Tag Archives: Persuasive Litigator Blog

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

Litigation and The Art of Storytelling.

07 Friday Aug 2015

Posted by in Closing Argument, Cross-Examination, Direct Examination, Jury Persuasion, Opening Argument, Oral Argument, Storytelling, Trial Tips and Techniques

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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. . . .

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Voir Dire and Racism.

03 Friday Jul 2015

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

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Don’t Treat Racism as Just a Belief, by Dr. Ken Broda-Bahm, Persuasive Litigator Blog

http://tinyurl.com/pkphfl6

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. . . .

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The Achilles Heel Of A Plaintiff’s Product Liability Lawsuit.

26 Friday Dec 2014

Posted by in Litigation, Product Liability, Trial Tips and Techniques, Verdict

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Address the Most Dangerous Feature of Your Product: Dishonesty, by Dr. Ken Broda-Bahm, Persuasive Litigator Blog

http://tinyurl.com/lkl6jfw

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. . . .

Should Attorneys, Not Judges, Conduct Voir Dire At Trial?

14 Friday Nov 2014

Posted by in Implied Bias, Juror Impeachment, Jury Selection, Opening Argument, Peremptory Challenges, Trial Tips and Techniques, Voir Dire

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Let the Lawyers Ask: Five Reasons for Attorney-Conducted Voir Dire, by Dr. Ken Broda-Bahm, Persuasive Litigator

http://tinyurl.com/new9t3c

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. . . .

Former Convictions Do Not Always Ruin Witness Credibility.

28 Tuesday Oct 2014

Posted by in Closing Argument, Cross-Examination, Direct Examination, Opening Argument, Trial Tips and Techniques, Witness Preparation, Witnesses

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Don’t Assume Prior Convictions Kill Credibility, by Dr. Ken Broda-Bahm, Persuasive Litigator Blog

http://tinyurl.com/lgssphj

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. . . . .

Adverse Witness Direct and Cross-Examination Tips.

16 Tuesday Sep 2014

Posted by in Cross-Examination, Direct Examination, Trial Tips and Techniques, Witnesses

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Flip the Order of Your Adverse Witness Preparation, by Dr. Ken Broda-Bahm, Persuasive Litigator Blog

 http://tinyurl.com/mhz8fes

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. . . .

Can Your Witness Stand Up To Cross-Examination?

01 Friday Aug 2014

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

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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. . . .

The Strategy of Dissociation – Don’t Go To Trial Without It.

02 Friday May 2014

Posted by in Closing Argument, Cross-Examination, Defense Counsel, Direct Examination, Jury Persuasion, Opening Argument, Trial Tips and Techniques

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Dissociate (to Separate Bad Image from Good Image in Litigation), by Dr. Ken Broda-Bahm, Persuasive Litigator Blog

http://bit.ly/1lJsEka

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. . . .

Why Isn’t The Judge Listening?

16 Wednesday Apr 2014

Posted by in Closing Argument, Experts, Jury Persuasion, Legal Analysis, Legal Argument, Opening Argument, Trial Tips and Techniques

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Experts: Keep It Comparative, by Dr. Ken Broda-Bahm, Persuasive Litigator Blog

http://tinyurl.com/n3hovpy

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?  . . . .

Apologizing Even When It’s Not Your Client’s Fault.

30 Sunday Mar 2014

Posted by in Closing Argument, Cross-Examination, Damages, Defense Counsel, Direct Examination, Jury Instructions, Jury Persuasion, Litigation, Making Objections, Opening Argument, Settlement, Trial Tips and Techniques

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Show You’re Sorry, Even When You’re Not at Fault, by Dr. Ken Broda-Bahm, Persuasive Litigator Blog

http://tinyurl.com/ntvjm5r

[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. . . .

Jury Nullification Secret Sneaking Out Of The Bag.

16 Sunday Mar 2014

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

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Treat Nullification as a Known Option, by Dr. Ken Broda-Bahm, Persuasive Litigator

http://perma.cc/HWG4-PKHK

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. . . .

Like Us, Judges and Juries Get the “Munchies.”

08 Saturday Mar 2014

Posted by in Appellate Judges, Closing Argument, Cross-Examination, Defense Counsel, Direct Examination, Exhibits, Experts, Federal Judges, Judges, Jury Persuasion, Law Clerks, Litigation, Making Objections, Opening Argument, Oral Argument, Plaintiff's Counsel, Trial Tips and Techniques, Voir Dire, Witnesses

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Time Your Arguments to the Judge’s Lunch Breaks (and Adapt to All Decision Makers’ “Cognitive Load”), by  Dr. Ken Broda-Bahm, Persuasive Litigator  Blog

http://tinyurl.com/lebleml

It comes as no surprise that a hungry person, be it the judge or members of a jury, find it difficult to concentrate and focus on your client’s case. Long stretches of testimony and argument are hard enough to follow, especially if the case is complex with numerous exhibits and witnesses. Regardless how comfortable the chair, sitting for long periods trying to listen carefully to a case is hard work.

There is more than one way to consider your audience at a trial or hearing. Persuasive argument is one. Excellent trial preparation using technology is another. Considerate and well-timed rest and meal breaks are another tool that can be used to your advantage.

The Rocket Science Blog mentioned in this post can be found at http://tinyurl.com/3dg5e8n. – CCE

Anyone who argues in front of judges knows that human factors can weigh as heavily as the law in determining your judge’s decisions.  But it is still possible at times to be surprised at the degree of influence, as well as the banality of those human factors.  Case in point: lunch and snack breaks.  Recent research discussed in the excellent Not Exactly Rocket Science blog appears to show that judges’ decisions vary as a direct effect of the proximity of their morning snack or lunch break.  In case you are using your morning break or lunch hour to read this post, I’d like to make it worth your while by applying the study findings to the more general issue of your decision-makers’ mental work load and offering some recommendations for anyone who needs to make arguments to a potentially fatigued audience. . . .

Lawyers — First Impressions Stick!

02 Sunday Mar 2014

Posted by in Closing Argument, Cross-Examination, Direct Examination, Exhibits, Experts, Jury Persuasion, Jury Selection, Litigation, Making Objections, Mock Trials, Opening Argument, Plaintiff's Counsel, Trial Tips and Techniques, Voir Dire, Witnesses

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Expect First Impressions to be Carved in Stone, by Dr. Ken Broda-Bahm, Persuasive Litigator Blog

http://tinyurl.com/org7why

Please note additional links on first impressions, overcoming bad impressions, and using visual images to create a first impression at the bottom of this post at the Persuasive Litigator website. -CCE

We’ve all heard the old saying: You never get a second chance to make a first impression. It is true that when meeting someone new, our brain is quickly putting them into a number of categories. Their background, intelligence, friendliness, attitudes, trustworthiness, and a myriad of other aspects of character are all on their way to being locked into some pretty durable assumptions. In a legal setting, where a juror is reacting to a witness on the stand for example, we might want those credibility determinations to be made over time, informed by the full scope of the testimony. But don’t count on it. . . . 

Rethink Calling Your Clients “Toothless Cooties.”

25 Saturday Jan 2014

Posted by in Legal Ethics, Litigation, Trial Tips and Techniques

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Criticize Clients Carefully, by Dr. Ken Broda-Bahm, Persuasive Litigator Blog

http://tinyurl.com/mg4bbue

Please note additional articles on client communication and relations at the end of the article. – CCE

There is no doubt that it’s a litigator’s job to realistically assess the case and, when the situation demands it, to deliver bad news to the client. How that assessment is crafted and communicated, however, is where the care comes in.