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Persuasion Strategies
Practical tips on legal persuasion spanning pretrial and trial phases, for jury, bench, and arbitration settings.
Recent Activity
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By Dr. Ken Broda-Bahm: Well, it has been yet another fascinating week for people like me who are interested in political communication. This week, Congress kicked off hearings dealing with some explosive charges regarding a foreign country's influence on our election, and possible coordination with a political campaign. On Monday, Adam B. Schiff, who represents California's 28th Congressional District in the U.S. House of Representatives and is a ranking member of the House Permanent Select Committee on Intelligence, provided a compelling introduction when opening the hearings looking at contacts between President Trump's campaign and Russian officials. As I watched his... Continue reading
Posted 3 days ago at Persuasive Litigator
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By Dr. Ken Broda-Bahm: In the first of Disney's Pirates of the Caribbean movies, the heroine of the story is demanding to be taken back to shore and invoking something called "The Pirate Code" to make her case. The pirate, Captain Barbossa, responds: First, your return to shore was not part of our negotiations nor our agreement so I must do nothing. And secondly, you must be a pirate for the pirate's code to apply and you're not. And thirdly, the code is more what you'd call "guidelines" than actual rules. Welcome aboard the Black Pearl, Miss Turner. And that's... Continue reading
Posted 6 days ago at Persuasive Litigator
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By Dr. Ken Broda-Bahm: I have this theory, and because it is mine, I believe it. That, in a nutshell, is the explanation of a new and unique bias that has recently been demonstrated by social science researchers. The bias is called, "Spontaneous Preference for Own Theories," or SPOT for short, and the explanation is pretty much contained in the name: If we take a theory to be our own, then we will tend to prefer it automatically. That bias has some close cousins in the cognitive world: The "Endowment Effect" is the tendency to value what it ours, "Confirmation... Continue reading
Posted Mar 16, 2017 at Persuasive Litigator
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By Dr. Ken Broda-Bahm: The racial composition is probably one of the first things we notice when venire members file in before jury selection. When recruiting for a mock trial, we will try to match the composition of the venue. Along with other demographics, race is not nearly as predictive as some might think. As a result, race is not used by trial consultants nearly as much as some critics of the field would think. Still race is part of the overall picture of knowing your trial venue, a salient aspect of one's lived experience; and race is changing. That... Continue reading
Posted Mar 13, 2017 at Persuasive Litigator
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By Dr. Ken Broda-Bahm: I had one important early experience in trial consulting that I've kept in my head over the years. It was actually on my first job after moving to Persuasion Strategies many years ago. Attorneys we knew were working with a very large national litigation consulting group in hosting a mock trial. The client wanted to go with the very large firm, but the attorneys we knew wanted a consultant from our team to be on-site, just to provide some feedback. So I came to watch the mock trial and to share my thoughts. I had zero... Continue reading
Posted Mar 9, 2017 at Persuasive Litigator
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By Dr. Ken Broda-Bahm: Have you ever found yourself in an argument where the other side just keeps digging in deeper? Instead of conceding, agreeing, or even just softening their stance, they're becoming even more committed to a position that (you think) you have shown to be incorrect? The more facts and reasons you give, the harder they commit to a contrary position. If you've ever found yourself in that position, then congratulations: You've learned one of the first principles of human psychology. We want to believe that reasons and evidence work, and when someone sees that their beliefs are... Continue reading
Posted Mar 6, 2017 at Persuasive Litigator
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By Dr. Ken Broda-Bahm: At a time when we are surrounded by keyboards and tablets, the act of handwriting notes with actual pen and paper can seem like an anachronism. Even the writing-intensive field of law is moving away from handwriting, at least as measured by the newer generations of lawyers. For example, I frequently give talks in law schools and as I speak, I'm usually looking out into a sea of opened laptops as the students listen and type...or maybe just type. There are some advantages to the laptop as a note-taking device, of course. The material can be... Continue reading
Posted Mar 2, 2017 at Persuasive Litigator
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By Dr. Ken Broda-Bahm: A trial lawyer prepares for opening statement. All the exhibits are ready and in order, the structure is laid out, and the themes are in place. Now, let's just add in a few visuals -- a timeline and perhaps a couple of charts -- and it will be the icing on the cake, right? Wrong. In the battle for attention, influence, and retention, what jurors see will be a very big part of what they remember and use. For that reason, visual demonstrative exhibits are not something that you should just tack on after the substance... Continue reading
Posted Feb 27, 2017 at Persuasive Litigator
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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 Feb 23, 2017 at Persuasive Litigator
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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 Feb 20, 2017 at Persuasive Litigator
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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