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

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

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

Don’t Assume Virtual Communication Creates Less Empathy

December 27th, 2021|

By Dr. Ken Broda-Bahm: When you’re dealing with testimony, argument, or any other form of communication, it is easy to assume that you’re getting less when it is distanced. In a remote conference or any Zoom-like experience, it seems that the literal distance and the technological disconnect leads to less of an impression, including an inability to read subtle non-verbal cues, as well as a difficulty or impossibility to engage in mutual and reciprocal eye contact. Many believe that this leads to less influence, less connection, and ultimately less empathy for a party or witness in litigation who appears via

Understand the Full Effect of a Bad Connection or Recording

December 23rd, 2021|

By Dr. Ken Broda-Bahm: The persisting pandemic has brought with it more adventures in technology. Courts have seen an increased use of remote testimony and oral argument, and even fully remote trials. When it is done well, it can be surprisingly effective in capturing a lot of the value of the in-person legal process, while also potentially improving access and participation, not to mention reducing the  risks of coronavirus transmission. But when there are glitches, it can be frustrating. It is not just a matter of comprehension, and whether we are able to understand the testimony or argument. While a judge might say that, as long as content is

Witnesses, Don’t Be Surprised by Surprises

December 20th, 2021|

By Dr. Ken Broda-Bahm: So you’re preparing for your trial testimony, and the discovery has been voluminous. Out of the mountain of documents that opposing counsel might wave at you, there are a handful that are most likely to be relevant to you. The documents and their underlying issues have been carefully curated and reviewed by your attorneys, so you feel prepared on what to expect. But what if they throw you a curve ball? Once the attorney from the other side is shoving something under your nose that you have not seen or prepared for, what do you do?

Treat the “Reasonable Person,” Not as an Abstraction, but as an Average

December 16th, 2021|

By Dr. Ken Broda-Bahm: The core of most determinations of negligence is the question, “What would a reasonable person have done?” And, at least in theory, this “reasonable person” isn’t supposed to be an actual person whose deeds are recorded in the admissible evidence. Instead, based on the instructions, it is an idea. It is left to the jury to understand, unpack, and apply that idea. On the legal fiction of the “reasonable person,” legal theorists have debated whether it is a concept guided by rational economics (what is reasonable is what is justified based on costs versus benefits), or