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,

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.

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

By Dr. Ken Broda Bahm: New York Plaintiff’s attorney Ben Rubinowitz has written and presented over the years on an approach toward cross-examination using what he calls “Voice of Reason” questions. He was recently a guest on a podcast called “Unscripted Direct” (“Episode 48 – Bad Facts”) where he demonstrated the approach, which he describes as having the goal of “walking the witness down to a tight rope so when you finally push, the witness falls in the canyon of doom and there is no escape.” In an earlier article (Rabinowitz & Torgan, 2002) he writes, “The ‘voice of reason’ approach to cross-examination

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.

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

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

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

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

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