By Dr. Ken Broda Bahm: If you are like me, you have grown tired of hearing that sublime tautology of a catch phrase, “It is what it is.” I want to shout in response, “Of course it is! What else would it be?” But the expression perfectly captures the attitude of some litigators toward analogies.
Fight Fire With Fire (And Fight Bad Analogies With Better Ones) Read More »
By Dr. Ken Broda Bahm: So I almost called this post “Beware of Negative Messaging,” then I realized that that itself is a negative message. Focusing on what isn’t true, or focusing on what needs to be avoided is certainly part of communication, part of litigation, and judging from an uncomfortable number of my titles,
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By Dr. Ken Broda Bahm: Apologies are very much in vogue. If you accidentally run your cruise ship aground, or surreptitiously wiretap phones in order to discover great newspaper stories, then it has become a well-known next step in the script to make a public apology. The shamed politician, loose-lipped celebrity, and the guilty criminal all recognize the
Don’t Make Fake, or Fatal, Apologies Read More »
By Dr. Ken Broda Bahm: Around the war room conference table, all of the eyebrows went up at once as I shared a recommendation for the opening statement. I can’t share the idea without revealing the case, but suffice it to say that it was unorthodox. Several around the table shared that they had never done
Create the Conditions for a Creative Trial Strategy Read More »
By Dr. Ken Broda Bahm: “Your honor, this pattern of making a list for those deemed “Naughty” and “Nice” has the clear and foreseeable consequence of disparate treatment – namely, coal and switches – for those in the former cateorgy, and can only be seen as a persistent (annual) and intentional (he ‘checked it twice’) pattern resulting in the intentional infliction
By Dr. Ken Broda Bahm: Most litigators now understand that their case fares better when it is framed as a story. And everyone knows that a good story always carries a point or a moral. Even information that follows a narrative structure (e.g., I went to a store, then bought broccoli, then returned home) isn’t received
Find the “Universal Morality” in Your Case Story Read More »
By Dr. Ken Broda Bahm: I’ve written about presidential aspirant Herman Cain, and his effective use of the “9-9-9” mnemonic, but more recently, Mr. Cain might be having more troubling memories. Specifically, he might be thinking, “If only I had an iron clad non disclosure agreement in my sexual harassment settlements….” While Mr. Cain’s predicament is unique, what is
Help Your Fact Finders Think About What Might Have Been Read More »
By Dr. Ken Broda Bahm: Two rival narratives are currently battling it out in a Boston courtroom in the Tarek Mehanna case. The prosecutor’s story involves the spectre of homegrown terror, narrowly averted before anyone was harmed. The defense story involves an individual prosecuted for expressing opinions and for refusing to become an informant for the FBI. A key
Get Inside the Black Box of “Intent:” A Note on the Tarek Mehanna Trial Read More »
By Dr. Ken Broda Bahm – Crowds can be scary things. At a debate this past Monday (September 9th), Republican Presidential candidate, Ron Paul, was asked if his stance against government mandated health insurance would dictate denying care to a hypothetical man who found himself in a coma without the benefit of catastrophic health insurance. “Are you
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By Dr. Ken Broda Bahm – Last month, Uniloc USA lost a multiyear battle against Microsoft to preserve a $388 million jury award against the software giant, and will now be retrying the patent infringement case on damages alone. One thing Uniloc has in its corner for retrial is a compelling invention story: a plucky Australian inventor working since the early
Tell Your Patent Invention Story In a Way That is Worth Copyrighting Read More »