It’s one of the central contradictions of the law: we ask for and expect neutral and unbiased decision makers…and then we end up using humans. Those human fact-finders are almost inevitably going to have an individual form...more
“Social inflation” is a phrase that crops up these days when people are talking about civil damage awards. As an explanation for a wave in so-called “nuclear verdicts,” social inflation refers to the phenomena of typical...more
At a national conference I spoke at earlier this week, one of the other presenters was Anne Marie O’Brien of Smith Pauley LLP, a very experienced litigator and mediator working out of Omaha, Nebraska. During her talk, she...more
It hasn’t been the easiest year for America’s railroad companies. Last Fall, in the midst of an inflationary panic, a national rail strike threatened to disrupt the nation’s shipping system, before that was resolved through a...more
Persuasion is at the core of what litigators do, not exclusively, but particularly in court. Despite that, aspiring lawyers train on a legal model that emphasizes some aspects of persuasion (like evidence and logic) while...more
A mock trial is not a crystal ball with access to the ultimate result you’re going to see in a real trial. There are too many differences between the research situation and the full trial setting for those results to be...more
By Dr. Ken Broda-Bahm: To be clear, testifying isn’t acting. Testifying is telling the truth. And with apologies to those who will point out that good acting is telling the truth as well, there are some important differences...more
By Dr. Ken Broda-Bahm: Everyone supports safety. The popular “Reptile” approach to trying plaintiffs’ cases is built on the strength of safety as a core value. It is a common sense attitude to prefers greater security over...more
I don’t know if anything has ever in such a short time moved from being a pretty esoteric science topic to being a concern on everyone’s lips… but ChatGPT could probably tell me. With literally billions of uses per month, the...more
By Dr. Ken Broda-Bahm: It is a jury’s first task: Pick a foreperson, someone who will lead the discussion, help the group walk through the evidence, and work their way to a decision. Who gets picked? The person who is...more
It’s been a season of some firsts: An ex-President, and the leading candidate for a major party nomination, has been criminally indicted (twice so far), and found civilly liable for defamation (once and counting). Rather than...more
Are jurors going to believe someone paid to come into the courtroom and deliver an opinion that supports the side who’s paying? While the jurors’ assent may not be as automatic as the experts and their clients hope it would...more
There are a number of scenarios where race might matter to your case. Most obviously in the civil realm, these could be employment cases, police use of force cases, or claims involving unequal medical care or testing. In any...more
When the other side has a powerful potential argument, but you get to go first, then you have a strategic call to make. Do you use the opportunity to get there first, address the issue before they can, and steal their...more
When you test a product to assess its performance and safety, of course you have very substantive reasons for doing that: You are aiming to check effectiveness, prevent harm, and protect the brand. When a trial occurs,...more
As we begin to take stock of and conduct research on the effects on the pandemic adaptations, it is important to keep an essential principle in mind: The research on pandemic adaptations is not just about the pandemic...more
I participated in a recent LinkedIn discussion on expert witnesses, with some in the conversation noting that experts are often unprepared for testimony, and often unaware of the need for better preparation. And, to...more
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 of options, like you would see in an attitude...more
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 driver’s seat at this stage: The deposition is the...more
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 available, and to be sure, jury selection would be...more
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 of your deposition? That audience is kind of...more
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 still don’t do it justice, and you have to be...more
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 spelling out and then responding to a key...more
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 neutral procedures in order to find reliable...more
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 defamation case initially brought by Depp has...more