Pay to Play

January 20th, 2022|

I’m writing this post after having recently received a solicitation from an attorney group asking for speakers for a big annual event. The “invitation” included a price list of what they expected speakers to pay. Despite the fact the audience would be perfect for us, marketing wise, Melissa immediately rejected the idea as something prohibited by the American Psychological Association (APA). Who knows when the pay to play issue heated up in the academic world, but it was in the last 25 years or so that it seemed to grow when university professors were paying to publish academic papers

Prepare for a Post-Pandemic (or Next-Pandemic) Courtroom: The Arizona Recommendations

January 20th, 2022|

By Dr. Ken Broda-Bahm: If we rewind to about two years ago, as we were getting confirmations of a novel virus in China, few of us at the time would have had the imagination to envision the scope of disruption and devastation that would follow in what is, for now, the next two years. The restricted social contact has come at a cost, but it has also accelerated many adaptations. As the shortened saying goes, “necessity is a mother…” Courtrooms in a variety of American venues tried a number of adaptations to allow the wheels of justice to continue to turn, albeit

“Post Truth” as a Vivid Reminder of the Role of Narrative Thinking

January 20th, 2022|

I have purposely avoided writing about narrative and its importance for years since the industry of jury consulting is oversaturated with folks who advise, “You gotta tell a story.” While true, this advice never seemed helpful to me as it seemed akin to self-help books that tell you just to work harder, be happier, or visualize your goals. Too many times, I have seen attorneys embrace the advice to tell a story, only to struggle with what that actually means as they prepare for trial. Afterall, it is not like attorneys get to sit around a campfire with jurors and

COVID-19 Jury Composition Conjecture

January 13th, 2022|

As trial consultants we try to stay current by reading lots of newspapers, journals, and magazines. Recently, I’ve noticed people writing about the composition of juries post COVID-19 (not that COVID-19 is over, “post” in this context merely indicates a world where COVID-19 came into being). Because of the politicization of COVID-19, vaccines, masks, etc., and because of the CDC guidelines, courthouse closures, the world of jury trials has been shaken. The practice of law has changed in many ways, some permanently. The willingness of ordinary citizens who are called for jury duty has been impacted as well. People

Professional Liability Defense: Put It in the ‘Judgment Zone’

January 13th, 2022|

By Dr. Ken Broda-Bahm: In liability cases against physicians and other professionals, the plaintiffs work very hard to frame liability as a clear cut-and-dried mistake: The professional did something that wasn’t allowed, or failed to do something that was required. The simplicity of this approach, enshrined in the “Reptile” and “Rules of the Road” perspectives on courtroom persuasion, exists for a good reason: lay jurors are not generally comfortable evaluating highly trained professionals, and it is not natural for them to feel that their judgment is better than the trained professional’s judgment. That is why plaintiffs clearly prefer the message

Pre-instruct Your Jurors on Hindsight

January 10th, 2022|

By Dr. Ken Broda-Bahm Jurors are often put in the position of assessing the probability or risk of something at the time a decision was made, before the consequences can be known. “How likely is it that a given result will be the outcome from a behavior?” is a rational question, and there may be good reasons and strong evidence to show that the chances were rather small. But ultimately, the outcome happened. So, in the jurors’ minds, that risk is likely to look a lot like 100 percent. There is a long line of clear research conclusions showing hat

What are effective defense responses to the plaintiff's damages request? Online Jury Research Update

January 6th, 2022|

Numerous studies have shown that jurors' damages decisions are strongly affected by the damages amount suggested by a plaintiff's attorney, independent of the strength of the actual evidence, a psychological effect known as "anchoring". Simply put, the more money asked, the more jurors award, even when the damages anchors suggested by plaintiff attorneys are extreme or absurdly high. Campbell and colleagues (2016) investigated whether civil defendants can effectively rebut a damages anchor proposed by a plaintiff's attorney....

Learn from the First Zoom-Appeal Verdict

January 6th, 2022|

By Dr. Ken Broda-Bahm: Courts over the past year and a half have moved with unprecedented speed into unorthodox territory, exploring ways to conduct trials, or portions of trials, via remote videoconferencing technology. In that setting, perhaps it was only a matter of time before a case would be overturned on appeal due to problems in the use of Zoom. Now, it has happened. In what Law 360 calls the first case of its kind, a Texas appeals court ended the year by handing a victory to an oil and gas production company challenging a county appraisal of its oil and gas

Experts: Testify Remotely Without Losing Influence

January 3rd, 2022|

By Dr. Ken Broda-Bahm: So the expert has arrived in town for trial. Their testimony could come today…or maybe by Thursday, and it isn’t unthinkable that it could get pushed into next week. Meanwhile, the waiting, and the billing, continues. This is just one of the factors that makes litigation expensive, creating unequal access and at times, pushing clients toward settlements that the facts might not warrant. It is also entirely a product of the expectation for in-person testimony. If the expert could just testify by Zoom, then it creates quite a lot of flexibility. With the coronavirus came the

Don’t Let Your Courtroom Visuals Be a Distraction

December 30th, 2021|

By Dr. Ken Broda-Bahm: It qualifies as a best practice: If you can make it visual, then you should make it visual. When presenting to a jury or a judge, the goal of developing trial graphics to supplement your message should be driven, not by necessity, but by opportunity. The question isn’t whether you need an image for them to understand the point, but whether you could use one. That’s the standard because research consistently shows the advantages of engaging an audience with both words and pictures. That simple imperative to make it visual, however, is sometimes frustrated or undone by