Persuasive Litigator (Persuasion Strategies)

By Dr. Ken Broda-Bahm: Sitting in a courtroom during a recent trial, I had the opportunity to hear opening statements from both the Plaintiff and the Defendant. Both sides devoted a portion of their time during these openings to stress the well-worn theme of, “What I say isn’t evidence.” Both sides emphasized that evidence only comes from documents and testimony, and not from their own comments made in opening statement. One side even went so far as to reassure the jury, “You are free to ignore what I say and wait for the evidence.” As a communications professional, it felt

By Dr. Ken Broda-Bahm: One time when I was working with an attorney getting ready for trial, I was there when the attorney learned that they would be able to give “mini-openings” prior to voir dire. But by “mini,” the court really meant “mini” — three to five minutes per side. The attorney’s reaction was to dismiss it. “I cannot really cover anything in three minutes,” she said. In response, I stressed that it was a chance to create a first impression, and to provide some context and greater usefulness for voir dire. I also said, “You would be surprised how much

By Dr. Ken Broda-Bahm: Here is a recent bit of media research that carries some relevance to corporate defense. According to researchers at Ohio University (Grizzard et al, 2019), when we are being entertained — reading a book, taking in a movie, or watching television — we prefer moral characters. That might seem obvious, but consider that we’re in an age when one of the most popular and enduring characters in recent television is a former chemistry teacher who turned into a drug kingpin and a murderer. And, interestingly, a popular preference for moral characters seems to hold for both

By Dr. Ken Broda-Bahm: In the days leading up to trial, you wrestle with the task of creating an opening statement in a complex case. Of course, you remember the core advice from your very first trial advocacy class, but the sheer complexity at this stage seems to be an obstacle. “How do I even start to boil all of this down to a story?” The answer is that you’ve got the right idea, but you’re going about it at the wrong time. The act of developing that story should have begun long ago, and much earlier in the discovery process. If

by Dr. Ken Broda-Bahm: The simplest way to think about persuasion is as a transaction: You step up and make your best pitch, and then your target audience either accepts it or doesn’t. The conversational way of talking about whether our audience “buys what we’re selling” reinforces that view. But the more you think about persuasion, the more you think about factors that lie outside of that simple transfer. Fundamentally, I would say it is less like retail and more like farming. And in farming, you don’t just need a seed, you need good conditions, and you need to prepare

By Dr. Ken Broda-Bahm: Our trial system is based on the ideal of a neutral fact-finder. And as much as the social science tells us that this blank slate does not actually exist, it remains true that jurors will try very hard to keep an open-mind. No, they won’t be able to, as the voir dire language so often puts it, “set aside” their knowledge, attitudes, and significant experiences. But they will want to believe they’re giving both sides a fair shake, particularly at the beginning. Legal persuaders should remember, however, that this phase of aspirational open-mindedness does not last forever, and

By Dr. Ken Broda-Bahm: Within the last week, I have conducted two mock trials on cases that are strongly susceptible to hindsight. In both defense cases, once you know the outcome, it is very easy to see past events or conditions as big red flags predicting that outcome. But, the defense was that, without knowing what would happen later, a reasonably prudent person would not have seen a problem. In both cases, the defense attorney naturally argued that “We might have 20/20 hindsight now, but your job as jurors is to base your evaluation on what was known at the

By Dr. Ken Broda-Bahm: Next time you’re in a public place, look around at all the people and what they’re doing. Looking at their phones? Yes! Nearly all of them. Now, some might be working. Some could be keeping up on the news or reading great works of literature. But it is likely that many to most of these phone-zombies are just looking at whatever the “feed” is in their preferred social media, and are reading material not because they need or even particularly want to know something, but because the information is there. It as though they’re following a

By Dr. Ken Broda-Bahm: First, a pet peeve I just have to get off my chest: It is not called a “podium,” it is called a “lectern.” A podium is a platform that you stand on in order to be seen by an audience. And if you don’t believe me (because you have called that wooden thing speakers hide behind a “podium” all your life), then think of the Latin root. “Pod” means “foot,” as in “podiatrist.” A podium is something you stand on, a lectern is something you stand behind. Based on that Latin root (“lect,” or “read”), a

By Dr. Ken Broda-Bahm: It is the classic scenario for a false confession: The suspect sits in a small room answering the same questions over and over again as the detective repeating those questions grows more and more exasperated. Finally, as the suspect has been worn down by the unvarying inquisition, or perhaps out of a misplaced desire to give what is expected, the suspect finally agrees. While it doesn’t carry quite the same pressure as a police interrogation, the repeated questions of a civil deposition can act as a miniature version of that scenario. The deposing attorney might try