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 »
By Dr. Ken Broda-Bahm: On the virtual pages of this blog, I’ve long been a proponent of the idea of treating audiences for legal persuasion as active, not passive. What I mean by that is that they’re not just receptacles for your arguments, they aren’t just absorbing the facts and the evidence, and at the
Aim Your Damages Defense at a Motivating Principle Read More »
By Dr. Ken Broda-Bahm: In Florida, Georgia, New York, and Washington DC, Donald Trump is facing the looming prospect of jury trials. While the word is overused these days, it is truly unprecedented for a once and maybe-future President to be facing federal and state charges. With trials for co-conspirators starting as early as next
The Trump Juries: Adapt Your Procedures for Higher Profile Jury Selections Read More »
By Dr. Ken Broda-Bahm: The Covid pandemic is now mostly in the rear-view mirror, but in now busy courthouses across the country, the juries who are returning seem a little different. Based on common experience, they appear to have more anti-corporate attitudes and to harbor greater suspicion toward large institutions. They seem to have less
Defendants – Argue Damages Differently Read More »
By Dr. Ken Broda-Bahm: When it comes to witness goals in deposition or in trial, I think there are many useful perspectives. But looking at the range of possible advice, I think there are two bad ends of the spectrum. On one end, there is woodshedding. Despite ethical considerations, attorneys can be swayed by a
Witnesses, Make This Your North Star: The Best Answer the Facts Allow Read More »
By Dr. Ken Broda-Bahm: The number of criminal indictments against Donald Trump is now up to four. In the self-sealing belief systems of some of the former President’s more zealous supporters, if prosecutors are going after Trump, that means they’re corrupt, and if judges are siding with those prosecutors, they’re also corrupt. And, by extension,
Don’t Dox Your Jurors Read More »
By Dr. Ken Broda-Bahm: I suspect there has never been any great love affair between attorneys in general and the jury pool. Jurors know that lawyers are there to influence them toward a desired result, and that’s typically met with suspicion. Similarly, corporate defendants also don’t tend to make a jury’s list of favorites. We’ve
Lawyers and Corporate Defendants – Expect a Little More Hostility from the Jury Box Read More »
By Dr. Ken Broda-Bahm: It’s one of the central contradictions of the law: we ask for and expect neutral and unbiased decision makers…and then we end up using humans. Those human fact-finders are almost inevitably going to have an individual form of perception or some level of partiality or bias. When it comes to the
Assess and Address Bias Using Four Steps Read More »