Make Your Key Facts Stickier: Five Ways

June 10th, 2021|Persuasive Litigator (Persuasion Strategies)|

By Dr. Ken Broda-Bahm: In complex civil litigation, there’s a lot to manage: a huge wealth of people, events, documents and detail to encourage your fact finders to know and remember. All of them, or nearly all of them, will be important. But some need to stand out. If you’re able to really nail down a key fact, it can serve as the North Star for your fact finders, whether they’re jurors or a judge, arbitrator, or mediator. So, how do you nail it down and ensure that it isn’t lost? You can tell them, “This is important”, but that

Is one expert offering multiple points more persuasive than multiple experts offering distinct points? Online Jury Research Update

June 4th, 2021|ComCon (Kathy Kellermann Communication Consulting)|

Judges often limit the number and kinds of experts who can testify at trial, paying particular attention to repetition of information across experts. Nonetheless, attorneys often still can choose to diffuse needed expert testimony across multiple expert witnesses or concentrate needed expertise within one (usually multidisciplinary) expert witness. The choice matters. Harkins and Petty (1981, 1987) conducted numerous experiments focusing on the persuasiveness of (a) multiple versus single sources of information (b) making either one or multiple arguments (c) in favor of proposals participants strongly oppose...

Note the Progress and the Challenge in Courtroom Attitudes Toward Gay Litigants

June 3rd, 2021|Persuasive Litigator (Persuasion Strategies)|

By Dr. Ken Broda-Bahm: As we enter Pride Month, it’s a good time to reflect on where we are. President Biden recently announced a renewed push for full legal equality for LGBTQ individuals, but that takes place against a background of continuing bias, including a new legal focus in many states on rolling back civil rights protections. There are battles that are being fought in the statehouses and halls of Congress, in people’s hearts and minds, and that is where there’s been a great deal of evolution in the past few years. Looking at the levels of social and interpersonal bias,

Making the Damn Feather Weigh More: Reframing Common Burden of Proof Arguments By Plaintiffs

June 1st, 2021|The Sound Jury Library (Sound Jury Consulting)|

“If you end up saying to yourself, I just don’t know, but it might be, then we’ve met our burden.” While I’ve listened to both plaintiff and defense attorneys frame their take on the burden of proof for years, this one made me go “hmmmm.” While the feather on the scale and the claim that you only need to be one tiny decimal point above 50% to vote for the plaintiff are tried and true plaintiff framing devices, this one struck me differently. I realized it was the additional phrase, “I just don’t know.” If you stop at that point,

What Causes “Nuclear Verdicts”? – Part 2

June 1st, 2021|Litigation Insights|

In Part 1, we discussed the major narrative-framing strategies plaintiffs employ to coax jurors into awarding massive damages. However, a number of additional psychological and case-specific factors are at play, and these are just as important to keep in mind as you weigh the risks of encountering a nuclear verdict – and your potential counterstrategies. Psychological Factors That Influence Nuclear Verdicts Anchoring The amount jurors award in damages, after finding for a plaintiff, is almost always influenced by the amount of the demand. In psychological terms, we call that “anchoring.” Anchoring and adjustment are psychological heuristics, or shortcuts, that influence how

Trust the Norming Effect of Deliberations

May 31st, 2021|Persuasive Litigator (Persuasion Strategies)|

By Dr. Ken Broda-Bahm: Critics of the jury system, or simply those who are nervous about taking part, will sometimes characterize a jury’s result as a kind of crap shoot. The feeling is that they’re inconsistent, and subject to the idiosyncrasies of group influence. “A jury can do anything,” I’ve sometimes heard counsel tell their clients. That is an attitude that can make attorneys and clients less trusting in the deliberation process, and more conservative than they ought to be about going to trial. That fear can sometimes put its thumb on the scale in favor of an unwise settlement.  It