By Dr. Ken Broda Bahm: Within the last few years, at least a few courts in the U.S. have started to wake up to some of the realities of the cognitive biases that can be an obstacle to a fair criminal or civil trial. For generations, courts have acted as though potential jurors could easily know and effectively shut off those biases. In many courts, of course, that is still the practice, with judges in effect clearing jurors with the question, “So you’re not biased, or you can set it aside? Good. Next.” But in a few jurisdictions, courts are

By Dr. Ken Broda Bahm: Every witness preparing for testimony is going to prepare a little bit differently. Those helping with that prep need to adapt to the unique challenges presented by opposing counsel, the case characteristics, the witness’s role within the case, and the witness’s personality and communication habits. But there are inevitably some common features and messages contained in that preparation session. One common feature is the need for witnesses to do some follow-up “homework” on their own. Not everything can be durably fixed during the constraints of a single meeting, or even a series of meetings. And

By Dr. Ken Broda Bahm: There is a danger in what I call the “product” orientation toward persuasion. That orientation focuses on persuasion as an outcome, as a discrete “thing” that is transferred from a sender to a receiver. The advocate in effect thinks, “I have something — it is called a correct opinion — and my mission is to transfer that from me to you.” In some ways, this product orientation is embedded in our language: We talk about how well we can “sell” an idea, or check to see whether our target is “buying” it or not. Instead of

By Dr. Ken Broda Bahm: Ladies and gentlemen of the jury, it did not have to end up this way. At many points in time, and at many places along the course of this story, the individual sitting here with opposing counsel could have made a different choice. He could have taken a different path. He had multiple opportunities to have avoided this result.  Let’s look at some of these paths not taken… Envisioning alternatives is an important persuasive tool, because determinations of responsibility often come down to the choices a party made, and whether they were the right choices. From

By Dr. Ken Broda Bahm: If a manufacturer rushes an untested new product to market, did they do it to realize a gain (let’s say to increase profits by expanding into a new market) or to prevent or mitigate a loss (maybe to protect the company against an economic downturn)? The difference in this case is not the act itself, nor necessarily the effects caused by the act. The difference is the way it is framed. We know that how we explain or contextualize an action shapes the judgments we make about it. For that reason, in litigation, choosing and developing

By Dr. Ken Broda Bahm: So we have made it through the 2022 midterm elections. As is typical, the party out of power seems to have made some gains, although so far at least, the  anticipated “Red Wave” doesn’t seem large enough to surf. Going into the election, the common wisdom was that that the broadly felt effects of a challenging economy (including rising prices for groceries and fuel, and a full one-third of Americans living paycheck-to–paycheck) predicted a bolder move away from the party in power. Instead, what we saw is that incumbents tended to get re-elected, red districts and states tended to

By Dr. Ken Broda Bahm: A bit like members of the armed forces, jurors are often thanked for their service. For the attorney, particularly in the opening moments of a trial, it is both common and important to make sure that jurors understand that you appreciate them serving, even though it is for little compensation, and often at the cost of great disruption to their lives. But stating respect is one thing, and showing it is another: As they say, actions speak louder. Jurors at the outset already feel a distance with lawyers. Lawyers are generally more educated, higher socio-economic status

By Dr. Ken Broda Bahm: The idea that “seeing is believing” is the kind of adage that can have more traction as a truism than as a research finding. But when it comes to truly appreciating the visual advantage in litigation, understanding the research can be helpful. In the case of a visual demonstrative that moves beyond the static display — a computer-generated animation — it is more helpful than you might think. A tool that illustrates the narrative you are trying to convey, that shows what you are trying to tell, can serve as a memorable and powerful tool of

By Dr. Ken Broda Bahm: Courts across the country are wading through the pandemic backlog. At both the state and federal levels, efforts to prioritize and to adapt have turned trial calendars into an elaborate and high-stakes guessing game about when and whether any given case will proceed to trial. Some I know have compared it to the “Whack-a-mole” game: just as one is going away, another is surprisingly popping up. Amid the chaos, there are some practical challenges for trial lawyers and in-house counsel. In the run-up to your trial date, “Go, baby, go” can suddenly turn into “Cool

By Dr. Ken Broda Bahm: There are a number of scenarios where race might matter to your case. Most obviously in the civil realm, these could be employment cases, police use of force cases, or claims involving unequal medical care or testing. In any number of other cases, race could come up as a factor that matters in the experience of your potential jurors. So trial lawyers need to be able to talk about race with some sensitivity. We know that the situation is primed for misunderstanding and defensiveness, and new research provides another example. A recent article in the publication