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: A number of years ago, innovators searching for ways to take some of the pain, delay, and difficulty out of the jury trial hit upon the idea to boil it down, rein in the discovery, simplify the rules of evidence, and try it to a smaller jury in a single day. For
Reconsider the Summary Jury Trial Read More »
By Dr. Ken Broda Bahm: During the past year or so, when clients have scheduled witness meetings or focus group and mock trial research, we will at some point get to the common question: “So, are we doing this in person or online?” Increasingly, it feels like the answer to that question ought to be
Embrace Hybrid Trial Preparation Read More »
By Dr. Ken Broda Bahm: Those of us who work in trial preparation and case assessment are in a remarkable new reality as trials across the country are on indefinite hold. Unlike some past natural disasters and economic disruptions, the one is not regional or confined to specific industries, but is instead worldwide and includes
Take Care in Settling During a Crisis Read More »
By Dr. Ken Broda Bahm: There’s an old expression: “You can catch more flies with honey than with vinegar.” Assuming that your goal is not to actually catch flies, but instead, to get what you want in some kind of negotiation, the expression means that a warm and friendly approach will be best. And I
Be “Tough and Firm” Rather than “Warm and Friendly” in Negotiations Read More »
By Dr. Ken Broda Bahm: The judge looks up at the parties before her, exasperated. Frankly sharing her view that this case really needs to settle, she also implicitly wields the undecided pretrial motions as a weapon. “Let’s resolve this case” is her message, “or you really may not like the result!” In this kind of scenario,
Resist the Judge’s Nudges: Sometimes Trial Is Better Than Settlement Read More »
By Dr. Ken Broda Bahm: Litigation is often complex and often unwanted. So sometimes, you want someone to manage that litigation to a swift and clear conclusion. Other times, however, the forum of the trial is actually what is best for your client. As noted by many, trial judges are increasingly seeing it as their
Turn Your “Litigation Manager” Back Into a Trial Judge Read More »
By Dr. Ken Broda Bahm: Could artificial intelligence settle your case? In other words, could a smart computer algorithm separate out the emotions, compare the interests, and distill the positions down to their best logical resolution? Maybe not immediately, but the question is not as silly as it might seem. Artificial intelligence is already making
Learn from AI in Settlement Negotiations Read More »
By Dr. Ken Broda Bahm: If we don’t normally think of “happiness” when we think of mediation, it may be because a good settlement is generally not something that makes all the parties happy. Instead, it is more often something that makes the parties equally unhappy. At the same time the notion of happiness, or
Don’t Forget About Happiness: The Settlement Series, Part Four Read More »
By Dr. Ken Broda Bahm: Mediators have a delicate job. They know it isn’t their role to praise or blame a party. It isn’t their role to take sides. To do so means sacrificing their credibility and their effectiveness along with it. But the tougher question is whether a commitment to stick to facilitation, rather
Know When to Give Your Mediator a Voice: The Settlement Series, Part Three Read More »