By Dr. Ken Broda-Bahm: In an era of increased juror skepticism and perceived “Nuclear Verdicts,” there has been a call for new thinking on defense side. The need is for fresh approaches to cut against the factors motivating jurors toward extreme verdicts. The approach outlined in the book Nuclear Verdicts by Tyson & Mendes partner […]
Defense Opening: Repair Credibility First Read More »
By Dr. Ken Broda Bahm: As part of the voir dire process practiced in most California state courtrooms, the step of allowing each side to make a mini-opening before questioning is becoming more common. That is decidedly less so in many other states, where judges (with at least a little justification) might be thinking, “I
Keep Your Mini-Opening to its proper purpose Read More »
By Dr. Ken Broda Bahm: When you say you’re going to “frame” something in litigation — no, it doesn’t mean your going to blame the wrong person for a crime…necessarily — but instead, the cognitive use of that term refers to communication that encourages a particular way of viewing the events at the center of
By Dr. Ken Broda Bahm: It is safe to say that the advice to use narrative in litigation can now be considered common knowledge. In many ways, it has sunk in: You won’t meet a litigator who hasn’t been told to “tell a story” through their case. But in some other ways, it hasn’t sunk in enough.
Use Narrative Persuasion Read More »
By Dr. Ken Broda Bahm: I have heard from many attorneys who believe that there is a correct amount of time for an opening statement, and that time is about twenty minutes. “If it’s much longer than that, you’ve lost the jury’s attention,” some will add. At times, that limit is imposed or “preferred” by
Rethink the 20-Minute Opening Read More »
By Dr. Ken Broda Bahm: The other day after helping select a jury, I stayed in court to watch the opening statements. Happily, the side I helped delivered a tight and simple theme-based opening that centered on two big problems with other side’s conduct. When it was our opponent’s side’s turn to open their case,
Credibility: Don’t Add the Halo Before You’ve Removed the Horns Read More »
By Dr. Ken Broda Bahm: For anyone analyzing audiences and preparing persuasive messages, it helps to know about what is called “System 1” and “System 2” thinking. When we make decisions that are pretty quick and automatic, with little reflection, cognitive work, or even necessarily voluntary awareness, then we are using System 1. When we
Get Your Jurors to Take the Tougher Path Read More »
By Dr. Ken Broda Bahm: There is a danger in what I call the “product” orientation toward persuasion. That orientation focuses on persuasion as an outcome, as a discrete “thing” that is transferred from a sender to a receiver. The advocate in effect thinks, “I have something — it is called a correct opinion — and
Persuade Through Process Read More »
By Dr. Ken Broda Bahm: I have worked with more than one defendant who simply could not resist it: Right out of the gate, in opening statement, they come out swinging against the plaintiff. They’re not being honest, they have their own share of wrongdoing, and they’re motivated by greed! It can feel good taking
Opening: Build Your House First, Then Take Aim at Their House Read More »
By Dr. Ken Broda Bahm: For many defense attorneys, there is a routine to the way that they’ll ask jurors to be fair at the start of their opening statement: There are two sides, you haven’t heard the whole story, please keep an open mind. It almost takes on the quality of a ritual incantation, done as much
Defense Opening: Give Jurors a Reason for an Open Mind, Not Just a Request for One Read More »