By Dr. Ken Broda Bahm: How bad would it be if, after making it through a year of the pandemic with your health intact, you came down with the virus at the end: You almost got to the point of vaccination, only to become infected at the last moment. That would be pretty bad. In […]
Account for ‘Close Counterfactuals’ in Your Trial Stories: The Loser that Almost Won Read More »
By Dr. Ken Broda Bahm: As of press time for this post, 173,094 Americans have died from the novel coronavirus. If the United States had followed the example of other developed countries by taking earlier and more decisive actions against the virus, our country could have prevented approximately 70 percent of these deaths. That, at
Experts: Use Counterfactuals Read More »
By Dr. Ken Broda Bahm: Imagine this messaging challenge: Your case isn’t a personal injury case, where there is a discrete moment you’re asking jurors to evaluate. Instead, it is a commercial case, where there is a profusion of details, memos, and meetings, each like individual flakes in a snowstorm. In order to make it
Make Events Meaningful by Inviting Counterfactuals Read More »
By Dr. Ken Broda-Bahm: The adage, “If it ain’t broke, don’t fix it” carries a special meaning in litigation. It can be one of those classic “damned if you do, damned if you don’t” situations: After an injury or other tortious event, if you fix whatever led to the problem you confirm that you could
If It Ain’t Broke, and You Fix It, Take Care with What the Jury Learns About It Read More »
By Dr. Ken Broda Bahm: Defendants in civil cases are often plagued by the reality that the “should have,” “could have,” and “would have,” aspects of the reasonable care all exist in the realm of hindsight. The tendency to believe that negative consequences are more knowable and preventable when viewed through the lens of a
Debias on Hindsight Read More »
By Dr. Ken Broda Bahm: Ladies and gentlemen of the jury, it did not have to end up this way. At many points in time, and at many places along the course of this story, the individual sitting here with opposing counsel could have made a different choice. He could have taken a different path. He
Focus on the “Paths Not Taken” by the Other Side Read More »
Need to Talk About Race in Trial? Watch for Language Polarization June 27, 2022 0 Stealing Thunder: Know When to Preempt and When to Wait June 20, 2022 0 Defend Your Product Testing Regimen: Seven Standards June 13, 2022 0 Masks in Court: Understand the Real Lesson June 9, 2022 0 Experts: Follow the Seven
By Dr. Ken Broda Bahm: This is the general sentiment I sometimes hear when one side in an opening statement is talking about the other side’s experts: …and they are going to be bringing Dr. Smith up here to tell you that their theories are true. But when they do, remember who is paying Dr.
Avoid ‘Glass Houses’ Arguments When Comparing Experts Read More »
By Dr. Ken Broda Bahm: One trait of jurors is that, at the start of a case at least, they are not already savvy about the case’s subject matter. So, how do they learn? Through expert testimony. They won’t necessarily just sign-on to an expert’s conclusions, but they are likely to be influenced by both
The Wrapper and the Contents: Cross Their Expert on Both Levels Read More »
By Dr. Ken Broda Bahm: Congress and the American public have been gripped by some unknowns recently. A whistleblower in the intelligence community made a claim that the Inspector General considered both credible and urgent. But, initially at least, that’s about all we knew because the whistleblower’s complaint was not provided, as the law requires,
Address the Central Unknown Read More »