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

By Dr. Ken Broda Bahm: When the other side has a powerful potential argument, but you get to go first, then you have a strategic call to make. Do you use the opportunity to get there first, address the issue before they can, and steal their thunder? Or do you wait them out, see what they have, and respond only after they’ve raised the issue? That question will come up in many scenarios. If you’re a plaintiff, then you are always deciding how much of the expected defense to address in opening and in your case. Or if you are

By Dr. Ken Broda Bahm: When you test a product to assess its performance and safety, of course you have very substantive reasons for doing that: You are aiming to check effectiveness, prevent harm, and protect the brand. When a trial occurs, however, that testing carries a symbolic message as well, with the message being that the manufacturer and seller is caring, careful, and serious. Even if something went wrong, and even if in hindsight there was some element that was incomplete in the testing, it still bolsters the company’s trial message to show that it has a comprehensive focus