There’s an old expression: “You can catch more flies with honey than with vinegar.” Assuming that your goal is not to actually catch flies, but instead, to get what you want in some kind of negotiation, the expression means...more
Since it’s Halloween, let’s consider a frightful topic. Experienced trial lawyers usually get past their stage fright early on, and even come to relish the idea of standing in front of a jury, or most any audience. But...more
10/31/2019
/ Bench Trial ,
Defense Strategies ,
Jury Trial ,
Law Students ,
Litigation Strategies ,
Professional Development ,
Stress Reduction ,
Trial Attorneys ,
Trial Practice Guidance ,
Trial Preparation ,
Work-Induced Stress ,
Young Lawyers
The law allows counsel on the other side to deliver their opening statement first, so they get the early opportunity to tell you their story. But, there are two sides to every story. And, despite all you have heard, I...more
You probably learned it in one of your earliest writing classes: Active voice means the grammatical subject is doing the acting, and passive voice means the subject is acted upon. It is the difference between “The dog bit the...more
There is a persistent belief among many mock jurors that I have seen in certain kinds of cases. The belief is that liability attaches automatically to possession, and jurors usually express it through the lens of home...more
10/11/2019
/ Best Practices ,
Defense Strategies ,
Juror ,
Jury Instructions ,
Jury Trial ,
Litigation Strategies ,
Mock Trials ,
Negligence ,
Premises Liability ,
Trial Practice Guidance ,
Trial Preparation
God is Love - Love is Blind - Stevie Wonder is Blind -Therefore, Stevie Wonder is God -
That’s an exaggerated version of a kind of fallacious thinking that is often used in witness examination. It is a form of the...more
When you are working on boiling down your message, there will often be that indefinable “something” that makes you recognize when you have the right language. A good trial theme, for example, doesn’t just summarize the...more
Juror 1: “The next category is ‘pain and suffering.’ How are we supposed to get to get that number?”
Juror 2: “It is just whatever we want…there’s no guidance for it.“
Juror 1: “How are we supposed to do that? Put a...more
The government often plays a background role in civil litigation. An action, decision, or product from one party might meet the government’s regulations, for example. The question that raises is “Are the regulators trusted?”...more
On one end of the spectrum, there are specific beliefs jurors might hold on an issue. More generally, then there are attitudes that cover and predict many of those different beliefs. Even more generally, there is the...more
As I’ve written before, it is never safe to trust a potential juror’s own opinion about whether they are biased or not. That is because there has never been much support in the social science for that ability to...more
Trial lawyers understand the need to refine and to help fit the main point of their case into the smallest possible container. In complex litigation, however, that quest for a bottom line can be elusive. You might have your...more
9/10/2019
/ Bench Trial ,
Contributory Negligence ,
Defense Strategies ,
Discovery ,
Evidence ,
Jury Trial ,
Litigation Strategies ,
Professional Liability ,
Standard of Care ,
Trial Practice Guidance ,
Trial Preparation ,
Young Lawyers
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 the real world, disputes are often settled by someone with more or better knowledge, or at least someone claiming to have more or better knowledge. The courtroom, however, is different. It is a setting that is designed to...more
In our age, the social networks and airwaves are awash in fake news and rumors of fake news. In that context, it seems, people respond by seeking refuge in their own fortresses. That means doubling down on their core...more
Attorney: “To help prepare you for your testimony, let’s review what they’re going to ask about. They’re going to ask about Smith’s performance reviews.”
Witness: “Okay, I can talk about these…”
Attorney: “Great, so…Why...more
The big moment finally arrived. After two years of investigations and fast-churning news cycles, Robert Mueller, the former Special Counsel who focused on Russian election interference and obstruction claims involving 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
It is the classic scenario for a false confession: The suspect sits in a small room answering the same questions over and over again as the detective repeating those questions grows more and more exasperated. Finally, as the...more
The trial consulting field seems to fly mostly under the radar. As a part of the attorney’s confidential work product, our role in conducting research, preparing witnesses, and helping to advise on jury selection is not...more
6/10/2019
/ Bias ,
Defense Strategies ,
Diversity ,
Jury Consultants ,
Jury Selection ,
Jury Trial ,
Litigation Strategies ,
Peremptory Challenges ,
Trial Practice Guidance ,
Trial Preparation ,
Voir Dire ,
Work-Product Doctrine
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