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The Litigation Consulting Report

[Free and New E-Book] Patent Litigation Toolkit - 4th Edition

Posted by Ken Lopez on Wed, Feb 10, 2016 @ 03:51 PM

A2L PATENT LITIGATION TOOLKIT 4TH editionby Ken Lopez
Founder/CEO
A2L Consulting

Since our founding 20 years ago, nearly half of our consulting work has involved patent litigation. Patent cases are uniquely suited to our brand of consulting, which relies on storytelling, persuasive demonstratives, and the simplification of complex materials for communication at trial. So it is with great pleasure that we release the 4th edition of our Patent Litigation Toolkit (download here).

It seems obvious that our litigation consultants and litigation graphics consultants would routinely help patent litigators make their cases presentable and digestible for jurors. After all, these cases are often incredibly complex, involving issues of detailed mechanics, organic chemistry, and cutting-edge electronic technology.

Less obvious perhaps, is the need for good storytelling. In fact, a lack of good storytelling is the undoing of many a patent case and patent litigator. After all, jurors will develop a story about your case whether you give them one or not. If you've done your trial preparation correctly, you will have offered one to them that they can believe in.

This complimentary 270-page book is designed to help you with all of your patent litigation challenges - from storytelling to the simplification of complex material. I think you'll find articles like these very helpful: 

  • 5 Tips For Inter Partes Review Hearing Presentations at the PTO
  • 11 Tips for Winning at Your Markman Hearings
  • 16 PowerPoint Litigation Graphics You Won't Believe Are PowerPoint
  • Introducing Mock Markman Hearings to Patent Litigation
  • Trial Graphics in Patent Litigation - 11 Great Demonstrative Tips
  • Explaining a Complicated Process Using Trial Graphics
  • 10 Things Every Mock Jury Ever Has Said
  • 5 Questions to Ask in Voir Dire . . . Always
  • 5 Essential Elements of Storytelling and Persuasion
  • 12 Worst PowerPoint Mistakes Litigators Make

This book is completely free and one of 20 that we offer as a complimentary resource to the legal industry. Download The Patent Litigation Toolkit 4th Edition by clicking here or by clicking the image below.

free patent litigation toolkit 4th edition from a2l consulting - top litigation consulants

Tags: Patent Tutorial, Markman Hearings, Litigation Graphics, Litigation Consulting, Litigation Support, Patent Litigation, Storytelling, Claim Construction, ITC, Design Patents

Millennials and Jury Psychology:  Why Don’t They Follow the Rules?

Posted by Laurie Kuslansky on Tue, Feb 2, 2016 @ 08:49 AM

millennials jury psychology jury selectionby Laurie R. Kuslansky, Ph.D.
Managing Director, Jury & Trial Consulting
A2L Consulting

Baby Boomers (yeah man, those who “grew up” in the ‘60s) raised kids to buck the system. No surprise there. They raised kids to think for themselves, to be more independent and not follow rules blindly, and to distrust institutions.

The result? Millennials (born roughly between 1981-96) are the least religious generation yet. It isn’t that they started off very religious in the first place. They tended to start by being less religious than their parents, and then drop off from there.

This trend applies equally to a distrust of other nonreligious organized institutions such as the labor market, government and marriage, as well as less confidence in the press, government and churches. The study shows, in part, that the biggest shift is the rise of those, heavily represented by Millennials, who claim they do not belong to any organized faith. This isn’t a wholesale rejection of all things spiritual, just of the traditional, institutional variety of beliefs and practices.

How does this relate to litigation and jury psychology?

  1. Historically, jury research has shown that people who are dogmatically religious or are extremely pious tend to see things differently when on a jury, if they do not get exempted based on their unwillingness to judge others. They tend to put a “moral” overlay on the issues being considered, rather than apply a strictly legal standard. Hence, while the defense may pass the lower, strictly legal standard, but not the moral one, the defense may lose for the “wrong” reason. Consequently, defendants have in the past wisely questioned prospective jurors on this issue. That margin, however, is likely narrowing because of the rise of Millennials, so one should reconsider how morality may now play in litigation. If one wants to see morality used by jurors as a filter in judging actions of the defense, avoid Millennials to be safe.

  2. Many cases involve institutions, whether literally or figuratively, e.g., regulators, industry organizations, marriage, contractual agreements and many others. It has long been the practice in litigation for one party, often the plaintiff, to rely on the obligations and expectations imposed by these institutions, but for Millennials, this appeal may well fall on deaf ears. Consider whether to strike Millennials or shift your strategy away from reliance on the responsibilities and rules imposed by the respective “institution” if your jury is heavily stacked with younger jurors. Certainly, you should shade questions in voir dire, if possible, to learn prospective jurors’ beliefs about rule-following and their regard, or lack thereof, for the relevant institutions in your case, not to mention, the legal instructions.

The good (or bad) news, if you have a Millennial juror?

As long as there are older people on the jury who carry more gravitas, jurors won’t likely listen to younger, less experienced and/or less educated jurors. The sense is, “What do you know?” While Millennials may be harmful to your case by themselves, they are unlikely to be determinative. Remember that a jury is a group that interacts together, so before you waste a precious peremptory strike on a Millennial, consider whether he or she has the means, skill and personality in light of the rest of the jury to carry any real weight.

If not? As the Beatles song goes, Let It Be.

Other articles about jury psychology, jury selection, and voir dire from the jury consultants at A2L Consulting include:

A2L Consulting Voir Dire Consultants Handbook

Tags: Jury Questionnaire, Trial Consultants, Jury Consulting, Trial Consulting, Juries, Jury Consultants, Voir Dire, Jury Selection, Psychology

9 Reasons Litigation Consultant is the Best Job Title in Litigation

Posted by Ken Lopez on Thu, Jan 28, 2016 @ 03:39 PM

litigation consultant trial consultantby Ken Lopez
Founder/CEO
A2L Consulting

I am very proud of A2L Consulting's role in the creation of the job title "litigation consultant." Over the years, this position has evolved somewhat, but it remains substantially similar to the way we designed it in the mid-1990s.

Back then, it was my full-time job. Today, I still get a chance to do parts of it now and then, and after 20 years, I believe it's the best job in litigation.

The role of a litigation consultant is to work with trial teams and help them develop the best visual and rhetorical strategies for persuading factfinders at trial, ADR, or in any dispute. In the 1990s, no one but the attorney-consultants at A2L called themselves litigation consultants and few if any firms offered a similar service.

Now, litigation consultants are generally litigators themselves often hailing from a large law firm. They spend most of their time directing the development of persuasive PowerPoint presentations, working with jury consultants in mock trials, and helping top litigators more effectively tell their stories at trial.

As we've written before, this role is becoming increasingly important in the litigation industry where even top litigators make it to trial only once every few years. By contrast, a litigation consultant may see the inside of a courtroom dozens of times or more per year.

If you love litigation like I do, this is the best job in the world. Here are nine reasons why I think this is so.

  1. Trial. Let's be honest, the best part of litigation is not the endless years of paper pushing in advance of trial, it's the theater of preparing for and performing at trial. A litigation consultant skips all of the pre-trial tedium and gets to engage in all the best parts of litigation. See, 11 Things Your Colleagues Pay Litigation Consultants to Do.

  2. Creativity. When we survey our clients about our litigation graphics consulting, they always tell us that the creativity we bring to the trial team, both visual and rhetorical, is what they value most. During law school, I taught myself computer animation as a hobby. Odd, I know, but clearly there was an artist who was trying to burst out. Whether you're a fine artist, an animator, or just have a strong creative bent, there are few things more satisfying than working hard to explain complicated materials to lay people using pictures and a few sound bites. SmartCEO Magazine quoted me saying, "We look like an ad agency — the classic view — everyone gathers. In the legal world, we call it a focus group, but it’s really a brainstorming session and the project group presents the case and gets feedback. Someone might say, ‘That doesn’t make sense, what are you talking about?’” Lopez makes it clear that team keeps working until no one asks that question." See, 21 Reasons a Litigator Is Your Best Litigation Graphics Consultant.

  3. Atmosphere. Some law firms are great to work at and many of those firms are our clients, but from what most Biglaw partners tell me, most law firms are lucrative places to work but are not necessarily fulfilling places to work. A litigation consulting firm, however, is typically a relaxed and creative atmosphere. It operates like a business rather than a quasi-partnership with a confusing leadership structure. While we work hard, we enjoy our time a great deal as well. See, Top 7 Things I've Observed as a Litigation Consultant.

  4. Appreciation. Our clients genuinely appreciate us, and their clients do as well. We regularly receive testimonials, gratitude, and even presents from our clients. See, 10 Things Litigation Consultants Do That WOW Litigators.

  5. Impact. We know how much impact we have because we see it all the time. Judges go on the record praising our work, and jurors often comment on the quality of work (or lack thereof exhibited by the opposition). I find this very rewarding. See, 10 Types of Value Added by Litigation Graphics Consultants.

  6. Thought-Leadership. This blog has been named among the best in litigation by the American Bar Association. It is the primary way we distribute our thought-leadership in the industry, and I think we are clearly in the top-tier of anyone doing so. I believe this is why several hundred people sign up for a free subscription to this litigation and persuasion blog every month (we're approaching 8,000 subscribers now). See, Why We Blog (and Maybe Your Firm Should Too).

  7. The people in the office. Working in an environment where Ph.D. psychologists, award-winning artists, technology experts, and litigators all collaborate is wonderful. I often joke that somehow we've managed to get all the people who didn't hang out together in high school to row in the same direction. See, 5 Surprises in Going from IP Litigator to Litigation Consultant.

  8. Winners and losers. If you love litigation, then you probably love competition. The wonderful thing about competition in the courtroom is that there is normally a clear victor. Our victories typically make up a signficant portion of the top victories of the year listed in various legal publications. See, $300 Million of Litigation Consulting and Storytelling Validation.

  9. Smart people. I believe that we are all the average of the 10 people we spend most of our time with. Working with litigation partners from Biglaw is an amazing privilege. These are some of the smartest people in the world, and many have made me a more effective person.

I think people who love their work usually do great work. Hopefully, you can tell that I love this role in our organization even if I spend most of my time in management, sales, and marketing these days. Both roles are jobs that I love.

If you think being a litigation consultant is something you might like to do, we happen to be expanding our litigation consulting team in our DC headquarters office. The right person is usually a litigator with Biglaw experience, a creative side, and someone who is looking for the lifestyle change that working outside of a law firm can provide. Follow any of these links on LinkedIn, Law360, or Craigslist to apply for the position.

We're hoping to fill the position during February 2016, so hurry.

Other articles related to being a litigation consultant, the value of litigation consulting and the business of litigation consulting generally include:

litigation consulting graphics jury trial technology

Tags: Trial Graphics, Litigation Graphics, Jury Consulting, Mock Trial, Litigation Consulting, Trial Consulting, Storytelling, Persuasive Graphics, Visual Persuasion, Persuasion

Inside Out: Jury Duty for a Jury Consultant, Part 2

Posted by Laurie Kuslansky on Tue, Jan 26, 2016 @ 03:33 PM

10688004.jpgby Laurie R. Kuslansky, Ph.D.
Managing Director, Jury & Trial Consulting
A2L Consulting

My second day serving jury duty in Manhattan was like being on an episode of Undercover Boss, quietly observing fellow prospective jurors in their native habitat, speaking little, but taking in a lot.

It was especially cold outside and those dressed for success on Day 1 (mistakenly thinking they’d get cut loose early and return to work or life the same day), succumbed to the reality that we were there for at least another full day in the Jury Assembly room, so they dressed down, mostly donning casual clothes and sneakers. Gone were the business suits, uncomfortable dress shoes and the like.

Note to counsel: If you want to spot business-clad types, better catch them on Day 1 before these lines get blurred on Day 2. Inquire how many days someone has been serving on jury duty, since changes occur after Day 1.

Despite the good humor of the clerks, it was still quite tedious to sit for a whole day with little to do. Although there was free Wi-Fi, when 200 people use it at the same time, it goes at the speed of molasses, making the use of most applications futile. Only one panel of about 20 potential jurors was called into a courtroom. Another was called in the afternoon from another assembly room downstairs, where former Mayor Michael Bloomberg was also serving.

On Day 2, more people engaged in conversations than on Day 1, but most people still remained in a cocoon of personal space, sleeping, reading, texting or plugged into phones with headphones. In this decade, you no longer see the older women knitting and the numerous hard copies of books. Roughly a dozen diligent people stayed in the side room using their computers with headsets, making no noise except on their keyboards.

Notes to counsel: Inquire about the most recent book read and in which form (Kindle, hard copy, etc.). Don’t expect to judge based on observation of what they may be carrying. Also inquire how they passed their time while waiting. Those who spent time on their computers seemed more active, diligent, and perhaps generally more information-centric than the rest.

Obedience to “rules” also somewhat loosened on Day 2 as people felt a bit more familiar – whether ignoring the rule not to take or make calls inside the Assembly Room or to respond directly in the main room to their name being called for attendance or a panel.

I can’t imagine the anarchy that awaited Day 3, but fortunately, was spared that as the clerks cut loose the entire group of roughly 200 people when no other courts needed to select a jury by about 4:15 pm.

Although there is some talk about returning to summoning jurors in New York County once every four years instead of every six, for now it’s once in six years. However, since the federal system operates independently and calls jurors every four years, it is possible to be called for federal court after serving in the county. Fortunately, there’s a handshake agreement by which federal court honors proof of service in the county. Assuming all goes right, I won’t be back in court till 2022 – except on the other side, where I normally sit, as a jury consultant observing prospective jurors from the outside in, where the view is much better.

Other articles by A2L trial and jury consultants about jury consulting, persuading jurors, and entertaining a jury:

litigation consulting graphics jury trial technology

Tags: Jury Questionnaire, Trial Consultants, Jury Consulting, Trial Consulting, Jury Consultants, Voir Dire, Jury Selection

A Jury Consultant Is Called for Jury Duty

Posted by Laurie Kuslansky on Thu, Jan 21, 2016 @ 10:41 AM

jury consultant jury duty trial consultingLaurie R. Kuslansky, Ph.D.
Managing Director, Jury & Trial Consulting
A2L Consulting

Day 1 (feels like Day 10) at New York State Supreme Court

I showed up early to get a bird’s eye view of the jury experience from a rare perspective: the juror’s. New York County jurors are summoned from Manhattan, Roosevelt Island, and one zip code in the Bronx.

At nine a.m. sharp, the senior jury clerk opened the metal door and let in roughly 200 freshly minted prospective jurors, including me. On a frigid day, it was no surprise to hear a fair amount of coughing, so navigating to a disease-free seat was like skiing a slalom run.

In addition to the jury summons, the courts now request another form asking anonymously for one’s demographics (gender, age, ethnicity) to help the court gauge who is showing up. The information is not available to the public – I asked.

Some improvements (summoning jurors for only two to three days rather than three minimum; summoning jurors less frequently – only once each six years) have been implemented. Other “improvements” to the jury experience – such as providing work space, computers, lots of charging stations, etc. are, sadly, good on paper but a myth, not reality.

Of the approximately 10 desk spaces available in a side room, several were broken and the power strips filled up quickly or didn’t work at all. Of those that worked, oddly, my phone, like me, regained power only weakly after quite some time.

There are four potential reporting areas for New York County jurors. Here, at 111 Centre Street – Room 1121, it is possible to be sent to the same or other buildings for voir dire and/or to serve if chosen. Oddly, while many courthouses have a cafeteria, or at least some sort of hallway refreshment service, the one thing that almost all prospective jurors need, coffee, is nowhere to be found in the building. One must walk – within the 15 minutes typically allotted for a step-out break – two or three blocks to the closest Starbucks or Dunkin’ Donuts and hope that there isn’t too long a line there or at building security upon returning.

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Lunch is typically from one to two p.m. On a slow day, the merciful clerk cut the group loose at 12:30 to return at 2:15 p.m.

The clerks were a bright spot -- a far cry from the old days, when grumpy old men barked orders impatiently at newcomers who dared to ask any questions. The newer ones couldn’t have been more accommodating, amusing and thoughtful. They treated folks with respect and were unexpectedly humorous (advising us to “rough up” the snack machine if it didn’t work and admonishing us not to conduct research to fulfill our “inner CSI fantasies.”)

The clerks did an excellent job pre-screening jurors, explaining all the reasons that duty could be postponed. They were clear that the commitment would not permit any conference calls for work or meeting any other outside obligations during the hours of nine to five. Anyone with doubts was told to reschedule.

People were allowed to keep their cell phones on vibrate, but only to take calls in the hallway. Once one heads to a courtroom for voir dire, phones must be shut off completely (but, at least, unlike in federal courts, one can keep them handy). As a result, the entire area was like Amtrak’s quiet car on the Acela. Do you know what a really quiet, uneventful situation does to people? Yep, you guessed it – it puts them to sleep.

It was a slow day for jury trials (the first day back from Christmas and New Year’s). Only two small panels (about 20 each) were called for voir dire, leaving the bulk remaining to burn time in the jury duty waiting area. Over time, it looked like an airport lounge after many flights have been cancelled, with prospective jurors deteriorating in composure, from alert and coiffed, to taking off their shoes, dropping formalities and falling asleep in progressively awkward horizontal positions of repose.

For me, the day was more fieldwork and fascinating than one with potential to serve as a juror. No lawyer, seeing that I am a jury consultant or learning of my experience working with law enforcement or in litigation, has ever put me on a jury since I joined the profession. My snacks and amusements ran out before the day was done, so despite my fascination with the inside-out experience, after a few hours I too was rendered a slouching, snoring mutt just like everyone else.

I have always had empathy for jurors and have advised lawyers to understand the limits of jurors’ attention spans. Sitting alongside jurors today was a great lesson: the reality is worse than I thought.

So, if you as a litigator do get a juror to pass go and serve on your jury, your hurdle just got higher. They may have been in a stupor for hours or days, just waiting, before getting to your courtroom, so you are starting from behind at getting them to be alert and care. The “general anesthesia” of waiting in the jury area must wear off before they can actually pay attention. And in New York County, it’s an unimaginable horror: they may not even have coffee nearby to help.

Other articles by A2L trial and jury consultants about jury consulting, persuading jurors, and entertaining a jury:

A2L Consulting Voir Dire Consultants Handbook

Tags: Jury Questionnaire, Trial Graphics, Trial Consultants, Litigation Graphics, Jury Consulting, Trial Consulting, Juries, Jury Consultants, Voir Dire, Jury Selection

I’m Right, Right? 5 Ways to Manage Juror Bias

Posted by Laurie Kuslansky on Tue, Jan 19, 2016 @ 09:04 AM


juror bias confirmation bias availability bias cognitive biasby Laurie R. Kuslansky, Ph.D.

Managing Director, Jury & Trial Consulting
A2L Consulting

The most powerful thing that shapes how jurors end up deciding a case is not you but the jurors. The baggage they bring to court, not what happened once they got there, holds the most sway. Assuming otherwise is like trying to change the political persuasion of a diehard party-line voter ... in the voting booth. The odds are better that their minds will change the evidence than that the evidence will change their minds.

These preconceptions and biases are resistant to change. Understanding two powerful cognitive phenomena relating to their biases can help you assess jurors more astutely and use your precious few strikes more effectively during voir dire. It can also help you tailor your trial strategy based on who is left on the jury.

Cognitive biases such as the following can systematically impact people’s decision-making. The pairing of the following two cognitive biases can be powerful determinants of jurors’ reactions to a lawsuit: confirmation bias and availability bias.

1. Confirmation bias is the tendency to search for, gather, interpret, focus on and remember information in a way that confirms one's preconceptions [PDF]. It results in people favoring information that confirms their pre-existing beliefs or biases. When they encounter an example supporting their existing belief, they place greater importance on the “evidence” supporting their belief, while discounting examples that do not support their belief, such as evidence that is not useful to proving their predetermined conclusion. In deliberations, this is likely to show up as posing questions leading toward the conclusion they already believe. If they happen to be the foreperson, or a leader, they may even paraphrase the actual verdict questions into wording that leads toward the result they believe and seek. This bias goes beyond simple selective attention; it involves actively filtering and using information, finding a conclusion first and seeking helpful evidence second. It’s like saying, “I know the answer. What’s the question?” Hence, their belief is the gate and you must get past “Go.” It trumps your evidence because information incongruent to their already-existing belief won’t get past the gateway to their thinking, memory, recall or decision-making. Hence, while you may be talking and showing, they aren’t listening or watching – unless you understand their belief first, incorporate it into your thinking, and then figure out how to make your case sync with it. Otherwise, your words fall on deaf ears.

The real 1-2 punch is the combination of confirmation bias with availability bias:

2. Availability bias or heuristic (mental shortcut) refers to the fact that vivid events affect decision making that relies on memory more than other events do. People tend to rely on the most immediate examples of an event and overestimate their probability since memory is biased toward events that are more unusual, more emotionally charged [PDF], more recent, and observed personally. The media reinforces this bias by reporting on more extreme events, enhancing their prominence (availability) in memory. As a result, people overestimate the likelihood of such events, such as carjackings or shark attacks.

Ask people outside the legal profession of any cases they know or remember, and invariably, the “McDonald’s Hot Coffee” case comes to mind and is the basis for believing that lawsuits are frivolous and damages are outrageous (although most people do not know the evidence or law in that case).

Transport this phenomenon into the courtroom, alongside confirmation bias. Imagine that certain evidence is presented in a dramatic, vivid fashion and is emotionally laden, on the backdrop of a mostly ho-hum trial, and is referred to by various witnesses. It will stand out from the rest, be remembered better, and likely have more traction than the rest. It is not just the phenomenon of cumulative evidence pointing to the same thing. It goes further – leading some to believe that the event is more common than it is.

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

Depending on which side of the courtroom you sit, this can be good or bad news. What to do about these biases?

  1. Understand them.

  2. Explore and consider what likely jurors may believe and reverse-engineer your trial strategy and story so they are consistent with this.

  3. Make sure to explore these as best as you can in voir dire – i.e., their pre-existing beliefs and experiences that may relate to your case or client adversely.

  4. Understand their agenda. It is more potent than yours.

  5. Consider how to make your key points or events more or less memorable, depending on your case goal. If possible, consider how to make them more vivid, unusual, repeated – or not. Perhaps you need to find a way to “bury” such a negative event by neutralizing it among others, doing your best to make it ordinary.

By understanding your triers of fact better, you can make extraordinary use of ordinary facts.

Other articles by the trial, litigation, and jury consultants at A2L Consulting discussing juror bias and the persuasion of jurors generally:

jury consulting trial consulting jury research

Tags: Trial Consultants, Jury Consulting, Mock Trial, Trial Consulting, Juries, Jury Consultants, Trial Preparation, Jury Selection

The Litigation and Economic Outlook for 2016

Posted by Ken Lopez on Thu, Jan 14, 2016 @ 01:42 PM

litigation economy biglaw litigation consultingby Ken Lopez
Founder/CEO
A2L Consulting

Last month the Federal Reserve raised interest rates for the first time in nine years. This action signals that the Fed believes we are entering a period of sustained and significant economic growth. Although the Great Recession officially ended in 2009, for a lot of people, this Fed action may mark the emotional end of it.

Economic conditions do feel considerably better than they did just a few years ago. Most people who want a job can get one now. However, most jobs pay less than they did 10 years ago. Furthermore, a staggering 40% of people over the age of 16 do not have a job. That's the lowest number since the Jimmy Carter years.

So, we can't quite say things are rosy, but we can't say things are terrible either. After all, in 2009, more than 700,000 jobs (including a lot of legal industry jobs) were being lost per month, and now, 250,000 jobs are being added to the economy in a typical month.

What does this all mean for those of us who work in the litigation industry? Will 2016 be a good year? The answer, I believe, is that while it will not be an incredible 2005-like year, it will probably be a little better than 2015, and that's not too bad. Let me support that belief with some additional details.

This is the fourth year I've written an economic forecast for the litigation industry. For 2013, I forecasted improving conditions for all of us, and we saw the economy grow by 2.3%. That was actually a significant improvement over the year before which saw many law firms not growing or even shrinking. For 2014 (also including a mid-year update) and 2015, my forecast was about the same, and so were the results - modest growth.

For law firms and their litigation departments and for litigation support firms like A2L Consulting, these past several years have been growth years. But will it continue? After all, recessions come about once every seven years, and the last recession occurred in 2009.

The last several years have seen only modest economic growth, and there is just not much evidence to suggest that will change. Fortunately, there are no obvious signs of a coming recession in the next year. Worker productivity and corporate profits are both very high, so we can expect the Fortune 500 to continue to perform well. That largely translates into good economic growth numbers, and leading economic indicators support that direction.

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If you've been reading this blog for some time, you know that my forecasts are not conjecture or gut instinct. Rather, they are largely based on what I have found to be the single most reliable economic forecasting tool available, the ECRI Weekly Leading Index.

This index is a composite leading indicator of overall economic conditions looking 6 to 9 months in the future. In my 20 years of running a litigation consulting firm, nothing has proven more reliable, and I use this tool to forecast growth and make decisions about capital investment, hiring, and expansion. In our business, when the ECRI Index is trending up, and the Fortune 500 is doing well, I have a very bullish outlook.

This is true because when the Fortune 500 performs well, so too does big-ticket litigation. When profits are up, Fortune 500 firms are more likely to initiate litigation, risk going to trial, be less likely to settle cases early, and often be willing to outspend their opponent as part of a litigation strategy. For law firms and companies like A2L who spend most of their time around multi-hundred-million-dollar litigation, this translates into another good year ahead. The leading indicators generally support this belief.

Screen_Shot_2016-01-14_at_8.43.29_AM.png

To quickly understand this ECRI chart (if it's not mid-January 2016, click to see this week's current version), know that the green line represents a forecast of economic growth about 8 months in the future from the date on the x-axis. When it goes up, that is good. The blue line represents what actually happened at a given point in time in the economy. The blue line shows us that economic growth has been declining since April, but it is not negative. The green line tells us that starting at a point of February 2015 + 8 months (roughly Oct 2015) through the middle of 2016, we can expect to see a return to higher rates of growth. That will be followed by a period of some sustained or slightly less than modest growth. 

All of this translates into a pretty good 2016 for most of us in litigation, and I hope to see you in court on the correct side of the "v."

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

litigation consulting graphics jury trial technology  

Tags: Economics, Litigation Consulting, Litigation Support, Midsize Law Firms

5 Ways to Maximize a Jury Summons Form to Pick a Jury

Posted by Laurie Kuslansky on Mon, Jan 11, 2016 @ 11:02 AM

jury selection form jury summons formby Laurie R. Kuslansky, Ph.D.
Managing Director, Jury & Trial Consulting
A2L Consulting

We often hear litigators bemoan how little they will learn during voir dire because the judge won’t let counsel ask any questions, won’t accept a jury questionnaire, and barely asks any questions beyond the court’s jury summons form.

As a result, they assume that the entire exercise of picking the jury will be a shot in the dark. We beg to differ. There is a great deal of information – on the lines of the jury summons form and between them – for those who know how to look for it. Here is a guide to help get more mileage out of a jury summons.

1. What’s in a written name?

Something as simple as a potential juror’s signature certifying their responses on the jury form can reveal a great deal, even to an untrained eye.

Does the person include “Jr.”, “III,” their middle initial? Do they include a title, degree or other information (John Doe, M.A. vs. Dr. John Doe vs. John B. Doe)? If so, this suggests potential attention to detail and/or self-importance.

See these famous signatures and notice which seem gregarious, withholding, disorganized, rigid, charming, flashy, disturbed, bold, immature, and other traits:

jury summons form signature

signatures jury selection interpretation jury consultant 

2. Detailed or not?

The simple questions and answers on a completed jury summons also expose a potential juror’s level of detail, accuracy, and whether or not they volunteer information, especially in response to open-ended questions. For example, someone with the same occupation or employer could answer:

Occupation: “Clerk” or “Administrative Assistant and Bookkeeping clerk.”

Employer: “N.Y.S.” or “N.Y. State Dept. of Motor Vehicles.”


3. Learning about their work teaches a great deal about a person.

Typically, a jury summons reveals a potential juror’s occupation, employment status, employer’s name, whether the employer pays during jury service and has more than 10 employees, and the juror’s regularly scheduled work days and hours.

This is a wealth of information, even if no additional questions are asked or answered. For example, whether the juror is or isn’t part of the workforce, the nature of their work, the size of their company, and the regularity of work times all tell a litigator the likelihood that the person can or cannot relate to certain aspects of their client and case, based on their own experience.

The facts that someone is disabled, unemployed or retired, works for a large corporation or small mom-and-pop shop, works the night shift or part-time, is in a white- or blue-collar occupation – all paint a vivid and relevant picture about a potential juror.


4. Do they use an email address or not? If so, which one?

Whether a person provides an email address or not is a useful piece of information. It separates the people who engage in a modern form of communication from those who are more “old school.” In addition, which email domain they use is a window into information as well!

The majority of Gmail and Hotmail/MSN users tend to be younger (under 34 years old) and the greatest proportion who love technology, while those over 34 tend to use Yahoo! and, to a lesser extent, AOL. Gmail users were more likely than any others to be early adopters of technology. Studying reliable sources for data on email users and usage can extend how much you can learn from just this one question.


5. Spelling counts!

To the extent that written responses are missing, not literate, misspelled or grammatically incorrect in any way, you can find clues to someone who will not do well with complex information, documentary evidence, spoken evidence, linguistic challenges, and details, whether due to being foreign born, less educated, less intelligent or challenged in some way.

Other A2L Consulting articles and resources related to jury selection, voir dire, mock trials and jury consulting:

A2L Consulting Voir Dire Consultants Handbook

Tags: Jury Questionnaire, Trial Consultants, Jury Consulting, Trial Consulting, Juries, Jury Consultants, Jury Selection, Psychology

Why Listening to Data - Not Gut - Pays Off at Jury Selection

Posted by Laurie Kuslansky on Tue, Jan 5, 2016 @ 02:09 PM

7351354.jpgby Dr. Laurie R. Kuslansky, Ph.D.
Managing Director, Jury & Trial Consulting
A2L Consulting

You’ll never put a housewife on your jury. You LOVE supervisors. You hate self-employed people.

The problem? You’re basing this on what? A painful past experience? Talking with someone from another case? Your last case like this? Your keen “sense” of who’s bad for your case from years of experience? That’s like using an X-ray from one patient to set the broken bone of another. It makes no sense. In fact, it is likely wrong. Someone could “feel” that everything is fine, while sitting right on top of the San Andreas Fault just before an earthquake.

The facts – not feelings and beliefs – are what matter. Often, the patterns of what appeals or turns off certain types of people are counterintuitive. Sometimes, people similar to the plaintiff support the plaintiff and sometimes, they want to one-up the plaintiff and reject the plaintiff altogether. How to tell? Only by gathering sufficient data for a statistically significant jury profile, based on the data – not by using one’s gut. The same people in one fact pattern applaud and reward the plaintiff, but in a similar one, perhaps in a different venue, or the same venue at a different time – will reject the plaintiff outright. There are various reasons for this outcome:

  1. Timing:  Did the community recently experience a hardship that makes locals weary of handouts? For example, after TARP and the bailouts following the 2008-2009 economic downturn, sympathy for corporate and financial-institution plaintiffs was running very low. Why should the jury bail out the plaintiff when no one is bailing them out as citizens and taxpayers?

  2. Venue: Every place has an identity and cultural values. Perhaps the residents of one area value the great outdoors and freedom, while another region puts a premium on tourism. Perhaps one area appreciates a long history of camaraderie with neighbors or applauds rugged individualism. Each of these values will affect the nature of deliberations, who will be seen as a leader, how dissenting views are handled, and reactions overall to case issues, lawyers and witnesses. Transporting a case from the Southern District of New York to the Eastern District of Texas is like taking it to another planet.

  3. Current events: Maybe the news just made issues in your case topical, so that what you are asking of the jury strikes a nerve. It didn’t before, but now it does.

  4. The case: While different cases may share certain similarities, each is different, whether due to the witnesses, a nuance in the facts, the prevailing law, the judge or other aspects. That is why you don’t just print out your last opening statement and fill in the blanks for the next one. One can love all of one’s children, but each child is different. The same holds true for lawsuits. Each arrives at its own time with its own strengths and weaknesses. No two are exactly the same, unless they are exactly the same. Changing one fact can change everything. Replacing the CEO in one case with another on the stand can make a big difference, and so on.

mock jury webinar a2l kuslansky

As a result, if you have the chance to do balanced presentations for both sides of a case in a mock trial, don’t pull your punches against your client and always have a reliable jury consultant to provide a data-based jury profile. Don’t throw out the X-ray that shows where the fractures are in your case and which jurors are least favorable to you.

At jury selection, a prospective juror may smile and give you a good feeling in court, misleading you to feel in your gut that they like you and thus are good for your client. Usually, that doesn’t work. What drives their verdict decisions often has nothing to do with smiling at you during voir dire. They may think you are attractive or funny or pleasant, thinking all the while as they nod along with you, “He’s so nice. Too bad I don’t believe his client for a minute.” “She’s funny, but I know her client is guilty.”

We have often found that “fans” are your worst enemies because they expect the most, or that people with related experience like to show off as jurors and put your client down, or that for a myriad of other reasons, “good” jurors are actually detrimental, but we didn’t learn this by taking chances. Instead, we learned this by performing reliable statistical tests based on well-designed jury research with representative samples of the jury pool to find out the truth. Sometimes it matched our collective “gut” instincts; other times, it was a surprise, but it was reliable. We applied what we learned from the traits of adverse jurors to the voir dire questions posed and the use of strikes.

If you insist on using your “gut,” at least request that the judge ask the questions needed to reveal if the prospective juror is in fact hostile to your client based on what you have learned from the data. After all, voir dire is not an exercise in making friends, but in revealing enemies, and better to know your enemies than to assume they are friends and be wrong.

Don’t abandon your gut. It has evolved through your professional experience, but ignoring solid data is at your own peril. If your approach backfires, will your client be as satisfied as you are that you went with your gut? It is less defensible, in our experience, and less strategic. There are many reasons one can lose a case. Don’t let your “gut” be one of them.

Other A2L Consulting articles and resources related to jury selection, voir dire, mock trials and jury consulting:

A2L Consulting Voir Dire Consultants Handbook  

 

Tags: Jury Questionnaire, Trial Consultants, Jury Consulting, Trial Consulting, Juries, Jury Consultants, Jury Selection

The Top 15 Free Litigation and Persuasion Articles of 2015

Posted by Ken Lopez on Thu, Dec 31, 2015 @ 12:31 PM

litigation consulting jury consultants litigation graphics dc new york california texas chicago bostonby Ken Lopez
Founder/CEO
A2L Consulting

Nearly 200,000 visits were made to A2L Consulting's Litigation Consulting Report Blog in 2015. With every page view, our readers express their opinion of the value of each article. Those that are the most valuable get the most page views. Today, I'm happy to share the very best articles of 2015 as chosen by our readers' reading habits.

This year, we posted 90 new articles, and that brings our total blog library to nearly 500 articles. If you are involved in litigation or have to persuade a skeptical audience of anything, these articles are an incredibly valuable resource that are available at absolutely no charge.

As we approach our five-year anniversary of this blog, I am very proud of our accomplishments. I'm excited to report that we now have 7,800 subscribers, some articles have been viewed more than 30,000 times, and the ABA named ours one of the top blogs in the legal industry. Not bad for our first five years.

In 2015, these 15 articles below stood out as the very top articles of 2015. Articles focused on PowerPoint, litigation graphics, persuasion, and voir dire continue to dominate our readers' interest.

Each of these articles can be easily tweeted or shared on Linkedin using the buttons below the article title. All are free to enjoy.

I wish you the very best 2016, and here is a link to claim a free subscription so that you get notified when these articles are published.


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

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14. A Surprising New Reason to Repeat Yourself at Trial

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13. Lawyer Delivers Excellent PowerPoint Presentation

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12. With So Few Trials, Where Do You Find Trial Experience Now?

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11. 5 Ways to Maximize Persuasion During Opening Statements - Part 1

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10. How to Apply Cialdini's 6 Principles of Persuasion in the Courtroom

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9. 9 Things In-House Counsel Say About Outside Litigation Counsel

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8. Repelling the Reptile Trial Strategy - Pt 4 - 7 Reasons the Tactic Still Works

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7. 10 Ways to Lose Voir Dire

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6. Repelling the Reptile Strategy - Part 3 - Understanding the Bad Science

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5. How Much Text on a PowerPoint Slide is Too Much?

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4. Repelling the Reptile Trial Strategy - Part 5 - 12 Ways to Kill the Reptile

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3. Repelling the Reptile Trial Strategy - Pt 2 - 10 Ways to Spot the Reptile

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2. Repelling the Reptile Trial Strategy as Defense Counsel - Part 1

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1. Why the Color of a Dress Matters to Litigators and Litigation Graphics

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a2l consulting top 75 articles of all time

Tags: Trial Graphics, Litigation Graphics, Demonstrative Evidence, Juries, Voir Dire, Psychology, PowerPoint, Visual Persuasion, Redundancy Effect, Opening, 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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