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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: 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 10 hours ago 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 3 days ago 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 7 days ago 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
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By Dr. Ken Broda-Bahm: One of the main goals of voir dire is to encourage jurors to express some of their actual biases so that you can use those expressions as a basis for cause or peremptory challenges. And there is one big obstacle to achieving that goal: Expressing bias is normally inhibited. This is due to the nature of bias, as well as the inclination toward 'social desirability' that inhibits the expression of anything that could be considered inappropriate or unusual. There is also the formal courtroom setting that supercharges that inhibition by putting a spotlight on what the... Continue reading
Posted Sep 11, 2017 at Persuasive Litigator
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By Dr. Ken Broda-Bahm: The cliché words, "It was a dark and stormy night," come from the opening sentence of the novel Paul Clifford by Edward George Bulwer-Lytton. And when you read the full sentence it comes from, you get a better idea of why it has come to be the quintessential example of a bad opening: "It was a dark and stormy night; the rain fell in torrents — except at occasional intervals, when it was checked by a violent gust of wind which swept up the streets (for it is in London that our scene lies), rattling along... Continue reading
Posted Sep 7, 2017 at Persuasive Litigator
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By Dr. Ken Broda-Bahm: When we think of persuasion in the courtroom, we might think of the specific language of strategies, tactics, and themes. We think of particular messages that can help get us to our goal. But those are really only the point of the spear. If we think about what is behind the technique, and what gives it heft and effectiveness, then we're thinking about a number of basic psychological principles of motivation and influence. We are thinking of broad factors that cause people to want to move in a particular direction, factors that relate to some of... Continue reading
Posted Sep 4, 2017 at Persuasive Litigator
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By Dr. Ken Broda-Bahm: In a recent mock trial, the jurors deliberated on the meaning of the duty of good faith and fair dealing. The conversation went something like this: Juror 1: They clearly met the contract. I mean, look at the language. Juror 2: Yeah, but did they treat the Plaintiff the way you would have wanted to be treated? Juror 1: No, I don't think it was totally fair...but that isn't the question. It's about the law, not fairness. Juror 2: Not just about the law. Look at this, 'good faith and fair dealing.' The other claims are... Continue reading
Posted Aug 31, 2017 at Persuasive Litigator
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By Dr. Ken Broda-Bahm: It is conversation I frequently have when sending jurors off to deliberate as part of a mock trial. "Can we ask the attorneys questions about the case?" "No, just do your best with what you remember." "But what if there are things we forget?" "Don't worry, as a group you're going to remember more than you would as individuals." That seems like it would be true, right? A group should have a stronger collective memory, operating as a sum of the individual recollections within the group. That is part of the reason why the legal system... Continue reading
Posted Aug 28, 2017 at Persuasive Litigator
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By Dr. Ken Broda-Bahm: You know it is possible. As those jurors leave the courtroom with their mobile phones on a break or at the end of the day: They could be off on their own evidence-gathering foray, looking up the parties, the lawyers, the witnesses, or the law. But, they've been given strong instructions in a very formal courtroom, and the judge has told them not only that is it strictly forbidden, but that it could also cause a mistrial leading to additional wasted time and money for the parties and for the public. With all of that, you... Continue reading
Posted Aug 24, 2017 at Persuasive Litigator
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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 Aug 21, 2017 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 Aug 17, 2017 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 Aug 14, 2017 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