Tag Archives: juror bias

June 16, 2011

Spot the Jurors Who Feel Entitled to Award Higher Damages

By Dr. Ken Broda-Bahm –

Grasshopper
We all remember Aesop’s fable of the happy-go-lucky grasshopper who played away the summer while the ants worked industriously.  When winter came, and the hungry grasshopper ended up at the ant’s door, the moral of the story became clear:  entitlement, the feeling that the world owes you a living, will not get you through the winter. Continue reading

May 5, 2011

In Malpractice Litigation, Account for Jurors’ Motive to Trust the Doctor

By: Dr. Ken Broda-Bahm –

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There is a pattern in medical malpractice litigation: people want to trust their doctors. This pattern is something observed in our own experience, in human psychology, and in attitudes toward malpractice trials. Plaintiffs only win when jurors are able to overcome that trust. The best thing that doctor-defendants have in their corner is jurors’ strong pull toward trusting the doctor. Job number one in a medical malpractice defense is to avoid any behavior that could lead fact-finders to abandon that trust. Continue reading

December 27, 2010

Understand Juror Bias, But Bet On The Evidence

By: Dr. Ken Broda-Bahm –  Horse Races
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As closing arguments finished in a recent employment jury trial that I sat through, the defense team and I felt, predictably, that we had the overwhelming weight of evidence on our side of the case.  But still, we worried as the jury filed in to deliberate.  We had faced a Plaintiff’s case based on the single simple appeal that a big heartless company will always try to squash the little guy and cover up its tracks in the process, and supported that narrative with nothing other than the Plaintiffs’ own testimony and the attorney’s narrative skill.  The lack of evidence on the plaintiff’s side didn’t make us sanguine, because we well understood the potential for bias and knew that this basic story could play well with a population that has grown to expect the worst of big companies.  So it was to our great relief when the jury came back after about a day of deliberations with a defense verdict on all claims.  And it was not only relief, but also reassurance in the jury process itself.  While it is true, as we often tell clients, that anything can happen with a jury, it is also true that far more often than not, jurors come back with the verdict that you and I would expect based on a good understanding of the law and a fair-minded hearing of the evidence.  Continue reading

August 12, 2010

Remember That Argument Isn’t The Most Important Part of Closing

by: Dr. Ken Broda-Bahm

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The common wisdom is that closing argument it the time to, well, present arguments.  However, a sensitivity to your audience and to what jurors are trying to do during your closing argument, suggests that straightforward argument may not be the best way to help jurors feel like they’re 1.) coming to their own conclusions (which they desperately want to do), and 2.) able to convince opposing jurors during deliberations to come around to your favored verdict (which you desperately need them to do).  There is an alternate perspective, one that is based on jurors’ tendency to think in terms of stories, that arranges just the right pieces of the jurors’ trial memory, helping jurors arrive at and defend their own conclusions, while making sure that those are your conclusions as well. 

That alternative is substantially at odds with the traditions of closing that you may have learned in law school.  The common view is that closing argument is the time to put it together for the jury, and – now that the rules finally permit it – to argue, argue, argue.  The thinking is that after they’ve heard the evidence, jurors have all the pieces to the puzzle, but it is up to you, the smart and knowledgeable attorney, to arrange those pieces just right so they come out supporting your case.  But the logic of that approach can produce a scenario where you are arguing at the jurors instead of reasoning with them. Continue reading

August 5, 2010

Keep Your Burden of Proof in Your Back Pocket

by: Dr. Ken Broda-Bahm

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At the close of the corruption trial of former Illinois governor Rod Blagojevich for, among other things, trying to sell Barack Obama’s vacated Senate seat to the highest bidder, the defense surprised many by putting on no witnesses and by reneging on an earlier promise that Mr. Blagojevich would testify in his own defense, answering the prosecutor’s case.  When the defense instead decided to rest on burden of proof (the prosecution “proved nothing, attorney Sam Adam Jr. argued in closing), it was hailed as either a brilliant move or a shining mistake.  Now that the Blagojevich jury continues to deliberate, or is potentially hung agreeing on only two of 24 counts, the question is whether the result will confirm the traditional wisdom that a reliance on burden of proof is the law’s equivalent of a “hail Mary pass.”  Though the jury’s verdict in this case will relate to criminal charges, this traditional wisdom applies equally to the civil realm:  burden of proof is a strategy best kept in your back pocket: as a tie-breaker at best, but rarely as a central component of what you are offering to the jury. Continue reading

June 21, 2010

Take It From Rep. Joe Barton: Don’t Be A ‘Friend Of The Devil’

by: Dr. Ken Broda-Bahm

Ken_107 tight Here is a litigation lesson from the world of politics.  The Vice President, along with many other Americans, described it as ‘incredibly insensitive, outrageous, and astounding,’ but last Thursday, in the U.S. House of Representatives, Texas Congressman Joe Barton was facing BP CEO:

“I’m ashamed of what happened in the White House yesterday.  I think it is a tragedy of the first proportion that a private corporation can be subjected to what I would characterize as a shakedown — in this case a $20 billion shakedown.  … I’m not speaking for anybody else, but I apologize.”

Hours later, Representative Barton was taking back that statement in order to deal with the ensuing uproar from both Democratic and Republican circles.  

I apologize for using the term ‘shakedown’ with regard to yesterday’s actions at the White House in my opening statement this morning, and I retract my apology to BP.

What we see here is an unsuccessful attempt by Rep. Barton to reframe the issues.  On the 59th day of the continuing Deep Horizon oil spill, and two days after President Obama’s oval office speech asking BP to set up a $20 billion dollar fund in order to deal with the consequences of the oil spill, the Congressman seemed to sense a chance to focus the public’s attention on something other than the flowing oil, suffering wildlife, and spoiled beaches.  The President’s demand was unprecedented, and on the heels of an unpopular health care reform law and in the run up to a climate bill being successfully framed as an “energy tax,” the public might have seemed primed to accept Barton’s characterization of the fund request as yet another example of an outrageous power grab by the Democratic President.  Continue reading

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