The Litigation Consulting Report

The CEO in Litigation: Problems, Solutions and Witness Preparation

Posted by Laurie Kuslansky on Tue, Mar 24, 2015 @ 04:41 PM

 

ceo-deposition-tips-testimony-courtby Laurie R. Kuslansky, Ph.D.
Managing Director, Jury Research & Consulting
A2L Consulting

Beware: When a CEO takes the stand, he or she could prove to be an unexpected liability. Dr. Laurie R. Kuslansky, Trial Consultant, explains how to avoid this unfortunate — yet foreseeable situation.

The very qualities that make the CEO successful in business—the ability to take charge, to think in terms of the “big picture,” to avoid minutiae, and perhaps the possession of ample self-importance and confidence—may collectively manifest as a poor witness in the courtroom, which is not filled with "yes-men." These behaviors can handicap counsel and may prevent judges and juries from perceiving the executive favorably. Trial team members may overlook a CEO’s faults due to familiarity, resignation, because they wish to maintain a comfortable relationship, or because other facets of the case distract them. However, it is risky to ignore the negative impact the CEO’s behavior may have on an uninitiated audience (i.e., a judge and jurors) that has no incentive to tolerate it.

Pitfalls of the CEO as Client

The CEO is naturally hesitant to relinquish control. When faced with a threat, this leader seeks control. An excessively controlling executive is certainly not the person who should run the legal show, but often tries to do so. The trial team may not feel trusted and may be forced to “work around” the CEO to get its job done. It is essential that one member of the trial team—ideally, the best qualified—be designated to direct the effort.

When a CEO defers authority, it may be to someone who lacks the skills necessary to succeed in trial (e.g., a non-litigator who performs legal research, writes briefs, or who focuses on motions or post-trial appeals or to inside counsel who is paid to agree with "the boss"). In this situation, friction will undoubtedly arise between the non-litigator’s provision of detailed information and the litigator’s streamlined plan or between the politically driven in-house counsel and strategically thinking trial counsel. The CEO’s choice of one plan over the other may be a show of control, but may work against the strength of the team—and ultimately against the CEO.

Pitfalls of the CEO as Witness

The CEO is among the most visible of corporate witnesses. Jurors view the chief executive as uniquely qualified to answer for his or her company, both as the endorser/enforcer of corporate policy and as the parental role model for the corporate culture. Consequently, this leader is expected to be knowledgeable, powerful, and accountable. However, jurors often view the CEO cynically (i.e., as out of touch with the average person, as poised to advance the company’s agenda, and as being motivated by greed and a desire to protect him or herself and assets). We've heard CEOs make comments that set them apart from the jury, such as "It wasn't a lot of money . . . only maybe two or three million dollars."

In contrast, the juror typically has high regard for the judge and expects trial participants to be polite and deferential. The executive who seeks control—or who seems too casual—offends the jurors’ sense of who should be in charge and how one must conduct oneself in court. If the CEO resists direction from the Court, he or she is seen as difficult, evasive, or unlikable (and thus not credible). Worse, it sends the message that they are above the rules and are willing to break them.

Ironically, then, attempts by a CEO to advance an agenda or to show strength accomplish quite the opposite. Behaviors that succeed in the corporate environment only serve to antagonize jurors. Jurors do not live in the CEO’s world; jurors tend to be average wage earners with limited or no power in the workplace. Though they may admire the corporate leader who has an unusually positive story (e.g., a CEO who pulled himself or herself up by their bootstraps), jurors are inclined to feel distant from—even resentful of—a powerful individual, particularly one who displays an air of superiority and collects hefty salaries and bonuses which are seen as in the stratosphere and unwarranted. The jury trial provides a rare opportunity for jurors to turn the tables. Hence, the CEO who testifies as if he or she is holding court (rather than deferring to the Court) may provoke a backlash by confirming juror suspicions of corporate arrogance.

On direct examination, the self-assurance displayed by a CEO can make a cordial exchange with the questioner reminiscent of a well-rehearsed infomercial. This effect will likely be more pronounced than with other witnesses, since the executive (who is, after all, the client) will elicit only polite and respectful questioning. On cross-examination, however, the same executive often appears unprepared, uncooperative, impolite, manipulative, arrogant, and/or evasive. A CEO’s power struggle with a cross-examining attorney reveals the leader who was so pleasant and self-assured on direct examination as someone who can also be highly unlikable and inappropriately controlling.

Why does this happen? Negative Tendencies of the CEO

  • Believes that others see things from his or her perspective when most are simply paid to do so

  • Patronizes others or blames their limitations when others are not persuaded to see things as the CEO does

  • Finds it difficult to speak at the level of the jury, yet expects to be understood

  • Refuses to yield on the stand, opting for one-upmanship in a misguided show of strength rather than picking his or her battles

  • Bullies opponents: It is more important to the CEO to be right than to be likable or cooperative

  • Insists on always having an answer

  • Is prepared to give orders, but not to take them; and is willing to ask questions, but not to be the one “on the spot”

  • Refuses to spare his or her opinions

  • Fails to speak diplomatically

  • Appears to be a “suit” (i.e., appearance, body language, behavior, lifestyle, etc. serve to identify the executive as a privileged power broker).

  • Doesn't suffer fools well, so shows contempt for ill-prepared or disorganized questioners
  • Note: If you show this list to a CEO, he or she will deny it describes them!

Pitfalls of the CEO on Videotape: Seeing Is Believing

Video depositions are an additional CEO hazard. Opposing counsel may edit video testimony to create damaging sequences for replay to a jury; these sequences commonly exaggerate unattractive qualities of the executive that go unnoticed when only the written record is used. Such qualities include appearance, demeanor, facial expression, body language, mannerism, delays in responses, tone of voice, diction, accent, eye contact, gaze, posture, personality, and attitude . . . as well as attire, haircut, tan, jewelry and accessories.

Video is especially damaging when the judge and jury do not see what they expect. For example, the CEO’s attire may send the wrong message; an inappropriate background in the video can do the same.

Inconsistent behavior or appearance that would likely go unnoticed in written transcripts can be quite apparent on video and seeing is believing . . . or not.

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The executive’s energy level or appearance may improve from one taping to the next, or (more likely) may decline due to fatigue over time.

Poor positioning of the witness may also create a negative impression. If the CEO is sandwiched between deposing and defending attorneys, the resulting “pingpong” effect of his or her turning head is both a distraction and a red flag. Any fidgeting that creates a visible pattern (remember Oliver North at the Congressional hearings?) has a similar effect.

Likewise, the CEO who looks to the attorney after hearing a question reveals uncertainty and the need to defer to counsel.

In traditional depositions, attorneys tend to focus on substance more than form; CEOs tend to answer questions by saying as little as possible. This protects against later attacks on the executive’s credibility (given the developments of discovery and the opportunity to review additional materials, answers in court may vary from those given in deposition). On video, however, such reticence presents as unresponsive, detached, uncooperative, and even evasive.

The CEO who is tongue-tied in a video deposition but charismatic and forthcoming in court will witness the erosion of his or her credibility.

Conversely, the CEO who plays the “charmer” in a video deposition by volunteering information, war stories, etc. likewise forfeits credibility if he or she “gets religion” and clams up on the stand at trial.

Keep in mind that it is easier to lie with words than with behavior. Nonverbal messages may betray the CEO’s true mindset. Jurors know instinctively that body language can be revelatory. From their perspective, the CEO’s physical behavior is more significant than his or her words.

How to Avoid Video Pitfalls

Some solutions to these concerns are obvious: Pay close attention to appearance. In deposition, position the witness to allow a clear line of sight to both parties and the camera. Strive for consistent demeanor over time.

However, success requires time, practice and expertise. To improve the video performance of your executive witness, the following are essential:

  • Blunt reality checks: Offer honest feedback regarding the added risks of video deposition.

  • Pay attention to details: Form is as important as substance and more so for credibility.

  • Clear the table of distractions.

  • Warn the CEO to use his or her best manners: No interrupting, no bad attitude, and

    avoid controlling behavior.

  • Remind the CEO to respond only after the question has been fully asked and understood.

  • Avoid ploys to stall for time (such as asking a questioner to rephrase or repeat a question when unnecessary).

  • Vary the length and the language of responses; use this variety to attract attention to helpful testimony and to avoid sounding trapped or as if “taking the Fifth.”

  • Model and practice matter-of-fact answers to difficult questions.

  • Teach the witness to respond in contrasting style to the examining attorney. If the adversary becomes loud, fast, or aggressive, the CEO should accordingly strive to be quiet, deliberate, or polite.

  • When members of the trial team pass documents or approach the witness or exhibits, they must take care to remain off camera.

  • Educate the witness: Ask the CEO to observe as someone else plays the role of the CEO under questioning, and then evaluate the CEO to ascertain his or her level of self- awareness.

  • Employ behavior modification: Arrange for the executive to evaluate his or her level of self-awareness by reviewing details in videotaped practice sessions.

  • To identify negative body language, review the video without sound first.

  • Because the trial team’s relationship with the CEO makes it difficult to view the CEO as others will, arrange for an unknown attorney to conduct practice sessions and then to provide honest feedback.

  • Identify behavior that needs work, then change one behavior at a time. Practice, videotape, then review and evaluate the tape. Encourage positive change, and then move on to change another area.

  • Prepare visual exhibits (of adequate size to review on camera) to make strong points, organize the CEO’s testimony, and strategically distract viewers from the witness.

Why Does a CEO Act This Way?

Though it seems illogical for a CEO to behave counterproductively, there are reasons for such behavior. The chief executive is driven to succeed. He or she has every reason to believe that tactics rewarded by success in the past will continue to yield success. When in unfamiliar territory (e.g., the legal process), the CEO will misapply familiar behavior (borrowed from the business world) until he or she understands that doing so risks failure.

The CEO will resist the surrender of winning familiar formulas.

Unless he or she has learned through experience or atypically defers to counselors, a chief executive does not respond well when told to change or to back off.

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Once your CEO becomes aware of the dilemma and is receptive to new ways, keep in mind that old habits die hard. The CEO will be a poor witness if he or she views a lawsuit as an interruption of higher priorities. Jurors have a keen perception of such elitism. If the CEO perceives the necessary investment of time, energy, and money as unjustified or feels above the need to explain him or herself, the result will be a dismissive or contemptuous attitude, both on the stand and in the steps leading there, but he or she won't have the last say for a change — the judge or jury will.

Corporate politics may undermine a chief executive’s testimony. For example, imagine that the CEO was at odds with other executives regarding a policy change.
Cross-examiners would be thrilled to reveal this rift. They would take the opportunity to exploit tension between the CEO and dissenting witnesses. A CEO would resent the need to simultaneously defend and reconcile such differences of opinion. The trial team must not overlook the fact that stress hampers the CEO’s decision-making ability and performance. Expectations of the CEO run very high. As the corporate leader, this witness has far more to deal with than litigation. The implications of a given case extend beyond the courtroom, and the chief executive is highly exposed. He or she is accountable to employees, business plans, banks, investors, trustees, board members, shareholders (if the company is publicly traded), and the public. Each of these factors contributes to the CEO’s unique perspective of – and stress from – a lawsuit.

When a CEO is the client in a criminal case, the problem of stress is magnified. The CEO is likely to receive little outside support as former allies (including friends and family) distance themselves, adding to the CEO’s anxiety. Anxiety is the saboteur of CEO witness performance. As anxiety increases, a CEO typically becomes less able to accept advice. His or her desire to take control increases in direct proportion to the perceived threat (e.g., if the CEO’s liberty is at stake). Tension may also develop between a CEO’s advisors and the trial team. The leader of a corporation is commonly surrounded by “yes men” who tell the CEO what he or she wants to hear. In a criminal trial, the CEO may present as unlikable and not credible and yet receive positive feedback from insiders who misleadingly assure him or her that all is well. Many rule by fear, so stressful times are the least likely to elicit criticism, even if accurate.

In contrast, the trial team will wish to provide more balanced or even worst-case scenarios. However, when trial team members give realistic critical feedback, they may find the CEO unwilling to listen. Thus, attorneys hesitate to give frank advice because they fear being shot as the bearer of bad news, or because they naively wish to protect their client by shielding him or her from negative feedback (to no one’s long-term advantage). As a last resort, the trial team will sometimes forego calling the CEO as a witness. This can be a death knell – especially in criminal cases – because juries want to hear from the CEO. The trial team then faces a no-win choice: Either put a CEO on the stand who is a bad witness, or avoid calling the CEO altogether.

Too Much of a Good Thing Is Not Always Wonderful

The CEO witness can fail by over-compliance or under-compliance. Training any witness to act against their nature can backfire; an overly prepared executive may not present as genuine. For example, a stern CEO who smiles at the jury when speaking can look like a grinning fool or a windup doll, thus losing instead of gaining essential credibility.

A chief executive must behave naturally, must uphold the jury’s positive expectations, and must not reinforce negative stereotypes. The CEO’s lead attorney is charged with maintaining a balance between forthrightness, control, and remaining sensitive to the CEO’s concerns and anxieties.
 

How to Raise the CEO’s Awareness:

  • Be certain you understand each other. Review mutual goals and your plan to reach them. Take nothing for granted.

  • Control damage. Show the CEO (e.g., by videotaping cross-examination practice sessions) how and why misguided strategies, aggression, and over involvement will boomerang.

  • Consider the reaction of the audience. Orient the CEO to the perspective of the judge and jurors. Use blunt terms to describe how the CEO is likely to be perceived.

  • Get a reality check from the horse’s mouth. When possible, mock-try the CEO. Test recorded direct and cross examinations before surrogate jurors to allow the CEO to measure his or her expectations against real feedback.

storytelling for judge jury courtroom best method for trial persuasion and emotion
The attorney’s task includes showing that the CEO is a “people person,” not just someone who gives orders from on high. Demonstrate the CEO’s knowledge and understanding of the roles and contributions of others in the company. Even if the witness is reluctant to learn the details, it is important to encourage him or her to become familiar with the experience and input of lower level employees. This is essential for the CEO who must testify as both a fact witness and a corporate witness; keep in mind that his or her recall and performance will benefit to the degree that anxiety can be reduced. The CEO should also be encouraged to consider how outsiders view him or her as a person and as a decision maker, and to offer background and context to explain his or her actions.

What the Attorney Must Teach the CEO Witness:

  • Capitalize on your strongest asset: Charisma. Opportunities to employ charisma may be lost if ego gets in the way (appeal to the CEO’s ego with winning strategies).

  • Choose your battles carefully while under questioning.

  • Take control on the stand through both your behavior and your speech.

  • Practice the questions you dread most through role-play (the CEO plays the cross-examiner and the attorney plays the witness). By asking the most difficult questions, you can learn model responses that overcome anxiety.

  • Work with others on the case to avoid the “Hero or Zero” witness syndrome. No one makes or breaks a case without help from others.

  • Use analogies the judge and jurors appreciate but that opponents cannot turn against you.

  • Use a mock jury to pretest these analogies.

  • Pare down all excess in dress, accessories, and mannerisms.

  • Drive to court in your mother’s car, or use public transportation.

Spend time with the CEO to review what he or she can and cannot concede. Supply areas of concession and appropriate, matter-of-fact ways to make concessions. Thus armed, the CEO will have something to give without losing ground and a guide to assist his or her choice of battles.

It’s a Lousy Job, but Someone’s Gotta Do It

As difficult as it may be, it is imperative to tell the emperor that he has no clothes: Someone must inform the CEO witness when he or she has presentation problems. If you are ultimately to be successful in your litigation, this witness must understand the significance of the situation and must be enlisted to help you improve it. Though it may be tempting to avoid conflict with the CEO client, doing so would be a disservice. Embarrassing results would certainly hurt the relationship, and unwanted results can end it. The earlier these problems are addressed, the better.

This article originally appeared as the Cover Story of International Commercial Litigation Magazine.

Other articles about witness preparation, jury consulting and courtroom testimony from A2L Consulting:

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Tags: Trial Consultants, Mock Trial, Litigation Consulting, Juries, Jury Consultants, Expert Witness, Depositions, Witness Preparation

Why The Use of Clichés Puts Your Persuasiveness at Risk

Posted by Ken Lopez on Thu, Mar 19, 2015 @ 02:39 PM

 

using-cliche-lawyer-hurts-persuasiviness-juries-courtroomby Ken Lopez
Founder/CEO
A2L Consulting

Unfortunately, I have the memory of an elephant when it comes to life's uncomfortable moments. One of those occurred during undergraduate school at the University of Mary Washington almost 30 years ago. Like it was yesterday, I remember reviewing my professor's notes on a graded paper. Burned in my memory is the red-pen-circled-notation, "cliché."

At the time I really didn't understand why using a cliché would be a problem. After all, it's just a linguistic shortcut, and having my professor deduct points for it struck me as splitting hairs. At the end of the day, a cliché is really just a culturally entrenched phrase that shortcuts language and allows us to speak more efficiently, right? Well, not exactly. Clichés are really the place where good metaphors go to die. That is, what was once a useful language shortcut becomes so overused that it is negatively labeled a cliché.

So, what's all the hubbub about when it comes to using clichés in litigation for persuasion? It turns out that by taking the easy way out and using a cliché, you will significantly harm your courtroom persuasion efforts.

Using functional MRIs, neuroscientists have found that once a clever turn of phrase or metaphor becomes overused to the point that it can now be fairly called a cliché, the human brain shows far less interest in processing it. The cliché is often entirely ignored by listeners, and in this case, ignorance is not bliss. Instead of engaging many parts of the brain as happens when one hears original thoughts and language, the processing is minimal. When the brain's processing is minimal, your persuasion efforts are a lost cause.

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The phenomenon is quite similar to the way our brain treats the many different greetings you hear from a barista as "hello" even if they say "how are you?" or "how's it going?" Just as these phrases are simply variations of a greeting that your brain rarely takes time to process, a cliché used in a litigation setting, will be glossed over and will simply fall on deaf ears.

When you are looking for that perfect metaphor, consider using one that has not yet become a cliché, or modify an existing cliché to force your listeners to process it. We have written often about the power of litigation storytelling done well and have even released a book on the topic. Connecting with your listeners effectively so that you can engage them on an emotional level requires the avoidance of clichés.

So, take the road not taken. Take the world by storm. Wipe the slate clean, and raise the bar! There's no time like the present to write and speak originally. Doing so will increase your persuasiveness whether you are drafting a brief or delivering an opening statement.

Someday, you will thank me for this, just as I am thankful for that college professor that set me on a path to success, even though I'm still licking my wounds after all these years. Remember always, that those who do not look back at where they come from will not reach their destination.

*Disclaimer and a contest: There may be more clichés packed into this article than you can shake a stick at, and it is, I hope, obviously intentional. But, how many clichés would you say there are in this article? If you are the first to come up with the right number and leave it in the comments, I'll send you a Starbucks gift card so you can enjoy interacting with that barista even more than you do already. Feel free to make an argument for those close-call clichés. Yes, the disclaimer is part of the article too.

Other articles related to persuasion, metaphors and courtroom communications from A2L Consulting:

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Tags: Trial Consultants, Jury Consulting, Juries, Psychology, Storytelling, Visual Persuasion, Opening, Briefs, Persuasion

Why Expensive-Looking Litigation Graphics Are Better

Posted by Ryan Flax on Fri, Mar 13, 2015 @ 10:37 AM

by Ryan H. Flax
Managing Director, Litigation Consulting
A2L Consulting

placebo-effect-juries-litigation-graphics-expensive-price-costI am not advocating that you spend more to develop top-notch demonstrative evidence. What I want you to do is make sure that the litigation graphics that you do use look like you paid a million bucks for them. Make sure you’re getting what you’re paying for. Let me explain why.

Recently published and widely reported research out of the University of Cincinnati relating to treating Parkinson’s disease shows that the placebo effect is a real thing and a powerful psychological phenomenon. Interestingly, what the study also shows is that it matters greatly to those experiencing a strong placebo effect how much they believed the pseudo-pharmaceutical cost. Amazingly, seemingly-more-expensive drugs turned out to be much better “drugs” in effect (even though they were not drugs at all). The more a patient believed a drug cost (here the artificial difference was $100 vs $1,500 per dose), the more effective it was at treating their symptoms of Parkinson’s.

Perception of cost was capable of influencing physical and psychological behavior and responses on a subconscious level. Wow.

Knowing this new and interesting bit of science, how can we use it to be more persuasive in litigation, ADR, or similar situations? An easy step is making it appear that your demonstrative evidence, e.g., trial graphics, were very expensive. This is easy – just make your graphics, boards, scale models, etc., look fantastic: creative, well designed, well composed, simple, beautiful, and well-targeted to their specific purpose.

cost-perception-persuasion-placebo-effect-juries-litigation-graphics-expensive-priceI became aware of the above-identified research while driving to the office and listening to NPR’s Morning Edition. The show very briefly discussed the research and it really struck a chord with me because just the day before I’d been in a client’s patent claim construction (Markman) hearing at the U.S. International Trade Commission (ITC) and had the opportunity to compare our supporting graphics to those of opposing counsel. I know ours satisfied the requirements for looking very expensive (see above). The opposition’s, on the other hand, while arguably supportive of their argument, and were rudimentary and just plain ugly.

cost-perception-persuasion-placebo-effect-juries-litigation-graphics-expensive-price-uglyWhat makes litigation graphics ugly? Not paying attention to style, lack of client and/or case branding (must be subtle though), inconsistency in color/font size/font type, lack of composition, use of improper font for electronic display, poor slide aspect ratio choice, too much text, too small text, use of bullet-point lists, use of PowerPoint effects for no good reason, and many other things. Basically, if slides look like anyone could make them, they’re not worth the effort or cost. Litigation graphics must look intentional, beautiful, and purposeful. They should look like they cost a lot (but they don’t, really).

I am confident that there was no significant difference in how much either set of Markman hearing PowerPoint slides cost, ours versus theirs. But I witnessed a huge difference in the way the Court received each side’s counsel at oral argument and the general momentum throughout the hearing. It all went our way. The arguments on our side were better, no doubt, but I believe the “high-priced-placebo” effect also played an important role. Our more appealing, more professional-looking, higher-design, more focused graphics enhanced the entire experience for the judge and resulted in better rapport and a lot more nodding at and softball questions for our attorney.

Don’t pay more. But, make sure you get more.

Other articles from A2L Consulting related to litigation graphics, pricing of litigation support services and getting good value from your litigation graphics provider:

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Tags: Trial Graphics, Litigation Graphics, Demonstrative Evidence, Animation, Pricing, Psychology, PowerPoint, Visual Persuasion, Trial Boards, Information Design

How Valuable is Your Time vs. Litigation Support's Time?

Posted by Alex Brown on Tue, Mar 10, 2015 @ 08:37 AM

litigation-support-value-time-money-qualityby Alex Brown
Director, Operations
A2L Consulting

How do you determine value?
 
This weekend, while my oldest child was in Boston at a gymnastics meet, we thought this would be the perfect time to “renovate” her room back home. My youngest daughter wanted to help but also wanted to negotiate her fee to do so. I came up with many reasons for her to find value in helping: the good of the family, experience, and enjoyment, but none of these provided the proper balance of cost and value to her. Finally I told her that she will be able to destroy something that belongs to her big sister, without any concern for retaliation. This brought her on board, and in the end she not only loved it but she also had the added benefit of being able to tell her sister how much fun it was to destroy her room and how destructive the work needed to be.
 
As litigators, you have a similar job of having to persuade your client about, say, the importance of using expert witnesses or the need to bring on a litigation support team. This is always a delicate conversation because there are so many factors in play; emotions, money constraints, and inexperience, to name a few. For years, the use of expert witnesses has been an easy sell for the most part. But the importance of litigation support (i.e. theming, visual presentations, trial technology/hot seat operators, and mock trial exercises) is not universally accepted, so it can be more of an uphill struggle to convince clients of the need for these things and even harder to persuade them of the value. But why? It’s clearly not the cost, since that normally runs anywhere between .5 percent and 5 percent of the legal fees in a big case. So the sticking point is the need for these services.

Here are a few of the things we hear when discussing our services.
  • It's just PowerPoint, I can do that myself?

  • Just give me a list of universal questions I can ask the jury.

  • We'll just run a mock trial at the office.

  • I think we can bring you in after we know what we want, so it will be cheaper.
As a litigator, do you enjoy having the client sit next to you every step of the way, having the client in meetings when you discuss your next steps, and having them question you on every decision? Of course not. The client doesn’t have the experience, and these questions will drive down productivity. The same is true for litigation support. Perhaps in the back of your mind you think you can do it yourself. But the difference between doing it and doing it right is vast. I would never ask my doctor to fix my electrical problem, I would never ask my babysitter to fix the brakes on my car, and I will never ask my mother to drive at night. Likewise, I would never ask my litigator to do what A2L can do for them. A2L's team is experienced and professional. They can develop more options because they understand the case and are there to support you. They see more court time in a month than most litigators see in a several years. Why wouldn’t you want that level of experience in your corner?
 
David Beldon of iExecuVision International and Vistage once gave me the most important mantra that you as a litigator should incorporate into your life: “I will only do today, what ONLY I can do.”

Other A2L articles and resources related to the role of litigation support, getting value from litigation support and making a case for litigation support services to in-house counsel:

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Tags: Litigation Graphics, Mock Trial, Litigation Consulting, Litigation Support, Trial Preparation, Pricing, Voir Dire, Practice, PowerPoint, In-House Counsel

How to Apply Cialdini's 6 Principles of Persuasion in the Courtroom

Posted by Alex Brown on Wed, Mar 4, 2015 @ 09:29 AM

persuasion-juries-reciprocationby Alex Brown
Director of Operations
A2L Consulting

Last year, we talked about the pros and cons of business development professionals -- specifically, the good and bad traits of people in this profession. Here, I start a new series on the six principles of persuasion. I have long been a huge fan of Dr. Robert Cialdini and find myself repeatedly going back to a book he wrote called "Influence: The Psychology of Persuasion." In this book, he discusses the six principles of persuasion. I want to share with you these principles in a six-article series, starting with principle number one: Reciprocation.
 
According to the Merriam-Webster dictionary, reciprocation is a noun that refers to a mutual exchange, a return in kind or of like value. Now before the emails come in about the ethics of giving the jury something in exchange for a favorable verdict, hear me out.
 
The idea of reciprocity is to give something to get something in return. So a litigator must put himself or herself into the shoes of each juror. What can you legally give them that has a perceived value above what they expected? To do this, you have to know what the jurors are expecting from the trial -- and most of that is negative. They feel that they are being taken away from work, family, personal time. They feel the pressure of making a decision that will help or hurt someone or something (a company), and they expect to be bored to death with statistics, witnesses, and the legal side of the case.
 
One of the things that the jurors do hope for is to be interested in the case or entertained -- but in truth, they expect just the opposite. When you are putting together your case, you should take to heart the immortal words from Gladiator: Are you not entertained!
  1. Entertain the audience. Regardless of the seriousness of the case, levity can defuse the pressure that the jury is feeling. There are levels of levity; choose the appropriate level for the case. A term related to this is the CSI effect. Jurors expect to see amazing displays of evidence, just as good as what they see on the hit TV show. Give them what they expect. Use professionals to develop slide decks, use professionals to videotape and digitize depositions, use professionals to prep the witnesses. If you don’t, the audience will notice, and your credibility will be harmed. 
  1. Connect with the audience. Engage them mentally and if possible personally.This concept needs to be infused into the strategy and the theme of your case from the start and repeated throughout the whole trial. Give them a reason to be engaged.
  1. Respect the audience. Make them feel welcome and make them think positively about you and your client. You can do this by creating easy-to-understand points, easy to-follow demonstratives and exhibits, and easy-to-believe witnesses. 

Remember, the audience members are not lawyers. The old adage that you can lead a horse to water but you can't make it drink applies to juries. Make it easy for them to come to a conclusion in your favor.
 
If you think about what you can give to the jury that they can appreciate, you will not only Increase the odds that they will listen to your argument, but you will create an easier path for them to understand and agree with your argument.

Other articles and resources related to persuading a jury, entertaining a jury and connecting with a jury from A2L Consulting:

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Tags: Trial Graphics, Litigation Graphics, Trial Presentation, Demonstrative Evidence, Juries, Storytelling, Persuasion

With So Few Trials, Where Do You Find Trial Experience Now?

Posted by Ken Lopez on Tue, Mar 3, 2015 @ 01:58 PM

 

experienced-trial-lawyers-litigation-consultantsby Ken Lopez
Founder/CEO
A2L Consulting

I have recently interviewed dozens of in-house counsel from large companies. One subject that continues to come up fascinates me and reflects the changing practice of litigation-focused law.

As my litigator turned litigation consultant colleague Ryan Flax says, "they call it the practice of law, but no one is practicing." That is, with so few trials occurring, the normal go-to litigators at big law firms are just not going to trial like they used to, and thus are not getting the practice that they used to get. Since that's true, where does one look for trial experience now, and will there be a shortage of experienced trial lawyers soon at large law firms? Let me offer some observations and five solutions.

The same trial lawyers I once saw go to trial at least once per year a decade or two ago, now go to trial every few years—at best. In their non-trial time, they are not watching trials since they are not being paid to go watch trials, and they do not usually participate in mock trial practice either. The difference between how often a large law firm goes to trial, let alone a single litigator, and a litigation consulting firm like A2L has never been greater than it is right now.

Whereas a major law firm may go to trial perhaps a dozen or two dozen times per year and a single litigator may go to trial every few years, a single litigation consultant at A2L will be involved in at least a dozen trials and often several dozen trials or more, every single year.

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If you think trial-loving partners at big law firms are unlucky, think of their associates, and ask yourself, how is anyone getting any trial experience any more? That is a question that in-house counsel are beginning to ask. As one noted, the people who now look truly comfortable in front of a jury are often plaintiff's counsel, since they are more frequently in court.

One in-house counsel at a large company poignantly noted about about the plaintiffs' counsel they face, "they have a swagger and body language that comes from experience, and that experience comes off as confidence, and confidence helps win cases." So, if in-house counsel recognizes that an experience gap is growing, what is the solution?

Here are five ideas for maximizing the amount of valuable trial experience on a trial team:

1) Litigation Consultants Add Experience to the Team: In-house counsel no longer expect a law firm to have all of the answers. They expect the involvement of litigation consultants early in a case. With litigation consultants in trial almost full-time, they are a logical add-on both from the trial team's and the client's perspective when considering early case assessment, mock exercises or trial. See, Litigator & Litigation Consultant Value Added: A "Simple" Final Product and 25 Things In-House Counsel Should Insist Outside Litigation Counsel Do and 21 Reasons a Litigator Is Your Best Litigation Graphics Consultant.

2) Learning by Doing Programs: Programs like those offered by NITA and others that allow for practice to occur should be a part of a litigators life-long-learning program every year. See NITA programs here.

3) Watch Trials on CVN: Until the Supreme Court figures out that televised trials will improve trial practice, there is an amazing resource trial lawyers can rely on. The Courtroom View Network captures video from trials and makes it available to watch online. In my view, every major law firm should be subscribing to this service to support the training of their litigators. See CVN discussed here

4) Take Every Opportunity to Run a Mock Trial: In-house counsel support the idea of a mock trial but are often afraid of the time and money investment. That's understandable, and while a multi-panel mock trial will always yield the best data, there are other solutions like a focus group or a Micro-Mock. Each offers a litigator the chance to practice his or her craft. See, In-House Counsel Should Make Outside Litigation Counsel Feel Safe and 7 Reasons In-House Counsel Should Want a Mock Trial and Introducing a New Litigation Consulting Service: the Micro-Mock™.

5) Read this Blog and Others Like it: There are several organizations who are publishing information that is far ahead of traditional CLE's when it comes to litigation. The ABA recognized our blog as one of the top ten litigation blogs, and I have highlighted other blogs helpful to litigators in the past. Subscribe free to this blog here. See, The Top 14 Blogs for Litigators & Litigation Support Professionals and Top 100 Legal Industry Blogs Named by the American Bar Association.

Other articles related to mock trials, getting trial practice and increasing your chances of winning at trial by A2L Consulting:

Maximize Persuasion During Opening Statements

Tags: Trial Consultants, Trial Presentation, Mock Trial, Litigation Consulting, Juries, Jury Consultants, Trial Preparation, Practice, In-House Counsel

Why the Color of a Dress Matters to Litigators and Litigation Graphics

Posted by Ryan Flax on Fri, Feb 27, 2015 @ 11:20 AM

color-litigation-graphics-litigators-dress-blue-goldby Ryan H. Flax
Managing Director of Litigation Consulting
A2L Consulting

Today, the internet is abuzz over what color this dress is:

The online debate was whether the dress is white and gold or blue and black. There is a right answer, by the way, and I’ll get to that below.

The debate has raged for hours and hours and has been widely, globally reported (at, e.g., NBC Today, CNN, NPR, BuzzFeed, Independent (UK), Reddit, and hundreds of other places) – just search “what color is the dress” on Google right now if you haven’t yet heard of this dress.

Celebrities like Ellen DeGeneres, Kim and Kanye, Taylor Swift, and Matt Lauer have all weighed in. BuzzFeed.com alone has reported over 21 Million views of this dress. Wired.com has even gone to the length of engaging an expert to analyze the image and assign real color values to the dress’s various parts – who said it is blue and black. Even after this expert photo analysis and knowing of it, NPR’s David Greene still swore it was white and gold and told Renee Montagne she was “wrong” for believing it to be blue and black.

I’ve been staring at the photo above for many, many minutes now and I must admit that I see it as pale blue with gold stripy-trim. I’m crazy (holy cow – before I got to the end of writing this article I looked back at the photo above and see it as blue and black now!).

So, why does this matter to you as a litigator?

It matters because THERE IS A CORRECT ANSWER HERE, but millions of people seeing actual, real evidence (the photo above) have divergent and strongly held opinions on the issue and are willing to take time out of their day to argue it. NPR’s David Greene told his coworker she was wrong about it. Folks on Gawker are insulting one another in comments debating the issue. These people are your potential jurors, and this blip on the internet’s timeline shows you that sometimes the facts are less important than perception and impression.

color-trial-graphics-litigators-dress-blue-gold-whiteI’m sure you can imagine a jury arguing over what is and what is not “reasonable” or whether a patent’s claim limitation is infringed by some plastic, flexible component of an accused windshield wiper blade product in a similar fashion to the folks on Gawker.com arguing with one another over a dress’s hue. This dress shows how scary this reality can be when your client’s case, life, company, and/or money is on the line.

Well guess what – here’s a photo of the dress in a different light:

It’s pretty clear now, isn’t it, that the dress really is blue and black. How can there be any debate?

What is this photo to the right? Is it actual evidence of the color of the dress above, the one the whole world is consumed with? No, it is not.

what-color-is-the-dress-litigation-graphics-litigators-dress-blue-gold-whiteWhat we have here in the photo to the right is demonstrative evidence. We are using it to illustrate that a similar dress, from the same company, designed in the same way as our dress-at-issue, but photographed differently, shows our dress’s actual colors. Here, it’s the only “proof” we’ll get, and this shows the critical impact demonstrative evidence (litigation graphics, scale models, animations, etc.) can have on an audience you’re trying to persuade.

Whether this is real evidence or demonstrative evidence matters not to jurors according to the top jury researcher in the country (Dr. Laurie Kuslansky). Jurors simply don’t distinguish between actual evidence and what you show in litigation graphics to demonstrate your points – it’s all just “evidence” to them.

Are you now convinced that the real dress is blue and black? I am (however, I just looked at the real dress photo one more time and it looks blue and gold to me again).

Other A2L Consulting articles related to litigation graphics, color theory and persuasion during opening statements:

Maximize Persuasion During Opening Statements

Tags: Trial Graphics, Litigation Graphics, Demonstrative Evidence, Juries, Psychology, Color Theory, Persuasive Graphics, Visual Persuasion, Opening

[New Webinar] 5 Ways to Maximize Persuasion During Opening Statements

Posted by Ken Lopez on Wed, Feb 25, 2015 @ 08:24 AM

 

opening-statements-webinar-cta-tallby Ken Lopez
Founder/CEO
A2L Consulting

If you can win the battle of opening statements, you'll likely win your trial. Up to eighty-percent of jurors will make up their minds about your case during opening statements. In this webinar you'll learn the top-five ways to maximize persuasiveness during opening statements.

From how to tell compelling stories to visually supporting your key arguments, this one-hour will reveal the best secrets from courtroom persuasion experts. Ryan H. Flax, Esq., A2L's Managing Director of Litigation Consulting is an accomplished litigator who helps trial teams perfect their trial story and trial presentation using the latest persuasion science.

Even if you can't make it to the live event, you'll receive access to the recorded version just for registering.

WEBINAR TOPICS:

  1. Why and how to frame your case as a story
  2. What NOT to do when introducing your case to jurors
  3. Why and how to support your opening statement with images and graphics
  4. Pitfalls and the dangers of poor visuals

Here are the details of the free webinar:

What: 5 Ways to Maximize Persuasion During Opening Statements
When: Tuesday, March 24, 2015 at 1:30pm ET How long: 45 minutes + 15 minute Q&A
Where: Online, once registered you will receive a personal login link
How much: Free
Why: Understand how to best persuade fact-finders during opening statements.
Who: Led by veteran litigator, Ryan H. Flax, Esq, A2L Consulting's Managing Director of Litigation Consulting.
How: Click here or on the button below to register for the complimentary webinar.

Whether you are in-house counsel, outside counsel, or litigation support, this 45-minute webinar will prove valuable and reveal secrets learned by one of the world's top persuasion experts.

Maximize Persuasion During Opening Statements

Tags: Trial Consultants, Litigation Graphics, Litigation Consulting, Webinar, Juries, Jury Consultants, Storytelling, Opening, Persuasion

Do I Need a Local Jury Consultant? Maybe. Here are 7 Considerations.

Posted by Ken Lopez on Thu, Feb 12, 2015 @ 08:50 AM

 

local-jury-consultant-ny-chicago-florida-nj-atlanta-california-dc-va-mdby Ken Lopez
Founder/CEO
A2L Consulting

Do I really need a local jury consultant? It's a question that I hear our clients struggle with frequently. The answer is maybe you do, maybe you don't.

The gut instincts of many are that a jury consultant who regularly works in the jurisdiction will provide special insights that trial counsel, often admitted pro hoc vice for purposes of trial, could use to persuade the jury more effectively and have first-hand knowledge that will help in jury selection because of specific, local nuances. I understand the instinct, since - when going to trial - you naturally want every single advantage, and it's natural to fear that there are some things you just don't know about your potential jurors, your judge, the courthouse or the local community.

While I understand the rationale, both emotional and logical, I've come to believe that such beliefs are now outdated and reflect pre-Internet thinking. Much like the need for 8-glasses of water a day, waiting an hour after eating to swim, or humans using 10% of their brains, I think these beliefs about local jury consultants are mostly stubborn old wives' tales.

The reality is that human beings make decisions following the same principles, regardless of where they may live, and the psychology of persuasion, as well as individual and group decision-making does not need to be reinvented from place to place. What you need and can rely on is the best consultant with the best skills, regardless of their location.

I'd like to offer seven ways of working through this challenge with a solution for you, whether you believe a local jury consultant helps or whether you believe hiring the best jury consultant is best for your case.

  1. 99 times out of 100, a local jury consultant is not actually going to add anything you need to win. I'm not saying there won't be good trivia, a story about your judge or the added knowledge of the best local diner. They will provide that. I ask though, will these things and related wisdom really help you persuade better compared to all the other bits of preparation that you could do? Furthermore, is there anything you can't figure out with a few minutes of Internet research and a conversation with local counsel that your neighborhood jury consultant might otherwise provide? You could easily learn about demographics (which are historically the least relevant to verdict preferences), insider details about your trial judge, the best local dineran iconic local landmark, or topical issues and local news using very basic Internet search skills. You have to ask yourself, is getting local color and flavor worth it to choose to not use the very best consultant you can find? If your answer is yes, fast-forward to solution number 7.

  2. No jury consulting firms, good or bad, have high-quality jury consultants in all the places you need them. I encourage you to ask the same question as above, "would I rather hire a very reputable jury consultant and firm whose brand depends on repeat business, good reviews and positive social comments or do I want to gain some small benefit and bet on a one-off relationship with little real accountability?" See, 5 Surprising Areas Where Geography No Longer Matters in Trial Support

    mock jury webinar a2l kuslansky

  3. It's the data, not the consultant, that matters most. In the old-style of jury consulting, one would often see a jury consultant tell trial counsel to act a particular way, because they say so. The experience and opinion of the jury consultant was what was relied upon, especially in an unregulated industry where there were no barriers to entry. For the most part, I think this was a lot of hooey, sprung from an era where Dr. Phil, yes, that one, was one of the top jury consultants. This era, let's call it the guru era, has long since passed. Now, top jury consultants let the data speak, and work very hard to make sure an appropriate jury pool is represented and opinions are effectively substantiated by facts. That said, the data are not enough. Different abilities to interpret and apply the data set great consultants apart from the rest. See 12 Things Every Mock Juror Ever Has Said webinar.

  4. It's science, not magic. You need a great scientist, not a great TV personality, and great scientists are hard to find! The leader of A2L's jury consulting group has more than 30 years of experience, has overseen more than 400 mock trials, has a Ph.D. from Columbia University and lost count of the number of litigation engagements she's been involved in somewhere after 1,000. See, 6 Secrets of the Jury Consulting Business You Should Know

  5. Local counsel is probably all the advantage you need. It's not to say that local insights aren't valuable. They are. Most of the time, local counsel or a local colleague can provide everything you need to maximize persuasiviness, however, especially when combined with the resources I listed in item 1 above.

  6. Hiring the best matters. Not all jury consultants are created equal. If you were going to build an iconic billion dollar building in your city, you wouldn't hire the best local architect. You'd hire the best architect. Well, we routinely deal in cases with a billion dollars at stake. But even for a case with tens of millions at stake, you wouldn't want to hire anyone but the best expert witnesses, and you wouldn't think local. Why would you do so for someone with arguably more impact on the outcome of the case like a jury consultant? It's the same reason that clients hire lead counsel in addition to local counsel. The best may not be based in the trial venue, but are worth importing into it. See, A2L Voted Best Jury Consultants and Best Trial Graphics Firm by the Readers of LegalTimes.

  7. But, If you really think local is critical for your case or the client is adamant about it, and that's 100% okay with us, here's how we get you the best of both worlds. Every mock trial where a larger group of jurors is broken down into smaller groups for deliberations requires the use of more than one consultant to serve as moderators for the separate panels. We can simply engage a local resource to be a part of the team and work with them to integrate local advice. It's a good compromise approach that gets you the right quarterback and coach plus the right player to match your opposition and local challenge. Fortunately, our reputation attracts such professionals and their collaboration.

Other articles related to jury consulting, local trial consulting resources and litigation consulting on A2L Consulting's website include:

jury consulting trial consulting jury research

Tags: Trial Consultants, Jury Consulting, Litigation Consulting, Trial Consulting, Jury Consultants, Jury Selection, Psychology, Persuasion

Is Litigation Coming for Major Retailers of Herbal Supplements?

Posted by Ken Lopez on Fri, Feb 6, 2015 @ 10:04 AM

 

herbal-supplement-retailers-litigation-fraud-product-liabilityby Ken Lopez
Founder/CEO
A2L Consulting

In case you missed it, the New York Attorney General's Office dropped a bombshell this week. They have accused major retailers including Wal-Mart, Target, Walgreen's and GNC of knowingly selling supplements that contain either none of what is advertised (an incredible 80% of the time) or something else entirely.

The herbal supplement industry is estimated to have close to $100 billion in annual sales. That's about five times the revenue of all AmLaw 200 law firms combined.

Once I saw the New York Times piece reporting on this issue, I wanted to learn more about what this might mean for litigators. Fortunately, I knew exactly who to speak with.

Below is an interview with Dr. David Schwartz, head of scientific support to counsel at Innovative Science Solutions. He describes his role as something of a scientific detective, regularly helping ISS’s clients defend and support pharmaceuticals, industrial chemicals, medical devices, foods, and dietary supplements in the courts, the regulatory arena, and the market place.

In this six-minute interview, Dr. Schwartz shares his outlook for how this issue might unfold in the courts.

Dr. Schwartz and I have had the pleasure of collaborating on litigation issues ranging from tobacco, to fracking to cell phone caused brain cancer. If you've not read his Science & Law blog, I highly recommend it.

Other resources on A2L Consulting's site related to science, complex litigation and helping fact-finders work through difficult issues at trial include:

expert witnesses and complex cases webinar

Tags: Litigation Consulting, Litigation Support, Science, Expert Witness, Press, New York, Dietary Supplements, Fraud

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Authors

KenLopez resized 152

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 lopez@A2LC.com.


ryanflax blog litigation consultant 

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 flax@a2lc.com.


dr laurie kuslansky jury consultant a2l consulting
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 kuslansky@A2LC.com.

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