Tag Archives: Litigation

September 1, 2014

Consider Confidence

By Dr. Ken Broda-Bahm:

In foreign policy, the projection of certainty and confidence can be as important as the strategy. On that score, it hasn’t been an easy few weeks for the Obama administration. While some find it refreshing for leaders to avoid quick bravado in response to complex world events, others have attacked everything from the President’s choice in suit color (“The Audacity of Taupe”) to the admission of a lack of strategy in response to events in Iraq and Syria. Critics argue that this lack of confidence projects uncertainty which weakens our position and emboldens our enemies. And there is another area where a lack of confidence can do the same: trials. When an attorney or witness conveys discomfort, uncertainty, or a lack of confident composure, jurors and judges will take that as a reflection on the case. Even when we know it isn’t true, we act as though it is: Winners are confident and losers aren’t.  Continue reading

July 14, 2014

Your Message Sequence: Go Big Then Get Small

By Dr. Ken Broda-Bahm:

Here is an important technique. Experienced persuaders may already have it internalized, but it still helps to make it explicit and look at why it works. The technique is this: Begin ‘big’ with an abstract statement (This is a case about a betrayal of trust) and then get ‘small’ by filling in the details (So let’s look at exactly the steps in which that betrayal occurred…). That sequence contrasts with the rational legal model which might prefer stacking detail upon detail until it finally reaches a conclusion. In spoken communication, the idea of leading with the broad statement works for the same reason it works to have headings in your written communication. Longtime readers of this blog know that I like headings. In addition to framing and breaking up a post, they also help the “skimmers” who want to broadly understand the focus of a post before they commit to reading it. Continue reading

April 21, 2014

Treat Body Language as Unproven, Yet Trusted

By Dr. Ken Broda-Bahm:


On a recent trip returning to the U.S., I was eyed closely as I answered a series of apparently mundane questions from the uniformed American agent. Where was I born? Where do I live in the U.S.? How long had I been gone? What cities had I visited? And so on. My interviewer may have been a “Behavior Detection Officer,” a role described in a recent article in The New York Times focusing on the program in which the Transportation Security Administration (TSA) invested over $1 billion in order to train screeners to read body language in order to identify potential terrorists. By checking to see who seems stressed, who is blinking too fast, who is averting their eyes or looking up and to the left, the trainers and their government pupils believe that they can improve their odds at spotting liars. But after a review, the Government Accountability Office (GAO) is recommending that the program be cut off, for one simple reason: It doesn’t work. A thorough review of the science, including a review of more than 200 studies (Bond & DePaulo, 2006), the conclusion is that people are notoriously bad lie detectors, and training just seems to serve to increase people’s confidence in their lie-detecting ability, but not their actual performance in it.  Continue reading

December 30, 2013

Chunk Your Trial Message

By Dr. Ken Broda-Bahm:


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). According to Dr. Bor, this ability to chunk is a key feature — perhaps the key feature — in human consciousness. “The process of combining more primitive pieces of information to create something more meaningful,” he writes, “is a crucial aspect both of learning and of consciousness and is one of the defining features of human experience.”  Continue reading

December 26, 2013

Defendants: Be the Mongoose

By Dr. Ken Broda-Bahm:


What does it take to beat a reptile? In most cases, a mongoose will do the job. As attention to the Reptile perspective on plaintiffs’ advocacy has been growing, an interest in the best modes of defending against it has finally started to catch up. The “Reptile,” of course refers to the David Ball and Don Kennan approach of reforming the plaintiffs’ trial strategy based on the belief that a “reptilian brain” will be motivated by appeals to personal safety and security, and these basic needs will drive the more advanced and cerebral regions of the mind. I’ve written about the approach on a few prior occasions (see ‘related posts’ section below) and also authored a piece for The Jury Expert. The readership of those articles suggests that defendants are taking a new interest. The handbooks, articles and seminars, however, are not yet available to defendants at a level that comes even close to matching what the Reptile-Plaintiffs’ bar has to offer.  Continue reading

December 16, 2013

Stop Trying to Adapt to ‘Left-‘ or ‘Right-Brained’ Jurors

By Dr. Ken Broda-Bahm:

Okay, let’s line up: Emotional people on the right, logical people on the left. Where would you line up? Too simple? Turns out it is. The idea of classing people in broad categories like emotional/logical, creative/analytic, or “left-brained”/”right-brained” is a staple of folk psychology commonly applied to the task of audience analysis. The brain difference in particular is a common enough reference point that it no longer may be necessary to point out the association between the emotional, intuitive and creative right-brained thinker and the logical, mathematical, and analytic left-brained thinker. The terms have naturally bled into juror analysis as well, with some commentators suggesting that speaking to the left- or right-brained jurors can be an important step in courtroom persuasion. It turns out, however, that we simply aren’t either left- or right-brained. The theory was never very well-supported, and now a new study has used fMRI imaging to show that it is flat out wrong. Continue reading

December 12, 2013

Don’t Whine About ‘Argumentative’ Demonstratives (and Argue Back Against Whiners)

By Dr. Ken Broda-Bahm:


I have a few pet peeves. Some relate to language (don’t say “literally” when you mean “figuratively,” and don’t say “jive” when you mean “jibe”). Those I can live with. But a larger pet peeve that I have trouble living with relates to demonstrative exhibits in the opening statement. Or, more specifically, it relates to how frequently and how easily good demonstratives are yanked out of an opening statement because they are “too argumentative.” Listening to opposing counsel playing the “argumentative” card, I feel like repeating that line from The Princess Bride: “You keep using that word. I do not think it means what you think it means.” Though it is not inconceivable that a demonstrative could cross the line in various ways, I do think that the label “argumentative” has become a catch-all objection that really means something like, “that is a bit too effective,” or “that is likely to be persuasive,” or “I’d simply prefer that you not make the point in quite that way.”  Continue reading

December 9, 2013

Take Your Time and End Strongly (a Legal Lesson from Nelson Mandela)

By Dr. Ken Broda-Bahm:

There has been an appropriate swell of attention to the life and words of Nelson Mandela since the world leader’s death last Thursday. Less emphasized in the tributes is the fact of what Nelson Mandela was before he was a protest leader, then prisoner, then president, then father of a new South Africa. Before that, he was a lawyer. In fact, he founded the first black law practice in Johannesburg. That experience came to the fore in his 1964 trial in Pretoria for sabotage. Facing a potential death by hanging, Mandela addressed the court in a “Statement from the Dock.” Often it’s an occasion for an expression of remorse or a plea for leniency. But Mandela, the lawyer, turned it into a detailed factual and historical exposition seeking to make his case much as a closing argument does in U.S. courts.  Continue reading

November 28, 2013

Cultivate New Sources of Trial Experience (A Third Lesson from the ABA Journal’s Blawg 100)


By Dr. Ken Broda-Bahm:


Where does trial knowledge live now? As always, it is a safe bet that it lives in the hearts and minds of very experienced trial attorneys: Those who frequently see the inside of a courtroom and commonly take a case all the way to a jury verdict. But based on many reports, those “frequent triers” in the courtroom are more scarce than they were a generation ago, or even a decade ago. So the nature of what “trial experience” means is changing as well. To be sure, there are individuals, venues, and areas of practice where the jury trial is as alive as its ever been. But on the whole, particularly in the higher stakes civil litigation arena, the actual experience of taking a case to jury verdict is in decline. Cases that used to try, now settle, or get dispensed in summary judgment, or are never filed because tort reform has limited the potential return. Continue reading

October 21, 2013

Avoid Market Research Mistakes in Your Mock Trial

By Dr. Ken Broda-Bahm:

Market Research Sphere
In a recent piece in Forbes online, Roger Dooley tells his own story of a spectacular market research failure. His company was involved in metal sales and competed in a market with an overall price similarity. Thinking that their product had some quality advantages over the competition, the company wanted to charge a higher price. The market research they did showed that price came in dead last as a concern, with likely customers focused on quality, delivery speed, and customer service instead. With that reassuring message in hand, up went the price…and down went the sales. It turns out that price mattered after all, and it mattered a great deal. So why didn’t the market research catch that? Because there were at least two problems with the data they collected. One, they looked at attitudes and not behavior. People like to think that they’re not so stingy as to put price above quality, but in this case they did. Two, they failed to account for changed circumstances. Sure, price didn’t matter when all the suppliers were essentially charging the same price. But when one supplier started charging more, then suddenly price matters. Continue reading

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