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No matter where you stand on the border wall dispute that has captivated the nation, you have to admit that it is an important debate. After all, $5 billion is a lot of money and who knows if the wall will really make a difference. But allowing between 200,000 and 2,000,000 people to easily enter the United States every year via the border with Mexico is probably not a good thing either. You probably just automatically identified yourself with one of those two previous sentences and took it as your position, right? The other sentence may have even made you angry or at least started you thinking about counter-arguments. In other words, like most political discussions, minds are rarely changed by more facts. It's kind of like a jury trial, right? You hear one side. You attach to it emotionally and then proceed to ignore evidence that is contrary to your new belief. In jury consulting-speak, this phenomenon is called confirmation bias. As a jury consulting firm, we've written about confirmation bias many times. See, for example: I’m Right, Right? 5 Ways to Manage Juror Bias Jurors Will Believe Anything (That They Already Believe) When Smart Ain’t So Smart - Cognitive Bias, Experts and Jurors Font Matters - A Trial Graphics Consultant's Trick to Overcome Bias Could Surprise Be One of Your Best Visual Persuasion Tools? 7 Ways to Overcome Cognitive Bias and Persuade However, A2L is not just a jury consulting firm. We’re also a top-ranked litigation graphics firm (and litigation consulting and trial technology consulting firm). So I'm always baffled by big disputes where the participants fail to use pictures effectively. In this day and age, there is no excuse. The science of visual persuasion is well established. See, What is Visual Persuasion and What Do You Need to Know About It?

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The Top 10 Litigation Articles of 2018

It's my eighth year writing an end-of-year top-10 style article. That feels pretty great because in that time, we have published more than 600 articles and A2L's Litigation Consulting Report blog has been visited one million times. Wow, right?

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A couple of years ago, I was involved in running a genetics conference focused on using genetics as a defense tactic in civil cases, much in the way that DNA evidence is used in criminal cases. I've been working with experts in this field ever since. A few months back, I wrote an article about the clever use by plaintiffs of litigation graphics and genetics in the baby powder (talc) cases (see Some Lessons for Defendants From the Talc Liability Trials), including a $4 billion verdict against a major talc manufacturer. When I write about various types of cases, I often hear from lawyers who handle the types of cases I write about. On my post on the use of genetics evidence in the talc litigation, how many talc defense lawyers do you think I heard from? If you guessed zero, you'd be exactly right. And that's a problem. Not ready to accept that this is a problem for defendants? Then I will ask whether the plaintiffs’ talc bar was similarly unresponsive. As you can probably guess from the way I posed the question, the answer is no. Out of discretion, I won't say exactly who or how many responded, but it was more than zero. Even though there is more to gain for the defense bar from understanding and leveraging these critical tools, it’s the plaintiffs’ lawyers who are most active in the field, striving to improve their approach. From the defense bar — crickets. And that's the problem I'm seeing in the way some of these talc cases are being defended. Defense counsel appear to be playing defense – and completely ignoring the key point that the best defense in litigation is a good offense. These verdicts are having an impact on the companies involved. Last Friday, on December 14, 2018, shares of Johnson & Johnson fell 10 percent and were set to have their largest percentage drop in more than 16 years, after Reuters reported that the company knew for decades that there was some asbestos in its baby powder. Yesterday, December 18, 2018, Johnson and Johnson ran the full page ad seen here in an attempt to manage this growing crisis. For trial lawyers and litigation consulting firms like ours, these asbestos allegations are not new or surprising. It's what plaintiff's have alleged recently and have used to prevail in these cases. The surprising thing in these cases is defense counsel's unnecessarily passive approach. When products are accused of causing harm, defense lawyers often choose one of the following defense strategies: Assert the harm was caused by something else but we don’t know what (the “idiopathic” defense) Assert the harm was caused by something else and we know exactly what. Typically, most defendants have chosen the ‘we don’t know what other thing caused it’ strategy because it avoids giving up the favorable allocation of the burden of proof and assuming the very specific (and often difficult) burden of proving an alternative cause – much as criminal defendants take advantage of the “beyond a reasonable doubt” standard. Not surprisingly, this argument generally falls flat. Recently, the plaintiffs’ bar won a multi-billion-dollar verdict by asserting that there is asbestos in talc and that it causes mesothelioma. This is highly improbable for several logical reasons — but jurors tend to follow emotion first and logic second when deliberating. If asbestos is present in baby powder at all, it would be in such small amounts that one could not reasonably connect mesothelioma to it. If defense counsel asserts (as they have been) that the mesothelioma was caused by some other identified source of asbestos, and not by talc, that leaves jurors without the necessary tools to argue for a defense verdict during deliberations. So, what if defense counsel could instead prove that the plaintiff’s mesothelioma was caused by something other than asbestos in baby powder? Something identifiable, measurable, and specific. Using modern genetics, this is now possible. And it is a major sea change.

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In a recent post here, I confessed my guilty pleasure: watching NBC’s hit reality singing competition, ‘The Voice.’ But I also acknowledged my frustration over the format: too much inconsequential fluff that’s got nothing to do with singing. For one thing, there’s the vapid bantering between the coaches and the inevitable and insincere implication that every pairing of performers compels a decision as agonizing as Sophie’s Choice. And then there’s the over-dramatization of many contestants’ personal stories that can feel a bit cringy when the judges purport to empathize with issues around, among other things, body image, bullying, sexual orientation, and loss. (In fact, watch for a future blog post about the importance of authenticity). These personal subplots help explain why, as I previously pointed out, the most exceptional voice rarely wins ‘The Voice.’ And in all of this is a lesson about jury trials. Who wins ‘The Voice’ depends on who decides who wins ‘The Voice.’ Succeeding in the early rounds depends upon winning over elites – judges who are experts in vocal performance. One would expect qualities like timbre, tone, pitch, range, resonance, phrasing, articulation, dynamics, as well as good taste, among others, to feature prominently in an assessment of the best voice by the music judges. By contrast, audience members are far less likely to be capable of similar discernment. While the public can authoritatively say what it likes, it is not sufficiently trained or experienced to identify the superlative voice the program promises. Yet, to win on ‘The Voice,’ a contestant must ultimately win over the less discerning voting public and not the elite judges. What it takes to succeed with subject matter experts is quite different from what it takes to win over an essentially unsophisticated TV audience. In fact, their very unsuitability for discerning technical vocal quality with sufficient granularity to distinguish among a field of talented singers may explain why audience members likely consider a broader (and more accessible) range of criteria, such as the performers’ feel-good back stories. Perhaps, in that sense, ‘The Voice’ imitates life, where it is as important to be lucky, and liked, as it is to be superlative. Just as a contestant on ‘The Voice’ must manage the transition from being judged by experts (musical superstars) to being judged by lay people (the viewing public), so too must the trial lawyer. Most of us have spent an overwhelmingly disproportionate share of our professional time and energy persuading the minds of other well-trained, elite legal professionals – in-house lawyers, opposing counsel, and, at the top of that heap, judges. We know precisely how to talk to them because we speak the same language.

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Part 1 of a multi-part series. I have a shameful secret: I watch NBC’s ‘The Voice.’ In fact, to come entirely clean, I guess I should say, “I faithfully watch ‘The Voice.’” The revelation of this guilty pleasure would come as a surprise to people who know me because of both my specific contempt for “reality TV” and my more general disdain of formulaic dreck. Ironically, ‘The Voice’ is both – in spades. Apart from the musical performances, there is a surfeit of contrived drama: the competition and bantering between the judges, and the often cloying back stories of the performers. Ugh. But there is no curious conundrum to resolve here: I like ‘The Voice’ despite the fact that it is unabashedly formulaic reality TV (a sin that technology helps me minimize). For those of you who don’t know it, ‘The Voice’ is a singing competition. And I happen to be captivated by musical talent. I get completely floored by a 14-year old girl with the vocal timbre of Billie Holiday or Amy Winehouse and am left slack-jawed by the burly former linebacker with the range and falsetto of Philip Bailey. But it’s not just the surprise of those incongruities. For me, it is almost exclusively about the quality of the performers’ pipes and, occasionally, the musical instincts and insights of the “superstar” musicians who first judge, then coach, the contestants. Now, I suspect that my television viewing habits hold your interest just about as much as my love of pudding, but there is a substantive point behind this confessional. Useful lessons about trial presentation and persuasion can be learned from ‘The Voice,’ which first aired in 2011.  First, some background. ‘The Voice’ is a complex, intensely dramatic version of the old-fashioned talent show. At the end of each season, one singer, drawn from the ranks of thousands of Americans who believe they have musical talent and have entered the competition, is crowned the winner and signed to a recording contract.

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There are so many legal industry "best of" surveys that I have a hard time keeping track of them. Just about every month in one of them A2L is voted the top firm in either jury consulting, litigation graphics consulting, litigation consulting, or for our trial tech/hot seat services.    I am grateful for our clients and blog readers who take the time to help and vote for us. It is a very big deal for me to see the company I helped build these past 24 years be recognized. While I know our people are the best at what they do, it is still it's nice to hear other people say it too.   In a sea of surveys, one rises above the rest — The annual Best of the National Law Journal.   A2L has been named #1 in this NLJ survey before. Today, I'm asking a favor of our readers.   Would you help us be voted #1 in the nation again? It takes 2 minutes to help us be (publicly) recognized as the nation's top litigation consulting firm.     We are nominated in four categories. Here's how you vote: Go to https://www.surveymonkey.com/r/BestofNLJ2019 before November 1, 2018 Answer at least questions 11, 55, 58 & 59 Click through the next buttons until you click DONE.                        

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When Preferred Vendor Programs Go Bad

It has become quite common for major corporations to institute preferred vendor programs for their legal representation, under which a limited number of law firms pre-qualify to do legal work for the corporations and the corporations turn exclusively to these law firms. As an article on the American Bar Association’s website noted in 2014: Companies create preferred counsel lists not only to cut costs but also to build relationships with subject-matter experts relevant to their industries in their most important geographical areas. By consolidating work across fewer firms, companies deepen their counsel’s familiarity with their issues and get more consistency in their representation. Corporations are also using preferred vendor programs to select other types of outside professionals – including, significantly for our purposes, litigation consultants, jury consultants, litigation graphics consultants, and trial technicians. A few years ago, in fact, we published an article here suggesting no fewer than 17 best practices that should apply to the implementation of a preferred vendor program for trial consultants. The third of these suggested best practices perhaps should have been listed as the first, since the way I see things in our industry, it is the most relevant to what is going on today. It was: Remember, litigation is generally a one-time thing: You never want to be so focused on price that you overlook this. For trial support, you generally only get one bite at the apple, and vendors, especially new ones, can be a risk. So, as you consider procurement, be mindful of quality. Trust me, all firms are not created equal in this industry.

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We have written many times about what separates good trial teams from world-class trial teams. One article collectively written by many people inside and outside of A2L stands out to me as seminal. It can be found here: 10 Criteria that Define Great Trial Teams If I could have all trial lawyers read only one of our articles, it would be this one. It is one of more than 600 on our site, but it succinctly reflects our leadership's best thinking, and it best summarizes what most of the other 599+ articles say. This simple list of 10 criteria, especially when used as a trial team self-assessment tool, is a thing of magic. In arriving at this deceptively simple list, we captured hundreds of years of trial experience. At first, we identified 50 trial team traits that set the great ones apart from the ordinary (you can see these in this article). When we reduced these 50 traits to 10 key criteria, I think we revealed the secret ingredients of a successful trial team. And in the two years since that was published, I have not seen any reason to revise the criteria. In fact, I’ve seen this list turned assessment tool perform consistently: Trial teams with low scores lose cases; trial teams with high scores win cases. Nowhere on this list do we explicitly use the term groupthink, but our thoughts on the subject are certainly implied through our selection of these 10 traits. First, what is groupthink? Wikipedia says: “Groupthink is a psychological phenomenon that occurs within a group of people in which the desire for harmony or conformity in the group results in an irrational or dysfunctional decision-making outcome. Group members try to minimize conflict and reach a consensus decision without critical evaluation of alternative viewpoints by actively suppressing dissenting viewpoints, and by isolating themselves from outside influences.” During trial preparation, members of a trial team can easily put not wanting to be wrong or different ahead of challenging a group decision. We have written about trial teams becoming dysfunctional under severe stress several times before in articles like: 5 Signs of a Dysfunctional Trial Team (and What to Do About It) When a Good Trial Team Goes Bad: The Psychology of Team Anxiety Groupthink is a little different than the nearly complete group breakdowns described in these articles, however. It's a little more subtle and not quite as nightmarish. Still, groupthink can derail a case -- and it often does. Although groupthink can raise its head at any time, we often see it emerge when a trial team is evaluating an opening PowerPoint deck under development, particularly if there are more than five people doing the evaluating. Members of the team will avoid challenging everything, including the specific slides, the order the story is told in, and what not to say during opening. Instead, they will give the appearance of agreement by staying silent. This is groupthink and it does not help win cases. It does the opposite. Here are nine ideas for solving these problems in a trial team. Get the “buts” out of the room: This is an expression we use at A2L. When you are doing creative work, nothing shuts down the creative mind more than someone who jumps in to say why something won't work. These statements usually start with the word “but.” See, Dealing With That ‘Bad Apple’ on Your Trial Team. Establish rules for your trial team meetings: Here are two we often use: silence is acceptance, and no spectators allowed. Ask your litigation graphics team for variations to stimulate thinking. Looking at one litigation graphic may generate some discussion, but looking at two variations guarantees it. Ask for this from your provider. See, 10 Reasons The Litigation Graphics You DO NOT Use Are Important.

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