just said is bullshit… Thank you.”), only to have the judge respond, “The entire opening statement, with the exception of ‘thank you,’ will be stricken from the record.” As funny as that is, something a bit similar actually happened the other day. As reported in the ABA Journal, Judge Ana Viscomi of New Brunswick, New Jersey struck the defense attorney’s entire closing argument in one of

By Dr. Ken Broda-Bahm: Trial lawyers understand the need to refine and to help fit the main point of their case into the smallest possible container. In complex litigation, however, that quest for a bottom line can be elusive. You might have your one-line theme, and as much as that single expression can help to focus your case, chances are good that you’ll need more from your fact-finders. The actual message will be a bit broader. I call that broader focus a “trial message.” It is still concise, but it aims to represent the substantive thrust of your case in

By Dr. Ken Broda-Bahm: Amid the chaos this week in the British Parliament, Prime Minister Boris Johnson referred to opposition leader Jeremy Corbyn, calling him a “chlorinated chicken” and, oddly, “a great big girl’s blouse.” While certainly original, the meaning of these particular metaphors might be lost, particularly to us on the Western side of the pond. The use of metaphors in courtroom communication, in contrast, is driven by a desire to make yourself understandable. By relating the new to the known, the metaphor serves as a kind of bridge connecting something that is new and unfamiliar to something that is

By Dr. Ken Broda-Bahm:   Defendants in many areas of litigation are likely familiar at this point with the Reptile approach to trying plaintiffs’ cases. A central pillar of the strategy, and its namesake, is the idea that personally-relevant fear appeals can be wielded in order to awaken the primitive, or ‘reptile,’ regions of the brain, and that cognitive reset helps the plaintiff. I have written previously about the problems involved in taking this idea too literally: There is little to no evidence that a distinct and quasi-independent “Reptile Brain” actually exists and can take over the more logical parts

By Dr. Ken Broda-Bahm: In the real world, disputes are often settled by someone with more or better knowledge, or at least someone claiming to have more or better knowledge. The courtroom, however, is different. It is a setting that is designed to ensure equality of knowledge. When it comes to the information that should matter, everyone has exactly the same knowledge. It is this aspiration toward “epistemological egalitarianism” that makes courtroom persuasion so fascinating. In theory, it is a closed laboratory, and the differences come down to how each person makes use of the information in that common pool.

By Dr. Ken Broda-Bahm: Speaking for most of us in the field of specialists who advise on jury selection, we like to say that “demographics are the least useful” of the factors that you might consider when you are evaluating a venire panel. Their experiences and their attitudes are critical, providing a foundation for how they will view the moral conflicts in your case. But whether they’re male or female, black or white, rich or poor, or old or young matters a lot less. “For every generalization one can make about demographics,” we will say, “you are likely to find

By Dr. Ken Broda-Bahm: When an alleged hazard exists and causes a person to be injured, then maybe a business might think about fixing it. But would the fix amount to a confession and cause the business to own that prior liability? That’s the question that motivates Rule 407 in the Federal Rules of Evidence, and its many state-law versions: To prevent jurors from applying hindsight and giving too much weight to remedial measures as proof of liability, plaintiffs are generally prohibited from introducing that evidence. And defendants generally like that rule because they’re wary of providing jurors with any shortcut

By Dr. Ken Broda-Bahm: Medical practitioners know that, for all its wonders, modern medicine is still a matter of chances not guarantees. In other words, in practice, medical interventions are often a matter of improving the patient’s chances at life and quality of life, but not necessarily guaranteeing success at either. That tends to be true in the world of medical devices as well. Today, a wide variety of devices have made life more livable for millions of people. But these devices are not without complication, and do not improve things for everyone. Viewing that through the litigation lens, it

By Dr. Ken Broda-Bahm: In Part One of this two-part post, I discussed the remarkable success of the “TED Talk” formula in repopularizing the idea of a single-speaker, large-audience presentation. I noted that the format is worth looking at for lawyers and others who present legal CLE’s, often in front of large conference audiences. The question is, “Could lawyers and other legal presenters have more success by acting more like TED speakers?” I think the answer is, “absolutely, yes.” I reviewed some of the most successful TED talks and came up with ten common principles, my “TED Commandments” for large-audience