By Dr. Ken Broda-Bahm: I recently had the opportunity to serve as a judge for a legal advocacy program as part of my daughter’s high school constitutional law program. In watching the students answer the panel’s questions, I noticed something I have also noticed in working with attorneys prior to oral argument: The judge will […]
Facing Questions in Oral Argument? Think F.A.S.T. Read More »
By Dr. Ken Broda-Bahm: There’s a stereotype of what happens in jury deliberations. It involves jurors squaring off against each other, a hail of fierce argument and counter-argument, with the jurors turning themselves into proxy attorneys for their side as other wavering members are converted or confirmed: Think “Twelve Angry Men” with greater demographic diversity.
By Dr. Ken Broda-Bahm: A recent issue of American Lawyer included the provocatively titled article, “Why Jury Consultants May Not Be Worth It and Other Tips from Judges.” Reporting on discussions from the Ninth Circuit Judicial Conference, the article included a comment from Judge Marsha J. Pechman of the U.S. Western District of Washington that jury
Don’t “Read” Your Jury Read More »
By Dr. Ken Broda-Bahm: At a recent jury selection, opposing counsel — the plaintiff in that case — stepped up to the box of prospective jurors holding two unopened reams of paper. I knew what was coming: If the weight of evidence is completely equal, like these two reams of paper, then we haven’t met
Call Out Minimized Burdens Read More »
By Dr. Ken Broda-Bahm: During a recent mock trial, there was one juror seated in the front, gamely struggling to keep her attention on the case. Before too long, however, we saw drooping eyelids, followed by some pretty loud snoring. Admittedly, counsel was needing to get through some technical information on a complex case, but
Wake Them Up: 9 Ways to Make Testimony More Engaging for Jurors Read More »
By Dr. Ken Broda-Bahm: The court’s purpose in voir dire is to use the time to identify and eliminate those jurors who would have the hardest time giving the case a fair hearing. But layered onto that purpose is the advocate’s goal of working toward a jury that is most likely to be favorable to
Voir Dire: Before You Ask”Can You Be Fair?” Know What You Want the Answer to Be Read More »
By Dr. Ken Broda-Bahm: It is a common step in the plaintiff’s voir dire: Ms. Smith, if you are selected for this jury, and if the evidence proves to you that the damages to my client justify a high figure, like ten million dollars, would you be able to award damages at that level? What
False Promises: Answer the Plaintiff’s Damages “Pre-Commitments” in Voir Dire Read More »
By Dr. Ken Broda-Bahm: Most of those who work in civil litigation are now familiar with the “anchoring effect,” and know that suggesting a number has an influence when it comes to damages. But attorneys may not know just how powerful that effect is. Research has repeatedly demonstrated that, independent of the evidence, asking for
Ground Your Noneconomic Damages Anchor Read More »
By Dr. Ken Broda-Bahm: I remember a recent mock trial where a jury reached the point of considering damages, and one juror threw out a number to start the discussion: “Let’s just say five million.” When another juror challenged the basis for that, “Why five million?” the first juror responded, “It’s just a nice round
Leverage the “Implied Precision Effect” on Damages Read More »
By Dr. Ken Broda-Bahm: It is an important debate, and one that is likely only going to be settled on a case-by-case basis: when addressing damages, does a civil defendant embrace the idea of a counter-anchor, take the small risk of appearing to give ground on liability, while still probably holding damages below what they
Defense Damages Counter-Anchor: Get Them to Calculate, Not Speculate Read More »