Get Your Jurors to Take the Tougher Path
By Dr. Ken Broda Bahm: For anyone analyzing audiences and preparing persuasive messages, it helps to know about what is called “System 1” and “System 2” thinking. When we make decisions that are pretty quick and automatic, with little reflection, cognitive work, or even necessarily voluntary awareness, then we are using System 1. When we take the other path of making decisions based on careful mental efforts, including a consideration of evidence, reasons, and implications, then we are using System 2. Of course, there is a spectrum between the two, but these are useful polarities in thinking about how we
Jury is Greater than the Sum of Individual Juror Parts
Social psychology is the scientific study of how people behave in groups. There are many areas of research within social psychology, however, they share a common focus on how individual and group interactions are shaped by one’s external environment, specifically, other people. Numerous research findings have demonstrated the impact of the group on individual performance, with some studies revealing a positive effect and others, a negative effect. Positive effects of a group on individuals include satisfying our need for belonging, obtaining information, and defining social identity. Negative effects of groups on their members include groupthink, social loafing, and mob behavior.
Save the Strikes: ASTC’s Research-Based Case Against Prohibiting the Peremptories
By Dr. Ken Broda Bahm: The last few years have seen a societal turn toward identifying and addressing systems that institutionalize discrimination based on race, gender, and other demographic traits. That attention is obviously a good thing. But one issue that has been caught up in that trend has been a call to eliminate the peremptory strike in civil and/or criminal cases. Several states are looking at the move, and Arizona has been the first in actually eliminating peremptory strikes in all jury trials. The argument has been that, because peremptory challenges have been used to discriminate, and because the
Find and Eliminate the “Stop/Don’t Stop” Moments in your Case Presentation
A funny Instagram post caught my eye the other day – a STOP sign with another sign immediately under it that said, “No stopping any time.” While surly there’s an explanation or with some thought, one could figure it out, it is still a bit of a head scratcher. It also made me think about all the times that jurors receive either contradictory or confusing messages during trial. With years of experience and knowledge about extremely nuanced details of the law, attorneys either do not notice or are not troubled by contradiction and confusion since those don’t really exist in
Ask What Jurors Are Trying to Do with Damages
By Dr. Ken Broda Bahm: When jurors are awarding damages in a civil case, the law looks at what they’re doing in a binary way: They are either compensating the plaintiff for what they have lost, or they are awarding additional amounts to set an example. In short, anything outside of “making the plaintiff whole” is “punitive.” But jurors don’t necessarily look at it within those strict categories. Motivations to punish or “send a message” can often drive discussions of compensatory damages, especially in non-economic categories where jurors don’t have any concrete guideposts. More generally, jurors commonly want the damages
Beware of Junk Science in Disguise
By Dr. Ken Broda Bahm: Our trial system is designed to restrict the factfinders’ information to that which is relevant, probative, and sound. When it comes to expert testimony, it is the responsibility of trial judge to ensure that the testimony has a reliable foundation. But in the case of science, particularly social science, that can be a challenge. I have written in the past on research showing that jurors are only partially effective at understanding basic research flaws and discounting dubious science, and judges are not necessarily better. That means that advocates often need to be the last line of defense