109 posts · 68,606 views
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.
Dr. Ken Broda-Bahm
5 posts
Dr. Kevin Boully
0 posts
Dr. Shelley Spiecker
0 posts
Dr. Karen Lisko
0 posts
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- February 14, 2011
- 11:43 AM
- 1,590 views
When It Comes to Your Greatest Case Weakness, Steer Into the Skid
by Persuasion Strategies in Persuasive Litigator
By: Dr. Ken Broda-Bahm - With our current nationwide surplus of wintry weather, it has become a familiar feeling: The car you are driving loses traction and starts to slide. Your every impulse is to wrench the steering wheel hard in the opposite direction. Then the voice of your long-ago high school drivers' ed teacher enters your brain: "No," he says with an unnatural calm that only high school drivers' ed teachers and Buddhist monks are capable of, "first steer into the the skid, regain tracti........ Read more »
Correll, J. (2004) An affirmed self and an open mind: Self-affirmation and sensitivity to argument strength. Journal of Experimental Social Psychology, 40(3), 350-356. DOI: 10.1016/j.jesp.2003.07.001
- March 3, 2011
- 10:17 AM
- 1,444 views
The Key to the Defendant Apology: Say What You Mean, and Mean What You Say
by Persuasion Strategies in Persuasive Litigator
Google “public apology” and watch the results pile up. Within the last 24 hours a famous clothing designer, a city councilman, a Boston nightclub and countless others have issued apologies for their varied transgressions. We’ve covered this territory in previous posts. We’ve even laid out a pretty simple description of what constitutes a complete apology that recipients and third parties (and jurors!) are likely to perceive as sincere. So why are we talking about apology again? Is it ........ Read more »
Ten Brinke L, Macdonald S, Porter S, & O'Connor B. (2011) Crocodile Tears: Facial, Verbal and Body Language Behaviours Associated with Genuine and Fabricated Remorse. Law and human behavior. PMID: 21301943
- March 7, 2011
- 10:34 AM
- 1,363 views
The Jury is Out: Make the Most of Your Experience In an Era of Fewer Trials
by Persuasion Strategies in Persuasive Litigator
Trials - civil and criminal, federal and state, bench and jury - have become less frequent over time in the American system. The decline of the trial is a real and continued trend involved in the research, and the decline is likely to continue. There are five things that litigators should do in order to adapt to this trend: 1. Make sure you aren't settling for the wrong reasons; 2. Prepare thoroughly for any trial; 3. Give bench trials and ADR the same preparation you would give a jury; 4. ........ Read more »
Anderson, Joseph F. (2010) Where Have You Gone, Spot Mozingo? A Trial Judge’s Lament over the Decline of the Civil Jury Trial. The Federal Courts Law Review, 4(1), 99-120. info:/
Galanter, M. (2004) The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts. Journal of Empirical Legal Studies, 1(3), 459-570. DOI: 10.1111/j.1740-1461.2004.00014.x
Wittman, D. (2003) Lay Juries, Professional Arbitrators, and the Arbitrator Selection Hypothesis. American Law and Economics Association, 5(1), 61-93. DOI: 10.1093/aler/5.1.61
- March 21, 2011
- 11:48 AM
- 1,339 views
Put Your Jury Selection on Steroids by Leveraging Pretrial Research: Lessons from the Barry Bonds Trial
by Persuasion Strategies in Persuasive Litigator
This post is focused on bulking-up your ability to target high-risk jurors and performance enhancing your voir dire. So speaking of steroids, lets start with Barry Bonds. Jury selection for the perjury trial of the former San Francisco Giants power-hitter, charged with lying to a grand jury over steroid use, starts this week. Prospective jurors will fill out a 19-page questionnaire focusing on the factors that both sides believe should help to reveal bias and guide the process of exercising c........ Read more »
Druckman, J., Hennessy, C., St. Charles, K., & Webber, J. (2010) Competing Rhetoric Over Time: Frames Versus Cues. The Journal of Politics, 72(01), 136. DOI: 10.1017/S0022381609990521
- January 10, 2011
- 12:40 PM
- 1,324 views
Count Your Plaintiffs Before Certification Hatches: Class Size Matters in Some Unexpected Ways
by Dr. Ken Broda-Bahm in Persuasive Litigator
By: Dr. Ken Broda-Bahm - When dealing with the number of plaintiffs in a class action, mass tort, or other large scale litigation, is "Super-Size Me" the plaintiff's best choice? At a legal level, the U.S. Supreme Court will get a chance to weigh in, after the decision last week to determine whether as many as 1.5 million female Wal-Mart workers claiming gender discrimination can be certified as a class (Dukes v. Wal-Mart). The common belief is that a large number of plaintiffs serves to maximiz........ Read more »
Loran F. Nordgren and Mary-Hunter Morris McDonnell. (2010) The Scope-Severity Paradox: Why Doing More Harm Is Judged to be Less Harmful. Social Psychological and. info:/
- April 14, 2011
- 10:56 AM
- 1,300 views
Aim Your Product Warnings at "FYI" and Not Just "CYA"
by Persuasion Strategies in Persuasive Litigator
A warning that calls attention to a product's potential danger is obviously an important part of a company's litigation prevention and defense. But according to one recent statistic, a substantial portion of the public, and potential jury pool, may be a bit cynical on the question of whether warnings are designed to educate or just provide cover. In a 2010 Decision Analysis Survey on attitudes toward products liability litigation, fully 70% shared the belief that product warnings exist to prot........ Read more »
Decision Analysis. (2010) National Survey on Jury Attitudes: Product Liability. Lawyers USA Online. info:/
- January 27, 2011
- 06:12 PM
- 1,240 views
Whose Risk Is This? Take Personal Responsibility in Sports Litigation
by Persuasion Strategies in Persuasive Litigator
By: Dr. Kevin Boully “There is danger in all sports, anyone who plays them takes that risk for themselves.” -Mock Juror in recent sports litigation research Athletes choose to play sports that involve risk. Athletic teams, coaches and organizations are aware of the risk just like players So, how much personal responsibility does an individual athlete have for safely participating in his or her chosen sport? What must the player and the organization do to make sure all possible safeguards are........ Read more »
Kouabenan, D. (2009) Role of beliefs in accident and risk analysis and prevention. Safety Science, 47(6), 767-776. DOI: 10.1016/j.ssci.2008.01.010
- April 11, 2011
- 11:33 AM
- 1,225 views
Go Ahead and Talk with Your Hands, But Know What You're Saying
by Persuasion Strategies in Persuasive Litigator
For an upcoming opening statement or closing argument, your gestures are probably the last thing on your mind...until you actually get up to speak. Then, the commentator in your brain might be asking, "why am I gripping the sides of this lectern?" or "Is there a way I can make myself stop these meaningless chopping motions?" In this post, I want to answer the speaker's age-old question, "but what do I do with my hands?" by focusing on some recent studies on the communicative role of gestures, ........ Read more »
Cook SW, Mitchell Z, & Goldin-Meadow S. (2008) Gesturing makes learning last. Cognition, 106(2), 1047-58. PMID: 17560971
Maricchiolo, F.; Gnisci, A.; Bonaiuto, M., . (2009) Effects of different types of hand gesturs in persuasive speech on receivers' evaluations. Language and Cognitive Processes, 24(2), 239-266. info:/
- April 18, 2011
- 10:55 AM
- 1,208 views
Time Your Arguments to the Judge's Lunch Breaks (and Adapt to All Decision Makers' "Cognitive Load")
by Persuasion Strategies in Persuasive Litigator
Anyone who argues in front of judges knows that human factors can weigh as heavily as the law in determining your judge's decisions. But it is still possible at times to be surprised at the degree of influence, as well as the banality of those human factors. Case in point: lunch and snack breaks. Recent research appears to show that judges' decisions vary as a direct effect of the proximity of their morning snack or lunch break. In this post, I apply these research findings to the more gener........ Read more »
Danziger S, Levav J, & Avnaim-Pesso L. (2011) Extraneous factors in judicial decisions. Proceedings of the National Academy of Sciences of the United States of America. PMID: 21482790
- January 13, 2011
- 10:00 AM
- 1,202 views
Help Jurors Detect (or Protect) Holes in Expert Analysis
by Dr. Kevin Boully in Persuasive Litigator
by: Dr. Kevin Boully Infamous rock singer Courtney Love is in trouble again. Unless you’re her lawyer (or one of her forgiving fans)1, you are probably wondering what Love’s troubles have to do with your persuasive advocacy. Fair question. The Hole lead singer’s 2009 Twitter tirade against fashion designer Dawn Simorangkir made her a defendant in a defamation lawsuit that may be headed for trial in early February.2 Most importantly, Ms. Simorangkir has reportedly retained a social media ........ Read more »
Ivković, S., & Hans, V. (2003) Jurors'Evaluations of Expert Testimony: Judging the Messenger and the Message. Law Social Inquiry, 28(2), 441-482. DOI: 10.1111/j.1747-4469.2003.tb00198.x
McAuliff BD, & Duckworth TD. (2010) I spy with my little eye: jurors' detection of internal validity threats in expert evidence. Law and human behavior, 34(6), 489-500. PMID: 20162342
- April 4, 2011
- 11:15 AM
- 1,201 views
Avoid Lockout: Address Judges and Arbitrators Persuasively
by Persuasion Strategies in Persuasive Litigator
It is a reality that judges and arbitrators have an increasingly important role in the future of sports. So it got me thinking about our experience with judges and arbitrators and how advocates must address them to be successful. Here are four key things all advocates should remember about persuading judges and arbitrators.... Read more »
Guthrie, C., Rachlinski, J., & Wistrich, A. (2001) Inside the Judicial Mind. SSRN Electronic Journal. DOI: 10.2139/ssrn.257634
- January 19, 2011
- 09:34 PM
- 1,192 views
Keep Your International Arbitration out of the Tower of Babel
by Persuasion Strategies in Persuasive Litigator
By: Dr. Ken Broda-Bahm - So, a retired Brazilian judge, two American litigators, and three German engineers walk into a bar... Okay, so it wasn't a bar, it was an international arbitration, but the potential for miscommunication is just as great as the joke intro would imply. This one took place in Sao Paulo, Brazil and it was preceded by a two-day mock arbitration that I facilitated in order to help our litigation team prepare the best arbitration case possible. Any case that makes it to arbitr........ Read more »
Shweder RA. (2010) Donald Campbell's doubt: cultural difference or failure of communication?. The Behavioral and brain sciences, 33(2-3), 109-10. PMID: 20546655
- January 3, 2011
- 11:18 AM
- 1,151 views
Learn from Christine O'Donnell's Possible 'Witch Trial': Be Cautious in the Court of Public Opinion
by Dr. Ken Broda-Bahm in Persuasive Litigator
By: Dr. Ken Broda-Bahm - When Christine O'Donnell, the Tea Party favorite who won the Republican nomination for a Delaware Senate seat before losing in November's general election, received word of an U.S. Attorney's Office investigation and possible charges stemming from misuse of about $20,000 in campaign funds to pay her personal expenses, she immediately took to the airwaves. On a variety of network and cable news shows, she unequivocally denied the charges and went further to call the inves........ Read more »
Michele DeStefano Beardslee. (2009) Advocacy in the Court of Public Opinion, Installment One: Broadening the Role of Corporate Attorneys. The Georgetown Journal of Legal Ethics, 22(4). info:/
- January 28, 2011
- 01:12 PM
- 1,114 views
Test the Waters, but Don’t Assume that Bias is Forever: Deepwater Hasn’t Translated to Deep Trouble for Energy Defendants
by Persuasion Strategies in Persuasive Litigator
By: Dr. Shelley Spiecker Six months after the public was riveted to press coverage of the oil spill in the Gulf, impact on energy defendants has been less doomsday than feared. In fact, this is one of the better times in the past 10 years to be an energy defendant in front of a jury. Why? Much as the spill itself appeared to dissipate more rapidly than expected, the tide of public opinion has drifted away from concern over the environmental practices of energy companies, and toward concern over ........ Read more »
Bolsen, T., & Cook, F. (2008) The Polls--Trends: Public Opinion on Energy Policy: 1974-2006. Public Opinion Quarterly, 72(2), 364-388. DOI: 10.1093/poq/nfn019
- January 16, 2011
- 06:25 PM
- 1,108 views
Don't Advocate from a Position of Hate
by Persuasion Strategies in Persuasive Litigator
By: Dr. Ken Broda-Bahm - On some days, just watching the news can stop us cold. Those who work in law should be proud to be part of a system that, however imperfectly, resolves disputes with appeals to reason and judgment rather than force. But the opposite end of the spectrum was seen in last week's devestating shooting in Tucson that left six dead and fourteen injured. While the motives of the shooter remain hazy at the time of writing, one element seems clear: for whatever twisted reason, the........ Read more »
Blatt B, LeLacheur SF, Galinsky AD, Simmens SJ, & Greenberg L. (2010) Does perspective-taking increase patient satisfaction in medical encounters?. Academic medicine : journal of the Association of American Medical Colleges, 85(9), 1445-52. PMID: 20736672
Wayne Brockriede. (1972) Arguers as Lovers. Philosophy and Rhetoric, 1-11. info:/
Horberg, E., Oveis, C., Keltner, D., & Cohen, A. (2009) Disgust and the moralization of purity. Journal of Personality and Social Psychology, 97(6), 963-976. DOI: 10.1037/a0017423
Haiqing Li and Samir Chatterjee. (2010) Designing Effective Persuasive Systems Utilizing the Power of Entanglement: Communication Channel, Strategy and Affect. Lecture Notes in Computer Science. DOI: 10.1007/978-3-642-13226-1_27
- March 14, 2011
- 10:21 AM
- 1,108 views
Settle Your Case Without Setting the Dominoes in Motion: Research on the Demonstration Effect
by Persuasion Strategies in Persuasive Litigator
The recent turmoil and uprisings across North Africa and the Middle East provide a good example of the "demonstration effect," which is an influential factor for many litigators and general counsels assessing their case. What about one's success enables others to act and what can you do to stop the dominoes from falling? ... Read more »
Townsend, D.; Busenitz, L.; . (2010) To start or not to start: Outcome and ability expectations in the decision to start a new venture☆. Journal of Business Venturing, 25(2), 192-202. DOI: 10.1016/j.jbusvent.2008.05.003
- March 17, 2011
- 07:27 AM
- 1,099 views
Know Your 'God Terms' and Your 'Devil Terms'
by Persuasion Strategies in Persuasive Litigator
The need for a theme that communicates, simplifies, and unites your case has become common sense to litigators. But the way that we come up with a theme is a little more mysterious. This post suggests one handy tool that will not only help you develop a theme, but will also provide you with a broad working vocabulary to use when talking about your case. The advice is to draw from the work the rhetorician Richard Weaver and identify the ‘god terms’ and ‘devil terms’ of your case. God t........ Read more »
Zhang, J. (2010) Exploring the Rhetoric of Public Diplomacy in the Mixed-Motive Situation: Using the Case of President Obama’s ‘Nuclear-Free World’ Speech in Prague. Place Branding and Public Diplomacy, 6(4), 287-299. info:/
- February 28, 2011
- 11:31 AM
- 1,089 views
Conduct a Social Media Analysis on Your Potential Jurors (But Beware of False Expectations of Privacy)
by Persuasion Strategies in Persuasive Litigator
An enhanced ability to gather information online has run into direct conflict with users' sometimes unrealistic expectations of privacy. The latest area of controversy is the use of such information during the process of jury selection. In this post, I defend the practice of checking on a jurors public information online, while at the same time suggesting that there are right and wrong ways to do it. ... Read more »
Alessandro Acquisti and Ralph Gross. (2010) Imagined communities: Awareness, information sharing, and privacy on the Facebook. Privacy Enhancing Technologies (PET) Workshop, 36-58. info:/
- February 21, 2011
- 10:16 AM
- 1,071 views
Pay Close Attention to the Big Mouths in Voir Dire
by Persuasion Strategies in Persuasive Litigator
By: Dr. Ken Broda-Bahm - So your case is in, your jury is ready to start deliberating, and you feel pretty confident that at least the majority of your jurors favor your side of the case. Should you feel safe? Of course not, because the verdict isn't in the hands of the majority as much as it is in the mouths of those with the loudest and most persistent voices. When conducting mock trials, we see it over and over again: The individual verdict preferences we measured before the start of delibera........ Read more »
King, A., Johnson, D., & Van Vugt, M. (2009) The Origins and Evolution of Leadership. Current Biology, 19(19). DOI: 10.1016/j.cub.2009.07.027
Weaver, K., Garcia, S., Schwarz, N., & Miller, D. (2007) Inferring the popularity of an opinion from its familiarity: A repetitive voice can sound like a chorus. Journal of Personality and Social Psychology, 92(5), 821-833. DOI: 10.1037/0022-3514.92.5.821
- March 23, 2011
- 06:36 PM
- 1,067 views
Experts Witnesses: When Criticized, Don't Just Respond, Riposte!
by Persuasion Strategies in Persuasive Litigator
In fencing, a "riposte" is the act of turning away an attack (a parry) and converting it into a strike back at your opponent. In common conversation, a riposte means answering an attack or an insult with a witty reply. In either case, it is a good come back that converts defense to offense, and that is what expert witnesses need to be looking for when their credentials, methods, or conclusions are being criticized as part of litigation. It may sound obvious to "have a good response," but rece........ Read more »
Foster, E.L. (2010) Anchoring and the Expert Witness Testimony Do Countervailing Forces Offset Anchoring Effects of Expert Witness Testimony. Tennessee Law Review. info:/
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