Once More, Into the Mask: Expect a Post-Pandemic Courtroom to be a Ways Off

July 29th, 2021|

By Dr. Ken Broda-Bahm: It is as if the public health groundhog emerged from its den, saw its shadow, and now promises six more months of confusion, polarization, and pandemic fatigue. With the more-transmissible Delta variant of the Coronavirus surging across the country, there is concern that we may not be over the hill yet, and may not even be particularly close. The U.S. Centers for Disease Control this past Tuesday issued new guidance recommending a return to masks, even for the vaccinated, for those who are in “an area of substantial or high transmission.” The assumption is that most Americans know whether

Expect Jurors to Project Themselves into the Situation

July 26th, 2021|

By Dr. Ken Broda-Bahm: A ‘Golden Rule’ argument is one that encourages jurors to put themselves in a party’s shoes and think about what they would or wouldn’t have done. It leads to an objection because it encourages the juror to embrace a personal conclusion that isn’t necessarily drawn from the facts. The Golden Rule objection, however, is a limit on the attorney’s messages, not a limit on what jurors can do. And jurors will do it. When they encounter a new story in the courtroom, they’re armed not just with an understanding of what they hear in court, they’re also armed with

Make Your Slides Less Texty: Six Tips

July 22nd, 2021|

By Dr. Ken Broda-Bahm In any challenging communication situation, it is best to combine the visual with the verbal. This is good practice because pictures tend to make things more “truthy,” in the sense that claims that are accompanied by relevant images are more likely to be considered true, even when logically the picture has no probative value. For a trial lawyer, I believe that pictures also work because they put jurors in a more attentive frame of mind: The “dual tracking” that comes from listening while also looking leads to greater engagement. For these reasons, the slide deck is

Stop Relying on Generational Categories

July 19th, 2021|

By Dr. Ken Broda-Bahm: I often hear questions such as, “Do I want Millennials on my jury?” or “Are Boomers likely to be more conservative on damages?” This focus on the attributes of these generational groupings is part of larger fixation on the categories we can see during voir dire: age, race, income, etcetera. But one thing I’ve found is that the more experienced one is in selecting juries, the less fixated they are on demographics, and the more fixated they are on attitudes, beliefs, and experiences. And it is becoming increasingly clear that, like other demographic traits, generational labels

Embrace Hybrid Trial Preparation

July 15th, 2021|

By Dr. Ken Broda-Bahm: During the past year or so, when clients have scheduled witness meetings or focus group and mock trial research, we will at some point get to the common question: “So, are we doing this in person or online?” Increasingly, it feels like the answer to that question ought to be “Yes.” Now that fear of the pandemic is becoming less of a motivation for online work, ease and effectiveness is stepping up to be the alternate motivator. In the same way that many of the in-person meetings and phone calls of years past have become Zoom

Press for Extended Voir Dire (and Don’t Trust Judicial Rehabilitation)

July 12th, 2021|

By Dr. Ken Broda-Bahm: In the context of voir dire, the tension between social science and court practice is becoming close to intolerable. On the court side, we continue under the assumptions that potential jurors are aware of their biases (despite mounting evidence of bias “blind spots” and unconscious bias), that potential jurors are willing to acknowledge these biases (despite strong evidence of “social desirability” causing them to want to be “good jurors” who aren’t biased), and that expressed biases can be rehabilitated through the use of the four magic words, “can you be fair?” The realities of social science are

Stop Asking Potential Jurors About What They Can ‘Set Aside’

July 8th, 2021|

By Dr. Ken Broda-Bahm: At the start of the case, a trial judge somberly addressed the jury, letting them know what adjustments were expected of them. The instructions told them they, “must as jurors, take all the decisions you have made, all the opinions you have about how people act, how people behave, what kind of people behave in what way, what makes them do that, and you leave them in that box.” In other words, they must sacrifice their personhood to become a blank slate. An appeals court determined the instructions in that case (Taylor v. Sisto 606 F. 3d

Treat Online Trials as an Access-to-Justice Issue

July 5th, 2021|

By Dr. Ken Broda-Bahm: The courtroom is a special place, and there are both symbolic and substantive layers to that special status. At the symbolic layer, there are the physical trappings of the courtroom: Dark wood, granite, columns, raised benches, bars, and flags. But at the substantive level, there are the principles that a courtroom is a space that is open and accessible: Everyone, regardless of resources, circumstances, or station, should be able to participate in the public resolution of disputes. As remote online trials have moved in the past year from experiments to binding verdicts, critics of online trials have focused

Voir Dire: Create Your Own ‘Candor Script’

July 1st, 2021|

By Dr. Ken Broda-Bahm: As the potential juror sits with the others in the courtroom, the thoughts running through his head might go something like this: “I am being tested on whether I qualify for jury duty…so if that’s what I want, it means giving the right answers…and ‘right’ in this situation means the answers that the judge and the attorneys expect.” Later, when he is asked if he’s able to set aside attitudes and past experiences, the answer is “Absolutely.” Can you be fair? “You bet.” Of course, it is not always a process of conscious dishonesty, and it may be

Speak to Familiarity: Jurors Know What They Like, and Like What They Know

June 28th, 2021|

By Dr. Ken Broda-Bahm: To jurors, most legal cases are unfamiliar by nature. Cases are about the agreement that jurors  weren’t a part of, the product they never used, the employer they never worked for. And, more broadly, the cases often rest on bodies of knowledge and forms of thought that are almost entirely foreign to jurors: the medical standards or the principles of intellectual property law that jurors can be told about, but without any analog in their own experience. How do practical persuaders bridge that gap? By connecting what is new to what is already known, and by