By Dr. Ken Broda-Bahm: In our increasingly digital world, the idea of taking notes the old-fashioned way with paper and pen can feel quaint. Yet, many of us still do it. For those jurors who are permitted to take notes, they...more
By Dr. Ken Broda-Bahm: The distinction between what is fact and what is opinion is arguably one of the most fundamental distinctions in law. But in practice, it is actually a lawyer’s distinction. In the real world, and in...more
In just over a month, barring any unforeseen delays, New York prosecutors and attorneys for criminal defendant Donald J. Trump will be picking a jury in what’s become known as the “hush money” case. The March 25th trial...more
In my work, I get to watch many attorneys go through the practical rituals of jury selection. A big part of the job is looking for, setting up, and executing challenges for cause when there are reasons to doubt potential...more
In the most recent verdict against former President Donald Trump, the jury awarded quite a bit more than the plaintiff had asked for. In the case of the $83.3 million defamation award made to the writer, E. Jean Carroll, we...more
Last week, the once and potentially future President of the United States was threatened with ejection from a courtroom because he could not control his verbal and non-verbal responses to the proceedings. As reported in the...more
The adage, “If it ain’t broke, don’t fix it” carries a special meaning in litigation. It can be one of those classic “damned if you do, damned if you don’t” situations: After an injury or other tortious event, if you fix...more
I will admit up front that the title for this one might sound like someone trying to weasel out of something: Trying to gain the psychological benefit of “stepping up” without the legal liability that many might see as going...more
By Dr. Ken Broda-Bahm: Seems like Americans have had it with powerful institutions lately. The organizations that have long structured our civic life have reached new lows in terms of trust, and this applies to many that have...more
There is a perspective on juror attitudes that has been receiving some attention lately. “Safetyism” refers to an individual’s tendency to not merely prefer safety, but to demand unrealistic standards of protection — no...more
I recently had the opportunity to serve as a judge for a legal advocacy program as part of my daughter’s high school constitutional law program. In watching the students answer the panel’s questions, I noticed something I...more
There’s a stereotype of what happens in jury deliberations. It involves jurors squaring off against each other, a hail of fierce argument and counter-argument, with the jurors turning themselves into proxy attorneys for their...more
A recent issue of American Lawyer included the provocatively titled article, “Why Jury Consultants May Not Be Worth It and Other Tips from Judges.” Reporting on discussions from the Ninth Circuit Judicial Conference, the...more
At a recent jury selection, opposing counsel — the plaintiff in that case — stepped up to the box of prospective jurors holding two unopened reams of paper. I knew what was coming:
If the weight of evidence is completely...more
During a recent mock trial, there was one juror seated in the front, gamely struggling to keep her attention on the case. Before too long, however, we saw drooping eyelids, followed by some pretty loud snoring. Admittedly,...more
The court’s purpose in voir dire is to use the time to identify and eliminate those jurors who would have the hardest time giving the case a fair hearing. But layered onto that purpose is the advocate’s goal of working toward...more
It is a common step in the plaintiff’s voir dire:
Ms. Smith, if you are selected for this jury, and if the evidence proves to you that the damages to my client justify a high figure, like ten million dollars, would you...more
Most of those who work in civil litigation are now familiar with the “anchoring effect,” and know that suggesting a number has an influence when it comes to damages. But attorneys may not know just how powerful that effect...more
I remember a recent mock trial where a jury reached the point of considering damages, and one juror threw out a number to start the discussion: “Let’s just say five million.” When another juror challenged the basis for that,...more
It is an important debate, and one that is likely only going to be settled on a case-by-case basis: when addressing damages, does a civil defendant embrace the idea of a counter-anchor, take the small risk of appearing to...more
On the virtual pages of this blog, I’ve long been a proponent of the idea of treating audiences for legal persuasion as active, not passive. What I mean by that is that they’re not just receptacles for your arguments, they...more
In Florida, Georgia, New York, and Washington DC, Donald Trump is facing the looming prospect of jury trials. While the word is overused these days, it is truly unprecedented for a once and maybe-future President to be facing...more
By Dr. Ken Broda-Bahm: The Covid pandemic is now mostly in the rear-view mirror, but in now busy courthouses across the country, the juries who are returning seem a little different. Based on common experience, they appear to...more
When it comes to witness goals in deposition or in trial, I think there are many useful perspectives. But looking at the range of possible advice, I think there are two bad ends of the spectrum. On one end, there is...more
The number of criminal indictments against Donald Trump is now up to four. In the self-sealing belief systems of some of the former President’s more zealous supporters, if prosecutors are going after Trump, that means they’re...more