Persuasive Litigator (Persuasion Strategies)

By Dr. Ken Broda-Bahm:  America is not yet post-racial, and the Nazis marching this week in Charlottesville, Virginia should be a reminder of that. Continuing tensions on race are played out in courtrooms as well. The as-yet unresolved issues of racial bias in jury selection provide one example. Race-based removals impact the criminal sphere more than civil sphere, and also matter more in some cases than others. Still the continued presence of strikes that seem to be based on race has led to some calls to eliminate the peremptory challenge altogether. For example, in a case earlier this year before the Washington

By Dr. Ken Broda-Bahm:  If you've ever suffered through an extended interpersonal argument, either as a protagonist or as an observer, you might be justifiably skeptical about its usefulness. The common experience is that no one is going to budge. I've been there as well, and that is why I was intrigued when reading a study that I recently came across on effective argument. "One might think that the the outcome is trivially 'no one ever changes their mind,' since people can be amazingly resistant to evidence contravening their beliefs," the authors wrote in the first footnote, "But take heart, change

By Dr. Ken Broda-Bahm:  For a practical persuader, one of the most disturbing features of some biases is their self-sealing nature. When an audience suffers from confirmation bias, for example, you would hope that they could be taught out of it. That is, if they're primed to think that all big corporations are evil, then you might think the prescription would be a few doses of "No, they're not." But that's the thing about confirmation bias; your audience will notice, understand, trust, and remember all the examples that support their pre-existing belief, and they'll be prone to dismiss the rest.

By Dr. Ken Broda-Bahm:  The news cycle these days seems to be dedicated to keeping the question front and center: "Are we as a society losing our grip on facts?" And if we are, I'd add a complementary question, "What does this say to legal persuaders?" An article at the end of last year appeared in Law 36o written by trial consultant, Ross Laguzza, citing data from his own company to support the view that jurors may be on their way to becoming more fact-resistant. For example, 54 percent say "Beliefs guide my life," as opposed to 46 percent who say "Facts guide

by Dr. Ken Broda-Bahm:  Among the readers of this blog, there are a few people who write to me and let me know what they think about various posts. Sometimes it is to applaud a post, or to share an example where they've faced something similar. And sometimes, it is to take issue with what I've written. I appreciate that. It's actually one of the benefits of blogging: The chance to interact over something substantive, and the chance to sometimes learn that I'm wrong. And I try to be open to the possibility. I believe what I write, and that's why

By Dr. Ken Broda-Bahm:  Most of the civil cases we work on are big cases. It's not a lone lawyer with a briefcase, it is a team: several senior attorneys, associates, paralegals, and in-house counsel. That's the team that needs to work together through the long haul of the lead-up to trial, and that's the team that needs to wrestle with the difficult strategic decisions on whether and how to proceed and prepare. Some parts of that team are forced together, but other parts, especially the parts on the law firm side, are the products of the choices made by the

by Dr. Ken Broda-Bahm:  Having assisted on a large number of jury selections, I know there are a few attorneys who will say, "Give me the dumb ones -- I'll tell them what to think." But by and large, the attorneys have what I call an "intelligence bias." That is, they think that their side of the case is essentially correct (because that is what advocates do), so they think the smarter jurors will understand that. But that can't always be right -- especially when that bias exists for both sides. Based on a research article in Political Psychology, there seems to be a

By Dr. Ken Broda-Bahm:  Jurors and judges sit in court and evaluate credibility. They continuously assess who is telling the truth and who isn't. But what is the bias in those determinations? Lie detection itself is a notoriously uncertain ability, with confidence often high, but with actual ability tending to hover more around the coin-flip level. But independent of accuracy, our beliefs about lie detection can tell us something about bias. Based on some recent research, it tells us something about racial bias and, more specifically, about the bias we bring to the task of telling whether witnesses of a different race

By Dr. Ken Broda-Bahm:  Imagine this: Your success as an attorney or a witness requires a painstaking dig into the fine points of securities trading. Or offshore corporation taxation rules. Or design criteria for inventory-tracking software. Or the minutia of a construction timeline. Or a patent claim for an electronic switch. Or...you get the idea. Legal cases aren't always celebrity murders or dramatic injury stories. Often, the case itself is dry and requires jurors to attend to details that are abstract, technical, and quite divorced from their daily lives.  Alternately, imagine this: Even when the material itself holds some potential

By Dr. Ken Broda-Bahm:  "Careful what you email" has become a pretty important consideration in Washington lately, and not just for the politicians. This past week, Marc Kasowitz, President Trump's longtime personal attorney found himself in the spotlight over an email exchange with a critic. On the evening of July 13th, Mr. Kasowitz seems to have fallen victim to the temporary illusion that he was having a private conversation in a private place. He received an email with the blunt subject line "Resign Now," but otherwise it was a pretty civil message focusing on long-term interests of himself and his