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The Litigation Consulting Report

Business Development – The A2L Way

Posted by Ken Lopez on Mon, Aug 22, 2016 @ 04:13 PM

a2l_professional_services_business_development.jpgby Ken Lopez
Founder/CEO
A2L Consulting

I have always been deeply involved in and passionate
about business development. It was this passion that made it possible for me to build A2L from the ground up in the early 1990s.

Building a company from nothing is no easy task. I often share with young entrepreneurs one of my great secrets – the ways in which I found my first clients. I wrote down the name of every person I knew who I thought might know someone helpful to the business. Ultimately I ended up with a list of 400 people. They were my first set of prospects.

In that group were college buddies, old bosses, and even my mom's high school boyfriend. I contacted all of them, and from that group, I landed clients at AOL, Dickstein Shapiro, and a variety of other well-known law firms. That was how I got started, and this process of relationship-based business development is essentially how I contribute to A2L's business development efforts today.

As we're in the process of hiring a new member of our business development team, I started reflecting on how we do business development at A2L. I think it is pretty impressive, and most professional services firms could learn something from our process. It's rather complex and involves a mixture of repeat/referral work (the majority of our work), growing new relationships from old relationships, and using a rather sophisticated method of blogging to generate inbound interest in our firm that attracts clients who think the way we do.

Indeed, blogging is one of the most important things that we do as an organization. Most of our new business is generated as a result of our blog.

I love it especially because it is very authentically generated business. We share our experiences, we describe the things that we know and believe, and the world's best trial lawyers find their way to us. We give away a lot of our “secrets” about litigation, knowing full well that many people will read these blog posts and never hire us. We hope and expect that some people will read our blog and will be impressed by what we have to say and what we have learned from more than two decades of experience in trial consulting.

Our business development team is thus truly in the business of helping, not selling. They help connect top-end trial lawyers with expert litigation consultants who improve opening statements, develop compelling narratives, conduct scientifically valid mock trials, and develop litigation graphics that teach and persuade judges and juries.

If you or if you know someone who might like to work in this atmosphere in our DC office, consider sharing this article or one of the links below with them:

Here are some other business development for professional services firms articles and tips that you may find useful:

Tags: Litigation Management, Pricing, Management, Leadership, Business Development, Litigation Public Relations

[Free E-Book] The Value of Litigation Consulting 2nd Edition

Posted by Ken Lopez on Tue, Aug 16, 2016 @ 03:17 PM

value-litigation-consulting-400-tall.jpgby Ken Lopez
Founder/CEO
A2L Consulting

As trials become more and more complex – just think of the intellectual property cases worth billions of dollars that have rooted the attention of Silicon Valley and the world – litigation consulting has become more and more important. There may be fewer jury trials now than there used to be, but many of the cases that go to trial can shake up an industry.

“Litigation consulting” is a broad term that describes a broad variety of services that help lawyers try and win cases. They include jury and bench trial consulting, litigation graphics consulting, on-site courtroom technology support and similar services. In a given case, a trial team may need all the services that A2L provides, or just a subset of those services.

In order to show how far the litigation consulting industry has come in a relatively short time, we are issuing a free --- page book, The Value of Litigation Consulting. The book explains why even the best trial lawyers can benefit from the services of top-notch litigation consultants. It’s a handbook that shows where the industry has been and where it’s heading.

The book is full of useful, hard-hitting articles on these topics, including 11 Things Your Colleagues Pay Litigation Consultants to Do, 6 Secrets of the Jury Consulting Business You Should Know, 12 Reasons Litigation Graphics Are More Complicated Than You Think, How Long Before Trial Should I Begin Preparing My Trial Graphics?, 11 Traits of Great Courtroom Trial Technicians.

You can download the book here - completely free - no strings attached.

value of litigation consulting consultants

Tags: Trial Graphics, Trial Consultants, Litigation Graphics, Trial Presentation, Jury Consulting, Litigation Consulting, Trial Consulting, Demonstrative Evidence, Trial Technology, Litigation Support, Jury Consultants, Trial Preparation

6 Ways to Become a Better Storyteller

Posted by Alex Brown on Tue, Jul 26, 2016 @ 12:28 PM

storytelling-for-courtroom-litigation-lawyersby Alex Brown
Director of Operations
A2L Consulting

As we have mentioned before in this blog, the art of storytelling is a crucial skill for a trial lawyer. From the very beginning of a trial, many jurors will envision the facts of the case in the form of a story. Our brains are wired to tell stories, to listen to stories, and to remember stories. Storytelling began with the caveman and the campfire and is still the best way to present information to an audience.

Think of the difference between these two statements:

  1. I went to the market.
  2. I went to the 7-11 at midnight to buy a Diet Mountain Dew and to play Pokemon Go because I am addicted to that game.

Statement 1 is just a flat statement. It has no specifics and does not draw the reader or listener in. Statement 2, on the other hand, intrigues the reader or listener. Why did you go that late at night? How did you fare in your session of Pokemon Go? What happened when you got home? And so on. It is potentially the beginning of a story.

As a trial lawyer, you will be telling stories. You want your audience to be drawn in and involved. Here are some points to consider in developing a story:

  1. Have a purpose. Who wants to hear a story when you know that the storyteller has no destination or end in sight? You feel trapped. Or worse, you zone out and stop listening to save yourself the pain of the journey. Your audience, a judge or a jury, is human and will react similarly.

  2. Develop a beginning, a middle and an end. A story is meant to guide a listener down a path. In your story, build in some “signposts” so that the listener has an idea of where the story is going. Of course, don’t give everything away too soon.

  3. Use visuals to provide depth and to keep your listeners’ interest. We are a visual species. More than 60 percent of people learn primarily by using their eyes. Use visual elements to invoke images and feelings that you want your listeners to hold onto.

  4. Emphasize a hero. Luke Skywalker, Superman, James Bond. All of them were heroes that an audience could connect with and root for. When building your narrative, paint a picture that makes the audience sympathize with your hero.

  5. Have a villain. Darth Vader, Lex Luthor, Dr. No. Audiences learned to hate these villains and to hope that the hero vanquished them. Flesh out the wrongdoings of the villain to give your hero credibility.

  6. Use a consistent voice. Once you are ready to tell your story, tell it in a way that you are comfortable with. Find a voice that is appropriate to you and to your audience. The only way to do that is to practice.

Other articles on storytelling at trial, developing a great story and being a better storyteller from A2L Consulting include:

A2L Consulting's Storytelling for Litigators 3rd Ed E-book

 

Tags: Storytelling, Opening

10 Criteria that Define Great Trial Teams

Posted by Ken Lopez on Thu, Jul 21, 2016 @ 01:27 PM

top-trial-teams-assessment-tool-win-cases.jpgby Ken Lopez
Founder/CEO
A2L Consulting

Several months ago, I wrote about the 50 Characteristics of Top Trial Teams. Based on those 50 characteristics, we have created a trial team assessment tool. Although we've only just begun to collect the data, my hypothesis is that the quality of trial preparation, which this tool attempts to measure, is highly correlated with success at trial.

In my experience, only a small minority of trial teams rigorously prepare for trial in a way that would earn them a high score on this tool. In most cases, budgets and/or firm culture simply don’t permit the level of preparation that I see in the highest performing trial teams.

In our first effort to quantify what makes a good trial team, our beta version trial team assessment tool offers 10 criteria to measure performance. We selected these 10 points from among the 50 criteria, based on the collective experience of A2L's top litigation graphics consultant, our top jury consultant and on my experience. That's more than 75 years of accumulated litigation experience from work in thousands of cases.

We assign a maximum of 10 points to each criterion, and so far, we have observed trial teams ranging from a low of 33 to a high of 76. Losses tend to occur more often with low scoring teams, but the data are still quite fragmentary.

Here are the 10 criteria that we use to define great trial teams:

  1. Communication: They communicate in an orderly, consistent manner so that everyone knows at all times what is going on. They’re systematic in how they work and communicate with their outside consultants.

  2. Timely Preparation: They’re not frantic. They don't wait until the last minute to prepare fact and expert witnesses. They construct their key trial narratives early.

  3. Rigorous Preparation: They don't dismiss the level of intensive prep needed “just for deposition.” They work through dozens of drafts of their demonstratives. They don't relegate preparation of important witnesses to junior lawyers who lack experience. They require their experts to work with communications and visual design consultants.

  4. Storytelling/Theme Development: They understand the difference between a narrative and a theme. They don’t simply respond to themes introduced by the other side; they build their own affirmative narrative. They develop their thematic story right from the start and incorporate that into discovery.

  5. Organization/Management: The team leaders realize that there are too many aspects of a big-ticket litigation for the first chair to handle all of them alone. The leaders spend their time where they add the most value. They get some sleep. If they aren’t good organizers, they task someone who is a good organizer in order to assure continuity and avoid panic.

  6. Humility: They exhibit a distinct lack of arrogance. They don’t answer challenges by simply stating how long they’ve done this or where they went to school. They don’t answer their own questions, but let other people do that. They conduct post-hearing, post-conference, and post-trial debriefings.

  7. Openness and Curiosity: Great litigation teams want their answers questioned. They tell you their strengths and weaknesses. They don't sugarcoat the possible effectiveness of the other side's narrative and thematic points or fall too quickly in love with their own narrative and themes. Finally, they ask their litigation consultants what can they do better.

  8. Leadership and Teamwork: They don't lose it; they keep their cool. They understand that their success is a team effort and approach it that way. They give credit where credit is due, sincerely (not by patronizing). They pressure-test throughout the course of their pre-trial development and during the course of trial itself by continuously empowering the entire litigation and trial teams to provide their own input.

  9. Technology Comfort and Courtroom Presence: They’re not afraid of technology in the courtroom or elsewhere. They think about details like the color of their outfits and their body language. They constantly work to improve their delivery. They just look comfortable in front of a jury.

  10. Practice: They don’t assume anything and seek to verify everything with facts, including mock testing that shows which themes are winners and which juror types are worst. Effective litigation teams spend as much time preparing their witnesses for robust cross-examinations as they do for direct examinations. Witness preparation includes careful development of an effective visual presentation that is rehearsed but doesn't sound rehearsed.

How would your trial team rate on these criteria? Hopefully, your team is on the 50 or higher scale. I have never seen a team with an under-50 score win a case.

Other A2L Consulting articles related to trial preparation, success at trial and the relationship between in-house and outside litigation counsel include:

in-house counsel litigation toolkit e-book free download

Tags: Litigation Graphics, Jury Consulting, Mock Trial, Demonstrative Evidence, Litigation Management, Trial Preparation, Storytelling, Management, Leadership

7 Reasons a Fresh Pair of Eyes Are Beneficial Before Trial

Posted by Ken Lopez on Wed, Jun 29, 2016 @ 02:53 PM

iStock_38166022_SMALL.jpgby Ken Lopez
Founder/CEO
A2L Consulting

When it comes to making a decision about hiring a litigation consulting firm like A2L to support a trial team, I notice that many factors are intuitively persuasive to the consumer of such services.

With litigation graphics, most trial lawyers understand they benefit from outside help since jurors are mostly visual learners, and visual persuasion experts help bridge the communications gap between the trial lawyer and the typical American.

With jury consulting, most trial teams respond to the notion that an experienced jury consultant has watched thousands of jurors deliberate and can thus offer insights based on that unique experience. Further, it just makes sense to most people that a jury consultant is in the best position, given her training, to create a proper forum for scientifically valid and actionable jury research.

However, more important than these considerations, there is one factor that seems to occur to almost everyone who is evaluating the use of a litigation consultant. It is the idea that a fresh pair of eyes is almost always helpful when preparing for trial.

By a fresh pair of eyes, I'm referring to a litigation consultant who has been engaged to support the trial team sometime in the year before trial. At this point, early theories have often been developed, perhaps a draft narrative is in place, and the evidence has largely been evaluated. However, all too often, scant attention gets paid to the presentation of the case until the final few months before trial.

It is in this period that people seem to recognize the value of the “extra pair of eyes” in giving the trial strategies and tactics their final form. Here are some specific reasons why these new eyes can help. 

  1. Trial lawyers are likely to be too close to their case. After their long hours wrapped up with the case, they have subconsciously developed a theory or theories about the case that will be hard to shake. If these theories can be improved, it will take an outsider to convince the trial lawyer of that. See, Accepting Litigation Consulting is the New Hurdle for Litigators and 5 Surprises in Going from IP Litigator to Litigation Consultant.

  2. Trial lawyers identify with the client. That is a natural and understandable thing to do, since trial lawyers are supposed to zealously represent their client and think the client’s views are correct. However, sometimes the client’s ideas, though they reflect its perspective and industry realities, may be too hard to sell to a jury. Enter the new pair of eyes. See, 7 Reasons Litigation Graphics Consultants are Essential Even When Clients Have In-House Expertise and 5 Ways Litigation Consultants Add Pizzazz to a Tedious Case

  3. It’s hard to imagine “simple” when you are very smart. Trial lawyers are accustomed to being the smartest man or woman in the room. Sometimes, though, they will adopt a theory that lacks the common touch and is hard to explain to the everyday, common-sense thinker in the jury box. The outsider can help with this as well. See,
    21 Reasons a Litigator Is Your Best Litigation Graphics Consultant,  When Smart Ain’t So Smart - Cognitive Bias, Experts and Jurors and 12 Ways to SUCCESSFULLY Combine Oral and Visual Presentations.
  1. Don't Eat Your Own Fundraiser Doughnuts. When a trial team becomes too insular or if the 1st chair litigator becomes dictatorial, a closed feedback loop can develop. In this situation, all ideas are simply confirmed as good ideas by the internal team. Never is a fresh pair of eyes more valuable. See, 7 Bad Habits of Law Firm Litigators.

  2. Simple is hard to get to. Often, the most straightforward way of presenting the facts is the best. A trial lawyer can sometimes become taken with, even obsessed with, a more comprehensive yet more complicated approach to the facts. An outsider can give him or her a new perspective on this. See, Litigator & Litigation Consultant Value Added: A "Simple" Final Product and Planning For Courtroom Persuasion? Use a Two-Track Trial Strategy

  3. Collaboration can be creative. From the clash of ideas, a trial lawyer and a litigation consultant can develop new approaches to a case. They need to treat each other as equals and not be afraid to be wrong, nor be afraid to criticize the other person’s approach. See, How Creative Collaboration Can Help a Litigation Team and 9 Things I’ve Noticed About Effective Litigation Graphics After 20 Years as a Litigator

  4. Trials are rare, but not for litigation consultants. The “extra pair of eyes” will be someone who has been there and seen it all in the courtroom. Many trial lawyers, however skillful, go to trial once a year at most. See, With So Few Trials, Where Do You Find Trial Experience Now? and 9 Things In-House Counsel Say About Outside Litigation Counsel

Other A2L Consulting articles related to the support top-end litigation consultants provide to top-tier trial lawyers include:

litigation consulting graphics jury trial technology

Tags: Trial Graphics, Litigation Graphics, Trial Presentation, Jury Consulting, Mock Trial, Litigation Consulting, Demonstrative Evidence, Juries, Jury Consultants, Trial Preparation, Visual Persuasion, Persuasion

My Dear General . . . Lincoln’s Communication Skills in War

Posted by Alex Brown on Tue, Jun 28, 2016 @ 04:16 PM

lincoln-communication-persuasion.jpgby Alex Brown
Director of Operations
A2L Consulting

My oldest daughter is a volunteer for our local congressman. At dinner last night she heard some quotes from a current presidential candidate and proceeded to excoriate them. Usually I toss in the old adage “If you can’t say something nice, just don’t say anything.” This time I didn’t and instead talked to her about our 16th president.

Many of you might know the story of Lincoln’s Letter to General Meade. On July 4, 1863, Lincoln realized that Confederate General Robert E. Lee was trapped between the Potomac River and a fast-moving Union Army behind him, and sent an order to General George Meade to move in for the kill and end the war. Instead, Meade held a war council and got multiple points of view. While he was doing so, Lee was able to escape over the Potomac with his soldiers. Lincoln was furious. He wrote a letter calling out Meade for his stupidity and lack of fortitude and questioning his ability to command. We will never know Meade’s reaction because Lincoln never sent the message. Instead, he thought about things from Meade’s perspective, and the fact that they had just finished a bloody battle in Gettysburg and how that might have affected Meade’s willingness to engage at a random location with so many variables. Lincoln also realized that dressing down his general would do nothing to help morale and would not change what had already happened.

Lincoln gave us the perfect example of how to be a communicator. This is a lesson that we should reinforce in everything we do. We should be aware of these lessons when we are dealing with witnesses, experts, jury, judge and even support personnel and litigation consultants. You are always being watched, and people will always judge you on how you act with those you meet.

What are the keys to communication?

  1. Listening. We all know what proactive listening is. The key to active listening is not just hearing the words, but also visualizing the concepts of what is being said and seeing the non-verbal cues. Basically, it’s listening with all your senses. Stephen Covey wrote a great little book called The 7 Habits of Highly Effective People (you can read it in one sitting). His breakdown of listening fits in 5 buckets.

    1. Ignoring
    2. Pretending
    3. Selective Hearing
    4. Attentive Listening
    5. Empathic Listening

We all should aim for empathic listening. You need to use your senses when communicating so you know how to respond to keep people engaged. The litigation graphics you use, for example, go a long way to keep people engaged in court.

  1. Remember their name. I walk into my bank and when the teller remembers my name, I automatically feel more comfortable. I am sure everyone has had a similar experience. Communication is a two-way street; you can do everything right but the message will still not be received. Doing anything to reduce negativity increases positives. As Dale Carnegie wrote: “Remember that a person’s name is, to that person, the sweetest and most important sound in any language.”

  2. Make them feel important. I have talked about Robert Cialdini before, because his outline on communication is one of the purest examples of how to influence people. When they feel important and empowered, people will be more engaged. He suggests two things: give honest compliments, and ask for their advice. I am not suggesting empty platitudes but a compliment as simple as acknowledging a good point made.

  3. Focus on similarities. People gravitate toward others whom they perceive as similar to them. Going back to Cialdini’s 6 principles of persuasion, people want to connect with other people; it is how we are wired. Find similarities so others can feel connected and have a higher comfort level with you. They will be more engaged and receptive to your points.

  4. Let them talk. This is less about juries and more about everyone else, but according to a study done at Harvard, bragging affects the same pleasure center of your brain that is stimulated by money and food. So much so, that it can become addictive. Use your active listening skills and have them talk about themselves and their interests. It will engage them and make them open to your influence.

So when communication is key, and things are getting a bit stressful, ask yourself: “What would Lincoln do?”

Other articles about communication, persuasion, leadership, and influencing others from A2L Consulting:

litigation leadership 4th edition

Tags: Litigation Management, Psychology, Management, Leadership, Persuasion

SPICE Is the Key to Persuasion

Posted by Alex Brown on Wed, Jun 22, 2016 @ 02:12 PM

SPICE persuasion of jurors judgeby Alex Brown
Director of Operations
A2L Consulting

My 11-year-old is addicted to cooking shows – so much so that my DVR is full of episodes of Triple D, Chopped, Good Eats, Cutthroat Kitchen, and Chopped Junior. Last night she was talking about how she loves the idea of spices, but is not a fan because she equates it to spicy food, which she does not enjoy. Then she throws her hands up and says, you know what they say, “Variety is the spice of life.”

This morning, that statement has been bouncing around in my head and made me think about a book I read in 2011. It was written by Kevin Dutton, Ph.D., and was called Split-Second Persuasion: The Ancient Art & New Science of Changing Minds. Dutton's message boiled down to just five elements, encompassed in the acronym SPICE. These five elements are the key to persuading people, including jurors.

SIMPLICITY: According to a report published by Microsoft in 2015, the average human attention span has dropped from 12 seconds in 2000, to eight seconds in 2013. By comparison, goldfish have an attention span of nine seconds. So keep demonstratives simple by breaking down the complex in bite-sized packets of information.

self-interest-persuasion.jpgPERCEIVED SELF-INTEREST: I saw this patch (pictured right) and thought it defines self-interest better than anything I could say.

INCONGRUITY: We are most comfortable when we surround ourselves with patterns or routines. When you break that pattern, it unexpectedly draws attention. Use this to make a point or to have someone see something in a different light.

CONFIDENCE: When faced with the word, “confidence,” we automatically think about self-assurance. But, when thinking about how to graphically show confidence, consider the definition of creating trust.

EMPATHY: When developing empathy with a jury, your goal is to put yourself in the shoes of another. Creating an attachment with them allows them to root for your client.

litigation leadership 4th edition

Tags: Science, Psychology, PowerPoint, Persuasion, Cognitive Bias

12 Things About PowerPoint You Probably Never Knew

Posted by Alex Brown on Thu, Jun 9, 2016 @ 11:47 AM


PowerPoint tips tricks lawyers opening statementsby Alex Brown
Director of Operations
A2L Consulting

The definition of power is the capacity or ability to direct or influence the behavior of others or the course of events. Graphic artists of all shapes and sizes, once they fully delve into using the Microsoft PowerPoint tool, usually end up surprised by the power inherent in PowerPoint.

When you hear people say they hate PowerPoint presentations, they usually use excuses like; “It’s too wordy, excessive effects, it puts me to sleep, Group read along, Rorschach effect, frivolous fonts, and BULLET POINTS!”

The truth is they are correct. PowerPoint is not always used to create litigation graphics to the best effect. But that doesn’t mean you should blame the tool. Here are 12 tips and features of PowerPoint that will excite and enlighten even the most creative thinker.

  1. Narrate over slides. This is especially effective when you need to create a technology tutorial or explain otherwise complicated material. We have done this for many a client using professional narrators and always with the desired effect. The audience is engaged and understanding the message as they should.

  2. Pan and zoom. Images can do more than just appear on the screen. You can create movement to keep your audience focused on what you want them to focus on. This is effective when you have a lot of images that you want to share, but in the end, you want them to focus on a specific one. You can use the zoom feature to focus them and then you can add callouts so they understand what they are seeing and what you want them to remember.

  3. Embed a functioning Excel worksheet. Suppose that your damages expert has made some brilliant worksheets. Embed them into your deck. There’s no reason to use paper handouts or to switch from one program to another. You can also manipulate the worksheet so they focus on the numbers that are key.

  4. Pop-up/call out Instead of having a slide appear completely filled with text, have it appear when needed and be replaced as you move down your key points. This is effective because you allow your audience’s eyes to focus on specific things and keep them engaged. Science dictates that they will retain more information this way.

  5. Charts. They can be used effectively to show how things relate to each other, such as a timeline, organizational chart, flow chart, or process diagram. Lawyers often are afraid to use charts because they fear that the audience will get ahead of the message. This is true in many cases, which is why you want them to build up slowly, not just sit on the screen as a static image.

    powerpoint litigation graphics consultants

  6. Pictogram or infographic images. What is expected from a trial team changes almost monthly. Today, infographics are huge, and the icons, images, and feel of infographics are comfortable and accepted. Use today’s marketing messaging to your advantage so your audience receives the message and retains the information.

  7. Highlight text to draw attention. Use a call-out to highlight a quote or a section of a contract. You want the audience to get the feel of what is being highlighted but you also want them to remember a few impact words. We all remember the old videos with the “follow the bouncing ball.” Take advantage of that familiarity and highlight the text at the moment you want them to focus on that impact word. It can be a very powerful way to get a message across to your audience.

  8. Illuminate, glow, or change the color of the text to draw attention. Like highlighting, you can also be subtle and use these options to almost subconsciously get them to remember impact words during deliberation.

  9. Embed videos. Today, your audience expects you to show them something that will wow them. If you don’t, you run the risk of disappointing them or even making them feel as if you were simply not trying hard enough. You want to keep their attention; what better way to grab it then to add video to your deck. You no longer need to bring up a different program or use a machine to play video. On a click, you can show them exactly what you want, highlight things throughout, create pop-ups or call-outs around it. This is very powerful and something we have been doing for years. See, 16 PowerPoint Litigation Graphics You Won't Believe Are PowerPoint.

  10. Animations. Many people fear animations, and they should. The courtroom is not a good place for flashing, spinning, exploding transitions. Animations are incorporated, however, in all of our decks, used sometimes without detection. The best effects are the ones that draw attention to the message, not the transition.

  11. Create custom bullets. Bullet points kill your presentation, period. But we still use lists, just in a way that does not make it LOOK like a bullet list. Create icons instead of black or colored dots. Don’t use them at the beginning, but add check marks at the end. This changes the feel and increases impact.

  12. Use 3D effects. This goes right back to what the audience expects. If you need to use a 3D image, use it. We have done this for impact and retention for years. You do not need to always use a 3D program to do it. We have used movement to backgrounds to simulate depth and perspective. All in PowerPoint. See, 16 PowerPoint Litigation Graphics You Won't Believe Are PowerPoint.

It is not your job to learn different litigation graphics packages to entertain your audience. It is your job to keep your audience engaged by employing these and hundreds of other persuasion tools so they learn and retain the information needed to achieve success when the verdict is handed down.

using litigation graphics courtroom to persuade trial graphics a2l consulting

Other articles and resources related to the use of PowerPoint at trial, litigation graphics and PowerPoint trial graphics generally:

Tags: Trial Graphics, Litigation Graphics, Animation, Presentation Graphics, Advocacy Graphics, PowerPoint, Persuasive Graphics, Visual Persuasion, Infographics

7 Reasons the Consulting Expert is Crucial in Science-Based Litigation

Posted by Tony Klapper on Fri, Jun 3, 2016 @ 11:49 AM

consulting-expert-managing-expert-science-litigation.jpgby Tony B. Klapper, Managing Director, Litigation Consulting & GC, A2L Consulting and David H. Schwartz, Ph.D., Co-Founder, Innovative Science Solutions 

The successful litigator knows that one of the first and most important steps to be taken when confronted with complex science-based litigation is to identify and engage a top-notch testifying expert. The ideal testifier is one who is highly qualified, able to credibly communicate to a jury, and can educate the legal team. These characteristics go for experts involved in patent disputes, product liability litigation, and consumer fraud cases involving allegations that a supplement, drug, or device is not effective.

Testifying experts are indeed critical for the success of a case, but as we have discussed in a previous post, many litigators fail to recognize that it is equally important to engage an experienced and litigation-savvy consulting expert. To understand why, consider the following seven points.

1. Availability

If you have recruited the ideal testifying expert, his or her time may be limited by the day-to-day obligations as an opinion leader in their field. I am sure that most of the litigators reading this post have experienced the challenges of working with a testifier who teaches, is conducting scholarly research, or has just simply overcommitted to too many legal clients. When this happens, getting the expert’s attention may prove just as difficult as understanding the science upon which the expert relies. And because understanding the science enough to cross-examine the other side’s expert is a critical component of effective advocacy, having a consulting expert available to take the time to educate you and help you prepare your case can be indispensable.

2. Context

Consulting experts tend to understand the litigation landscape better than an academic testifying expert. With the exception of the oft-used professional testifier, most testifying experts are not particularly litigation savvy and may not be familiar with the manner by which scientific evidence in their field may be twisted and turned by more experienced testifiers. A consulting expert who has studied not only the literature, but the positions espoused by the adversary’s experts—as articulated in expert reports, depositions and trials—can help litigators more effectively prepare their testifiers’ reports and direct examinations, as well as prepare for cross.

3. Cost-Containment

Third, consulting experts provide the litigator with a means of evaluating an adversary’s case, as well as his or her own, and understanding where the strengths and weaknesses lie. As we all know, we live in an age when early case assessments have become critically important to the business client. Those clients increasingly demand that their outside counsel find ways to resolve resolvable disputes well before hundreds of thousands (if not millions) of dollars are spent in motions practice, discovery and expert retention. Having a consulting expert help assess your case before retaining your testifier often proves to be one of the most cost-effective ways to satisfy the client’s cost-saving demands.

expert witness teach science complex subject courtroom webinar 4. Discoverability Concerns

Notwithstanding changes to Fed. R. Civ. P. 26(b)(4)(B)-(C), discoverability concerns remain with testifying experts (particularly in state courts) that are not as relevant with consulting experts. Know your jurisdiction. In addition to all the reasons mentioned above and below for retaining a consulting expert, if you litigate in a state court that does not provide full work product protection to communications with testifying experts, beware. The consulting expert might be your only safe harbor for open and candid discussion about the scientific evidence.

5. Find the Best Testifiers

Fifth, the right consulting expert can help you find and recruit the ideal testifying experts, especially when the issues are extremely complex and esoteric. This is particularly true when the litigator has not had the time to fully immerse him or herself into the science. Until that happens, finding the right testifier can be a complete crapshoot. Who are the real thought-leaders in the field? Among them, are there any candidates who have espoused views antithetical to my client’s? They may say they haven’t, but how do you know without fully understanding the literature and that expert’s writings? Can the candidate’s methodology expose him or her to a blistering Daubert attack? These and other questions are critical in the search process. But who has the time and the skills to make these judgment calls? A good consultant can help in the vetting and selection process in ways that busy litigators often cannot.

6. Help To Ensure Victory

Sixth, in the age of increasing Daubert (and other expert) challenges, having a consultant available to help assess the adversary experts’ methodologies and brainstorm areas of attack can be the difference between winning and losing a case. Yes, lawyers can be very skilled at identifying the logical flaws, errors of omission, and unfounded inferences that plague many an expert’s analysis. But having a consulting expert dig into the literature and/or serve as a sounding board for lawyer-based “scientific” musings helps ensure that potential arguments are carefully vetted and those selected are truly effective.

7. Some Examples

Where can these consultants and consulting services be most helpful? Consider their use in patent disputes, personal injury litigation, and consumer fraud matters.

For example, pharmaceutical and medical device patent disputes revolve around demonstrating issues of patent validity and infringement. If you represent an innovator, you will be focused on demonstrating that the patent is valid under intense scrutiny and that your adversary is infringing on the teaching present in your patent. If you are defending a generic manufacturer, your goals will most likely be reversed. Consulting experts can help you perform these tasks and identify the right testifying experts to make these assertions. These non-testifying experts can scrutinize the laboratory notebooks and meeting minutes to spot documents that both support and potentially refute your case. For these types of cases, you will be looking for consulting experts with credentials in medicinal chemistry, drug metabolism, as well as basic cell and molecular biology.

In personal injury product liability cases involving healthcare products—such as pharmaceutical and medical devices, dietary supplements, agra-chemicals, and foods—consulting experts are perfectly positioned to work closely with counsel. The knowledgeable consulting experts can be instrumental resource in matters that involve a complex regulatory landscape and equally complex science-based issues. Consulting experts can help clients develop strategies and approaches that are central to the defense, and they can help identify the difficult-to-find regulatory testifying experts.

Finally, as many of our readers know all too well, consumer fraud cases are becoming extremely common, especially for products such as dietary supplements, cosmetics, and other consumer healthcare products. These cases generally involve allegations that no competent and reliable scientific evidence supports the advertised benefits of the products at issue. Like personal injury litigation, consulting experts are critical to an in-depth understanding of the science relevant to the case. Because there is a specific regulatory standard at issue in these cases, it is sometimes less important to have experts who are experts in the medical area at issue and more important to have consultants who understand regulatory standards and the types of studies that would be considered competent and reliable scientific evidence. Consulting experts in these cases will be able to evaluate and assess the substantiation reports that the defendant may have generated and they will help you perform an up-to-date, comprehensive review of the scientific literature relevant to a substantiation of the advertising claims at issue.

Other articles from A2L Consulting related to science-focused litigation:

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Tags: Litigation Management, Science, Environmental Litigation, Expert Witness, Witness Preparation, Toxic Tort, Damages, Product Liability

[New and Free E-Book] 50 Helpful Articles for Litigation Leaders

Posted by Ken Lopez on Thu, May 26, 2016 @ 02:02 PM

A2L Litigation Leadership Free E-Book Downloadby Ken Lopez
Founder/CEO
A2L Consulting

Anyone who puts together a team to represent a client in a high-stakes piece of litigation is engaging in an act of leadership. To be successful, such a litigation team needs to blend the skills of an outside set of trial lawyers from a law firm, large or small; in-house corporate counsel; the leadership of the client company, which will want to keep close tabs on high-stakes litigation; a wide variety of paralegals, assistants and other key nonlawyer personnel; and, in all probability, a trial consulting company such as A2L.

Today we are releasing the fourth edition of a new and free eBook on leadership for lawyers that can be downloaded here. I hope that it will be useful to legal industry leaders, whether running a trial team, a practice group, or an entire law firm.

Law firms and corporations both struggle to provide better leadership within their organizations. Comparatively, however, law firms are at a disadvantage because they don’t have a long and strong tradition of training their leaders. In law firms, leadership development is mostly trial and error. Most business schools don’t teach students how to run a law firm, whereas the science and art of being a corporate CEO have been studied endlessly.

For years, it seemed that law firms were lagging behind in business fundamentals. More often than not, their structure was loosely defined. Management was more of a suggestion than a dictate. And accountability was a new term for many. Conceptions of “power” within a firm, based on rainmaking or litigation successes, seemed to play the dominant role in who takes the lead in management responsibilities.

But now law firms are becoming more management-oriented as the economic landscape has changed.

Our leadership eBook is largely focused on litigation, as this is the focus of our own firm. The eBook includes interesting and timely articles such as “The CEO in Litigation: Problems, Solutions and Witness Preparation”; “When a Good Trial Team Goes Bad: The Psychology of Team Anxiety”; “In-House Counsel’s Hiring Methods for Litigation Counsel Are Surprising”; “How Valuable Is Your Time vs. Litigation Support’s Time?”; and “Nine Things That Outside Litigation Counsel Say About In-House Counsel.”

We, as a litigation consulting firm, struggle with issues quite similar to those of a law firm. Most of our leadership team, me included, are player-coaches. That is, none of us are full-time leaders. Instead, we must, like many in a law firm, balance our leadership responsibilities with the time we spend delivering for our clients. We hope that this eBook permits you to achieve a similar balance.

I hope this book is helpful to you. I would enjoy hearing from you and encourage you to leave a comment below (contact information is not published).

litigation leadership 4th edition

Tags: Litigation Consulting, Litigation Technology, E-Book, Litigation Management, Litigation Support, Psychology, Management, Leadership

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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.


tony-klapper-headshot-500x500.jpg 

Tony Klapper joined A2L Consulting after accumulating 20 years of litigation experience while a partner at both Reed Smith and Kirkland & Ellis. Today, he is the Managing Director of Litigation Consulting and General Counsel for A2L Consulting. Tony has significant litigation experience in products liability, toxic tort, employment, financial services, government contract, insurance, and other commercial disputes.  In those matters, he has almost always been the point person for demonstrative evidence and narrative development on his trial teams. Tony can be reached at klapper@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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