The White-Collar Defense Juror and the “Trump Effect”: An Empirical Analysis

December 8th, 2022|

For the last six years, litigators have pondered the question: Have jurors changed in the wake of the Trump era? Our nation underwent cataclysmic shifts in values and ideologies after Trump’s election in 2016 and became polarized on key social and political issues in unprecedented ways. As issues of racial, gender, and economic inequality rose to the forefront of our national consciousness, many wondered how these would affect the judgments that diverse groups of jurors make about white-collar defendants who are typically (though not always) White, male and wealthy. Do the assumptions about favorable defense jurors often held by white-collar defense lawyers continue

How do jurors treat contracts formed as a result of fraud? | Online Jury Research Update

December 8th, 2022|

People are "contract formalists" (a) putting excessive weight on contracts' written terms (as compared to oral agreements), (b) believing that contracts are formed primarily through formalities such as signature and payment (even though contract law does not require such formalities), and (c) believing that a signed agreement obligates parties to abide by its terms (even when the agreement's terms go unread, the contract is unreasonably lengthy, or the terms are one-sided or unfair) (Wilkinson-Ryan, 2014; Wilkinson-Ryan and Hoffman, 2015). Said differently, people hold signees to a written contract's terms, even when the terms are buried in the fine print of

If It’s a Lie, Call It Out

December 8th, 2022|

By Dr. Ken Broda Bahm: If your opposing counsel has a flair for the dramatic, then at some point in the deposition or cross-examination, you might get to a question like, “So, if my witness says that didn’t happen, then you’d say she is lying, right?” What the lawyer is hoping for in asking a question like that is that you’ll back-track, or hesitate, or in some other way try to evade the accusation. Playing on our instinct for civility in the formal setting of testimony, the lawyer is trying for a cheap way to soften or introduce doubt about

Social Psych = Groups = Juries

December 6th, 2022|

Over the years, many people have asked me what makes me qualified to work as a jury/trial consultant. I explain that I have a Ph.D. in social psychology, which is the scientific study of how people’s thoughts, feelings, and behaviors are influenced by other people and situations. Social thinking, social influence, and social behavior are studied by my colleagues and me, with the goal of understanding the ways in which individual and group behavior is influenced by others’ presence and behavior. In consideration of the fact that a jury is comprised of individual jurors, who must work together to

Sequence Your Trial Story: Five Non-Linear Arcs that Change the Emphasis

December 5th, 2022|

By Dr. Ken Broda Bahm: The mantra when persuading juries, judges, and really anyone is often “Keep it simple.” That is for a good reason, and often the simplest way to tell a story is to begin at the beginning and end at the end, working your way straight through the events in sequence. At the same time, the popular dramas and storytelling that surrounds us in novels, movies, and television are replete with examples of alternate ways to tell a story to bring emphasis to a particular part. Shows like Lost or Breaking Bad as well as novels like Slaughterhouse 5 or It will play with the timeline as

Does attorney incivility lose jury trials? | Online Jury Research Update

December 2nd, 2022|

Incivility in the courtroom is a widespread phenomenon that has myriad causes and takes myriad forms. Attorney rudeness, hostility, intimidation, personal attacks, unnecessary combativeness, poor manners and overzealous advocacy are examples of "Rambo Litigation" that violates norms of both courtroom decorum and mutual respect, and yet frequently occurs. Incivility increases judges' stress (Miller et al., 2021) and causes negative emotions in observers (e.g., anxiety, anger, disgust, fear) (see, for review, Edwards, 2022). Are jurors similarly affected by attorney incivility and, if so, does attorney incivility influence jurors' verdicts? Edwards (2022) examined how attorney incivility in the courtroom affected jurors' emotions,

Don’t Count on Being Able to Cure Implicit Bias

December 1st, 2022|

By Dr. Ken Broda Bahm: Within the last few years, at least a few courts in the U.S. have started to wake up to some of the realities of the cognitive biases that can be an obstacle to a fair criminal or civil trial. For generations, courts have acted as though potential jurors could easily know and effectively shut off those biases. In many courts, of course, that is still the practice, with judges in effect clearing jurors with the question, “So you’re not biased, or you can set it aside? Good. Next.” But in a few jurisdictions, courts are

Witnesses, Do Your Homework

November 28th, 2022|

By Dr. Ken Broda Bahm: Every witness preparing for testimony is going to prepare a little bit differently. Those helping with that prep need to adapt to the unique challenges presented by opposing counsel, the case characteristics, the witness’s role within the case, and the witness’s personality and communication habits. But there are inevitably some common features and messages contained in that preparation session. One common feature is the need for witnesses to do some follow-up “homework” on their own. Not everything can be durably fixed during the constraints of a single meeting, or even a series of meetings. And

How do jurors respond to a LGBTQ+ panic defense? | Online Jury Research Update

November 27th, 2022|

A LGBTQ+ panic defense is a legal strategy that asks jurors, directly or implicitly, to consider a victim's sexual orientation, gender identity, or gender expression to explain a criminal defendant's violent reaction, including murder... Recent research has sought to identify characteristics of jurors that predispose them to finding a LGBTQ+ panic defense legitimate....

Almost Like Cheating

November 24th, 2022|

I keep a list of things clients have said during or after working with us on mock jury research. These tidbits illustrate the eye opening reactions some attorneys have when observing jurors deliberate. One of my favorites was from (now retired) Pete Burkert in Fort Myers, FL. After a series of mock juries, he said, excitedly, “It’s almost like cheating!” He was thrilled to know what resonated with typical jurors so that he could customize his case presentation. Knowing potential outcomes is one thing. Learning how to talk to a jury in their language is, however, critical in achieving