19 Monday Mar 2018
Posted in Depositions, Discovery, Trial Tips and Techniques, Witness Preparation, Witness Preparation, Witnesses
≈ Comments Off on Witness Preparation – The Classics.
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
21 Tuesday Nov 2017
Posted in Evidence, Exhibits, Jury Persuasion, Trial Tips and Techniques
≈ Comments Off on What To Do When You Know the Jury Will Play With the Evidence.
Expect Jurors to Climb into the Cooler, by Dr. Ken Broda-Bahm, Persuasive Litigator™
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
29 Saturday Jul 2017
Posted in Jury Persuasion, Trial Tips and Techniques
≈ Comments Off on You Never Know What A Jury Is Going To Do.
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
22 Saturday Apr 2017
Posted in Depositions, Discovery, Trial Tips and Techniques, Witness Preparation, Witnesses
≈ Comments Off on Trial Witnesses And Depositions Transcripts.
Use Your Deposition as Your Sword and Shield, by Dr. Ken Broda-Bahm, Persuasive Litigator™
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.
26 Sunday Feb 2017
Posted in Trial Tips and Techniques, Witness Preparation, Witnesses
≈ Comments Off on Excellent Advice for Witness Preparation.
Witnesses: Know Your Seven Ways Out of the ‘Yes or No’ Trap, By Dr. Ken Broda-Bahm, Persuasive Litigator
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
10 Saturday Sep 2016
Posted in Closing Argument, Jury Persuasion, Legal Writing, Opening Argument, Oral Argument, Storytelling, Trial Tips and Techniques
≈ Comments Off on Using the “Rule of Three.”
Remember the Rule of 3: It’s Simple, Logical, and Effective, by Dr. Ken Broda-Bahm, Persuasive Litigator™
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.
17 Sunday Jan 2016
Posted in Depositions, Discovery, Trial Tips and Techniques, Witness Preparation, Witnesses
≈ Comments Off on Witness Preparation for Depositions. How to Say Enough But Not Too Much.
Witness, Don’t Teach” (in Deposition), by Dr. Ken Broda-Bahm, Persuasive Litigator™
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. . . .
21 Monday Sep 2015
Posted in Trial Tips and Techniques, Witness Preparation, Witnesses
≈ Comments Off on Should Your Eye Witness Look At The Jury On the Stand? If Not, Where?
Treat Witness Eye Contact As a Three-Way Conversation, by Dr. Ken Broda-Bahm, Persuasive Litigator™
Please note the additional posts at the bottom of the page on witness nonverbal communication. -CCE
The advice is as old as the art of communication: Look at the person you are talking to. And it is good advice. Eye contact makes it easier for audiences to stay engaged and more likely that speakers will focus on their targets. For a witness on the stand during trial testimony, that means ‘Look at the jury.’ But not just the jury. A witness who shuts out counsel and fixes their gaze only on the jury is likely to look a little contrived, or even creepy. So the advice is to look at the attorney when she is asking a question, and then look at the jury when delivering your answer. But that advice can create its own problem. . . .
07 Friday Aug 2015
Posted in Closing Argument, Cross-Examination, Direct Examination, Jury Persuasion, Opening Argument, Oral Argument, Storytelling, Trial Tips and Techniques
≈ Comments Off on Litigation and The Art of Storytelling.
Tags
Art of Persuasion, Dr. Ken Broda-Bahm, Persuasive Litigator Blog, Storytelling, Trial Tips and Techniques
Tell It: The Top 10 Posts on Story, by Dr. Ken Broda-Bahm, Persuasive Litigator Blog
http://www.persuasivelitigator.com/2015/07/tell-it-the-top-10-posts-on-story.html
The ‘story model’ (Hastie, Penrod & Pennington, 1983) for litigation persuasion is appropriately considered gospel at this point. At the same time, there is an art to it. In most courtrooms, I see litigators who are aware of the need to tell a story, but not necessarily versed in the techniques of storytelling. As I’ve explored from time to time in this blog, beyond laying out the events in temporal sequence, there are some nuances relating to structure, imagery, audience, and point of view. In short, there is a substantial ‘advanced course’ in narrative that effective trial lawyers should study. To make that a little easier, here are our top 10 posts so far on storytelling in trial. . . .
03 Friday Jul 2015
Posted in Jury Persuasion, Jury Selection, Trial Tips and Techniques, Voir Dire
≈ Comments Off on Voir Dire and Racism.
Tags
Dr. Ken Broda-Bahm, Jury Persuasion, Persuasive Litigator Blog, Racism, Trial Tips & Techniques, Voir Dire
Don’t Treat Racism as Just a Belief, by Dr. Ken Broda-Bahm, Persuasive Litigator Blog
As of posting time, seven African-American churches have burned down since the racially motivated murders in Emanuel African Methodist Church in Charleston, South Carolina two weeks ago. One of those fires may have been caused by lightning, but there’s a concern that others may have been caused by a belief – namely, racism toward African-Americans. But that understanding of racism as a conscious and pointed belief can limit our understanding of the full spectrum of the bias. . . .
24 Tuesday Mar 2015
Posted in Jury Instructions, Jury Instructions, Jury Persuasion, Legal Writing, Legalese, Plain Language, Readability, Trial Tips and Techniques
≈ Comments Off on Plain English Jury Instructions Are Like A Breath of Fresh Air After A Long Trial.
Tags
Dr. Ken Broda-Bahm, Jury instructions, Persuasive Litigator, Plain English, Trial Tips & Techniques
Embrace Plain English Jury Instructions, by Dr. Ken Broda-Bahm, Persuasive Litigator
I often play the role of the ‘judge’ during a mock trial. In that capacity, I have the pleasure of reading the legal instructions to the mock jurors just before they deliberate. While I’m droning on about ‘preponderance,’ and ‘proximate cause,’ and making the plaintiff ‘whole,’ I am often met with quizzical looks as the jurors grapple with the language. Some have even made a vain attempt to raise their hands to ask a question. I sometimes wish I could explain, ‘Look, my point is not for you to understand this… it is just to be realistic.’ And, too often, what is realistic is for the instructions to be dense at best and incomprehensible at worst. ’Jury instructions are written by lawyers,’ the American Judicature Society points out, ‘and are often filled with legal language whose meaning is not apparent to those without legal training.’ . . .
19 Thursday Feb 2015
Posted in Editing, Legal Writing, Plain Language, Proofreading, Readability, Spell Checking
≈ Comments Off on How “Readable” Is Your Writing?
Check Your Language Level, by Dr. Ken Broda-Bahm, Persuasive Litigator Blog
http://www.persuasivelitigator.com/2015/02/check-your-language-level.html
Dr. Brada-Bahm makes a good point. Our job is to be understood, regardless of the method of communication. There is, however, an easy way to check your document’s readability statistics if you use Microsoft Word.
To set readability statistics for in Word, click on “Options,” then “Proofing.” Scroll down to “When correcting spelling and grammar in Word.” Check the box for “Show readability statistics.” Afterwards, when you run a spell check on any Word document, it will show the readability statistics for your document. -CCE
The image of the trial lawyer that comes closest to our ideal might involve the advocate standing in front of the jury or the bench, waxing eloquent in oral argument. But the reality is that, even for lawyers who get to trial frequently, they’re writing more often than they’re speaking. Before, after, and often instead of those opportunities for oral persuasion, they are drafting briefs, motions, and memos. As attorneys get used to that written style, it can become difficult to gauge how comprehensible they are. You think you’re being perfectly clear — and you are, to you — but you may have lost track of how much work is falling on the reader. There is, however, a tool that can help, and lawyers should be aware of it. Contently, the content-marketing blog, writes about ‘reading level analysis‘ as a free online service you can use in order to test whether you’re writing at, say, a 5th, 9th or 12th grade reading level. The test itself is easy. You simply navigate to the ‘readability-score‘ site, paste any text you want into the window, or upload a file if it is in pdf, or paste in a URL if the text is already online. Then, click ‘calculate score’ and you instantly get a ‘reading ease’ number that varies between 0 (most difficult) and 100 (easiest), along with a more understandable identification of the grade-level that you are writing at. . . .
20 Tuesday Jan 2015
Posted in Depositions, Discovery, Federal Rules of Discovery, Objections
≈ Comments Off on Deposition Advice for Witnesses.
Tags
Depositions, Dr. Ken Broda-Bahm, Leading Questions, Objections, Persuasive Litigator, Witness Preparation, Witnesses
Don’t Be Led (in Deposition), by Dr. Ken Broda-Bahm, Persuasive Litigator
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 happened, but instead to get that witness to confirm the attorney’s version of what the case requires. For that reason, taking a deposition is all about control. The deposing attorney would just testify on his own if he could, but the process doesn’t allow that, so the next best thing is to fully control the witness. And the best way to fully control the witness is to lead. . . .
26 Friday Dec 2014
Posted in Litigation, Product Liability, Trial Tips and Techniques, Verdict
≈ Comments Off on The Achilles Heel Of A Plaintiff’s Product Liability Lawsuit.
Tags
Dangerous Products, Dr. Ken Broda-Bahm, Persuasive Litigator Blog, Product Liability, Trial Tips & Technology, Verdicts
Address the Most Dangerous Feature of Your Product: Dishonesty, by Dr. Ken Broda-Bahm, Persuasive Litigator Blog
One stereotype of the litigious American society suggests that jurors are willing to hold manufacturers and sellers responsible for even the most obvious product dangers: a ladder that allows its user to fall, or a cup of coffee that turns out to be hot. While anecdotes abound — some true, and some false — our experience is that product danger alone rarely drives a verdict. Instead, jurors need to see something else in order to generate sufficient anger to deliver any sizeable verdict against the company. That ‘something else’ can be boiled down to one word: dishonesty. Jurors know that products are dangerous. They have no trouble placing personal responsibility on adults who knowingly use dangerous products. What they are less able to abide is incomplete information. Whether the company is failing to investigate, providing inadequate or false warnings, working around regulations, or simply withholding information, the jury is less willing to say ‘buyer and user beware’ and more willing to put responsibility on manufacturers and sellers.
With 10 of the top 50 verdicts of last year coming from defective product suits, we do know that jurors are willing to hold manufacturers responsible. At the same time, the important ingredients that drive those damages are often found in the company’s behavior rather than in the product itself. A good example can be found in attitudes and behaviors surrounding tobacco use. Based on the results of a pair of studies, the public is more likely to reject a ‘deceptive’ product than it is to reject a merely ‘dangerous’ product. . . .
14 Friday Nov 2014
Posted in Implied Bias, Juror Impeachment, Jury Selection, Opening Argument, Peremptory Challenges, Trial Tips and Techniques, Voir Dire
≈ Comments Off on Should Attorneys, Not Judges, Conduct Voir Dire At Trial?
Tags
Dr. Ken Broda-Bahm, Juries, Peremptory Challenges, Persuasive Litigator Blog, Trial Tips & Techniques, Voir Dire
Let the Lawyers Ask: Five Reasons for Attorney-Conducted Voir Dire, by Dr. Ken Broda-Bahm, Persuasive Litigator
You may think that trial attorneys are the only ones who conduct voir dire at trial. That is not necessarily the case. Not all judges agree, especially in federal court. Dr. Broda-Bahm argues here that the parties’ lawyers should have this role. -CCE
Ever had the experience of asking someone to ask someone else something on your behalf? It’s like a sixth-grader’s attempt to find out if someone likes you. Sometimes you need a little plausible deniability but, in most cases now, it’s easier and more direct to just ask on your own. And that is pretty much what attorneys want in voir dire. It is nice for the judge to explain the procedures and deal with some of the more obvious hardship and cause challenges, but I think it’s safe to say that every trial lawyer wants the chance to ask their own questions in voir dire. Unfortunately, in some states and in most federal courtrooms, attorney-conducted oral voir dire is either limited or nonexistent.
The judges in those courtrooms, however, have discretion, and can allow attorney-conducted oral voir dire if they think the case or the circumstances call for it. So, when attorneys do have an opening to argue for their own chance at the lectern during voir dire, how do they make the case? If the judge is firmly convinced that it’s wasted time or an unwelcome opportunity for lawyers to ask panelists to prejudge the case, then nothing is going to change that judge’s mind. But if judges are on the fence, then a joint request from the parties, along with a few good reasons, might be enough to sway them. This post offers five reasons, along with some supporting research, that could buttress a brief or an oral argument in favor of attorney-conducted oral voldir dire. . . .
28 Tuesday Oct 2014
Posted in Closing Argument, Cross-Examination, Direct Examination, Opening Argument, Trial Tips and Techniques, Witness Preparation, Witnesses
≈ Comments Off on Former Convictions Do Not Always Ruin Witness Credibility.
Tags
Dr. Ken Broda-Bahm, Persuasive Litigator Blog, Prior Convictions, Trial Tips & Techniques, Witness Credibilitiy, Witness Preparation
Don’t Assume Prior Convictions Kill Credibility, by Dr. Ken Broda-Bahm, Persuasive Litigator Blog
The witness is in good shape and the testimony looks to be great. There’s just one little problem in his past: a conviction. Litigators are understandably concerned about any threats to witness credibility, but if that threat comes in the form of a rap sheet, that’s viewed as a very damaging fact, if not a ticking time bomb. The effects of a prior conviction are most often written about in a criminal defense context where the research generally shows that the fact of a prior conviction significantly increases the chances of a current conviction, particularly where the prior conviction is for a similar crime. But it can be a factor for any witness who’s had a prior brush with the law. In civil cases, crimes involving dishonesty can be admitted for the narrow purpose of impeaching a witness’s credibility. A recent study (Stanchi & Bowen, 2014) that focused on a civil trial context looks at the question of whether the damage is as bad as one might suspect. The results? No it isn’t. In a realistic controlled study, the researchers found that prior conviction evidence did not increase the chances for an adverse verdict. Instead, emphasis on the conviction caused mock jurors to frame the trial as more of a zero sum contest on witness credibility — a frame that can end up actually benefiting the convicted witness.
These results have some implications for attorneys assessing the risks to their witnesses’ credibility. . . . .
16 Tuesday Sep 2014
Posted in Cross-Examination, Direct Examination, Trial Tips and Techniques, Witnesses
≈ Comments Off on Adverse Witness Direct and Cross-Examination Tips.
Tags
Adverse Witness, Cross-Examination, Direct Examination, Dr. Ken Broda-Bahm, Persuasive Litigator Blog, Trial Tips & Techniques
Flip the Order of Your Adverse Witness Preparation, by Dr. Ken Broda-Bahm, Persuasive Litigator Blog
Excellent related articles at the end of Dr. Broda-Bahm’s post. -CCE
Let’s say that in trial, your witness will be called adverse and will go through the other side’s cross-examination before getting a chance at your direct.[1] But in your preparation sessions, you should still take them through your direct examination first. That’s what I call the ‘flipped’ order, and in this post, I aim to make the case for this as the better approach. . . .
01 Friday Aug 2014
Posted in Cross-Examination, Litigation, Trial Tips and Techniques
≈ Comments Off on Can Your Witness Stand Up To Cross-Examination?
Tags
Cross-Examination, Direct Examination, Dr. Ken Broda-Bahm, Litigation, Persuasive Litigator Blog, Witness Preparation
Counterpunch: Ten Ways to Fight Back on Cross, by Dr. Ken Broda-Bahm, Persuasive Litigator Blog
http://www.persuasivelitigator.com/2014/03/counterpunch-10-ways-to-fight-back-on-cross.html
A good witness should not see cross-examination as an argument, but neither should that witness see it as a time to be agreeable and passive with opposing counsel. Because the inherent conflict of cross piques the jurors’ interest, it can be a critical time. The two sides are in direct conflict and the jury has the ability to decide first-hand who seems to be winning at that moment. Given the stakes, it is too dangerous for a witness to just be led along by opposing counsel, comforting themselves with the knowledge that, ‘Well, at least I got to tell my side in direct,’ or, ‘My own attorney will give me a chance to fix all of this in redirect.’ Both are valid comforts, but effective direct and redirect will never completely erase the perceptual losses that can occur in cross. Substantively, the problem might be fixed, but jurors will still remember those moments where the witness looked weak, and that cannot help but influence their perception of your case and of the witness’s credibility.
The way I’ve explained it before is that cross-examination is, for the witness, a polite struggle. ‘Polite’ because the witness can’t afford to come off as too combative or uncooperative — ‘I’m just here to tell the truth…’ should be the tone. But ‘struggle,’ because there is a skilled advocate at the lectern whose job is to, at least for the moment, support his story and not yours. A good witness needs to work against that purpose. Like any advice, the message to fight back’ can be taken too far, or not far enough. It is a matter of balance and practice, and it clearly helps to get feedback during a prep session or two to make sure the communication is assertive but not aggressive. With these considerations in mind, here are ten ways witnesses can maintain their own power while being cross-examined. . . .
14 Monday Jul 2014
Posted in Closing Argument, Trial Tips and Techniques
≈ Comments Off on Working On Your Closing Argument? Use the Persuasion Slide.
Tags
Closing Argument, Dr. Ken Broda-Bahm, Litigation, Neuromarketing Blog, Persuasive Litigator, Persuasive Slide
Use the ‘Persuasion Slide,’ by Dr. Ken Broda-Bahm:, Persuasive Litigator
http://www.persuasivelitigator.com/convincing-closing/
Some great practical ideas for persuasion come from the field of marketing. To be sure, not all apply in legal settings, but marketing offers a laboratory where the practical aspects of human influence can be addressed in a situation that often carries high stakes and measurable results. I recently came across one marketing idea from Roger Dooley’s Neuromarketing blog that provides a perfect way of explaining and differentiating the various forces at work in any persuasive situation. The idea is called ‘The Persuasion Slide,’ and it starts with the simple physics involved in an ordinary playground slide. Like a good trial metaphor or demonstrative exhibit, the illustration provides a simple and immediately meaningful way to understand a more complex process. . . . .
15 Sunday Jun 2014
Posted in Acronyms, Closing Argument, Cross-Examination, Direct Examination, Jury Persuasion, Legal Writing, Making Objections, Opening Argument, Oral Argument, Trial Tips and Techniques, Voir Dire
≈ Comments Off on Are Acronyms Effective or Alphabet Soup?
Tags
Abbreviations, Acronyms, Dr. Ken Broda-Bahm, Jury Persuasion, Legal Writing, Persuasive Litigators Blog, Trial Tips & Techniques
DUA: Don’t Use Acronyms, by Dr. Ken Broda-Bahm, Persuasive Litigators Blog
I’m monitoring a criminal trial this week, and at the end of opening statements, the judge looked at the jury and said, ‘Okay, both sides have been referring to ‘AUSAs’ — they know what that means and I know what that means, but I’m guessing that you don’t know that that means?” Head nods from the jury. ‘It means ‘Assistant U.S. Attorney,’ continued the judge, “so please fill that in wherever you hear it.” Good solution? Better than nothing. But it would have been best if both sides would have simply used the title instead of abbreviating it. The tiny amount of additional time it takes to say ‘Assistant U.S. Attorney’ rather than ‘USA’ is well worth it in terms of clarity and understanding.
But some attorneys, experts, and other witnesses continue to love the economy of the acronym. But particularly in spoken communication, and particularly in front of a jury, that economy comes at a cost: meaning lost in translation and increased cognitive workload even when it is translated. Practical persuaders before a lay audience are well advised to avoid acronyms almost entirely. Okay, I say almost entirely — there are some exceptions (and besides ‘Generally Avoid Acronyms’ would have been ‘GAA.’) The few acronyms that ought to still be used are those that have such widespread familiarity that they almost become words in their own right: USA, CNN, or ASAP. In all other cases where the acronyms don’t benefit from automatic translation, the litigator is best off choosing the full expression and not the acronym. This post takes a look at a few reasons, implications, and replacements for trial persuaders looking to lose the alphabet soup of acronyms. . . .
02 Friday May 2014
Posted in Closing Argument, Cross-Examination, Defense Counsel, Direct Examination, Jury Persuasion, Opening Argument, Trial Tips and Techniques
≈ Comments Off on The Strategy of Dissociation – Don’t Go To Trial Without It.
Tags
Dissociation, Dr. Ken Broda-Bahm, Persuasive Litigator Blog, Trial Strategy, Trial Tips & Techniques
Dissociate (to Separate Bad Image from Good Image in Litigation), by Dr. Ken Broda-Bahm, Persuasive Litigator Blog
At the start of their game last Sunday, members of the L.A. Clippers ceremonially left their warmup jackets in a heap in center court, and warmed up with their shirts turned inside-out in order to conceal the name and logo of the team. This act came in response to recorded comments by team owner Donald Sterling telling his girlfriend ‘not to bring them [‘black people’] to my games.’ The response by the players was a move of dissociation: a way to say “We are not that,” and to clarify, in no uncertain terms, that the owner’s racism does not represent the team. This need to dissociate – to separate one meaning from another – is common in all communication situations, including those that involve the potential for litigation. Recently, for example, General Motors made the bold move of offering a full and complete apology for its inaction in addressing a long-term problem with its ignition switches, but in subsequent congressional testimony, CEO Mary Barra was careful to draw a distinction between the ‘Old General Motors’ prebankruptcy, and the ‘New General Motors’ that today stands before congress, court, and consumers.
Dissocation plays a role in lower profile cases across the country as well. A range of litigation-relevant situations create a need to communicate that ‘we are not this.’ Like most good persuasive strategies, the notion has its roots in rhetoric, the ancient and modern study of the best available means of influence. But the idea is more than just ivory tower philosophy. Dissociation also translates into some important practical strategies worth considering by trial attorneys in a number of situations. This post takes a look at the underpinning, as well as the concrete strategies of dissociation. . . .
16 Wednesday Apr 2014
Posted in Closing Argument, Experts, Jury Persuasion, Legal Analysis, Legal Argument, Opening Argument, Trial Tips and Techniques
≈ Comments Off on Why Isn’t The Judge Listening?
Tags
Dr. Ken Broda-Bahm, Expert Witness, Judge, Juries, Listening, Persuasive Litigator Blog, Trial Tips & Techniques
Experts: Keep It Comparative, by Dr. Ken Broda-Bahm, Persuasive Litigator Blog
The expert has prepared thoroughly for her testimony before the judge. She knows each opinion and every foundation. The outline that counsel developed is all but memorized. But then, as she is about an hour into describing the detailed methods and conclusions, the judge’s eyes are drifting down to the table and the nods of understanding have stopped: He isn’t getting it. In itself, there is nothing in the testimony that is impossible to understand – on the contrary, it is organized and clear. But the judge seems to have disengaged. Instead of tracking with the testimony at each step, he is just hearing detail after detail and letting it wash over him. And if there were a jury in the room, the problem would be even worse.
What went wrong? . . . .
12 Saturday Apr 2014
Posted in Evidence, Exhibits, Jury Persuasion, Legal Technology, Litigation, Presentations, Trial Tips and Techniques
≈ Comments Off on Using Animation At Trial.
Animate: Give Your Jurors Three Dimensions, or More, by Dr. Ken Broda-Bahm, The Persasive Litigator
[I]In trial, we know that demonstrative exhibits are often seen as playing a secondary role: second to evidence and second to the verbal explanation. The higher-end animations, however, are often an even more distant second (or third, or fourth) to exhibits that can be created more simply or more cheaply. Understanding that not all, or even most, cases will be able to afford or to merit the higher-end demonstrative animations, it is still worth it to pay attention to the state of the art and to think about how this technology can be brought to bear when it matters most. The good news is that creating sophisticated graphics is easier and cheaper than it has ever been before. Laptops now surpass what the best production workstations could have created in earlier times. A skilled computer animator can take an idea from design to execution in less time and expense than you might think. . . .
30 Sunday Mar 2014
Posted in Closing Argument, Cross-Examination, Damages, Defense Counsel, Direct Examination, Jury Instructions, Jury Persuasion, Litigation, Making Objections, Opening Argument, Settlement, Trial Tips and Techniques
≈ Comments Off on Apologizing Even When It’s Not Your Client’s Fault.
Tags
Damages, Dr. Ken Broda-Bahm, Judges, Jurors, Persuasive Litigator Blog, Settlement, Trial Tips & Techniques
Show You’re Sorry, Even When You’re Not at Fault, by Dr. Ken Broda-Bahm, Persuasive Litigator Blog
[A]s we’ve noted before, letting jurors, judges, and opposing parties hear an apology can be effective when you are responsible, or are likely to be found responsible, for at least part of the damage at issue in the case. But what about when you’re not? Does that second kind of “sorry,” meaning “I recognize your loss, but without accepting responsibility for it” create a persuasive advantage as well?
According to some new research, yes, it does. . . .
16 Sunday Mar 2014
Posted in Jury Instructions, Jury Persuasion, Jury Selection, Litigation, Trial Tips and Techniques
≈ Comments Off on Jury Nullification Secret Sneaking Out Of The Bag.
Tags
CGP Grey video, Dr. Ken Broda-Bahm, Juries, Jury Trials, Litigation, Nullification, Persuasive Litigator Blog, The Law You Won't Be Told, Trial Tips & Techniques
Treat Nullification as a Known Option, by Dr. Ken Broda-Bahm, Persuasive Litigator
Jury nullification is treated as a deep and dangerous secret. The idea that a jury can decide to follow its own moral guidance instead of following the law, is the legal doctrine that dare not speak its name, at least not anywhere near a courtroom. It’s been used as ammo in the war against the drug war, led to accusations of jury tampering, and even served as the basis for a criminal indictment of a retired professor who made it a practice to hand out pamphlets about nullification in front of courthouses. As stories like these become more well-known, the official secret of jury nullification might be turning into something more like an open secret. Based on the viral success of a recent video by CPG Grey — more than 1.5 million viewers in the first month it’s been up — the knowledge of nullification might be well on the way to becoming more common than ever. . . .
