Adapt to Stop-and-Go Trial Schedules

October 30th, 2022|

By Dr. Ken Broda Bahm: Courts across the country are wading through the pandemic backlog. At both the state and federal levels, efforts to prioritize and to adapt have turned trial calendars into an elaborate and high-stakes guessing game about when and whether any given case will proceed to trial. Some I know have compared it to the “Whack-a-mole” game: just as one is going away, another is surprisingly popping up. Amid the chaos, there are some practical challenges for trial lawyers and in-house counsel. In the run-up to your trial date, “Go, baby, go” can suddenly turn into “Cool

Need to Talk About Race in Trial? Watch for Language Polarization

June 27th, 2022|

By Dr. Ken Broda Bahm: There are a number of scenarios where race might matter to your case. Most obviously in the civil realm, these could be employment cases, police use of force cases, or claims involving unequal medical care or testing. In any number of other cases, race could come up as a factor that matters in the experience of your potential jurors. So trial lawyers need to be able to talk about race with some sensitivity. We know that the situation is primed for misunderstanding and defensiveness, and new research provides another example. A recent article in the publication

Stealing Thunder: Know When to Preempt and When to Wait

June 20th, 2022|

By Dr. Ken Broda Bahm: When the other side has a powerful potential argument, but you get to go first, then you have a strategic call to make. Do you use the opportunity to get there first, address the issue before they can, and steal their thunder? Or do you wait them out, see what they have, and respond only after they’ve raised the issue? That question will come up in many scenarios. If you’re a plaintiff, then you are always deciding how much of the expected defense to address in opening and in your case. Or if you are

Defend Your Product Testing Regimen: Seven Standards

June 13th, 2022|

By Dr. Ken Broda Bahm: When you test a product to assess its performance and safety, of course you have very substantive reasons for doing that: You are aiming to check effectiveness, prevent harm, and protect the brand. When a trial occurs, however, that testing carries a symbolic message as well, with the message being that the manufacturer and seller is caring, careful, and serious. Even if something went wrong, and even if in hindsight there was some element that was incomplete in the testing, it still bolsters the company’s trial message to show that it has a comprehensive focus

Masks in Court: Understand the Real Lesson

June 9th, 2022|

By Dr. Ken Broda Bahm: As we begin to take stock of and conduct research on the effects on the pandemic adaptations, it is important to keep an essential principle in mind: The research on pandemic adaptations is not just about the pandemic adaptations. In nearly every case, the focus will also bear on larger issues of communication and the central functions of courts even in normal times. One such example is the focus on the effects of masks on the ability to assess witnesses and others in the courtroom. Pre-pandemic, I think it was the assumption that masking a witness or a

Experts: Follow the Seven Commandments

June 6th, 2022|

By Dr. Ken Broda Bahm: I participated in a recent LinkedIn discussion on expert witnesses, with some in the conversation noting that experts are often unprepared for testimony, and often unaware of the need for better preparation. And, to complicate that process, attorneys can be too deferential to those experts, or can operate from the concern that by engaging in a “practice session,” or by bringing in a communication advisor, they might be opening their expert to lines of questioning about how they prepared. That concern can, of course, be legitimate, but the upshot of that skittishness is that even

Prepare for Multiple Choice Questions in Deposition

June 2nd, 2022|

By Dr. Ken Broda Bahm: Anecdotally, I have seen it in a few recent cases: The deposition witness isn’t asked an open-ended question and isn’t given a “Yes or No” either. Instead, they are given a range of options, like you would see in an attitude survey or a school examination. For example, an employer was asked if they “Strongly agree,” “Somewhat agree,” “Somewhat disagree,” or “Strongly disagree” with a principal they were offered on how to handle an employment issue; or a transportation executive was asked to give themselves a grade, “A, B, C, D, or F” on how

Know the Other Side’s Three Goals for Your Deposition

May 23rd, 2022|

By Dr. Ken Broda Bahm: So, your deposition has been scheduled, and you’re just starting to wrap your head around what is in store for you. Your lawyer has already stressed that you are not in the driver’s seat at this stage: The deposition is the other side’s process. Because of that, it helps to devote some thought to what they are looking for. A realistic and complete understanding of your adversary’s goals can help you prepare for your own testimony. Every case and every opposing counsel will be different, and there may be unique factors in your own situation.

Look Beyond Your Jurors’ Political Identification: Education Matters

May 16th, 2022|

By Dr. Ken Broda Bahm: Whenever we step up to evaluate a person as a potential juror, it can be an occupational hazard to simplify that person too much. We do our best with the time and information available, and to be sure, jury selection would be better and less susceptible to social biases if judges permitted more time and better information. But even with a good amount of information on a venire member, it can be tempting to seize on one variable and treat it as destiny. But in nearly all circumstances, it is more complicated than that, and the team