By Dr. Ken Broda Bahm: For many years, the reliable bet was that a deep distrust of corporations, and what we might call an anti-corporate bias in a litigation context, is a left-wing phenomenon. While conservatives might generally hew to the sentiment behind the adage that “What’s good for General Motors is good for America,” the […]
Treat Anti-Corporatism as a Bipartisan Bias Read More »
By Dr. Ken Broda Bahm: If your opposing counsel has a flair for the dramatic, then at some point in the deposition or cross-examination, you might get to a question like, “So, if my witness says that didn’t happen, then you’d say she is lying, right?” What the lawyer is hoping for in asking a
If It’s a Lie, Call It Out Read More »
By Dr. Ken Broda Bahm: The mantra when persuading juries, judges, and really anyone is often “Keep it simple.” That is for a good reason, and often the simplest way to tell a story is to begin at the beginning and end at the end, working your way straight through the events in sequence. At the same
Sequence Your Trial Story: Five Non-Linear Arcs that Change the Emphasis Read More »
By Dr. Ken Broda Bahm: Within the last few years, at least a few courts in the U.S. have started to wake up to some of the realities of the cognitive biases that can be an obstacle to a fair criminal or civil trial. For generations, courts have acted as though potential jurors could easily
Don’t Count on Being Able to Cure Implicit Bias Read More »
By Dr. Ken Broda Bahm: Every witness preparing for testimony is going to prepare a little bit differently. Those helping with that prep need to adapt to the unique challenges presented by opposing counsel, the case characteristics, the witness’s role within the case, and the witness’s personality and communication habits. But there are inevitably some
Witnesses, Do Your Homework Read More »
By Dr. Ken Broda Bahm: There is a danger in what I call the “product” orientation toward persuasion. That orientation focuses on persuasion as an outcome, as a discrete “thing” that is transferred from a sender to a receiver. The advocate in effect thinks, “I have something — it is called a correct opinion — and
Persuade Through Process 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 »
By Dr. Ken Broda Bahm: If a manufacturer rushes an untested new product to market, did they do it to realize a gain (let’s say to increase profits by expanding into a new market) or to prevent or mitigate a loss (maybe to protect the company against an economic downturn)? The difference in this case
To Convince on Negligence, Frame It as “Gain” Read More »
By Dr. Ken Broda Bahm: So we have made it through the 2022 midterm elections. As is typical, the party out of power seems to have made some gains, although so far at least, the anticipated “Red Wave” doesn’t seem large enough to surf. Going into the election, the common wisdom was that that the broadly felt
Jury Damages: Expect the Fundamentals to Still Apply Even in a Down Economy Read More »
By Dr. Ken Broda Bahm: A bit like members of the armed forces, jurors are often thanked for their service. For the attorney, particularly in the opening moments of a trial, it is both common and important to make sure that jurors understand that you appreciate them serving, even though it is for little compensation,
Show You Respect the Jurors: Top 7 Ways Read More »