The Litigation Consulting Report

6 Traits of Bad Business Developers You Never Want to See

Posted by Alex Brown on Wed, Oct 22, 2014 @ 10:35 AM


vacuum-salesperson-business-developmentby Alex Brown
Director of Operations
A2L Consulting

In my last article on business development I discussed the traits of great business developers I like to see when hiring. Today, I focus on traits I like to avoid.

If you close your eyes and try to picture a business development professional, what do you see? Depending on your age and whether you work in a law firm or elsewhere, some of the common images are:

bud-fox-business-development Bud Fox from Wall Street        

jerry-maguire-business-development  Jerry Maguire   

death-of-a-salesman-business-development  Willy Loman from Death of a Salesman.

Almost always you think of a charming and intelligent person who's fun to talk to -- someone you look forward to seeing at a networking event, someone with credibility. But internally, what do people think about business development professionals:

snake-oil-salesman-business-developmentSnake oil seller

used-car-salesman-business-development Used car salesman 


simpsons-business-development Don’t take your eyes off that one…

But these people shouldn't be on your team. You need to avoid the following qualities in building your business development staff whether in a law firm or in a professional services firm:

  1. Limited follow through or lack of attention to details. Many times, a lawyer will win or lose a case on the basis of a small detail of wording. The same is true for business development. Your BD staff is out pitching the amazing capabilities of your firm. What promises are they making? What needs are not being met because the staff doesn't understand what is requested by the client? How many unexpected bumps happen because they did not ask all the questions? Charisma will only get you so far, Follow-through and detail are what closes the deal.
  2. Absence of structure. To some people, structure comes naturally, but it can also be learned. People can learn how to make lists, follow directions, and stick to a plan. But some people fly by the seat of their pants, don't know how to follow up, have poor internal communication skills, and end up unprepared for unforeseen events. Structure is the ability to see the finish line and to navigate to the goal.
  3. Failure to think like an owner. Some business developers "leak value." That refers to the loss of profit resulting from a gap between what the developer supplies and what is needed. Do they over-think what is "fair" for the client rather than what's good for the firm? Do they make too many assumptions about what is important to the client and give a lot of terms away? Do they just want to close the deal at all costs versus thinking through what is actually good for the firm? Bad deal people don't think like a business owner. They treat the company's money as something to give away as "extra value" in a negotiation. Great BD professionals never aim low.

  4. Difficulty "getting it." Bad BD professionals become too dependent on others in the company rather than building up their own skill sets. Sometimes, for example, a term that's crucial to the business is buried or hidden as legalese or "technical specs."  A great deal person will be fully conversant with these concepts. A bad BD professional says "I don't know." A great BD professional says "I don't know now, but I will find out."

  5. The "Me syndrome." Are your BD people known by their name only, or as affiliated with the firm? Do they network for themselves, but make contacts that never get to the database? Are they the type that keeps things in their head rather than share? If so, they may be the type to leverage a deal for personal benefit first. When closing a deal, some BD professionals set unreachable expectations by mentioning terms that the company can't back away from. And they do this without any internal discussion or approval, all in the name of closing a deal regardless of the cost to the firm. A great BD professional knows when to walk away from a deal.

  6. Projecting a lack of trustworthiness. Good BD professionals can flip the switch, so to speak. In this profession, you have to spin at times to external clients. But you have to know when to turn it off. Great BD professionals never seem like they are spinning or selling, even when they are.

Other A2L Consulting articles related to professional services sales, business development and rainmaking:

Tags: Business Development

4 Ways That Juries Award Damages in Civil Cases

Posted by Ken Lopez on Wed, Oct 15, 2014 @ 09:13 AM

jury foreman damages award how calculate askby Elise Jefferson, MA
A2L Consulting

An intriguing and complex aspect of civil litigation is the use of damage awards as a means of achieving justice. This remains an inexact science; no one can predict the amount of money that a jury is going to award the plaintiff if liability is found. However, a good deal that is worth knowing has been learned about what goes into that decision. For example, studies have examined damage awards when jurors are asked to award a specific amount, as well as how jurors’ perceptions of the plaintiff’s motives for suing can affect damage awards. Although it can be difficult to predict how much money a jury may award, it is still important to consider the various theories that attempt to explain what influences jurors when determining damages.

Following are four theories that reflect the current state of the art.

1. Horizontal Inequity   

Horizontal inequity theory attempts to explain why there is a significant amount of variability among similar injury types. For example, if two plaintiffs lose their ring fingers, their damage awards may be significantly different if one of them is a professional guitar player and one is a triathlete. This can make it difficult for attorneys or consultants to make an educated prediction. One way plaintiff’s attorneys can counteract this issue is by giving jurors examples of previous award amounts as reference points insofar as this is admissible; plaintiff’s attorneys can suggest an appropriate amount during opening statements and justify that amount throughout the course of the trial via witness testimony. In a bifurcated trial in which the defendant has already been found liable, defense attorneys can use this theory to counteract the amount suggested by the plaintiff, by giving examples of lower amounts awarded in similar trials.

2. Anchoring and Adjustment Heuristic

Another theory that addresses juries’ determination of damage awards is known as the anchoring and adjustment heuristic. This theory holds that, in making quantitative judgments, jurors are influenced by a numerical starting value, regardless of how arbitrary the starting value is. This supports previous psychological research and anecdotal evidence that the more money that plaintiffs attorneys seek in damages, the more money they typically receive. For plaintiffs attorneys, this does not necessarily mean that they should suggest damage award amounts beyond what would be considered reasonable by the average juror. However, they should suggest awards that may be higher than the average amounts awarded for that injury type. For defense attorneys, this information would be helpful in making settlement offers, in order to counteract the plaintiff’s initial offer and ultimately lower the amount.

3. Fusion Theory

A third theory on how jurors award damages concerns the concept of fusion. While jurors are usually given instructions to select a damage award amount based on the defense’s conduct as opposed to the plaintiff’s injury, studies have shown that jurors are essentially unable to differentiate between the two. Under the fusion theory, jurors use relevant information from one legal decision to influence how they make other legal decisions. One study surmised that, because jurors hear evidence about the defendant’s conduct and the plaintiff’s injuries simultaneously, the information from both is often fused together to help juries make a decision on the award. Both plaintiff and defense attorneys can use this concept to their advantage by lumping together or separating both components during opening and closing statements.

4. LEL and Distinct Award Conditions 

A significant amount of research has been conducted to examine how instructions given to jurors affect damage awards in personal injury cases. A study conducted in 2011 examined lost enjoyment of life (LEL) and how jurors awarded damages when this factor was considered separately from pain and suffering (a common requirement in personal injury cases). LEL is defined as damages that are awarded in order to compensate the plaintiff for the ways in which the plaintiff’s life is limited because of an injury caused by the defendant. These limitations typically focus on the inability to enjoy activities that the person once enjoyed. In some jurisdictions, jurors are able to consider LEL separately from pain and suffering in personal injury cases.

In this study, jurors were asked to render non-economic damage awards in one of three conditions: 1) overall pain and suffering only, 2) two separate awards: mental pain and suffering and physical pain and suffering, or 3) four separate awards: mental anguish, LEL, physical disability/impairment, and disfigurement.

In keeping with previous research, the psychologists hypothesized that the more injury types the jurors were asked to consider, the higher the overall damage amount awarded. The researchers found that jurors did in fact tend to provide higher damage awards when considering the four-element condition, as opposed to the one-element condition. They also found that LEL played the most significant role in influencing award decisions..

Attorneys should consider these study results when requesting a specific amount of damages from the jury. In order to encourage jurors to award a larger sum of money, it may be beneficial for plaintiffs attorneys to isolate various types of potential damages. Instead of a lump sum only, breaking it into components may provide additional opportunities for jurors to fill in more blanks. However, it would be advantageous for defense attorneys to encourage jurors to consider a lump sum, in order to decrease the award amount.

In conclusion, damage award research has the potential to help litigators understand how to better achieve award amounts that will be most beneficial to their clients as plaintiffs and/or ways to defeat them when representing defendants.

Other A2L Consulting articles and resources discussing damages, mock trials and how juries make decisions:



Tags: Jury Consulting, Mock Trial, Juries, Jury Consultants, Jury Selection, Psychology, Opening, Closing Argument, Damages

8 Traits of Great Business Developers (In or Out of Law Firms)

Posted by Alex Brown on Tue, Oct 14, 2014 @ 08:54 AM


law firm business development sales rainmakerby Alex Brown
Director of Operations
A2L Consulting

These days, there’s no question that sales (or business development as law firms like to call it) is essential to the success of nearly every law firm. Law firms can’t exist without clients – and whether a firm prefers to expand its client base or to get more work from its existing clients, it needs to have a business development function. Accordingly, any law firm needs to hire people who know how to bring in business.

Some law firms rely on their partners to generate business; that’s the typical “rainmaker” paradigm. Some other law firms have a dedicated sales force that may report to the chief marketing officer, to the management committee, or in some other way. Some firms do a mixture of both.

But however you look at it, great business development people are hard to find (I'm the hiring manager at A2L). One reason that this is so is that many law firms don’t know how to look for a great business development person. For example, a firm might hire someone who is bright, charismatic and articulate but can’t get anything done. That person won’t last long. Or there might be someone who is highly networked and wants to bring in clients but doesn’t know how to put together an agreement. That person won’t last long either.

In my next few blog posts, I will share with you the characteristics of a good and of a bad business developer --and how to find one and determine whether you have the right one.

The best business developers I have ever met have the following traits:

  1. Intelligence. They are smart and think well on their feet.
  2. Excellent communication skills. They can communicate well with both the law firm’s partners and other lawyers and with the client or potential client.
  3. Creativity. The best business developers are fearless and willing to make a seemingly outlandish request. They have the intuition to know that even if their proposal is rejected, they are at least being heard. They have their “foot in the door.”
  4. Adaptability. While extensive research on a client or matter is ideal, when there’s no time or the research can’t be done, the great business developer can use whatever information he or she has at hand.
  5. A sense of structure. A good business developer can hit all the marks – mining, pitching, negotiating, closing and implementing. An unstructured person is always planning but never closing.
  6. A sense of the big picture. A good business developer follows a simple formula: Find out what is important, try to achieve it, and get the work. Great business developers do not focus on the little things that don’t really matter; sometimes they have to be willing to walk away. Only someone that sees the big picture can make that decision.
  7. Stamina. Getting a new client can take a long time and involve a lot of back and forth. Bad business developers tend to concede too much at the very end in the interest of closing the deal and often lose a lot of value for the firm.
  8. Moral compass. A great business developer, like any great employee, will do the right thing even if it is uncomfortable or against his or her self-interest to do so. There are all sorts of ways in which business people may act to benefit themselves rather than the company. Character matters.

Other A2L Consulting articles related to professional services sales, business development and rainmaking:

Tags: Management, Marketing, Negotiation, Business Development

1-Question Survey: How Does In-House Hire Outside Litigation Counsel?

Posted by Ken Lopez on Fri, Oct 10, 2014 @ 04:15 PM


how does inhouse counsel hire outside litigation counselby Ken Lopez
A2L Consulting

As part of A2L's jury consulting, litigation graphics and litigation consulting work, I routinely have the privilege of closely observing some of the best litigators in the business. I get to watch their preparation styles and see how they perform at trial. I also have a chance to witness opposing counsel's performance at trial. The comparisons between the two are fascinating for me.

Chances are, if a litigator is working with A2L (or a firm like ours), they are at the top of their game. This is true because that litigator is likely comfortable asking for input from a litigation consultant that might go to trial 50 times a year. Compared to an individual litigator at a medium or large law firm, it is probable that a litigation consultant will go to trial 10x-50x more often. With that kind of experience, it's understandable that a smart litigator (and often in-house counsel) would want a second pair of eyes focused on overall trial presentation, storytelling, persuading the fact-finder(s) and litigation graphics.

While our clients are often the best of best, opposing counsel is all-too-often underprepared—not that I have a problem with that—but it is perplexing. I've seen this preparation deficit in cases where opposing counsel is from a larger law firm, has a better reputation or has more trial experience. Since I believe the most prepared tends to win, the mere fact that a litigator is working with A2L (or a firm like ours) suggests that they are serious about preparing for trial, they are not winging it, and all other things being equal, they will likely get a good result.

Observing the quality differences in trial preparation between our clients and opposing counsel is sometimes cringe-worthy for me. Sometimes I feel a little sorry for opposing counsel, and it leaves me wondering, how did in-house choose this law firm and this litigator. Most of the time, I have absolutely no idea, and I am genuinely curious how much thought really went into the process. Is the hiring decision based on a friendship? Is it based on price? Is it based on win-rate, reputation or quality? If so, how is any of that determined in the general counsel's office?

Rather than speculate, I'd love to hear what you think based on your observations. Below is a one-question anonymous survey that I believe will yield some interesting results. You'll see the live survey results as they are compiled.

Tags: Litigation Consulting, Litigation Management, Litigation Support, Leadership, In-House Counsel, Survey

14 Differences Between a Theme and a Story in Litigation

Posted by Ken Lopez on Thu, Oct 9, 2014 @ 09:16 AM


storytelling theme courtroom trial openingby Ken Lopez
A2L Consulting

Twenty years ago in my trial advocacy class, we talked a lot about developing a theme for a case. We learned to say things in an opening statement like, "this is a simple case about right and wrong" or "no good deed goes unpunished."

The goal of developing and communicating a theme is to give your fact-finder(s) an organizing principle that they can fit the evidence into neatly. However, for as much as we talked about themes, one thing I was not taught much about in law school was storytelling.

The two devices, themes and storytelling, are related, but they are not the same. A case theme can be thought of as a case's tag line, somewhat similar to corporate slogans like "when it absolutely, positively has to be there overnight" or "the ultimate driving machine." It's a shorthand version of the case designed to connect with the life experiences of the fact-finder(s).

I have seen cases where a story was told, but no theme was used. I have seen cases where a theme was used, but no story was told. The reality is you need both, particularly during opening statements, and appreciating the differences between themes and stories is critical for success at trial. With estimates running as high as 80 percent for the number of jurors who have made up their minds just after opening statements, getting your theme-story combo right is nothing short of essential - for BOTH plaintiff and defendant.

Here are fourteen key differences between themes and stories used in litigation:

  1. Themes are attention getters, stories are attention keepers. You're a clever lawyer, and you can rattle off a great case theme that gets people thinking. However, without a meaningful story to back up your opening line, fact-finders are just going to make up their own story or just tune you out.
  2. Themes provide a reason to be interested, stories provide the emotional connection required to care. If a jury does not care about your case, they are likely not going to get on your side and could very well just be daydreaming even while making eye contact.
  3. Themes explain, stories motivate. A well-told courtroom story will trigger a biological and an emotional response that leaves your fact-finder open to being persuaded.
  4. Themes sound like you are being a lawyer, stories sound like you are being human. It is very important to be likable at trial, and being likable generally means behaving like someone people can really relate to. If you are over-using lawyer-language, you create distance between you and a jury.

  5. Themes provide a smidgen of structure, stories provide a decision-making framework. You know that you've told a story well in the courtroom when the jury tells the same story to one another during deliberations. We see this occur during mock trials regularly. See 10 Things Every Mock Jury Ever Has Said.
  6. All lawyers know to use themes, many lawyers will fail to use stories. I recommend downloading our free Storytelling for Litigators book and watching our free Storytelling for Persuasion webinar to rapidly improve your storytelling skill set. I've watched good lawyers lose cases when they failed to articulate a good story.
  7. Themes are mostly tools for opening and closing statements, stories are incorporated throughout the trial. If you have set up your story well and worked with every member of your trial's cast including fact and expert witnesses, everyone will add clarity to a story throughout the trial.
  8. Juries will not usually talk about your themes, juries will talk about your stories and often adopt them as their own. See Your Trial Presentation Must Answer: Why Are You Telling Me That? and 10 Videos to Help Litigators Become Better at Storytelling.
  9. Stories have many characters with understandable motives, themes provide little in the way of character development. See Are You Smarter Than a Soap Opera Writer?
  10. Themes may offer the what or how, but stories offer the why. See Your Trial Presentation Must Answer: Why Are You Telling Me That? and 20 Great Courtroom Storytelling Articles from Trial Experts. 
  11. Themes offer something quickly relatable, stories offer something you can get lost in. See 5 Essential Elements of Storytelling and Persuasion
  12. Themes affect one part of the brain, stories affect another. See Storytelling Proven to be Scientifically More Persuasive
  13. Themes don't really persuade, stories will persuade. See Storytelling as a Persuasion Tool - A New & Complimentary Webinar
  14. Themes don't need litigation graphics to support them but stories sure do. See Why Trial Graphics are an Essential Persuasion Tool for Litigators

Other articles and resources related to courtroom storytelling, theme development and opening statements on A2L Consulting's site:

Tags: Litigation Graphics, Trial Presentation, Mock Trial, Juries, Storytelling, Opening, Closing Argument, Persuasion

7 Litigator-Friendly Conferences Worth Attending

Posted by Ken Lopez on Fri, Oct 3, 2014 @ 10:00 AM


litigation conferences cle speaker favorite topElise Jefferson, M.A.
A2L Consulting

Some of the most valuable learning opportunities are provided through educational forums such as conferences or webinars. These forums allow for litigators to learn skills directly from individuals with expertise on everything from presentation styles to issues with expert witnesses. Many of the articles on the A2L Website offer advice and examples on how to improve your overall skills as an attorney. Several articles also address how to approach cases involving topics from product liability to patent litigation. While reading these articles is helpful, it is equally helpful to learn about these topics in-person or via streaming video. Indeed, A2L's consultants are frequent speakers at conferences and at on-site firm CLEs.

The conferences and webinars listed below address various topics that are meant to assist all attorneys, regardless of what types of cases are typically handled by your law firm. Attending these conferences or webinars will allow attorneys to expand their knowledge base in their respective areas of litigation, as well as improve upon their overall skills as trial attorneys.

1. The Presentation Summit:
Oct. 12-15, 2014

Description: Creating successful presentations is about more than just software. It is about crafting sharp messages, creating intelligent presentation design, employing efficient techniques with PowerPoint and other apps, and realizing natural and genuine delivery. Our annual conference for the presentation community delivers all of this at levels you won’t find anywhere else on the planet.

At A2L, we often write about PowerPoint and delivering great courtoom presentations. It is a topic we are both expert in and passionate about.

2.  Cheap Talk: Witness Payments and Conferring with Testifying Witnesses: October 22, 2014


1:00 PM - 2:00 PM ET


Witness compensation evokes a slew of ethical traps for litigators. Avoid these traps by broadening your understanding of the ethical rules regarding witness compensation and conferring with testifying witnesses. This webinar will cover:

    • When "compensation" crosses over to "inducement to a witness"
    • How lawyers can avoid sanctions under Model Rule 3.4
    • Just how much the lawyer can consult with their witness during deposition or trial testimony breaks under Model Rule 1.1

This webinar will be extremely helpful to both civil and criminal attorneys who oftentimes need to pay expert witnesses for their services. It can be sold as a refresher on ethical guidelines and how to ensure that attorneys are compensating witnesses appropriately. Be sure to read our articles on experts such as 7 Things Expert Witnesses Should Never Say and The Top 14 Testimony Tips for Litigators and Expert Witnesses.

Using Social Media in the Jury Selection Process: October 15, 2014


1:00 PM - 2:30 PM ET

Because social media is so pervasive, lawyers need to understand how to ethically incorporate social media review into their litigation practice. Join our panel of experts as they:

    • Analyze ABA Formal Ethics Opinion 466
    • Review best practices
    • Discuss the successful use of social media in securing impartial and fair juries

 Description: Because social media is so pervasive, lawyers need to understand how to ethically incorporate social media review into their litigation practice. This 90-minute webinar will provide background and in-depth analysis of ABA Formal Ethics Opinion 466 on reviewing juror social media and will note state opinions on the same subject. Best practices will be highlighted, including how to educate the judge about social media and work with opposing counsel to develop social media protocols. Finally, learn from fellow lawyers who have successfully used social media to help their clients secure an impartial and fair jury.

This webinar directly relates to several articles on the A2L website regarding the use of social media in jury selection and research. It covers the ethical guidelines and how social media relates to these guidelines, and also suggests helpful ways in which social media can be used.



4.  30th Annual Intellectual Property Law Conference: March 25-27, 2015

Bethesda North Marriott Hotel & Conference Center

5701 Marinelli Rd North Bethesda, MD 20852-2785

Description: In a world where value is key, every IP practitioner needs avenues for their own innovation. Come and experience the 30th Annual Intellectual Property Law Conference in Bethesda, MD, offering three days of premiere CLE programming and networking events.

Gain knowledge and insight from IP experts and practitioners from around the world who will discuss the most critical issues in IP law.  

    • Stay Current on Issues Critical to Your Practice
    • Refine Your Knowledge & Skills
    • Expand Your Network
    • Fulfill Your MCLE Requirements

The 30th Annual Intellectual Property Law Conference provides cost effective value—offering over 40 dynamic CLE programs and an incomparable opportunity for networking.

For A2L clients who are involved or interested in intellectual property law, this conference in Bethesda will delve deeper into issues that will affect litigators in the near future, as well as offer advice on how to approach litigation in this particular area. As with all conferences, it will also allow for networking opportunities.


5.  32nd National CLE Conference: January 7-11, 2015

Vail, Colorado

Description: 8 Programs/Tracks Available

    • Bankruptcy
    • Civil Litigation
      • Effective Expert Attacks – Methods and Techniques for Investigation and Cross-Examination
      • Mass Tort Perspectives: Plaintiff v. Defendant – Panel
      • Ethics and E-Discovery: Recent Developments and New Challenges for Litigators
      • And others…
      • Employee Benefits
      • Environmental Law, Land Use, Energy, and Litigation
      • Family
      • Health
      • Intellectual Property
      • Labor & Employment

Perhaps the most valuable of the conferences, this CLE program allows litigators to choose from several different tracks, according to the type of litigation typically covered by their firm. Each track includes 2 day’s worth of presentations from esteemed judges and attorneys. Highlighted is the Civil Litigation track (as most of our clients try civil cases), where 3 of the presentations offered are listed. The conference is also family-friendly and offers activities for children and spouses.

6.  Masters Conference for Legal Professionals: eDiscovery Hot Topics: Predictive Analytics, Social Media, Mobile Devices, & FRCP Changes: Oct. 21, 2014

The Masters Conference for Legal Professionals is held in regional locations throughout the U.S. Each event will last from 11:30 a.m. to 5:15 p.m. and is followed by a happy hour until 7:00 p.m. Each event offers two educational tracks that will allow attendees to learn from corporate and law firm thought leaders.

Locations include:

    • Washington, D.C.: Oct. 21, 2014
    • San Francisco: March 24, 2015
    • Chicago: May 19, 2015
    • Philadelphia: July 21, 2015

Description: Whether you are dealing with e-Discovery in a new, socially networked world, find your company expanding globally and thus facing international discovery issues, or planning for the future of e-Discovery in your firm or company, you know there’s a divide between what is in practice today and where your firm needs to be in the near future. Legal professionals must develop strategies for spanning this e-Discovery divide before it expands further across traditional borders, whether physical or technical.

Litigation support professionals and attorneys have a new forum to gather the latest information on e-Discovery, data protection, records management and more: The Masters Conference for Legal Professionals. 

This conference covers various issues and aspects of eDiscovery. It will allow litigators to learn more about this particular type of discovery and how it may affect future litigation conducted by their firms.


7.  DRI 2014 Annual Meeting: October 22nd – October 26, 2014

San Francisco, CA

Description: Join us for DRI’s 2014 Annual Meeting—“DRI for Life”—October 22 - 26, at the San Francisco Marriott Marquis. Cosmopolitan flair, spectacular scenery, and cultural diversity make San Francisco one of the top destinations in the world. Perennial favorites include Fisherman’s Wharf, Chinatown, the cable cars, Golden Gate Bridge, and the nearby wine country. The city is acclaimed as home of the world’s best restaurants and its shopping hub, Union Square, anchors a who’s who of world-famous stores just steps from the Marriott Marquis. Don’t miss this opportunity to experience a city full of life, attend stellar educational programs, and visit with friends and colleagues, new and old.

This conference offers CLEs over the course of 4 days, and covers a variety of topics, including: product liability, drugs and medical devices, health care law, and torts and environmental law, among many others. The conference is meant to provide comprehensive insight into various topics faced by litigators in multiple aspects of defense litigation. We have always felt DRI publishes the best materials on LinkedIn and their conferences share similar value.

Other articles related to CLEs, speaking events and making presentations generally on A2L Consulting's site:


Tags: Patent Litigation, Social Media, PowerPoint, CLE

19 Ways in Which the World Has Changed Since 1995

Posted by Ken Lopez on Wed, Oct 1, 2014 @ 09:00 AM


a2l consulting litigation consultants oldest 19 years old firstby Ken Lopez
A2L Consulting

Today marks A2L Consulting's 19th anniversary. Almost 20 years ago, I began planning to set up this company even while I was finishing law school. Now we are one of a small handful of top litigation consulting and visual persuasion consulting firms in the country.

In these past 19 years I have observed massive changes in the ways in which people communicate, both inside and outside the courtroom. In 1995, it was still fairly novel to have a website. Using the Internet Wayback Machine, you can still see what ours looked like at the time. Yikes, right?

Ours was not the only goofy-looking site at the time. Here’s what the websites of Kirkland & EllisWhite & Case, and Paul Hastings looked like. It's a simple visual reminder of how far we have all come. Remember, 19 years ago, O.J. was just getting in trouble, and neither Google nor Amazon existed yet. And many major law firms didn’t yet have a website.

Today, A2L is a closely integrated professional services firm offering jury consulting, litigation graphics consulting, on-site courtroom personnel, and visual persuasion services. Back then, we were primarily an animation company for lawyers. Things have certainly changed in our business, and in business in general.

Looking back over the last 19 years, here are 19 industry changes that are useful to reflect on, since they often point the direction to future change.

1. Storage of data is virtually free now. Nineteen years ago we used laser disks to play deposition clips inside the courtroom. Some firms still bring servers to war rooms, but most have adapted and realize that they can store pretty much everything they would ever need for trial in the palm of a hand.

2. Litigation graphics production was a lot more like Kinko's in 1995. After a meeting, a graphic artist would produce what the lawyer said to produce. Today's litigation graphics consultants are expert in storytelling and visual persuasion and often are in a position to help design the presentation strategy for trial.

3. More often than not, courtrooms are now wired for presentations. Nineteen years ago, we had to bring everything in the courtroom for every trial since no one had any technology set up.

4. I think practicing law was a lot more fun for a lot more people back then. Money wasn’t unlimited, but it could seem that way. But now as large law firms look a lot more like large corporations, the days of wild holiday parties and limitless expense accounts are now a thing of legend. Overhead is dropping everywhere.

5. With the rise of the Internet came a fast flow of information, and we all became a whole lot more knowledgeable. Remember Shepardizing with books? Today, we can research a judge online in no time.

6. We're now understanding what it really means to persuade someone and how best to do it. Science is teaching us that using techniques like storytelling and creating emotional connections with jurors will increase persuasiveness.

7. Dr. Phil was still running a jury consulting firm. Yes, we have our industry and Oprah to thank for Dr. Phil. It was as a result of his work for her in a defamation case related to the beef industry that he found his way to television.

8. Nineteen years ago, law firms did not really reflect the population in terms of race and gender. It's not perfect yet, but we're clearly on a path in that direction.

9. Social Media. From the way in which we conduct juror background research, to how law firm scandals spread, to how quickly one of our blog articles becomes a major hit, social media has accelerated everything. We released a book on social media last year, and some of the articles in it have been read tens of thousands of times.

10. Litigators practice their trial presentations more now. 19 years ago, I think lawyers were much more reticent to practice, and now, structured practice has become central to many of our engagements at A2L.

11. The New Normal. Nineteen years ago, large law firms did not have as much competitive price pressure for litigation as they do now. Competition has increased dramatically since 1995. Our book about the new normal legal economy has been downloaded thousands of times.

12. PowerPoint. Hard as it is to believe, the emergence of PowerPoint in the courtroom did not begin in earnest until the early 2000s. In 1995 it was mostly printed trial boards. I remember bringing more than 400 boards to one trial. Now, firms like A2L are doing amazing work with PowerPoint.

13. Courtroom Animation. Similarly, the need for 3-D animation has been reduced by the creative use of tools like PowerPoint to show jurors what they need to see.

14. Blogging has emerged as an information medium. Our litigation blog is probably the most widely read publication of its type, with 5,200 subscribers. It's free. Remember when we all paid hundreds of dollars for similar information?

15. Tablets have pretty much replaced laptops for many uses. In 1995, laptops were just emerging. Desktop computers were the standard. Now, we are seeing iPads in use regularly in the courtroom.

16. Email. Hard as it seems to believe, many people, certainly many large law firm partners, did not have email in 1995. Now we can’t live without it.

17.  Law firm marketing and business development have come of age. Most of the common techniques of branding, marketing communications, media relations, advertising, and others hardly existed in 1995. Marketing took hold in the early 2000s. Now, we're seeing real progress with some law firms running business development teams successfully.

18. Litigators helping litigators. Litigators on our team are helping other litigators improve their game. This service, a component of litigation consulting, simply did not exist 19 years ago.

19. Litigation Consulting. I think A2L was the first firm to widely use the term "litigation consulting" back in the 1990s. Now, in a case with $10 million or more at stake, it is routine to find a litigation consulting firm on both sides of a case. In a case with $100 million at stake, it would nearly qualify as malpractice not to have litigation consultants on both sides of the case.


Tags: Trial Graphics, Litigation Graphics, Trial Presentation, Courtroom Presentations, Litigation Consulting, Demonstrative Evidence, Trial Technology, Jury Consultants, PowerPoint

$300 Million of Litigation Consulting and Storytelling Validation

Posted by Ken Lopez on Thu, Sep 25, 2014 @ 03:32 PM


litigation consultants power point vendorsby Ken Lopez
A2L Consulting

A2L supported a major win at trial last week, and the lessons from that win are extremely useful for any litigator.

The case involved two of the world's top litigation law firms and, respectively, two of their top litigators, both of whom have storied careers. A2L worked for the plaintiff, an inventor. The defendant was a multi-billion dollar technology company that had licensed the plaintiff's technology.

The dispute largely centered around the defendant's decision to stop paying licensing fees to the plaintiff. It was a complex case, and A2L's role was to help achieve a win through a combination of litigation consulting, litigation graphics and litigation technology.

Although we work on plenty of small cases, A2L Consulting may be best known for its work in cases with tens of millions, hundreds of millions, and frequently billions of dollars at stake. In these cases, simply making a clear and attractive PowerPoint slideshow is not what a litigation consulting firm gets hired for and certainly not all that a trial team needs. Instead, in big-ticket litigation, a litigation consulting firm's ability to deliver real value-add to the trial team will be the measured by its ability to:

  • support developing an opening statement;
  • run meaningful practice sessions with the 1st chair;
  • assist in the development of a story and theme;
  • ensure the story is one jurors will care about;
  • make sure the message (both spoken and visual) is clear;
  • incorporate lessons learned from any mock exercises into opening statements and litigation graphics;
  • develop the litigation graphics so that their design adheres to the latest psychological studies related to persuasion.

Yes, it may be surprising to some, but this is what great litigation consulting firms do (see 21 Reasons a Litigator Is Your Best Litigation Graphics Consultant and 11 Things Your Colleagues Pay Litigation Consultants to Do.) The complexity of this work explains why you can count on one hand the number of firms capable of doing it.

In my experience, most trial graphics firms are not aware of their own shortcomings, and, unfortunately, many litigators are not aware of the distinction between a simple trial graphics vendor (usually a group of artists, project managers and courtroom trial technicians) and a truly world-class litigation consulting firm (typically led by litigators and Ph.D jury consultants). For example, the CEO of a quasi-competitor to A2L, himself a former law firm hot-seater, said to me, "why would you give lawyers advice since they are paid to have the answers, right?" My answer to him was simple. You, shouldn't give advice.



And this is the line that separates litigation consultants from mere PowerPoint trial graphics vendors. It's a bright line, and once you understand it, there should be no confusing who fits into which category.

Leading up to trial, A2L provided all of the services listed in the bulleted list above and more. I had a chance to see the opening statements in this case. Our client humanized his client and told a clear story. He told a story that jurors couldn't help caring about. Told by him, it was simple to get behind the client. Moreover, his litigation graphics were well-refined and simple. They incorporated the latest persuasion science that cautions away from the use of bullet points and too much text. Frankly, his opening was delivered well enough that it would have been hard to beat him.

I believe that most cases are won and lost in the opening statements. It is during opening that the jury normally picks a side to root for and everything else is heard selectively to fit into this framework that each juror builds on his or her own (confirmation bias). Accordingly, enormous time and effort must be invested in preparing for opening statements. This includes many practice sessions, mock trials, a long iterative process of developing litigation graphics for opening and attention to all the other details like trial technology. In this case, opening statements were only about three hours long in total, however the trial lasted three weeks.

I'm proud to share the news that our side won after just a day of deliberations, and the jury awarded what is likely to be one of the top 10 verdicts of 2014, north of $300 million (A2L is normally on two or three of these top 10 cases each year). I am immensely proud of my colleague’s work on this case.

Other articles and resources related to litigation consulting and storytelling on A2L Consulting's site:

Tags: Trial Graphics, Trial Consultants, Litigation Graphics, Courtroom Presentations, Litigation Consulting, Trial Consulting, Demonstrative Evidence, Storytelling, Opening

The Top 5 Qualities of a Good Lawyer

Posted by Ken Lopez on Thu, Sep 25, 2014 @ 02:48 PM


traits of a good lawyer makesby Ken Lopez
A2L Consulting

I'm often asked for advice on hiring a lawyer. In fact, I refer about two dozen cases/clients out to trustworthy lawyers each year. Usually, they range in value from family law-types of cases to $100 million complex commercial disputes.

I am in a unique position. While trained as a lawyer, I don't practice. I spend the majority of my time running A2L, a litigation consulting firm, and I publish what is likely the most widely read litigation blog. However, I think what really qualifies me to make great referrals is the twenty years I've spent working with top litigators both as a consultant and as a client. In that time, I've had a chance to see how 1,000 lawyers or so perform, and I've learned a lot about who is good and who is average.

When someone calls and says to me, "I need a good lawyer," I need to know a lot more than that. In fact, I'm convinced that most people don't know what "a good lawyer" means exactly. I'm not even sure many lawyers know what makes a good lawyer.

From the outside of the industry, however, I think it's almost impossible to tell who is good. "Good" is almost entirely based on word-of-mouth, and world-of-mouth is usually affected by some form of confirmation bias. That is, people want to recommend a lawyer they've used before, since making that recommendation helps them reinforce the decision they made to hire that lawyer in the first place.

Knowing that someone is a SuperLawyer is good, being AV rated is good too, and even having a reasonable Avvo score is a plus. However, even among lawyers meeting these three criteria, I observe wide variations in talent. So, to give a good referral, I really have to both understand who is a good lawyer, and recommend the right lawyer for the situation.

Reflecting on 20 years of experience, here are five traits that define a good lawyer for me when I am making a referral:

  1. Negotiation talent. Far more important than any other trait, negotiation skill will get you the most value from a lawyer. Good lawyer-negotiators seek to leave all parties feeling like a reasonable outcome was achieved, rather than trying to run over the opposition. This does not mean they get you less than you seek. It means you get a fair outcome, and you feel good about your outcome. It means the outcome is also workable and has staying power. Good lawyers manage expectations on both sides of the "v." and are masters of selectively using leverage to help guide a dispute toward resolution. They have a warrior spirit that is fed by cleverly getting to the desired outcome. They play chess, not checkers. When a lawyer is not a good negotiator, disputes cost more and outcomes are less favorable. The problem is that this skill is very, very hard to evaluate unless you have seen someone conduct a negotiation. 

  2. Good Paper Talent. Good lawyers draft correspondence, motions and briefs that are well-cited and well-written. Typos are non-existent, and they maintain a sense of decorum unless it is truly helpful to do otherwise. Their emails are well-thought-through, and they avoid common grammar issues. They get things done on time, and they are familiar with using storytelling and persuasive graphics in pleadings to maximize persuasiveness. Of course, they get the law right, but that really should be a given. 

  3. Presentation Talent. Good lawyers present well when they are being spontaneous, and they present fantastically well when they have time to prepare a trial presentation. They are confident. They are familiar with the latest thinking about litigation graphics. They are comfortable relying on litigation consultants and others for good ideas.

  4. Specific Experience. Just like a job interview, you really want to hire someone who has handled a problem like yours many times before. This is not always possible when hiring a lawyer as many problems are unique. Furthermore, if I had to balance negotiation skills vs. experience with a particular subject, I'd still very heavily weight my decision in favor a lawyer with superior negotiation skills. 

  5. Reasonable Accessibility. Good lawyers make themselves available to you, and you should not have to beg them to talk with you. That does not mean you have a right to be high-maintenance, it means their availability should vary proportionally to the seriousness of what you are facing at that moment. Good lawyers are busy, but as they say, if you want something done, ask a busy person to do it.

Notice I did not mention fees or rates in my top-five list. As my favorite outside counsel says to me, perhaps in a self-serving way, "there's nothing more expensive than a cheap lawyer." Fortunately, I happen to agree with him.

You can probably tell that I enjoy making referrals, and, in fact, I happened to give three yesterday. My hope is always that I have made a good match for all involved, and so far, that's always been true. Please comment with other traits you think I overlooked.

Other A2L articles related to business development, pricing and litigation consulting:



Tags: Litigation Graphics, Trial Presentation, Litigation Consulting, Pricing, Storytelling, Leadership, Pleadings, Business Development

The Top 10 Tips for Selling Professional Services

Posted by Ken Lopez on Wed, Sep 17, 2014 @ 03:16 PM


professional service sales tips litigation supportby Ken Lopez
A2L Consulting

As the founder of A2L Consulting I've had the opportunity to do every job in the company at some point in the last 20 years. I enjoy technical work that requires deeply complex thinking. I'm great at conceptualizing litigation graphics for opening statements. Not surprisingly, as CEO, I also love leadership and strategy.

However, the job I love the most is helping people connect with the right people at A2L who can solve their challenges. Usually, these challenges are related to communicating to a judge or jury, persuading a skeptical public audience, or testing to find just the right oral and visual message for a particular audience. What do I call this job? Well, the title of this post is big clue. This job is sales. 

A lot of people conjure up images of gregarious backslapping fraternity types when they think of salespeople. If you're doing it well, nothing could be further from the truth.

Sales is simply helping people solve problems. It's pretty easy when they know they have a problem, but it is certainly much harder when they have yet to perceive the problem, when you want to help them prevent a problem, or even when they have no idea that the solutions you know about exist.

In 20 years I've talked to tens of thousands of people in a sales context. I think I do sales well, and the lessons I've learned selling litigation consulting services can be applied to any professional services sale including selling as a lawyer.

Here are the top 10 tips I have for any salesperson engaging in professional services sales or pretty much sales of any type.

10. Create accountability systems. Great sales people want to be held accountable for their metrics (i.e. calls, meetings, etc.) and their results. Bad sales people hide and obfuscate. If you want to be great, get yourself a coach, a mentor or a group that you will report to weekly. Simply by talking through your metrics with someone else on a regular basis you'll become much more effective.

9. Act like your prospects. People generally like themselves. They also usually like people like themselves. If you want to be liked and respected by your prospect, behave like them. While I believe in NLP principles related to mirroring and matching techniques, I'm not being that granular. If your prospect is an introvert, be one when you're with them. If they like to go out for drinks, join them in that atmosphere. Go where the prospects are, and act like the prospects do.

8. Tenacity is the best and most overlooked sales strategy. One study found that most sales people have given up after the fifth attempt to reach someone. However most deals are usually arrived at after at least eight contacts and attempts to get a deal done. As one blogger put it, 90% of salespeople have given up before 80% of sales are made. Very often, to be good at sales, all you have to do is stick with it. If you generally only try to reach someone a few times, you're almost guaranteed to fail as a salesperson.

7. "No's" are good news. It's probably going to take nine no's for every yes you hear in sales. Rather than seeing a "no" as an affront to your self-esteem, be grateful. You just got through one of the nine preventing you from getting to that next "yes."

6. Your existing clients have more business than you think they do. While A2L has worked with pretty much every major law firm in the country, there are really only a handful of firms where I believe we have more than 25% of the firm's annual litigation consulting spend. I've been at this 20 years, and I still have this problem. All of my serious competitors like DecisionQuest, FTI and TrialGraphix, are in the same boat. You can always dig deeper, and it is always easier, faster and cheaper to sell to current clients than it is to find new ones. Treat your current clients more like prospects and less like assets, and you'll uncover gold.

5. No one sales method works for the long-term. At A2L, our sales teams and I use a combination of four methods to generate sales. First, we do great work at A2L so we get repeat business and referrals. In professional services, results are gold, and without them, no amount of sales can help you. Second, we use this blog (here's a free subscription) to share valuable information with the kinds of people we hope to work with (5,000 subscribe already). People call us every day as a result of having read an article about jury consulting, litigation graphics, trial technology, or our visual persuasion services. Third, using a product called LawProspector, we use warm calling methods to reach out to people we know are likely to need litigation consulting services soon. Fourth, we use classic one-to-one relationship selling to build relationships for the long-term. These four methods work together like a symphony.

4. What gets measured gets done. Sorry for the cliché, but it's true. If you're not tracking every bit of sales activity you do, you shouldn't bother trying to sell, because you're just doing it wrong. You must use a CRM. Without metric tracking and accountability in some form, most people will just bounce from conversation to conversation without converting a meaningful number of deals. It feels like sales, but it's really just endless flirting.

3. You're going to sell your way no matter what, so don't try to sell like somebody else. A friend of mine who is a partner to major law firm is a very effective sales guy. He's worked at it, and he is rightfully proud of his accomplishments. He uses a sales coach, and he shared with me something that his coach told him. My friend didn't like big networking events (I can empathize), and he didn't like cold calling people. However, he knew he liked having dinner parties. So instead of uncomfortable selling methods, he has regular dinner parties with people who are prospects and people who are clients. It works for him, and his method is entirely consistent with the message I am advocating.

2. Sales is helping people. I said it earlier, but there's a lot of baggage around the word "sales." It is unwarranted. Sales is simply helping people you care about be relieved of or avoid pain. Who doesn't like to do that? Remember that the next time your confidence is down. Start helping someone.

1. C + M = $ales.  You'll make a certain number of contacts (i.e. calls, emails, handshakes) from which will you earn a certain number of meetings. From those meetings you get a certain amount of business. Anyone who tells you sales is something more than that is trying to sell you something. If you don't have enough sales, you're not going to enough meetings. If you're not getting enough meetings, you're not making enough contacts. You're probably going to need to make at least 25 contacts to generate a meeting (very cold calls can be more like 90:1). If you know your average transaction and you know your sales goal in dollars, you know exactly how many calls you need to make and how many meetings you will need to set up. Required Calls Per Week = (((Annual $ales goal / average transaction) / (10% meeting close rate)) * 25 calls to get a meeting) /48 weeks (because nobody sells 52 weeks a year).

I love hearing from other salespeople, particularly those in law firms, litigation support and other professional services. Drop me a note, and tell me what tips I missed.

Other articles related to sales, pricing methods and customer service at A2L Consulting's site:




















Tags: Trial Graphics, Trial Technicians, Litigation Graphics, Jury Consulting, Litigation Consulting, Jury Consultants, Pricing, Customer Service, Business Development



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    Ken Lopez founded A2L Consulting in 1995. The firm has since worked with litigators from all major law firms on more than 10,000 cases with over $2 trillion cumulatively at stake.  The A2L team is comprised of psychologists, jury consultants, trial consultants, litigation consultants, attorneys and information designers who provide jury consulting, litigation graphics and trial technology.  Ken Lopez can be reached at

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    Ryan H. Flax, Esq., Managing Director, Litigation Consulting, joined A2L Consulting on the heels of practicing Intellectual Property (IP) law as part of the Intellectual Property team at Dickstein Shapiro LLP, a national law firm based in Washington, DC.  Over the course of his career, Ryan has obtained jury verdicts totaling well over $1 billion in damages on behalf of his clients and has helped clients navigate the turbulent waters of their competitors’ patents.  Ryan can be reached at

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    Laurie R. Kuslansky, Ph.D, Managing Director, Trial & Jury Consulting, has conducted over 400 mock trials in more than 1,000 litigation engagements over the past 20 years. Dr. Kuslansky's goal is to provide the highest level of personalized client service possible whether one's need involves a mock trial, witness preparation, jury selection or a mock exercise not involving a jury. Dr. Kuslansky can be reached at

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