Monthly Archives: January 2011

January 31, 2011

Test the Waters, but Don’t Assume that Bias is Forever: Deepwater Hasn’t Translated to Deep Trouble for Energy Defendants

By: Dr. Shelley Spiecker


Deepwater horizon


Six months after the public was riveted to press coverage of the oil spill in the Gulf, impact on energy defendants has been less doomsday than feared.  In fact, this is one of the better times in the past 10 years to be an energy defendant in front of a jury.  Why?  Much as the spill itself appeared to dissipate more rapidly than expected, the tide of public opinion has drifted away from concern over the environmental practices of energy companies, and toward concern over the economy.  A recent Pew Research Center survey found the economy was identified as Americans’ top policy priority for 2011 by 87% of respondents.  The public is also focused on resentment of what many perceive as a failure of government to fulfill the promises made in the 2008 election. Continue reading

January 27, 2011

Whose Risk Is This? Take Personal Responsibility in Sports Litigation

By: Dr. Kevin Boully 

There is danger in all sports, anyone who plays them takes that risk for themselves.”
-Mock Juror in recent sports litigation research

Bench press


Athletes choose to play sports that involve risk.  Athletic teams, coaches and organizations are aware of the risk just like players.  So, how much personal responsibility does an individual athlete have for safely participating in his or her chosen sport?  What must the player and the organization do to make sure all possible safeguards are in place to reduce risk?  Who should be held most responsible?

Jurors (and judges, arbitrators and mediators) confront these basic but critical questions in sports-related lawsuits like that of former college football player Stafon Johnson.  This week, Mr. Johnson sued the University of Southern California and ex-assistant conditioning coach, Jamie Yanchar, claiming negligence in the 2009 weightlifting incident that resulted in severe injuries to Mr. Johnson’s throat, threatening his life, ending his college football career, and potentially limiting his professional career. Continue reading

January 24, 2011

In Jury Selection, Pay All Kinds of Attention to the Man Behind the Curtain

By: Dr. Ken Broda-Bahm –



Watching the Wizard of Oz recently with my three (and a half!)-year-old daughter, we came to the familiar scene of the fearless Toto interrupting the Wizard’s speech by pulling back the curtain on a man furiously working levers and wheels.  When Dorothy and company ignore the instruction to “pay no attention to the man behind the curtain,” it becomes clear that what we see of the ‘wizard’ is an elaborate façade.  There is a similar façade at work during jury selection, as well as every other personal interaction:  we present a version of ourselves that comports with social expectations.  To those who research human attitudes, this is known as “social desirability bias,” and it is probably the biggest barrier between you and honest answers in voir dire. Continue reading

January 19, 2011

Keep Your International Arbitration out of the Tower of Babel

By: Dr. Ken Broda-Bahm –

Old Globe


So, a retired Brazilian judge, two American litigators, and three German engineers walk into a bar…  Okay, so it wasn’t a bar, it was an international arbitration, but the potential for miscommunication is just as great as the joke intro would imply.  This one took place in Sao Paulo, Brazil and it was preceded by a two-day mock arbitration that I facilitated in order to help our litigation team prepare the best arbitration case possible.  Any case that makes it to arbitration or trial faces its fair share of hurdles.  The need to teach, to leverage the best law, to overcome case weaknesses, to maximize strengths, and to wrap it all up in a convincing message, all adds up to a pretty tall order.  But, add to that the barriers of language and cultural difference, and the tall order becomes venti.

As legal disputes inevitably become more international in nature, arbitration emerges as one of the more critical ways to solve disputes that transcend borders.  As international arbitration increases, however, we can expect an increase in the challenges in just getting the message across.  In appreciating these challenges, consider a few things.  Continue reading

January 16, 2011

Don’t Advocate from a Position of Hate

By: Dr. Ken Broda-Bahm – Luther King cor 12



On some days, just watching the news can stop us cold.  Those who work in law should be proud to be part of a system that, however imperfectly, resolves disputes with appeals to reason and judgment rather than force.  But the opposite end of the spectrum was seen in last week’s devastating shooting in Tucson that left six dead and fourteen injured.  While the motives of the shooter remain hazy at the time of writing, one element seems clear:  for whatever twisted reason, the individual saw Congresswoman Gabrielle Giffords as an adversary.  Inevitably, that act has raised questions about the state of our national dialogue, and the civility, or lack thereof, of our current politics.  Whether the Tucson shooter is ever tied to the radical right, the radical left, or — as seems more likely given the history of past assassins — he is simply an attention-seeking loner who clothes his psychopathy in the guise of politics, the question of how we relate to a perceived adversary and address our differences in viewpoint remains a critical one.  Continue reading

January 13, 2011

Help Jurors Detect (or Protect) Holes in Expert Analysis

Courtney Love / Hole

by: Dr. Kevin Boully


Infamous rock singer Courtney Love is in trouble again.  Unless you’re her lawyer (or one of her forgiving fans)1, you are probably wondering what Love’s troubles have to do with your persuasive advocacy.   Fair question.  The Hole lead singer’s 2009 Twitter tirade against fashion designer Dawn Simorangkir made her a defendant in a defamation lawsuit that may be headed for trial in early February.2  Most importantly, Ms. Simorangkir has reportedly retained a social media “expert” to testify at trial about the damaging consequences of Ms. Love’s tweets to 40,000 plus followers.  Simorangkir will presumably rely on this expert to support a claim of punitive damages against Love.

So, we got to thinking:  what do jurors have to say about the believability of expert witnesses?

Continue reading

January 10, 2011

Count Your Plaintiffs Before Certification Hatches: Class Size Matters in Some Unexpected Ways

By: Dr. Ken Broda-Bahm –

hot chicks


When dealing with the number of plaintiffs in a class action, mass tort, or other large scale litigation, is “Super-Size Me” the plaintiff’s best choice?  At a legal level, the U.S. Supreme Court will get a chance to weigh in, after the decision last week to determine whether as many as 1.5 million female Wal-Mart workers claiming gender discrimination can be certified as a class (Dukes v. Wal-Mart).  The common belief is that a large number of plaintiffs serves to maximize the degree of harm that a jury is likely to perceive and amplify the amount of damages that individual plaintiffs receive.  But, does the research support it?   According to a recent series of experiments conducted at Northwestern University, the answer might well be “no.” Continue reading

January 3, 2011

Learn from Christine O’Donnell’s Possible ‘Witch Trial’: Be Cautious in the Court of Public Opinion

By: Dr. Ken Broda-Bahm – 

Enchanted Toad

When Christine O’Donnell, the Tea Party favorite who won the Republican nomination for a Delaware Senate seat before losing in November’s general election, received word of an U.S. Attorney’s Office investigation and possible charges stemming from misuse of about $20,000 in campaign funds to pay her personal expenses, she immediately took to the airwaves.  On a variety of network and cable news shows, she unequivocally denied the charges and went further to call the investigation “thug tactics,” and a politically motivated attempt to settle scores by enemies on the right and the left.  She does everything but call the investigation a “witch hunt”…but that is understandable since this is the same candidate whose troubled campaign was torpedoed when video surfaced showing a younger O’Donnell appearing on Real Time With Bill Maher claiming that she had “dabbled in witchcraft” and had to respond with a campaign advertisement beginning with the unforgettable declaration that “I am not a witch.”    Continue reading

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