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(formerly the Persuasive Litigator blog)

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Don’t Select Your Jury on Gut or Habit: Create a Unique Jury Profile for Every Case

Uncategorized / /

By Dr. Ken Broda-Bahm: Of all the areas of legal lore, perhaps none are more loaded down with mystique than jury selection. Attorneys with long experience will develop some pretty solid views, and those habits on who they’re looking to seat and who they’re looking to strike can create a baked-in preference independent of the […]

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The Trump Juries: Adapt Your Procedures for Higher Profile Jury Selections

Public Perception, Uncategorized, Voir Dire / /

By Dr. Ken Broda-Bahm: In Florida, Georgia, New York, and Washington DC, Donald Trump is facing the looming prospect of jury trials. While the word is overused these days, it is truly unprecedented for a once and maybe-future President to be facing federal and state charges. With trials for co-conspirators starting as early as next

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Take a Note from Ed Sheeran: Show, Don’t Just Tell

Testifying Effectively, Uncategorized, Witness Preparation / /

By Dr. Ken Broda-Bahm: After threatening that me might end his musical career if the jury went the other way, popular musician Ed Sheeran can now continue his line of work. According to a federal jury in New York earlier this month, Sheeran’s 2014 song “Thinking Out Loud” did not copy the musical structure of Marvin

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Get Your Jurors to Take the Tougher Path

Adapting to Judges, Comprehension, Opening Statement, Uncategorized / /

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

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Save the Strikes: ASTC’s Research-Based Case Against Prohibiting the Peremptories

Bias, Uncategorized, Voir Dire / /

By Dr. Ken Broda Bahm: The last few years have seen a societal turn toward identifying and addressing systems that institutionalize discrimination based on race, gender, and other demographic traits. That attention is obviously a good thing. But one issue that has been caught up in that trend has been a call to eliminate the

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Ask What Jurors Are Trying to Do with Damages

Case Assessment, Damages, Uncategorized / /

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”

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Beware of Junk Science in Disguise

Adapting to Judges, Adapting to Jurors, Expert Witnesses, Uncategorized / /

By Dr. Ken Broda Bahm: Our trial system is designed to restrict the factfinders’ information to that which is relevant, probative, and sound. When it comes to expert testimony, it is the responsibility of trial judge to ensure that the testimony has a reliable foundation. But in the case of science, particularly social science, that

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Witnesses, Do Your Homework

Testifying Effectively, Uncategorized, Witness Preparation / /

By Dr. Ken Broda Bahm: Every witness preparing for testimony is going to prepare a little bit differently. Those helping with that prep need to adapt to the unique challenges presented by opposing counsel, the case characteristics, the witness’s role within the case, and the witness’s personality and communication habits. But there are inevitably some

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Jury Damages: Expect the Fundamentals to Still Apply Even in a Down Economy

Damages, Uncategorized / /

By Dr. Ken Broda Bahm: So we have made it through the 2022 midterm elections. As is typical, the party out of power seems to have made some gains, although so far at least, the  anticipated “Red Wave” doesn’t seem large enough to surf. Going into the election, the common wisdom was that that the broadly felt

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