Are multiple-defendant trials prejudicial to defendants? | Online Jury Research Update

February 28th, 2023|

n the interests of cost and trial efficiency, criminal defendants accused of involvement in the same crime, conspiracy or transaction can be tried together rather than separately. The bar for serverance is high and defendants are frequently tried together. Wilford and colleagues (2018) tested whether trying two defendants together increased conviction rates using separate mock juror samples, one of which involved jury-eligible community members who watched a video of a murder trial -- adapted from an actual criminal case and filmed in a moot courtroom -- that included openings, closings, both prosecution and defense witness testimony, and judicial instructions that

Damages: Guide Your Jurors so they get the ‘gist’

February 28th, 2023|

By Dr. Ken Broda Bahm: The damage amounts awarded by civil juries can sometimes seem to be random or capricious. Lawyers and insurance representatives arguing for a settlement will sometimes call it a “crap-shoot.” It is true that there is no precise predictability to it. When you have a chance to see mock jurors deliberate on damages, you will sometimes see numbers casually raised or dropped on what can seem like a whim. And in both mock and real trials, the jurors often complain that translating non-economic factors like pain or disability into dollar amounts is difficult or even impossible.

Are family members effective alibi witnesses? | Online Jury Research Update

February 24th, 2023|

Criminal defendants profering an alibi defense rely almost exclusively on person evidence (e.g., family and friends) to support their alibi, and are often unable to provide physical evidence as a form of support... Typically, alibis provided by close friends and family are less believable than alibis provided by strangers... The issue remains as to whether a motivated alibi witness such as a family member, even though less believable than other alibi witnesses, is worth proferring at trial... Eastwood and colleagues (2020) examined the effects of the relationship between a suspect and an alibi witness in two studies....

Adapt: Don’t ‘Dumb it down’ but do dial it in

February 23rd, 2023|

By Dr. Ken Broda Bahm: Many years ago, when I was still an academic and moving into the field of litigation consulting, I used to coach debate. Recently, a friend from that time told me that he is now coaching a program that includes a lot of inexperienced judges, including parents, and asked if I had advice on adapting to those judges. Specifically, he shared his debaters’ question of whether they should “dumb down” their arguments, or whether they should presume that these newer judges, despite being freshly exposed to the activity, could still bring high intelligence and attentiveness to

Be First to Frame

February 20th, 2023|

By Dr. Ken Broda Bahm: When you say you’re going to “frame” something in litigation — no, it doesn’t mean your going to blame the wrong person for a crime…necessarily — but instead, the cognitive use of that term refers to communication that encourages a particular way of viewing the events at the center of the case. It is a way of adding a reference point or a way of thinking about the central action in the story that encourages favorable interpretations while discouraging unfavorable ones. That choice of frame can play a critical role. For example, if there has

Be Professional

February 16th, 2023|

This is a topic I’ve had on my “to be written” list for a long time. I’m prompted to write it now based on having been on the client side of working with a lawyer. Having been the client of lawyers on several occasions, I can say I much prefer the relationship in which the lawyer is my client. In this case, my brothers and I engaged a lawyer to continue the estate planning work we started long before our parents passed away. The lawyer did a reasonably good job in the early planning phase, but as we learned after

Use Narrative Persuasion

February 16th, 2023|

By Dr. Ken Broda Bahm: It is safe to say that the advice to use narrative in litigation can now be considered common knowledge. In many ways, it has sunk in: You won’t meet a litigator who hasn’t been told to “tell a story” through their case. But in some other ways, it hasn’t sunk in enough. Too often, I see litigators who will tell the story during one segment of the opening — a section focusing on “Here’s what happened,” or introducing a timeline, perhaps. But this story is disconnected from the rest of their case. They don’t fully embrace the

Rethink the 20-Minute Opening

February 13th, 2023|

By Dr. Ken Broad Bahm: I have heard from many attorneys who believe that there is a correct amount of time for an opening statement, and that time is about twenty minutes. “If it’s much longer than that, you’ve lost the jury’s attention,” some will add.  At times, that limit is imposed or “preferred” by a judge, but more often, I believe that a short opening is self-imposed by lawyers who believe that an opening needs to be brief in order to adapt to the jury’s short attention span. In a way the notion that it needs to be pretty quick has

Biggest Marketing Changes in 30 Years

February 9th, 2023|

Recently, Melissa and I have been talking with a long time client about an issue we have, and he has, identified as being a challenge for us, and him, as a trial lawyer/mentor. That is, the “new generation” of litigators/trial lawyers lack experience with trial consultants. In a recent, eye-opening, conversation that included his young associate, the associate asked“what is a trial consultant?”. In some ways, this question takes me back to my early days in the trial/jury consulting business, and my attempts to craft an “elevator” speech to explain what we do. At that time, trial consulting was new

Credibility: Don’t Add the Halo Before You’ve Removed the Horns

February 9th, 2023|

By Dr. Ken Broad Bahm: The other day after helping select a jury, I stayed in court to watch the opening statements. Happily, the side I helped delivered a tight and simple theme-based opening that centered on two big problems with other side’s conduct. When it was our opponent’s side’s turn to open their case, however, they began early with the “He’s a good guy” speech: A local boy, grew up right here, achieved a great position through hard work, and strives to serve his clients and his business partners. All great things. The problem is that neither of the