Testimony Mode: Note the Tradeoff Between Information Density and Juror Sensitivity

October 18th, 2021|

By Dr. Ken Broda-Bahm: Here’s an intuitive belief that many who work in the field of law might adhere to: More information leads to better decisions. Those who work in the social sciences, however, know that this does not always hold true. Based on the higher “cognitive load,” higher levels of information can also mean that the recipients of that information will try to simplify, rely on “heuristic” short-cuts, or decide based on information with less actual relevance. One recent study on eyewitness testimony provides a timely example of that. Two psychologists from University of California, Riverside (Hicks & Clark,

(Sometimes) Reinforce a Higher Threshold for Cause Challenges

October 14th, 2021|

By Dr. Ken Broda-Bahm: As you’re waiting your turn for voir dire, you notice that plaintiff’s counsel is getting a fair number of potential jurors to admit that they might have a bias — against lawsuits, against plaintiffs’ attorneys, against various damage categories, in favor of personal responsibility, and in favor of parties like the defendant, your client. In each case, the attorney seals the deal by getting the panelist to agree that Yes, it is a strong opinion, it is unlikely to change, and yes, they’re probably the wrong juror for this case.  As you mutely witness your adversary effectively

Add Context to Your Voir Dire

October 11th, 2021|

By Dr. Ken Broda-Bahm: I came across a recent article in the publication Raw Story with the intriguing title, “There’s a big problem in opinion polling that mainstream media is missing” by Matt Robison. While not an academic piece, the article does address a problem that is driving academics crazy. I’ve noted in previous posts the now-familiar problem that, even with a behavior as concrete as voting, pollsters are increasingly finding it harder to find a representative pool, stick to a reasonable margin of error, and produce results that match reality. Robison quotes a meta-analysis of public opinion research (Berinsky,

Consider the ‘Message Effect’ of Inviting a Consultant to Help Your Witness

October 7th, 2021|

By Dr. Ken Broda-Bahm: Arriving for the preparation meeting, the witness notices that there’s someone new in the room: a communications consultant. A non-lawyer visiting from out-of-town, the consultant is introduced by the lawyer as a specialist in legal communication and as someone who “is here to help us prepare for your testimony.” Over the course of the meeting, the consultant does just that.  In addition to familiarizing the witness with the process of trial or deposition testimony, the consultant provides an overview of main goals, conveys a clear list of “do’s and don’ts,” and warns about potential tricks and traps.

Understanding the COVID-Gamblers in Your Jury Pool

October 4th, 2021|

By Dr. Ken Broda-Bahm: Every jury selection involves a variety of issues relating to how potential jurors could feel about the specific case. But there is one issue that is relevant in every current jury selection for an in-person trial: What is the person’s comfort level in sharing relatively close quarters indoors for long periods of time while we are still in the extended throws of the coronavirus pandemic? Some will be vaccinated and others won’t be, but all face at least some risk of receiving or transmitting the virus due to jury duty. Jurors’ subjective perceptions of that risk

Compliment in Order to Persuade

September 30th, 2021|

By Dr. Ken Broda-Bahm: I’ve got to say it: I think I have the best readers in the whole litigation-blogging space. You’re thoughtful, committed, and willing to reach out to me with feedback and ideas for new posts. Honestly, I don’t think I could ask for a more intelligent and engaged group. And now, dear readers, that I’ve complimented you, you’re primed to respond favorably to my next attempt to influence you. That, at least, is what the research says. Several studies (i.e. see Grant, Fabrigar, Lim 2010; and Grant et al., 2021) support the intuition that compliments work in

Gruesome Injury Photos: Consider the Halo of High Impact Evidence

September 27th, 2021|

By Dr. Ken Broda-Bahm: After receiving many warnings from the court and counsel on what they’re about to see, the jurors are finally shown the injury photos. Some of them frown, one covers her face, many look away after a quick glance, and a couple study it closely. This is a regular occurrence in cases involving violence or personal injuries. The photos will often come in, any bias notwithstanding, because there is an arguable probative value, especially in a civil case focusing on injury and on pain and suffering.  It is clear to anyone that these dramatic and graphic injury photos

See the Social Roots of Bias

September 23rd, 2021|

By Dr. Ken Broda-Bahm: At the voir dire stage of a jury trial, the word “bias” gets used a lot. But do we really know what it means? The courts, in practice at least, hew to a simple meaning: If a potential juror admits to bias, that means they know they can’t be fair to both parties, and can’t promise to render a verdict based on the facts and the evidence alone. In psychology, the term has another meaning, and one with a lot more nuance to it: A bias is really any factor that predisposes someone in a certain

The Civil Jury Trial: Treat the Crisis as an Opportunity

September 20th, 2021|

By Dr. Ken Broda-Bahm The American civil jury trial was on life support before the pandemic. For a generation at least, the trend has been toward a reduced scope for a jury’s decision, an expansion in the power of judges to resolve things in advance, caps on the jury’s damages, and a far greater prominence for private arbitration. With less than one percent of all case resolutions taking place in either state or federal court, trial by civil jury was by far the exception rather than the rule. In that setting, when the pandemic came along, it was easy enough

The Punishment Profile: Know the Situational Triggers

September 16th, 2021|

By Dr. Ken Broda-Bahm: From the time we were kids, most of us swiftly learned what was likely to get us punished: a spanking or — for more recent generations — a time out. Usually, that was brought out by something we did, or by the situation we found ourselves in. That frame of punishment plays a role in litigation. With or without the category of punitive damages, the motivation to punish (as opposed to the less dramatic motivation to merely compensate a party for its loss) can factor in to the way a jury, judge, or arbitrator makes their