Know the Other Side’s Three Goals for Your Deposition

May 23rd, 2022|

By Dr. Ken Broda-Bahm: So, your deposition has been scheduled, and you’re just starting to wrap your head around what is in store for you. Your lawyer has already stressed that you are not in the driver’s seat at this stage: The deposition is the other side’s process. Because of that, it helps to devote some thought to what they are looking for. A realistic and complete understanding of your adversary’s goals can help you prepare for your own testimony. Every case and every opposing counsel will be different, and there may be unique factors in your own situation. At

Look Beyond Your Jurors’ Political Identification: Education Matters

May 16th, 2022|

By Dr. Ken Broda-Bahm: Whenever we step up to evaluate a person as a potential juror, it can be an occupational hazard to simplify that person too much. We do our best with the time and information available, and to be sure, jury selection would be better and less susceptible to social biases if judges permitted more time and better information. But even with a good amount of information on a venire member, it can be tempting to seize on one variable and treat it as destiny. But in nearly all circumstances, it is more complicated than that, and the team working

Witnesses, Don’t Create Obstacles to a Positive Perception

May 12th, 2022|

By Dr. Ken Broda-Bahm: Witnesses, I’d like to have a word. You know the most important audience for your testimony — the jurors in the courtroom with you, or the future jury who might someday see a clip of your deposition? That audience is kind of pulling for you. You aren’t a lawyer, and you aren’t a judge. You are a normal human being just like they are, and they want you to do well. They know that you’re the one who was there on the scene, closest to the facts. You’re the one they’ve been waiting to hear from.

The Research/Practice Gap: You Should Continue to Prefer Live Testimony

May 9th, 2022|

By Dr. Ken Broda-Bahm: I recently visited one of the Meow Wolf locations, and my feelings about the immersive art installation tracked with the typical reactions: As vivid as the pictures are, they still don’t do it justice, and you have to be there. This idea that in-person experience is always going to be better than a visual record also applies to many other live events, and the easy availability of video of our favorite teams and favorite musical artists has not dimmed our appetite for expensive tickets to the live in-person events. That is because we believe, at least,

Embrace the Power of “You might be thinking…”

May 5th, 2022|

By Dr. Ken Broda-Bahm: A seasoned trial lawyer stands in front of the jury, previews the critical argument, and then, making knowing eye contact with the jury, adds, “Now, you might be thinking…” before spelling out and then responding to a key point of expected resistance. That approach — anticipating and reacting to likely responses from your target audience — is an approach that works. I recently completed a focus group with an attorney who used that approach over and over again, wrapping his arguments around the predicted thought processes of the jury, and the focus group participants ate it

Address Anti-Expert Bias: 5 Ways

May 2nd, 2022|

By Dr. Ken Broda-Bahm: It has been a rough couple of years for science. Our newly-unmasked population seems to be more divided than ever about our ability to rely on science in applying systematic and neutral procedures in order to find reliable answers to the questions that matter. A sizable chunk of the population is primed to suspect that anyone who speaks with initials after their name is likely to be spreading BS. Of course, there has always been a tendency for people in some quarters to downplay science as mere opinion. Particularly in a courtroom, there has always been

Apply Two Tests to Any Battle Between Stories

April 28th, 2022|

By Dr. Ken Broda-Bahm: It’s America’s case of the moment: Johnny Depp and Amber Heard, Hollywood’s former power-couple, now exchanging accusations of physical abuse in a Fairfax, Virginia courtroom. The defamation case initially brought by Depp has now centered on two starkly different stories about what went on in the marriage. At it’s heart, it is the traditional “He said, she said” circumstance, but read in the context of the #MeToo movement as well as a more subtle but emerging backlash against giving presumed credibility to anyone who alleges abuse, it has quite a bit more nuance to it. I have

Reserve Your Opening? Three Ways that Rare Strategy Might Make Sense

April 25th, 2022|

By Dr. Ken Broda-Bahm: The reserved opening statement is a strategy that, in all my years helping in the courtroom, I have never seen applied. In theory, a defendant typically has the right to wait until the plaintiff or the state has put on its case, and then offer their opening statement just before putting on the defense. In practice, however, there are very good reasons not to do that and those reasons generally end up being decisive. But a current article in Law 360, entitled, “‘Our Heads Were Spinning’: Trial Atty Explains Rare Strategy” sheds some light on the approach that is written

Take the Medicine: Three Steps to Pre-empting Your Witness’s Bad Stuff

April 21st, 2022|

By Dr. Ken Broda-Bahm: You have your witness on the stand in direct examination. You have finished laying out the positive story that you want to tell, but you have one more thing to do before handing that witness over to the other side: You need to cover the bad stuff. At this stage, you know what your adversary is going to focus on during their cross-examination. If you’re wise, you will get there first, and make sure that both the opposition points and their refutations are previewed in advance. I have written before about this inoculation approach to persuasion.

Experts: Use Anecdotes, not Just Data

April 18th, 2022|

By Dr. Ken Broda-Bahm: For those trained in the sciences, relying on illustrations or examples is not considered nearly as good as relying on data. If they call something “anecdotal,” then there is a good chance that the word “merely….” precedes it, and the adjective is being used to play down the point. From a substantive perspective, there is good reason for suspicion. An example is susceptible to being cherry-picked in an unrepresentative manner, and conclusions grounded in examples are not valid when contrasted with conclusions grounded in systematic comparisons, experiments, or other analyses of the broader data. But from a