By Dr. Ken Broda-Bahm: The importance of including graphics when presenting to a judge or jury is understood these days. Still, I think the design and execution of these graphics can be too often treated as an afterthought. Instead of using a timeline as a central and fundamental way of structuring the case for fact-finders, it is developed at the end and treated as a plug-and-play addition to an already-developed trial story. You might create a diagram showing the key case concepts and relationships as a way to visually spruce up the verbal presentation instead of using it as a

By Dr. Ken Broda-Bahm: Negligence is supposed to be a determination of action, not intention. Looking only at outward conduct, jurors in a negligence case are typically asked to decide whether an act, or a failure to act, was reasonable, and in line with what reasonable peers would have done in a similar situation. The intention or mental state of the actor is not supposed to matter in that determination. At least, that is what the law says. But among those who study jurors and other decision-makers, there has been a strong suspicion that this ignores a practical reality. Jurors

By Dr. Ken Broda-Bahm: Trial lawyers arguably wear two hats. The first hat is that of the advocate — zealous, convinced, and laser-focused on their client’s best case. The other hat, though, belongs to the counsellor who assesses the case and advises the client — sober, grounded, and realistic. It takes the advocate’s hat to get through discovery and trial, but it takes the counsellor’s hat to weigh in on whether the case should be settled prior to trial. The two mindsets are obviously in conflict, but lawyers have the training and experience to set aside the adversarial mindset in

By Dr. Ken Broda-Bahm: For some attorneys on the defense side of civil litigation, there can be something I call the “adversarial impulse,” which is the belief and behavior that, “If it can be denied, then deny it.” The most seasoned trial lawyers, however, know that it doesn’t always pay to fight every battle. Not only are some battles unlikely to be won, but fighting them can actually make your situation worse One area where practical strategy can often run up against this adversarial impulse is the decision on whether to concede liability. Sometimes that decision is patently obvious, and sometimes

By Dr. Ken Broda-Bahm: There are many phases to a trial. Some of those phases are just for lawyers, but some of them really should include the clients as well. The voir dire process, where the ultimate jury is selected, is one of those latter phases. The clients for all parties should be there. But I’ve noticed a disturbing trend in my own cases — in the last three picks, in three different states, the Plaintiffs themselves attended none of the jury selections. In those cases, I was working for the Defense, and we had a client representative present and

By Dr. Ken Broda Bahm: There is a common perception that when you apologize, it means you’ve done something wrong. The Latin “mea culpa,” after all, means “through my fault.” In a litigation context, that perception on the part of lawyers and insurance companies can lead to the belief that you should avoid apologizing if you don’t want to accept liability. But we know from the research that an “I’m sorry” can do a lot of good: Psychologically, it can be satisfying for a victim, and persuasively, it can help boost the credibility of a source. And for some cases,