Ken Broda-Bahm Ph.D.

Ken Broda-Bahm Ph.D.

Holland & Hart LLP

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Adapt to Your Jury’s Social Reasoning

Consider Rodin’s “Thinker” — The sculptured image of the solitary and self-contained individual engaged in what we take to be humanity’s sine qua non: independent thought. It is inspiring, but it is also an idealization. The...more

2/1/2022  /  Defense Strategies , Juror , Jury Selection , Jury Trial , Litigation Strategies , Trial Practice Guidance , Trial Preparation

Look Out for the Anti-corporate Right-wing

Before a recent jury selection, I was digging through a stack of juror questionnaires and social media results when something we’ve been seeing for awhile came into clearer view: The conservatives in the pool were falling...more

1/28/2022  /  Defense Strategies , Juror , Jury Selection , Jury Trial , Litigation Strategies , Questionnaires , Trial Practice Guidance , Trial Preparation

Pointing Fault at a Missing Party: Five Ways to Fill an Empty Chair

Maybe a named party to a case settled out before trial, maybe they’re immune from suit, or maybe they were handled during a different part of the process — but all the jurors know is that a missing party might be partially at...more

1/25/2022  /  Defense Strategies , Juror , Jury Trial , Litigation Strategies , Trial Practice Guidance , Trial Preparation

Prepare for a Post-Pandemic (or Next-Pandemic) Courtroom: The Arizona Recommendations

If we rewind to about two years ago, as we were getting confirmations of a novel virus in China, few of us at the time would have had the imagination to envision the scope of disruption and devastation that would follow in...more

1/21/2022  /  Best Practices , Coronavirus/COVID-19 , Defense Strategies , Jury Selection , Jury Trial , Litigation Strategies , Remote Proceedings , Trial Practice Guidance , Trial Preparation

Professional Liability Defense: Put It in the ‘Judgment Zone’

In liability cases against physicians and other professionals, the plaintiffs work very hard to frame liability as a clear cut-and-dried mistake: The professional did something that wasn’t allowed, or failed to do something...more

1/14/2022  /  Defense Strategies , Jury Trial , Litigation Strategies , Professional Liability , Trial Practice Guidance , Trial Preparation

Pre-instruct Your Jurors on Hindsight

Jurors are often put in the position of assessing the probability or risk of something at the time a decision was made, before the consequences can be known. “How likely is it that a given result will be the outcome from a...more

1/11/2022  /  Defense Strategies , Juror , Jury Instructions , Jury Trial , Litigation Strategies , Mock Trials , Trial Practice Guidance , Trial Preparation

Learn from the First Zoom-Appeal Verdict

Courts over the past year and a half have moved with unprecedented speed into unorthodox territory, exploring ways to conduct trials, or portions of trials, via remote videoconferencing technology. In that setting, perhaps it...more

1/7/2022  /  Abuse of Discretion , Defense Strategies , Jury Trial , Litigation Strategies , Trial Practice Guidance , Trial Preparation , Videoconference , Virtual Litigation , Zoom®

Experts: Testify Remotely Without Losing Influence

So the expert has arrived in town for trial. Their testimony could come today…or maybe by Thursday, and it isn’t unthinkable that it could get pushed into next week. Meanwhile, the waiting, and the billing, continues. This is...more

1/4/2022  /  Defense Strategies , Expert Testimony , Jury Trial , Litigation Strategies , Remote Hearings , Trial Practice Guidance , Trial Preparation

Don’t Let Your Courtroom Visuals Be a Distraction

It qualifies as a best practice: If you can make it visual, then you should make it visual. When presenting to a jury or a judge, the goal of developing trial graphics to supplement your message should be driven, not by...more

12/31/2021  /  Defense Strategies , Jury Trial , Litigation Strategies , Trial Practice Guidance , Trial Preparation

Don’t Assume Virtual Communication Creates Less Empathy

When you’re dealing with testimony, argument, or any other form of communication, it is easy to assume that you’re getting less when it is distanced. In a remote conference or any Zoom-like experience, it seems that the...more

12/27/2021  /  Coronavirus/COVID-19 , Defense Strategies , Jury Trial , Litigation Strategies , Trial Practice Guidance , Trial Preparation , Videoconference , Virtual Litigation , Zoom®

Understand the Full Effect of a Bad Connection or Recording

The persisting pandemic has brought with it more adventures in technology. Courts have seen an increased use of remote testimony and oral argument, and even fully remote trials. When it is done well, it can be surprisingly...more

12/24/2021  /  Defense Strategies , Jury Trial , Litigation Strategies , Trial Practice Guidance , Trial Preparation , Videoconference , Witness Preparation , Witnesses

Witnesses, Don’t Be Surprised by Surprises

So you’re preparing for your trial testimony, and the discovery has been voluminous. Out of the mountain of documents that opposing counsel might wave at you, there are a handful that are most likely to be relevant to you....more

12/21/2021  /  Defense Strategies , Eyewitness Testimony , Jury Trial , Litigation Strategies , Trial Practice Guidance , Trial Preparation , Witness Preparation , Witnesses

Treat the “Reasonable Person,” Not as an Abstraction, but as an Average

The core of most determinations of negligence is the question, “What would a reasonable person have done?” And, at least in theory, this “reasonable person” isn’t supposed to be an actual person whose deeds are recorded in...more

12/17/2021  /  Defense Strategies , Jury Selection , Jury Trial , Litigation Strategies , Mock Trials , Trial Practice Guidance , Trial Preparation , Voir Dire

Remote Courtroom Procedures: Don’t Just Add a Camera

As the 2021 pandemic year winds to a close, while the 2022 pandemic year waits in the wings, it may be a good time to take stock of changes in legal procedure brought by the pandemic. Given the persistence of needed social...more

12/14/2021  /  Defense Strategies , Jury Trial , Litigation Strategies , Remote Hearings , Trial Practice Guidance , Trial Preparation , Virtual Litigation

Be Tactical in Jury Selection

The voir dire process has got to be one of the most complex, information-rich, and high-stakes communication settings. To someone unfamiliar with the rituals, it won’t always be clear what is going on or why. For new...more

12/10/2021  /  Defense Strategies , Juror , Jury Selection , Jury Trial , Litigation Strategies , Trial Practice Guidance , Trial Preparation , Voir Dire

Consider That Your Zoom Conferences Might Be Sapping Your Collective Intelligence

Even as things are fitfully returning to a post-pandemic normal (perhaps against the current COVID Omicron variant-driven medical advice) one feature of the last 21 months seems to be lingering: the Zoom conference. In legal...more

12/7/2021  /  Coronavirus/COVID-19 , Defense Strategies , Jury Trial , Litigation Strategies , Trial Practice Guidance , Trial Preparation , Videoconference , Virtual Litigation , Voir Dire , Zoom®

Your Direct Examination: Know the Steps, but Let the Attorney Lead

When preparing for trial testimony, often the focus is on what opposing counsel is going to do. You prepare for cross, naturally enough, because that is an adversarial moment. But my own view is that direct examination should...more

12/3/2021  /  Cross Examination , Defense Strategies , Direct Examination , Eyewitness Testimony , Jury Trial , Litigation Strategies , Trial Practice Guidance , Trial Preparation , Witness Preparation , Witnesses

Know How Your Testimony to the Jury Will Differ from Your Deposition

A typical witness preparing for a civil trial often has only one good reference point for what their experience will be, and that is their deposition. That’s where they met opposing counsel, got a taste of that attorney’s...more

11/30/2021  /  Defense Strategies , Depositions , Eyewitness Testimony , Jury Trial , Litigation Strategies , Trial Practice Guidance , Trial Preparation , Witness Preparation , Witnesses

Criminal Defendants Taking the Stand: Expect Conventional Wisdom to Change

Recently, three of the most high-profile current defendants did what conventional wisdom says they shouldn’t do; They took the stand in their own defense. Kyle Rittenhouse, on trial for killings at a Kenosha, Wisconsin...more

11/23/2021  /  Defense Strategies , Jury Selection , Jury Trial , Litigation Strategies , Mock Trials , Trial Practice Guidance , Trial Preparation , Venue

Opening: Build Your House First, Then Take Aim at Their House

I have worked with more than one defendant who simply could not resist it: Right out of the gate, in opening statement, they come out swinging against the plaintiff. They’re not being honest, they have their own share of...more

11/19/2021  /  Credibility , Defense Strategies , Depositions , Eyewitness Testimony , Jury Trial , Litigation Strategies , Trial Practice Guidance , Trial Preparation , Witness Preparation , Witnesses

Reconsider the Summary Jury Trial

A number of years ago, innovators searching for ways to take some of the pain, delay, and difficulty out of the jury trial hit upon the idea to boil it down, rein in the discovery, simplify the rules of evidence, and try it...more

11/16/2021  /  Coronavirus/COVID-19 , Defense Strategies , Juror , Jury Trial , Litigation Strategies , Mock Trials , Summary Jury Trials , Trial Practice Guidance , Trial Preparation

Expect a Complex Response to Emotional Testimony

Kyle Rittenhouse, the then-minor charged with killing two and wounding a third at a protest in Kenosha Wisconsin in the Summer of 2020, took the stand in his own defense at his trial yesterday. The case is a kind of litmus...more

11/12/2021  /  Defense Strategies , Eyewitness Testimony , Juror , Jury Trial , Litigation Strategies , Testimony , Trial Practice Guidance , Trial Preparation , Witnesses

Account for Camera Perspective Bias

This past Friday, eight people died at a music festival in Houston, crushed by a crowd as the music continued and security was unable to help. As the tragedy moves toward litigation, it is likely that this will be another...more

11/9/2021  /  Bias , Defense Strategies , Eyewitness Testimony , Juror , Jury Trial , Litigation Strategies , Trial Practice Guidance , Trial Preparation

Use Jurors’ Availability Bias

How likely is it that a corporation’s competitor could come up with a parallel product without infringing a patent? How common is it for someone to get injured on an amusement park ride? How normal would it be for someone who...more

11/5/2021  /  Bias , Defense Strategies , Juror , Jury Selection , Jury Trial , Litigation Strategies , Trial Practice Guidance , Trial Preparation , Voir Dire

Meet Your Clients on the Cloud

So it is time for your critical meeting with the Client. Are they coming to your office, or are you going to theirs? Or, maybe it is the new option: Let’s just meet on the cloud. An article this past week in the ABA Journal...more

11/2/2021  /  Defense Strategies , Jury Trial , Litigation Strategies , Trial Practice Guidance , Trial Preparation , Videoconference , Witness Preparation , Witnesses
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