Home/Persuasive Litigator (Persuasion Strategies)

Remember that Law is a Higher Calling

January 11th, 2021|

By Dr. Ken Broda-Bahm: This past week saw some events most of us thought we would never see: A violent mob rampaging through the U.S. Capitol Building, shutting down a joint session of Congress in order to stop the Constitutional procedure of counting the presidential vote. In the coming weeks, of course, we are at risk of seeing more of the same, up to and past President-Elect Biden’s inauguration. All of it can be read as an attempt to solve a dispute by force, rather than by legal means. That is the choice: Without the role of evidence, and without

Avoid Persuasive Misalignment

January 7th, 2021|

By Dr. Ken Broda-Bahm: In the case of any argument or persuasive appeal you are making, you can ask the question, “Who are you aiming at?” In a jury trial, your answer might be, “The jury, of course.” But who on that jury are you aiming at in particular? In our consulting, we have long advised our clients to target most of their appeals at those you expect to be the tougher audience. In a corporate defense, for example, if you can find a way to sway those who are prone to distrust large companies, then you stand a much

Address the Subjectivity of Pain and Suffering

January 4th, 2021|

By Dr. Ken Broda-Bahm: The damages category of “pain and suffering” is notoriously uncertain, at least in jurors’ estimation. The act of quantifying and monetizing a plaintiff’s subjective experience associated with a loss or an injury can be a challenge. Ultimately, of course, pain is an electrochemical response within the brain and as technology advances, it is likely to become more objective in the future. A recent article (Monteiro, 2020) highlights the advances in brain imagery, and the field of “neurolaw” working to make this a reality. Technology holds the promise of creating “more objective ways of assessing the severity

Put Your Heads Together: Seven Best Practices for Strategy Sessions

December 31st, 2020|

By Dr. Ken Broda-Bahm: With the coronavirus levels still raging, trials in most parts of the country are still on hold. But as vaccinations begin to make their slow appearance, it seems to be the time to contemplate the near future, where litigation will hopefully be back in business. So, as your matter moves toward getting a realistic trial date, it raises the question: “What now?” For many, a good idea is to reboot the case with a strategy session: Call the team together, re-open the file, and develop a plan to move forward, to work toward resolving the case,

Get Their Views in Advance: Lessons from the Juror Questionnaire in the George Floyd Murder/Manslaughter Trial

December 28th, 2020|

By Dr. Ken Broda-Bahm: There is one question that is particularly important in the context of current high-profile jury trials in the midst of the continuing pandemic, but the question really applies to all trials: Why would we gather large numbers of people together in open court to assess their baseline experiences and attitudes, when we could gain the same information more efficiently using an out-of-court questionnaire? As a trial is preparing to get underway in Hennepin County, Minnesota, they’ve wisely decided on a comprehensive mailed-out supplemental written questionnaire, to be followed by three days of live questioning in small groups. The

Honor the Ghosts of Juries Past, Present, and Yet to Come: A Christmas Carol

December 24th, 2020|

By Dr. Ken Broda-Bahm: With only a miserly share of current cases ending up in a jury trial, the story on the state of the American jury is definitely a tale of dread, but also one that still has a little light at the end if the right changes could yet be made. Given that the Holidays are upon us, that mixture of terror and hope might remind us of A Christmas Carol, with its message to Ebenezer Scrooge, and all of us, that our “courses will foreshadow certain ends…but if the courses be departed from, the ends will change.” In

Guard Against “Expressive Response” in Voir Dire

December 21st, 2020|

By Dr. Ken Broda-Bahm: We know that perceptions of facts can be filtered by a strong partisan lens. Differing narratives regarding the recent election of Joe Biden and Kamala Harris have brought that into sharp relief. While a majority of Americans consider the issue settled, a surprisingly large minority does not. Based on a POLITICO/Morning Consult survey, fully 70 percent of Republican voters say they don’t believe the election was free or fair. But here is the interesting question: Is that 70 percent a real difference in perceiving the facts, or is it simply an expression of tribal identity? In

Witnesses, Treat It As a Question, Not a Topic

December 17th, 2020|

By Dr. Ken Broda-Bahm: Q: At the time you signed the contract, did you believe that all of your business partners had the capacity to comply with its terms?  A: Well, here is what was going on when I signed the contract: The business was growing massively, and our capacity was increasing by the day. That created some predictable stress, but it also led to a lot of progress. So here are some of the main reasons why we signed…  Based on that example, experienced attorneys can easily recognize a witness drifting from the question, and going down a rabbit

Watch Out for Self-Sealing Belief Systems

December 14th, 2020|

By Dr. Ken Broda-Bahm: Many Republicans believe that President Trump lost the election only due to widespread and systemic voter fraud. When Georgia’s Republican Secretary of State, Brad Raffensperger, a Trump voter and donor, says that Democrat Joe Biden won on a legitimate count (and recount) of the votes, he is part of the conspiracy. When U.S. Attorney General William Barr, in many ways a strong Trump loyalist, says he has not seen evidence of electoral fraud on a scale that could have influenced the election outcome, he is part of the conspiracy. When court after court dismisses lawsuits filed

Prepare Your Witness Virtually: Seven Best Practices

December 10th, 2020|

By Dr. Ken Broda-Bahm: As we are moving up yet another hill on the pandemic case-count rollercoaster, hopefully the last rise before the final descent into a vaccine landing zone, courts are once again pulling back in–person trials, while lawyers look for ways to stay prepared using virtual tools. Along with web-conferenced hearings and even trials, we have seen a robust amount of virtual witness preparation sessions. I suspect that, to some extent at least, this might be an adaptation that persists even after the coronavirus has subsided.  For the key witnesses, it will be better to do most of