This is Persuasion Strategies's Typepad Profile.
Join Typepad and start following Persuasion Strategies's activity
Join Now!
Already a member? Sign In
Persuasion Strategies
Practical tips on legal persuasion spanning pretrial and trial phases, for jury, bench, and arbitration settings.
Recent Activity
Image
By Dr. Ken Broda-Bahm: For an attorney taking a deposition or conducting a cross-examination in trial, there is one key word that describes that attorney's strategy: control. The questioning attorney wants, maybe needs, to control the witness in order to build useful testimony in a deposition or to highlight useful testimony in trial cross-examination. The more the witness is talking, the less control the attorney has. So there is a preference for leading questions that just call for a "Yes" or a "No." After all, the attorney has a lot more control when the witness is just affirming or denying... Continue reading
Posted 4 days ago at Persuasive Litigator
Image
By Dr. Ken Broda-Bahm: Take the Reptile seriously, but don't fear it. The en vogue strategic choice of the plaintiffs' bar, the idea that trial persuasion can be leveraged by careful and targeted attention to the fear impulse of the so-called "reptilian brain," (Keenan & Ball, 2009) is an idea that, regardless of its scientific foundation, carries a practical utility in encouraging advocates to focus on the central role of motivation. So in saying, "Don't fear the Reptile," what I am saying, in addition to giving a nod to one of the most cowbell-intensive songs in the classic rock canon,... Continue reading
Posted 7 days ago at Persuasive Litigator
Image
By Dr. Ken Broda-Bahm: In voir dire, sometimes you want to choose a strategic and indirect way of asking, and sometimes you just want to come straight out and ask the question directly. In an interesting illustration of the difference between the two, Jeremy Dean's Psyblog recently shared the story of what must have been a "slap-my-head" moment for the social scientists involved. You see, there has been a long-running interest in the psychology of narcissism, defined as self-centeredness combined with feelings of high entitlement and low empathy for others. But here is the funny part: For almost four decades,... Continue reading
Posted Feb 16, 2017 at Persuasive Litigator
Image
by Dr. Ken Broda-Bahm: For the witness preparing for trial testimony, there is one common piece of advice: Study your deposition. In preparation sessions, I will always stress this advice, noting that a thorough knowledge of the deposition is both your sword and shield during trial testimony. Not only does it avoid or blunt the effects of impeachment, it also helps in letting the witness know exactly where opposing counsel is going and why. Of course, most witnesses will review their deposition before trial. But, in my experience at least, fewer witnesses will study that deposition enough. Just having a... Continue reading
Posted Feb 13, 2017 at Persuasive Litigator
Image
By Dr. Ken Broda-Bahm: It is one of the earliest and most heartbreaking tactics that children learn: Because social connections are powerful, taking those connections away is a weapon. So kids are left out, not included, not talked to, ignored. Ostracism from one's peers may be a passive form of aggression, but it is a painful form all the same. And, like most of the other battles from the playground, it doesn't end with childhood. Based on some recent research, it continues in the workplace, and it does so at a level that managers and attorneys may not fully appreciate.... Continue reading
Posted Feb 9, 2017 at Persuasive Litigator
Image
By Dr. Ken Broda-Bahm: It is a common step on the road to trial or pretrial resolution: Have a mock trial! But as routine as that research step is, it is still never a small matter. The scope and scale of a mock trial varies widely, but it is not a small expense in either money or time. For that reason, it is important to get the most out of your investment. After a mock trial, it is typical for the follow-up report and discussions to focus on a breakdown of responses from the mock jurors, an analysis of what... Continue reading
Posted Feb 6, 2017 at Persuasive Litigator
Image
By Dr. Ken Broda-Bahm: Have you heard of a company called Cambridge Analytica? Well, chances are, they've not only heard about you, they know quite a bit about you. Until recent months, the company had been a little-known data analysis outfit based in London. But based on a number of reports, including a very informative recent piece in Motherboard, the group has been quietly but profoundly rewriting the book on mass persuasion. Supported by a somewhat secretive investment network, and appearing to work only on behalf of conservative causes, the group specializes in big data collection and micro-targeting of voters.... Continue reading
Posted Feb 2, 2017 at Persuasive Litigator
Image
By Dr. Ken Broda-Bahm: From the frame of mind of the company attorney, a whistle-blower can signal the risk of litigation, high verdicts, or costly fines. From the frame of mind of the executives and CEOs, the whistle-blower can signal disloyalty, a person who is out, not for justice, but for some kind of revenge. To maintain the company's legitimacy, it is the whistle-blower who must be delegitimized. After all, if a person is pointing out a flaw in the system, how much easier is it to believe that the flaw lies not with the system, but with the person?... Continue reading
Posted Jan 30, 2017 at Persuasive Litigator
Image
By Dr. Ken Broda-Bahm: According to many recent reports, we now seem to be living in a "post-truth world." With President Trump's early statements, including some demonstrably false claims on his inauguration crowd-size as well as his relationship with the U.S. intelligence community, the phrase that seems to fit is the one that presidential advisor Kellyanne Conway settled on: "alternative facts." That euphemism for claims that don't survive media fact-checking, but are nonetheless believed and used as part of the public dialogue, captures what should be a depressing (real) fact about our age: Fake news is proliferating and the public... Continue reading
Posted Jan 26, 2017 at Persuasive Litigator
Image
By Dr. Ken Broda-Bahm: Damned if it isn't true: People who swear are more honest, and perceived as more persuasive. According to a recent Psyblog post, that is indeed what the research shows. The most recent study on the subject (Feldman et al., 2017) looked at both self-reports as well as an analysis of Facebook communications to demonstrate that a greater use of profanity correlates with greater honesty. An earlier study (Scherer & Sagarin, 2006) shows that, in addition to actually being more honest, the person who swears is also viewed that way, with the addition of a 'damn it'... Continue reading
Posted Jan 23, 2017 at Persuasive Litigator
Image
By Dr. Ken Broda-Bahm: Most civil cases these days will end, not in a courtroom, but at a settlement table. Many will do so after just the right amount of time and resources invested during discovery to discover the case's true worth. But for many other cases, that investment of time and resources won't be ideal, and attorneys and especially clients will find themselves wondering, "Why couldn't we have just gotten that same result three months ago? Or two years ago?" Sometimes there are good reasons for that: pending discovery and expert evaluations, motions not yet resolved by the court,... Continue reading
Posted Jan 19, 2017 at Persuasive Litigator
Image
By Dr. Ken Broda-Bahm: If you would like more confidence, and if you've seen Amy Cuddy's widely-viewed TED talk, then maybe you've tried the "power pose." Legs apart, head straight and tall, hands on hips or arms raised above your head -- it is a posture we often see people naturally adopt after winning a victory of some kind. If you take Cuddy's advice on face value, then it isn't just a natural reaction, it can be a strategy. According to a perspective called, "embodied cognition," our mental states respond to our physical postures, and a power pose can cause... Continue reading
Posted Jan 16, 2017 at Persuasive Litigator
Image
By Dr. Ken Broda-Bahm: In a research article now available The Jury Expert (Valez, Neal & Kovera, 2016), three experts in trial psychology provide an overview of the research on persuasion relating to expert witness testimony. For experts and those who hire them, the article along with several responses which follow the article are worth a close read. Without focusing on the citations and the specific study descriptions (which are all available online without cost in the original article), the bottom line conclusion is that expert witnesses, as actors within a process of legal persuasion, should account for both of... Continue reading
Posted Jan 12, 2017 at Persuasive Litigator
Image
By Dr. Ken Broda-Bahm: You're working your way through discovery. Your arguments and themes for trial are taking shape. By the time you're in front of the jury, you'll know what to say. But first there's a mediation. Now you need to refashion your persuasive appeals for a different purpose. Your mediator is not a judge or jury, but is instead functioning in some ways as a predictive filter of what a future potential fact-finder is likely to do. While the argument to the judge or jury is on your merits, the argument to your mediator is on both your... Continue reading
Posted Jan 9, 2017 at Persuasive Litigator
Image
By Dr. Ken Broda-Bahm: Let's say that you are facing a creative challenge and you need to come up with a great idea. Do you retreat, take your time, think it through and then come back with a winner? Or do you seize the chance to be quick on your feet and start spitballing ideas right off the bat? Well, if you're like most of us, then you will sometimes opt for one approach, and sometimes for the other approach. It depends on the situation, the challenge, or your mood. But you probably have a general preference. Speaking for myself,... Continue reading
Posted Jan 5, 2017 at Persuasive Litigator
Image
By Dr. Ken Broda-Bahm: This blog is written in Arial font. While I can't fully control the fonts it shows up in when it travels out in various forms of syndication, for the version that lives on our site at Persuasive Litigator, I like Arial. It is a contemporary San Serif font that is pretty simple and clean, and in common use these days. But, I admit, I have not paid much attention to it. A piece from this past summer by Brendan Kenny in The Lawyerist, however, suggests that I should. And, more broadly, the piece recommends that lawyers... Continue reading
Posted Jan 2, 2017 at Persuasive Litigator
Image
By Dr. Ken Broda-Bahm: As the juror sits in the jury box hearing the case, she is not just rationally deciding who has the better position. She is also applying and maintaining her own self-concept. The implicit question she is asking herself is, "Am I the kind of person who would approve or condemn this?" or more basically projecting, "What would I have done if I had been in that position?" Judgment is bound up in morality, and morality in turn is bound up in self-concept. And given the centrality of that self-concept, applying those moral views isn't necessarily rational.... Continue reading
Posted Dec 29, 2016 at Persuasive Litigator
Image
By Dr. Ken Broda-Bahm: During voir dire, the traditional questions designed to expose bias tend to focus on the existence or nonexistence of a biasing attitude or experience. Have you formed any beliefs about the defendant's guilt or innocence? Do you believe drug companies are more concerned with profits rather than people? In truth, these biases, as well as potential jurors' self-knowledge of these biases, are more likely to be a matter of degree. A question that focuses on the level or extent of a potential bias, or on a degree of leaning for or against a particular belief is... Continue reading
Posted Dec 26, 2016 at Persuasive Litigator
Image
By Dr. Ken Broda-Bahm: By now, it is familiar advice to trial lawyers: Tell a story. Jurors and judges will appreciate the familiar structure, pay greater attention, see the world from your party's perspective, and have an easier time remembering and using the information. We might think that the advice applies to attorneys, especially during opening statements -- and it does. But it doesn't end there. Rather than being just a handy technique for organizing the attorney's first presentation, the narrative is a paradigm for how people learn new information and use it. So the advice to "Tell a story"... Continue reading
Posted Dec 22, 2016 at Persuasive Litigator
Image
By Dr. Ken Broda-Bahm: The witness is in the box, questioning began a few minutes ago, and the thought goes through the witness's nervous mind, "I hope I make a good impression." Well, not to make that witness more nervous, but chances are, that impression has already been made. It could have been made in the first few moments of examination, or as she stepped up and took the oath. Perhaps it was made even earlier, when the witness was seen at counsel table, or even in the courtroom hallway. Impressions don't form gradually and they don't wait on the... Continue reading
Posted Dec 19, 2016 at Persuasive Litigator
Image
By Dr. Ken Broda-Bahm: Remember when you took that hot air balloon ride as a kid? Or when you played that prank on a teacher by leaving slime on her desk? Or when you caused havoc by spilling a punch bowl at that wedding? Do you remember any of these events? Participants in studies have been induced to recall all of them, falsely. These studies are called "memory implantation studies," and they demonstrate not just the power of suggestion, or perhaps the pervasiveness of human gullibility, but they also show us a bit of how memory works. According to a... Continue reading
Posted Dec 15, 2016 at Persuasive Litigator
Image
By Dr. Ken Broda-Bahm: U.S. employment numbers were up 178,000 last month, causing many to see an improving economy. The month before that, the number was down by more than 66,000, causing many to fear a worsening economic picture. Truth is, that number routinely fluctuates month to month for a variety of reasons, and the number that happens to be current end point on the chart isn't so much a predictive bellwether, as it is simply the most recent data point. But we don't treat it that way. Instead, through something called the "end point bias," we tend to overvalue... Continue reading
Posted Dec 12, 2016 at Persuasive Litigator
Image
By Dr. Ken Broda-Bahm: An attorney at our firm, tapped to give a CLE talk, asked me recently if I had anything on the "science of persuasion." Pretty broad. I wondered where to begin, but it did get me thinking. At the most general, 30,000-foot level, what is the science of persuasion? Does the field have anything like the "Grand Unified Theory" of physics? That thinking is what led to my audacious title for this post. Both generally, and particularly as it relates to persuasion in a courtroom, I want to believe that our field is more than just a... Continue reading
Posted Dec 8, 2016 at Persuasive Litigator
Image
By Dr. Ken Broda-Bahm: Here is the most important thing you can ever possibly learn in law: Hyperbole will absolutely crush your chances of winning. Okay, maybe that’s a little over the top, but there is something about legal writing and oral advocacy that can sometimes encourage a tone of exaggeration that reduces credibility. Based on a list compiled by Gary Kinder at WordRake (courtesy of Eugene Volokh), there are some bad examples out there. One lawyer describing a case about bolts of cloth stored in a warehouse wrote, “This is a story of a legal system run amuck, a... Continue reading
Posted Dec 5, 2016 at Persuasive Litigator
Image
By Dr. Ken Broda-Bahm: This week, the Persuasive Litigator blog reached an important milestone. After being named to the ABA Journal's "Blawg 100" list for the sixth straight year, we have now ascended to Blawg Valhalla by earning a permanent place in the ABA Journal's "Blawg Hall of Fame." Now, I was quick to add the ABA's badge to Persuasive Litigator's home page, and won't be shy in spreading the word. But at the same time, I know what you're thinking: "If I'm spending my nonbillable time reading this blog, then I don't care much about your honors, awards, endorsements,... Continue reading
Posted Dec 1, 2016 at Persuasive Litigator