Focus on the Focused, but also Deal with the Diffuse

January 13th, 2020|Persuasive Litigator (Persuasion Strategies)|

By Dr. Ken Broda-Bahm: Both theory and experience say that there are two kinds of thinking. One is focused thinking, zeroing in on a topic, analytically and systematically. The other is diffuse thinking, abstract and constrained only by association or whim. If focused thinking marches across the terrain with destination and purpose, then diffuse thinking drifts over it like a cloud. We tend to value the focused side for work, productivity, learning, and problem-solving, but many thinkers say that diffuse thinking is equally necessary, at least sometimes, in supplying perspective and creativity. This distinction in these two forms, popularized by Oakland

Don’t Hedge

January 9th, 2020|Persuasive Litigator (Persuasion Strategies)|

By Dr. Ken Broda-Bahm:  The habit of sort of just filling in your speech with expressions of uncertainty, when you’re not really that uncertain, is probably a bad habit. I mean, I am fairly sure that these hedges cut down on your perceived confidence, and I think they most likely make you a somewhat less effective witness or advocate. Okay, those are enough examples to make the point, and the point should seem obvious: Don’t hedge your statements by adding in expressions of uncertainty when you actually are not uncertain. Despite that, many witnesses, and even some advocates, will let

De-Stealth Your Potential Juror

January 6th, 2020|Persuasive Litigator (Persuasion Strategies)|

By Dr. Ken Broda-Bahm: Harvey Weinstein goes to trial this week. Out of approximately eighty women accusing the former Hollywood mogul of sexual misconduct over the past few decades, two assault cases will be heard by a jury this week in Manhattan. Jury selection for the case (set to take place on Tuesday) is not likely to be a walk in Central Park. In any case, with as high a profile as this one, or that touches on issues with some current societal resonance, potential jurors may try to guess at what the attorneys are after and to mask the

Choose Your Persuasive Target

January 2nd, 2020|Persuasive Litigator (Persuasion Strategies)|

By Dr. Ken Broda-Bahm: When you stand in front of a jury, laying out your opening story or closing your arguments, who are you talking to? “To the jury, of course.” Yes, but which jurors in particular?  The conventional wisdom is that you should be talking to your tougher audience. In other words, in thinking up and framing your persuasive appeals, you should be doing so in a way that is focused on those who are likely to be most strongly leaning the other way, on the theory that if you can persuade them, then you’ll persuade everyone else. This

Magic Bullets

January 2nd, 2020|2's Company - Magnus Insights|

I recently read an article about a “brand new, state of the art jury selection program to bring data science to jury selection.” That is not a direct quote, but a synopsis of the news story I read about the program. (Disclaimer: I don’t really know anything about this program other than what was in the news and on the firm’s website.) This particular program is available only to plaintiffs’ lawyers so I will not address it specifically, but rather, the concept that something like this is often seen as a magic bullet. Despite the claim in the article, this

Judge/Jury Agreement Remains High

December 28th, 2019|The Advantage Blog - Tsongas Litigation Consulting|

In June, the National Judicial College published results to the question posed to retired trial judges, “About how often do you disagree with the jury’s verdict?” Results showed that 82% of the 446 judges who responded indicated they disagreed with the jury’s verdict less than 25% of the time. At a recent CLE I attended hosted by the Young Lawyer Division of the King County Bar, I had the opportunity to ask retired King County Superior Court Judge Richard F. McDermott this question. His response? He said that in his 18 years as a judge, he disagreed with the jury