Kenneth Broda-Bahm, Ph.D., Senior Litigation Consultant, Persuasion Strategies

1. 800. 973.1177

LEGAL STAFF TRAINING CORNER

Profile: Kenneth Broda-Bahm, Ph.D., Senior Litigation Consultant, Persuasion Strategies [9-20-04 by Regan Morris] In the movies, a jury consultant can size up a character in an instant, peering into his/her very soul with nary a glance and knowing in his gut how a prospective juror will lean on a certain issue or whether they will be sympathetic to a particular defense strategy. LawCrossing talked with litigation consultant Kenneth Broda-Bahm and discovered that reality is a far cry from the movies.

Litigation consultant Kenneth Broda-Bahm

see if somebody is crossing their left hand

is a storyteller. He uses his Ph.D. in Speech

over their right and vice versa. We are there

Communication and his years of teaching

giving advice on what the best questions are

“You don’t need to understand the law at

and consulting to construct a theme, central

to ask and keeping track of the answers, and

the level that the attorneys do. That’s their

character, plot, and subplots within each

we’re building an image of that person and

job,” he says. “But it is important to know

case he works on to craft a persuasive mes-

comparing it to a profile of what we don’t

that there are rules of evidence and that they

sage for the judge or jury.

want. It’s not so much the horse whisperer

need to work within them and not just come

intuition.”

up with anything they think might persuade

constraints within which lawyers operate.

the jury.”

Attorneys, he says, are often so bogged down in the case that they fail to see the

Broda-Bahm, 41, works for Persuasion

central theme of their argument. It’s crucial,

Strategies, a unique in-house consulting firm

Social science figures prominently in Broda-

he says, for litigation consultants to help

with Holland & Hart in Colorado. Persuasion

Bahm’s career, through surveys, mock

them sum up case strategy in a sentence or

Strategies provides advocacy training and

trials, and case studies. He puts emphasis

two and then help them consistently get a

litigation consultants to attorneys within Hol-

on testing cases through either focus groups

message out to jurors throughout trial with

land & Hart and to other firms nationwide.

or mock trial, typically with at least three separate mock juries hearing the case.

carefully crafted questions.

People become litigation consultants from

While most people think of juries when they

And litigation consultants rarely rely on

many fields, like psychology, law, and foren-

think of litigation consultants, Persuasion

glances and gut instincts to size-up a case,

sics. Broda-Bahm was an associate profes-

Strategies also helps with cases before

he says. It’s a far more scientific process.

sor of communication studies with Towson

judges to construct stories and themes for

University in Maryland and a part-time litiga-

attorneys.

“I think this notion that you can look at some-

tion consultant for eight years before joining

body and size them up - well, I think that that

Persuasion Strategies full-time just over a

“It’s become more well known that jurors

comes from not having enough information

year ago.

understand - and really even judges too - understand complex events and charges

and so wanting to make some sort of conclusion,” Broda-Bahm told LawCrossing about

He says the relatively young field of litigation

through stories,” he said. “Whether there’s

helping attorneys choose jurors. “You learn

consulting is growing. The American Society

a story or not they will impose some kind

the most from people’s attitudes. Non-verbal

of Trial Consultants has been around for 23

of narrative sequence on it. But it’s not just

communication does matter to some extent.

years.

creating a story, but having the right story, a story that works for you.”

And their experiences and occupations also matter. But nothing matters more than the

“There is still a wide diversity of backgrounds

intellectual commitments that they’ve made,

and expertise that lead people to this profes-

Broda-Bahm says it’s important to decide

the beliefs that they’ve formed.”

sion,” he said.

where the story begins and ends.

When advising on jury selection, for example,

Whatever your background, to be a good

“If it’s a story about an automotive defect,

Broda-Bahm advises attorneys on what

litigation consultant, Broda-Bahm believes

does the story begin at the crash or does the

questions to ask that allow the jurors to

you need three things: first, a good sense

story begin when the car was made? Or does

reveal their true to attitudes on an issue.

of message and audience and outstanding

the story begin even earlier when the car was

communication skills; a background in social

designed?” he says. “And who is the main

science; and lastly, an understanding of the

character? Is it the driver? Is it the designer?

“So we’re not really in court watching to

PAGE 1

continued on back

LEGAL STAFF TRAINING CORNER

Is it the manufacturer? The main character might even be something inanimate like the schedule, the timeline that drove all of this.”

By repeating a central theme throughout the trial, jurors may be more easily persuaded by your argument, he says. In one case, for example, his client was representing a businessperson who had been pushed out of his company by two other partners. The theme was two decide to go it alone, making the third party a victim left in the dark. The attorney hammered that theme throughout trial - and it worked.

Broda-Bahm’s cases vary widely. He has provided research and advice on a variety of plaintiff and defense cases concerning personal injury, malpractice, contracts, product liability, and capital defense. He is also an expert in evaluating the results of venire surveys and conducting post-trial juror interviews. Sometimes if a case is being appealed, he consults jurors from the first trial to ascertain what went wrong.

His teaching skills also come into play via conducting communications training courses for attorneys to improve their communication skills.

Trial lawyers are obviously already great communicators, but Broda-Bahm says there is always room for improvement and that the best always want to get better.

“It’s not a matter of saying, ‘Look at your audience. Smile.’ Those sorts of things the attorney does know,” he says. “There is always some area where you can gain more insight into the audience and you can benefit from the research and you can benefit from our experience of constantly working with audiences and juries and other decision makers.”

PAGE 2

1.800. 973. 1177