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

Distinguish the Four Types or Phases of Witness Preparation

April 14th, 2022|

By Dr. Ken Broda-Bahm: Experienced trial lawyers know it is important that their witnesses are prepared to testify. At the deposition stage, and even when the likelihood of a trial is uncertain, it is critical to invest the time in making sure that the important witnesses know what to expect and are ready to go on record clearly and effectively, because the quality of the testimony can have a strong influence on case disposition and settlement value. But preparing a witness is not one step, it is many. Instead of focusing on the single goal of, “Let’s get ready to testify,” it

Know and Apply the Best Practices for the Online Courtroom

April 11th, 2022|

By Dr. Ken Broda-Bahm: Even if the pandemic is finally over, and even if it is the last pandemic we will ever experience — and both of those seem pretty optimistic — it is still worthwhile to study and to learn from the unprecedented adaptations we have seen the U.S. trial system make in the last two years. Faced with the sudden need to avoid crowds and contact, the great ship of American courtroom practice was forced to execute a quick precision turn. Despite their generally conservative and tradition-bound natures, many courts rose to that challenge, moving swiftly to take

Account for Physician Litigation Stress

April 7th, 2022|

By Dr. Ken Broda-Bahm: There was the childhood spent being a good student, then the hard years of college, and the even harder years of medical school, then residency, then years of building your expertise and your practice. Then came the event that many said was inevitable, but which you still thought you might avoid: You were served with a lawsuit. That set off immediate and long-term reactions: stress, doubt, uncertainty, and fear. And one thing we can count on with the American legal system is that it is drawn-out, so doctors will need to find ways to deal with that

Avoid Social Desirability Bias in Voir Dire: Six Tips

April 4th, 2022|

By Dr. Ken Broda Bahm: Imagine you’re currently a citizen of the Russian Federation. The telephone rings, and the person on the other end of the line identifies themselves as a public opinion researcher, and they’re conducting a poll. “How do you feel about your country’s current ‘special military operation’ in Ukraine?” Well, given that the Russian government is quite authoritarian, given that thousands of Russian citizens are currently being arrested and prosecuted for protesting the war, and given that the Russian President has recently committed himself to “cleansing” the country of those insufficiently loyal to the state, how do

Liberal and Conservative Jurors: Account for Different Moral Systems

March 31st, 2022|

By Dr. Ken Broda-Bahm: When a juror looks at an act and declares it to be bad or good, where is that coming from? Well, hopefully, it is coming from the evidence. But inevitably, it is also coming from that juror’s own habits of moral judgment. And it isn’t just a choice formed in the moment, but is instead a product of baked-in systems of thought: relatively stable arrangements of values that differentiate individuals and groups. The recent study of those systems of thought falls under the heading of Moral Foundations Theory. Continuing work in this area reminds us that