Persuasive Litigator (Persuasion Strategies)

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Don’t Underestimate Just How Much Jurors Want to Reach an Independent Decision

May 17th, 2018|

By Dr. Ken Broda-Bahm: Add this one to the list of reasons why sequestering the jury can be a problem, and more generally, to the “Juries can do strange things” category. The night before deliberations, at the end of a five-week murder trial, four jurors gathered in a hotel room as the others slept. Using a crude Ouija board made from a piece of paper and a wine glass, they established contact with one of the two murder victims. “Who killed you?” one of the jurors asked. The glass spelled out the answer, “Stephen Young done it.” Asking how it

Give the Jurors What They Want: 10 Golden Rules

May 14th, 2018|

By Dr. Ken Broda-Bahm: The jurors have made it through the trial, reached their verdict, received their thanks, and are headed to the exits. How do they feel about their experience? What do they think the lawyers did well, and what do they think the lawyers could have done better. Chances are, we can make an educated guess: Their feedback would relate to the fundamentals, and wouldn’t be anything particularly earthshaking. Still, it is good to ask, and still it is critical for even experienced litigators to pay attention and to take this feedback seriously. Aiding that effort is a

Witness Preparation: Teach the Second Level of Response

May 10th, 2018|

By Dr. Ken Broda-Bahm:In the game of chess, the difference between a novice player and an experienced player can be boiled down to two words: thinking ahead. The experienced player doesn’t just move their piece’s toward the opposing king. The experienced player tests each possible move and anticipates what the other player will do in response to that move. Witness testimony, of course, isn’t a chess game: The goal is to effectively and efficiently tell the truth, and not to match wits with the other side. But on that one feature, there is a parallel: The effective witness also thinks

The Oil and Gas Juror: Look for Both Familiarity and Contempt

May 7th, 2018|

By Dr. Ken Broda-Bahm: You’ve heard the expression: “Familiarity breeds contempt.” Maybe there is a relationship between the two, but in the courtroom, and in the practical task of assessing experience and attitudes during voir dire, they are two different things. First, there is the question of how much knowledge and experience jurors will have with something — lawsuits, large companies, products, etcetera. And second, there is the valence they put on it: the attitudes and opinions that are attached to those experiences. In all areas, these two factors are best measured independently, but with an eye toward how they

Consider the Complacent: Belief in a Favorable Future (BFF) Isn’t Always Your Friend

May 3rd, 2018|

By Dr. Ken Broda-Bahm: What a potential juror thinks is, of course, critical to the decision to keep or to strike. But that notion of “what she thinks” means, not just her opinions, but also the broader attitudes and dispositions that lie beneath the surface. That’s why the gold standard in voir dire is to get beyond the opinions that vary from one topic to the next, and to understand the deeper orientations that determine what those attitudes and opinions will be. One such orientation is called “belief in a favorable future,” or to co-opt a popular acronym, “BFF.” It is the

Understand the Legal Challenge, Even in a #MeToo Era

April 30th, 2018|

By Dr. Ken Broda-Bahm: Last Thursday’s verdict marked a dramatic reversal, and was hailed as a sign of the times. Bill Cosby was found guilty on all counts in the drugging and sexual assault of Andrea Constand 14 years ago. She is one of 60 women accusing the comedian, and the trial represented a second chance after an initial hung jury. In that context, what was on trial was not just Cosby, but also the success and power of the #MeToo phenomena of millions of women from all walks of life stepping forward to report instances of harassment, assault and discrimination. Some

See Ideology as Cognitive and Not Just Political

April 23rd, 2018|

By Dr. Ken Broda-Bahm: In all facets of persuasion, and human communication for that matter, we are now used to dealing with a pretty polarized world. Addressing or responding to anything having to do with current events always involves a quick mental check on your audience and what their latitude of acceptance is likely to be. We’re accommodating ourselves to living in a politically-divided world, but are those divisions driven by more than opinion and ideology? Probably. One interesting line of research has been looking into the extent to which the stark differences in political attitudes that we see might

Don’t Adapt to ‘Learning Style’

April 19th, 2018|

By Dr. Ken Broda-Bahm: It is part of the received wisdom of popular psychology: People have different learning styles. You reach “auditory learners” by explaining it to them verbally, “visual learners” by showing them graphics, “reflective learners” by giving them something to ruminate on, and “kinesthetic learners” by having them get up and do it. Influence fails, this lore holds, when you use the wrong methods to address individuals with each of these learning styles. But is it true? Are there really these four different groups, and does effective teaching depend on using the right approach with each? The answer, explored

Race-based Strikes: Expect Fixes for the Problem (and Problems with the Fixes)

April 16th, 2018|

By Dr. Ken Broda-Bahm: It is unacceptable for someone to be the wrong color or the wrong ethnicity to serve on a jury. In modern times, the law says race-based exclusions can’t happen. But the practical reality in the courtroom, particularly some courtrooms and some kinds of cases, they still happen. This is a situation where recognizing the problem isn’t the problem: Peremptory strikes used to stack juries based on race or ethnicity, and to effectively deny jury participation to a group of citizens, is still a very real problem. And the fix for that problem, articulated in the Supreme

Strike Your Judge

April 12th, 2018|

By Dr. Ken Broda-Bahm: The peremptory strike is a well-established tool for addressing bias within a future jury. While the strike has its critics, the case is strong for having a method to address bias that is real but falls below the threshold of a demonstrable cause challenge. In dealing with potential jurors, the peremptory strike plays that vital role. But what about judges? A judge who is explicitly or implicitly hostile to you, your client, or your case, can slant the playing field against you in innumerable ways. In 17 states, you actually can, in effect, strike your judge through a process