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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 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 2 days ago 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 6 days ago 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
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By Dr. Ken Broda-Bahm: Good advocates will spend considerable amounts of time wondering about their audience. They'll also wonder about the parties and the witnesses on the other side. What do we know about them? Beyond what we see in the courtroom or learn about through the official procedure, what else is there? What are their attitudes, what do they do for fun, and what makes them tick? Today's advocates have a pretty big window into that world that was not available to prior generations: social media. Checking on the public profiles has become a normal step in assessing the... Continue reading
Posted May 25, 2017 at Persuasive Litigator
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By Dr. Ken Broda-Bahm: The common challenge in jury trial, and often in arbitration and bench trial as well, is to get your fact finders to follow, to understand, and to care. In pursuit of these goals, litigators will employ many tactics to continually gain and regain attention. One of those strategies is the use of graphics. Even when they are not strictly needed, photos, charts, timelines, and diagrams are common tools. What is less common, but perhaps should be used more often? Cartoons. That's right, a cartoon-strip style where one or more cells are used to tell a story... Continue reading
Posted May 22, 2017 at Persuasive Litigator
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By Dr. Ken Broda-Bahm: Why did President Trump fire FBI Director James Comey? As of press time for this blog post, the answer is that it depends on who you ask and what day, and sometimes what time of day, you ask them. A detailed timeline from the New York Times focuses on the shifting rationale, but the broad outline is that on Tuesday, May 9th, the surprise termination letter said the reason was to "restore public trust and confidence" in the FBI, and referenced that the President had accepted the recommendation of Deputy Attorney General Rod Rosenstein, who grounded... Continue reading
Posted May 18, 2017 at Persuasive Litigator
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By Dr. Ken Broda-Bahm: Going to trial is a lot like going to Disneyland! But only in the sense that it is very expensive, and you will spend a lot of your time waiting. The expense and the delays of the trial process are a common focus for criticism and a big part of the reason why the vast majority of disputes never get all the way to trial, but instead find resolution through settlement or summary judgment. In a recent article, Andrew Pollis (2017), Professor at Case Western Reserve University School of Law, turns a critical focus on what... Continue reading
Posted May 15, 2017 at Persuasive Litigator
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By Dr. Ken Broda-Bahm: Government law enforcement officials have a pretty high profile right now. That's especially true as they're increasingly moving into the category of being former law enforcement officials after being removed by President Trump. There was U.S. Attorney Preet Bharara in New York, and more recently, of course FBI Director James Comey who became former FBI Director this past Tuesday. And the day before that, the one in the spotlight was former Acting U.S. Attorney General Sally Yates. She served in that role for only 10 days before being removed by President Trump after refusing to enforce... Continue reading
Posted May 11, 2017 at Persuasive Litigator
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By Dr. Ken Broda-Bahm: At a recent witness preparation meeting, the doctor-defendant sat struggling to recall the details of an informed consent discussion she had with the plaintiff. "I think I told him..." she began, before finishing the statement with, "...Do you know how many patients I see? I really cannot remember." The medical record reflected that there was indeed a discussion on risks, but the notes were not specific enough to answer the key question we expected from plaintiff's counsel: Did the discussion cover the specific complication that actually occurred? Sensing that the doctor was about to resign herself... Continue reading
Posted May 8, 2017 at Persuasive Litigator
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By Dr. Ken Broda-Bahm: We live in an age of wonders, and those wonders are making it into the courtroom. Attorneys can now display, slice, and dice their documents on the fly using sophisticated presentation software, or even their own iPad. They can show demonstrative exhibits created with the kind of cutting edge design tools that used to be reserved for computer game designers. They can create complex animations using the most basic laptop computers, and even invite jurors into 360 degree immersive experiences allowing jurors to "visit" the scene without leaving the jury box. In that setting, it might... Continue reading
Posted May 4, 2017 at Persuasive Litigator
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By Dr. Ken Broda-Bahm: The earliest days of the Trump presidency, the Trump campaign, and Trump himself have all posed quite a bit of a quandary for social scientists. The reason for that is, while all politicians select, exaggerate, and sometimes tell an outright lie, Donald Trump seems to have a relationship to the truth that is strained to an unprecedented degree. From the crowd size at his inauguration, to the number who illegally voted, to the allegations of the Obama administration wiretapping Trump Tower, these demonstrable falsehoods have continued a chain stretching back to earlier whoppers like Ted Cruz's... Continue reading
Posted May 1, 2017 at Persuasive Litigator
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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 Apr 27, 2017 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 Apr 24, 2017 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