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

By Dr. Ken Broda Bahm: When the parties in litigation come together to talk about settlement, that might be seen as the “posturing phase.” Each side is trying to convey the strength and unassailability of their case, while predicting an inevitable victory in trial. Some of that might be considered the rational “puffery” that puts the facts in the best light. If that image management, however, reaches the point of outright dishonesty about your case, then it might be less effective than you think. Recent research shows that a party’s dishonesty in the context of a financial negotiation leaves that

By Dr. Ken Broda Bahm: For many years, the reliable bet was that a deep distrust of corporations, and what we might call an anti-corporate bias in a litigation context, is a left-wing phenomenon. While conservatives might generally hew to the sentiment behind the adage that “What’s good for General Motors is good for America,” the left would be the ones thinking that big business is too big, too powerful, and too unregulated. For many years as a litigation consultant, I have collected and followed the data on anti-corporate bias, and this belief was more often true than not. But that

By Dr. Ken Broda Bahm: If your opposing counsel has a flair for the dramatic, then at some point in the deposition or cross-examination, you might get to a question like, “So, if my witness says that didn’t happen, then you’d say she is lying, right?” What the lawyer is hoping for in asking a question like that is that you’ll back-track, or hesitate, or in some other way try to evade the accusation. Playing on our instinct for civility in the formal setting of testimony, the lawyer is trying for a cheap way to soften or introduce doubt about

By Dr. Ken Broda Bahm: The mantra when persuading juries, judges, and really anyone is often “Keep it simple.” That is for a good reason, and often the simplest way to tell a story is to begin at the beginning and end at the end, working your way straight through the events in sequence. At the same time, the popular dramas and storytelling that surrounds us in novels, movies, and television are replete with examples of alternate ways to tell a story to bring emphasis to a particular part. Shows like Lost or Breaking Bad as well as novels like Slaughterhouse 5 or It will play with the timeline as

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