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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
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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.”
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