By Dr. Ken Broda Bahm: Defendants in civil cases are often plagued by the reality that the “should have,” “could have,” and “would have,” aspects of the reasonable care all exist in the realm of hindsight. The tendency to believe that negative consequences are more knowable and preventable when viewed through the lens of a known outcome is a very human tendency, and hindsight bias is an exceedingly common factor in legal cases. The test that should have been run, the precaution that could have been spelled out, the design that would have worked better, all create a “creeping determinism”

By Dr. Ken Broda Bahm: For anyone analyzing audiences and preparing persuasive messages, it helps to know about what is called “System 1” and “System 2” thinking.  When we make decisions that are pretty quick and automatic, with little reflection, cognitive work, or even necessarily voluntary awareness, then we are using System 1. When we take the other path of making decisions based on careful mental efforts, including a consideration of evidence, reasons, and implications, then we are using System 2. Of course, there is a spectrum between the two, but these are useful polarities in thinking about how we

By Dr. Ken Broda Bahm: The last few years have seen a societal turn toward identifying and addressing systems that institutionalize discrimination based on race, gender, and other demographic traits. That attention is obviously a good thing. But one issue that has been caught up in that trend has been a call to eliminate the peremptory strike in civil and/or criminal cases. Several states are looking at the move, and Arizona has been the first in actually eliminating peremptory strikes in all jury trials. The argument has been that, because peremptory challenges have been used to discriminate, and because the

By Dr. Ken Broda Bahm: When jurors are awarding damages in a civil case, the law looks at what they’re doing in a binary way: They are either compensating the plaintiff for what they have lost, or they are awarding additional amounts to set an example. In short, anything outside of “making the plaintiff whole” is “punitive.” But jurors don’t necessarily look at it within those strict categories. Motivations to punish or “send a message” can often drive discussions of compensatory damages, especially in non-economic categories where jurors don’t have any concrete guideposts. More generally, jurors commonly want the damages

By Dr. Ken Broda Bahm: Our trial system is designed to restrict the factfinders’ information to that which is relevant, probative, and sound. When it comes to expert testimony, it is the responsibility of trial judge to ensure that the testimony has a reliable foundation. But in the case of science, particularly social science, that can be a challenge. I have written in the past on research showing that jurors are only partially effective at understanding basic research flaws and discounting dubious science, and judges are not necessarily better. That means that advocates often need to be the last line of defense

By Dr. Ken Broda Bahm: In the vast majority of my experiences with the legal system, attorneys and parties are painstakingly civil, as a rule. However, in my two most recent trials, there have been notable exceptions to this rule. In one case, opposing counsel, after making discovery a miserable process for both counsel and witnesses, could not resist directly insulting our attorney and calling our clients “liars” at every opportunity. In the other case, counsel was well-behaved, but the parties at the other side’s table could not resist making faces, muttering to each other, and in a couple of