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Persuasion Strategies
Practical tips on legal persuasion spanning pretrial and trial phases, for jury, bench, and arbitration settings.
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By Dr. Ken Broda-Bahm: In my line of work, I find myself on my feet giving presentations quite often: marketing talks, CLE seminars, strategy sessions. I prepare for those opportunities pretty extensively, but here is one thing I don't do as part of that preparation: I don't sit and review my notes. I do prepare notes, and I do make sure that I devote plenty of time to planning out what I'm going to say, for example, when a given slide is on the screen. That's especially true since I don't believe in text-heavy slides that, in effect, put the... Continue reading
Posted Dec 8, 2017 at Persuasive Litigator
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By Dr. Ken Broda-Bahm: Nodding your head up and down means "Yes." At least in our culture it does. And world travelers will know that this one thankfully translates to nearly all other countries and cultures as well. There are exceptions, like one country I visited a couple of times on consulting trips: Bulgaria. There, shaking your head up and down, our "Yes," actually means "No," and shaking your head from side to side, our "No," means "Yes." And if you ask me if that creates the potential for confusion, I'd nod my head...or shake my head "Yes." But sticking... Continue reading
Posted Dec 4, 2017 at Persuasive Litigator
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By Dr. Ken Broda-Bahm: When an audience decides whether someone is credible or not, what do they look for? To a large degree, they look for confidence. In some ways, confidence can be viewed as performed credibility. Someone who is telling the truth is confident. Someone who is winning is confident. Of course, we know that neither of those statements is necessarily true, at least not all the time. But what matters is how the message is received. And in human communications, confidence is one of the most important external markers. Whether a speaker's confidence is merited or not, viewers... Continue reading
Posted Nov 30, 2017 at Persuasive Litigator
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By Dr. Ken Broda-Bahm: Persuasion is often a matter of overcoming barriers and, in the courtroom, those barriers can be very real. The wall of the jury box is a physical analogy for the differences in class, age, race, education, and many other factors that can separate the fact finders from the attorneys, the witnesses, and the parties. But beyond those demographic traits, distance can also be influenced by more subtle features of language. When the wording is dry, abstract, and depersonalized, it is more difficult to cross the bridge to jurors' understanding. It's better to be more direct. And... Continue reading
Posted Nov 27, 2017 at Persuasive Litigator
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By Dr. Ken Broda-Bahm: When you think of science, do you think of dry research articles, charts and graphs that take a good deal of explanation in order to get to a point? Or do you think of Neil DeGrasse Tyson explaining the Cosmos with the help of clear but sophisticated video and graphics? If it is your goal to connect with an audience of non-scientists, like a jury for example, then your choice ought to be for something closer to the latter. A science-educator like Tyson, who uses all the tools available, is in a better position to make... Continue reading
Posted Nov 24, 2017 at Persuasive Litigator
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By Dr. Ken Broda-Bahm: The cooler sat in the courtroom throughout the trial. A 40.5 gallon Igloo fishing cooler, it was a key piece of evidence in the murder trial of an attorney, Tom Capano, charged with killing his lover who was the Delaware Governor's scheduling secretary. A recent story in Delaware Online focuses on one of the jurors, speaking out now for the first time almost two decades after the trial. That juror, Erin Reilly Lee, got inside the evidence -- literally. See, it turns out that the volume of the cooler was important, because Capano's defense was that... Continue reading
Posted Nov 20, 2017 at Persuasive Litigator
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By Dr. Ken Broda-Bahm: Written in the context of the civil rights and Vietnam war protests of the Sixties, there is an old Buffalo Springfield song with a line about the marchers, "Singing songs and carrying signs [that] mostly say, 'hooray for our side.'" That 'hooray' is what the political psychologists call "partisan affect," or the tendency to like and identify with those on your side of the political spectrum and to dislike and even demonize those on the other side. That is perhaps the reason that many of his supporters are sticking with embattled Alabama Senate candidate, Roy Moore,... Continue reading
Posted Nov 16, 2017 at Persuasive Litigator
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By Dr. Ken Broda-Bahm: It is the season for strong denials from powerful men in entertainment and politics. To pick just one from the crop of current examples, the U.S. Senate candidate from Alabama, former judge Roy Moore, has recently been accused of a number of inappropriate relationships when he was in his early thirties with girls who were as young as 14 years old. Predictably, Moore has denied it all, calling the accusations "completely false." Sometimes the better course is to admit what is true. The comedian, Louis CK, took that route recently by responding to reports of harassing... Continue reading
Posted Nov 13, 2017 at Persuasive Litigator
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By Dr. Ken Broda-Bahm: A fair proportion of the legal advocacy in America today is taking place via written communication. With only a small percentage of cases actually ever seeing a jury -- three percent, or less -- cases are more and more often reaching their ends based on written motions. Summary judgment decisions are often decided based on briefing, and in settlement negotiations as well, it can often come down to letters and emails ferried back and forth between the parties. There is obviously still a place for trial and oral argument, still a role for the advocate standing... Continue reading
Posted Nov 9, 2017 at Persuasive Litigator
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By Dr. Ken Broda-Bahm: On October 1st, a gunman opened fire on a crowd of concert attendees, injuring nearly 500 and killing 58. In response, the President offered condemnation and condolences, but said the event should not be politicized and offered no policy changes. Thirty days later, a man drove a rented truck through a crowded bike and pedestrian area, injuring a dozen and killing eight. In response, the President used executive power to further increase vetting of foreign immigrants, called for an end to diversity-based immigration, and intensified his emphasis on a Southern border wall. Then yesterday, a gunman... Continue reading
Posted Nov 6, 2017 at Persuasive Litigator
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By Dr. Ken Broda-Bahm: Sexual harassment is a constant issue. But sometimes there is relative silence on the subject, and sometimes there are waves of attention. Right now, one of those waves seems to be cresting. With the repeated harassment claims and settlements at Fox News, and the number of women accusing Hollywood producer Harvey Weinstein -- a number now approaching triple-digits and including some very familiar names -- the focus of attention is broadening to include many other harassers in the media, politics, the arts, and academics. The attention has spawned a "MeToo" hashtag campaign, with an unprecedented number... Continue reading
Posted Nov 2, 2017 at Persuasive Litigator
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By Dr. Ken Broda-Bahm: As special counsel, Robert Mueller, files the first charges stemming from the investigation of events surrounding Russia's involvement in our presidential election, the issue of corruption touching on the government looms large. In Chapman University's 2017 "Survey of American Fears," just released in time for Halloween, the results put "corruption of government officials" at the top with fully 74 percent of the population reporting that as one of their largest fears. There is probably a political explanation for that figure, as a distrust of officials is now uniquely shared by both the anti-Washington populists who swept... Continue reading
Posted Oct 30, 2017 at Persuasive Litigator
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By Dr. Ken Broda-Bahm: What counts as good legal persuasion differs from one country to the next. Different cultures, different legal rules and systems, and different fact finders all make a difference. But one thing stays consistent no matter the venue or the tongue: Legal persuasion boils down to people using communication to influence other people. That common purpose stands out in a paper released last month for the United Nations International Expert Programme in Investigative and Legal Psychology (Barosa, 2017). The paper is written by a Portuguese criminal lawyer, Pedro Barosa, and provides a literature review and reflections on... Continue reading
Posted Oct 26, 2017 at Persuasive Litigator
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By Dr. Ken Broda-Bahm: "It was written all over his face." That's what we say when we think someone's expression has told a truer tale than their words. It is the kind of statement that shows that we naturally pay a great deal of attention to the face when we are trying to assess emotion or credibility. But maybe we pay too much attention. According to research reviewed in a recent post in Psyblog, it is actually the tone of voice and not the face that does the better job of accurately conveying emotion. The study (Kraus, 2017) shows people... Continue reading
Posted Oct 23, 2017 at Persuasive Litigator
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By Dr. Ken Broda-Bahm: Every persuader, and legal persuaders in particular, understand that bias is both pervasive and powerful. The idea that potential jurors will be carrying attitudes and experiences that could influence their decision is the norm and not the exception. As a trial attorney, your goal is to eliminate it. In practice, however, it is more likely that you'll be minimizing it. There aren't enough strikes in the world. But is it enough if the biased jurors on your panel are numerically outweighed and outvoted by the other relatively unbiased jurors on your panel? Will deliberation take care... Continue reading
Posted Oct 19, 2017 at Persuasive Litigator
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By Dr. Ken Broda-Bahm: What do I mean when I say the witness should treat cross-examination questions like a flashlight in a dark room? I mean that the questions are designed to shine a light on some things and to purposefully leave other things in the dark. Imagine, for example, a series of questions designed to show a hotel room is unoccupied: The TV is off, right? The luggage is gone? There's no one in the chair? And there's no one in the bed, all true? These may all be true, but what are they leaving out? The bathroom door... Continue reading
Posted Oct 16, 2017 at Persuasive Litigator
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By Dr. Ken Broda-Bahm: The idea of a reluctant jury -- a jury of people who would really like to be just about anywhere else, a jury of people who tried like hell to get out of it and failed -- that idea is fairly well ingrained in our system. Among many, especially those who don't experience the court system on a regular basis, it is considered a truism that most Americans dread jury duty, will try to find a way out of it if they can, and will hate the experience until the end of trial if they can't... Continue reading
Posted Oct 12, 2017 at Persuasive Litigator
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By Dr. Ken Broda-Bahm: The law expects legal decision making to work like a smooth and well-oiled machine. But as any experienced legal persuader knows, there is sand in those gears. That sand takes the form of cognitive biases: mental shortcuts or heuristics. They're not necessarily mistakes, but factors that make legal decision making from a judge or jury less linear and logical than the legal model might presume. I wrote last year on advantages of knowing your cognitive biases based on a newly-published list of such biases. To advance the taxonomy, Jeff Desjardins of the media website Visual Capitalist... Continue reading
Posted Oct 10, 2017 at Persuasive Litigator
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Dr. Ken Broda-Bahm: There are so many reasons why it is good to make a list, I could make a list of them (and actually, I did). But, safe to say, lists are ubiquitous in communication. We use them for shopping, for things we need to do, and steps we need to take. Mentally, we like the neat compartments of a discrete set of tasks or phases. The list can often take the form of the familiar "Do's and Don'ts." In product cases, for example, there are the sets of best practices for designing, testing, and marketing a product. In... Continue reading
Posted Oct 6, 2017 at Persuasive Litigator
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By Dr. Ken Broda-Bahm: The way trial and deposition testimony works is that you hear from one witness at a time. We have individual testimony, we don't have group testimony. Or do we? Is there a chance that when we are hearing from the individual, we are hearing a message that has already been formed and filtered in reference to a group's perceptions and opinions? New research shows that the answer might be, "Yes." Based on a release from the University of Huddersfield carried in ScienceDaily, Dara Mojtahedi, a lecturer in forensic psychology, finds support for a phenomena he calls,... Continue reading
Posted Oct 2, 2017 at Persuasive Litigator
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By Dr. Ken Broda-Bahm: You're forgiven if you didn't notice, but for the past couple of years, the General Mills cereal called "Trix" has been available only in a "heathier" version. That means that it kept all the sugar, but lost the artificial coloring, using vegetable and fruit ingredients instead. Apparently, there are some fans of the cereal who are old enough to send emails and post to social media, and those Trix fans complained that the new colors are dull or missing (nature apparently couldn't replicate the blue or the green in Trix, so those colors were pulled from... Continue reading
Posted Sep 28, 2017 at Persuasive Litigator
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By Dr. Ken Broda-Bahm: President Trump has just announced the third version of his ban on travel to the U.S. by residents from specific countries. This time the ban includes the unlikely traveler from North Korea and some Venezuelan officials, but this third version is still recognizable as his 'Muslim travel ban,' the campaign promise that, in practice, has led to widespread public resistance and continuing constitutional challenges. But it certainly has its supporters as well. In fact, the persistence of this issue serves as a reminder of the fact that Trump isn't alone in his tendency to distrust individuals... Continue reading
Posted Sep 25, 2017 at Persuasive Litigator
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By Dr. Ken Broda-Bahm: In his speech to the UN General Assembly last Tuesday, President Trump issued a pretty blunt threat. If the United States is forced to, he said, “We will have no choice but to totally destroy North Korea." It was not out of step with his previous rhetoric on the subject, including his comment a couple of weeks earlier that the rogue regime would be met with "fire and fury," but it was jarring to many based simply on the context. From the lectern of the organization created to "save succeeding generations from the scourge of war,"... Continue reading
Posted Sep 21, 2017 at Persuasive Litigator
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By Dr. Ken Broda-Bahm: There's a quote most often associated with Martin Luther King: "The arc of the moral universe is long, but it bends toward justice.” When applied to historical progress, these words generally connote the comforting message that "Things get better." Our recent history, however, seems dedicated to showing that if there's an arc, it isn't necessarily a smooth one, and sometimes that bend toward justice takes some jagged turns. For example, the completed administration of America's first African-American president did not soothe the country's troubled experience with race. Rather, it inflamed it. Perceptions of racism as a... Continue reading
Posted Sep 18, 2017 at Persuasive Litigator
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By Dr. Ken Broda-Bahm: You've probably heard the expression, "Minds are like parachutes: They only function when they're open." That is undoubtedly true for some people. And if you're one of the curious regular readers of this blog, then that is probably true for you. But it isn't true for others. Their minds don't function best when open. Instead, a certain amount of purposeful closed-mindedness is necessary for them to feel certain, grounded, and safe. Looking out at an audience while you are trying to persuade them to set aside a current belief and adopt something new, it is tempting... Continue reading
Posted Sep 14, 2017 at Persuasive Litigator