Tag Archives: Persuasive Litigator

Using Hyperbole -Are You Risking Your Credibility With A Promise You Cannot Deliver?

19 Friday Oct 2018

Posted by in Hyperbole, Legal Argument, Legal Writing, Recent Links and Articles

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Avoid Hyperbole, by Dr. Ken Broda-Bahm, Persuasive Litigator™

https://www.persuasivelitigator.com/2016/12/avoid-hyperbole.html

What is hyperbole anyway? Here’s a quick example. How would you respond as opposing counsel to a statement that there are “countless obvious examples” of the opposing party’s errors? Perhaps, something like, “Oh really?” “Countless and obvious, you say? How interesting that you did not name anything specific. We did what any reasonable company would do in a similar situation.” And, then you must explain what you meant all over again – if you get the opportunity.

Simply put, hyperbole is deliberate exaggeration. Although often misguidedly used for emphasis, rhetoric, or even sarcasm, you invite an attack to prove your statement. At best, you may have illustrated that the other side’s behavior is outlandish. At worst, you have lost credibility with the court because you are unable to back up your statement with hard facts. Never imply a promise that you cannot deliver.

This is a good time to remember that your writing is more persuasive when you show, don’t tell. If the opposing party has behaved beyond the pale, telling the court or the jury what happened (who did what to whom and why) will be more persuasive than rhetorical outrage.

You will find in legal blogs on the use of hyperbole. This post is one of my favorites. As always, there is the bonus of hyperlinks to posts on similar subjects at the bottom of the page. -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

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

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.

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

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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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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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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Should Your Eye Witness Look At The Jury On the Stand? If Not, Where?

21 Monday Sep 2015

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

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Treat Witness Eye Contact As a Three-Way Conversation, by Dr. Ken Broda-Bahm, Persuasive Litigator™

http://www.persuasivelitigator.com/2015/09/treat-witness-eye-contact-as-a-three-way-conversation.html

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. . . .

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Plain English Jury Instructions Are Like A Breath of Fresh Air After A Long Trial.

24 Tuesday Mar 2015

Posted by in Jury Instructions, Jury Instructions, Jury Persuasion, Legal Writing, Legalese, Plain Language, Readability, Trial Tips and Techniques

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Embrace Plain English Jury Instructions, by Dr. Ken Broda-Bahm, Persuasive Litigator

http://www.persuasivelitigator.com/2015/03/embrace-plain-english-instructions-and-plain-english-persuasion.html

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.’ . . .

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How “Readable” Is Your Writing?

19 Thursday Feb 2015

Posted by in Editing, Legal Writing, Plain Language, Proofreading, Readability, Spell Checking

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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. . . .

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Deposition Advice for Witnesses.

20 Tuesday Jan 2015

Posted by in Depositions, Discovery, Federal Rules of Discovery, Objections

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Don’t Be Led (in Deposition), by Dr. Ken Broda-Bahm, Persuasive Litigator

http://tinyurl.com/lbeehbe

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. . . .

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Working On Your Closing Argument? Use the Persuasion Slide.

14 Monday Jul 2014

Posted by in Closing Argument, Trial Tips and Techniques

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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. . . . .

Intolerance Is A Door That Swings Both Ways When Presenting Your Case.

17 Monday Feb 2014

Posted by in Appellate Judges, Closing Argument, Cross-Examination, Direct Examination, Federal Judges, Judges, Jury Instructions, Jury Persuasion, Jury Selection, Making Objections, Opening Argument, Oral Argument, Plaintiff's Counsel, Trial Tips and Techniques, Voir Dire, Witness Preparation, Witnesses

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Account for Ideological Intolerance, by Dr. Ken Broda-Bahm, Persuasive Litigator™

http://tinyurl.com/kovy8wo

It’s Valentine’s time again. It’s a holiday of love, but in the political world, we’re moving out of yet another debt ceiling standoff and there is no love lost between the two sides of the spectrum. Liberals point to yet another, albeit failed, attempt to hold the country’s full faith and credit hostage, while conservatives point to yet another increase in an already staggering national debt. Neither side can understand the values, arguments, and priorities of the other. And that’s just the debt. Add in social welfare programs, marriage equality, and — as the actual sign from an Arizona gun shop above testifies — gun control, and you’ve got a pretty bitter divide. Polling shows that we are politically more ‘tribal’ than ever before. As we’ve noted in earlier posts, liberals and conservatives appear to use their brains differently when assessing risk, and are resistant to applying basic empathy across the political aisles. . . .

Framing Your Legal Arguments To Persuade.

11 Saturday Jan 2014

Posted by in Closing Argument, Cross-Examination, Direct Examination, First Amendment, Jury Instructions, Legal Writing, Making Objections, Opening Argument, Trial Tips and Techniques, Voir Dire

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Frame It As “Freedom with Consequences,” by Dr. Ken Broda-Bahm, Persuasive Litigator

http://tinyurl.com/mvb6qjy

Ducks and Vikings have been prominent recently on the free expression front of the culture wars. The ‘Duck’ would be Duck Dynasty’s reality star Phil Robertson, who’s recent comments on homosexuality and race caused his network, A & E, to briefly suspend him from the show. The ‘Viking’ would be former Minnesota Vikings punter Chris Kluwe, who was released by the team after controversy following an editorial he wrote in favor of marriage equality. While Kluwe lost his job and Robertson kept his, the similarity in the cases is that both were framed in the public sphere as a question of free expression. But it is less the question of whether Robertson and Kluwe have free speech, but whether they have freedom from the employment consequences of that speech.

Better Trial Messages to the Jury.

02 Thursday Jan 2014

Posted by in Closing Argument, Jury Instructions, Opening Argument, Trial Tips and Techniques, Voir Dire

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Chunk Your Trial Message, by Dr. Ken Broda-Bahm, Persuasive Litigator

http://tinyurl.com/jvum7kj

Dr. Broda-Bahm provides excellent ideas for litigators on how to “chunk” their trial messages. -CCE

 Give me the bite-sized version, break it down into pieces, and tell it to me step-by-step. The brain loves to segment, and the process known as “chunking” seems to be a central part of how we recognize patterns, manage information, and form new insights. A recent perspective on the process is articulated by Cambridge neuroscientist Daniel Bor in his book, The Ravenous Brain (2012).

[I]t is one thing for the attorney to get that structure, and it is another thing for her listeners to get it just as well. Litigators and other communicators often believe that they’re breaking things down based on a clear, explicit, and meaningful structure, but their audience instead simply experiences a continuous and unbroken flow of information or arguments. Here are a few rules of thumb for making sure you’re actually chunking when you think you’re chunking:

  • It has to be simple (which usually means flat, without substructure, and limited to a manageable number of main points).

  • It has to be explicit (which usually means actually saying something like, “First point,” “Second point,” and “Third point”).

  • It usually should be previewed (“Tell them before you tell them,” unless you having a strategic reason for preserving a surprise).

Jury Selection – Pick The Person. Forget About Gender.

20 Friday Dec 2013

Posted by in Jury Selection, Trial Tips and Techniques

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Speak to the Person, Not the Gender, by Dr. Ken Broda-Bahm, Persuasive Litigator

http://tinyurl.com/nys9zy4

Dr. Broda-Bahm nails it in this post about focusing on the attitudes and experiences of each person on the jury rather than gender. -CCE

We have already, in several posts (here, here, and here) developed the recommendation to not conduct jury selection based on gender or other demographic elements, so I won’t repeat that recommendation here. Instead, I want to focus on the ways advocates should adapt without overcompensating for perceived gender differences. So here are a few suggestions for increasing your odds of speaking and seeing beyond the demographic.

No Whining in Opening Argument.

13 Friday Dec 2013

Posted by in Evidence, Making Objections, Opening Argument, Trial Tips and Techniques

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Don’t Whine About ‘Argumentative’ Demonstratives (and Argue Back Against Whiners), by Dr. Ken Broda-Bahm, Persuasive Litigator

http://tinyurl.com/kb35ho4