By Dr. Ken Broda-Bahm:
Around the war room conference table, all of the eyebrows went up at once as I shared a recommendation for the opening statement. I can't share the idea without revealing the case, but suffice it to say that it was unorthodox. Several around the table shared that they had never done an opening that way before, and I countered that they had probably never tried a case with exactly these challenges before.
As much as litigators like to believe that they are at the cutting edge of persuasion, I've often found that they can be quite conservative in their approach, sticking to the same basic messages and approaches, and just altering the facts they feed into the formula in order to fit each case. We will say that we value creative ideas, but in our actions, we tend to prefer the "known" even when the known is known to have some problems. It turns out that this ambivalent attitude toward creative ideas is shared by the public at large. This post takes a look at a new research showing why we secretly fear creativity, and offers several recommendations for making sure that your trial preparation benefits from both the creative and the conventional.