The Litigation Consulting Report

5 Ways to Maximize Persuasion During Opening Statements - Part 2

Posted by Ryan Flax on Tue, Apr 14, 2015 @ 11:28 AM


law-facts-storytellingby Ryan H. Flax, Esq.
A2L Consulting

In our most recent post, we discussed how important it is to use an opening statement to make jurors like you as a person and thus embrace your client’s case. Another key theme of opening statements is storytelling. Everyone is always advising lawyers to use storytelling to be more persuasive. So, why isn’t it happening more?

Maybe no one is reading these publications. Or perhaps when preparing for trial, we’re mired in details and chronology.

In law school, we’re taught how to deal with this Venn diagram involving the intersection of the law and the facts.

Never are we taught that the real intersection we care about involves human beings, how they think, how they learn, and how their influenced.

storytelling for judge jury courtroom best method for trial persuasion and emotion

Studies and countless mock jury exercises show us that deliberating jurors discuss the case as a story – a complete story with a beginning, middle and end and a whole set of characters. If this is so, whose story do we want the jury using: ours, opposing counsel’s, or some completely novel concoction of their own making?

Don’t be a slave to chronology. The natural tendency is to tell it exactly as it happened in chronological order. The problem is that this isn’t interesting, and, as we know, the theory of primacy means that the important stuff must be said first even if it didn’t happen first.

Your story must have structure. Give your story a logical beginning (where did your client start out?), middle (where did the relationship between your client and the opposing party begin?), climax (why are we really here?), and ending (“so here we are in the courtroom”), but don’t just place the events in the order in which they occurred. Which ones matter? Which ones convey the emotion and theme of your case? Sort out these questions to distill your case into a terse and interesting story.

Have a theme, tell a story. Give your jurors a reason to listen to you. Keep them interested.

Why use storytelling?  Let’s briefly go through the science.

FMRI scanning studies at Princeton University have shown that good storytelling causes the brains of the listeners and the storytellers to sync up in terms of the parts that are most active and when.1 So the saying “we’re on the same wavelength” can be literally true. In such cases, the listener’s brains act more like participants in the story than observers of the action – they become psychologically and emotionally invested, which is what we want.

When telling a story, it is essential to use sensory language. Paint a picture of the scene and the characters.2 Simply using words and argument without sensory language is interpreted by jurors as noise and is not interesting. Sensory language activates the whole brain and does so in the areas related to the senses (sight, taste, movement, etc.).3

Stories also do for jurors what they need to be good jurors. Stories interrupt daydreaming, organize information, and make the case more interesting.

When organizing your story, remember these five rules of thumb: The simpler the story, the better. The simpler the language you use, the better. Using metaphors and analogies is essential. You must distill your facts to make the story relatable. You must use sensory language and word pictures.

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Star Wars, The Godfather, Harry Potter are all movies with strong stories and strong themes. Can you represent either side of the controversies in these “cases” and craft an opening line for your opening statement story for each? Here's an example of how you might approach each. Can you tell which side is which?

Star Wars

Good men must meet evil with resistance. 

Against overwhelming odds and a seemingly insurmountable force, our band of rebels has bravely fought for freedom for all the citizens of the galaxy.

We have here a group of terrorists. 

Terrorists that want to see chaos reign across the galaxy and that will stop at nothing, not even the murder of hundreds of thousands of our brave military, to see the fall of our government.

The Godfather

Murder. Robbery. Extortion.

The Corleone crime syndicate has cost the people of this State billions of dollars and has cost countless lives. This is the story of these crimes.

This is the story of a man forced into dire circumstances. He has fought to keep his family together, to protect them against powerful enemies, to protect their lives.

Harry Potter

Orphaned and then mistreated for 11 years, Mr. Potter has risen above his upbringing to fight for the lives and the freedom of his friends and even those who call themselves his enemies.

His offer of friendship rejected, Mr. Malfoy was made to look the fool time and time again by Mr. Potter. In the end, Mr. Potter intentionally destroyed Mr. Malfoy’s entire way of life.

Don’t be a lawyer who chokes the humanity out of a story by reducing it to its legal essentials.4 Don’t turn a story about broken promises into a breach of contract lawsuit. Don’t turn a story about the tragic death of a loving wife into a survivor seeking damages for wrongful death. Don’t turn the defendant’s laying waste to acres of pristine woodlands into an environmental contamination and remediation case. Jurors live in the real world, so relate your case to that world.

Part 1 of this series may be found here.

Other articles and resources related to opening statements, storytelling and persuasion from A2L Consulting:

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

[1] Stephens et al., Speaker-Listener Neural Coupling Underlies Successful Communication, PNAS vol. 107, No. 32 14425-30 (August 10, 2010). 

[2] Gerald R. Powell, Opening Statements: The Art of Storytelling, 31 Stetson L.Rev. 89, at 96-97 (2001).

[3] See, e.g., Gonzalez et al., Reading Cinnamon Activates Olfactory Brain Regions, NeuroImage 32 (2006) 906-12.

[4] Gerald R. Powell, Opening Statements: The Art of Storytelling, 31 Stetson L.Rev. 89, at 92 (2001).

Tags: Jury Consulting, Mock Trial, Litigation Consulting, Psychology, Storytelling, Opening, Timelines, Persuasion

5 Ways to Maximize Persuasion During Opening Statements - Part 1

Posted by Ryan Flax on Mon, Apr 13, 2015 @ 11:08 AM


courtroom-demeanor-opening-statements-likableby Ryan H. Flax, Esq.
Managing Director, Litigation Consulting
A2L Consulting

It has been widely reported that more than 80 percent of jurors make up their minds about your case during opening statements.1 There is actually no quantitative study confirming this, but the best lawyers and the top litigation and jury consultants agree that a winning opening statement is critical.

Probably the most important reason that an opening statement is critical is that it establishes the lens through which your jurors will view the trial.2 If that lens is clear and focused on the issues and the evidence that you know are keys to victory, great. If the lens is cracked, foggy, or unfocused, you’ve got problems.

The concept of primacy effect is another reason that opening statements are critically important. Primacy means that information provided to an audience first is the most valuable and meaningful.3 Jurors are encoded with the first information they receive from you. If you give your jurors the first information that they receive, you’re creating the right lens for your case.

An example of the primacy effect can be seen in these sentences describing “Steve.”

Steve is smart, diligent, critical, impulsive, and jealous.

Steve is jealous, impulsive, critical, diligent, and smart.

Those exposed to the first sentence view Steve positively. Those exposed to the second view Steve negatively. But they, of course, contain exactly the same information in different order.

This is how the primacy effect works -- and the same thing happens to your case in opening statements. At the very beginning of opening statements, jurors form their working hypothesis for the case, and this hypothesis affects their interpretation of the rest of the information presented at trial. So the information at the beginning of an opening statement matters a lot. Primacy means that if you’re plaintiff’s counsel, you need to set a strong theme for your case and immediately tell the brief story of the wrong that got you to court. If you’re defense counsel, introduce the “dagger” that kills the plaintiff’s case immediately. Jurors only care about assigning blame, so make it easy for them.

Finally, confirmation bias plays a critical role because jurors will decide your case based on their views, not your evidence (for the most part). As a general rule, decision makers lack objectivity, and people tend to favor one choice over another and subsequently evaluate information to confirm that leaning.4 Your jurors will believe what they already believe and will remember evidence and arguments that supports those beliefs while ignoring evidence to the contrary. Tune your opening statement with this in mind. 

1. Give Your Jurors a Reason to Like You

In opening statements, we want to get the jurors’ attention and make them care about the case and the client. This requires that they like you and appreciate what you’re doing.

It is natural for everyone to take sides to have someone to root for. Have you ever watched a sporting event in a totally neutral way? Probably not. The same goes for jurors in the courtroom.

Remember the “90 Second Rule.” Within 90 seconds of meeting someone new, people decide whether they like the person or not, if they feel comfortable around them, if they trust them. This goes for jurors and you in the courtroom.

To make jurors like you, help them do their job. Make it easier for them. You’ll want the case and evidence to take center stage, but you need to make it interesting and easier to understand for jurors who are all new to the case, new to being jurors, new to you, and new to each other.

Litigation is confusing; make things simple. Do you remember your first day of law school? Did you feel confident that you understood what your professors were talking about? Probably not.

The trial is probably the most confusing and complicated thing your jurors will ever be put through in their lives. They’ll be asked to digest a bit of law it likely took you an entire semester of law school to understand. They’ll be asked to digest a ton of facts that you think are important and then to apply the law to those facts. Then they’ll be asked to decide which party should either get or not get a lot of money or lose their freedom. This is a confusing process, so if you can help make this job easier by distilling facts, simplifying the application of the law, and making the case easier to understand, jurors will appreciate it. In one study, jurors indicated that the prime value they saw in opening statements (and closing arguments) was that they provided a framework for the jurors to evaluate the case.5 This is perhaps the most effective way to influence juror decision making.

Litigation is boring, so make your presentation and case interesting. The Apple v. Samsung or Marvin Gaye Estate v. Pharrell Williams cases are few and far between, so your case is probably not inherently interesting. Make it so. There is conflict. There is betrayal. There is stealing and lying and deception and scheming. There is also honor and valor and compassion. Use these as tools to develop an interesting take on your case. Moreover, make the case visually interesting by using litigation graphics to help you make your points.

Litigation may be critical to you and your client. But to many jurors, it is an unwelcome interruption of their lives. In the opening statement, try to establish that you’ll get the jurors back to their lives quickly. Almost no juror wants to be in the jury box. They’ve probably each considered what they might say during voir dire to escape and failed. Assure them that your case is simple and that you’ll put it on in an efficient way so as not to waste their time.

Take the case seriously, but don’t forget to smile at the jury. It will make your appear more likable, more credible, more intelligent, and more trustworthy.6

Make the jurors feel good about you and your case. Make them happy to see you stand up when it’s your turn to talk. Do what the best teacher you ever had did – compare the old and new, the known and unknown, make learning simple, use analogies and metaphors, be tour guides, not lecturers, remove obstacles in the path to learning.

*** Watch for 4 more tips about opening statements soon - get notified of publication by clicking here ***

Other A2L Consulting articles and resources related to opening statements, being likable in the courtroom and litigator-juror communications:

Maximize Persuasion During Opening Statements  


[1] The most popular publication to cite is Dale W. Broeder, The University of Chicago Jury Project, 38 Neb. L. Rev. 744 (1959);  however, nowhere in this article does the author conclude that 80 percent of trials are actually decided in opening statements. It does indicate that trials are likely decided before deliberations most of the time.

[2] See, e.g., Bill Kanasky, Jr., The Primacy and Recency Effects: The Secret Weapons of Opening Statements, 3 No. 3 Trial Advoc. Q. 26 (2014).

[3] Ibid.

[4] Jonathan M. Lytle, The Domino Effect of Juror Decision-Making, 53 Orange Co. Law. 28 (2011).

[5] Valerie P. Hans and Krista Swigart, Jurors’ Views of Civil Lawyers: Implications for Courtroom Communication, 68 IND. L.J. 1297, 1329 (1993)

[6] Ken Broda-Bham, Ph.D., Smile (For Credibility and Affect), ( Apr 24, 2014)(citing Brodsky et al., The Witness Credibility Scale: an outcome measure for expert witness research, Behav Sci Law, 2010 Nov-Dec;28(6):892-907; Nagle et al., Gender, smiling, and witness credibility in actual trials, Behav Sci Law, 2014 Mar-Apr;32(2):195-206; and Kleisner et al., Perceived Intelligence Is Associated with Measured Intelligence in Men but Not Women, Plos One (Mar 20, 2014)).

Tags: Litigation Consulting, Juries, Jury Consultants, Opening, Body Language, Emotions, Persuasion

7 Lessons of Design That are Universal (in Trial Graphics or Anywhere)

Posted by Ken Lopez on Thu, Apr 9, 2015 @ 11:35 AM


good-design-parking-signs-litigation-graphicsby Ken Lopez
A2L Consulting

I love great design. While it is becoming somewhat more common than it used to be, it’s still rare – and it’s even rarer in the courtroom.
To be clear, my definition of great design includes everything from an interface like what one sees in a Tesla to the adaptive reuse of a historic structure to a well-crafted litigation graphic that tells a story clearly and without the need for further explanation.
One place we don't expect to see great design is in parking signs, when we are parking the car and trying to figure out where to park and where not to park. I live in Washington, D.C., where they have some signage that would seem to violate every principle of great design. This one pictured here is a classic, and you probably have some just like it in your town.
Does that look familiar? Well, one pilot program in Los Angeles is trying to change all that and make parking signs inspiring from a design perspective. Each sign contains a simple chart that is immediately clear to almost anyone. Green and red overlaid with symbols helps provide a clear message. Here’s an example below.
los-angeles-parking-sign-good-design-litigation-graphics-timelineThere is of course a lesson for the courtroom here. Clear design matters, and it matters a lot. If your litigation graphics look more DC than LA, you’re probably leaving judges and jurors frustrated -- just as frustrated as you feel when you’re trying to interpret a poorly designed sign with lots of text.
As Jonathan Ive, Apple’s longtime chief designer and a close associate of the late Steve Jobs, once said, “Make each product the best it can be. Focus on form and materials. What we don’t include is as important as what we do include.”
Let's review seven key principles of good design when it comes to the courtroom.
  1. In all presentations, ban the bullet point. The only thing that on-screen bullets kill is your persuasion.
  2. Use well-crafted exhibits. The better looking your trial graphics, the better received you will be.
  3. Don't use only pictures. People learn in different ways, and both surprise and changing mediums of persuasion will make you more effective.
  4. Don't use only words. Same as above.
  5. Don’t use only static slides. You want to present more like the national news and less like a CLE.
  6. Use lots of slides. More slides is generally more effective. 
  7. Stick to one concept per click. People need more time to digest information than you think they do.

If you start here, you may not be as great a designer as Ive, but you will be a long way down the right path.

Other A2L Consulting articles and resources focused on good design in trial graphics, litigation graphics and persuasive visuals generally:

using litigation graphics courtroom to persuade trial graphics a2l consulting

Tags: Trial Graphics, Litigation Graphics, Advocacy Graphics, Persuasive Graphics, Visual Persuasion, Washington D.C., Persuasion, Los Angeles

Boston Bomber Death Penalty - Mitigating vs. Aggravating Factors

Posted by Laurie Kuslansky on Wed, Apr 8, 2015 @ 04:46 PM


Dzhokhar-Tsarnaev-mitigating-aggravating-death-penalty-jury-consultant-sandwhichby Laurie R. Kuslansky, Ph.D.
Managing Director, Jury & Trial Consulting
A2L Consulting

It must be so hard to defend someone as unpopular as Dzhokhar Tsarnaev and plead for his life, while he does everything to make it harder.  How does one lessen his involvement when he carried out so many explicit and intentional acts and has been so consistent: remorseless.

He shed no tears for the 3 civilians and 1 M.I.T. police officer killed, the 264 people injured, or the countless others traumatized.  Instead, he went and got a sandwich. 

When his brother was killed, did he turn himself in and say, “I didn’t want to do it; I’m so sorry; my brother made me.”? No.

He is now 22, but at the time, Dzhokhar was a 19 year-old American college student at U. Mass, Dartmouth with the right to drive and be judged as an adult.  The “My-brother-made-me-do-it” defense went nowhere.  His counsel wanted him to be perceived as an impressionable adolescent misled by his older brother, but has he done anything to reinforce anything his defenders tried to assert?  No.

The defense conceded his actions, but tried to pass the buck to the alleged influence of the defendant’s deceased older brother. One problem:  Dzhokhar never blinked while he was involved or since.

In the sentencing phase, what could possibly matter? It is hard enough to overcome one count that carries the death penalty, let alone 17.

Although the assessment of mitigating factors v. aggravating circumstances is not simply a quantitative matter, but a qualitative one, no doubt the jurors will take an inventory, likely to result in something along these lines:


Is a contemptuous defendant with 5 aggravators per mitigating factor enough to convince even one juror to withhold the death penalty? Is the mother of two – not one – terrorists sympathetic? Unlikely, but time will tell.   

The jurors are de facto death-penalty qualified, lest it be discovered later that this was a falsehood.  What may save the defendant isn’t the defense, but other factors (e.g., not giving him the satisfaction of becoming a martyr by dying for his so-called cause, latent rejection of the death penalty in the largely Catholic jury pool, or jurors holding themselves above his conduct).  If he is spared, it will be because of who the jurors are and what they believe, not because of anything the defense does or fails to do.

He certainly can’t complain about the quality of his public defender, Judy Clare Clarke, who defended other notorious defendants and overcame the death penalty for child-killer, Susan Smith. 

His public defender may deserve sympathy.  Dzhokhar Tsarnaev?

Other articles related to high-profile defendants, criminal trials and jury consultants from A2L Consulting include:

A2L Consulting Voir Dire Consultants Handbook

Tags: Jury Questionnaire, Juries, Voir Dire, Jury Selection, Criminal, White Collar, Boston

Numbers in Litigation Graphics Do Not Lie, People Do

Posted by Ken Lopez on Tue, Apr 7, 2015 @ 02:47 PM



by Ken Lopez
A2L Consulting

I spotted an interesting blog post over the weekend that criticized a New York Times article about the Israeli-Arab conflict for using charts and data in a misleading way. I've written about cheating with charts before in several articles, but my 2012 article, 5 Demonstrative Evidence Tricks and Cheats to Watch Out For, in particular, offers some good lessons and has been read by thousands of people.

Although it is taken from a very different context than courtroom litigation, the blog post about the Middle East and the Times contains good lessons for both offense and defense when it comes to creating or refuting litigation graphics.

The authors levy five key complaints against the New York Times article and its use of graphics to support a narrative.

First, they discuss misleading with proximity, saying that the Times placed two charts next to each other to suggest causation when there was only a correlation -- or at least an incomplete story. This is pretty common in the world of charts, and there are entire web sites that poke fun at supposed causation in charts. This site by a Harvard Law student makes fun of fallacious causation by showing a purported connection between such topics as people who drown in swimming pools in a particular year and the number of Nicolas Cage films that year.

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The second and third charges made by the blog authors involve omitting and obfuscating. Inconvenient data that does not support the thesis can be omitted, and when it is not omitted, it can be obfuscated, for example by lumping it together with other, unrelated data. The fourth charge is related to the first three – manufacturing a pattern by the repeated use of misleading graphics. The fifth charge involves an old-fashioned method of deception – using loaded language to accompany a chart, or language that involves assumptions that have not been proved.

As the blog authors wrote – and this applies equally well to trial persuasion as to journalism: “Design is just as much an editorial tool as it is a tool of aesthetics, usability and user experience. Use your power as a designer wisely. A common misconception about data journalism is that it’s somehow less biased than traditional print journalism. Use of data lends an air of objectivity and legitimacy to a piece of journalism, and that goes double when it’s beautifully visualized.”

I find particularly relevant the bloggers’ critique of the juxtaposition of two charts and how that technique can lead someone to a conclusion just because the charts were placed next to each other. I find this thought especially useful either in a courtroom setting or when litigation graphics are placed in a brief or expert report.

Here is an example of a chart that is duplicated below (click on the chart to see the original). As the authors point out, you might think the rockets caused the deaths due to the chart placement. However, the reality is that very few deaths were actually caused by rockets.

Our job as trial consultants is not to trick or deceive the jury but to persuade effectively and ethically using the available tools. Here I don't think that an ethical line is being crossed, and I do think this is a fair form of persuasion. However I might object to it nonetheless if I were on the other side.

Other articles and resources discussing litigation graphics, cheating with graphics, chart tricks and more from A2L Consulting:

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



Tags: Trial Graphics, Trial Consultants, Litigation Management, Advocacy Graphics, Persuasive Graphics, Visual Persuasion, Persuasion

How to Make PowerPoint Trial Timelines Feel More Like a Long Document

Posted by Ken Lopez on Tue, Mar 31, 2015 @ 01:33 PM


trial-timeline-litigation-slidingby Ken Lopez
A2L Consulting

I love a good trial timeline whether it's a printed large-format trial board or whether it's in PowerPoint form. This goes for my colleagues here at A2L, as well. In fact, we love timelines so much that we've even produced a book with more than 30 types of trial timelines illustrated.

Timelines are used as demonstrative evidence in just about every trial. They serve an obvious purpose of orienting judge and/or jury to the order of events and how those events relate to one another. It's the one exhibit that helps make sense of it all, particularly in a complex case.

As our trial timine book discusses, a timeline does not have to be limited to simple chronologies. In fact by incorporating graphs, photos, color schemes and more, a timeline can transmute from being simply informative to being quite persuasive.

When I first launched A2L back in the mid-1990s, timelines were almost exclusively printed on large trial boards. There were many advantages to this approach. Sometimes we had to use as many as five tiled boards standing next to each other to make a complicated case make sense and show many events over a long period of time.

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Relative to the 1990s, very few printed trial boards get produced these days, although we still prepare a good number each month. One of the best exhibits to use a printed trial board for is the timeline, because you can often leave it up in front of a jury or judge and help them stay oriented to your case. However what happens when you can't or don't want to print a large timeline on a board?

There are a couple of good techniques for designing timelines in PowerPoint, Prezi or Keynote that allow you to create the illusion of a much bigger canvas than you can otherwise show legibly in PowerPoint. I've written about this approach in Prezi before, but I continue to advise against using that program at trial because of issues people have with motion sickness.

The sliding timeline technique is a great method to use when you have many events over a long period of time. By creating a transition between slides that mimics sliding a large piece of paper across the screen you help keep your audience oriented and in touch with the passage of time. Have a look at the simple two-slide example below to see what I mean.


In this PowerPoint trial timeline that compares the role of testifying experts and consulting experts, we move along the litigation lifecyle in a case from complaint to discovery by sliding the timeline across the screen using a push from right transition. I think it does a good job creating a fluid and elegant transition, and it helps the jury clearly appreciate when you're going forwards and backwards in time. It's a simple lesson, but it is one I see frequently underutilized. Dig into the articles, books and webinars below to learn more.

Other articles and resources from A2L Consulting discussing trial timelines, printed trial boards, PowerPoint and litigation graphics generally:

trial timeline trial graphics litigation courtroom timelines


Tags: Trial Graphics, Litigation Graphics, Demonstrative Evidence, Presentation Graphics, Advocacy Graphics, PowerPoint, Visual Persuasion, Timelines, Prezi

The CEO in Litigation: Problems, Solutions and Witness Preparation

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


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

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

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

Pitfalls of the CEO as Client

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

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

Pitfalls of the CEO as Witness

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

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

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

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

Why does this happen? Negative Tendencies of the CEO

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

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

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

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

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

  • Insists on always having an answer

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

  • Refuses to spare his or her opinions

  • Fails to speak diplomatically

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

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

Pitfalls of the CEO on Videotape: Seeing Is Believing

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

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

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

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

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

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

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

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

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

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

How to Avoid Video Pitfalls

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

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

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

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

  • Clear the table of distractions.

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

    avoid controlling behavior.

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

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

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

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

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

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

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

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

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

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

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

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

Why Does a CEO Act This Way?

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

The CEO will resist the surrender of winning familiar formulas.

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

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

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

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

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

Too Much of a Good Thing Is Not Always Wonderful

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

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

How to Raise the CEO’s Awareness:

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

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

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

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

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

What the Attorney Must Teach the CEO Witness:

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

  • Choose your battles carefully while under questioning.

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

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

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

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

  • Use a mock jury to pretest these analogies.

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

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

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

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

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

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

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

Why The Use of Clichés Puts Your Persuasiveness at Risk

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


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

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

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

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

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

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

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

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

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

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

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

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

Why Expensive-Looking Litigation Graphics Are Better

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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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

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

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

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