By Dr. Ken Broda-Bahm: Testifying is difficult enough already. You’re trying to give complete and honest answers while a trained attorney is asking hypotheticals, making distinctions, digging into details, sometimes applying arcane legal standards and language, and all the while, hoping to trip you up. Now, imagine trying to do that in a language that isn’t your mother tongue. You know English well enough to be fully competent at work and in conversations, but this – a minefield of language tricks and traps – is something different. When I work with witnesses who are nonnative English speakers, I get that:
By Dr. Ken Broda-Bahm: Across the U.S., physicians are increasingly allowed to say “I’m sorry” without it being used as evidence against them in court. These apology laws, now on the books in 39 states and the District of Columbia, are directed at reducing the risks and the costs of litigation. Reformers, including physician and insurer groups, tend to have strong experience-based feelings that the laws work. The act of apologizing, the thinking goes, restores dignity and respect to the patient, and adds humanity and credibility to the physician, and that drains away the anger that often motivates lawsuits and high settlements.
By Dr. Ken Broda-Bahm: A jury’s decision in a case will often come down to their view of fairness. That word, of course, is subjective. However, even when jurors delve into the legal instructions and understand those instructions, they often find that the law opens the door to those subjectivities, hinging as it often does on what is “reasonable.” A jury deciding a commercial case, for example, won’t have to stretch too much in order to find a role for their own personal views on fairness when deciding “good faith and fair dealing” or “unjust enrichment.” Just what “fairness” means
By Dr. Ken Broda-Bahm: It isn’t uncommon for lawyers to see a jury in static terms. An attorney I once worked with referred to a jury as “Twelve bales of hay.” Because it isn’t possible to fully know what a jury is thinking until the end, that fundamental uncertainty can lead some to diminish the complexity or humanity of a jury. The real picture, of course, is more complex. A jury is both nuanced and dynamic. They are individuals to start with, but begin to coalesce into a cohesive group as the trial moves on. A recent article highlights this dynamic quality
By Dr. Ken Broda-Bahm: Lawyers tend to think of opening statement as the time for stories. But I think you’re telling a story in closing argument as well: not the same story, but a different one. And I don’t mean you should change the facts or present new evidence — a confused jury would be the least of your troubles. I mean you are no longer telling the story about what happened between the parties that led them to court. Instead, you are telling a new story about what is about to happen to the jurors: their deliberation and decision.
By Dr. Ken Broda-Bahm: Prior to deposition or trial testimony, it is common for witnesses to have one or more meetings. These are sessions with their attorneys, and sometimes with others including trial consultants or client representatives. One goal of these sessions is uncertainty reduction: both client and counsel need to know what to expect. Another goal, of course, is to prepare. You want to have some control over your adversary’s discovery, and you want your witness and their testimony to be as effective as possible. In conducting these meetings, every attorney has their own way of doing things. I
By Dr. Ken Broda-Bahm: Let’s say you want to know something from your prospective juror: “Do you tend to think that corporations are basically dishonest, or not?” You get a chance to talk to them in court during oral voir dire, or even better, you get to give them a questionnaire that they’ll fill out in advance. Their response will be the basis for that consequential choice: Do I strike or do I keep? Now, if you have a social scientist near you, they might whisper in your ear that it matters how you ask, and it matters a great deal. And
By Dr. Ken Broda-Bahm: Americans finally got to see the redacted report from Independent Counsel Robert Mueller last week. The report on Trump campaign issues relating to Russian election interference raised questions in a great variety of categories, one of those categories being the accuracy of Robert Barr’s summary of that report to Congress a few weeks earlier. While the Attorney General had, at that time, only set out to report the main conclusions, a number of critics have pointed to some substantial discrepancies between Mr. Barr’s summary and the actual report. To take one example, the summary suggested that the
By Dr. Ken Broda-Bahm: It is one of the central messages of witness preparation: Be confident, because if you’re confident, you’ll be more credible. Once, I got the reply from a witness, “But I don’t feel confident,” and the question, “Should I act confident even if I don’t feel it?” The short answer, “Yes.” The longer answer is, “Let’s work on the reasons you aren’t feeling confident, but at the same time, let’s focus on the behaviors that convey confidence.” That’s the right approach because the behaviors matter independently. In one study, researchers from the University of Utah, Notre Dame, and Berkeley (Tenney
By Dr. Ken Broda-Bahm The title asks a provocative question: “When it comes to jury trials, should you tell a story or stick to the facts?” The piece in the “Your Voice” section of the current ABA Journal is written by Drury Sherrod, a litigation consultant with the LA firm Mattson & Sherrod. The author seems to come down firmly on the “Tell a story” side of that question. While appropriately acknowledging the importance of facts, he argues that jurors will serve as their own storytellers and will resist or recast the facts based on the narrative frame they adapt. That’s