Home/Persuasive Litigator (Persuasion Strategies)

When You Contradict Someone’s Bias, Don’t Expect a Backfire (But Don’t Expect Easy Persuasion Either)

May 13th, 2021|

By Dr. Ken Broda-Bahm: Wyoming Representative Liz Cheney has just been stripped of her leadership role as the number three Republican in the House. The precipitating incident seems to be that she would not silence her claim that the 2020 Presidential election was not stolen and continuing to criticize the former President for leading his party in an undemocratic direction. Given that the vote against her from colleagues seemed to be overwhelming, you could see these recent events as an example of the “Persuasive Backfire” effect, in which information offered against a hardened belief only ends up strengthening the target

The Distributed Courtroom: Don’t Assume the Trial Feels Any Less ‘Real’ When It Appears on Screens

May 10th, 2021|

By Dr. Ken Broda-Bahm: With the extended pandemic restrictions and the resulting court backlogs across the country, we have moved tentatively into the world of online trials and hearings, with participants joining from different locations. In that distributed setting, many critics have argued that the resulting process just cannot possibly be the same. The participants will feel and look isolated, eye contact will be impossible, witnesses will be less credible, accusers and defendants will be less sympathetic, and jurors’ minds will wander. The result, they say, is an inability to truly confront witnesses, a reduction in courtroom solemnity, and the

Witnesses, Add to Your ‘Truthiness’ by Showing Pictures

May 6th, 2021|

By Dr. Ken Broda-Bahm: The idea is a merger of pop culture with academics. In pop culture, “truthiness” refers facetiously to the feeling of something being true, independent of its actual truth value (a term coined by late-night comedian, Stephen Colbert). Academics, however, have creatively adopted the term to describe the real phenomenon that occurs when message elements that are nonprobative are still able to add to the perceived truthfulness of a message. Instead of providing that full explanation whenever they talk about those elements, they simply refer to its truthiness. And what makes a message truthy? Pictures for one thing. I

Direct Examination: Start With a Goal, Not an Outline

May 3rd, 2021|

By Dr. Ken Broda-Bahm: A few years ago, I had the opportunity to attend every day of a civil trial, and then interview all of the jurors at the end of their service. I planned out a very comprehensive interview for each of them, including running through the witness lists from all parties, and asking about each of the fact and expert witnesses they had heard from. Interestingly, while most of these witnesses had been on the stand for hours, or even days, there was a pattern in how much the jurors would remember from each witness. Generally, they remembered

Ask Your Factfinders to Participate in Their Own Persuasion

April 29th, 2021|

By Dr. Ken Broda-Bahm: To many trial-watchers, a key moment in the recent trial of former Minneapolis police officer, Derek Chauvin, for the murder of George Floyd, came during the testimony of Dr. Martin Tobin. This Chicago pulmonary physician, in plain language and a mild accent from his native Ireland, testified about Mr. Floyd’s last minutes and pinpointed the moment and the cause of his death. Explaining the effects of neck compression, Dr. Tobin demonstrated the anatomy using his own neck, and many jurors followed that example, touching their own necks. The influence of that moment of clear explanation and

Tell a Story with Your Transactional Documents

April 26th, 2021|

By Dr. Ken Broda-Bahm: I write this blog principally for litigators, but sometimes it is worth remembering that transactional attorneys are also advocates who, depending on the circumstances, may also have persuasive goals. The point of seeking to influence, particularly when the transaction may become the subject of future legal battles, is a place of overlap between transactional attorneys. For litigators, the advice to “Tell a story” is commonplace, while for lawyers drafting transactional documents, it may be a bit less so. A forthcoming article in the Nevada Law Journal aims to change that. In “The Power of a Good Story:

‘Not an Anti-Police Trial:’ Dissociate When You Need to

April 22nd, 2021|

By Dr. Ken Broda-Bahm: This past Tuesday afternoon, the verdict came in for the most closely watched trial in America right now. The Hennepin County jury found former Minneapolis Police officer Derek Chauvin guilty on all counts in the death of George Floyd. In the previous day’s closing arguments, prosecutor Steven Schleicher focused not only on what the case is about, but also on what it is not about. “To be very clear, this case is called the ‘State of Minnesota vs. Derek Chauvin,’” he told the jury, “this case is not called the ‘State of Minnesota vs. the police.’” Explaining the state’s focus

Complete Your Jury-Prep Checklist

April 19th, 2021|

By Dr. Ken Broda-Bahm: In the lead-up to trial, a good trial lawyer has many checklists. Some deal with motions to the court. Some deal with disclosure deadlines, some with witness notifications. In this article, I would like to address the broader question of preparation for your jury: What is the checklist to make sure you are ready for your panel of fact-finders? The following quick list includes my view of the 16 most common considerations. Many to most of these should be common sense, but that is the beauty of a checklist: It still helps to see them all

Disrupt Your Zoom Narcissist

April 15th, 2021|

By Dr. Ken Broda-Bahm: The courtroom trial is one setting where lawyers feel they can sometimes dial up the dramatic delivery. In the hands of some, that liberty can lead to an overbearing style. One question with the newer Zoom environments is whether there is less room for that style when the communication is taken out of the live courtroom and reduced to a small video tile on the screen. After a recent online trial in King County, Washington, the former jurors were with the attorneys and the judge discussing exactly that latitude for performative speech. The question was just

Ask Your Doctor If a Jury Is Right for You

April 12th, 2021|

By Dr. Ken Broda-Bahm: We’ve all heard the standard language in drug commercials: After a string of increasingly dire warnings about risks and side effects (a list that seems to nearly always end in “death”), a cheery voice will urge you to, “Ask your doctor if this drug is right for you!” While the parallel isn’t perfect, I was recently asked by some clients whether a jury would be right for them, or whether they might instead prefer a judge. So in this case, as their (non-medical) doctor, my advice is that it depends. The choice of a fact-finder, when that