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(formerly the Persuasive Litigator blog)

Author name: ken.brodabahm

The Jury is Out: Make the Most of Your Experience In an Era of Fewer Trials

Adapting to Arbitrators, Adapting to Judges, Adapting to Jurors, Mediation / /

By: Dr. Ken Broda Bahm – We’ve now been using the phrase “the vanishing jury trial,” for almost a decade, and the decline continues.  The days when experienced lawyers could count on finding themselves in front of a jury several times a month are gone, as today’s cases are increasingly resolved by judges, mediators, arbitrators, and other routes […]

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Conduct a Social Media Analysis on Your Potential Jurors (But Beware of False Expectations of Privacy)

Public Perception, Social Media, Voir Dire / /

By: Dr. Ken Broda Bahm – Attorneys engaged in the process of jury selection have always been eager to uncover as much information as the judge allows through questionnaires and oral examination in court.  For that reason, it isn’t surprising to most potential jurors that the lawyers are trying to get a sense of any strongly

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In Patent Arguments, Remember that Words Don’t Have Meaning

Adapting to Judges, Adapting to Jurors, Comprehension, Patent Litigation / /

By: Dr. Ken Broda Bahm – Okay, that is a deliberately provocative title, but I mean it literally:  words don’t have meaning any more than scissors have cut paper.  Meaning isn’t an inherent or immutable attribute or possession of a word (something it “has”), but is rather an effect of the word when used in

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When Crossing or Responding to Your Opposing Expert Witness, Look for the L.I.E. (Large Internal Error)

Adapting to Jurors, Expert Witnesses, Testifying Effectively, Witness Preparation / /

By: Dr. Ken Broda Bahm – When the case comes down to ‘expert versus expert,’ one important question is, what makes jurors believe one expert witness over another?  Applying the rational model of law, we would like to think that jurors would evaluate the credentials, the methodology, and the strength of the conclusions offered, and

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When It Comes to Your Greatest Case Weakness, Steer Into the Skid

Adapting to Jurors, Bias, Construction Litigation, Strategy / /

By: Dr. Ken Broda Bahm – With our current nationwide surplus of wintry weather, it has become a familiar feeling:  The car you are driving loses traction and starts to slide.  Your every impulse is to wrench the steering wheel hard in the opposite direction.  Then the voice of your long-ago high school drivers’ ed

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Adapt Your Scientific Testimony to Jurors’ Skeptical Ears

Adapting to Jurors, Comprehension, Energy Litigation, Expert Witnesses, Testifying Effectively / /

By: Dr. Ken Broda Bahm – In his recent State of the Union address, President Obama followed the common pattern of giving attention and applause lines to nearly every issue on the national agenda.  But there was one issue that received no mention at all:  climate change.  The absence, noted by many commentators, extended even to

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Address the Most Dangerous Feature of Your Product: Dishonesty

Adapting to Jurors, Products Liability Litigation, Strategy / /

By: Dr. Ken Broda Bahm – One stereotype of the litigious American society suggests that jurors are willing to hold manufacturers and sellers responsible for even the most obvious product dangers:  a ladder that allows its user to fall, or a cup of coffee that turns out to be hot.  While anecdotes abound — some true, and

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In Jury Selection, Pay All Kinds of Attention to the Man Behind the Curtain

Adapting to Jurors, Strategy, Voir Dire / /

By: Dr. Ken Broda Bahm – Watching the Wizard of Oz recently with my three (and a half!)-year-old daughter, we came to the familiar scene of the fearless Toto interrupting the Wizard’s speech by pulling back the curtain on a man furiously working levers and wheels.  When Dorothy and company ignore the instruction to “pay

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Keep Your International Arbitration out of the Tower of Babel

Adapting to Arbitrators, Commercial Litigation, Comprehension, Strategy / /

By: Dr. Ken Broda Bahm – So, a retired Brazilian judge, two American litigators, and three German engineers walk into a bar…  Okay, so it wasn’t a bar, it was an international arbitration, but the potential for miscommunication is just as great as the joke intro would imply.  This one took place in Sao Paulo, Brazil and

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