About ken.brodabahm

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So far ken.brodabahm has created 31 blog entries.

Combat “Partial-Picture Paralysis” in Your Mock Trial…And Your Real Trial Too

February 6th, 2023|

By Dr. Ken Broad Bahm: It can be a common experience during a mock trial. You have a mock juror who ends up being way too focused on what they don’t know. They understand that there are limits to how much detail you can get into within the constraints of a shorter trial simulation, but end up becoming obsessed with the witnesses they didn’t hear from, the documents they didn’t see, or the law they have not completely reviewed. So, despite you having spent a day or more conveying detailed information to them, and despite your goal of getting a

Practice Moral Reframing

January 30th, 2023|

By Dr. Ken Broda Bahm: The pandemic has been a lesson in a lot of things, including the challenges of using persuasion to build common agreement. In some ways, the past few years serve as a social science laboratory that litigators can learn from. For example, believe it or not, early on there was an issue that Republicans and Democrats nearly agreed on: 91% of Democrats and 85% of Republicans agreed on staying home as much as possible to stop the spread of the virus. That was in April of 2020, and it changed quickly. The six-point gap became a

Expect AI to Change the Nature of Legal Work…and Soon

January 26th, 2023|

By Dr. Ken Broda Bahm: Chances are good you’ve heard about “ChatGPT” in the past week or two. Just speaking for myself, my newsfeed has included many articles, including some with ominous titles like, “Will ChatGPT Make Lawyers Obsolete? (Hint, Be Afraid).” If the topic is new to you, a quick definition is that ChatGPT is an Artificial Intelligence assistant that was made open and free for the public at the end of this past November, and it is way beyond Alexa, Siri, and the online “help” bots you’ve frustratingly interacted with in the past. ChatGPT provides an open service where you can make

Catch Up in Voir Dire: Ten Questions to Ask when a New Face Suddenly Joins Your Panel

January 23rd, 2023|

By Dr. Ken Broda Bahm: Here’s a scenario that I’ve dealt with quite a bit recently. Counsel for plaintiff and defense both question a panel of prospective jurors, and in the process, we end up learning a good amount about the panelists’ experiences and views on the issues that might relate to the case. The individualized information we are getting provides a solid foundation for cause challenges and for the later exercise of peremptories. Then, when one member of the panel exits due to a hardship or a cause issue, another individual is pulled from the gallery and placed into

Debias on Hindsight

January 17th, 2023|

By Dr. Ken Broda Bahm: Defendants in civil cases are often plagued by the reality that the “should have,” “could have,” and “would have,” aspects of the reasonable care all exist in the realm of hindsight. The tendency to believe that negative consequences are more knowable and preventable when viewed through the lens of a known outcome is a very human tendency, and hindsight bias is an exceedingly common factor in legal cases. The test that should have been run, the precaution that could have been spelled out, the design that would have worked better, all create a “creeping determinism”

Get Your Jurors to Take the Tougher Path

January 12th, 2023|

By Dr. Ken Broda Bahm: For anyone analyzing audiences and preparing persuasive messages, it helps to know about what is called “System 1” and “System 2” thinking.  When we make decisions that are pretty quick and automatic, with little reflection, cognitive work, or even necessarily voluntary awareness, then we are using System 1. When we take the other path of making decisions based on careful mental efforts, including a consideration of evidence, reasons, and implications, then we are using System 2. Of course, there is a spectrum between the two, but these are useful polarities in thinking about how we

Save the Strikes: ASTC’s Research-Based Case Against Prohibiting the Peremptories

January 9th, 2023|

By Dr. Ken Broda Bahm: The last few years have seen a societal turn toward identifying and addressing systems that institutionalize discrimination based on race, gender, and other demographic traits. That attention is obviously a good thing. But one issue that has been caught up in that trend has been a call to eliminate the peremptory strike in civil and/or criminal cases. Several states are looking at the move, and Arizona has been the first in actually eliminating peremptory strikes in all jury trials. The argument has been that, because peremptory challenges have been used to discriminate, and because the

Ask What Jurors Are Trying to Do with Damages

January 5th, 2023|

By Dr. Ken Broda Bahm: When jurors are awarding damages in a civil case, the law looks at what they’re doing in a binary way: They are either compensating the plaintiff for what they have lost, or they are awarding additional amounts to set an example. In short, anything outside of “making the plaintiff whole” is “punitive.” But jurors don’t necessarily look at it within those strict categories. Motivations to punish or “send a message” can often drive discussions of compensatory damages, especially in non-economic categories where jurors don’t have any concrete guideposts. More generally, jurors commonly want the damages

Beware of Junk Science in Disguise

January 2nd, 2023|

By Dr. Ken Broda Bahm: Our trial system is designed to restrict the factfinders’ information to that which is relevant, probative, and sound. When it comes to expert testimony, it is the responsibility of trial judge to ensure that the testimony has a reliable foundation. But in the case of science, particularly social science, that can be a challenge. I have written in the past on research showing that jurors are only partially effective at understanding basic research flaws and discounting dubious science, and judges are not necessarily better. That means that advocates often need to be the last line of defense

Reconsider the ‘Rambo Style’ in the Courtroom

December 19th, 2022|

By Dr. Ken Broda Bahm: In the vast majority of my experiences with the legal system, attorneys and parties are painstakingly civil, as a rule. However, in my two most recent trials, there have been notable exceptions to this rule. In one case, opposing counsel, after making discovery a miserable process for both counsel and witnesses, could not resist directly insulting our attorney and calling our clients “liars” at every opportunity. In the other case, counsel was well-behaved, but the parties at the other side’s table could not resist making faces, muttering to each other, and in a couple of