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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: If the panoply of strategies to persuade were a dating pool, then the fear appeal would definitely be the "bad boy," or "bad girl." By that I mean, attractive, a little shady, and potentially dangerous. The tactic of motivating your target audience by instilling and then alleviating some kind of fear is attractive because it often works, shady because it is seen as appealing to the lowest among human motivators, and dangerous because it might backfire if the fear is too strong or too difficult to resolve. In legal persuasion, that mixed bag of effects has... Continue reading
Posted 3 days ago at Persuasive Litigator
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By Dr. Ken Broda-Bahm: This past weekend saw not just Earth Day, but also a nationwide "March for Science." On Saturday, people across the country, and in some other parts of the world, turned out in order to show support for the role of science. The message behind these marches is distilled in a four-minute viral video from Neil deGrasse Tyson, viewed more than 25 million times in the past few days. Tyson argues that science should help us understand the world and shape public policy, but due to a decline in public support for science, “people have lost the... Continue reading
Posted 6 days ago at Persuasive Litigator
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By Dr. Ken Broda-Bahm: In the law, the ability to mentally focus is prized. We expect it of our partners and advocates, look for it in selecting our teams, and encourage our jurors to practice it. Following the story, understanding the details, comprehending the legal standards, all of that can require mental concentration. At the same time, part of law and legal persuasion requires a creative spark. Slogging through a deposition or sifting through the case law might be just a matter of putting in the time, but ginning up a good trial theme, creating a good metaphor, or trying... Continue reading
Posted Apr 20, 2017 at Persuasive Litigator
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by Dr. Ken Broda-Bahm: Movies about courtroom trials are enjoyed by lawyers and the general public alike. The genre has earned its place among the classics with titles like: To Kill a Mockingbird, 12 Angry Men, Witness for the Prosecution, Inherit the Wind, and even My Cousin Vinnie. But there is one commonality in all of those movies: They focus on criminal trials. While there are a handful of films that focus on civil litigation -- Philadelphia, Runaway Jury, or The Verdict -- they are far fewer in number, and none have reached the same level of pop culture familiarity.... Continue reading
Posted Apr 17, 2017 at Persuasive Litigator
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By Dr. Ken Broda-Bahm: In voir dire, the whole point is to find out information about the potential juror. When you're seeking out experiences or attitudes that you might use to warrant a strike or to mount a challenge for cause, you care about what that individual thinks, not about what anyone outside the courtroom might think. But it can be a great strategy to ask those venire members what they think others think. Why? Because people will sometimes externalize their own opinions or experiences. For example, awhile back I wrote about the 2014 election for Scottish independence. The polls... Continue reading
Posted Apr 13, 2017 at Persuasive Litigator
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By Dr. Ken Broda-Bahm: On the defense side of the bar, attention has been exploding over plaintiffs' Reptile approach. If you Google "Reptile" and "Litigation," you'll see a profusion of articles. But so far, at least, the strategy of leveraging the perceptions of "safety" and "danger" has been the subject of attention from a subset of defense lawyers: those who deal with death and injury focused on the human body, including personal injury, medical malpractice, workplace safety, and products liability. For litigators who don't generally defend these kinds of cases, the plaintiff bar's strategic focus on "the reptilian brain," can... Continue reading
Posted Apr 10, 2017 at Persuasive Litigator
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By Dr. Ken Broda-Bahm: Trial is coming up, the witness is told: "Be at the courthouse by 7:30 Monday morning, meet us in the office on Friday, and oh, remember to carefully review your deposition." The court date might be a relief after a long wait, the meetings with counsel should help to add focus and calm your nerves, but the reading and the rereading of the deposition? That seems like "homework," a chore, or the forced reliving of a bad experience. But it is actually one of the most important steps, and a stage in the preparation process that... Continue reading
Posted Apr 6, 2017 at Persuasive Litigator
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By Dr. Ken Broda-Bahm: In the early Sixties as Adolf Eichmann's Nazi war crimes trial was taking place in Jerusalem, the world was asking, was there something different about those who committed crimes on that scale, or were they just obeying orders? Just a few months later, a social scientist began a series of experiments in a small basement at Yale University to arrive at what's become probably the most famous finding in social science. Stanley Milgram's research, first published in 1963, involved a setting where one research participant is a "teacher," and another (actually a confederate working for the... Continue reading
Posted Apr 3, 2017 at Persuasive Litigator
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By Dr. Broda-Bahm: When I give the orientation at the beginning of a mock trial, I'll typically say something like, "Because this is a shortened version of a trial, you aren't going to be able to hear everything. We will boil it down, summarize, and avoid some of the details, and we do that only for the purposes of time. We know it can be frustrating when there are things you're not hearing, but what we want is your reaction to what you are hearing." Though it is incomplete, that explanation is probably more comprehensive than what jurors hear in... Continue reading
Posted Mar 30, 2017 at Persuasive Litigator
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By Dr. Ken Broda-Bahm: It is one of those research findings you would expect to be true, like: "Studying improves performance" or "Happier people are more productive." But it is reassuring to find that research supports the notion that legal professionals are less likely to exhibit bias based on gender. After all, it does make sense that those in the profession dedicated to justice and fairness would be less likely to act on stereotypes that disadvantage women. It is useful to check on some of these assumed findings, however, because they aren't always bourn out in the research, and they... Continue reading
Posted Mar 27, 2017 at Persuasive Litigator
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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 Mar 23, 2017 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 Mar 20, 2017 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