If It’s a Lie, Call It Out

December 8th, 2022|

By Dr. Ken Broda Bahm: If your opposing counsel has a flair for the dramatic, then at some point in the deposition or cross-examination, you might get to a question like, “So, if my witness says that didn’t happen, then you’d say she is lying, right?” What the lawyer is hoping for in asking a question like that is that you’ll back-track, or hesitate, or in some other way try to evade the accusation. Playing on our instinct for civility in the formal setting of testimony, the lawyer is trying for a cheap way to soften or introduce doubt about

Sequence Your Trial Story: Five Non-Linear Arcs that Change the Emphasis

December 5th, 2022|

By Dr. Ken Broda Bahm: The mantra when persuading juries, judges, and really anyone is often “Keep it simple.” That is for a good reason, and often the simplest way to tell a story is to begin at the beginning and end at the end, working your way straight through the events in sequence. At the same time, the popular dramas and storytelling that surrounds us in novels, movies, and television are replete with examples of alternate ways to tell a story to bring emphasis to a particular part. Shows like Lost or Breaking Bad as well as novels like Slaughterhouse 5 or It will play with the timeline as

Don’t Count on Being Able to Cure Implicit Bias

December 1st, 2022|

By Dr. Ken Broda Bahm: Within the last few years, at least a few courts in the U.S. have started to wake up to some of the realities of the cognitive biases that can be an obstacle to a fair criminal or civil trial. For generations, courts have acted as though potential jurors could easily know and effectively shut off those biases. In many courts, of course, that is still the practice, with judges in effect clearing jurors with the question, “So you’re not biased, or you can set it aside? Good. Next.” But in a few jurisdictions, courts are

Witnesses, Do Your Homework

November 28th, 2022|

By Dr. Ken Broda Bahm: Every witness preparing for testimony is going to prepare a little bit differently. Those helping with that prep need to adapt to the unique challenges presented by opposing counsel, the case characteristics, the witness’s role within the case, and the witness’s personality and communication habits. But there are inevitably some common features and messages contained in that preparation session. One common feature is the need for witnesses to do some follow-up “homework” on their own. Not everything can be durably fixed during the constraints of a single meeting, or even a series of meetings. And

Persuade Through Process

November 21st, 2022|

By Dr. Ken Broda Bahm: There is a danger in what I call the “product” orientation toward persuasion. That orientation focuses on persuasion as an outcome, as a discrete “thing” that is transferred from a sender to a receiver. The advocate in effect thinks, “I have something — it is called a correct opinion — and my mission is to transfer that from me to you.” In some ways, this product orientation is embedded in our language: We talk about how well we can “sell” an idea, or check to see whether our target is “buying” it or not. Instead of

Focus on the “Paths Not Taken” by the Other Side

November 17th, 2022|

By Dr. Ken Broda Bahm: Ladies and gentlemen of the jury, it did not have to end up this way. At many points in time, and at many places along the course of this story, the individual sitting here with opposing counsel could have made a different choice. He could have taken a different path. He had multiple opportunities to have avoided this result.  Let’s look at some of these paths not taken… Envisioning alternatives is an important persuasive tool, because determinations of responsibility often come down to the choices a party made, and whether they were the right choices. From

To Convince on Negligence, Frame It as “Gain”

November 14th, 2022|

By Dr. Ken Broda Bahm: If a manufacturer rushes an untested new product to market, did they do it to realize a gain (let’s say to increase profits by expanding into a new market) or to prevent or mitigate a loss (maybe to protect the company against an economic downturn)? The difference in this case is not the act itself, nor necessarily the effects caused by the act. The difference is the way it is framed. We know that how we explain or contextualize an action shapes the judgments we make about it. For that reason, in litigation, choosing and developing

Jury Damages: Expect the Fundamentals to Still Apply Even in a Down Economy

November 10th, 2022|

By Dr. Ken Broda Bahm: So we have made it through the 2022 midterm elections. As is typical, the party out of power seems to have made some gains, although so far at least, the  anticipated “Red Wave” doesn’t seem large enough to surf. Going into the election, the common wisdom was that that the broadly felt effects of a challenging economy (including rising prices for groceries and fuel, and a full one-third of Americans living paycheck-to–paycheck) predicted a bolder move away from the party in power. Instead, what we saw is that incumbents tended to get re-elected, red districts and states tended to

Show You Respect the Jurors: Top 7 Ways

November 7th, 2022|

By Dr. Ken Broda Bahm: A bit like members of the armed forces, jurors are often thanked for their service. For the attorney, particularly in the opening moments of a trial, it is both common and important to make sure that jurors understand that you appreciate them serving, even though it is for little compensation, and often at the cost of great disruption to their lives. But stating respect is one thing, and showing it is another: As they say, actions speak louder. Jurors at the outset already feel a distance with lawyers. Lawyers are generally more educated, higher socio-economic status

Animate It: If Jurors See It, They’re More Likely to Believe It

November 3rd, 2022|

By Dr. Ken Broda Bahm: The idea that “seeing is believing” is the kind of adage that can have more traction as a truism than as a research finding. But when it comes to truly appreciating the visual advantage in litigation, understanding the research can be helpful. In the case of a visual demonstrative that moves beyond the static display — a computer-generated animation — it is more helpful than you might think. A tool that illustrates the narrative you are trying to convey, that shows what you are trying to tell, can serve as a memorable and powerful tool of