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

By Dr. Ken Broad Bahm: It can be a common experience during a mock trial. You have a mock juror who ends up being way too focused on what they don’t know. They understand that there are limits to how much detail you can get into within the constraints of a shorter trial simulation, but end up becoming obsessed with the witnesses they didn’t hear from, the documents they didn’t see, or the law they have not completely reviewed. So, despite you having spent a day or more conveying detailed information to them, and despite your goal of getting a

By Dr. Ken Broda Bahm: The pandemic has been a lesson in a lot of things, including the challenges of using persuasion to build common agreement. In some ways, the past few years serve as a social science laboratory that litigators can learn from. For example, believe it or not, early on there was an issue that Republicans and Democrats nearly agreed on: 91% of Democrats and 85% of Republicans agreed on staying home as much as possible to stop the spread of the virus. That was in April of 2020, and it changed quickly. The six-point gap became a

By Dr. Ken Broda Bahm: Chances are good you’ve heard about “ChatGPT” in the past week or two. Just speaking for myself, my newsfeed has included many articles, including some with ominous titles like, “Will ChatGPT Make Lawyers Obsolete? (Hint, Be Afraid).” If the topic is new to you, a quick definition is that ChatGPT is an Artificial Intelligence assistant that was made open and free for the public at the end of this past November, and it is way beyond Alexa, Siri, and the online “help” bots you’ve frustratingly interacted with in the past. ChatGPT provides an open service where you can make

By Dr. Ken Broda Bahm: Here’s a scenario that I’ve dealt with quite a bit recently. Counsel for plaintiff and defense both question a panel of prospective jurors, and in the process, we end up learning a good amount about the panelists’ experiences and views on the issues that might relate to the case. The individualized information we are getting provides a solid foundation for cause challenges and for the later exercise of peremptories. Then, when one member of the panel exits due to a hardship or a cause issue, another individual is pulled from the gallery and placed into

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”