Courts: Requiring Vaccines Will Influence the Jury Pool. Require Them Anyway

September 13th, 2021|

By Dr. Ken Broda-Bahm: With mounting frustration over the duration and human cost of the Coronavirus pandemic, along with the sluggish pace of vaccinations in many parts of the country, President Joe Biden, this past week, threw down the gauntlet and announced a sweeping new policy of mandating vaccines for federal employees and for businesses with more than 100 employees. The move will affect as many as 100 million American workers, and also reprises a question that has been hanging over courthouses across the country: Should jurors similarly have a vaccination requirement? The combination of the close quarters of a

Better Instructions: Make Your Jurors Accountable Devil’s Advocates

September 9th, 2021|

By Dr. Ken Broda-Bahm Traditionally, we might think about what happens in the jury room as a kind of “Black box,” an unknown process with jurors keeping their secrets on how they got to their verdicts. In practice, however, we know a fair amount about what’s in that “box.” Based on both scholarly research and the practical experience of running mock trials and talking with jurors after real trials, we have a window into what goes on once they’re on their own. In both the mock trials and the real trials, experience teaches that there’s a range in how serious

Peremptories: Don’t Learn from Arizona

September 2nd, 2021|

By Dr. Ken Broda-Bahm: In my last post, I wrote about how the state of Arizona has been a leader in testing options for online trials. That same day, however, Arizona became the first state to eliminate peremptory strikes in criminal and civil cases. So far, the media is covering the move as a bold stroke against institutional racism. Ultimately, however, I believe the prohibition is well-intentioned but flawed. It is true that minorities are often under-represented on juries, and also true that the resulting lack of diversity has an effect on deliberations. Further, it is true that the solution to

Online Trials: Learn from Arizona

August 30th, 2021|

By Dr. Ken Broda-Bahm: Arizona may not be the model when it comes to partisan post-election audits. But when it comes to online or virtual trials, the “Cyber Ninjas” in that context seem to be doing much better. In the Grand Canyon state’s most populous jurisdiction, Maricopa County, civil parties can choose virtual juries in order to expedite the process. Leaders in the Superior Court for that venue did not simply default to that option, they studied it carefully. The current edition of the ABA’s Litigation publication features an article, “Virtual Juries: We Can, But Should We? And If So, How?”

Avoid ‘Glass Houses’ Arguments When Comparing Experts

August 26th, 2021|

By Dr. Ken Broda-Bahm: This is the general sentiment I sometimes hear when one side in an opening statement is talking about the other side’s experts: …and they are going to be bringing Dr. Smith up here to tell you that their theories are true. But when they do, remember who is paying Dr. Smith to be their hired gun and to offer that testimony. And what about the experts hired by the side making that argument? Well, in most cases they’re paid too, but their sponsors will believe that they hired a real expert, paid them for their time

Ask for a Jury Questionnaire Every Time, Especially Now

August 23rd, 2021|

By Dr. Ken Broda-Bahm: In the early preparation for a jury selection, I will often ask the team if there are plans for a supplemental juror questionnaire. Sometimes the answer is that there aren’t any such plans, and they haven’t really thought of that. Attorneys, with some justification, might assume that the other side will object, or the court might not allow it. Others believe that questionnaires are only for very special circumstances, like a case with a high level of pretrial publicity. But I believe an attempt to get a questionnaire should be on the list every time. The only circumstance

Fact-Check the Misinformed, but Remember that Experiences Are as Strong as Facts

August 19th, 2021|

By Dr. Ken Broda-Bahm: Potential jurors arrive at the courtroom with misinformation that might bear on your case. They could have opinions on scientific validity and reliability that will conflict with what your experts will tell them. They might have views on social groups that prevent them from seeing your witnesses fairly. They might have heard selective and filtered information about the case itself and believe that it is God’s honest truth. Among some attorneys, and particularly judges, there is often the hopeful belief that once they hear the facts, they will come around. This ability to correct misinformation is in

Learn What Motivates Punitive Damages

August 16th, 2021|

By Dr. Ken Broda-Bahm: As a legal category, punitive damages are not very common in U.S. civil trials, being available and awarded in just six percent of cases. But in the broader sense of “punitive,” the motivation to punish or to correct behavior doubtlessly underlies many other categories of damages. For example, the subjectively troublesome category of “pain and suffering” can become much less controversial when it is accompanied by a motive to punish. Jurors can also know that medical expenses were likely covered by insurance, but still be willing to award them if it is something the defendant “deserves” to

Defense Opening: Give Jurors a Reason for an Open Mind, Not Just a Request for One

August 12th, 2021|

By Dr. Ken Broda-Bahm: For many defense attorneys, there is a routine to the way that they’ll ask jurors to be fair at the start of their opening statement: There are two sides, you haven’t heard the whole story, please keep an open mind. It almost takes on the quality of a ritual incantation, done as much for the attorney’s peace of mind as for any effectiveness with the jurors. There is a feeling that the jurors owe you a fresh hearing. Formally, they might. But psychologically, they’re unlikely to just grant it. And begging for it too overtly can feel like you’re

Expect Another Silver Lining to Online Trials: Shadow Juries Just Got Easier and Safer

August 5th, 2021|

By Dr. Ken Broda-Bahm: The jurors assemble and begin watching the trial — not the actual jurors but the shadow jurors, the ones who are recruited by one side, matched to the real jurors, and offer feedback on the trial as it comes in. They watch opening statements, and each of the witnesses, and give daily feedback on what makes sense and what is influential. As they watch the trial, they aren’t worried about the judge or the other side wondering who they are. They aren’t trying to avoid the gaze of the real jurors, or worried about running into