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(formerly the Persuasive Litigator blog)

Adapting to Jurors

In Malpractice Litigation, Account for Jurors’ Motive to Trust the Doctor

Adapting to Jurors, Bias, Professional Malpractice Litigation / /

By: Dr. Ken Broda Bahm – There is a pattern in medical malpractice litigation: people want to trust their doctors. This pattern is something observed in our own experience, in human psychology, and in attitudes toward malpractice trials. Plaintiffs only win when jurors are able to overcome that trust. The best thing that doctor-defendants have […]

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Convert Your Conspiracy Theorists: Research Shows it Can Be Done

Adapting to Jurors, Bias, Strategy / /

By: Dr. Ken Broda Bahm – Those who count on the human ability to prioritize reason and evidence over unshakable conviction — and all participants in the litigation process ought to count themselves in that group — should take note of the persistence of questions over the President’s place of birth, and the sad take-away

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Time Your Arguments to the Judge’s Lunch Breaks (and Adapt to All Decision Makers’ “Cognitive Load”)

Adapting to Judges, Adapting to Jurors, Comprehension / /

By: Dr. Ken Broda Bahm – Anyone who argues in front of judges knows that human factors can weigh as heavily as the law in determining your judge’s decisions.  But it is still possible at times to be surprised at the degree of influence, as well as the banality of those human factors.  Case in

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Voir Dire Potential Jurors on Economic Security: A Vulnerable Juror Can Make for a Vulnerable Defense (Part Two)

Adapting to Jurors, Bias, Employment Litigation, Voir Dire / /

By: Dr. Ken Broda Bahm – Last week, in part one of this post, I wrote about the increasing tendency for jurors to express irritation and insecurity at the prospect of serving out their jury duty, a greater proportion of hardship claims, and some recent research showing that the resulting changes in the jury pool could lead to

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Assess Your Juror’s Economic Security: A Vulnerable Juror Can Make for a Vulnerable Defense (Part One)

Adapting to Jurors, Bias, Employment Litigation, Voir Dire / /

By: Dr. Ken Broda Bahm – The situation has been noted with a surprising frequency:  Instead of filing in quietly to fulfill their civic duty, prospective jurors in voir dire have expressed a deep frustration over the litigation process and a deep concern over serving.  Most recently, an article in the National Law Journal noted this

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Avoid the “And Another Thing…” Style in Rebuttal

Adapting to Judges, Adapting to Jurors, Closing Argument, Comprehension / /

By: Dr. Ken Broda Bahm – For all the careful attention and planning that goes into a good opening statement story, and a strong closing argument structure, the rebuttal can end up sounding like an afterthought — especially when it is an afterthought.  Composed on the fly while listening to your opponent’s argument, your rebuttal can often be reduced to

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Expert Witnesses: When Criticized, Don’t Just Respond, Riposte!

Adapting to Jurors, Expert Witnesses / /

By:  Dr. Ken Broda Bahm – In fencing, a “riposte” is the act of turning away an attack (a parry) and converting it into a strike back at your opponent.  In common conversation, a riposte means answering an attack or an insult with a witty reply.  In either case, it is a good come back that converts defense

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Know Your ‘God Terms’ and Your ‘Devil Terms’

Adapting to Arbitrators, Adapting to Judges, Adapting to Jurors, Products Liability Litigation, Strategy, Themes / /

By: Dr. Ken Broda Bahm – The need for a theme that communicates, simplifies, and unites your case has become common sense to litigators.  But the way that we come up with a theme is a little more mysterious.  Some see theme creation as an act of laborious analysis, developed out of a painstaking accounting

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The Jury is Out: Make the Most of Your Experience In an Era of Fewer Trials

Adapting to Arbitrators, Adapting to Judges, Adapting to Jurors, Mediation / /

By: Dr. Ken Broda Bahm – We’ve now been using the phrase “the vanishing jury trial,” for almost a decade, and the decline continues.  The days when experienced lawyers could count on finding themselves in front of a jury several times a month are gone, as today’s cases are increasingly resolved by judges, mediators, arbitrators, and other routes

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In Patent Arguments, Remember that Words Don’t Have Meaning

Adapting to Judges, Adapting to Jurors, Comprehension, Patent Litigation / /

By: Dr. Ken Broda Bahm – Okay, that is a deliberately provocative title, but I mean it literally:  words don’t have meaning any more than scissors have cut paper.  Meaning isn’t an inherent or immutable attribute or possession of a word (something it “has”), but is rather an effect of the word when used in

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