Amid the chaos this week in the British Parliament, Prime Minister Boris Johnson referred to opposition leader Jeremy Corbyn, calling him a “chlorinated chicken” and, oddly, “a great big girl’s blouse.” While certainly...more
Defendants in many areas of litigation are likely familiar at this point with the Reptile approach to trying plaintiffs’ cases. A central pillar of the strategy, and its namesake, is the idea that personally-relevant fear...more
In a fast-paced technological age, it is refreshing that the simple act of a person giving a speech still has some legs. The “TED Talk” formula of an 18-minute presentation continues to be popular, with more than 2,500...more
Sitting in a courtroom during a recent trial, I had the opportunity to hear opening statements from both the Plaintiff and the Defendant. Both sides devoted a portion of their time during these openings to stress the...more
One time when I was working with an attorney getting ready for trial, I was there when the attorney learned that they would be able to give “mini-openings” prior to voir dire. But by “mini,” the court really meant “mini” —...more
Here is a recent bit of media research that carries some relevance to corporate defense. According to researchers at Ohio University (Grizzard et al, 2019), when we are being entertained — reading a book, taking in a movie,...more
In the days leading up to trial, you wrestle with the task of creating an opening statement in a complex case. Of course, you remember the core advice from your very first trial advocacy class, but the sheer complexity at...more
The simplest way to think about persuasion is as a transaction: You step up and make your best pitch, and then your target audience either accepts it or doesn’t. The conversational way of talking about whether our audience...more
Next time you’re in a public place, look around at all the people and what they’re doing. Looking at their phones? Yes! Nearly all of them. Now, some might be working. Some could be keeping up on the news or reading great...more
First, a pet peeve I just have to get off my chest: It is not called a “podium,” it is called a “lectern.” A podium is a platform that you stand on in order to be seen by an audience. And if you don’t believe me (because you...more
By Dr. Ken Broda-Bahm: In trial, many things are planned in advance, but some things are reactive during the moment. When you can control it, you’ll meticulously plan it before trial and then execute your plan during trial....more
6/7/2019
/ Bench Trial ,
Best Practices ,
Cross Examination ,
Defense Strategies ,
Direct Examination ,
Eyewitness Testimony ,
Jury Trial ,
Litigation Strategies ,
Rebuttal ,
Redirect ,
Trial Practice Guidance ,
Trial Preparation
Defense attorneys at this point, should have at least some familiarity with the Reptile approach that the plaintiffs’ bar is using as a route to persuasion. The idea of framing cases based on personal fear and threats to...more
About once every other month, I will present at a seminar for doctors and other medical professionals. They attend because because they’ve been sued, and they’re learning how to cope with their newfound role in the legal...more
A jury’s decision in a case will often come down to their view of fairness. That word, of course, is subjective. However, even when jurors delve into the legal instructions and understand those instructions, they often find...more
Lawyers tend to think of opening statement as the time for stories. But I think you’re telling a story in closing argument as well: not the same story, but a different one. And I don’t mean you should change the facts or...more
It is one of the central messages of witness preparation: Be confident, because if you’re confident, you’ll be more credible. Once, I got the reply from a witness, “But I don’t feel confident,” and the question, “Should I act...more
When civil litigation is being discussed by those outside the courtroom and outside the legal field, what stands out is often the perception, at least, of very high damages. The high-dollar figure being awarded, based on a...more
4/12/2019
/ Best Practices ,
Calculation of Damages ,
Damages ,
Defense Strategies ,
Evidence ,
Expert Witness ,
Jury Trial ,
Jury Verdicts ,
Litigation Strategies ,
Punitive Damages ,
Trial Preparation
Nearly 40 years ago, in 1979, during the country’s energy crisis, President Jimmy Carter gave what is now called the “Malaise Speech.” Without using that word, he spoke of “a crisis of confidence” that “strikes at the very...more
Jurors sometimes need to grapple with science, and given the constraints of the trial process and the often-complex nature of the testimony, “grapple” is probably the right word. Whether it involves working through detailed...more
So you have worked up your case for trial and, now the question is, what is the best way to convert all of that factual detail and law into comprehension and persuasion? The answer you’ve probably heard since your first trial...more
Remember Carl Sagan and the original show Cosmos? It was a beloved series in the late 70’s, not just for its accessible explanations of something as complex as the history of the universe, but also for its ability to evoke a...more
Unlike many other moments in trial, the opening statement is often defined in terms of what it isn’t. It isn’t evidence, and it isn’t argument. So, what is it? It is a preview of what the evidence will be. That creates a...more
If you’re a trial lawyer, chances are very good that you have marked up a flip chart or whiteboard in order to get a handle on your case. With its boxes, arrows, and circles, we might view the resulting “map” as a kind of...more
We know that when presenting to jurors, the goal is not just to present, but to engage, to relate, to adapt, and ultimately to persuade. You don’t want to simply lay information in front of jurors and hope they will pick it...more
1/29/2019
/ Best Practices ,
Closing Arguments ,
Defense Strategies ,
Evidence ,
Juror ,
Jury Trial ,
Litigation Strategies ,
Opening Statements ,
Trial Practice Guidance ,
Trial Preparation ,
Young Lawyers
“Epistimology,” or the question of how we know what we know, seems like an abstract rather than a practical idea. But when it comes to the practical task of assessing and persuading jurors, the epistemological habits of those...more
1/22/2019
/ Best Practices ,
Closing Arguments ,
Cross Examination ,
Defense Strategies ,
Juror ,
Jury Trial ,
Litigation Strategies ,
Opening Statements ,
Trial Practice Guidance ,
Trial Preparation ,
Voir Dire ,
Young Lawyers