By Dr. Ken Broda Bahm: The name “Discovery” doesn’t quite do justice to the litigation phase it describes. When it’s done well and with purpose, the point of discovery isn’t so much to discover evidence as it is to create evidence. In deposition, for example, the deposing attorney’s fondest wish is not to discover the witness’s view of what […]
Don’t Be Led (in Deposition) Read More »
By Dr. Ken Broda Bahm: It is one of those irritating word pairs in English, like “your” and “you’re” — similar spelling and sound, but different meaning and frequent confusion. “Adopt” means to “take something as your own,” while “adapt” means to “make an alteration in response to a situation.” The meanings are different, but
Witnesses: Don’t Adopt, Do Adapt Read More »
By Dr. Ken Broda Bahm: It is said that you know someone when you know what they hope for and what they fear. Since we’re just past Halloween, let’s go with the latter. A new survey coming out of Chapman University focuses on the greatest fears held by Americans. Based on a random sample of
Know What Scares (the Top Five Fears) Read More »
By Dr. Ken Broda Bahm: As of the press time for this post, panic over Ebola is rising in the United States. With the first U.S. diagnosis of a patient last week, and that patient’s passing shortly afterward, it seems that the media — both social and institutional — are dominated by fears of a
Expect Fear to be Driven by Dread, Not Data Read More »
By Dr. Ken Broda Bahm: Trial lawyers and consultants know how important it is to boil it down, and tend to agree with the three points famously made by Henry David Thoreau: “Simplify, simplify, simplify!” Our main reason for doing so, however, might be a little bit too simple. It is not just that simpler
Treat This as Simple Truth: What’s Simple Seems Like Truth Read More »
By Dr. Ken Broda Bahm: If you’re going to lose your case, how will you lose? What is the most likely scenario that would have the jurors going in the other direction? That question lies at the heart of a theme approach that I’d like to demonstrate via a short video (below) from a recent
Aim Your Theme at the Worst Case Read More »
By Dr. Ken Broda Bahm: Research on human decision making is swiftly honing in on one central conclusion: Motivations lead and reasons follow. In other words, what generally comes first is a preference – a desire in the form of what we want to decide. What comes second are the reasons that support that desire.
Know What Motivates Read More »
By Dr. Ken Broda Bahm: When your jury returns a verdict, who is actually speaking? Literally, of course, it is the foreperson speaking for the six to twelve on that jury. But more broadly, it is also the six to twelve speaking for the community. In some form or another, those individuals are reflecting the
Hear the Community’s Voice in Your Jury’s Damages Read More »
By Dr. Ken Broda Bahm: There are strategies and techniques, and then there are fundamental bedrock principles of human communication. The use of story and narrative structure definitely falls in the later category, perhaps to a greater degree than we’ve previously thought. I’ve written before that stories can show us what’s moral, fill gaps in
Arc Your Trial Story Read More »
By Dr. Ken Broda Bahm: I was recently assisting in a criminal jury selection. Over the course of several days, we moved through close to 50 potential jurors. I heard over and over again both sides’ efforts to acquaint the venire members with the standard of proof and to assess their willingness to follow it. “It
Expect Jurors to Apply Their Own Standard of Proof Read More »