By Dr. Ken Broda-Bahm: Mediation is often guided by predictions made by each side, as well as by the mediator: if this case went to trial and faced a jury, what would that jury likely do with it? Naturally, each of these three actors will have a belief about that, and those beliefs may be
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Witnesses: Be Tough to Cross
By Dr. Ken Broda-Bahm: Cross-examination is a big deal for a key witness. I’ve noticed in trial that it gets some added attentiveness from the jury. Knowing that they’re now seeing one side pitted directly against the other, jurors will sit forward a bit in their seats to see who gets the better end of…
Avoid Legalese, and Other ‘Magic Spells’
By Dr. Ken Broda-Bahm: Every trial lawyer I know believes that they are adapting their communication in order to get the jury — or, for that matter, the judge — to understand. At the same time, they will still try to be concise, correct, and specific. Sometimes, the competing demands can lead lawyers into speaking…
When You Concede Liability, Make Sure You Concede With Benefits
By Dr. Ken Broda-Bahm: Sometimes in civil cases, the plaintiff’s liability claim is opportunistic, wishful, or factually weak. Other times, it is real. Someone didn’t do their job, a danger was missed, or — in that Olympic champion of passive-voice phrases — “mistakes were made.” In this situation, the question of whether to contest or…
Keep Your ‘Three Hats’ Straight in Witness Prep: Counsellor, Teacher, Coach
By Dr. Ken Broda-Bahm: When it comes to the delicate task of preparing a witness for deposition or trial, everyone has their own style. It is also true that every witness will have their own needs. Some know the drill already and just need to discuss the facts, while others can be uncertain, stressed, or…
The Kamala Harris Challenge: Establish (or Reestablish) Your Credibility: Five Lessons
By Dr. Ken Broda-Bahm: I have long believed that persuaders of all stripes, including courtroom persuaders, can learn a lot of lessons from political communication. The dialogue over the leadership and direction of the country can be a gold mine: It’s national, it provides a wealth of examples good and bad, and — particularly recently…
Don’t Select Your Jury on Gut or Habit: Create a Unique Jury Profile for Every Case
By Dr. Ken Broda-Bahm: Of all the areas of legal lore, perhaps none are more loaded down with mystique than jury selection. Attorneys with long experience will develop some pretty solid views, and those habits on who they’re looking to seat and who they’re looking to strike can create a baked-in preference independent of the…
Profile Your Nuclear Juror (Based on the Research)
By Dr. Ken Broda-Bahm: In addition to making their views known at the ballot box, citizens can similarly broadcast their sentiments in the civil jury box. While they’re asked to merely make a factual finding limited to a specific dispute, the verdicts can read as a more generalized message about their feelings about the state…
Fight (Constitutionally) for Your Peremptory Strikes
By Dr. Ken Broda-Bahm: It has become more commonplace to hear talk about a future of litigation without peremptory strikes. After all, Arizona in 2022 was the first state to eliminate strikes in all cases, and it may not be the last. California and Washington have moved to revised schemes for exercising strikes, relying not…
Learn from Joe Biden’s Debate Destruction: 5 Nonverbal Don’ts
By Dr. Ken Broda-Bahm: At last week’s Presidential debate, incumbent Joe Biden performed about as poorly as the worst predictions. In the panicked aftermath, calls have mounted for the 81-year-old President to gracefully exit his party’s nomination stage in order to allow fresher leaders to take his place. Part of the reaction was certainly based…