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The Litigation Consulting Report

12 Reasons Using Trial Consultants (Like Us) Is Possibly Not Fair

Posted by Ken Lopez on Thu, Feb 16, 2017 @ 11:03 AM

unfair-advantage-trial-consultants-jury-graphics-technology.jpgby Ken Lopez
Founder/CEO
A2L Consulting

When I speak to an audience about the work A2L does (other than trial lawyers from large law firms), I sometimes hear the question, “Is the kind of work A2L does fair?” That is, is it fair to have trial consultants support a trial team and use the latest in persuasion science to advocate only one side of a case? In a group setting, my lawyerly answer is usually something like, “What does ‘fair’ mean to you?” Then we litigate the nuances of fairness.

What I really think, however, is that the work we do definitely tips the scales of justice in our client’s favor. Is that fair? Probably. After all, ferociously advocating one’s position using all available tools is one of the hallmarks of our justice system. But what if, as is typical, one side has a larger litigation budget than the other. Is it fair to have a firm like ours on one side and not the other?

I've heard others reply to this question by comparing the vast differences in trial lawyer quality and arguing that the system is designed to smooth these talent gaps out. I don't have a specific answer right now, so I I'll simply say that I think it's a fair question. Trial consultants do influence outcomes of cases, sometimes to an enormous degree.

Indeed, a branding firm, after surveying our customers and staff, once recommended that we use “Unfair Advantage” as our firm motto. I never really fell in love with the motto, and we didn’t end up really using it, but I understand the sentiment completely.

In more than 20 years and thousands of cases, I’ve never seen one that was not improved by the input of a trial consultant. I've seen losing cases turned to winners and damages swing in the billions of dollars. Consider 12 advantages that trial consultants offer – ones that your opposition might say are just not fair.

  1. A Fresh Pair of Eyes: Trial lawyers who like to get their answers questioned outperform those who are not open to much input. Trial consultants offer a safe place to bounce theories, narratives, demonstratives, voir dire strategies, trial presentation strategies and more off smart people who are on your side. See 7 Reasons a Fresh Pair of Eyes Are Beneficial Before Trial.
  1. An Experienced Pair of Eyes: If you've been in the litigation industry for decades like me, you've watched as trial lawyers who used to go to trial every year now go to trial only every three, five or even eight years. Meanwhile, trial consultants have moved in the opposite direction and often see dozens of trials per year. So high-performing clients and high-performing trial lawyers very sensibly rely on trial consultants to enhance the trial experience of the team. See With So Few Trials, Where Do You Find Trial Experience Now?
  1. Practice: One of my former colleagues turned judge was so right about this: “They call it the practice of law but nobody is practicing.” Trial consultants help trial teams practice effectively. This is critical because so few trial teams are really practicing. Those who don't practice in front of peers underperform others. Those who do, outperform most trial lawyers. It's so obviously correlated with good outcomes, I believe that the quality of practice is a reasonable proxy for the outcome of a case. See 3 Ways to Force Yourself to Practice Your Trial Presentation.
  1. Even Michael Jordan Had a Coach: Name an athlete or anyone at the top of their game and you'll likely find a coach who helped them improve. That's what high-quality trial consultants do. They help bring out the very best in a trial lawyer. See Accepting Litigation Consulting is the New Hurdle for Litigators.
  1. Getting the Right Jury: Most jury research we engage in has a voir dire component. Conducting a mock trial with a voir dire component massively influences how juries are picked, and the makeup of a jury massively influences the outcome of a case. We've even released an entire book on this topic. See New and Free E-Book: The Voir Dire Handbook.
  1. Persuasion Science with Visuals: Understanding how visuals persuade people is a surprisingly new science, and many new discoveries are being made. Trial consultants bring a level of understanding regarding visuals that is not present in a law firm. There are visual persuasion tactics that knowledgeable trial consultants can use to influence juries. See Could Surprise Be One of Your Best Visual Persuasion Tools? and 6 Studies That Support Litigation Graphics in Courtroom Presentations.
  1. Persuasion Science with Rhetoric: Similarly, there are rhetorical techniques such as the use of repetition and surprise that are now known to persuade juries. Just the way you start your opening will influence what a jury thinks. It's not malpractice to not know these things, but it is certainly not a good practice. See A Surprising New Reason to Repeat Yourself at Trial.
  1. Persuasion Science with Storytelling: We so often write about how storytelling can be used to persuade. We even recently interviewed some top trial lawyers and asked them how they use storytelling. Rely on a talented trial consultant and they will make you a better storyteller. See Three Top Trial Lawyers Tell Us Why Storytelling Is So Important.
  1. Trial Consultants Save You Time: You can delegate certain persuasion-related tasks to a trial consultant that allow you to focus on other elements of the case. This gives you a real advantage over opposing counsel who cannot do thisSee Trial Consultants: Unfair Advantage?
  1. No Lost Opportunity Costs: My mentor likes to advise me in my CEO capacity by saying, “Only do what only you can do.” This advice works well for a trial team too. If you're editing PowerPoint slides, you're disobeying this good advice. See How Valuable is Your Time vs. Litigation Support's Time?
  1. More Poise = More Persuasion: The way you carry yourself influences your persuasiveness. Watch this video from Amy Cuddy and read my article about her new book. Trial consultants help give you real confidence by supporting you as a trial lawyer and they can also advise how to do this in those situations where you just need to fake it. See A Harvard Psychologist Writes About Presenting to Win.
  1. Using Trial Technology Well: Many lawyers think they can use technology effectively, but not many really have this skill. A good trial consultant will understand courtroom technology and will help you get a leg up on the other side. See 12 Ways to Avoid a Trial Technology Superbowl-style Courtroom Blackout.

litigation consulting graphics jury trial technology

Tags: Trial Graphics, Trial Consultants, Litigation Graphics, Litigation Consulting, Trial Consulting, Demonstrative Evidence, Trial Technology, Psychology, Storytelling, Practice, Body Language

Using Litigation Graphics in Bench Trials: How Different Is It From Jury Trials?

Posted by Tony Klapper on Thu, Feb 9, 2017 @ 10:25 AM

judge-litigation-graphics-bench-trial.jpgby Tony Klapper
Managing Director, Litigation Consulting
A2L Consulting

We’ve spoken here more than once about the fact that jurors, unlike most attorneys, tend to be visual learners who like to be shown, not told. The best way to show them what they need to know, as we have said, is through litigation graphics. Science has also taught us that the best way to keep a jury’s attention is by telling a story in the courtroom. These insights obviously have major implications for how trial lawyers should use the arts of persuasion in a jury trial.

What about a bench trial or an arbitration? Here, the decisionmaker is trained as an attorney. Do we toss out all that we know about jury trials and proceed in an entirely different manner?

Not at all. First, narratives are just as important in a trial before a judge as they are in a jury trial. Judges are human beings, and like all human beings, they have minds that search constantly for an organizing principle, a way to tame the vast river of information that flows to them in a trial. A narrative is the best way for them to do that. Even a brilliant judge who happens to be an aural learner, not a visual learner, needs some way to organize data. That’s where your narrative comes in. (“First this happened, then this happened, then something else happened.”) Not only does story-telling make the trial lawyer’s job’s easier by making his or her case easy to understand; it also makes the case easier to remember.

After all, judges are not computers. They come to any case with their human values, perspectives and predispositions. A narrative will help them connect the case with these values and will help them build a story in their mind, based on those values and on the information they receive at the trial.

The same is true with litigation graphics. Even someone who learns predominantly through aural or kinesthetic means can still find a chart or a timeline interesting and helpful as a way of organizing information. For example, in Markman hearings, which occur exclusively before judges, patent lawyers almost invariably present diagrams of the patent figure or blow-ups of the patent language. In hearings like these and in bench trials, a trial lawyer may sometimes need fewer litigation graphics, but that doesn’t mean that the lawyer shouldn’t use any at all.

Just as top trial firms often use mock juries to test their case on before the actual trial, they can use “mock judges” in the case of a bench trial. If their budget permits, they could find a retired judge, possibly someone who knows the judge in the case, and present their evidence before him or her.

They can ask the judge what types of evidence and themes were most convincing, and which demonstratives did or did not work. It’s another good practice in presenting a case to a judge who is the decisionmaker.

Other articles about litigation graphics in bench trials, mock bench trials, and mock testing from A2L Consulting:

persuasive storytelling for litigators trial webinar free

Tags: Markman Hearings, Trial Graphics, Litigation Graphics, Trial Presentation, Courtroom Presentations, Mock Trial, Demonstrative Evidence, Storytelling, Judges

NITA Experts Agree: Jurors Want Lawyers to Show, Not Tell

Posted by Tony Klapper on Thu, Feb 2, 2017 @ 04:43 PM

bored-jury-show-dont-tell-litigation-graphics.jpgby Tony Klapper
Managing Director, Litigation Consulting
A2L Consulting

We have written many times about the fact that scientific studies have shown that nonlawyers (who are the vast majority of jurors) tend to be visual learners, and tend not to be auditory learners or kinesthetic learners –people who learn by experiencing. Lawyers (who are the ones who present facts and tell stories to jurors) tend not to be visual learners and are often drawn from the ranks of auditory or kinesthetic learners.

Of course, this can present an intrinsic problem that we have discussed before. If most lawyers like to tell but not show, and our audience, the jury, prefers to be shown something and not to be told, we may completely fail to connect with our audience.

It’s not just psychologists and other students of human behavior who say so; it’s also people who devote full time to understanding trial advocacy. The National Institute of Trial Advocacy (NITA) is a fantastic organization that represents the “gold standard” of trial advocacy. In addition to putting on outstanding CLE programs for newbie and experienced litigators, NITA also publishes many great books from scholars who have thought long and hard about advocacy.

In a famous NITA publication, Modern Trial Advocacy, author Steven Lubet connects the obvious aspects of our daily lives with what we should be doing in the courtroom. He writes: “We are used to receiving our visual information from a screen . . . Why would any trial lawyer not want to provide jurors with the same graphic quality and medium that they experience in most other aspects of their lives?” Flip charts are fine, but carefully crafted litigation graphics might be better.

Another example comes from an ABA-published book recommended by NITA speakers and written by Steven Easton called, How to Win Jury Trials: Building Credibility with Judges and Jurors. Easton says something that may be obvious but still needs to be stated clearly. He writes, “We live in a picture-based society that is dominated not by words, but by television sets, video cameras, movie screens, computers and photo albums.” His implicit message? Don’t just tell, SHOW! It’s even more true now that so many people get their news from Facebook and turn to Instagram every day for photos. 

Finally, there is this NITA-recommended example from a well-regarded trial advocacy scholar, Thomas Mauet, and his classic book, Trial Techniques: “Studies show that learning and retention are significantly better if information is communicated visually.” No question about it.

So we need go no further than NITA publications or those recommended by NITA, which for 40 years have helped countless lawyers understand how to try a case simply by doing it in simulated fashion. NITA and its writers and thinkers, top trial lawyers all, agree that showing rather than telling is the way to go.

Other A2L Consulting free articles and free learning resources about litigation graphics, jury psychology, trial advocacy, storytelling and demonstrative evidence include:

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Tags: Trial Graphics, Litigation Graphics, Jury Consulting, Demonstrative Evidence, Juries, Psychology, Storytelling, Persuasion

How to Get Great Results From a Good Lawyer

Posted by Ken Lopez on Tue, Jan 31, 2017 @ 12:35 PM

litigation-consultants-great-lawyer-good-lawyer.jpgby Ken Lopez
Founder/CEO
A2L Consulting

Not all lawyers are created equal. It's amazing how hard it is for those outside the legal industry to understand this.

Many people regrettably believe that those human aptitudes that require creativity and skill are binary. Either you can design a house or you can't. Either you can knit or you can't. Either you have a singing voice or you don’t. And in that same vein, either you're a lawyer or you're not.

This is the wrong way to look at it. In all these areas, there are variations and gradations of skills. This is never more true than for trial lawyers. The distance that separates the satisfactory from the great is vast. I have met very few people who are great trial lawyers.

The challenge with great trial lawyers is that they know they're great, and they charge accordingly. So what should a client or company do when they want to get great results at trial, but they only have the budget to pay a lawyer who is good but not great?

It is possible to do that – but it requires a new type of thinking and a new way of looking at the legal industry.

I've written before about the characteristics of great lawyers, the characteristics of great trial teams, and the challenge resulting from the fact that very few trial lawyers have much trial experience these days. There's just no substitute for experience. No one is that smart, that well-educated, or that well-mentored.

This solution is going to sound self-serving, but the longer I work in the litigation field, the more deeply I believe it. It goes like this: In the modern era, clients and lawyers simply must learn to rely on expert litigation consultants. They are the performance-enhancing drugs that make good trial lawyers great and great trial lawyers unbeatable. 

To be clear, these litigation consultants are not trial techs or 20-something graphic artists. Those professionals are important too, but that's not who I'm talking about. Instead, these are trial-tested litigators or highly experienced Ph.D. consultants who routinely act as coaches to the best of the best trial lawyers. These are people who go to trial every month and operate with the best of the best.  

They offer a kind of assistance that is relatively new in the industry. They work with counsel to develop a compelling narrative. They help develop an opening statement. They prepare just the right visuals using scientifically proven techniques that enhance persuasion.

These litigation consultants are not easy to find. I'd be happy to recommend someone who is the right fit for you.

Other A2L articles and resources related to litigation consulting, storytelling, and the use of litigation graphics to persuade include:

litigation consulting graphics jury trial technology

 

Tags: Litigation Graphics, Litigation Consulting, Demonstrative Evidence, Jury Consultants, Storytelling, Opening, Midsize Law Firms, In-House Counsel, Persuasion

2017 Will be a Great Year for (Most Types of) Trials

Posted by Ken Lopez on Fri, Jan 27, 2017 @ 12:47 PM

2017-trials-economic-outlook-litigation.jpgKen Lopez
Founder/CEO
A2L Consulting

This is the fifth consecutive year that I've written a new year economic outlook article focused on litigation. Please review some of my previous articles that were focused on 2016, 2015, 2014, and 2013. While I believe that 2017 will be a very good year for litigation, it will not be good for everyone. From where I sit, things look and sound remarkably different during this current economic expansion than they did in previous years.

A2L's litigation consulting business, one focused almost entirely on trials, is thriving. We've grown more than 50% in each of the past two years, and I'm forecasting similar or better growth for 2017. Our growth is spread across many law firms/corporations and many areas of the law, so I know it's meaningful growth.

Yet any conversation with my large law firm managing partner friends or my big company in-house counsel friends suggests that litigation should be having an off year. These well-informed sources, as well as courthouse data, tell me that case filings are down and that litigation at big law firms is down.

So, how can our trial-driven firm be prospering and big litigation departments be faltering? One of us has to be looking at the litigation industry all wrong, right? 

Actually, I believe that we're both right, and I'm trying on some new vocabulary to explain it.

I've long observed that litigation is closely tied to economic growth. It's simple logic. Big companies drive both the economy and big-ticket litigation. When one moves up or down, so does the other, quite reliably. 

After more than 21 years as one of the leading litigation support companies largely focused on big-ticket litigation, I (finally) realize there is a more nuanced way of looking at litigation and trials. I used to think litigation was either small-ticket or big-ticket, and A2L is focused mostly on the latter. But now, after going through a few periods of robust economic growth (the early and mid-2000s and the current market), I understand that there's actually a third type of litigation. For now, I'm calling it resolvable big-ticket litigation.

By “resolvable big-ticket litigation,” I'm referring to those large cases with between tens of millions and billions of dollars at stake that could be settled if the parties were truly motivated to do so. Everyday big-ticket litigation is distinguishable from resolvable big-ticket litigation since in the former type, there just isn’t a good settlement position. Perhaps it's a patent dispute where there is no reasonable licensing compromise, or an antitrust case where the merger is either going to be approved or blocked, or one of those cases where what’s at stake is a principle, not money.

What I notice about resolvable big-ticket litigation is how highly sensitive it is to economic fluctuations. Yes, all big-ticket litigation rises and falls with economic conditions. But resolvable big-ticket litigation is very sensitive to it. Economists would say it is highly elastic; if there is a small increase in the rate of economic growth, resolvable big-ticket litigation skyrockets. Of course, the opposite is true too. When the economy dips or economic uncertainty is introduced, those resolvable cases are in fact resolved because companies stop gambling or at the very least, they take some risk off the table.

The last year I saw resolvable big-ticket litigation performing as well as it is now was 2005. I expect current levels to continue through 2017 at least, and here's why.

Big-ticket litigation generally, and certainly resolvable big-ticket litigation, is highly correlated with the economy, and leading indicators that reliably predict economic growth six to nine months in the future are soaring.

Take a look here at the latest report of ECRI, the Economic Cycle Research Institute or simply look at these charts below.

ECRI-2017-leading-indicators-litigation.jpgIf you read annual articles of mine in the past, you know that I put enormous faith in the work of ECRI. They publish these straightforward leading indicators, and notably they have been on the rise for the last year and they are currently reaching levels we have not seen in a decade. 

In both the weekly chart and the monthly charts above, the green line reflects a prediction of what will happen in six to nine months based on very reliable data. If it's going up, it's good because it means growth is coming. Down means growth is slowing.

Under the weekly chart, there is a monthly chart looking at the past 40 years. Look only at the green line, and you'll see the historic levels the growth rate leading indicator is approaching. If you want to learn more about this forecasting tool, I recommend the book Beating the Business Cycle.

With this level of economic growth setting up, I'm expecting another great year of trials of all types. However, if resolvable big-ticket litigation is the type that really skyrockets in boom times, I'm also looking for more of that this year.

So, while there are in fact fewer trials than there used to be, resolvable big-ticket litigation appears to be on the rise. For the typical large law firm, this means fewer cases but a higher proportion of trials. For a company like ours, these are boom times. The biggest risk for our firm and the entire litigation industry is whether uncertainty generated by the change in the administration causes large companies to pull back on their litigation spend or take fewer risks at trial. Time will tell, but the leading indicators do not suggest a pullback—yet.

Articles related to the economics of the litigation market, law firm sales, pricing and more on A2L Consulting's site:

persuasive storytelling for litigators trial webinar free

Tags: Economics, Litigation Consulting, Litigation Support, Leadership

Three Top Trial Lawyers Tell Us Why Storytelling Is So Important

Posted by Ken Lopez on Tue, Jan 17, 2017 @ 09:53 AM

storytelling-trial-lawyers-interviewsby Ken Lopez
Founder/CEO
A2L Consulting

We recently had the opportunity to interview three top trial lawyers. We asked them for their views about the practice of law and about what really works at trial.

Collectively, more than 100 years of wisdom are speaking in these interviews. I couldn't agree more with these trial lawyers’ positions, and over the coming weeks, we will share some of these interviews, edited for clear and quick messages and understanding.

These three lawyers, Patrick Coyne, Rob Cary, and Bobby Burchfield, are at the top of their field. Let's hear what they have to say about storytelling at trial.

Finnegan partner Patrick Coyne, an intellectual property litigator, said: “I think a lot of lawyers approach IP cases with the idea that all I have to do is convince them that I’m right. Wrong. People make their decisions based on their values and beliefs. What the story does is give the jurors a narrative that you can tie in to their values and beliefs, and they can then fill in the gaps themselves. It makes sense to them based on their perspective.”

Rob Cary, a litigation partner at Williams & Connolly, said, “Being a litigator is about storytelling, making a narrative that makes sense and that is credible and reasonable. So much of what is taught in law school is so complicated and so nuanced that it inhibits good storytelling. So I think all lawyers when they get out there, and especially if they practice before jurors, need to be good storytellers. It is crucial to stick to the truth, and of course you need to be able to show as well as to tell.”

Said Bobby Burchfield, a litigation partner at King & Spalding, “I think of a trial in terms of putting together a comprehensible and comprehensive story in terms of what I can get people to remember and what I can get people to believe. That’s when you really mature as a lawyer, when you understand it really that is the narrative that decides the case and not whether you think you’re right.”

As is clear from the interviews with these top trial lawyers, building a narrative is essential to the consulting work that A2L does, because developing a persuasive narrative is essential in the modern trial. All too often it's overlooked or only considered at the eleventh hour.

We've written about storytelling extensively in articles like 5 Essential Elements of Storytelling and PersuasionStorytelling Proven to be Scientifically More Persuasive, $300 Million of Litigation Consulting and Storytelling Validation, and Winning BEFORE Trial - Part 3 - Storytelling for Lawyers. And we've even created a compendium-style book of articles related to storytelling - it's a free download.

Finally, if you happen to miss last week’s A2L Consulting storytelling webinar delivered by A2L's Managing Director of Litigation Consulting, Tony Klapper, and attended by nearly 500 of your peers, you can now watch a recorded version here.

persuasive storytelling for litigators trial webinar free

Tags: Trial Graphics, Litigation Graphics, Trial Consulting, Juries, Psychology, Storytelling

How to Use Litigation Graphics in Antitrust Cases

Posted by Tony Klapper on Mon, Jan 9, 2017 @ 09:29 AM

antitrust-monopoly-power-litigation-graphics.jpgby Tony Klapper
Managing Director, Litigation Consulting
A2L Consulting

At first glance, antitrust cases seem like unlikely venues for the successful use of litigation graphics. Antitrust law has the reputation for being arcane, abstract and statistical, and to some extent the reputation is justified. After all, this area of law deals with the workings of supply and demand and other economic questions, and the issue is often whether competition (or potential competition) in a market has been suppressed in some way. These matters aren’t remotely within the daily experience of jurors. How can a litigator use graphics in antitrust cases to make them make sense?

It can be done. Earlier this year, a well-written article in Law360 (paywall) noted that “explaining the details of an antitrust case to a jury can be a daunting task, but lawyers who build a compelling narrative and communicate with a straightforward style stand a good chance of bringing the jury around to their client’s point of view, experts say.” The article suggested that “many jurors are visual learners, so economic evidence is most likely to stick when the spoken testimony is supplemented with visual aids.” We agree.

Rather than defaulting to showing images of statistical models or regression analyses, antitrust litigators should consider presenting their case with visuals that we are used to seeing on a daily basis. For example, maps are an excellent way to help jurors visualize levels of competition. A state or county could be colored lighter or darker, depending on the number of competitors present in a given year. The names of the competitors can be symbolized by their logos. The entry by a company into a given geographic area is well represented by an arrow, of greater or lesser thickness. “Before and after” maps are also very effective: Here’s how dense the market was before the merger, and here’s what it looked like afterwards. And so on.

Relatively simple graphic techniques, such as bar charts, pie charts and thermometer slides, can also be very useful. A bar chart can be used to show that prices stay the same (are inelastic) regardless of the degree of competition in a relevant market (or conversely, if you are the Department of Justice, that they change fundamentally). An animated pie chart might show that in a five-year period the market share of the largest companies decreased rather than increased as new entrants appeared, indicating that concerns about market concentration are overblown. A thermometer slide (also known as a growing bar chart) might show, by category of savings, how much in the way of efficiencies was achieved.

Of course, there are many other demonstrative tools available to the prosecution or the defense in antitrust matters. Venn diagram-like slides can be used to show a lot of (or a small amount of) overlap in products or services provided by competing companies that intend to merge. For the defense, showing little overlap highlights differentiation; for the prosecution, the opposite is true. Timelines, a useful tool for most case narratives, are also effective tools for presenting evidence in antitrust cases. Timelines, for example, can depict the time and effort that went into the companies’ decision to merge and to determine if efficiencies could be achieved. Or, combined with trend lines, they can be used to explain the factors that, over time, drove the decision to merge.

With a bit of creativity, the facts in antitrust cases will be no more difficult to present successfully to jurors than the facts in any other type of case.

Other articles and A2L resources about antitrust litigation, litigation graphics and related topics:

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Tags: Trial Graphics, Litigation Graphics, Demonstrative Evidence, Persuasive Graphics, Process Charts, Antitrust Litigation

7 Habits of Great Trial Teams

Posted by Tony Klapper on Tue, Jan 3, 2017 @ 02:17 PM

great-trial-teams-good-to-great-collins.jpgby Tony Klapper
Managing Director, Litigation Consulting
A2L Consulting

Ken Lopez, the CEO of A2L Consulting, and I were talking the other day about some good books to read for the holiday season.  I suggested a current best-seller, Thomas Friedman's Thank You for Being Late - strongly recommended to me by my dear friend and mentor, Jim Hostetler. But Ken guided me to another book, a best-seller written 15 years ago by Jim Collins, called Good to Great.  It was a great read.

Although the book is principally a heavily researched analysis on what differentiates a great company from just a good company, I believe that many of the same lessons that apply to the Fortune 500 apply with equal force to law firms, litigation consulting companies, and even trial teams.  Borrowing heavily from Collins' conclusions, I offer the following New Year’s thoughts on how good trial teams can be great trial teams:

  1. Great trial teams have leaders who have the confidence to make important decisions but also the humility to call attention to the team, not themselves.
  1. Great trial teams are composed of the best and the brightest who, like their leader, put the team first.  They are not necessarily subject matter experts (though subject matter expertise certainly doesn’t hurt), but they are innovative thinkers who roll up their sleeves and get to work.
  1. Great trial teams don’t simply follow the direction of their leader; instead, they participate in the development of the trial strategy from the beginning -- through open, sometimes animated, discussion and debate.  
  1. Great trial teams realize that presenting an effective narrative at trial is not something that happens overnight, but rather requires repeated reassessment and development.  The process is iterative and not necessarily linear.
  1. Great trial teams aren’t afraid of technology and think carefully about how they can use it in the courtroom.
  1. Great trial teams understand what makes them great as a team and as individuals.  They don’t try to become something they are not.  
  1. Great trial teams think hard about the core of their case and develop themes, theories and narratives that make the most sense of the law and the facts, fitting round pegs only into round holes.

Are these statements true of your trial team?

Other tools and resources for A2L to help your trial team improve and benchmark your trial team against other teams:

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Tags: Litigation Technology, Trial Technology, Litigation Management, Trial Preparation, Storytelling, Management, Leadership

The Importance of Litigation Graphics in Toxic Tort Litigation

Posted by Tony Klapper on Wed, Dec 28, 2016 @ 01:23 PM

iStock-456090227.jpgby Tony Klapper
Managing Director, Litigation Consulting
A2L Consulting

If anyone thought the era of toxic tort litigation was coming to an end, they were wrong. The Environmental Protection Agency recently announced its priority list of 10 chemicals, including asbestos, that it is considering banning under the Frank R. Lautenberg Chemical Safety for the 21st Century Act. Although it remains an open question how aggressive the Trump administration will be with safety regulations, the reality is that regulatory lists like this, and the inevitable studies that follow, often become a treasure trove of “support” for a plaintiffs’ bar eager to add scientific credibility to their legal claims.

This presents challenges for defense lawyers – especially given the continued currency of quasi-scientific principles or principles that are fine for regulators to rely on, but have no place in today’s courtroom, such as the “precautionary principle.” This is most evident with the mantra of “no safe dose” that asbestos lawyers and some environmental groups trumpet as justifying liability for even the most meager and infrequent of chemical exposures. Of course, toxicology, epidemiology and other scientific disciplines have exposed the fallacy of principles like “no safe dose” (after all, Paracelsus teaches us that “dose makes the poison – more about this later). But the appeal of the seemingly aphoristic “no safe dose” is tough to counter in court when an effective advocate plays to a jury’s fears and is buttressed by governmental pronouncements that, albeit for different reasons, embrace the notion that there is some theoretical, modeled risk from exposure to virtually any chemical.

So the task for the defense bar is how to convince juries to reject these and other fallacious concepts that serve as easy, digestible substitutes for the more complex elements of true causation.

This task requires more than just the hiring of well-credentialed risk assessors, toxicologists, epidemiologists and pathologists, and the deployment of powerful rhetoric. It also requires careful thought on the best way to persuade jurors visually that many of the concepts proposed by plaintiffs in toxic tort cases are indeed spurious. With some creativity, defense lawyers and graphic artists working with them can come up with ways to explain complex scientific concepts, such as exposure pathways and epidemiology, so that jurors can understand them.

A good example is the basic principle of toxicology that “the dose makes the poison.” This doctrine states that the amount of exposure to a substance is what defines the impact that that substance has on the human body. A moderate amount of water is a good thing. Actually consuming too much can kill you (hyperhydration). This concept should be relatively easy for lawyers and graphic artists to explain to juries without becoming overly technical and resorting to scientific mumbo-jumbo that will only confuse. 3-D and 2-D animations can be useful in this type of case, as can the simple bar chart or creative illustrations that analogize concepts like thresholds and total dose. Sometimes the simplest approach is the best.

Too often, when lawyers think about litigation graphics in toxic tort cases, they rely excessively on callouts of phrases in long-forgotten documents or hopelessly complicated charts presenting arcane data. If the message from the plaintiff’s lawyer is very simple – as in “this case is as easy as A, B, and C—Asbestos in Brakes cause Cancer” – the defense needs to respond with a similarly basic approach that will remain in jurors’ minds.

Other articles and free resources related to toxic torts, litigation graphics, teaching science, and environmental litigation from A2L Consulting include:

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Tags: Trial Graphics, Litigation Graphics, Demonstrative Evidence, Science, Environmental Litigation, Toxic Tort, Persuasion

Announcing A2L’s New Storytelling Webinar

Posted by Ken Lopez on Wed, Dec 21, 2016 @ 01:08 PM

persuasive-storytelling-for-litigators-cta-time.jpgby Ken Lopez
Founder/CEO
A2L Consulting

Tony Klapper joined the A2L team after a vibrant and successful career as a litigator at law firms like Kirkland & Ellis and Reed Smith. One of the reasons that he has meshed so well with the culture here at A2L is his penchant for storytelling, particularly as it applies to persuading in the courtroom.

In the past year, I've had the pleasure of watching Tony deliver private storytelling training sessions to litigators at many of the very top litigation law firms. And I have also had the distinct pleasure of watching him work with our customers, who are primarily large law firms engaged in litigation with hundreds of millions, or billions, of dollars at stake.

Having been in this business and having seen a lot of people do this kind of work for three decades, I can say with confidence that Tony is absolutely superb at combining the development of a high-quality narrative with high-quality persuasive visuals.

So it's with great pleasure that I announce an upcoming free public webinar on storytelling for litigators on Wednesday, January 11, 2017 at 1:30 pm (EST) - NOTE: Recorded version will be available after the event if you register. Everyone is invited to attend. All you have to do is sign up, and that takes about 30 seconds. Here's the link to register.So whether you're considering how best to tell a story in the courtroom for an upcoming case or just want to hear the latest techniques and science that relate to persuasive storytelling, you will want to attend this free one-hour session.

In this session Tony will be sharing techniques that he has learned in his more than 20 years of litigation – and techniques that we use at A2L to help trial teams and their experts maximize their persuasive ability in the courtroom.

click here to Claim Free Webinar Seat Now

Tags: Trial Graphics, Litigation Graphics, Demonstrative Evidence, Webinar, Litigation Support, Storytelling, Persuasion

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Authors

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