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”
Ask What Jurors Are Trying to Do with Damages Read More »
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
Beware of Junk Science in Disguise Read More »
By Dr. Ken Broda Bahm: In the vast majority of my experiences with the legal system, attorneys and parties are painstakingly civil, as a rule. However, in my two most recent trials, there have been notable exceptions to this rule. In one case, opposing counsel, after making discovery a miserable process for both counsel and
Reconsider the ‘Rambo Style’ in the Courtroom Read More »
By Dr. Ken Broda Bahm: When the parties in litigation come together to talk about settlement, that might be seen as the “posturing phase.” Each side is trying to convey the strength and unassailability of their case, while predicting an inevitable victory in trial. Some of that might be considered the rational “puffery” that puts
Settle Your Case Honestly: Top 4 Ways to Make the Truth Work for You in Negotiations Read More »
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 »