Criminal Defendants Taking the Stand: Expect Conventional Wisdom to Change

November 22nd, 2021|Persuasive Litigator (Persuasion Strategies)|

By Dr. Ken Broda-Bahm: Recently, three of the most high-profile current defendants did what conventional wisdom says they shouldn’t do; They took the stand in their own defense. Kyle Rittenhouse, on trial for killings at a Kenosha, Wisconsin protest, testified. Elizabeth Holmes, on trial in San Jose, California for fraud relating to her company, Theranos, also took the stand. Travis McMichael, one of three men on trial in Brunswick, Georgia for the killing of Ahmaud Arbery as he jogged through a neighborhood, also went on record. That is all in the space of about a week. The common thinking among

Opening: Build Your House First, Then Take Aim at Their House

November 18th, 2021|Persuasive Litigator (Persuasion Strategies)|

By Dr. Ken Broda-Bahm: I have worked with more than one defendant who simply could not resist it: Right out of the gate, in opening statement, they come out swinging against the plaintiff. They’re not being honest, they have their own share of wrongdoing, and they’re motivated by greed! It can feel good taking that kind of aggressive tone. But the problem is, the jury is unlikely to be giving those arguments full credibility, or any credibility at all. And why should they? They just spent the last 30 minutes to an hour hearing from the plaintiff the full story

How accurately do jurors decide liability based on preponderance of the evidence? Online Jury Research Update

November 17th, 2021|ComCon (Kathy Kellermann Communication Consulting)|

In most civil litigation, the burden of proof required to find a defendant liable is probabilistic: If it is more likely than not (i.e., over 50%) that a defendant caused a plaintiff's injury, the defendant is to be held liable for that injury. Lariviere (2015) investigated the willingness of mock jurors to assign liability if the likelhood the defendant caused a plaintiff's injury was either 5%, 50%, 51% or 95%....

Teaching Witnesses to Take Control of Their Answers

November 17th, 2021|The Sound Jury Library (Sound Jury Consulting)|

Outside of my traditional jury consulting work, I periodically work as an expert for change of venue motions, conducting original research and offering opinions based on the findings. As part of this work, I am sometimes deposed or asked to testify at court hearings. These experiences are incredibly helpful for when I work with witnesses to prepare them for their deposition. Of all the standard tips that consultants offer witnesses, most are easier said than done. It is one thing to sit across the table from a witness and tell him or her how to handle different scenarios, but it

Reconsider the Summary Jury Trial

November 15th, 2021|Persuasive Litigator (Persuasion Strategies)|

By Dr. Ken Broda-Bahm: A number of years ago, innovators searching for ways to take some of the pain, delay, and difficulty out of the jury trial hit upon the idea to boil it down, rein in the discovery, simplify the rules of evidence, and try it to a smaller jury in a single day. For those who work in my field of litigation consulting, this seemed like an extraordinarily rational idea. After all, this is what we routinely do when running a mock trial for a party, so why not create an exercise that could serve as a reality check for