By Dr. Ken Broda Bahm: The core of most determinations of negligence is the question, “What would a reasonable person have done?” And, at least in theory, this “reasonable person” isn’t supposed to be an actual person whose deeds are recorded in the admissible evidence. Instead, based on the instructions, it is an idea. It […]
Treat the “Reasonable Person,” Not as an Abstraction, but as an Average Read More »
By Dr. Ken Broda Bahm: As the 2021 pandemic year winds to a close, while the 2022 pandemic year waits in the wings, it may be a good time to take stock of changes in legal procedure brought by the pandemic. Given the persistence of needed social precautions, as well as the chances of a
Remote Courtroom Procedures: Don’t Just Add a Camera Read More »
By Dr. Ken Broda Bahm: The voir dire process has got to be one of the most complex, information-rich, and high-stakes communication settings. To someone unfamiliar with the rituals, it won’t always be clear what is going on or why. For new attorneys, or experienced attorneys who just have not selected a jury in a
Be Tactical in Jury Selection Read More »
By Dr. Ken Broda Bahm: Even as things are fitfully returning to a post-pandemic normal (perhaps against the current COVID Omicron variant-driven medical advice) one feature of the last 21 months seems to be lingering: the Zoom conference. In legal settings, these video conferences are being used increasingly for team meetings, witness preparation sessions, hearings,
Consider That Your Zoom Conferences Might Be Sapping Your Collective Intelligence Read More »
By Dr. Ken Broda Bahm: When preparing for trial testimony, often the focus is on what opposing counsel is going to do. You prepare for cross, naturally enough, because that is an adversarial moment. But my own view is that direct examination should get the same amount of preparatory attention. The questioning by friendly counsel,
Your Direct Examination: Know the Steps, but Let the Attorney Lead Read More »
By Dr. Ken Broda Bahm: A typical witness preparing for a civil trial often has only one good reference point for what their experience will be, and that is their deposition. That’s where they met opposing counsel, got a taste of that attorney’s style, and heard the questions that are likely to serve as the
Know How Your Testimony to the Jury Will Differ from Your Deposition Read More »
By Dr. Ken Broda Bahm: Recently, three of the most high-profile current defendants did what conventional wisdom says they shouldn’t do; They took the stand in their own defense. Kyle Rittenhouse, on trial for killings at a Kenosha, Wisconsin protest, testified. Elizabeth Holmes, on trial in San Jose, California for fraud relating to her company,
Criminal Defendants Taking the Stand: Expect Conventional Wisdom to Change Read More »
By Dr. Ken Broda Bahm: I have worked with more than one defendant who simply could not resist it: Right out of the gate, in opening statement, they come out swinging against the plaintiff. They’re not being honest, they have their own share of wrongdoing, and they’re motivated by greed! It can feel good taking
Opening: Build Your House First, Then Take Aim at Their House Read More »
By Dr. Ken Broda Bahm: A number of years ago, innovators searching for ways to take some of the pain, delay, and difficulty out of the jury trial hit upon the idea to boil it down, rein in the discovery, simplify the rules of evidence, and try it to a smaller jury in a single day. For
Reconsider the Summary Jury Trial Read More »
By Dr. Ken Broda Bahm: Kyle Rittenhouse, the then-minor charged with killing two and wounding a third at a protest in Kenosha Wisconsin in the Summer of 2020, took the stand in his own defense at his trial yesterday. The case is a kind of litmus test in our current polarized times, with one half
Expect a Complex Response to Emotional Testimony Read More »