By Dr. Ken Broda-Bahm: The adage, “If it ain’t broke, don’t fix it” carries a special meaning in litigation. It can be one of those classic “damned if you do, damned if you don’t” situations: After an injury or other tortious event, if you fix whatever led to the problem you confirm that you could […]
If It Ain’t Broke, and You Fix It, Take Care with What the Jury Learns About It Read More »
By Dr. Ken Broda-Bahm: I will admit up front that the title for this one might sound like someone trying to weasel out of something: Trying to gain the psychological benefit of “stepping up” without the legal liability that many might see as going along with that. And, it must be said, there’s a real
Take Responsibility (Without Conceding Liability) Read More »
By Dr. Ken Broda-Bahm: Seems like Americans have had it with powerful institutions lately. The organizations that have long structured our civic life have reached new lows in terms of trust, and this applies to many that have historically garnered relatively high levels of confidence. Higher education is at a historic low, and trust in
Account for Broken Trust in Institutions Read More »
By Dr. Ken Broda-Bahm: There is a perspective on juror attitudes that has been receiving some attention lately. “Safetyism” refers to an individual’s tendency to not merely prefer safety, but to demand unrealistic standards of protection — no errors, no risk of injury, no chance of a bad outcome, no ‘safe level’ of a contaminant,
Counter “Safetyism” With Realism Read More »
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 »