Archives – Page 18 – The Red Well

A Matter of Perspective

March 30th, 2023|

A recent discussion with a client about his client’s (an insurance adjuster) reluctance to engage us for mock jury research is stuck in my mind. The adjuster, whose multiple bosses overruled in authorizing the expenditure on the mock jury research, remained adamantly against it as he did not believe the defendant had an liability such that the case was a slam dunk. When overruled, he stated that the only good outcome of the mock jury research would be a defense win to prove him right. To me, that is the ultimate bad outcome. The point of a mock trial

Address the Remorse Before Testifying

March 27th, 2023|

By Dr. Ken Broda Bahm: Lawsuits rarely occur as a result of something good happening. More often, there has been some kind of very bad outcome, maybe even a tragedy. For people who are close to the events that give rise to a suit, it can be hard to avoid absorbing and personalizing some of those negative emotions. For a witness called to testify in deposition or in trial, there might be a strong temptation to mentally reconstruct a bad event with a focus on how it could have been avoided. Maybe there is a tendency to blame yourself. Or

10 Years After, Part 2

March 23rd, 2023|

Working as a trial consultant has many unique factors that keep our lives interesting, and sometimes, frustrating. One factor is the time between when we are called on a case and when we actually do our work, such as a mock trial, and when that case goes to trial. I sometimes have attorneys ask me when they should call us about a case. My answer is EARLY. Call, put it on my radar and I’ll try to keep track of the case’s progress to know when it is ready for research. As I wrote this post, I thought of

Consider that the reptile might be rewriting the law

March 20th, 2023|

By Dr. Ken Broda Bahm: It has now been well over a decade since the “Reptile” emerged as a way of trying plaintiff’s cases. The approach — a mix of personalizing the case for jurors, reinforcing simple rules, and emphasizing safety as the top priority, all built on the foundation of a somewhat metaphorical appeal to protective features of our “reptile brains,” — is common in courtrooms and deposition rooms, and recognizable through questions like, “Wouldn’t you agree with me that a company should never needlessly endanger the public?” I think we now have the benefit of those years to say

Which jurors are most and least likely to harbor implicit racial bias? | Online Jury Research Update

March 18th, 2023|

While racial biases are often an uncomfortable topic to discuss in voir dire, jurors at least know whether they harbor explicit racial biases. By contrast, implicit racial biases lie outside of conscious awareness and so jurors often explicitly deny or reject in voir dire that they are racially biased when they nevertheless are influenced by implicit racial biases. Social science research has begun to identify those individuals who are more likely and those who are less likely to harbor implicit racial biases. Much of this research has focused on implicit racial bias against Blacks. Greenwald and Krieger explored how various

Top Reasons to Do Litigation Research

March 16th, 2023|

It seems that “top 5 or top 10″ lists are popular in many areas. They are often entertaining; the show “Family Feud” is built on them. Late night talk shows thrive on them, going back at least to Johnny Carson. Thus, I thought I’d list a few of the top reasons for conducting mock jury, focus group, and other related litigation research. Although they are many reasons, here are some of the most common reasons expressed by clients: 1) Evaluate the liability and damages issues in a case. This one is obvious, except that many times it has a back

Address Jurors’ ‘Too Big to fail’ resentment

March 16th, 2023|

By Dr. Ken Broda Bahm: At a mock trial the other day, one juror commented, “This is just like the ‘too big to fail’ thing… God, I hate that phrase. They think they’re above the consequences of their actions, and they don’t need to do anything about it!” Yes, banks and bailouts are back in the news. But that attitude doesn’t just apply to financial institutions. Interestingly, in the case of the mock juror’s comment, it was being applied to a large municipality. The factors that drive juror resentment towards the notion of “too big to fail,” isn’t just banking,

Keep Your Mini-Opening to its proper purpose

March 13th, 2023|

By Dr. Ken Broda Bahm: As part of the voir dire process practiced in most California state courtrooms, the step of allowing each side to make a mini-opening before questioning is becoming more common. That is decidedly less so in many other states, where judges (with at least a little justification) might be thinking, “I already hate it with counsel tries to sell their case in voir dire, and adding a mini-opening would just do more of that.” I believe that reaction, however, applies to the wrong way to do a mini-opening. The problem may be in the name itself.

Do trial court judges exhibit less gender bias than jurors when making decisions? | Online Jury Research Update

March 10th, 2023|

Gender is at the heart of many legal cases, including employment cases alleging gender discrimination and family law custody disputes between a mother and father. Unlike most jurors, trial court judges have substantial subject-matter and decision-making expertise to serve as a buffer against decisions reflecting their personal gender ideologies (e.g., traditional, non-traditional). Are trial court judge decisions less likely to exhibit gender bias than decisions of jurors? Miller (2019) compared the decision-making of 619 trial court judges in a state (69% of all trial court judges in the state) to 500 members of the public of jury-eligible age. Both groups

‘De-Normalize’ Hindsight

March 9th, 2023|

By Dr. Ken Broda Bahm: When you’re analytically-minded, and have at least a little bit of training in logic and argument, then you might be tempted to think it is enough to name a logical fallacy or cognitive bias. After all, what rational audience would want to follow flawed reasoning? But just calling it out isn’t a reliable way to argue in most settings. Generally, you want to teach your audience to move away from the problem, and not just identify it. That approach applies to hindsight, maybe even applies particularly to hindsight. It’s not enough to counsel, “Focus only