Address the Remorse Before Testifying

March 27th, 2023|

By Dr. Ken Broda Bahm: Lawsuits rarely occur as a result of something good happening. More often, there has been some kind of very bad outcome, maybe even a tragedy. For people who are close to the events that give rise to a suit, it can be hard to avoid absorbing and personalizing some of those negative emotions. For a witness called to testify in deposition or in trial, there might be a strong temptation to mentally reconstruct a bad event with a focus on how it could have been avoided. Maybe there is a tendency to blame yourself. Or

Consider that the reptile might be rewriting the law

March 20th, 2023|

By Dr. Ken Broda Bahm: It has now been well over a decade since the “Reptile” emerged as a way of trying plaintiff’s cases. The approach — a mix of personalizing the case for jurors, reinforcing simple rules, and emphasizing safety as the top priority, all built on the foundation of a somewhat metaphorical appeal to protective features of our “reptile brains,” — is common in courtrooms and deposition rooms, and recognizable through questions like, “Wouldn’t you agree with me that a company should never needlessly endanger the public?” I think we now have the benefit of those years to say

Address Jurors’ ‘Too Big to fail’ resentment

March 16th, 2023|

By Dr. Ken Broda Bahm: At a mock trial the other day, one juror commented, “This is just like the ‘too big to fail’ thing… God, I hate that phrase. They think they’re above the consequences of their actions, and they don’t need to do anything about it!” Yes, banks and bailouts are back in the news. But that attitude doesn’t just apply to financial institutions. Interestingly, in the case of the mock juror’s comment, it was being applied to a large municipality. The factors that drive juror resentment towards the notion of “too big to fail,” isn’t just banking,

Keep Your Mini-Opening to its proper purpose

March 13th, 2023|

By Dr. Ken Broda Bahm: As part of the voir dire process practiced in most California state courtrooms, the step of allowing each side to make a mini-opening before questioning is becoming more common. That is decidedly less so in many other states, where judges (with at least a little justification) might be thinking, “I already hate it with counsel tries to sell their case in voir dire, and adding a mini-opening would just do more of that.” I believe that reaction, however, applies to the wrong way to do a mini-opening. The problem may be in the name itself.

‘De-Normalize’ Hindsight

March 9th, 2023|

By Dr. Ken Broda Bahm: When you’re analytically-minded, and have at least a little bit of training in logic and argument, then you might be tempted to think it is enough to name a logical fallacy or cognitive bias. After all, what rational audience would want to follow flawed reasoning? But just calling it out isn’t a reliable way to argue in most settings. Generally, you want to teach your audience to move away from the problem, and not just identify it. That approach applies to hindsight, maybe even applies particularly to hindsight. It’s not enough to counsel, “Focus only

When You’re Crossed, Handle the “Voice of Reason” Questions

March 6th, 2023|

By Dr. Ken Broda Bahm: New York Plaintiff’s attorney Ben Rubinowitz has written and presented over the years on an approach toward cross-examination using what he calls “Voice of Reason” questions. He was recently a guest on a podcast called “Unscripted Direct” (“Episode 48 – Bad Facts”) where he demonstrated the approach, which he describes as having the goal of “walking the witness down to a tight rope so when you finally push, the witness falls in the canyon of doom and there is no escape.” In an earlier article (Rabinowitz & Torgan, 2002) he writes, “The ‘voice of reason’ approach to cross-examination

Damages: Guide Your Jurors so they get the ‘gist’

February 28th, 2023|

By Dr. Ken Broda Bahm: The damage amounts awarded by civil juries can sometimes seem to be random or capricious. Lawyers and insurance representatives arguing for a settlement will sometimes call it a “crap-shoot.” It is true that there is no precise predictability to it. When you have a chance to see mock jurors deliberate on damages, you will sometimes see numbers casually raised or dropped on what can seem like a whim. And in both mock and real trials, the jurors often complain that translating non-economic factors like pain or disability into dollar amounts is difficult or even impossible.

Adapt: Don’t ‘Dumb it down’ but do dial it in

February 23rd, 2023|

By Dr. Ken Broda Bahm: Many years ago, when I was still an academic and moving into the field of litigation consulting, I used to coach debate. Recently, a friend from that time told me that he is now coaching a program that includes a lot of inexperienced judges, including parents, and asked if I had advice on adapting to those judges. Specifically, he shared his debaters’ question of whether they should “dumb down” their arguments, or whether they should presume that these newer judges, despite being freshly exposed to the activity, could still bring high intelligence and attentiveness to

Be First to Frame

February 20th, 2023|

By Dr. Ken Broda Bahm: When you say you’re going to “frame” something in litigation — no, it doesn’t mean your going to blame the wrong person for a crime…necessarily — but instead, the cognitive use of that term refers to communication that encourages a particular way of viewing the events at the center of the case. It is a way of adding a reference point or a way of thinking about the central action in the story that encourages favorable interpretations while discouraging unfavorable ones. That choice of frame can play a critical role. For example, if there has

Use Narrative Persuasion

February 16th, 2023|

By Dr. Ken Broda Bahm: It is safe to say that the advice to use narrative in litigation can now be considered common knowledge. In many ways, it has sunk in: You won’t meet a litigator who hasn’t been told to “tell a story” through their case. But in some other ways, it hasn’t sunk in enough. Too often, I see litigators who will tell the story during one segment of the opening — a section focusing on “Here’s what happened,” or introducing a timeline, perhaps. But this story is disconnected from the rest of their case. They don’t fully embrace the