The Litigation Consulting Report

Phone Surveys Aren't What They Used To Be

Posted by Laurie Kuslansky on Fri, Oct 31, 2014 @ 12:59 PM

 

phone-survey-mock-juror-jury-juriesby Laurie R. Kuslansky, Ph.D.
Managing Director, Jury Consulting
A2L Consulting

Research has shown that a variety of individuals are not fully represented in telephone surveys, especially Democrats,[1] the young, nonwhite, and urban voters who can be the hardest for pollsters to reach.[2]

In addition, the migration from landline phones associated with home addresses to portable cell phones unrelated to home addresses compounds the problem of reaching and surveying a representative sample using traditional approaches to phone surveys.

And, not all venues were created equally. Some have more hard-to-reach residents, while some have more cell phones replacing landlines. 

In general, “It has become increasingly difficult to contact potential respondents and to persuade them to participate,”[3] dropping from 36% in 1997 to 9% now willing to participate in phone surveys.

Consequences?

There are many.  To name a few:

Lower representativeness of people willing to respond to phone surveys requires taking additional measures to assure a representative sample, but the options aren’t ideal:

  • Even if you weight the sample, you may simply be giving undue weight to those you reach who may not actually match the ones you missed;
  • It may cost more money to buy additional samples to get a sufficient number of people who represent a particular category.

o    For example, if you are seeking to survey jury-eligible adults and voter registration is one of the requirements, you may have to spend extra money and buy a list of registered voters if not enough people in the normal random digit dialing (RDD) sample turn up eligible to be a juror, assuming they answer the phone and are willing to answer questions in the first place... and 91% on average are not.

  • You may have to spend more money and/or time to reach a reasonable representative sample because of the low incidence rate (i.e., people willing and able to complete the survey). This approach has improved the field rate of responses from the 9% average to 22%,[4] but added time means added cost.

Are people who answer telephone surveys different than people who don’t?

Yes. Among other things, people who engage significantly more in volunteerism and civic activity are more likely to agree to participate in telephone surveys than people who do not.”[5] Intuitively, this makes sense.

What does this mean for telephone surveys of mock jurors?

  • Anecdotally, the kinds of people unwilling to agree to participate in phone surveys are more similar to people unwilling to be on a jury than those who end up as jurors.  Hence, those who respond to surveys are perhaps a better representation of likely jurors than those who do not.
  • Financial information tends to be hard to gather in phone surveys in general.  If that information is pertinent to a jury study, it can perhaps be gleaned indirectly from other factors (education, employment, home ownership, marital status, etc.). Instead of the specific dollar amounts, one might be able to code someone who has more vs. fewer markers of likely affluence vs. poverty;
  • Many work to design the sample of a study by first referring to the latest (2010) Census data and the ACS (American Community Survey) estimates, but they are somewhat off, especially in terms of under-estimating the rise of Hispanics.  The problem is that such information is often the only or best available data. Other options that may be more current are real-estate websites that describe communities as well as anecdotal information from local counsel about a particular jury pool. Putting together the specifications for the polling sample is part of the art and science of polling.

Are There Any Solutions? 

Yes. “A new study by the Pew Research Center for the People & the Press finds that, despite declining response rates, telephone surveys that include landlines and cell phones and are weighted to match the demographic composition of the population continue to provide accurate data on most political, social and economic measures.”[6] 

In addition to the technical issues that depress response rates, one should also consider how easy or hard you make it for someone to reply to the questions. Shorter and easier are better than longer and more difficult.  Questions that require greater effort or too many questions are more likely to end up being asked, but not answered.

Ironically, the data that are missing is that which describe people who don't take surveys or end up making much difference on juries.

Other articles related to mock trials, jury consulting and phone surveys on A2L Consulting's site:

 

[1] Midterm Calculus - Why Polls Tend to Undercount Democrats by Nate Cohn, The Upshot, N.Y. Times 10/30/14 at http://www.nytimes.com/2014/10/30/upshot/why-polls-tend-to-undercount-democrats.html?_r=0&abt=0002&abg=1

[2] Assessing the Representativeness of Public Opinion Surveys, by Pew Research Center for the People and The Press, 5/15/12 at http://www.people-press.org/2012/05/15/assessing-the-representativeness-of-public-opinion-surveys/

[3] Op. Cit. at Pew

[4] Op. Cit. at Pew

[5] See Katherine G. Abraham, Sara Helms and Stanley Presser. 2009. “How Social Processes Distort Measurement: The Impact of Survey Nonresponse on Estimates of Volunteer Work in the United States.” Am. J. of Soc. 114: 1129-1165. Roger Tourangeau, Robert M. Groves and Cleo D. Redline. 2010. “Sensitive Topics and Reluctant Respondents: Demonstrating a Link between Nonresponse Bias and Measurement Error.” Public Opinion Quarterly 74: 413-432. 

[6] Post-election assessments of poll accuracy by the National Council of Public Polls at http://ncpp.org/files/NCPP%20Election%20Poll%20Analysis%202012%20-%20FINAL%20012413.pdf

 

Tags: Jury Questionnaire, Jury Consulting, Mock Trial, Litigation Consulting, Juries, Jury Consultants, Jury Selection, Phone Survey

The 5 Very Best Reasons to Conduct a Mock Trial

Posted by Kaitlin Rothstein on Wed, Oct 29, 2014 @ 03:59 PM

 

mock-trial-jury-consultants-dc-va-ny-de-pa-nj-fl-tx-ca-ilby Kaitlin Rothstein 
A2L Consulting

Have you ever noticed that when you have someone else take a look at a problem or help edit a document, they find another way to address the issue or find additional areas that can be tweaked?  That is what mock trials serve as, a tool to put additional eyes and minds on a massive set of data and find out where it can be fine tuned and perfected. 

The purpose of the mock trial is to educate the lawyers and clients on the case’s strengths and weaknesses and find where it can be enhanced. If you are on the fence about using a mock trial, think about these important ways that one could enhance your case:

1. Mock trials are very helpful in assisting in the fine-tuning of story formatting and trial presentation

  • Storytelling and proper presentation style for the audience is key for persuasion
  • Learn how to tell the story to properly teach the jury or approach the topic with a judge
  • Allow you to test litigation graphics and themes on an audience to see reaction, level of understanding, and persuasion.
  • See Storytelling at Trial: Will Your Story be Used?

2. Mock trials help you see the case from the other side: in the weeds vs. fresh perspective

3. Mock trials cause you to find gaps in your case (that you didn’t even know were there)

  • You can get feedback from the mock jurors on what they did and didn’t understand, what did and didn’t work, or if there were issues missing in the presentation of the case.
  • See 10 Things Every Mock Jury Ever Has Said

4. Mock trials assist in evaluating case themes and stories

  • The mock jury will give feedback on the case and which themes worked and helped them along in their decisions and which ones were not helpful for your case.  While you may think that each theme is appropriate and key, you may learn that one should be left out or changed.
  • You may also find out which themes are sound but need more explanation, through support (visual or litigation graphic development)
  • This will also give you insight into how your jury will think, process, and determine the outcome of your case. This will help you to tailor how you respond, how you say it to hit home the hardest.
  • See Planning For Courtroom Persuasion? Use a Two-Track Trial Strategy

5. Mock trials allow you to hone your skills

  • There is no such thing as too much practice
  • Practicing to get comfortable with the materials, practicing to get comfortable with the venue, practicing to be well polished and confident but not slick, are all great benefits of mock trials
  • This focused preparation will come in handy during the heat of the day
  • See Practice is a Crucial Piece of the Storytelling Puzzle

Other articles from A2L Consulting about mock trials, mock juries, storytelling, practice and jury consulting:




Tags: Trial Graphics, Litigation Graphics, Jury Consulting, Mock Trial, Demonstrative Evidence, Jury Consultants, Storytelling, Practice, Persuasion

[New and Free E-Book] Litigation Storytelling and Persuasion - 3rd Ed.

Posted by Ken Lopez on Tue, Oct 28, 2014 @ 03:56 PM

 

storytelling-for-litigators-narrowby Ken Lopez
Founder/CEO
A2L Consulting

A successful trial lawyer is one who is able to persuade a jury or judge of the truth of his or her client’s case. In order to do that, a lawyer must connect with people on an emotional level. The only way to do that is to tell a compelling story. Stories are the way in which people learn and the way in which they organize reality.

Law school may prepare lawyers to build a case around the law, but it doesn’t teach the science or art of persuasion. Sitting in a jury and analyzing evidence is likely one of the most complex things a juror will ever do, so you need to make it easier for them and as entertaining as possible. You need to hook them early and keep them engaged.

No matter what you say during opening statements, a jury will try to fit the evidence into a story format. The question is, will they use your story, your opponent's story or one that they make up for themselves.

Great litigators understand the need to control the trial narrative. They understand that once a story takes hold, a jury will selectively hear evidence that tends to confirm the logic of the story they've adopted. This confirmation bias when combined with the knowledge that as many as 80 percent of jurors will make up their minds during opening statements, means that the story a litigator tells during opening is arguably the single most important thing done at trial.

At A2L Consulting, we have just put together the third edition of our very popular (and free) e-book on storytelling and persuasion. It’s entitled “Storytelling for Litigators: Building a Great Narrative for Judge & Jury.”  This e-book is based on the latest research, and it is designed to explain the theory behind the importance of storytelling, the basic concepts of building a persuasive story for jurors, and the specifics of how to use your story in the courtroom.

This e-book expands dramatically on the previous two editions by adding 65 additional pages of expert-authored articles on the topics of storytelling and persuasion. Now, at 144 pages and 44 articles, this is the most comprehensive and unique volume available at any price in the litigation and persuasion fields (and it's free).

The e-book is recommended for anyone whose job involves seeing the inside of a courtroom on a regular basis, but anyone charged with persuading a skeptical audience will find value in it. It features such topics as “How to Emotionally Move Your Audience,” “Ten Things Litigators Can Learn From Newscasters,” “20 Great Courtroom Storytelling Articles from Trial Experts,” “Portray Your Client As a Hero in 17 Easy Storytelling Steps,” “Planning for Courtroom Persuasion: Use a Two-Track Trial Strategy,” and “Five Essential Elements of Storytelling and Persuasion.”

I hope you enjoy this book, and I hope you will take a moment to share some feedback by contacting A2L. If you ever have a question about how to prepare the themes and story of your cases, please ask.

CLICK HERE TO DOWNLOAD YOUR FREE STORYTELLING FOR LITIGATORS E-BOOK

Tags: Trial Graphics, Litigation Graphics, Jury Consulting, E-Book, Advocacy Graphics, Storytelling, Visual Persuasion, Opening, Persuasion

And The Winner is . . . ?

Posted by Laurie Kuslansky on Mon, Oct 27, 2014 @ 01:27 PM

 

by Laurie R. Kuslansky, Ph.D.maine-seal-ebola-christie-rightsManaging Director, Jury Consulting
A2L Consulting

Nurse Kaci Hickox.  After she volunteered in Sierra Leone to treat Ebola patients, she headed to Newark airport to come home. Her timing was impeccable, because a mandatory quarantine was instituted on the ground while she was in the air. That day’s rule change was a reaction by New Jersey’s Gov. Christie to the frenzy caused by New York’s first Ebola patient, Dr. Craig Spencer, who visited numerous public places in two boroughs since his return from Guinea, before he developed fever and went to the hospital. Self-quarantine, evidently, would not satisfy a worried public.

The question we raised here the other day was who would be suing whom.  We got an answer one day later: the first mention of a lawsuit came a day after Nurse Hickox landed and was held and questioned at the airport for hours with no food and feeling like she was being treated like a criminal.  This caused her to become flush and upset, misinterpreted as having fever, and then jettisoned into a tent with folding chairs at a Jersey hospital with nothing to read, no cell phone, and no computer. Those came later.

A nasty media exchange ensued between Nurse Hickox and Gov. Christie over whether she had a fever. The irony was that an inaccurate forehead scanning thermometer picked up that she was flush . . . caused by her reception at the airport, but more accurate oral thermometers later showed she had no fever. 

Norman Siegel, civil liberties attorney, and her attorney Steven Hyman promptly threatened to sue to have her released, and presto . . . within 24 hours of that, she was. NJ soon after decided it was OK after all for her to leave and be monitored as a free person.  She chose to go to a state whose motto is “Dirigo,” meaning “I lead” or “I direct” – Maine.

The facts and her lawyers prevailed, at least for today.

live-free-or-die-ebola-nurseBut it is far from over yet.  Her lawyers plan to file a constitutional challenge to the state-imposed restrictions for health care workers returning to NY and NJ from West Africa after treating Ebola patients.  It will be interesting to see how one’s constitutional rights stand up against the public.

And the winner is... no one.  It is a vicious cycle.  By taking a strict stance with health care workers and anyone else who may have been in contact with Ebola, people willing to expose themselves to a pandemic are unwilling to expose themselves to mandatory quarantine, or as New Hampshire’s state motto says, Live free or die. It is ironic, but true.

If mandatory quarantines or travel bans are imposed, fewer will volunteer, West Africa will have less money with which to fight the outbreak, people can take indirect return flights to hide where they’ve been, and the outbreak won’t be contained as fast, so the rest of the world will be at higher risk ... until the rules change again, perhaps tomorrow.

Other articles from A2L Consulting focused on likability, trust and psychology:

Tags: Science, Psychology, Medical Malpractice

So Little Trust, So Much Double-Speak

Posted by Laurie Kuslansky on Sat, Oct 25, 2014 @ 02:02 PM

 

ebola-doctorby Laurie R. Kuslansky, Ph.D.
Managing Director, Jury Consulting
A2L Consulting

Funny how officials repeat how hard it is to get Ebola, that the NYC doctor did all the right things, that you can’t catch it when there aren’t symptoms, so there’s no need to sanitize the subway because there’s essentially no risk. New York’s health commissioner at the first press conference related that the doctor at issue kind of self-quarantined, but not really... 

One online commenter said:

“Self quarantine is useless unless one is symptomatic. the moment he became symptomatic, he notified health officials. this man was never a risk to the public from a logically sound, well thought out and rationed scientific standpoint at least. From a fear based standpoint, he was terrifying.” [1]

-- But --

They’re sanitizing the bowling alley where he bowled, have a HazMat truck parked outside his Hamilton Heights apartment building, sealed off his apartment, are glad he didn’t go to work at the hospital since his return, which is their rule, are tracing EVERY place he went on his Metrocard, his fiancée was hospitalized and being monitored, and quarantined his 2 friends who had the most contact with him, handed out “Ebola – Am I at risk?” flyers in his neighborhood, consulted Ron Klain, Ebola czar appointed by Pres. Obama, a special CDC team is coming to New York , officials are unleashing their medical detectives to trace every person he had contact with, but ... no need to worry?!

So, which one is it?  You can’t have it both ways. 

You know what’s wrong with sort-of reassurance?  It doesn’t really work, especially in situations which may have a low risk of injury (hard to become injured), but high risk of harm (easy to die or at least, suffer badly), as is the case with Ebola: hard to get, hard to survive (about 50/50). 

Dr. Mary Travis Bassett, New York City's health commissioner said: “Chances of anyone contracting the virus from contact with him are ‘close to nil.’"  You know what the difference is between nil and close to nil?  Or between “nothing” and “almost nothing”? Like being a little pregnant vs. not pregnant.

A number of people wonder why such a knowledgeable person didn’t just bite the bullet and take one for the team and just stay home for 3 weeks, rather than do part of the NYC marathon, covering two boroughs (after stopping in two countries en route home to the U.S. from Guinea)? Especially considering the potential harm to others, is that really a big ask?  Doubt it.  Yes, it must be inconvenient and boring, but compared to the millions of residents and tourists in NYC who were not interested in potentially coming in contact with his bodily fluids, anger and anxiety are likely to replace compassion and sympathy for the good doctor.  The only way they’d believe that there is no risk is if he did not crisscross the city. Period.  As some comments reflect:

  • “In Africa, Ebola spreads through ignorance. Their customs, their traditions all help the spread. In the U.S, it will spread through Stupidity. People who know better, but just don't care or think they are impervious.”[2]
  • “Stupidity, and in this case, narcissism.”[3]
  • “No, but a physician should know the risk associated with treating Ebola patients and then travelling across the world, possibly carrying the virus, and exposing it to others. That's just common sense.”[4]

Ask anyone how they might come in contact with his bodily fluids and you’ll run out of time before you run out of answers.  Add to that, that the “experts” are uncertain about precisely whether some people get fever and how much or how soon in relation to a viral load, the exact moment someone may have become contagious, and on and on, till you can work yourself up into a froth of worry.  While running a 3-mile jog along Riverside Drive, someone might just sweat a little.  If someone pays by credit card, how many points of contact with their sweat might there be? The pen supplied by the vendor, the credit card itself, the leather folder?  If someone uses the shoes and bowling balls at a bowling alley? If someone drinks from a coffee cup in Chelsea?  If someone holds onto a pole on the A train?  If someone sneezes?! If someone uses a fork at the meatball restaurant in the Village?  If someone brushes their teeth, then touches their face?  If there’s an eyelash to wipe away?  If someone cleared the cup and dishes and silverware he used?

What will happen to those people and things he had contact with, such as the Uber driver, or at the bowling alley, the café, the eatery, the subway? How many people will want to get into that car, or bowl at that place, or eat or drink at those places? Or take the subway.

Online comments by ordinary people give us a peak into the kinds of things on people’s minds.  On one hand, we have the calm, rational folks who say that there is no reason for someone without symptoms to be quarantined until/unless they have symptoms, which is what happened here, so there’s nothing to worry about now.  On the other, we see this response:

  • “Why aren't healthcare workers from Ebola-stricken areas quarantined for 21 days before being allowed to travel?” [Barkway][5]

When I was growing up in Brooklyn, N.Y., “Bellevue” was where “crazy people” were sent.  Now, it is the go-to place for treating Ebola.  Funny, how things change.  Also funny are the facts. More New Yorkers will risk getting tuberculosis, the flu, and other airborne diseases which they are much more likely to encounter than Ebola, but fear them less because those involve high risk of injury, but a lower risk of harm.  And, they are more familiar and less exotic. They aren’t diseases from “over there” that happen to “other people,” like Ebola.

Fast forward (say 21 days or so from Oct. 23rd), and, if someone in New York (who does not know the good doctor, or who was not involved in the heroic attempt to contain Ebola in west Africa) gets Ebola, what will the caption on the legal Complaint look like?  How many Plaintiffs and how many defendants might it include? 

Say no one gets sick (hopefully), but only the mayor, the governor or others in the PR campaign to reassure New Yorkers, sort of, decide they’d rather not bowl at Gutters in Williamsburg, nor have coffee at the Blue Bottle coffee stand at High Line Park in Chelsea, nor eat at the Meatball Shop in the west village, nor take the A, 1 or L trains, who will pay?

My guess is that the owners of these entities may face a battle for business interruption, loss of business, the cost of cleaning up and investing in overcoming their losses and other issues they may face. 

Who might be liable?  Can plaintiffs establish proximate cause with the patronage of the doctor? If so, is he or Doctors Without Borders or others potentially liable? Who else may be?

Established “experts,” including the CDC, issue changing protocols, so who can say whether someone has followed the rules or whether the rules which keep changing are sufficient?  If not, I see a lawsuit in the making.  As far as we know, the doctor followed the existing “rules” and did nothing wrong, but if someone else gets sick in the next 21 days, that won’t be enough.

Of course, most of all, we all wish the good doctor, who is clearly a humanitarian, a full and speedy recovery and we appreciate his noble efforts dedicated to heal others in need.  We also wish he had used Netflix and ordered in instead of what he did... and it would no doubt cost a lot less to all concerned.

The good news?  The “experts” say that a hard surface that had contact with the virus only poses a risk of transmission for about 2-4 hours after the infected contact, so if -- before you take a subway or ride in an Uber car, or go bowling, drink or eat, you read this blog and peruse some of our other articles v-e-r-y s-l-o-w-l-y, you will hopefully be, almost completely, just about 100% ... safe.

Other articles from A2L Consulting focused on likability, trust and psychology:

[1] marktopherAlex at http://www.cnn.com/2014/10/24/health/new-york-ebola timeline/index.html

[2] Seanem44 PoohBearJoey, op cit 1.

[3] MonkeyProud Seanem44, ibid.

[4] Zoidberg, ibid.

[5] Ibid.

 

Tags: Science, Psychology, Medical Malpractice

6 Traits of Bad Business Developers You Never Want to See

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

 

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

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

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

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

jerry-maguire-business-development  Jerry Maguire   

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


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

snake-oil-salesman-business-developmentSnake oil seller

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

 

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


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

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

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

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

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

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

Tags: Business Development

4 Ways That Juries Award Damages in Civil Cases

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

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

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

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

1. Horizontal Inequity   


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

2. Anchoring and Adjustment Heuristic

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

3. Fusion Theory

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

4. LEL and Distinct Award Conditions 

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

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

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

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

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

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

 

 

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

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

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

 

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

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

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

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

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

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

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

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

Tags: Management, Marketing, Negotiation, Business Development

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

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

 

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

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

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

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

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

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





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

14 Differences Between a Theme and a Story in Litigation

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

 

storytelling theme courtroom trial openingby Ken Lopez
Founder/CEO
A2L Consulting

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

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

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

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

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

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


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

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

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

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    Authors

    KenLopez resized 152

    Ken Lopez founded A2L Consulting in 1995. The firm has since worked with litigators from all major law firms on more than 10,000 cases with over $2 trillion cumulatively at stake.  The A2L team is comprised of psychologists, jury consultants, trial consultants, litigation consultants, attorneys and information designers who provide jury consulting, litigation graphics and trial technology.  Ken Lopez can be reached at lopez@A2LC.com.


    ryanflax blog litigation consultant 

    Ryan H. Flax, Esq., Managing Director, Litigation Consulting, joined A2L Consulting on the heels of practicing Intellectual Property (IP) law as part of the Intellectual Property team at Dickstein Shapiro LLP, a national law firm based in Washington, DC.  Over the course of his career, Ryan has obtained jury verdicts totaling well over $1 billion in damages on behalf of his clients and has helped clients navigate the turbulent waters of their competitors’ patents.  Ryan can be reached at flax@a2lc.com.


    dr laurie kuslansky jury consultant a2l consulting
    Laurie R. Kuslansky, Ph.D, Managing Director, Trial & Jury Consulting, has conducted over 400 mock trials in more than 1,000 litigation engagements over the past 20 years. Dr. Kuslansky's goal is to provide the highest level of personalized client service possible whether one's need involves a mock trial, witness preparation, jury selection or a mock exercise not involving a jury. Dr. Kuslansky can be reached at kuslansky@A2LC.com.

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