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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: Black Americans, especially but not exclusively those on the lower-economic rung, often have a different experience with police and the justice system. That difference makes them more likely to believe they've been discriminated against, or to believe more generally, that they get greater attention and less protection from the law. That engenders a general distrust of the criminal justice system which, unfortunately, is a large part of what drives racial bias in strikes by prosecutors. I have written recently about ways to address race-based strikes, but an additional interesting question is whether skepticism toward the criminal... Continue reading
Posted 12 hours ago at Persuasive Litigator
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By Dr. Ken Broda-Bahm: America is not yet post-racial, and the Nazis marching this week in Charlottesville, Virginia should be a reminder of that. Continuing tensions on race are played out in courtrooms as well. The as-yet unresolved issues of racial bias in jury selection provide one example. Race-based removals impact the criminal sphere more than civil sphere, and also matter more in some cases than others. Still the continued presence of strikes that seem to be based on race has led to some calls to eliminate the peremptory challenge altogether. For example, in a case earlier this year before... Continue reading
Posted 4 days ago at Persuasive Litigator
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By Dr. Ken Broda-Bahm: If you've ever suffered through an extended interpersonal argument, either as a protagonist or as an observer, you might be justifiably skeptical about its usefulness. The common experience is that no one is going to budge. I've been there as well, and that is why I was intrigued when reading a study that I recently came across on effective argument. "One might think that the the outcome is trivially 'no one ever changes their mind,' since people can be amazingly resistant to evidence contravening their beliefs," the authors wrote in the first footnote, "But take heart,... Continue reading
Posted 7 days ago at Persuasive Litigator
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By Dr. Ken Broda-Bahm: For a practical persuader, one of the most disturbing features of some biases is their self-sealing nature. When an audience suffers from confirmation bias, for example, you would hope that they could be taught out of it. That is, if they're primed to think that all big corporations are evil, then you might think the prescription would be a few doses of "No, they're not." But that's the thing about confirmation bias; your audience will notice, understand, trust, and remember all the examples that support their pre-existing belief, and they'll be prone to dismiss the rest.... Continue reading
Posted Aug 10, 2017 at Persuasive Litigator
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By Dr. Ken Broda-Bahm: The news cycle these days seems to be dedicated to keeping the question front and center: "Are we as a society losing our grip on facts?" And if we are, I'd add a complementary question, "What does this say to legal persuaders?" An article at the end of last year appeared in Law 36o written by trial consultant, Ross Laguzza, citing data from his own company to support the view that jurors may be on their way to becoming more fact-resistant. For example, 54 percent say "Beliefs guide my life," as opposed to 46 percent who... Continue reading
Posted Aug 7, 2017 at Persuasive Litigator
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by Dr. Ken Broda-Bahm: Among the readers of this blog, there are a few people who write to me and let me know what they think about various posts. Sometimes it is to applaud a post, or to share an example where they've faced something similar. And sometimes, it is to take issue with what I've written. I appreciate that. It's actually one of the benefits of blogging: The chance to interact over something substantive, and the chance to sometimes learn that I'm wrong. And I try to be open to the possibility. I believe what I write, and that's... Continue reading
Posted Aug 3, 2017 at Persuasive Litigator
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By Dr. Ken Broda-Bahm: Most of the civil cases we work on are big cases. It's not a lone lawyer with a briefcase, it is a team: several senior attorneys, associates, paralegals, and in-house counsel. That's the team that needs to work together through the long haul of the lead-up to trial, and that's the team that needs to wrestle with the difficult strategic decisions on whether and how to proceed and prepare. Some parts of that team are forced together, but other parts, especially the parts on the law firm side, are the products of the choices made by... Continue reading
Posted Jul 31, 2017 at Persuasive Litigator
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by Dr. Ken Broda-Bahm: Having assisted on a large number of jury selections, I know there are a few attorneys who will say, "Give me the dumb ones -- I'll tell them what to think." But by and large, the attorneys have what I call an "intelligence bias." That is, they think that their side of the case is essentially correct (because that is what advocates do), so they think the smarter jurors will understand that. But that can't always be right -- especially when that bias exists for both sides. Based on a research article in Political Psychology, there... Continue reading
Posted Jul 27, 2017 at Persuasive Litigator
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By Dr. Ken Broda-Bahm: Jurors and judges sit in court and evaluate credibility. They continuously assess who is telling the truth and who isn't. But what is the bias in those determinations? Lie detection itself is a notoriously uncertain ability, with confidence often high, but with actual ability tending to hover more around the coin-flip level. But independent of accuracy, our beliefs about lie detection can tell us something about bias. Based on some recent research, it tells us something about racial bias and, more specifically, about the bias we bring to the task of telling whether witnesses of a... Continue reading
Posted Jul 24, 2017 at Persuasive Litigator
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By Dr. Ken Broda-Bahm: Imagine this: Your success as an attorney or a witness requires a painstaking dig into the fine points of securities trading. Or offshore corporation taxation rules. Or design criteria for inventory-tracking software. Or the minutia of a construction timeline. Or a patent claim for an electronic switch. Or...you get the idea. Legal cases aren't always celebrity murders or dramatic injury stories. Often, the case itself is dry and requires jurors to attend to details that are abstract, technical, and quite divorced from their daily lives. Alternately, imagine this: Even when the material itself holds some potential... Continue reading
Posted Jul 20, 2017 at Persuasive Litigator
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By Dr. Ken Broda-Bahm: "Careful what you email" has become a pretty important consideration in Washington lately, and not just for the politicians. This past week, Marc Kasowitz, President Trump's longtime personal attorney found himself in the spotlight over an email exchange with a critic. On the evening of July 13th, Mr. Kasowitz seems to have fallen victim to the temporary illusion that he was having a private conversation in a private place. He received an email with the blunt subject line "Resign Now," but otherwise it was a pretty civil message focusing on long-term interests of himself and his... Continue reading
Posted Jul 17, 2017 at Persuasive Litigator
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By Dr. Ken Broda-Bahm: Once, as I sat in a courtroom getting prepared to assist in picking a jury, the lawyer I was working with leaned over to say, "Make sure you have some reasons for strikes written down that we would be able to show the court." My reaction? "Of course. All of my reasons would be reasons that I would be willing to show the court." Thankfully, the attorney's response was, "Good." Although I am sure it happens, in all the jury selections I've been involved in, I've never recommended or had someone recommend to me that a... Continue reading
Posted Jul 13, 2017 at Persuasive Litigator
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By Dr. Ken Broda-Bahm: Imagine that you're housebreaking a puppy. After the inevitable 'accident,' and in order to enforce the rules of the house, you address her using your best lowered and ominous voice: "Daisy, what do you do?" Without having any idea what you're actually saying, the pup reacts to your tone, and suddenly you are the powerful alpha, and your pup is the shame-faced omega. That's done with pitch, and it isn't the only situation where lower notes connote power. You can probably hear it in your mind's ear right now, the low tones of James Earl Jones... Continue reading
Posted Jul 10, 2017 at Persuasive Litigator
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By Dr. Ken Broda-Bahm: When we think of the most exciting moments in Hollywood's version of a trial, direct examination isn't among them. The act of putting on your own witness in order to establish the elements of your case has none of the drama we associate with a courtroom battle. Instead of offering the conflict of one side against the other, as we see in cross-examination and in dueling opening statements, the direct examination is more predictable, calm...and boring. Instead of an exciting game, it's like one team's coach tossing softballs to one of his own players. Legally, however,... Continue reading
Posted Jul 6, 2017 at Persuasive Litigator
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By Dr. Ken Broda-Bahm: It seems like the simplest piece of witness advice imaginable: Answer the question. But, at least judging by the number of times a witness doesn't quite answer the question, it is a little more complicated than that. For a variety of reasons, many witnesses end up dodging the question. That can be a purposeful (and unwise) strategy, or more likely, it can be accidental or more apparent than real. But in nearly all cases, a perceived dodge is going to be more harmful to credibility than an honest answer would have been. Even when it is... Continue reading
Posted Jul 3, 2017 at Persuasive Litigator
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By Dr. Ken Broda-Bahm: It has been one of the most enduring myths of voir dire and jury service generally: the idea that biases are personally known, readily admitted, and fully controllable. In order to prevent a biased juror from serving, let's just ask them in voir dire if they're biased, and then rely on that admission or denial. And once that juror is seated for a trial, we will just tell them to "set aside" any remaining bias in order to just focus on the law and the evidence. It takes only a little understanding of social science to... Continue reading
Posted Jun 29, 2017 at Persuasive Litigator
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By Dr. Ken Broda-Bahm: If I followed the modern 'clickbait' style in coming up with a title for this post, maybe I'd go with "You Won't Believe the Psychological Technique that Creates Greater Influence," or perhaps, "Twenty Ways to Persuade with Curiosity: #19 Will Shock You!!" As much as we might hate the over-the-top social media versions (not to mention the one-sentence per click slow-loading experience), the more basic strategy works: You can generate attention and influence by piquing curiosity. It works because we're motivated to discover the answer. Reporting on recent research in Psyblog, the first author in the... Continue reading
Posted Jun 26, 2017 at Persuasive Litigator
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By Dr. Ken Broda-Bahm: On June 5th, three men used a van and knives to conduct an attack on pedestrians near the London Bridge and Borough Market. Just one week later, another man used a van in an attack on people leaving a mosque near Finsbury Park. Are we likely to frame both events evenly as "terrorism," and to give them the same kind and degree of attention? According to some recent research, the answer is "probably not." When terrorism is perpetrated by Muslims, as in the London Bridge attack, then we more easily define it as "terrorism," and give... Continue reading
Posted Jun 22, 2017 at Persuasive Litigator
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By Dr. Ken Broda-Bahm: File this in the category of, "I didn't realize just how uninformed some people are," a new survey makes the claim that seven percent of American adults believe that chocolate milk comes from brown cows. The data comes courtesy of the Innovation Center for U.S. Dairy drawn from an online survey conducted in April of 1,000 American adults. On the one hand, that stands out as an awfully daft notion, and the seven percent an awfully high number (greater than the population of Pennsylvania). On the other hand, however, we don't really know how the question... Continue reading
Posted Jun 19, 2017 at Persuasive Litigator
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By Dr. Ken Broda-Bahm: It's an occupational hazard: If you're a lawyer, then you're going to hear lawyer jokes. One that I'm fond of is, "There is really only one lawyer joke...all of the rest are true." That one was used successfully as an icebreaker in voir dire during a recent attorney malpractice defense. Or, I should say, it was used in a mock voir dire, because the case settled on the eve of trial. That result is in keeping to what we see as a general reluctance to see the inside of a courtroom when it comes to defending... Continue reading
Posted Jun 15, 2017 at Persuasive Litigator
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By Dr. Ken Broda-Bahm: For politically-oriented news junkies, this past Thursday featured must-watch fare. Former FBI Director James Comey raised his hand, took the oath, and testified about his carefully-documented meetings with his old boss, President Donald Trump. What stood out from his testimony was the number of times he called Trump a liar, by implication and, at times, using that actual word. Trump lied, according to Comey's testimony, about the disarray within the FBI, and in his many statements to the media denying that he had asked for Comey's loyalty and requested that he let go of the investigations... Continue reading
Posted Jun 12, 2017 at Persuasive Litigator
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By Dr. Ken Broda-Bahm: At one point back in my university teaching days, I worked with an international consulting group providing training on persuasion and argumentation to teachers around the world. Often, I would work with a translator. I remember being in Haiti, for example, providing training while my presentation in English was being simultaneously translated into both Haitian Creole and French. The three of us talking at once might have sounded like a cacophony, but it seemed to work just fine for the teachers attending. I remember being impressed that the translators could keep this up continuously, listening and... Continue reading
Posted Jun 8, 2017 at Persuasive Litigator
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By Dr. Ken Broda-Bahm: President Trump is doing great, keeping all his promises, even as he is beset with interference from dishonest investigations. He is also failing horribly, embracing national callousness and international isolation while scandals drag his administration into chaos. Either can be treated as absolute truth, depending on who you're talking to. The sides of the political spectrum have never been more divided, and polling backs it up: Conservatives and liberals are worlds apart. These sharpening distinctions create a situation where political leaning is one of the more salient things to know about a potential juror. It isn't... Continue reading
Posted Jun 5, 2017 at Persuasive Litigator
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By Dr. Ken Broda-Bahm: The expert takes the stand, his credentials proudly displayed to the jury as he launches into the dissertation of his testimony. Amid the complex chains of reasoning, the opaque references to other testimony, and the indecipherable jargon, it seems that he is giving an opinion on the case. But the impression the jury gets is "learned" and "detailed" but, unfortunately, not "helpful." And when it comes time to deliberate, they're likely to fall back on their own intuitions and experiences instead of using that expert's opinion. That is what happens when the expert succeeds at his... Continue reading
Posted Jun 1, 2017 at Persuasive Litigator
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By Dr. Ken Broda-Bahm: High-profile trials often lead to temporarily renewed awareness of the litigation consulting field. This time around, the rediscovery has to do with the first sexual assault trial for the actor and comedian Bill Cosby. An article entitled, "Bill Cosby's Trial is Already Showing How Twisted America Is," came out recently in the online source Vice. Beyond the click-bait headline, writer Sonja Sharp who also writes for the Wall Street Journal, targets both race-based selection as well as the role of jury consultants. While Vice is not the kind of source I ordinarily go to in this... Continue reading
Posted May 29, 2017 at Persuasive Litigator