Address Jurors’ ‘Too Big to fail’ resentment

March 16th, 2023|Your Trial Message|

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|Your Trial Message|

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.

Do trial court judges exhibit less gender bias than jurors when making decisions? | Online Jury Research Update

March 10th, 2023|ComCon (Kathy Kellermann Communication Consulting)|

Gender is at the heart of many legal cases, including employment cases alleging gender discrimination and family law custody disputes between a mother and father. Unlike most jurors, trial court judges have substantial subject-matter and decision-making expertise to serve as a buffer against decisions reflecting their personal gender ideologies (e.g., traditional, non-traditional). Are trial court judge decisions less likely to exhibit gender bias than decisions of jurors? Miller (2019) compared the decision-making of 619 trial court judges in a state (69% of all trial court judges in the state) to 500 members of the public of jury-eligible age. Both groups

‘De-Normalize’ Hindsight

March 9th, 2023|Your Trial Message|

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|Your Trial Message|

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

Jury Selection in Labor and Employment Cases

March 3rd, 2023|DOAR|

Jury selection in employment cases provide unique opportunities and challenges for litigators.  Employment cases differ from most other cases that come before a jury in that the majority of jurors come in with personal experience with employment.  They have been employees, employers or both.  In contrast to patent cases or securities litigation where we often hear juror concerns about being unqualified to render decisions, jurors in employment cases may actually overestimate their own qualifications for judging employment matters.  They can run the risk of letting their self-professed experience-based expertise outweigh the case facts and even the law in their