Persuasive Litigator

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Persuasive Litigator aims to provide litigators and other devotees of legal persuasion with practical tips and innovative litigation strategies spanning pretrial and trial phases, for jury, bench, and arbitration settings.

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  • May 20, 2013
  • 01:46 PM

Never Rely on Self-Diagnosis of Bias

by Persuasion Strategies in Persuasive Litigator

By Dr. Ken Broda-Bahm: Think of the situations where self-diagnosis wouldn't work very well: A police officer asking, "Do you think you were speeding?" or a doctor inquiring, "Do you believe your cancer is in remission?" Yet we still rely on self-diagnosis when trying to discover and eliminate bias in civil and criminal cases by essentially asking prospective jurors, "Are you biased?" A new study (Robertson, Yokum & Palmer, 2013) takes a look at whether we can rely on jurors to identify their ow........ Read more »

Robertson, C., Yokum, D., . (2013) The Inability of Jurors to Self-Diagnose Bias. 7th Annual Conference on Empirical Legal Studies Paper, 12-35. info:/

  • May 6, 2013
  • 02:21 PM

See the Process and Not Just the Product in Deliberation

by Persuasion Strategies in Persuasive Litigator

By Dr. Ken Broda-Bahm: Over the weekend I gave a presentation at a law firm retreat in Palm Springs. The presentation drew from a recent mock trial in an insurance dispute and the deliberation video clips I was playing could've been seen as a parade of mistakes: jurors ignoring instructions, flagrantly applying their own experience and knowledge, and framing the dispute within their own terms instead of the frame provided by the presenting attorneys. After about an hour of this, one attorney in ........ Read more »

Leah Sprain and John Gastil. (2013) What Does It Mean to Deliberate? An Interpretive Account of Jurors' Expressed Deliberative Rules and Premises. Communication Quarterly, 61(2), 151-171. info:/

  • April 22, 2013
  • 11:45 AM

Speak to the Individual, Not the Common

by Persuasion Strategies in Persuasive Litigator

By Dr. Ken Broda-Bahm: Last week in the U.S. Senate, a measure to require universal background checks on gun purchases failed to get the 60 votes needed to survive. The arguments supporting the common good of keeping firearms out of the wrong hands were, to 45 Senators, was not as strong as the individual rights based aversion to new restrictions in any form. Though this decision was out of step with prevailing public opinion (with 86 percent of the public supporting such checks), it was quite c........ Read more »

  • March 4, 2013
  • 11:56 AM

Speak to the Brain's Politics

by Persuasion Strategies in Persuasive Litigator

By Dr. Ken Broda-Bahm: Once more, over the cliff! Our lawmakers have had to make, or not make, some risky decisions lately. The "sequester," a poison pill of across-the-board cuts designed to force a spending compromise, has just done what no one believed it would do when it was created in 2011: It's gone into effect. That is widely expected to result in hundreds of thousands of layoffs, imperil effectiveness across federal programs, and potentially nudge our struggling economy back into recessi........ Read more »

Schreiber D, Fonzo G, Simmons AN, Dawes CT, Flagan T, Fowler JH, & Paulus MP. (2013) Red brain, blue brain: evaluative processes differ in democrats and republicans. PloS one, 8(2). PMID: 23418419  

  • December 27, 2012
  • 11:35 AM

Spot Your Jury Leader

by Persuasion Strategies in Persuasive Litigator

By Dr. Ken Broda-Bahm: Who leads and who follows? That question can be critical to understanding and adapting to your jury. The individual who sets the agenda, guides the discussion, and leads uncommitted or wavering jurors to a conclusion is obviously worth a closer look than those who take their cues from others. A failure to know and to thoroughly learn about that future leader can have big consequences for your case. Samsung learned that recently when following Apple's historic $1 billion pa........ Read more »

  • December 20, 2012
  • 11:02 AM

Use Mental Images to Sway Moral Judgment

by Persuasion Strategies in Persuasive Litigator

By Dr. Ken Broda-Bahm: Over the past week, the phrase "beyond words" has been a common way of describing the nation's reaction to the murder of 20 young children and six adults at Sandy Hook Elementary School in Connecticut. In a way, it is literally beyond words, because what dominates our thoughts is the mental image of a class of terrified first graders killed in a spray of bullets from a semi-automatic assault rifle. In the days following this tragedy, there are noticeable differences that w........ Read more »

  • December 13, 2012
  • 11:13 AM

Switch Between Analysis and Empathy (Because You Won't Get Both at the Same Time)

by Persuasion Strategies in Persuasive Litigator

By Dr. Ken Broda-Bahm: Take a look at the picture above. See the duck (looking to the left)? Now, see the rabbit (looking to the right)? Now try to see them both at the same time. If you're like most people, you can't. Instead of seeing an image that is simultaneously a duck and a rabbit, your perception flips back and forth: now the rabbit, now the duck, but never both at the same time. The image is what they call "multi-stable," or capable of having different but mutually-exclusive perceptions........ Read more »

Jack AI, Dawson AJ, Begany KL, Leckie RL, Barry KP, Ciccia AH, & Snyder AZ. (2012) fMRI reveals reciprocal inhibition between social and physical cognitive domains. NeuroImage, 385-401. PMID: 23110882  

  • December 10, 2012
  • 12:10 PM

Beware of TMI: More Information Doesn't Lead to Better Decisions

by Persuasion Strategies in Persuasive Litigator

By Dr. Ken Broda-Bahm: There is a disconnect between awareness and reality when it comes to the level of information presented in complex civil litigation. On the one hand, experienced litigators know that jurors can only absorb so much, and will be deciding a case based on the peaks and not the nooks and valleys you give them. But, too often, that understanding is shattered in the face of voluminous exhibit and "will call" lists. In broad terms, we understand that more isn't necessarily better,........ Read more »

Bastardi A, & Shafir E. (1998) On the pursuit and misuse of useless information. Journal of personality and social psychology, 75(1), 19-32. PMID: 9686449  

  • December 6, 2012
  • 11:44 AM

Pick the Right Frame

by Persuasion Strategies in Persuasive Litigator

By Dr. Ken Broda-Bahm: Earlier this week at a mock trial, I witnessed a face-off between two jurors with very different views about the same insurance case: "The company wasn't fair," cried one, "to this day they haven't stepped up to do the right thing." But the other juror was unmoved: "The policy is what it is, there's no benefit to them going beyond it." It is tempting to see this as an exchange between two types of people. But more accurately, it is a conflict between people who happen to a........ Read more »

  • November 26, 2012
  • 12:06 PM

Negotiate, Mediate (and Testify) Eye to Eye

by Persuasion Strategies in Persuasive Litigator

By Dr. Ken Broda-Bahm: Have you ever seen an argument get somewhat bitter or personal in an online forum or via electronic communication? That is a little like asking, "have you ever visited an online forum or used electronic communication?" When we're safe behind keyboards, or to a lesser extent, on the telephone, arguments can escalate more than they would in person. For those who study communication, the theory has been that this heightened tendency toward becoming nastier and more aggressive........ Read more »

  • November 19, 2012
  • 12:20 PM

Treat Knowledge as Intent

by Persuasion Strategies in Persuasive Litigator

By Dr. Ken Broda-Bahm: It is one thing to know an act has a chance of resulting in harm, and it's another to intend that harm to occur. Or is it? Consider the example of a company that is aware of a small risk of electric shock if repairs are done without powering off a piece of equipment. If the company sends an employee to make that repair anyway, would jurors say that company intended the injury to occur? It turns out, it depends on how you ask the question. A new study in the Journal of Empi........ Read more »

  • November 15, 2012
  • 11:40 AM

Consider a Blind Expert Witness

by Persuasion Strategies in Persuasive Litigator

By Dr. Ken Broda-Bahm: Justice may be blind, but hired experts can see pretty darned well in our litigation system. No, a responsible expert won't lie in order to support their client. But yes, a knowledge of who the client is can't help but have at least a subtle influence on the resulting testimony. But that is our adversarial system, right? Both sides hire the best they can find who are willing to support their theories, and the two sides fight it out, aided by cross-examination and a skeptic........ Read more »

Robertson, C. T. (2010) Blind Expertise. New York University Law Review, 174-256. info:/

  • November 12, 2012
  • 11:25 AM

Treat Fact Finders as Information Wolves, Not Information Sheep

by Persuasion Strategies in Persuasive Litigator

By Dr. Ken Broda-Bahm: Sheep tend to placidly eat what's in front of them. Wolves, on the other hand, hunt. Now, with that distinction in mind, think about how we now typically gather information. There may have once been a time when the average American came home from work, turned on the television, and just soaked in the news as placidly as a sheep. Now, on the other hand, we hunt our information like a wolf. In addition to being able to target our news from a dizzying array of television chan........ Read more »

Hannaford-Agor, P.,, Rottman, D. B.,, & Waters, N. L. (2012) Juror and Jury Use of New Media: A Baseline Exploration. Executive Session for State Court Leaders in the 21st Century (Papers), National Center for State Courts. info:/

  • November 5, 2012
  • 11:40 AM

Know the Limits of Political Empathy

by Persuasion Strategies in Persuasive Litigator

By Dr. Ken Broda-Bahm: The presidential contest is too close to call, but assuming we have a result by the end of the election day tomorrow, one thing is all but certain: Roughly half of the population will be shocked and appalled by the decision made by the only slightly larger other half of the population. Whether Mitt Romney becomes the incumbent president or Barack Obama gains a second term, the nearly half that is on the losing end will see the result as misguided, incomprehensible and dang........ Read more »

  • November 1, 2012
  • 12:02 PM

Cut Through the "Stickiness" of Prior Beliefs

by Persuasion Strategies in Persuasive Litigator

By Dr. Ken Broda-Bahm: Here is one belief I'm pretty sure about: Most of us tend to be pretty sure about our beliefs. As the waning campaign season has continued to demonstrate, we tend to select a chosen belief and stick to it rigorously, even in the face of contrary information. In our personal campaign to understand the world, we are not dictated by the fact checkers. Substantial portions of the American public believe that Barack Obama was not born in the United States and is a Muslim, that ........ Read more »

Lewandowsky, S., Ecker, U., Seifert, C., Schwarz, N., & Cook, J. (2012) Misinformation and Its Correction: Continued Influence and Successful Debiasing. Psychological Science in the Public Interest, 13(3), 106-131. DOI: 10.1177/1529100612451018  

  • October 25, 2012
  • 11:37 AM

Be Assertive, Not Aggressive: 2012 Presidential Debate Series, Part Three

by Persuasion Strategies in Persuasive Litigator

By Dr. Ken Broda-Bahm: Everyone loves a second act. In the buildup to the presidential debate on Tuesday, President Obama's supporters were hoping for turnaround from what was widely described as a lackluster performance in the first debate: He needed to find his edge, fight harder, and call out his opponent Mitt Romney more often and more forcefully. One could almost hear the cheerleaders, "Be...Aggressive...Be...Be...Aggressive!" And there is no doubt Romney supporters were chanting the same, ........ Read more »

K├╝fner AC, Nestler S, & Back MD. (2012) The Two Pathways to Being an (Un-)Popular Narcissist. Journal of personality. PMID: 22583074  

  • September 3, 2012
  • 09:50 AM

Teach the Difference Between Science and Junk

by Persuasion Strategies in Persuasive Litigator

By Dr. Ken Broda-Bahm: Even good science can sometimes be a tough sell in the court of public opinion. Take, for example, the moment in Republican Presidential nominee Mitt Romney's acceptance speech last week where he mocked the President's concern over rising sea levels. The crowd of delegates in Tampa cheered wildly, though the fact of sea level rise, if not its exact cause, is scientifically uncontroversial.

In the actual courts, the fate of good scientific information can be just as uncer........ Read more »

  • August 13, 2012
  • 07:22 AM

Keep an Eye on Your "Truthiness"

by Persuasion Strategies in Persuasive Litigator

If you recognize the word "truthiness" then chances are, you are a fan of Comedy Central's mock news commentator Steven Colbert. If not, the neologism is something Colbert coined in his first show in 2005, and "truthiness is what you want the facts to be, as opposed to what the facts are. What feels like the right answer, as opposed to what reality will support." In a case of science imitating art which is in turn imitating life, it turns out the concept has gained scholarly attention. A new stu........ Read more »

Newman EJ, Garry M, Bernstein DM, Kantner J, & Lindsay DS. (2012) Nonprobative photographs (or words) inflate truthiness. Psychonomic bulletin . PMID: 22869334  

  • August 2, 2012
  • 11:19 AM

Subvert Stereotypes: Free the Attorney, the Expert, and the Juror

by Persuasion Strategies in Persuasive Litigator

By Dr. Ken Broda-Bahm: Think beyond the stereotypes. That is what you're used to hearing (and I'm used to saying) about jury selection. But that same need to subvert the stereotypes applies not just to picking panelists, but to persuading as an attorney or an expert witness as well. In each of these situations, some very durable preconceptions are apt to stand between an advocate and a fair hearing. Stereotypes are often an obstacle to persuasion. It turns out that these barriers can be overcome........ Read more »

  • July 30, 2012
  • 11:44 AM

Make Events Meaningful by Inviting Counterfactuals

by Persuasion Strategies in Persuasive Litigator

By Dr. Ken Broda-Bahm: Imagine this messaging challenge: Your case isn't a personal injury case, where there is a discrete moment you're asking jurors to evaluate. Instead, it is a commercial case, where there is a profusion of details, memos, and meetings, each like individual flakes in a snowstorm. In order to make it not just dramatic but simply intelligible, you need to take one or a few of those specifics and create a meaningful event to serve as the focus of your story. If legal persuasion........ Read more »

Kray, L. J.; George, L. G.; Liljenquist, K. A.; Galinsky, A. D.; Roese, N. J. (2010) From What Might Have Been to What Must Have Been: Counterfactual Thinking Creates Meaning. Journal of Personality and Social Psychology, 98(1), 106-118. info:/

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