Remote Courtroom Procedures: Don’t Just Add a Camera

December 13th, 2021|

By Dr. Ken Broda-Bahm: As the 2021 pandemic year winds to a close, while the 2022 pandemic year waits in the wings, it may be a good time to take stock of changes in legal procedure brought by the pandemic. Given the persistence of needed social precautions, as well as the chances of a new threat, technological adaptations are likely to be needed to keep the wheels of justice turning. And even without the need for social distancing, it may be that some technological changes won’t be rolled back as the coronavirus recedes, simply because they’ve shown themselves to be

Be Tactical in Jury Selection

December 9th, 2021|

By Dr. Ken Broda-Bahm: The voir dire process has got to be one of the most complex, information-rich, and high-stakes communication settings. To someone unfamiliar with the rituals, it won’t always be clear what is going on or why. For new attorneys, or experienced attorneys who just have not selected a jury in a while, it is useful to understand the broad tactical considerations and keep them in mind. The main goal, of course, is to get at the substance — to identify and to deselect those who cannot or will not be fair to you and your client during

Consider That Your Zoom Conferences Might Be Sapping Your Collective Intelligence

December 6th, 2021|

By Dr. Ken Broda-Bahm: Even as things are fitfully returning to a post-pandemic normal (perhaps against the current COVID Omicron variant-driven medical advice) one feature of the last 21 months seems to be lingering: the Zoom conference. In legal settings, these video conferences are being  used increasingly for team meetings, witness preparation sessions, hearings, and more. As the goal of limiting COVID exposure starts to fade, other goals — ease of scheduling, less travel, no conference rooms — have come to the fore. And in many ways, the meetings themselves seem nearly as good, so many of us are thinking,

Your Direct Examination: Know the Steps, but Let the Attorney Lead

December 2nd, 2021|

By Dr. Ken Broda-Bahm: When preparing for trial testimony, often the focus is on what opposing counsel is going to do. You prepare for cross, naturally enough, because that is an adversarial moment. But my own view is that direct examination should get the same amount of preparatory attention. The questioning by friendly counsel, even as it seems “safer,” can be just as critical, or even more so: It is an opportunity for the witness to tell their story through their own perspective. That testimony should be clear, credible, interesting, and engaging. It has to be organized and pointed toward particular goals.

Know How Your Testimony to the Jury Will Differ from Your Deposition

November 29th, 2021|

By Dr. Ken Broda-Bahm: A typical witness preparing for a civil trial often has only one good reference point for what their experience will be, and that is their deposition. That’s where they met opposing counsel, got a taste of that attorney’s style, and heard the questions that are likely to serve as the foundation for what they’re asked at trial. Some things from that deposition are going to be the same: There will be a parallel need to listen carefully and hew close to the question that is being asked, and there will be a continuing need to provide

Criminal Defendants Taking the Stand: Expect Conventional Wisdom to Change

November 22nd, 2021|

By Dr. Ken Broda-Bahm: Recently, three of the most high-profile current defendants did what conventional wisdom says they shouldn’t do; They took the stand in their own defense. Kyle Rittenhouse, on trial for killings at a Kenosha, Wisconsin protest, testified. Elizabeth Holmes, on trial in San Jose, California for fraud relating to her company, Theranos, also took the stand. Travis McMichael, one of three men on trial in Brunswick, Georgia for the killing of Ahmaud Arbery as he jogged through a neighborhood, also went on record. That is all in the space of about a week. The common thinking among

Opening: Build Your House First, Then Take Aim at Their House

November 18th, 2021|

By Dr. Ken Broda-Bahm: I have worked with more than one defendant who simply could not resist it: Right out of the gate, in opening statement, they come out swinging against the plaintiff. They’re not being honest, they have their own share of wrongdoing, and they’re motivated by greed! It can feel good taking that kind of aggressive tone. But the problem is, the jury is unlikely to be giving those arguments full credibility, or any credibility at all. And why should they? They just spent the last 30 minutes to an hour hearing from the plaintiff the full story

Reconsider the Summary Jury Trial

November 15th, 2021|

By Dr. Ken Broda-Bahm: A number of years ago, innovators searching for ways to take some of the pain, delay, and difficulty out of the jury trial hit upon the idea to boil it down, rein in the discovery, simplify the rules of evidence, and try it to a smaller jury in a single day. For those who work in my field of litigation consulting, this seemed like an extraordinarily rational idea. After all, this is what we routinely do when running a mock trial for a party, so why not create an exercise that could serve as a reality check for

Expect a Complex Response to Emotional Testimony

November 11th, 2021|

By Dr. Ken Broda-Bahm: Kyle Rittenhouse, the then-minor charged with killing two and wounding a third at a protest in Kenosha Wisconsin in the Summer of 2020, took the stand in his own defense at his trial yesterday. The case is a kind of litmus test in our current polarized times, with one half of the partisan spectrum seeing it as incomprehensible that a 17-year-old could have his mom drop him off with an AR-15 at a protest, shoot three people, and then simply walk past the police and go home, and the other half seeing him as, if not

Account for Camera Perspective Bias

November 8th, 2021|

By Dr. Ken Broda-Bahm: This past Friday, eight people died at a music festival in Houston, crushed by a crowd as the music continued and security was unable to help. As the tragedy moves toward litigation, it is likely that this will be another case where there is a profusion of video, with dozens or perhaps hundreds of clips, each showing their own perspective. During the trial last Spring of Derek Chauvin, the officer found responsible for George Floyd’s Murder, I was asked to do a media interview on that unique factor in the trial. In Chauvin’s case, there were several