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The Litigation Consulting Report

Winning BEFORE Trial - Part 4 - Don't Overlook Visual Persuasion

Posted by Ryan Flax on Tue, Aug 25, 2015 @ 10:20 AM

 

visual-persuasion-storytelling-for-lawyersby Ryan H. Flax
Managing Director, Litigation Consulting & General Counsel
A2L Consulting

In our last post in this series, we explained why storytelling is the key to gaining and keeping the attention of any decision maker and thus the key to winning before trial.

How does one develop an effective story? Here are the rules of thumb.  

First, the simpler the story, the better, and the simpler the language, the better. Use metaphors involving sensory descriptions. Reduce the facts to a relatable story, and use “word pictures.”

The complete package of storytelling is not just an oral telling of a story; it also involves necessary visual persuasion.

Studies show that at least 60 percent of people learn primarily by seeing. They are visual learners. 

The majority of attorneys, however, are auditory and kinesthetic learners, which means that attorneys typically learn by hearing and/or experiencing something.  When you think about it, this makes sense because lawyers learn this way in law school lectures, and they continue to do so as practicing attorneys by experiencing litigation. However, most people do most of their “learning” watching television or surfing the Internet.

The problem is that most people usually feel more comfortable teaching the way that they prefer to learn. So most lawyers will teach and argue to the decision-makers and will attempt to persuade them by giving a lecture. That is not what most jurors want and is not suitable to most jurors’ style. While judges are even less likely to be visual learners than jurors, many still are visual or kinesthetic learners.

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You can’t just dump information on your jury or judge audience. You have to connect with them. You have to present information in an effective way. How do you bridge that communications gap? The way to do that is by using effective demonstrative exhibits. This way, you will be able to teach and argue, using your comfort zone, but the graphics will provide the judge or jurors with what they need to understand what you’re saying. This gives them a chance to agree with you. This effort should begin in your earliest filings and hearings.

Two researchers recently tested the effect of graphics on jurors. In two different studies, each with four groups of jurors, the researchers looked at the persuasiveness and impact of opening statements in an employment discrimination case. One group of jurors saw no graphics, one group saw graphics with the plaintiff’s opening statement, and one group saw graphics with both opening statements. This was done twice, making a total of eight groups and more than 500 jurors.

The results showed that not only did the use of graphics make an argument stronger, but it actually made jurors feel that the attorney using them was more competent, more credible, and probably more likable. The jurors retained the information better – and the result was better verdicts for the graphics users. When the plaintiff used demonstrative graphics, for example, the defendant was seen as more liable for damages. When the defendant used graphics, the defendant was considered less liable.

So what is the lesson of this study? It is that demonstrative graphics are essentially a mandatory component of any litigation - both during trial and before trial . If you’re not using them and your opposing counsel is using them, you’re in a heap of trouble.

In our next post, we will look at what kind of graphics work – and what kind of graphics don’t work.   Click here to be notified of subsequent articles.

Other articles and resources related to trial preparation, storytelling for lawyers and persuasion from A2L Consulting:

A2L Consulting Voir Dire Consultants Handbook

Tags: Trial Graphics, Litigation Graphics, Trial Presentation, Demonstrative Evidence, Advocacy Graphics, Storytelling, Persuasive Graphics, Visual Persuasion

The Best Litigators Love Sales, Love Storytelling and Persuasion

Posted by Alex Brown on Thu, Aug 20, 2015 @ 11:44 AM

 

persuasion-is-selling-courtroom-litigation-lawyerby Alex Brown
Director, Operations
A2L Consulting

I hate selling.

How many times do we hear this in our daily lives? Many of us have chosen our careers at least in part to avoid having to sell. I bet that many law students thought they’d never again need to be in a position to sell something. Then they became litigators.

Whether you believe it or not, as a litigator your whole essence is to sell. But no: You believe that selling is manipulative, annoying, and even boring. Think of Steve Jobs. Whenever Jobs stood up at an internal meeting, interview, or software release event, he was passionate and had a story to tell. He believed that to be truly successful, you must be able to sell. Selling – one might simply call it persuasion -- is not just for salespeople and their prospects. Heck, he started the idea of selling while not selling as seen in his innovative ad from 1997, “The Crazy Ones.” Here is the rare unaired version read by him.

As a litigator, at some point you will find yourself in the position of having to persuade someone. You may try to persuade a judge to agree with your logic and reasoning, or perhaps you want to persuade a partner to take on your brilliant idea. Often the most effective persuaders are your kids. Somehow they come by it naturally while you, the adult, have to work hard to find the persuasive path to success.

One litigator I was talking with gave me a very enlightening answer when I asked why he got into this career. His answer was direct and to the point, “Why? Winning, of course. The fierce battle, the fact that litigation is intensely complicated, and there is a winner and a loser.” Every successful litigator has this type of drive.

A few years ago, Inc. magazine came up with a list of things that the most persuasive people consistently do:

1. They Are Purposeful

To truly become a skilled persuader, you need to understand your power and to use it sparingly and knowingly. Not every conversation is an opportunity to convince a person. The more aggressive you are, the more you will put most people on the defensive.  Pick your battles.

2. They Listen ... and Listen ... Then Listen Some More

People who know how to persuade know that just being able to articulate your position in a convincing way is only half the equation. Truly persuasive people are actively listening when in “persuasion” mode. Listen to see how receptive the other person is to your point of view. Listen for specific objections that  need to be resolved. Listen for moments of agreement to capitalize on consensus. You already know what you are saying. You can't persuade effectively if you don't know the other side of the argument.

3. They Create a Connection

It's easy to dismiss people who are trying to persuade you if you have no emotional stake in them or their argument. Look for common ground to help establish emotional bonds and shared objectives, show empathy for their position, manage your impatience and wait for them to give you permission to advocate your approach.

4. They Acknowledge Credibility

When you are persuading people, reinforce their credibility on facts and opinions rather than dismissing them outright. Then they'll be more likely to pay you equal respect in the exchange and be more open to the merits of your opposing view.

5. They Offer Satisfaction

Find the easiest path to yes. Give ground where you can and hold your ground only where it matters.

6. They Know When to Shut Up

The great sales trainer Tom Hopkins still teaches the decades-old techniques of his mentor, J. Douglas Edwards. His most important lesson is, “Whenever you ask a closing question, shut up. The first person who speaks, loses.”

7. They Know When to Back Away

Great persuaders know it’s the story and the journey. They love storytelling and persuasion. They give the other person the space and time to carefully consider their position. Allow the person to come to the same conclusion, show the person the path and the answer, but let the person find it on his or her own time. Nothing is more powerful than for someone to persuade himself or herself. That almost never occurs when the other person is present.

Other articles from A2L Consulting about persuasion, jury psychology and increasing your effectiveness as a litigator:

  opening statements toolkit ebook download a2l  

 

Tags: Juries, Storytelling, Persuasive Graphics, Visual Persuasion, Persuasion

Social Proof and Jurors

Posted by Alex Brown on Tue, Aug 18, 2015 @ 12:15 PM

 

social-proof-jurors-persuasionby Alex Brown
Director, Operations
A2L Consulting

The well-known sociological principle of “social proof” has many definitions, but the most accepted one is that in times of uncertainty, people naturally do things that they see others doing. And the percentage of acceptance rises when it involves people you respect, know, or are in some way influenced by.

Multiple experiments have been done on this topic, but an example happened to me this weekend.

I was at a Washington Nationals game with my family, and we were sitting a few rows back of the dugout. It was the first major league game for both my girls and my wife, so for me it was fun to watch their excitement. We got there in the second inning, and as they were settling in I am telling them this was Stephen Strasburg’s first game back from injury. Little did I know that he would strike out 12 and get three hits himself in eight innings.

Not soon after we sat down, catcher Wilson Ramos smashed a hit into center field for two runs, but the “social proof” example happened just before that. If you have been to a game, you will know that when Ramos comes up to the plate, the crowd starts chanting “WILSON” to drums and music. My children and wife did not know what was happening and looked to me as I chanted with all the others. They picked up and joined right in. This happened all night. With no knowledge of the game, they joined in chants, raised the volume when requested, and booed at the appropriate times.

Now of course, jurors cannot cheer and boo as a case is being debated, but many times a juror will find himself or herself in a “no man’s land” and not know what is being described, discussed or presented. It is in these times that they look to other jurors or counsel for clarification. Thus, this is the best time to be persuasive.

Nicholas Christakis and James Fowler released a book in 2009 called “Connected: The Surprising Power of our Social Networks and How they Shape our Lives.” They expounded on the idea that Aristotle put forth millennia ago:  Humans are Social Animals. Our happiness, well-being, safety, and success are dependent on those with whom we are surrounded. A jury is thrown together by chance, but they also develop a rapport. As a litigator, you want to identify who will become the influencer with a jury and make sure you are in turn the one who influences the influencer.

Other articles from A2L Consulting related to jury psychology, persuasion and influencing juries:

Maximize Persuasion During Opening Statements

Tags: Juries, Psychology, Persuasion

Winning BEFORE Trial - Part 3 - Storytelling for Lawyers

Posted by Ryan Flax on Wed, Aug 12, 2015 @ 11:17 AM

 

storytelling-for-lawyers-1by Ryan H. Flax
Managing Director, Litigation Consulting and General Counsel
A2L Consulting

This may seem trite to a lot of lawyers, but storytelling is essential to winning trials – and that goes for mediations, arbitrations, and hearings, literally anywhere you must connect with an audience. That audience can be a jury, a judge or a mediator. Most lawyers leave law school with an understanding that to win a case, we need to identify the intersection of law and facts. We are never taught, however, about this very important final issue – the fact that we are always dealing with human beings and that the need to persuade people is paramount.

Whether it’s your story or not, a story will inevitably emerge during a trial. Mock trials and focus groups have repeatedly shown that when a jury has two camps representing the two sides of the case, each camp will have a fairly consistent story that it endorses and clings to. Consistently, we find that those stories are short, that they fit with “common sense,” that they borrow some of the salient facts from the trial, and that they are complete tales, with a beginning, a middle and an end – including what happened and what should have happened. They take only a few moments to tell, and they use plain language. Once embedded in a juror’s mind, these stories are difficult, if not impossible, to change.

Where do these stories come from? The answer is that people automatically make stories out of virtually everything they see, in order to gain a sense of control – even if it’s a false sense. Most people can’t resist making assumptions, drawing inferences, and imposing upon the facts their notions of what the facts “mean” rather than simply accepting information as is. Most of what people discuss with others is stories and gossip, not random facts.

Scientists at Princeton University looked at brain scans (fMRI) of storytellers and listeners to the stories. What they found was that the most active areas of the brains of the speakers and listeners matched up, i.e. they were in sync with each other. This synchronized activity was found in the areas of the brain that were relevant to social activity, not the areas that drive memory or the prefrontal cortex that is associated with cognitive processing. The stronger the reported connection between speakers and listeners, the more neural synchronicity was observed in the test subjects.

The extent of brain synchronicity predicted the success of the communication in this study. So connecting with your audience, in a literal sense, makes you more persuasive.

Other research using brain scans reveals other important information about effective storytelling and will help you understand better the art of persuasion. This research shows that our brains react differently based on the types of words that we hear. Information, or evidence, that was presented to the test subjects without using sensory language stimulates only the brain’s language areas (Broca’s and Wernicke’s areas), and is interpreted by jurors simply as noise. With this type of language, the task for the listener is to simply remember words and more words. That is not enjoyable and not interesting for the audience, which makes keeping them engaged and persuading them much more difficult.

By incorporating metaphors and sensory language, you engage your audience’s brain. By using sensory words such as “lavender” or “cinnamon,” or movement words like “running” or “swimming,” you activate the part of the listener’s brain that would be active were they actually having that experience. You can thus engage an audience – such as a judge, jury or mediator – by inducing their brains to operate more as a participant than as an observer.

What else do stories do for jurors? They interrupt daydreaming and help jurors organize information. They make the intake of information enjoyable. Jurors, and even judges, can get bored otherwise and can daydream during trial when they should remain engaged.

In our next post, we will look at the rules of thumb for developing an effective trial story.  Click here to be notified of subsequent articles.

Other articles and resources related to trial preparation, storytelling for lawyers and persuasion from A2L Consulting:

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

Tags: Litigation Consulting, Juries, Science, Psychology, Storytelling, Judges, Persuasion

Winning BEFORE Trial - Part 2 - Parallel Trial Preparation Tactics

Posted by Ryan Flax on Mon, Aug 10, 2015 @ 03:01 PM

 

trial-presentation-trial-preparation-trial-prepby Ryan H. Flax
Managing Director, Litigation Consulting & General Counsel
A2L Consulting

In our last post, we discussed why it is important to win a case before trial and we went over some excellent ways of doing so.

 In a patent case, for example, let’s say we could end litigation by winning a landslide victory in claim construction at a Markman hearing. Granted, this doesn’t necessarily cut off all the post-trial costs because the U.S. Court of Appeals for the Federal Circuit will ordinarily be involved. But a claim construction that forecloses or ensures infringement or invalidity is a very powerful result.

Similarly, in a criminal case, a convincing pre-indictment meeting with assistant U.S. attorneys, or similar state prosecutors, and their staffs can save a good amount of time and money.

 But what if the opportunity to argue a case before trial isn’t necessarily going to end the litigation? Is it still worthwhile to follow best practices early on in that case? Well, if you and your client are committed to spending hundreds of thousands or even millions of dollars taking a case to trial, shouldn’t all that expense and effort be worth it in the end? Depositions, settlement negotiations, mock jury exercises, and similar proceedings provide you with real opportunities to focus your case and sharpen the way in which you will present it to a jury or judge so as to maximize your persuasiveness. This early work will put you in a position to win at trial and on appeal.

But how do we do this? What is meant by “best practices”?

The best practices in litigation are based on the idea that the road to success at trial is forked. You need to approach litigation in a specific way. Many attorneys fail to develop the necessary two-track strategy.

Litigators know that during a trial, a jury tends to find relatively few facts to be interesting and important. They usually decide the case on the basis of those few facts. Jurors are always looking for the “smoking gun,” and attorneys need to recognize this and to build their case around those key facts.

What begins at the early stages of case preparation as a single track of general case-building now needs to change to a two-track strategy directed both toward a persuasive presentation and to the formation of a solid record. These two tracks clearly do not have the same path or destination, but both are essential to winning. Often in litigation, too little time is spent on the track of developing a sympathetic story and theme that will be presented to the jury. Instead, litigation teams tend to focus very heavily on the minutiae of a case until the last minute before trial and not enough time putting their story together in a way that will be persuasive to jurors.

In our next post, we will discuss why storytelling is so crucial to winning at trial. Click here to be notified of subsequent articles.

Additional articles and resources focused on pre-trial strategy and trial preparation from A2L Consulting:

litigation support trial toolkit consultants a2l consulting

Tags: Markman Hearings, Trial Presentation, Litigation Management, Juries, Trial Preparation, Storytelling, White Collar, Federal Circuit

Winning BEFORE Trial - Part 1 - Consider Litigation Costs and Opportunities

Posted by Ryan Flax on Wed, Aug 5, 2015 @ 01:59 PM

 

pre-trial-graphics-litigation-consultantsby Ryan H. Flax
Managing Director, Litigation Consulting and General Counsel
A2L Consulting

High-stakes litigation is hugely expensive these days. But what if there were a means of reducing litigation costs in a way that helps both the trial team and the client and doesn’t sacrifice the quality of legal representation? That would make in-house counsel very happy, since an important part of their job is to budget and control litigation costs. There are a number of ways to do this, such as using alternative fee arrangements, streamlining litigation teams and bringing e-discovery in house.

But what about a more radical step – trying to win your case well before trial? That would indeed be a cost saver and would lead to an excellent result.

Let’s first look at how expensive this type of litigation can be. A piece of employment litigation that is in the top 25 percent of costs (but not in the top one percent or anything like that), costs close to $1 million by the end of discovery – and that’s before closing arguments. And the costs are mostly borne by the defendant.

Or consider a typical patent infringement case – say, one that involves possible damages of $1 million to $10 million. This kind of case usually ends up costing more than twice as much as that employment case. By the time discovery is over in the patent case, you’re well past the $1 million mark in costs. Other types of cases – antitrust, environmental, contract cases and the like – are not quite as expensive, but costs add up there too.

how-much-does-litigation-cost

But it doesn’t have to work out that way. There are quite a few ways of winning a case without a trial.

First, we all know about dispositive motions – motions to dismiss, summary judgment motions, motions related to venue and jurisdiction, and the like. These can end a case before trial, but after the filing of a brief and usually an oral argument.

Second, a Markman hearing is a special type of proceeding in a patent case in which the court hears argument (and sometimes some expert testimony) and decides what the patented invention actually is by interpreting the patent claims and resolving disputes over claim language.

Third, a pre-indictment meeting is one that takes place when your client is under investigation by the government and you would reasonably expect charges to be presented against it. This usually involves an attempt by counsel to persuade the government to drop a case before it begins.

Finally, we all know about mediation, arbitration and settlement.

All of these are out-of-court occasions in which lawyers have a chance to argue their clients’ cases before trial. They can happen in lieu of a trial or just before a possible trial.

What do all of these have in common? They are all opportunities, before trial, to begin winning your case by using the best practices of case framing and persuasion.  If you can raise your game in these situations, if you can persuade the court or opposing counsel or the opposing party or a mediator or the opposition’s star witness that you’re a winner, how much better off would you be?

In our next post, we will discuss more about these best practices and how they can help you win. To be notified when subsequent articles are published, click here.

Additional articles and resources focused on pre-trial strategy and trial preparation from A2L Consulting:

* Chart data is based on 2013 Court Statistics Project Caseload Highlights, RAND Institute for Civil Justice “Where the Money Goes, Understanding Litigant Expenditures for Producing Electronic Discovery” (2012) and 2013 AIPLA data.

pretrial trial graphics motions briefs hearings

Tags: Economics, Markman Hearings, Arbitration/Mediation, Trial Preparation, Pricing, White Collar, Settlement, Briefs

Repelling the Reptile Trial Strategy as Defense Counsel - Part 5 - 12 Ways to Kill the Reptile

Posted by Ken Lopez on Tue, Aug 4, 2015 @ 01:40 PM

 

reptile-trial-strategy-defense-win-beat-overcome-jury-consultantsby Ken Lopez
Founder/CEO
A2L Consulting

This is the fifth and final installment in a series of articles focused on how defense counsel can overcome the increasingly popular Reptile trial strategy. In parts one through four, I offered an introduction to the strategy, I shared ten ways to recognize when the strategy is being used against you, I explained why the strategy does not actually work in the way that its authors describe, and I explained that despite the bad science, the Reptile trial strategy still works.

In this post, I summarize how to overcome the strategy in both the pretrial and trial phases of a case. I rely heavily on the work of Jill Bechtold of Marks Gray and Steve Quattlebaum of Quattlebaum, Grooms & Tull. They were my co-presenters at a recent defense attorney-focused conference devoted to repelling the Reptile strategy.

One theme that clearly emerges from the 12 points below is that being a good defense lawyer is more important than ever. No longer is it enough simply to outlast your opponent. No longer is it enough to come up with a great theme and narrative just before trial. Because the Reptile strategy often begins with the complaint, a defense against it must start shortly thereafter -- or you will pay the price later.

  1. Spot the Reptile: It can appear as late as closing arguments, but more often than not, plaintiffs counsel will introduce the key themes as early as the complaint. See, 10 Ways to Spot the Reptile in Action.

  2. Read the Book: I hate to say this, but you probably should read it. It is Reptile: The 2009 Manual of the Plaintiff’s Revolution by David Ball and Don Keenan.

  3. Spot your Opponent on the Reptile Hall of Famehttp://www.reptilekeenanball.com/reptile-allstars/ Plaintiffs counsel with a record of suggest using the Reptile strategy are listed here. Is one your opponent?

  4. Storytelling Will Prevail: As you go through your case intake process, begin looking for the elements and start developing your own narrative. If you build the right narrative, you stand a higher chance of winning your case at trial. See, The Litigator's Guide to Storytelling for Persuasion 

  5. Understand Your Opponent's Narrative: Plaintiffs lawyers are often successful because they focus on narrative from the very beginning. You need to uncover that narrative and be ready to replace it with your own.

  6. Articulate Your Narrative from Day One. The sooner you build your own narrative, the better off you will be. Developing a narrative long before trial allows for testing of that narrative and it allows for it to be used throughout the discovery process. Keeping it a secret until trial is not a great tactic and is often an excuse for procrastination. See 25 Things In-House Counsel Should Insist Outside Litigation Counsel Do

  7. Prepare Your Witnesses: They will be badgered. Teach them how not to give in and to think of each answer they give as a potential video clip. Give them standard phrases that will play well – such as: I don't understand, it depends, or I don't have enough information. Use witness preparation techniques and consider outsourcing witness preparation to firms that understand the Reptile theory. See Witness Preparation: Hit or Myth?

  8. Use Motions in Limine to keep out evidence that is irrelevant and inflammatory. Also, use pre-trial motions to introduce and undermine the Reptile strategy.

  9. Object at Depositions: Use objections based on form, relevance, lack of foundation, mischaracterization of law, or seeking legal conclusions. Don't rely on standing objections as this will not be effective in fending off damaging testimony, nor do they help minimize the impact of video testimony.

  10. Help your Client Understand the Reptile Trial Strategy: Your client should understand the nature of the actual duties that are owed to the plaintiff and should be able to distinguish between those and the made-up community standards that are characteristic of the Reptile trial strategy. See The Top 14 Testimony Tips for Litigators and Expert Witnesses

  11. Test Plaintiffs’ Case in a Mock Trial, Using Reptile Techniques. See 12 Astute Tips for Meaningful Mock Trials

  12. Watch for Golden Rule Violations at Trial. The Reptile strategy gets close to crossing this line, and a less sophisticated plaintiffs lawyer may very well cross it --potentially resulting in a new trial.

Using these and other techniques, I am confident that a well-prepared defense attorney will be able to defeat the Reptile theory.

Other articles and resources related to Reptile trial strategy, jury persuasion and jury consulting from A2L Consulting:

pretrial trial graphics motions briefs hearings

 

 

 

Tags: Jury Consulting, Mock Trial, Trial Consulting, Jury Consultants, Storytelling, Expert Witness, Depositions, Witness Preparation, Reptile Trial Strategy

[New & Free E-Book] The Litigation Support Trial Toolkit 3rd Edition

Posted by Ken Lopez on Fri, Jul 24, 2015 @ 12:08 PM

 

litigation-support-trial-toolkit-3rd-cta-tallby Ken Lopez
Founder/CEO
A2L Consulting

At A2L Consulting, we have just published our latest e-book – the third edition of the Litigation Support Professional's Trial Toolkit. It's 262 pages long, contains 88 articles and is completely complimentary to download.

This new e-book will be indispensable to any litigator or litigation support professional who wants a summary of the latest thinking in the fields of trial technology, trial graphics, and litigation support.

In this book, we try to demystify the craft of the trial technician, with nitty-gritty discussions of how trial consulting firms do what they do, especially on a tight budget. We present ideas for seamless trial presentations that can be built, if not on a shoestring, on a budget far smaller than one might anticipate. Since the art of trial presentation is often best described as a story-telling venture, we give you the latest on the best story-telling techniques, including 16 trial presentation tips from classic Hollywood movies. We also provide 13 reasons why it’s not a good idea to do your trial preparation at the last minute, 12 great ways to combine oral and visual presentations, and five questions you should always ask in voir dire.

The e-book is also a guide to the newest and most interesting software and the best presentation techniques. We show how e-briefs are used in courtrooms every day, how the iPad-friendly courtroom works, the best uses of PowerPoint, and Prezi, which does what PowerPoint does but differently and often more effectively. We even go into the best ways to use basic technology like wall charts and whiteboards, and why old-fashioned techniques such as bullet points don’t work. (We also show you the techniques that do work.)

We tell you about the six trial presentation errors that lawyers can easily avoid, seven ways to draft a better opening statement (and why the opening statement is the most important part of the case), and how to be prepared at all times for possible failure of your systems.

The e-book also explains, based on the latest psychological and sociological studies, why litigation graphics are crucial in the modern courtroom, why many jurors obtain their information from visuals rather than from written documents, and even why varying the font that one uses can help influence jurors. Courtroom persuasion is both an art and a science, and the successful trial technician can benefit from the latest research findings on persuasion.

Along those lines, we try to tear down some myths about courtroom presentation – like the idea that jurors shun presentations that are too slick, that jurors have an instinctive dislike for technology, that jurors usually prefer a “David” to a “Goliath” client in the courtroom, and that Hollywood movies about trials have nothing to teach the real-life litigator.

Finally, our e-book tackles some of the difficult problems that can occur in the preparation process itself. How do you overcome internal disagreements? Who calls the shots – the trial technician, the lawyer, or the ultimate client? How is anxiety subtly conveyed from one trial team member to another, and how does the cycle of anxiety stop?

No litigation support professional or high-stakes litigator can afford to be without this indispensable free book.

litigation support trial toolkit consultants a2l consulting  

 

Tags: Trial Graphics, Trial Technicians, Litigation Graphics, E-Book, Demonstrative Evidence, Trial Technology, Litigation Support, Trial Preparation

10 Types of Value Added by Litigation Graphics Consultants

Posted by Ken Lopez on Mon, Jul 20, 2015 @ 03:10 PM

 

value-added-litigation-graphics-consultants-trialby Ken Lopez
Founder/CEO
A2L Consulting

Over breakfast the other day, a partner in a major law firm was explaining to me that it can be challenging to explain the added value that litigation graphics consultants can provide in a case, especially given the challenging budget environment in which litigators operate today.  He was surprised when I said that the key here is not the fact that graphics consultants know how to prepare PowerPoints.

After all, the average law firm associate can prepare a pretty decent PowerPoint presentation. The problem is that perhaps one in 500 PowerPoints prepared by a smart and well-informed law firm associate does more good than harm. What litigation consultants can do for a trial team is more complex, more persuasive and more sophisticated.

So here are ten ways in which a litigation graphics consultant would add value where a litigation associate might cause harm or simply might not provide benefit.

1. Supporting the development of a narrative. We've written about this extensively, and great graphics consultants like those at our firm have enormous value here. One of the essences of trial presentation is telling a narrative. See, $300 Million of Litigation Consulting and Storytelling Validation.

2. Helping separate the theme from the narrative. Many of us who took trial advocacy were taught to start out our openings with "this is a case about . . . ." After that, we would usually state our theme. What many lawyers were not taught was how to develop a persuasive narrative. A few rare litigation graphics consultants can operate at the 1st chair level and offer this kind of support. See, 14 Differences Between a Theme and a Story in Litigation and 21 Reasons a Litigator Is Your Best Litigation Graphics Consultant.

3. Helping combat the now-fashionable “Reptile” trial strategy tactics that plaintiffs lawyers use. We have discussed this in several recent blog posts. See, Repelling the Reptile Trial Strategy as Defense Counsel.

4. Making sure that you don’t invoke the split attention or redundancy effect. This is the error of presenting information orally and in writing at the same time. See, Why Reading Your Litigation PowerPoint Slides Hurts Jurors.

5. Offering that fresh pair of eyes. See, 12 Reasons Litigation Graphics are More Complicated Than You Think.

6. Creating a high-end PowerPoint that makes a positive difference. See, 16 PowerPoint Litigation Graphics You Won't Believe Are PowerPoint.

7. Freeing up litigation counsel to be lawyers. My mentor likes to say that we should only do what we are best at. In the run-up to a trial or hearing, there is always more legal work that needs to be done. The role of litigators should be to review draft presentations and provide feedback to the consultants who have actually developed the presentation. See, Trial Graphics Dilemma: Why Can't I Make My Own Slides? (Says Lawyer).

8. Litigation consultants can use nearly unknown techniques for persuasion like surprise, chart tricks, statistical persuasion or methods to overcome cognitive bias

9. Asking tough questions. See, How I Used Litigation Graphics as a Litigator and How You Could Too.

10. Bringing to the fore their extensive trial experience. Top trial consultants such as those on our team may go to trial 50 to 100 times per year. By working with them, trial lawyers gain the benefit of hearing about the best practices of other trial teams. See, With So Few Trials, Where Do You Find Trial Experience Now?

Other articles and resources on A2L Consulting's site related to litigation graphics, storytelling for persuasion, trial graphics and demonstrative evidence:


pretrial trial graphics motions briefs hearings

Tags: Trial Graphics, Litigation Graphics, Trial Presentation, Courtroom Presentations, Litigation Consulting, Trial Consulting, Demonstrative Evidence, PowerPoint

Repelling the Reptile Trial Strategy as Defense Counsel - Part 4 - 7 Reasons the Tactic Still Works

Posted by Ken Lopez on Mon, Jul 13, 2015 @ 04:14 PM

 

repitile-litigation-tactics-strategyby Ken Lopez
Founder/CEO
A2L Consulting

In my previous three posts concerning the “Reptile” trial strategy, I provided an introduction to the strategy, I discussed how to spot it, and I discussed why the science that its authors claim supports the strategy is just plain wrong.

As I have mentioned in previous articles, this trial strategy has been largely absent from the types of cases that we work on at A2L. However, with high-stakes pattern litigation on the rise, and with the increase in sophistication on the plaintiffs side in big-ticket litigation, the “Reptile” is something that medium and large law firm defense firms must be able to spot and to cope with.

In this article, I will focus on the critical fact that, despite the bad science that its authors employ, the Reptile trial strategy still works. In other words, the “Reptile” advocates are tapping into authentic ways of persuading jurors. There are at least seven reasons for that.

  1. The “Reptile” advocates suggest using a strong theme that is constantly reinforced throughout the case from complaint to closing. That's just good lawyering, and a majority of lawyers still don't do this. See 14 Differences Between a Theme and a Story in Litigation.

  2. Similarly, they encourage focusing on a consistent strategy from the very beginning of the case. Few defense counsel do this throughout a case, and again, following this practice is just good lawyering. See Planning For Courtroom Persuasion? Use a Two-Track Trial Strategy.

  3. They encourage the use of narrative as a persuasion strategy. We've written about that many times, and they are right to encourage it, because it works very effectively. Our proposed narratives are based on real psychological science and theirs are not, but the use of narrative is a very good idea. See $300 Million of Litigation Consulting and Storytelling Validation.

  4. Plaintiffs are going to score some hits in video depositions because the strategy is just so relentless. The authors advocate a fanatical pursuit of admissions from the defendants. If one doesn’t know how to stop the badgering, it is easy to slip in a deposition, and it sometimes only takes one slip to win a case. See The Top 14 Testimony Tips for Litigators and Expert Witnesses.

  5. By redirecting the focus away from the plaintiff and on the defendants and the injury they might have caused, plaintiffs take the focus off the plaintiffs regardless of their contributory behavior. Again, this can be very effective. See Storytelling Proven to be Scientifically More Persuasive.

  6. Emotional appeals work. As a rule, whether you are buying a new suit, watching your kids tour a college campus or sitting in a jury box, people buy on emotion and justify on fact. The reptile trial strategy is a good method of making an emotional appeal. See Are You Smarter Than a Soap Opera Writer?

  7. Finally, the book reads like a manual -- and even a bad lawyer can follow a manual. Over and over again, good tactics are suggested, wrapped up in a palatable vocabulary. The strategy works because it's easy to follow, easy to remember and easy to implement. See The Top 5 Qualities of a Good Lawyer.

In my next post, I will discuss how to overcome the strategy as a defense lawyer. If you'd like to be notified of subsequent articles, please click here.

Other articles and resources related to trial strategy, jury persuasion and jury consulting from A2L Consulting:

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Tags: Jury Consulting, Juries, Trial Preparation, Storytelling, Depositions, Reptile Trial Strategy

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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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