Category Archives: Trial Tips and Techniques

Testimony Mode: Note the Tradeoff Between Information Density and Juror Sensitivity, by Dr.  Ken Broda-Bahm, Persuasive Litigator™

24 Sunday Oct 2021

Posted by in Jury Persuasion, Trial Tips and Techniques

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No one must tell us that Covid has changed our society in multiple ways that continue to evolve.  Attitudes and attention spans are not the same.

Given these changes, how does a trial lawyer decide what information must be impressed upon a jury and what is the best way to do it? How do you avoid juror boredom? I have seen jurors fall asleep while an attorney questioned a witness using extensive legalese. By the time the lawyer asked the question, he had lost the jury’s attention. He mentally wore them out.

Dr. Broda-Bahm is an experienced litigation consultant. I admit that I am a fan of his blog.  When I saw this post, it reminded me of my experiences watching the jury’s reactions throughout trial. What causes jury information overload? What is a clear and concise way to present complex or unfamiliar legal issues to a jury? What changes should you make to trial strategy to address changes in jury’s attitudes and reactions?

This post addresses those questions. I encourage you to note the “Other Posts on Testimony” at the end of his post, which reference more posts on this topic. – CCE

Testimony Mode: Note the Tradeoff Between Information Density and Juror Sensitivity

Sharpen Your Oral Presentation Skills.

07 Tuesday Jan 2020

Posted by in Oral Argument, Oral Argument, Trial Tips and Techniques

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On Your Feet: Some Simple Steps to Presenting in Person, by Joseph Regalia, Appellate Advocacy Blog

https://lawprofessors.typepad.com/appellate_advocacy/2020/01/on-your-feet-some-simple-steps-to-presenting-in-person.html

Even though this post is written for attorneys who want to hone their oral argument skills, I think it also works for those who speak or teach, regardless of your audience.  -CCE

Why The Jury Blamed The Injured Plaintiff.

24 Tuesday Apr 2018

Posted by in Jury Persuasion, Plaintiff's Counsel, Trial Tips and Techniques

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Understanding Why Jurors Want To Blame The Injured Plaintiff, by Paul Luvera, Plaintiff Trial Lawyer Tips

http://plaintifftriallawyertips.com/understanding-why-jurors-want-to-blame-the-injured-plaintiff

There are times when it simply does not make sense that the jury did not sympathize with the plaintiff. Yes, there can be legal reasons for the outcome, but there are certain psychological motives as well. This post does an excellent job of identifying and explaining them. -CCE

Witness Preparation – The Classics.

19 Monday Mar 2018

Posted by in Depositions, Discovery, Trial Tips and Techniques, Witness Preparation, Witness Preparation, Witnesses

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Witness: Top 10 Posts, by Dr. Ken Broda-Bahm, Persuasive Litigator™

http://bit.ly/2DFr8fI

Have you ever prepared witnesses or clients for a deposition or trial? If you have, then you know these rules or techniques are the classics. Tried and true. If you haven’t, here is some of the best advice you will ever get. This is a “must bookmark.” -CCE

Paralegal Checklist for Trial.

11 Sunday Mar 2018

Posted by in Litigation, Technology, Trial Notebooks, Trial Tips and Techniques

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What Does A Paralegal Do At Trial: Six Things Your War Room Must Have, by Christina Roberts, CP, Digital Paralegal Services (with permission from author and website)

http://bit.ly/2IkFXb5

This excellent post highlights important steps to prepare for trial. This is especially helpful when your trial is out of town.

I like the emphasis on the trial notebook. Your lead counsel may specify something similar. Regardless, it is your job to make sure they have whatever works for them. Still, this trial notebook is ideal, and is an excellent model to follow.

Some quick words about using technology in the courtroom. Visit the courtroom ahead of time. Write down the location of all electrical outlets. Take a lot of duct tape. Use duct tape to secure all wires and cords.

Ask the judge’s staff whether the judge has a preference or pet peeves. Perhaps the judge has local rules for technology in the courtroom?

If you got to trial often, you likely have your own stories of technology attempts that didn’t work. That could be a post all by itself. Mainly, my best advice to you is that, whatever can go wrong, will go wrong. Anticipate it, and be ready with a back-up plan. -CCE

Your Mother Was Right. Manners Matter.

24 Saturday Feb 2018

Posted by in Courtroom Etiquette, Judges, Trial Tips and Techniques

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Courtroom Conduct Matters. Yes, Counsel: That Includes You, by Kacy Miller, Persuasion Matters

http://courtroomlogic.com/2018/02/12/courtroom-conduct/

Regardless of who sits at the counsel table or part of the team sitting in the gallery, courtroom conduct matters. Many judges have their own set of courtroom rules. Like all local rules, follow them exactly. These are rules, not suggestions. It is especially important that your client understands the importance of proper court etiquette, as well as any family members or friends who may be seated in the gallery.

I have seen bad behavior by clients and counsel alike. Some clients have trouble controlling themselves. Some attorneys act more like they are in a theater rather than a courtroom. Go to court often enough, and you will quickly see what impresses a judge or jury and what doesn’t. -CCE

What To Do When You Know the Jury Will Play With the Evidence.

21 Tuesday Nov 2017

Posted by in Evidence, Exhibits, Jury Persuasion, Trial Tips and Techniques

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Expect Jurors to Climb into the Cooler, by Dr. Ken Broda-Bahm, Persuasive Litigator™

http://bit.ly/2zXlFCX

Jurors, for the most part, take their job seriously. They want to do the right thing and do a good job. Regardless of whether you parade a cadre of expert witnesses in front of them, if your case hinges on how something works, the jury will want to try it out for themselves.

When you display a key piece of evidence in the courtroom throughout the trial, anticipate that the jurors will want to experiment with it when they adjourn to jury room. Dr. Broda-Bahm explains how to use the jurors’ natural curiosity to your advantage. -CCE

You Never Know What A Jury Is Going To Do.

29 Saturday Jul 2017

Posted by in Jury Persuasion, Trial Tips and Techniques

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Consider What Drives Resistance to Your Message, by Dr. Ken Broda-Bahm, Persuasive Litigator™

http://www.persuasivelitigator.com/2017/07/consider-what-will-drive-resistance-to-your-message.html

When clients ask whether their case will win at jury trial, the standard answer is that we never know what a jury is going to do.

There are times during trial when it may become obvious the jury is bored or highly engaged. Even then, do you know which way the jury will flop? Well, sometimes. Voir dire has given you some insight, as well as your own research. With the country presently divided, you may think people are easily pigeon-holed.

You’re feeling confident about your opening argument.  You may even think you have the jury eating out of your hand. But do you? Really?

Knowing your case well is a two-edged sword. You may believe that the story of your client’s case is so convincing – so right – that it is hard to imagine the jury will not see it just as you do.  Are you prepared to address a jury’s resistance to your client’s case?  Here are some excellent insights on what makes a jury tick. Please note more posts on this subject at the bottom of Dr. Broda-Brahm’s post. -CCE

Trial Witnesses And Depositions Transcripts.

22 Saturday Apr 2017

Posted by in Depositions, Discovery, Trial Tips and Techniques, Witness Preparation, Witnesses

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Use Your Deposition as Your Sword and Shield, by Dr. Ken Broda-Bahm, Persuasive Litigator™

http://bit.ly/2piUoBR

Depositions can be taken months, even years, before a case goes to trial. Even though you may routinely provide every deponent with a copy of the transcript of his or her deposition, does the witness or your client really understand how important it truly is to study it thoroughly? Sometimes I wonder whether they see it more as a bother. Including a copy of this post might help. -CCE

See also Overlearn Your Deposition, by Dr. Ken Broda-Bahm, Persuasive Litigator™ at http://www.persuasivelitigator.com/2017/02/overlearn-your-deposition.html.

Litigation Tip – Balancing Emotion and Logic.

14 Friday Apr 2017

Posted by in Jury Persuasion, Trial Lawyers, Trial Tips and Techniques, Voir Dire

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Human Nature: “Facts are White Noise & Emotions Rule” & Why We Continue to Believe Objectively False Things, by Paul Luvera, Plaintiff Trial Lawyer Tips

http://bit.ly/2oVw6P5

Does your head or your heart make your decisions? Are you sure? While your argument, evidence, and testimony may be perfectly reasoned and logical, how does it rank on a positive or negative on an emotional scale or preconceived beliefs? -CCE

 

Use Plain English Rather Than Medical Jargon.

12 Wednesday Apr 2017

Posted by in Legal Writing, Persuasive Writing, Plain Language, Trial Tips and Techniques

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Plain English Helps Explain Medical Issues Clearly, A Case Study, by Dr. Oscar Linares, David Daly, and Gertrude Daly, 36 Mich. B J. (Jan. 2017)

http://www.michbar.org/file/barjournal/article/documents/pdf4article3039.pdf

Professionals, like doctors, often speak using medical jargon. Other doctors understand it, but not necessarily everyone else. This is true for anyone who uses technical language specific to their work. But in a legal matter, communication is critical. A good reason to use plain English, isn’t it? -CCE

Storytelling Trial Lawyer’s Honey Pot.

24 Friday Mar 2017

Posted by in Jury Persuasion, Storytelling, Trial Lawyers, Trial Tips and Techniques

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The Key Elements of a Good Narrative – at Trial or Anywhere Else, by Tony Klapper, The Litigation Consulting Report, A2L Consulting

http://www.a2lc.com/blog/the-key-elements-of-a-good-narrative-at-trial-or-anywhere-else

Every good trial lawyer is a storyteller. Good storytelling is the same as a good book or movie with a great plot and dialogue. It’s that kind of storytelling that wins trials.

Mr. Klapper has written a wonderful post. At its end, you’ll find a honey pot of links with posts that are a variation on this theme. Sweet. -CCE

Excellent Advice for Witness Preparation.

26 Sunday Feb 2017

Posted by in Trial Tips and Techniques, Witness Preparation, Witnesses

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Witnesses: Know Your Seven Ways Out of the ‘Yes or No’ Trap, By Dr. Ken Broda-Bahm, Persuasive Litigator

http://www.persuasivelitigator.com/2017/02/witnesses-know-your-seven-ways-out-of-the-yes-or-no-trap.html

This post caught my eye. I was trained to prepare prospective witnesses to keep their answers brief, preferably to “yes” or “no.” If further explanation was needed or wanted, my lead attorney would ask appropriate questions during direct or cross-examination.

This post takes a different – and better – approach to respond using a variety of answers, regardless of the question asked. Although there may be times when a simple “yes” or “no” answer is the right thing for the witness to say, this post provides excellent advice that is well worth your notice. -CCE

Voir Dire and The Internet – The Litigator’s Way of Getting To Know You.

07 Saturday Jan 2017

Posted by in Juror Questionnaires, Jury Selection, Trial Tips and Techniques, Voir Dire

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Getting Up Close and Personal: Using Social Media in Jury Selection, by Dennis Elias, Litigation Strategy, Inc.

http://www.litigationstrategiesinc.com/2011/09/getting-up-close-and-personal-using-social-media-in-jury-selection/

Are you more candid online than in person? Apparently, it’s true, which makes the Internet and social media a boon to litigators. Here’s why, how, and where to draw the ethical line before you go too far. -CCE

Picking A Jury? Read This First.

29 Tuesday Nov 2016

Posted by in Juror Questionnaires, Jury Persuasion, Jury Selection, Trial Tips and Techniques, Voir Dire

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Get Better Answers: Top 7 Posts on Supplemental Juror Questionnaires, by Dr. Ken Broda-Brahm, Persuasive Litigator

 http://bit.ly/2gHoIDn

Well, here’s a treat. Seven posts all in one on jury selection and jury questionnaires. How do you find the right jurors to hear and decide your case? Some people have a natural tendency to tell you whatever you want to hear. They are just trying to be helpful. Some potential jurors simply don’t want to be there, and hope to be dismissed.

You have little time to sort this out. It is time to become an expert in human psychology. –CCE

If I had to pick one trial reform that has the best chance of promoting reliable information in voir dire and in decreasing reliance on demographic biases, it would be the greater use of supplemental juror questionnaires. A well-designed questionnaire allows you to uncover the attitudes that are most relevant to bias in a given case context. Here are seven posts laying out the reasons why.

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How to Persuade the Jury to Blame One Party Over The Other.

25 Sunday Sep 2016

Posted by in Jury Persuasion, Opening Argument, Plaintiff's Counsel, Storytelling, Trial Tips and Techniques

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Plaintiffs Should Always Start By Attacking The Defendant, by Paul Luvera, Plaintiff Trial Lawyer Tips Blog

http://plaintifftriallawyertips.com/plaintiffs-should-always-start-by-attacking-the-defendant

[I]n the 1990’s, trial lawyers Gregory Cusimano and David Wenner investigated the issue. They presented fact patterns to hundreds of focus groups around the country and in that process they observed a consistent pattern: when they began their opening statement by talking about the plaintiff, jurors would blame the plaintiff for what happened. But, if they started with the defendant’s conduct, jurors blamed the defendant and placed much less blame on the plaintiff.

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Using the “Rule of Three.”

10 Saturday Sep 2016

Posted by in Closing Argument, Jury Persuasion, Legal Writing, Opening Argument, Oral Argument, Storytelling, Trial Tips and Techniques

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Remember the Rule of 3: It’s Simple, Logical, and Effective, by Dr. Ken Broda-Bahm, Persuasive Litigator™

http://bit.ly/2chpUMD

So simple, but so persuasive. It is especially useful in oral argument, which is the topic of this post from Dr. Broda-Bahm. -CCE

[W]hen litigators are looking for a way to paint a bit of style and rhetorical effectiveness into their oral arguments, openings, or closings, the rule of three ought to be one of the first items in your tool box. Focusing on — you guessed it — three reasons, this post will explain why.

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What Skills Make a Great Trial Lawyer?

26 Tuesday Jul 2016

Posted by in Jury Persuasion, Trial Lawyers, Trial Tips and Techniques

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Lessons from One of America’s Greatest Trial Lawyers – Earl Rogers, by Paul Luvera, Plaintiff Trial Lawyer Tips Blog

http://plaintifftriallawyertips.com/lessons-from-one-of-americas-greatest-trial-lawyers-earl-rogers

Earl Rogers was a famous attorney who died in 1922. He defended 77 murder cases and lost only three.  He was one of the greatest trial lawyers in American history. The long running TV series, Perry Mason, was based upon Earl Rogers life. His daughter Della Rogers St. John’s wrote a descriptive book of his trial skills in Final Verdict which is not only enjoyable reading, but educational as well.

We think about Clarence Darrow as a great trial lawyer, but when Darrow was charged with jury bribery in Los Angeles, it was Rogers he selected to be his defense attorney.

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Why Creating A Timeline Will Help Your Case.

04 Monday Jul 2016

Posted by in Legal Technology, Litigation, Timelines, Trial Tips and Techniques

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How to Create a Timeline For Your Case: First Steps to Take and Choices to Make, by Morgan Smith, Cogent Legal Blog

http://cogentlegal.com/blog/2011/08/how-to-create-a-timeline-for-your-case/

In litigation, almost every case will benefit from a timeline that lays out key facts and circumstances in a chronological order. The process of making a timeline can help you, the attorney, organize and strengthen your argument, and the end result is a clear and compelling visual presentation that will help all parties involved better understand your case.

But, which program should you use to create it? This is one question where there is simply no single best answer, and a lot depends on the forum you intend to use the timeline in. This post covers some benefits and drawbacks to different timeline tools and formats so you can determine which to use. To see a variety of timeline samples, please our timeline and portfolio sections of our website.

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Communication Tactics and Jury Persuasion.

03 Sunday Apr 2016

Posted by in Jury Persuasion, Litigation, Trial Tips and Techniques

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What Trial Lawyers Can Learn From Donald Trump, by Paul Luvera, Plaintiff Trial Lawyer Tips Blog

http://plaintifftriallawyertips.com/what-trial-lawyers-can-learn-from-donald-trump

No, I’m not talking about politics. I’m talking about communication tactics employed by Donald Trump.

Omaha Nebraska jury consultant David Clark and I have engaged in an exchange of emails over a  long period of time about the general subject of communication and in particular techniques taught at the Spence Trial College. However, since the presidential campaign has become active, our communications have focused upon Donald Trump and his communication style. Not because we are particularly interested in his political positions but because we both recognized that he employed significant communication techniques most people ignored. While most people regard him with intellectual disdain and are appalled by his verbal conduct, we believe there is a substantial amount of unrecognized communication tactics being used either knowingly or not. These are some significant techniques that we all should evaluate. . . .

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Want The Jury to Pay Attention? Use Good Storytelling Skills.

17 Thursday Mar 2016

Posted by in Employment Law, Jury Persuasion, Litigation, Race Discrimination, Trial Tips and Techniques

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25 Million Reasons To Tell A Good Story, by John Hyman, Ohio Employer’s Law Blog

http://www.ohioemployerlawblog.com/2012/06/25-million-reasons-to-tell-good-story.html

Trying an employment case to a jury is an art. You are limited by a jury’s attention span (which, by the way, is getting worse as a result of 1,000 channel cable systems and 140 character tweets) to convey your message as quickly and as simply as possible. Complex legal arguments are out; creative storytelling built around a unified theme is in. . . .

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Free Research Guides from PACE Law School Library.

17 Thursday Mar 2016

Posted by in Administrative Law, Corporate Law, Criminal Law, Elder Law, Environment Law, Immigration Law, Intellectual Property, International Law, Law Libraries, Legal Ethics, Research, Trial Tips and Techniques

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Research Guides, Pace Law School Library

http://libraryguides.law.pace.edu/index.php

Administrative Law, Bar Exam, Copyright and IP Law, Corporate, Business & Securities Law, Criminal Law and Procedure, Environmental and Energy Law, Health and Elder Law, Immigration Law, International and Foreign Law, Land Use Law, and more. Definitely worth a look. -CCE

Witness Preparation for Depositions. How to Say Enough But Not Too Much.

17 Sunday Jan 2016

Posted by in Depositions, Discovery, Trial Tips and Techniques, Witness Preparation, Witnesses

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Witness, Don’t Teach” (in Deposition), by Dr. Ken Broda-Bahm, Persuasive Litigator™

http://bit.ly/1SXtKtl

One common piece of advice given to fact witnesses during deposition preparation meetings is that it isn’t their role to instruct opposing counsel on everything they ought to know:  ‘Witness, Don’t Teach.’ . . .

Earlier this week, I was working with an anesthesiologist who simply could not deaden his impulse to take each question as an invitation to explain, expand, and expound. Applying our advice to ‘just answer the question and stop’ proved difficult once he got into the expository groove of his typical conversation style with colleagues, patients, and family members. That habit is one worth breaking, even if it takes some extra work and focus. . . . To aid in the continuing effort to convince witnesses to take off their teacher’s hats during the deposition, this post shares five reasons why that’s a good idea. . . .

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Observations On Gerry Spence’s Witness Examination Technique.

30 Wednesday Dec 2015

Posted by in Cross-Examination, Direct Examination, Experts, Litigation, Storytelling, Trial Tips and Techniques

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Gerry Spence Witness Examination Excerpts, by Paul Luvera, Plaintiff Trial Lawyer Tips

http://plaintifftriallawyertips.com/gerry-spence-witness-examination-excerpts

In 1985, a man was shot dead on a rural road in Lincoln County, Ore. A teenage boy and his mother were indicted for the crime. Gerry Spence took on both cases for the defense pro bono and faced off against a young prosecutor named Joshua Marquis in the juvenile’s trial; the attorneys did not take a shine to each other. So contentious was the trial that they both ended up before the Oregon State Bar. A special report in the bar matter described their relationship as ‘reveal[ing] a degree of hostility and vituperation unique in our experience.’ The bar charges were dismissed, but the animosity remained. Spence wrote a book about the Oregon trials The Smoking Gun.

I was at the courthouse in Portland during a day or two of this trial. I was able to spend some time with Gerry and his partner during recess. He did an amazing job of obtaining an acquittal for his client. I have part of the transcript of that trial. I recently re-read Gerry’s examination of the polygraph operator from that trial. Gerry’s position was the accuser, wife of the deceased, was actually the one who accidentally shot her own husband and then blamed his client who was a neighbor.  He called the polygraph operator to show the accuser had failed the polygraph test. I’m setting out a few illustrations from that transcript for your consideration.

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Understand Group Psychology Patterns for Winning Trial Strategy.

21 Wednesday Oct 2015

Posted by in Implied Bias, Jury Persuasion, Jury Selection, Trial Tips and Techniques, Voir Dire

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Group Psychology, Voir Dire, Jury Selection and Jury Deliberations, by Ken Lopez, The Litigation Consulting Report

http://tinyurl.com/nugn68v

Since first being exposed to the group psychology work of Wilfred Bion 15 years ago, I’ve been completely fascinated by it. I think his theories perfectly explain the behavior of every group that I’ve ever encountered. From boards that I sit on to groups on reality TV shows, they all behave in the same predictable ways, especially when placed under pressure. . . . [Emphasis added.]

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