By Dr. Ken Broda-Bahm: When it comes to witness goals in deposition or in trial, I think there are many useful perspectives. But looking at the range of possible advice, I think there are two bad ends of the spectrum. On one end, there is woodshedding. Despite ethical considerations, attorneys can be swayed by a … Witnesses, Make This Your North Star: The Best Answer the Facts Allow Read More »
By Dr. Ken Broda-Bahm: The number of criminal indictments against Donald Trump is now up to four. In the self-sealing belief systems of some of the former President’s more zealous supporters, if prosecutors are going after Trump, that means they’re corrupt, and if judges are siding with those prosecutors, they’re also corrupt. And, by extension, … Don’t Dox Your Jurors Read More »
By Dr. Ken Broda-Bahm: I suspect there has never been any great love affair between attorneys in general and the jury pool. Jurors know that lawyers are there to influence them toward a desired result, and that’s typically met with suspicion. Similarly, corporate defendants also don’t tend to make a jury’s list of favorites. We’ve … Lawyers and Corporate Defendants – Expect a Little More Hostility from the Jury Box Read More »
By Dr. Ken Broda-Bahm: It’s one of the central contradictions of the law: we ask for and expect neutral and unbiased decision makers…and then we end up using humans. Those human fact-finders are almost inevitably going to have an individual form of perception or some level of partiality or bias. When it comes to the … Assess and Address Bias Using Four Steps Read More »
By Dr. Ken Broda-Bahm: “Social inflation” is a phrase that crops up these days when people are talking about civil damage awards. As an explanation for a wave in so-called “nuclear verdicts,” social inflation refers to the phenomena of typical damage award levels rising over time as the population gets more comfortable with those big … Account for ‘Social Inflation’ in Damages Awards Read More »
By Dr. Ken Broda-Bahm: At a national conference I spoke at earlier this week, one of the other presenters was Anne Marie O’Brien of Smith Pauley LLP, a very experienced litigator and mediator working out of Omaha, Nebraska. During her talk, she asked a room full of defense attorneys how many of them routinely made the … Defendants, Don’t Automatically Avoid the First Move in Settlement Read More »
By Ken Broda-Bahm: It hasn’t been the easiest year for America’s railroad companies. Last Fall, in the midst of an inflationary panic, a national rail strike threatened to disrupt the nation’s shipping system, before that was resolved through a combination of Presidential carrots and sticks. But that was all eclipsed just a few months later, … Expect Skepticism (and Some Support) for Railroads Read More »
By Dr. Ken Broda-Bahm: Persuasion is at the core of what litigators do, not exclusively, but particularly in court. Despite that, aspiring lawyers train on a legal model that emphasizes some aspects of persuasion (like evidence and logic) while de-emphasizing or ignoring other aspects (like emotion, salience, and motivation). In a recent article, “Persuasion Principles … Model Effective Legal Persuasion Read More »
By Dr. Ken Broda-Bahm: A mock trial is not a crystal ball with access to the ultimate result you’re going to see in a real trial. There are too many differences between the research situation and the full trial setting for those results to be considered reliable, including the individual make-up of the panel, the … Trust Your Mock Trial (to a Point) Read More »
By Dr. Ken Broda-Bahm: To be clear, testifying isn’t acting. Testifying is telling the truth. And with apologies to those who will point out that good acting is telling the truth as well, there are some important differences for the testifying witness, not least of which is that any appearance of artifice reduces credibility. Even … Witnesses, You’re Preparing for Improv, Not a Play Read More »