By Dr. Ken Broda-Bahm: At a national conference I spoke at earlier this week, one of the other presenters was Anne Marie O’Brien of Smith Pauley LLP, a very experienced litigator and mediator working out of Omaha, Nebraska. During her talk, she asked a room full of defense attorneys how many of them routinely made the […]
Defendants, Don’t Automatically Avoid the First Move in Settlement Read More »
By Dr. Ken Broda-Bahm: Trial lawyers arguably wear two hats. The first hat is that of the advocate — zealous, convinced, and laser-focused on their client’s best case. The other hat, though, belongs to the counsellor who assesses the case and advises the client — sober, grounded, and realistic. It takes the advocate’s hat to
Case Assessment: Check Your “Myside Bias” Read More »
Sometimes a chess player sacrifices a pawn to improve their position in the game. And sometimes a defendant concedes liability in order to focus the case on better ground. What are the considerations that go into that decision? In this post, I propose four questions.
Pick Your Battles: The “Should We Concede Liability?” Checklist Read More »
By Dr. Ken Broda Bahm: It can be a common experience during a mock trial. You have a mock juror who ends up being way too focused on what they don’t know. They understand that there are limits to how much detail you can get into within the constraints of a shorter trial simulation, but
Combat “Partial-Picture Paralysis” in Your Mock Trial…And Your Real Trial Too Read More »
By Dr. Ken Broda Bahm: When jurors are awarding damages in a civil case, the law looks at what they’re doing in a binary way: They are either compensating the plaintiff for what they have lost, or they are awarding additional amounts to set an example. In short, anything outside of “making the plaintiff whole”
Ask What Jurors Are Trying to Do with Damages Read More »
By Dr. Ken Broda Bahm: When the parties in litigation come together to talk about settlement, that might be seen as the “posturing phase.” Each side is trying to convey the strength and unassailability of their case, while predicting an inevitable victory in trial. Some of that might be considered the rational “puffery” that puts
Settle Your Case Honestly: Top 4 Ways to Make the Truth Work for You in Negotiations Read More »
by Dr. Ken Broda Bahm: Among the readers of this blog, there are a few people who write to me and let me know what they think about various posts. Sometimes it is to applaud a post, or to share an example where they’ve faced something similar. And sometimes, it is to take issue with
I Could Be Wrong: Cultivate Intellectual Humility Read More »
By Dr. Ken Broda Bahm: “Just follow the law.” That is the message jurors hear in various forms from jury selection through the final words before deliberations. In addition to being the legally appropriate charge, it speaks generally to the jurors’ sincere intentions as well. With relatively few exceptions, jurors don’t want to set policy with their
Treat Your Jury as Not Just Legal, But Political and Moral as Well Read More »
By Dr. Ken Broda Bahm: There are many reasons to mock try your case before trial or settlement. It helps you assess your overall case, identify your strengths and weaknesses, and test your messages, witnesses, themes, and graphics. It won’t necessarily predict your results, but when done well, it will inform you on the reasonability of possible ranges.
Mock Try Your Brain Injury Case Read More »
By Dr. Ken Broda Bahm: Consider these words through the lens of your case assessment leading up to trial: “People tend to be optimistic creatures, looking forward to a long life, imagining it full of pleasures and success, and savoring the achievements that are yet to come. Numerous writers have noted this to be a
In Settlement, Account for the Sobering-Up Effect Read More »