Persuasive Litigator (Persuasion Strategies)

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Take a Second Look at Why Per Diem Damage Requests Work

March 6th, 2018|

By Dr. Ken Broda-Bahm: As a litigation consultant with an academic background, I am in a unique position: I stay abreast of the social science research (the blog schedule makes sure of that), but I also spend my days working with trial lawyers on the practical needs of cases going to trial. From that vantage point, I’ve observed that practice often proceeds independently of research. In other words, lawyers do what their own experience and hunches tell them to do, regardless of whether the social science supports it or not. One example off that disconnect relates to per diem demands. Where plaintiffs

Make Your Redirect Something Other Than a Repair Job

March 5th, 2018|

By Dr. Ken Broda-Bahm: Her key witness is still on the stand. Direct examination went well, and now the other side’s cross-examination is just wrapping up. Standing up for redirect, the attorney looks at her notes: Coming out of cross, there’s a pretty long list of concessions, misleading answers, or unclear implications, and all of them need to be fixed. So, starting at the top of the list, the attorney begins: “Remember when opposing counsel asked you… well what did you mean when you said… can you clarify the background for that…?” Once the impression is a bit improved, it is on to the

Ask Social-Circle Questions

March 1st, 2018|

By Dr. Ken Broda-Bahm: Do you think you miss valuable information in voir dire? What about your friends and colleagues who are trial lawyers: Do you think they miss valuable information in voir dire? The first question is self-directed: It is asking about you. But the second question is what they call a “social-circle” question, asking about the attitudes or experiences that you would attribute to those in your social circle. Of course, if you’re asking those kinds of questions to potential jurors, on face, you might think that it is just the first question that matters. After all, who cares what the

Vaccinate Against Bad Arguments

February 26th, 2018|

By Dr. Ken Broda-Bahm: How do you protect yourself against the nasty flu that is going around this winter? Well, you can partially protect yourself with a vaccination. Introducing your body to a weakened form of the bug helps to build up your ability to resist when exposed to the real bug later on. That is the way inoculation theory works in human communication and persuasion as well. To take a recent example, researchers at the University of Cambridge looked at what could build greater resistance to the onslaught of false news stories, and found that an online game they developed

Turn Your Passive Juror Into an Active Advocate: Seven Ways

February 22nd, 2018|

By Dr. Ken Broda-Bahm: Persuading a group that will then go off and deliberate is a unique persuasive setting. In a way, it can be called ‘Second Order’ persuasion, because it isn’t just about the person being convinced in the moment they’re hearing your case, it is about them being both convinced in that moment and motivated and equipped to advocate for your case later on when it comes time to deliberate to a verdict. After all, a juror who believes you but has nothing to say in the deliberation room to another who’s rejecting your whole pitch, isn’t a terribly useful

Distinguish Between Hard and Soft Admissions of Fault

February 19th, 2018|

By Dr. Ken Broda-Bahm: Sometimes advocacy is 100 percent: Everything your client did, literally everything, was right. But other times — more often I would say, if we’re being honest — there is something that isn’t perfect. The defendant made some mistakes in how it handled the situation, or the plaintiff missed some steps when it came to self-protection, for example. And in those situations, acknowledging that and, in effect, admitting to what the jury is almost certain to conclude anyway, is a step that is necessary for credibility and helpful in putting the focus where it needs to be. But

Corporate Corruption: Expect Sensitized Jurors

February 14th, 2018|

By Dr. Ken Broda-Bahm: Sometimes a theme captures the public imagination, and a dominant narrative comes into common use as an explanation for much of what is going on. Right now, that theme is corruption, and it is a narrative of powerful people doing the wrong things and keeping them a secret. It is Republicans colluding with Russia over elections and trying to distract the public and knock the investigation off the rails, or maybe Democrats covering up their own Russian contacts and deals. It is entertainers knowing for years about assaults and harassment by powerful men, and enabling its continuation

Look Out for a #MeToo Backlash

February 12th, 2018|

By Dr. Ken Broda-Bahm: Imagine that, after decades and generations of legitimate complaints relating to sexual harassment and abuse being played down and dismissed, they were — finally — being taken seriously. In the worlds of business, politics, and entertainment, powerful men are being forced out, as each day brings a new series of allegations and a new group of accusers being treated as credible. And imagine, on the heels of that historic breakthrough, instead of a public sphere of greater respect and inclusion, you have a public sphere where the remaining powerful men are simply afraid to engage and

Consider the Entitled Juror

February 8th, 2018|

By Dr. Ken Broda-Bahm: “Entitlement” is the belief that one is deserving of privileges and special treatment. We’ve heard of entitled children, entitled Millennials, entitled wealthy, entitled college students, entitled new employees, entitled partners…. What about entitled jurors? Might there be some in the deliberation room who feel that they deserve to chart their own course, to take the legal instructions as guidelines and not rules, and perhaps to set aside the facts and the law to push for a nullifying verdict? Recent research suggests that there may be. Social science researchers from Cornell University and Harvard University (Zitek & Jordan, 2017)

Treat Suspense as a Two-Edged Sword

February 5th, 2018|

By Dr. Ken Broda-Bahm: After a couple of weeks of “Will they or won’t they” palace intrigue involving Congress, the White House, the FBI and the DOJ, on Friday afternoon, the House Intelligence Committee finally released a four-page, declassified memorandum alleging that law enforcement officials had abused the Foreign Intelligence Surveillance process in obtaining a warrant to look in on the communications of former Trump campaign staffer, Carter Page, which served — the memo argues — as a precursor to Robert Mueller’s investigation of collusion between the Trump campaign and the Russian government. Based on all of the build-up, expectations