Persuasive Litigator (Persuasion Strategies)

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Know Your Venue: Polling Still Works

July 9th, 2018|

By Dr. Ken Broda-Bahm: Legal persuaders who want to know their venue are interested in polls. They keep a finger on the national pulse, and especially on the way that pulse is registering at the local level. In addition to helping you know your potential jurors, that data on public opinion can also serve as a basis for expert witness testimony, and can matter in a change-of-venue motion. Sometimes, it can be used to assess the specific attitudes that will matter the most to the jury selection and persuasion in your own specific case. Recently, however, doubts about the accuracy

Respect Jurors’ Declaration of Independence

July 4th, 2018|

By Dr. Ken Broda-Bahm: When in the Course of human events, it becomes necessary for a citizen to report to the district courthouse, and sit in judgment on the disputes of strangers, it becomes vital for that citizen to remain independent of the passions, sympathies, persuasive techniques, and attorneys that the parties in dispute will bring to that courthouse. In assuming the powers of a juror, and becoming a ‘Finder of Fact,’ these citizens maintain a separate and equal station to the law itself. We hold these truths to be self-evident, that all jurors are created equal, that they are endowed

Add Neo-Authoritarians to Your Political Spectrum

July 2nd, 2018|

By Dr. Ken Broda-Bahm: Conventional thinking about the two sides of the political spectrum in the United States has always held that both sides, liberals and conservatives alike, basically respect the democratic institutions of government, they just have different ideas about the policies that government should enact. In other words, both support the vehicle of the democratic state, they just have different preferences about the direction that vehicle should be heading. Recent evidence, however, suggests that this assumption of democrat support across the spectrum might be too optimistic, and analysts may need to add a new ideology to the conventional

Don’t Ignore the Elephant: The Manafort Juror Questionnaire

June 28th, 2018|

By Dr. Ken Broda-Bahm: When your trial-bound case faces complexity, possible juror bias, or potential juror hardships — which is to say, when you have a trial-bound case — you could benefit from a supplemental juror questionnaire, particularly when the questionnaire is customized to the issues of the case and is administered and collected before you meet the potential jurors in court. The questionnaire can be key to focusing and streamlining the selection process, allowing you to learn more about the attitudes and experiences that would be shared on paper but not necessarily shared as fully in open court, and that

Expect Jurors to Blur Facts and Opinions

June 25th, 2018|

By Dr. Ken Broda-Bahm:  Lately, the nation has been divided, again, on a critical question of public policy. And, again, that division reveals some stark differences in the ways each side views the facts and understands the values at stake. This time, the issue involves the policy of forced family separation of undocumented immigrants, including those seeking asylum. To each side, it couldn’t be more clear. For supporters, it’s about enforcing the law and discouraging illegal immigration, and for opponents its about…not taking children away from their parents, particularly if they’re following the law in asking for asylum. But both

Make it Hard on Yourself: Eight Ways to Make Your Mock Trial a ‘Worst-Case’ Test

June 21st, 2018|

By Dr. Ken Broda-Bahm: In the lead-up to a mock trial, the clients often and understandably hope for a win. After all, a win might help to steady their resolve and buttress their hopes heading into the courtroom. But you know what is even more useful than that? Actually learning something to help make your message better in trial is more useful. That doesn’t just boost your confidence, it boosts your actual chances for winning. That’s the reason I like to say that attorneys, clients, and consultants will learn more by losing their mock trials. In losing, you are going

Attitudes on Race: Consider that the Dog Whistle May No Longer Be Necessary

June 18th, 2018|

By Dr. Ken Broda-Bahm: How do you spot a racist? Or, to be more on point, in a legal case about racial discrimination, or another case where racial biases would matter to the assessment of the case, the parties, or the witnesses, how do you recognize potential racial animus in order to inform your cause challenge or peremptory strike? Until recently, the answer was that you had to be indirect. What the psychologists call a “social desirability bias” would mask overt expressions of racism, particularly in formal settings like a courtroom, and cause people to deny a bias that is actually there beneath the

Be Craftier than the Snake: Observations from DRI’s 2018 ‘Reptile’ Seminar

June 14th, 2018|

By Dr. Ken Broda-Bahm: I have had a long-running interest in Don Keenan and David Ball’s perspective on plaintiffs’ trial and discovery advocacy called “The Reptile,” the notion that one can motivate jurors to side with a plaintiff by tapping into the tendency of the primordial reptile brain to flee from threats and gravitate toward safety. The theory has interested me, not because I believe all of its tenets. I don’t: The notion of a quasi-independent ‘reptile brain’ responding to appeals in the courtroom, for example, is pretty dubious. Instead, I’ve found it interesting based on its ability to work

Turn Your “Litigation Manager” Back Into a Trial Judge

June 11th, 2018|

By Dr. Ken Broda-Bahm: Litigation is often complex and often unwanted. So sometimes, you want someone to manage that litigation to a swift and clear conclusion. Other times, however, the forum of the trial is actually what is best for your client. As noted by many, trial judges are increasingly seeing it as their role to manage rather than to try cases, and the pendulum is swinging away from trial as the method of resolving disputes. In a recent article (Engstrom, 2018), a Stanford law professor shares the grim statistical picture: In the past 50 years, the number of federal civil trials has

Account for News Fatigue

June 7th, 2018|

By Dr. Ken Broda-Bahm:  Lately, I’ve seen increasing reports of people voluntarily separating themselves from the news. Often, this means taking a break from Facebook and its ubiquitous “Newsfeed.” In other cases, however, it involves people sounding the retreat on watching the news or reading the paper. For some, it means being more selective, in effect leaving the information wilderness for their own preferred walled garden. A recent cartoon from The New Yorker, itself widely shared on social media, captures that spirit with the caption, “My desire to be well-informed is currently at odds with my desire to remain sane.” A recent