Persuasive Litigator (Persuasion Strategies)

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Normalize Your Damages: Five Ways

April 11th, 2019|

By Dr. Ken Broda-Bahm: When civil litigation is being discussed by those outside the courtroom and outside the legal field, what stands out is often the perception, at least, of very high damages. The high-dollar figure being awarded, based on a questionable claim, is the poster child for the abuses of litigation. But for some reason, inside the courtroom and specifically inside the jury room, juries are often able to get to those high numbers – numbers that some of those same individuals would have scoffed at had they heard about it in the news instead of having been part

Include a ‘Creative Commons’ Argument in Your IP Defense

April 8th, 2019|

By Dr. Ken Broda-Bahm: You might notice that my blog posts, at least those on the blog’s home page ( always have a photo at the top to catch the eye and help frame the content. I get my photos through a pay-site, or through various sites, like Flickr Creative Commons, which license free and credited use under specific conditions. These non-profits exist in order to allow content creators to use the work of other creators on the theory that everyone benefits from the free exchange. So in selecting my images, I go the legal route — not just because that makes

Account for Juror Malaise

April 4th, 2019|

By Dr. Ken Broda-Bahm: Nearly 40 years ago, in 1979, during the country’s energy crisis, President Jimmy Carter gave what is now called the “Malaise Speech.” Without using that word, he spoke of “a crisis of confidence” that “strikes at the very heart and soul and spirit of our national will.” Over time, he was criticized for sharing a sentiment that was seen as too pessimistic, and even “un-American.” Today, of course, it seems quaint to think that a comment like that could be seen as a serious blow to a president’s credibility. But the root of what he spoke

Expect Science Views to Vary

April 1st, 2019|

By Dr. Ken Broda-Bahm: Jurors sometimes need to grapple with science, and given the constraints of the trial process and the often-complex nature of the testimony, “grapple” is probably the right word. Whether it involves working through detailed DNA testimony in a criminal case, or evaluating epidemiological studies in a civil products liability cases, jurors face the difficult task of evaluating conflicting testimony that often requires a base-level of scientific literacy in order to understand and apply. Jurors’ ability to work with the science will vary based on the knowledge and attitudes they bring into the courtroom with them.  Recent studies

Improve Your Storytelling: Seven Ways

March 28th, 2019|

By Dr. Ken Broda-Bahm: So you have worked up your case for trial and, now the question is, what is the best way to convert all of that factual detail and law into comprehension and persuasion? The answer you’ve probably heard since your first trial advocacy class is, “Tell a story!” And that’s the right advice. But there is a difference between good and bad storytelling. What trial lawyers want is a story that pulls jurors in and circumvents the natural skepticism they bring into the courtroom. There are many techniques for doing that while developing or delivering the story

Trust Deliberation to Reduce Bias

March 25th, 2019|

By Dr. Ken Broda-Bahm: Some feel that the jury system has a fatal flaw. And that flaw is the jurors. They’re human, and that means they carry a wide variety of biases. Based on their experiences, their outlooks, the information they’re exposed to, and factors they may not even be aware of, they’re likely to have some ax to grind that is going to disadvantage one side or the other. Does that mean that justice is an impossible dream, or that we would be better off with decisions being made by specialized judges or other technocrats? The answer is no, not

Check Out Your Company’s Partisan Profile

March 21st, 2019|

By Dr. Ken Broda-Bahm: At This stage, we are used to polarization in politics, with Red- and Blue-America divided on nearly every policy issue we can imagine. But there is a growing realization that this polarization isn’t just politics. Instead, the “tribe” established by our political leanings will also increasingly determine where we live, what networks we like, what music we listen to, what we do in our free time, whether and how we worship and, based on some new survey data, where we shop as well. A recent Axios-Harris poll looked at corporate reputations. Using a combined sample of nearly 25,000 respondents,

Address Universal Core Values: Seven of Them

March 18th, 2019|

By Dr. Ken Broda-Bahm: Our thinking about morality is often that it is some kind of divine spark in humans, or something spiritual that comes from within.  But what if it is merely a set of habits that developed as we evolved, a set of rules that originated and persisted because they helped societies to survive? If a set of moral values make it possible for societies to function, then it stands to reason that societies would universally value them. This perspective on codified cooperation is called “mutualism,” and it finds what may be definitive support in a recent broad-based survey conducted

Trial Witnesses, Un-Lead the Questions

March 14th, 2019|

By Dr. Ken Broda-Bahm: When testifying, there are some situations where a “less is more” rule applies. In a deposition, for example, you don’t want to aid the other side, and will often prefer conciseness. However, when undergoing cross-examination before a jury in trial, less isn’t more…it is less. That is, if you limit yourself to simple “yes” answers, then you have less control (with your adversary choosing all the words) less power (since you’re just confirming the facts that opposing counsel has selected), and less overall usefulness to the jury (since you aren’t saying much). In a courtroom cross-examination,

Experts, Cultivate Awe

March 11th, 2019|

By Dr. Ken Broda-Bahm: Remember Carl Sagan and the original show Cosmos? It was a beloved series in the late 70’s, not just for its accessible explanations of something as complex as the history of the universe, but also for its ability to evoke a sense of wonder. As a gifted science communicator, Sagan used that sense of wonder as an entry point to create a desire to learn more about the science. The same for Neil DeGrasse Tyson who took up the Cosmos mantle nearly forty years later in 2014. The common factor is a focus on a sense