Stealing Thunder: Know When to Preempt and When to Wait

June 20th, 2022|Persuasive Litigator (Persuasion Strategies)|

By Dr. Ken Broda-Bahm: When the other side has a powerful potential argument, but you get to go first, then you have a strategic call to make. Do you use the opportunity to get there first, address the issue before they can, and steal their thunder? Or do you wait them out, see what they have, and respond only after they’ve raised the issue? That question will come up in many scenarios. If you’re a plaintiff, then you are always deciding how much of the expected defense to address in opening and in your case. Or if you are a

Don’t Sweat the Small Stuff

June 16th, 2022|2's Company - Magnus Insights|

“Don’t Sweat the Small Stuff” is a phrase used to suggest one should relax, chill out, and not worry about the little things, things which sometime seem out of one’s control. Well, that’s great. But, our “day job” as trial consultants doesn’t allow it. Neither does my prior advocation, photography. For example, when photographing people at events, the photographer has to watch the person’s expression; if it is a group of people, it is even more challenging. The photographer has to look at the eyes, the smiles, the hands, feet, etc. Ensuring things are in focus and that there

Defend Your Product Testing Regimen: Seven Standards

June 13th, 2022|Persuasive Litigator (Persuasion Strategies)|

By Dr. Ken Broda-Bahm: When you test a product to assess its performance and safety, of course you have very substantive reasons for doing that: You are aiming to check effectiveness, prevent harm, and protect the brand. When a trial occurs, however, that testing carries a symbolic message as well, with the message being that the manufacturer and seller is caring, careful, and serious. Even if something went wrong, and even if in hindsight there was some element that was incomplete in the testing, it still bolsters the company’s trial message to show that it has a comprehensive focus on

Are They Paying Attention?

June 9th, 2022|2's Company - Magnus Insights|

My post about whether the mock jurors take it seriously reminded me of another aspect of this client related surprise. Watching a group of people, mock jurors, listen to the case arguments in a mock trial can sometimes be misleading. Some mock jurors are clearly engaged, others have their eyes closed, others are frantically taking notes, some are squinting (perhaps because they forgot their glasses), and others are making eye contact with the attorneys, even smiling at them. All of these visual cues are subject to being misread. Often, attorneys come into the observation room and comment on their perceptions

Masks in Court: Understand the Real Lesson

June 9th, 2022|Persuasive Litigator (Persuasion Strategies)|

By Dr. Ken Broda-Bahm: As we begin to take stock of and conduct research on the effects on the pandemic adaptations, it is important to keep an essential principle in mind: The research on pandemic adaptations is not just about the pandemic adaptations. In nearly every case, the focus will also bear on larger issues of communication and the central functions of courts even in normal times. One such example is the focus on the effects of masks on the ability to assess witnesses and others in the courtroom. Pre-pandemic, I think it was the assumption that masking a witness or a potential

Embracing the Gains of Virtual Trials – Part 2

June 9th, 2022|DOAR|

In the first part of this series, I attempted to assuage our fears of what is lost by conducting jury selection virtually by identifying what we have gained from this new medium. In the second and final part of this series, I address the concern with jurors’ ability to evaluate the credibility of witnesses who testify remotely or are wearing masks (i.e., in a socially distanced courtroom), as well as to empathize with them and ensure due process (i.e., honor the presumption of innocence). Drawing again upon theory and anecdote, I demonstrate that our fears are much less palpable than originally