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PERSUASIVE LITIGATOR

Our Persuasive Litigator blog contains timely information and practical tips on legal persuasion spanning pretrial and trial phases, for jury, bench, and arbitration settings.

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June 02, 2022
Prepare for Multiple Choice Questions in Deposition
Anecdotally, I have seen it in a few recent cases: The deposition witness isn’t asked an open-ended question and isn’t given a “Yes or No” either. Instead, they are given a range...
May 23, 2022
Know the Other Side's Three Goals for Your Deposition
So, your deposition has been scheduled, and you’re just starting to wrap your head around what is in store for you. Your lawyer has already stressed that you are not in the...
May 16, 2022
Look Beyond Your Jurors' Political Identification: Education Matters
Whenever we step up to evaluate a person as a potential juror, it can be an occupational hazard to simplify that person too much. We do our best with the time and information...
May 12, 2022
Witnesses, Don't Create Obstacles to a Positive Perception
Witnesses, I’d like to have a word. You know the most important audience for your testimony — the jurors in the courtroom with you, or the future jury who might someday see a clip...
May 09, 2022
The Research/Practice Gap: You Should Continue to Prefer Live Testimony
I recently visited one of the Meow Wolf locations, and my feelings about the immersive art installation tracked with the typical reactions: As vivid as the pictures are, they...
May 05, 2022
Embrace the Power of "You might be thinking…"
A seasoned trial lawyer stands in front of the jury, previews the critical argument, and then, making knowing eye contact with the jury, adds, “Now, you might be thinking…” before...
May 02, 2022
Address Anti-Expert Bias: 5 Ways
It has been a rough couple of years for science. Our newly-unmasked population seems to be more divided than ever about our ability to rely on science in applying systematic and...
April 28, 2022
Apply Two Tests to Any Battle Between Stories
It’s America’s case of the moment: Johnny Depp and Amber Heard, Hollywood’s former power-couple, now exchanging accusations of physical abuse in a Fairfax, Virginia courtroom. The...
April 25, 2022
Reserve Your Opening? Three Ways that Rare Strategy Might Make Sense
The reserved opening statement is a strategy that, in all my years helping in the courtroom, I have never seen applied. In theory, a defendant typically has the right to wait...
April 21, 2022
Take the Medicine: Three Steps to Pre-empting Your Witness's Bad Stuff
You have your witness on the stand in direct examination. You have finished laying out the positive story that you want to tell, but you have one more thing to do before handing...
April 18, 2022
Experts: Use Anecdotes, not Just Data
By Dr. Ken Broda-Bahm: For those trained in the sciences, relying on illustrations or examples is not considered nearly as good as relying on data. If they call something...
April 14, 2022
Distinguish the Four Types or Phases of Witness Preparation
By Dr. Ken Broda-Bahm: Experienced trial lawyers know it is important that their witnesses are prepared to testify. At the deposition stage, and even when the likelihood of a...
November 11, 2021
Expect a Complex Response to Emotional Testimony
Kyle Rittenhouse, the then-minor charged with killing two and wounding a third at a protest in Kenosha Wisconsin in the Summer of 2020, took the stand in his own defense at his...
November 08, 2021
Account for Camera Perspective Bias
This past Friday, eight people died at a music festival in Houston, crushed by a crowd as the music continued and security was unable to help. As the tragedy moves toward...
July 12, 2021
Press for Extended Voir Dire (and Don't Trust Judicial Rehabilitation)
In the context of voir dire, the tension between social science and court practice is becoming close to intolerable. On the court side, we continue under the assumptions that...
July 08, 2021
Stop Asking Potential Jurors About What They Can ‘Set Aside'
At the start of the case, a trial judge somberly addressed the jury, letting them know what adjustments were expected of them. The instructions told them they, “must as jurors...
March 15, 2021
The Punishment Profile: Know the Juror Characteristics
As a defendant thinking about your risk in the run up to civil trial, you probably have some idea of what your case is worth. But you also know, and have likely used, the...
March 11, 2021
The Pizza Scenario: Expect Punishment to be Driven by Both Equity and Retribution
What drives the motivation to not just compensate but to punish? When it comes to considering the purpose and amount of legal damages, the defense will predictably want a jury...
November 12, 2020
Make Sure Your Filings Pass the "Straight Face Test" (2020 Election)
Earlier this week, I wrote about winning and losing with dignity. For this post, I want to take a closer look at the potential flip side of that. In the days since the close state...
November 09, 2020
Win and Lose With Dignity
After a tense few days of states counting votes while the public kept refreshing the CNN map, the 2020 Presidential Election has finally been called. And at least in the initial...