By Dr. Ken Broda Bahm: Lawsuits rarely occur as a result of something good happening. More often, there has been some kind of very bad outcome, maybe even a tragedy. For people who are close to the events that give rise to a suit, it can be hard to avoid absorbing and personalizing some of
Address the Remorse Before Testifying Read More »
By Dr. Ken Broda Bahm: It has now been well over a decade since the “Reptile” emerged as a way of trying plaintiff’s cases. The approach — a mix of personalizing the case for jurors, reinforcing simple rules, and emphasizing safety as the top priority, all built on the foundation of a somewhat metaphorical appeal
Consider that the reptile might be rewriting the law Read More »
By Dr. Ken Broda Bahm: At a mock trial the other day, one juror commented, “This is just like the ‘too big to fail’ thing… God, I hate that phrase. They think they’re above the consequences of their actions, and they don’t need to do anything about it!” Yes, banks and bailouts are back in
Address Jurors’ ‘Too Big to fail’ resentment Read More »
By Dr. Ken Broda Bahm: As part of the voir dire process practiced in most California state courtrooms, the step of allowing each side to make a mini-opening before questioning is becoming more common. That is decidedly less so in many other states, where judges (with at least a little justification) might be thinking, “I
Keep Your Mini-Opening to its proper purpose Read More »
By Dr. Ken Broda Bahm: When you’re analytically-minded, and have at least a little bit of training in logic and argument, then you might be tempted to think it is enough to name a logical fallacy or cognitive bias. After all, what rational audience would want to follow flawed reasoning? But just calling it out
‘De-Normalize’ Hindsight Read More »
By Dr. Ken Broda Bahm: New York Plaintiff’s attorney Ben Rubinowitz has written and presented over the years on an approach toward cross-examination using what he calls “Voice of Reason” questions. He was recently a guest on a podcast called “Unscripted Direct” (“Episode 48 – Bad Facts”) where he demonstrated the approach, which he describes as having
When You’re Crossed, Handle the “Voice of Reason” Questions Read More »
By Dr. Ken Broda Bahm: The damage amounts awarded by civil juries can sometimes seem to be random or capricious. Lawyers and insurance representatives arguing for a settlement will sometimes call it a “crap-shoot.” It is true that there is no precise predictability to it. When you have a chance to see mock jurors deliberate
Damages: Guide Your Jurors so they get the ‘gist’ Read More »
By Dr. Ken Broda Bahm: Many years ago, when I was still an academic and moving into the field of litigation consulting, I used to coach debate. Recently, a friend from that time told me that he is now coaching a program that includes a lot of inexperienced judges, including parents, and asked if I
Adapt: Don’t ‘Dumb it down’ but do dial it in Read More »
By Dr. Ken Broda Bahm: When you say you’re going to “frame” something in litigation — no, it doesn’t mean your going to blame the wrong person for a crime…necessarily — but instead, the cognitive use of that term refers to communication that encourages a particular way of viewing the events at the center of
By Dr. Ken Broda Bahm: It is safe to say that the advice to use narrative in litigation can now be considered common knowledge. In many ways, it has sunk in: You won’t meet a litigator who hasn’t been told to “tell a story” through their case. But in some other ways, it hasn’t sunk in enough.
Use Narrative Persuasion Read More »