There is a well-known principle in communication circles, first expressed by cognitive scientist George Lakoff: “When we negate a frame, we evoke the frame.” It means that even when we try to deny a specific attack against...more
Testifying, whether in a deposition or in trial, can feel pretty threatening. Particularly if you’re a named defendant in a lawsuit, you know you’re going to be the target. But even when you’re on the other side, or you’re an...more
In modern times at least, corporations have not been terribly popular. However, since the murder of UnitedHealthcare’s CEO about a half a year ago in New York City, observers and the corporations themselves have been paying...more
Will the individuals who serve on your jury be the same people they were before they were called for service and selected? Will they have the same mental habits and preferences they exhibit in their civilian lives outside the...more
These are trying times for those of us who are looking to see whether American rule of law can survive its current challenges. As our executive branch tests the limits of Congressional authority, and bucks the traditions of...more
We live in uncertain times, and that is becoming a more obvious observation by the day. From the turmoil in the financial markets to the tumult in the marketplaces of ideas, there is a widely felt lack of security,...more
A couple of weeks ago, I was in court to help pick a jury in a high-value case. During that early phase of jury selection, the gallery was full to capacity with potential jurors, the counsel and parties were present, the...more
It is common advice for witnesses in the courtroom or representatives at counsel table: keep a poker face. That advice — avoid scowls, grimaces, and other head-shaking reactions while you’re being observed by a jury — has...more
Something that we see over and over again in mock trials has now occurred in an actual trial. A recent jury in Allegheny County, Pennsylvania entered a defense verdict in favor of Johnson & Johnson, answering “No” to the...more
Government regulators can often play a role in civil litigation. In some cases, they’re involved as parties. More often, however, their role is as a proxy. In those situations, jurors might look at whether the defendant...more
There is a case currently playing out in the Southern District of New York, Major League Baseball Players Inc.,v. Underdog Sports, Inc. There is a common dynamic called out right there in the caption: One side is the “Major...more
Early on in the jury selection process, the judge will often ask the panel, “We all know that jury duty can be inconvenient, but who believes they would experience an unreasonable hardship by serving in this case?” Hands will...more
Here’s a scenario we often see when watching deliberations in a mock trial: The subject of the defendant’s alternate damages number comes up, and jurors see it as a weakness...more
Here’s a welcome development: The state of Maryland has embarked on a pilot program to test out the effects of expanded voir dire. In many parts of the country (looking at you, Arizona) the ability of litigants to explore and...more
Every trial lawyer I know believes that they are adapting their communication in order to get the jury — or, for that matter, the judge — to understand. At the same time, they will still try to be concise, correct, and...more
Sometimes in civil cases, the plaintiff’s liability claim is opportunistic, wishful, or factually weak. Other times, it is real. Someone didn’t do their job, a danger was missed, or — in that Olympic champion of passive-voice...more
Of all the areas of legal lore, perhaps none are more loaded down with mystique than jury selection. Attorneys with long experience will develop some pretty solid views, and those habits on who they’re looking to seat and who...more
In addition to making their views known at the ballot box, citizens can similarly broadcast their sentiments in the civil jury box. While they’re asked to merely make a factual finding limited to a specific dispute, the...more
It has become more commonplace to hear talk about a future of litigation without peremptory strikes. After all, Arizona in 2022 was the first state to eliminate strikes in all cases, and it may not be the last. California and...more
As civil jury trials continue to become more scarce, the need to reasonably assess what result a jury would return in trial becomes even more important. Even when the trial does not happen — especially when it does not happen...more
With the news world still abuzz with implications of former President Trump’s 34 felony convictions and impending sentencing in New York, we are left to wonder about the effectiveness of defense attorney Todd Blanche’s...more
Michael Cohen, the “Fixer” for Donald Trump, has recently gotten off the stand in the former President’s “hush money” trial. Those taking aim at Cohen’s testimony have pointed out frequent use of “I don’t recall” on many of...more
By Dr. Ken Broda-Bahm: Yesterday, I spent the full day as a prospective juror at the Lindsey-Flanigan Courthouse in Denver. As you can tell from the fact that I’m writing about it, I did not get selected for the jury...more
As the historic first (but not last) criminal trial of a former U.S. President was kicking off last week, Mr. Trump commented, “Jury selection is largely luck,” before moving on to his more familiar complaints about the...more
The Reptile approach to courtroom persuasion aims to sell plaintiffs’ cases by invoking absolute duties for protection wrapped around a fear appeal that resonates with the jurors. Even with the Reptile’s ‘reboot’ version, the...more