Internet Based/Virtual Jury Research: Part 1

January 10th, 2019|2's Company - Magnus Insights|

Technology is not the answer to everything. I have recently been reminded of this when talking with more than one potential client who was curious about using internet based “jury research.” Specifically, we’ve recently been asked to bid on mock jury research only to learn that the competitor’s bid was for an online “mock jury.” In another case, the client wanted an online “mock jury” for reasons that did not really make sense; I’ll get back to that. The reason I’m putting parentheses around mock juries relative to the online variety is that these are not really mock juries. There

Why So Many Mediations Fail, and How You Can Up Your Success Rate

January 10th, 2019|Litigation Insights|

Over the last 23 years, I’ve attended plenty of mediations with clients to help them prepare and present their mediation presentation.  But from what I’ve seen, there’s not much actual mediation going on.  Instead, it usually goes something like this:  Mediator:  You never know what you’re going to get with some crazy jury, so your best bet is to settle this here with me.  Would each side like to make an opening statement?  Plaintiff:  We know what a jury will do.  We’re going to kick your butt.  Defense:  No, we know what a jury will do, and we’re going to kick your butt.  (Both sides adjourn to separate rooms and eat M&Ms.  Mediator’s corns get worse going

How to See Your Case Visually

January 8th, 2019|Cogent Legal|

Every day we become more and more accustomed to receiving important information in short doses punctuated by striking visuals. Almost all of us carry around smartphones that deliver information in quick and often visually beautiful digital soundbites, but the legal world has stubbornly remained mostly analog. There are many reasons for that, many of them good, but it is increasingly important to think about how to present cases with compelling visuals that will capture the eyes and minds of mediators, judges, and juries. In this post, I’ll go through some ideas on how to analyze your case from a visual

Careful Defendants, the ‘Reverse Reptile’ Could Be a Boomerang

January 7th, 2019|Persuasive Litigator (Persuasion Strategies)|

By Dr. Ken Broda-Bahm: The Reptile approach to trying plaintiffs’ cases has been around for a decade. It is now expected that many of those seeking damages in products, medical liability, and other personal injury cases, will use a persuasive approach that attempts to awaken jurors’ reptilian fear response and instinct to protect the safety of themselves and their community. While the approach is not new, defendants continue to search for the best ways to respond. And one question in that search is whether defendants should become Reptiles themselves. Is this a case of “Fight fire with fire,” or is

Ask If Your Jurors’ Causal Thinking Is Based on Facts or Possibilities

January 3rd, 2019|Persuasive Litigator (Persuasion Strategies)|

By Dr. Ken Broda-Bahm:  In one scenario, a worker is on a ladder, painting a ceiling at a local mall. The mall’s management did not order enough safety lines and the worker decides to go ahead and paint without one. After falling and being seriously injured, he sues for damages. The experiment indicates that responsibility depends on where jurors focus their “if only” thinking. “If only management had ordered enough lines” points responsibility to the defense, while “If only the worker had chosen not to work without a safety line” points responsibility at the plaintiff. Results in testing that scenario show

Beware of Nonverbal Pseudoscience

December 31st, 2018|Persuasive Litigator (Persuasion Strategies)|

By Dr. Ken Broda-Bahm:  The witness on the stand pauses before answering, then looks briefly up and to the right while giving a response. While listening to the next question, she places a finger over her lips, angles her head slightly, and raises one shoulder a bit higher than the other. Does any of that mean anything? To some who hold themselves out as nonverbal communication experts, each gesture and movement can be broken out and interpreted as having a distinct and defined meaning. But, by and large, those interpretations will not be supported by valid and replicable science. That