Plan for a Hybrid Trial System

June 24th, 2021|

By Dr. Ken Broda-Bahm: There are two theories fighting it out over what will happen once the pandemic fades. The first,  — I’ll call it the “blip theory” — posits that we will simply go back to normal pre-pandemic times, with the lockdown’s aberrations being relegated to “I remember when…” stories that we’ll tell our grandchildren. The other theory — the “persistence theory” — suggests that we will never really get back to normal, and the adaptations we made were so strong that we will be dealing with both the reminders and the remainders for a long time. Even if you,

Voir Dire: Select on Attitudes, not Race

June 21st, 2021|

By Dr. Ken Broda-Bahm: Juneteenth is now a federal holiday, and even as many would prefer action on voting rights protection, equal access to education and healthcare, and police reform, the symbol is still important. It highlights both the progress and the work to be done on race in this country. In our courtrooms, race is still one of the salient demographic factors that a juror might bring to their evaluation of a case. The conventional thought among experienced consultants and attorneys who pick juries, however, is that even setting Batson and parallel cases aside, it is simply more effective to

Don’t Oversell Your Limits

June 17th, 2021|

By Dr. Ken Broda-Bahm: Now that the coronavirus vaccinations are moving toward the point of critical mass, it might be safe to think back on the early weeks of the vaccines’ roll-out. At that stage, many health officials were emphasizing the limits of the vaccine. The message went sort of like this: “It’s no guarantee against the virus, you might still get sick and you might still pass it on to others, so keep avoiding large gatherings, keep social distancing, and keep wearing that mask.” In response to that message, many wondered, “Okay, so why are we getting the vaccine

Don’t Let Your Virtual Voir Dire Become a Circus

June 14th, 2021|

By Dr. Ken Broda-Bahm: A courtroom process is supposed to be formal and solemn. The habits of delivering justice in person, through decorum and civic ritual, are designed to evoke a deference to the rule of law. When conducted remotely using a platform like Zoom, however, it doesn’t always work out that way. A recent Law 360 article, “Virtual Voir Dire Devolved Into Circus, Texas Justices Hear,” shares what happened during remote jury selection in a recent trial in Houston. Based on the description at least, it does have a Barnum & Bailey vibe to it. According to an affidavit filed by attorneys

Make Your Key Facts Stickier: Five Ways

June 10th, 2021|

By Dr. Ken Broda-Bahm: In complex civil litigation, there’s a lot to manage: a huge wealth of people, events, documents and detail to encourage your fact finders to know and remember. All of them, or nearly all of them, will be important. But some need to stand out. If you’re able to really nail down a key fact, it can serve as the North Star for your fact finders, whether they’re jurors or a judge, arbitrator, or mediator. So, how do you nail it down and ensure that it isn’t lost? You can tell them, “This is important”, but that

Note the Progress and the Challenge in Courtroom Attitudes Toward Gay Litigants

June 3rd, 2021|

By Dr. Ken Broda-Bahm: As we enter Pride Month, it’s a good time to reflect on where we are. President Biden recently announced a renewed push for full legal equality for LGBTQ individuals, but that takes place against a background of continuing bias, including a new legal focus in many states on rolling back civil rights protections. There are battles that are being fought in the statehouses and halls of Congress, in people’s hearts and minds, and that is where there’s been a great deal of evolution in the past few years. Looking at the levels of social and interpersonal bias,

Trust the Norming Effect of Deliberations

May 31st, 2021|

By Dr. Ken Broda-Bahm: Critics of the jury system, or simply those who are nervous about taking part, will sometimes characterize a jury’s result as a kind of crap shoot. The feeling is that they’re inconsistent, and subject to the idiosyncrasies of group influence. “A jury can do anything,” I’ve sometimes heard counsel tell their clients. That is an attitude that can make attorneys and clients less trusting in the deliberation process, and more conservative than they ought to be about going to trial. That fear can sometimes put its thumb on the scale in favor of an unwise settlement.  It

Bring Your Jury to the Scene, Virtually

May 27th, 2021|

By Dr. Ken Broda-Bahm: Site visits can sometimes be a part of a criminal case — and predictably, jurors love them as much as school kids love field trips. It can also matter in civil cases, to see where the auto accident or the personal injury took place. But as helpful as these visits can be, they just don’t happen because it is an expensive endeavor. There is also a good chance that by the time we make it to the trial stage, the scene itself has changed; and in any case, the hazard, the body, and the wrecked car

Presenters, Don’t Be Eclipsed By Your Screen

May 24th, 2021|

By Dr. Ken Broda-Bahm: For more than a year, many of us have been presenting to audiences by Zoom or other web-conferencing platforms rather than presenting in person. Largely, the experience has lived up to the challenge, convincing many in the process that the online presentation is a viable alternative in handling the challenges of in-person presentations including facilities costs and travel. As a result, this may be one of those adaptations that, to some extent, stays with us after the pandemic. But let me share one gripe: When the speaker shares their screen, for example to show the slides, the

Reduce Resistance, Tell Stories

May 20th, 2021|

By Dr. Ken Broda-Bahm: In legal settings, the emphasis is often on the positive act of giving arguments and evidence for a given outcome: Share the proof and the reasons to believe, and let those appeals work their magic on your audience. But there is also a flip side to that. Persuasion can also be thought of as negating the reasons against your preferred outcome, or reducing the barriers that your fact finders might have and the obstacles that would make it harder for them to side with you. As I’ve written before, the first set of strategies are often