By Dr. Ken Broda-Bahm: Right now, we are in a liminal moment with technology. No, I’m not talking about the new Apple goggles, necessarily, but about seemingly sudden emergence of engines like ChatGPT, which have opened a lot of possibilities on where it is likely to go. The proverbial jury is out about how and when generative artificial intelligence will be changing our lives. Many seem to prosthelytize a bright future with many human tasks being eased, while many others are issuing dire warnings about reduced human creativity and a slipping grip on reality. Amid the intellectual turmoil, one truly

Dr. Ken Broda-Bahm: You’re in the first moments of jury selection, looking at the pool of fresh and still-unknown panelists. At this early phase, those who are talking or itching to talk are, without fail, those who want out: They’re self-employed, have significant work responsibilities coming up, are booked for an upcoming vacation, or all of the above, and they want you and the judge to know it. The rest of the group, however, is settled in, apparently focused on just getting through this exercise with a minimum of attention directed at them. They are keeping quiet and they’re not eager

By Dr. Ken Broda-Bahm: It’s probably one of the most unfair biases, but also one of the most ingrained. Human beings prefer attractive people over unattractive people, and that is likely tied to our evolutionary biology. Referred to sometimes as “lookism” the bias confers a number of advantages on those who are socially perceived to be attractive. Ultimately, it boils down to much more than just a preference in partners. There is also a “halo effect” that creates a tendency to attribute a wide variety of other positive traits to those who are viewed as attractive. They’re seen as being

By Dr. Ken Broda-Bahm: When it comes to sizing up our potential jurors, we are used to looking at their politics. Both conventional wisdom and practical experience suggest that conservatives are more likely to prioritize individual responsibility while liberals focus on social responsibility. That means that in many cases — not all, but many — political leaning plays a role in how a juror might assign responsibility in a civil case. Increasingly, though, there is a need to look beyond the liberal/conservative binary to see meaningful divisions within the two sides of the spectrum. Particularly among Republicans, there is an

By Dr. Ken Broda-Bahm: Here’s one area where there’s a conflict between social science and practical intuitions: Should the civil defendant offer their own damages number to anchor jurors on a lower amount? The social science on the subject is relatively clear: If the jurors get to the point of awarding damages, a lower number from the defense will help keep the award lower than it otherwise would have been. But in practice, defendants can be reluctant to offer that number, fearing that it will look like the defense concedes the point that damages should be awarded, with the alternate

By Dr. Ken Broda-Bahm: After threatening that me might end his musical career if the jury went the other way, popular musician Ed Sheeran can now continue his line of work. According to a federal jury in New York earlier this month, Sheeran’s 2014 song “Thinking Out Loud” did not copy the musical structure of Marvin Gaye’s 1973 classic, “Let’s Get It On.” As one of the most highly-watched artistic copyright cases in many years, the trial was broadly seen as setting the course for other cases. Sheeran, however, succeeded in convincing the jury that his song was made up of “common building

By Dr. Ken Broda-Bahm: The importance of including graphics when presenting to a judge or jury is understood these days. Still, I think the design and execution of these graphics can be too often treated as an afterthought. Instead of using a timeline as a central and fundamental way of structuring the case for fact-finders, it is developed at the end and treated as a plug-and-play addition to an already-developed trial story. You might create a diagram showing the key case concepts and relationships as a way to visually spruce up the verbal presentation instead of using it as a

By Dr. Ken Broda-Bahm: Negligence is supposed to be a determination of action, not intention. Looking only at outward conduct, jurors in a negligence case are typically asked to decide whether an act, or a failure to act, was reasonable, and in line with what reasonable peers would have done in a similar situation. The intention or mental state of the actor is not supposed to matter in that determination. At least, that is what the law says. But among those who study jurors and other decision-makers, there has been a strong suspicion that this ignores a practical reality. Jurors

By Dr. Ken Broda-Bahm: Trial lawyers arguably wear two hats. The first hat is that of the advocate — zealous, convinced, and laser-focused on their client’s best case. The other hat, though, belongs to the counsellor who assesses the case and advises the client — sober, grounded, and realistic. It takes the advocate’s hat to get through discovery and trial, but it takes the counsellor’s hat to weigh in on whether the case should be settled prior to trial. The two mindsets are obviously in conflict, but lawyers have the training and experience to set aside the adversarial mindset in

By Dr. Ken Broda-Bahm: For some attorneys on the defense side of civil litigation, there can be something I call the “adversarial impulse,” which is the belief and behavior that, “If it can be denied, then deny it.” The most seasoned trial lawyers, however, know that it doesn’t always pay to fight every battle. Not only are some battles unlikely to be won, but fighting them can actually make your situation worse One area where practical strategy can often run up against this adversarial impulse is the decision on whether to concede liability. Sometimes that decision is patently obvious, and sometimes