Persuasive Litigator (Persuasion Strategies)

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Emphasize Participation in Informed Consent

January 17th, 2019|

By Dr. Ken Broda-Bahm: There’s a logical reaction when one hears about some of the claims that end up as the basis for a medical malpractice claim. That reaction might go something like this:   So the injury that the plaintiff complains of, that’s a known complication, isn’t it?              Yes, it is. And there was an informed consent discussion, right?              Yes, there was. So, the patient knowingly agreed to this risk, right?              Yes…but there’s still a lawsuit.  It is still a lawsuit because informed consent isn’t

Experts: Complete the Credibility Checklist

January 10th, 2019|

By Dr. Ken Broda-Bahm: So you’re picking an expert witness for your case. What kind of person do you want? Someone with the highest credentials from the best institutions? Someone with a lot of on-the-ground experience in this area? Someone who is able to teach effectively? Someone who just comes across as an approachable person who you’d want to have a beer with? The answer to all these questions is, of course, yes. Particularly on a complex case, an expert carries a heavy load and you ideally want someone with all of these qualities. If you had to choose one, or if

Careful Defendants, the ‘Reverse Reptile’ Could Be a Boomerang

January 7th, 2019|

By Dr. Ken Broda-Bahm: The Reptile approach to trying plaintiffs’ cases has been around for a decade. It is now expected that many of those seeking damages in products, medical liability, and other personal injury cases, will use a persuasive approach that attempts to awaken jurors’ reptilian fear response and instinct to protect the safety of themselves and their community. While the approach is not new, defendants continue to search for the best ways to respond. And one question in that search is whether defendants should become Reptiles themselves. Is this a case of “Fight fire with fire,” or is

Ask If Your Jurors’ Causal Thinking Is Based on Facts or Possibilities

January 3rd, 2019|

By Dr. Ken Broda-Bahm:  In one scenario, a worker is on a ladder, painting a ceiling at a local mall. The mall’s management did not order enough safety lines and the worker decides to go ahead and paint without one. After falling and being seriously injured, he sues for damages. The experiment indicates that responsibility depends on where jurors focus their “if only” thinking. “If only management had ordered enough lines” points responsibility to the defense, while “If only the worker had chosen not to work without a safety line” points responsibility at the plaintiff. Results in testing that scenario show

Beware of Nonverbal Pseudoscience

December 31st, 2018|

By Dr. Ken Broda-Bahm:  The witness on the stand pauses before answering, then looks briefly up and to the right while giving a response. While listening to the next question, she places a finger over her lips, angles her head slightly, and raises one shoulder a bit higher than the other. Does any of that mean anything? To some who hold themselves out as nonverbal communication experts, each gesture and movement can be broken out and interpreted as having a distinct and defined meaning. But, by and large, those interpretations will not be supported by valid and replicable science. That

Share the Stakes in Your Mock Trial

December 27th, 2018|

By Dr. Ken Broda-Bahm:  We know that once jurors make it through the gauntlet of jury selection and find themselves seated in the courtroom’s jury box, they’ll often be ennobled by their task and take it quite seriously. But consider the mindset of the mock juror. They’ve come in for a one-day project in a hotel or a one-way mirror research facility, and they know that it is an exercise, not a trial. That knowledge might make them casual. Knowing that their verdicts won’t actually take effect, they could treat the freedom at issue in a criminal trial as frivolous, and the damages

Twas the Night Before Trial

December 24th, 2018|

By Dr. Ken Broda-Bahm:  Twas the night before trial, when all through the office, No settlement was stirring, so the war room was raucous;   The filings were all filed with the court clerk with care, In hopes that the judge would finally be fair.   Trial counsel then nestled all snug in their beds, While visions of summary judgment danced in their heads.   When from the alarm clock there arose such a clatter, Lawyers bounded from beds with notes in a scatter.   Away to the courthouse, they fly like a flash. To see the venire, and strike

Expect Common Ground on Green Energy Attitudes

December 20th, 2018|

By Dr. Ken Broda-Bahm:  It has become commonplace to note that, as a country, we seem to be more divided than ever – divided on politics, education, rural-urban living, religion, you name it. But topics relating to the ways we generate energy and the extent to which we should protect the environment in the process might be assumed to be at or near the top of that list of divisive issues. But that’s not really the case. Based on some new research, American public opinion is showing an unexpected convergence on the topic of “green energy,” or forms of generating

Don’t Fret, Your Jury Can Handle Some Complexity

December 17th, 2018|

By Dr. Ken Broda-Bahm:  So the case is complex. Maybe it involves a tricky multi-stage legal question. Or maybe it requires understanding some arcane point on patents. Or perhaps it requires grappling with the workings of an unfamiliar technology. In these cases, is the jury up to the task? It can be tempting to feel like you would be better off with a judge or an arbitrator. After all, as another lawyer, that person is a member of your ‘tribe.’ Even if they aren’t any more trained in the specifics than a jury would be, they’ll at least have a

Question the Legal Fiction of the ‘Reasonable Person’

December 13th, 2018|

By Dr. Ken Broda-Bahm:  The idea of something being a “Legal Fiction” is that it is treated as true for the purposes of the law, but it is not literally true. “A corporation is a person” is perhaps one of the best known of these legal fictions, and one that generates passionate disagreements. As the familiar meme goes, “I’ll believe a corporation is a person when Texas executes one.” But even without popular acceptance, the legal force of it remains. Of course, people outside of the law have another name for a legal fiction: “a lie.” Or maybe in today’s age,