Category Archives: Dr. Ken Broda-Bahm

January 11, 2018

Let the Judge Teach (and Not Just Recite) the Instructions

By Dr. Ken Broda-Bahm:

We all know what good teaching looks like. We remember it from school, or perhaps even from our own time as teachers. Good teaching breaks things down and makes them simple, at least at the start. Good teaching uses concrete and vivid examples and illustrations. Good teaching engages and adapts to the learners. Now, contrast that with the moments at the end of a trial when the legal instructions are given to the jury. There’s no comparison. The judge sits on the bench giving a bald recitation of a dense text: no illustration, no adaptation, no engagement — it is the opposite of teaching. It protects you in the event of an appeal, but it is pretty unlikely to give jurors a useful, accurate, and memorable understanding.

As many have observed, that is doing a disservice to those who sacrifice their time for jury duty. And there may be a better way. A recent article by Fox Rothschild partner, Jeffrey M. Pollack, in the New Jersey Law Journal, carried by Law.com, is entitled “Helping Juries Succeed.” Along with a number of other suggestions, Mr. Pollack argues that parties should be open to the idea of the judge taking a more active and conversational approach in explaining the instructions to the jury, like a teacher would, instead of just reciting the pattern instructions. There are obviously some protections that would be needed, but I think that is an idea worth trying. In this post, I’ll share Mr. Pollack’s proposal and rationale, and also supplement it with some of my own ideas for harnessing the educational advantages while still protecting the case on appeal.

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December 14, 2017

Account for Social Facts

By Dr. Ken Broda-Bahm:

For those defending the reality of human-induced climate change, it is a familiar datapoint: A consensus of 97 percent of climate scientists supports the conclusion that our species is contributing to global warming and other effects on the climate. Climate change skeptics, of course, have their own consensus: a “Petition Project” including some 31,000 who say there is “no convincing evidence.” The latter has been debunked on the basis that signers to the document don’t have to be climate scientists, or necessarily scientists at all. But one might be understandably cynical about whether either side’s consensus figure is going to be convincing to the other. After all, attitudes like these tend to have a documented self-sealing nature, since the presentation of information that might threaten my worldview tends to create a motivation to debunk that information, and that exercise of motivated debunking just makes the original belief even stronger.

Based on recent research, however, there might be an exception to this self-sealing belief system. Based on recent findings of researchers from George Mason and Yale Universities (van der Linden, Leiserowitz, & Maibach, 2017), when presented with information of a consensus, study respondents are more likely to shift their own views in the direction of the perceived norm. Not all of them will do that, of course, but a substantial number, particularly among conservatives, do seem to be influenced by the consensus. This finding, described in a recent release in ScienceDailypoints to a rare bright spot on our current ‘Alt-Fact’ horizon, and it carries some implications for the legal persuader who will sometimes need to win over the skeptical judge or juror. 

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December 8, 2017

When Preparing to Present, Talk, Don’t Read

By Dr. Ken Broda-Bahm:

In my line of work, I find myself on my feet giving presentations quite often: marketing talks, CLE seminars, strategy sessions. I prepare for those opportunities pretty extensively, but here is one thing I don’t do as part of that preparation: I don’t sit and review my notes. I do prepare notes, and I do make sure that I devote plenty of time to planning out what I’m going to say, for example, when a given slide is on the screen. That’s especially true since I don’t believe in text-heavy slides that, in effect, put the speaker’s notes up on the screen. So, the content is always planned out. But once I’m done writing those notes, I don’t passively read them. Instead, if I have time, I’ll practice the presentation on my feet — using notes when I need to, but purposefully weening myself off those notes.

And, if I don’t have time to practice on my feet, I’ll do the next best thing. I’ll record my presentation using a digital recorder, or these days, my phone, and then I will listen to my own presentation several times as I’m doing other things, like shaving or driving to work. It is my belief that this form of review and practice is much better than silent study. It gets me more quickly to the point of being familiar with the content so I can deliver it extemporaneously, and it builds confidence. That has been my experience, and now there is research to back it up. Two memory researchers from Canada (Forrin & MacLeod, 2017) conducted an experiment showing that there is a memory advantage when saying words aloud, as opposed to hearing them or reading them. And the next best thing to actually saying them out loud is to hear them, not just in anyone’s voice, but in our own. In this post, I’ll briefly look at why that is the case, and share some rehearsal tips.

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November 30, 2017

Complete the Confidence Checklist

By Dr. Ken Broda-Bahm:

When an audience decides whether someone is credible or not, what do they look for? To a large degree, they look for confidence. In some ways, confidence can be viewed as performed credibility. Someone who is telling the truth is confident. Someone who is winning is confident. Of course, we know that neither of those statements is necessarily true, at least not all the time. But what matters is how the message is received. And in human communications, confidence is one of the most important external markers. Whether a speaker’s confidence is merited or not, viewers interpret confidence as a sign that a source is certain, and as an indication that the content is worthwhile.

For those reasons, the display of confidence is a necessity for attorneys, witnesses, and even for others in the courtroom who assist or sit at counsel table. While we might think that confidence is a feeling, at the end of the day and in the way that matters most, it is a behavior. And whether in deposition or trial testimony, opening statements or closing arguments, oral arguments, negotiations, or meetings, that behavior needs to be on display. In this post, I’ll share seven factors that serve as a kind of checklist for confident communication.

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November 24, 2017

Experts, Tell a Visual Story

By Dr. Ken Broda-Bahm:

When you think of science, do you think of dry research articles, charts and graphs that take a good deal of explanation in order to get to a point? Or do you think of Neil DeGrasse Tyson explaining the Cosmos with the help of clear but sophisticated video and graphics? If it is your goal to connect with an audience of non-scientists, like a jury for example, then your choice ought to be for something closer to the latter. A science-educator like Tyson, who uses all the tools available, is in a better position to make the material not just informative, but engaging and emotional as well.

In a past post, I shared the example of a four-minute video from Tyson on the science of public understanding of science, specifically. That video nicely illustrates the thesis of a group of researchers from Griffith University in Queensland, Australia (Czaran, Wolski & Richardson, 2017). Their paper, like this post, probably should have been a video, because it makes the case that researchers should stretch themselves to step outside the typical forms and outlets of the academy and should tell the story of their research, and use modern media to do so. That advice to distill the research outcome to “short, relatable, digestible, and engaging visual products” applies to expert witnesses as well. This post shares a few of their conclusions, based on their 12-month review of a new service designed to encourage researchers to use audio-visual media to tell their research story as they apply to the testifying expert.

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November 9, 2017

Preserve a Place for Spoken Persuasion

By Dr. Ken Broda-Bahm:

A fair proportion of the legal advocacy in America today is taking place via written communication. With only a small percentage of cases actually ever seeing a jury — three percent, or less — cases are more and more often reaching their ends based on written motions. Summary judgment decisions are often decided based on briefing, and in settlement negotiations as well, it can often come down to letters and emails ferried back and forth between the parties. There is obviously still a place for trial and oral argument, still a role for the advocate standing at the lectern and facing the fact-finders. And there is also clearly still a role for passionate and powerful face-to-face negotiations in pursuit of settlement. But is there a danger in the continuing drift toward replacing oral advocacy with written advocacy, as briefs and letters more often displace the spoken word?

I’d argue that yes, there is. Verbal communication is not just a delivery system, and oral advocacy doesn’t just involve speaking the words that would fare just as well on paper or on a screen. Instead, I believe that there is a unique component that is only conveyed in spoken persuasion and advocacy. You might think that the same content can be effectively conveyed in writing, perhaps with even greater care, control, and convenience. But what is missing? In large part, it is the human  factor. And now there’s a study to prove that. In an article in the current Psychological Science, researchers (Schroeder, Kardas, & Epley, 2017) demonstrate that hearing an opinion spoken has a uniquely humanizing influence on perceptions of the source. When compared to the same message delivered in writing, the spoken message is more likely to generate empathy. “If mutual appreciation and understanding of the mind of another person is the goal of social interaction,” they write, “then it may be best for the person’s voice to be heard.” In this post, I’ll discuss the study and share three quick thoughts on preserving the role of spoken advocacy in litigation.

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November 6, 2017

Expect Empathy to be Driven by Similarity

By Dr. Ken Broda-Bahm:

On October 1st, a gunman opened fire on a crowd of concert attendees, injuring nearly 500 and killing 58. In response, the President offered condemnation and condolences, but said the event should not be politicized and offered no policy changes. Thirty days later, a man drove a rented truck through a crowded bike and pedestrian area, injuring a dozen and killing eight. In response, the President used executive power to further increase vetting of foreign immigrants, called for an end to diversity-based immigration, and intensified his emphasis on a Southern border wall. Then yesterday, a gunman killed at least 26 in a Texas church, and the President was back to the more general message: Americans should “stand strong,” but no policy changes are needed. Why the difference? One explanation is that, in the first and third instances, the perpetrator was native-born and white, but in the second instance, the perpetrator was an immigrant from Uzbekistan.

No one, including the President, is going to consciously decide, “Well, the white shooters are more similar to me than the New York driver, therefore, despite the greater carnage, I will have a less-intense reaction to those cases.” However, there is good social science to support the idea that this is exactly what is going on, at least in part. When it comes to evaluating both those who have done wrong and those who are the victims of that wrongdoing, our reactions will be strongly influenced by our empathy, which is in turn strongly determined by similarity. In other words, we are less punitive when the perpetrator is like us, and we are more punitive when the victim is unlike us. In this post, I’ll share some recent research on this tendency and discuss the implications for legal persuasion.

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November 2, 2017

Address the Silence of a Delayed Harassment Claim

By Dr. Ken Broda-Bahm:

Sexual harassment is a constant issue. But sometimes there is relative silence on the subject, and sometimes there are waves of attention. Right now, one of those waves seems to be cresting. With the repeated harassment claims and settlements at Fox News, and the number of women accusing Hollywood producer Harvey Weinstein — a number now approaching triple-digits and including some very familiar names — the focus of attention is broadening to include many other harassers in the media, politics, the arts, and academics. The attention has spawned a “MeToo” hashtag campaign, with an unprecedented number of women from all walks of life stepping forward to publicly share their experiences as a target of sexual harassment or abuse.

In the workplace, harassment is disturbingly common, with one recent report (Rand, 2017) indicating that nearly one in five say they face a hostile or threatening social environment at work. And always, when people come forward days, years, or even decades after the harassment, the question is, “Why did you wait so long?” But as the high-profile scandals continue to receive attention, and especially as more and more women come forward and share experiences that they did not necessarily report or pursue at the time, I believe that the reasons for the silence are becoming more public, and potentially more understood and accepted. We will need to wait to see if attitudinal data bear this out, but anecdotally at least, the general public is getting a more detailed lesson than it has gotten in the past on why harassment targets are sometimes silent. The issue is broad enough to potentially change the climate for plaintiffs and defendants in workplace harassment claims. In this post, I will look at some of the reasons getting greater attention, and the messages they carry for litigation.

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October 30, 2017

Don’t Corrupt Your Credibility

By Dr. Ken Broda-Bahm:

As special counsel, Robert Mueller, files the first charges stemming from the investigation of events surrounding Russia’s involvement in our presidential election, the issue of corruption touching on the government looms large. In Chapman University’s  2017 “Survey of American Fears,” just released in time for Halloween, the results put “corruption of government officials” at the top with fully 74 percent of the population reporting that as one of their largest fears. There is probably a political explanation for that figure, as a distrust of officials is now uniquely shared by both the anti-Washington populists who swept Trump into power as well as those on the other side who doubt the honesty and ethics of Trump and those in his administration.

But corruption isn’t just a political concept. Thinking of the word “corruption,” it connotes something that has become impure or has begun to rot. The dichotomy of purity versus corruption is one of the universal values that academics have identified as forming the substrate of most of our political positions. Explained in Jonathon Haidt’s book The Righteous Mind (2012)the dichotomy between purity and degradation has deep roots in human civilization, likely originating as a reaction of disgust to unfamiliar foods or pathogens, and extending to perceived outsiders or to anyone who potentially threatens our symbolic order. “The psychology of sacredness helps bind individuals into moral communities,” he writes, “When someone in a moral community desecrates one of the sacred pillars supporting the community, the reaction is sure to be swift, emotional, collective, and punitive.” In a courtroom, an appeal to what is sacred could involve any of the symbols that relate to a process that society holds in high esteem. That includes the obvious symbols – the bench, flag, or oath – but also includes some of the practical ingredients that lend legitimacy to the system, like the idea that parties are acting aboveboard and are trying to give the fact finders what they need to reach a sound decision. All of the players need to be mindful of that and avoid any messages that corrupt that purpose.

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October 23, 2017

When Assessing Emotions, Listen, Don’t Look

By Dr. Ken Broda-Bahm:

It was written all over his face.” That’s what we say when we think someone’s expression has told a truer tale than their words. It is the kind of statement that shows that we naturally pay a great deal of attention to the face when we are trying to assess emotion or credibility. But maybe we pay too much attention. According to research reviewed in a recent post in Psyblog, it is actually the tone of voice and not the face that does the better job of accurately conveying emotion.

The study (Kraus, 2017) shows people actually read emotions more accurately when listening and not when looking at faces. Over the course of five experiments involving over 1,772 participants, Dr. Michael Kraus looked at the ability to accurately empathize under three conditions: while looking at and listening to a subject, while just looking, or while just listening. The third condition won out, and accuracy was best when the research participants were just listening and not when they were just watching, or listening and watching at the same time. Similar results have been found in other studies. But why would less information be an advantage? Kraus suspects it is because people are better at hiding or faking emotions via the face rather than the voice, and listening and watching at the same time is cognitively complex, which causes the more reliable signs in the voice to be outweighed or missed. “Actually considering what people are saying and the ways in which they say it can,” Kraus notes, “lead to improved understanding of others at work or in your personal relationships.” It can also lead to better client assessment and witness preparation, as I’ll share in this post.

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