Persuasive Litigator (Persuasion Strategies)

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Prime Before Persuasion

July 4th, 2019|

by Dr. Ken Broda-Bahm: The simplest way to think about persuasion is as a transaction: You step up and make your best pitch, and then your target audience either accepts it or doesn’t. The conversational way of talking about whether our audience “buys what we’re selling” reinforces that view. But the more you think about persuasion, the more you think about factors that lie outside of that simple transfer. Fundamentally, I would say it is less like retail and more like farming. And in farming, you don’t just need a seed, you need good conditions, and you need to prepare

Remember, an Open Mind is a Finite Resource

July 1st, 2019|

By Dr. Ken Broda-Bahm: Our trial system is based on the ideal of a neutral fact-finder. And as much as the social science tells us that this blank slate does not actually exist, it remains true that jurors will try very hard to keep an open-mind. No, they won’t be able to, as the voir dire language so often puts it, “set aside” their knowledge, attitudes, and significant experiences. But they will want to believe they’re giving both sides a fair shake, particularly at the beginning. Legal persuaders should remember, however, that this phase of aspirational open-mindedness does not last forever, and

Don’t Just Warn About Hindsight

June 27th, 2019|

By Dr. Ken Broda-Bahm: Within the last week, I have conducted two mock trials on cases that are strongly susceptible to hindsight. In both defense cases, once you know the outcome, it is very easy to see past events or conditions as big red flags predicting that outcome. But, the defense was that, without knowing what would happen later, a reasonably prudent person would not have seen a problem. In both cases, the defense attorney naturally argued that “We might have 20/20 hindsight now, but your job as jurors is to base your evaluation on what was known at the

Tap Into Your Jurors’ Reward System

June 24th, 2019|

By Dr. Ken Broda-Bahm: Next time you’re in a public place, look around at all the people and what they’re doing. Looking at their phones? Yes! Nearly all of them. Now, some might be working. Some could be keeping up on the news or reading great works of literature. But it is likely that many to most of these phone-zombies are just looking at whatever the “feed” is in their preferred social media, and are reading material not because they need or even particularly want to know something, but because the information is there. It as though they’re following a

Lose the Lectern

June 20th, 2019|

By Dr. Ken Broda-Bahm: First, a pet peeve I just have to get off my chest: It is not called a “podium,” it is called a “lectern.” A podium is a platform that you stand on in order to be seen by an audience. And if you don’t believe me (because you have called that wooden thing speakers hide behind a “podium” all your life), then think of the Latin root. “Pod” means “foot,” as in “podiatrist.” A podium is something you stand on, a lectern is something you stand behind. Based on that Latin root (“lect,” or “read”), a

Know the Perils of a Repeated Question

June 17th, 2019|

By Dr. Ken Broda-Bahm: It is the classic scenario for a false confession: The suspect sits in a small room answering the same questions over and over again as the detective repeating those questions grows more and more exasperated. Finally, as the suspect has been worn down by the unvarying inquisition, or perhaps out of a misplaced desire to give what is expected, the suspect finally agrees. While it doesn’t carry quite the same pressure as a police interrogation, the repeated questions of a civil deposition can act as a miniature version of that scenario. The deposing attorney might try

Resist the Judge’s Nudges: Sometimes Trial Is Better Than Settlement

June 13th, 2019|

By Dr. Ken Broda-Bahm: The judge looks up at the parties before her, exasperated. Frankly sharing her view that this case really needs to settle, she also implicitly wields the undecided pretrial motions as a weapon. “Let’s resolve this case” is her message, “or you really may not like the result!” In this kind of scenario, even if the parties genuinely believe that their best resolution is to be had in a jury trial, one or maybe both of them will be pretty nervous about sticking to their guns. That is the judge’s power to nudge, and in a ‘case management’ era

See Trial Consulting as a Proper Part of the Adversarial System

June 10th, 2019|

By Dr. Ken Broda-Bahm: The trial consulting field seems to fly mostly under the radar. As a part of the attorney’s confidential work product, our role in conducting research, preparing witnesses, and helping to advise on jury selection is not generally in the public’s view. But with some regularity, the topic comes up, with the question in law journals or in the popular press being a simple one: “Should they be allowed to do what they do?” The concern behind that question is the perception that the presence of social scientists in the legal process is a corrupting influence that

Rein In Your Redirect

June 6th, 2019|

By Dr. Ken Broda-Bahm: In trial, many things are planned in advance, but some things are reactive during the moment. When you can control it, you’ll meticulously plan it before trial and then execute your plan during trial. However, when you don’t have that luxury, you need to react on a moment-to-moment basis. It is the mix of the two — the planned and the reactive — that makes a trial exciting. Most of your openings, closings, direct examination, and much of cross all generally fall within the “planned” category. Redirect examination of your witness, however, is usually going to be

Be Multi-Modal in Your Courtroom Visuals

June 3rd, 2019|

By Dr. Ken Broda-Bahm: These days we’re pretty used to digital displays. What we once did with a marking pen, or later with a computer and printer, can now be displayed more easily, and often more impressively, on a screen. All of us are used to seeing our news (and reading our blog posts) on a screen; students and businesses are used to learning via PowerPoint and, increasingly, judges and jurors are used to seeing evidence and demonstrative exhibits on screen as well. A couple of weeks ago I was listening to a judge give a talk, and he said,