109 posts · 67,222 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
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- May 20, 2013
- 01:46 PM
- 20 views
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 own attitudes and know the sources of their own judgments well enough to say whether they would...... 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
- 5 views
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 the audience spoke out: "Do you still," he asked, "have faith in a jury to deliver a...... 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
- 9 views
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 consistent with a very common and very American tendency for common good arguments to...... Read more »
Hamedani MG, Markus HR, & Fu AS. (2013) In the land of the free, interdependent action undermines motivation. Psychological science, 24(2), 189-96. PMID: 23302297
- March 4, 2013
- 11:56 AM
- 173 views
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 recession. It's a reason to be wary of artificial deadlines, and just the latest example of Democrats and Republicans...... 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
- 179 views
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 patent verdict against the company, Judge Koh denied Samsung's motion for a mistrial based on the supposed improper...... Read more »
Cheng JT, Tracy JL, Foulsham T, Kingstone A, & Henrich J. (2012) Two Ways to the Top: Evidence That Dominance and Prestige Are Distinct Yet Viable Avenues to Social Rank and Influence. Journal of personality and social psychology. PMID: 23163747
- December 20, 2012
- 11:02 AM
- 250 views
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 we didn't see in the public's responses after the Aurora, Colorado theater shooting, or the...... Read more »
Amit E, & Greene JD. (2012) You see, the ends don't justify the means: visual imagery and moral judgment. Psychological science, 23(8), 861-8. PMID: 22745347
- December 13, 2012
- 11:13 AM
- 144 views
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. Based on some new research (Jacks et al., 2013), the...... 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
- 156 views
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, but in practical terms, knowing what to limit can be very difficult. A classic study...... 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
- 161 views
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 apply two different frames around the situation. The first...... Read more »
Van Bavel JJ, Packer DJ, Haas IJ, & Cunningham WA. (2012) The Importance of Moral Construal: Moral versus Non-Moral Construal Elicits Faster, More Extreme, Universal Evaluations of the Same Actions. PloS one, 7(11). PMID: 23209557
- November 26, 2012
- 12:06 PM
- 182 views
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 is due to a subjective feeling of anonymity or invisibility when one is arguing without in-person communication. But based...... Read more »
Lapidot-Lefler, N., & Barak, A. (2012) Effects of anonymity, invisibility, and lack of eye-contact on toxic online disinhibition. Computers in Human Behavior, 28(2), 434-443. DOI: 10.1016/j.chb.2011.10.014
- November 19, 2012
- 12:20 PM
- 236 views
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 Empirical Legal Studies...... Read more »
Mueller, P.; Solan, L.; Darley, J. (2012) When Does Knowledge Become Intent? Perceiving the Minds of Wrongdoers. Journal of Empirical Legal Studies, 9(4), 859-892. DOI: 10.1111/j.1740-1461.2012.01269.x
- November 15, 2012
- 11:40 AM
- 223 views
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 skeptical and attentive jury. That is the idea, but in practice, there...... Read more »
Robertson, C. T. (2010) Blind Expertise. New York University Law Review, 174-256. info:/
- November 12, 2012
- 11:25 AM
- 185 views
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 channels, including some that are tailored to our ideological...... 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
- 244 views
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 dangerous. They will not see it simply as an understandable or rational decision...... Read more »
O'Brien E, & Ellsworth PC. (2012) More than skin deep: visceral states are not projected onto dissimilar others. Psychological science, 23(4), 391-6. PMID: 22402799
- November 1, 2012
- 12:02 PM
- 290 views
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 childhood vaccines cause autism, that there is no consensus on human-caused...... 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
- 273 views
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, betting that their candidate could continue to capitalize on a stronger than expected performance that has buoyed him in the polls leading up to...... Read more »
Küfner 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
- 357 views
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 uncertain, as can the fate of bad science. Even in this age of Daubert, separating the valid from the invalid can be a challenge for both jurors and judges. In the upcoming trial of Fort Hood shooter Major Nidal Hasan, for example, there is a current controversy over the testimony of Evan Kohlmann, a terrorism expert who has classified Hasan as a "homegrown terrorist" on the basis of a six-factor model he developed, which may or may not be falsifiable or replicable. In the more typical case relying on expert testimony, the need to convince judges and jurors to critically evaluate the methods and the reasoning that under-girds research conclusions can be critical. In this post, we'll take a look at one study showing that jurors are able to identify some but not most methodological flaws in research, and draw some conclusions on the best practices for separating the good science from the bad in litigation. ... Read more »
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
- August 13, 2012
- 07:22 AM
- 293 views
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 study (Newman et al., 2012) focuses on the role of imagery in enhancing the subjective perception of truth, aka "truthiness." But despite the tongue-in-cheek nod to Colbert, this isn't just a novelty, but a serious study with important implications for all who aim to persuade.
The researchers conducted several experiments and concluded that simply accompanying a statement with an image -- one that is non-probative and simply accenting the written message -- significantly increases the chances that the statement will be accepted. Now ethical litigators may be tempted to see this as a gimmick or a parlor trick: "I'll win my cases on the evidence, thank you very much." But we shouldn't be too quick to dismiss the finding that imagery increases the perceived truth of a message. An attorney's job is not just to convince with good evidence and sound argument, but to facilitate the kind of attention and processing that allows the good evidence and the sound argument to have a chance. This post will explain the research and provide some concrete illustrations of how attorneys can enhance their "truthiness" by using imagery in argument. ... 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
- 237 views
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, and overcoming them can also carry some unexpected benefits. According to a forthcoming study (Goclowska...... Read more »
Goclowska, M. A. . (2012) On counter-stereotypes and creative cognition: When interventions for reducing prejudice can boost divergent thinking. Thinking Skills and Creativity. DOI: 10.1016/j.tsc.2012.07.001
- July 30, 2012
- 11:44 AM
- 217 views
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 was just a matter of giving reasons that convince your decision-maker, it would...... 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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