The Litigation Consulting Report

[New and Free E-Book] The In-House Counsel Litigation Toolkit

Posted by Ken Lopez on Fri, Dec 19, 2014 @ 10:28 AM

 

in-house-counsel-litigation-toolkit-cta-smallby Ken Lopez
Founder/CEO
A2L Consulting

In recent years, I have seen in-house counsel become increasingly involved in litigation. Gone are the days when in-house would simply hire the top name litigator and hope for the best.

Today, in-house counsel help determine trial strategy, they closely manage budget, they assist in choosing litigation support consultants, and they sometimes take a leadership role on the trial team. However, since trials are relatively rare and not many in-house counsel are trial lawyers themselves, how are in-house counsel supposed to effectively contribute in a litigation environment beyond simply managing the purse-strings?

Enter this new and free book, The In-House Counsel Litigation Toolkit, a first of its kind for A2L Consulting. We have published more than a dozen wildly popular books over the last several years that have been collectively downloaded more than 100,000 times. However, this new 172-page book is the first A2L book designed for in-house counsel and their outside counsel. It contains 50 hand-curated articles focused on litigation and the role of modern in-house counsel.

Inside, you will find articles like:

  • 25 Things In-House Counsel Should Insist Outside Litigation Counsel Do
  • 5 Signs of a Dysfunctional Trial Team and What To Do About It
  • Portray Your Client as a Hero in 17 Easy Storytelling Steps
  • 17 Tips for a Great Preferred Vendor Program
  • 12 Alternative Fee Arrangements We Use and You Could Too
  • 7 Reasons In-House Should Want a Mock Trial
  • 9 Things Outside Counsel Say About In-House Counsel
  • In-House Hiring Methods for Outside Litigation Counsel Are Surprising
  • and 43 other valuable articles.

In the litigation consulting industry, A2L Consulting is the top thought leading and quality leading organization. We have been consistently voted best jury consultants and best litigation graphics consultants, and our blog has been recognized by the ABA as one of the industry's very best. The authors of the articles in this book have collectively consulted on many thousands of cases over the last several decades. The articles contained here are one-of-a-kind expert-authored articles and have never been assembled together into a book.

I hope that you find the information in this book valuable, and I would welcome your feedback. You may download the complimentary book by clicking here or clicking the download image below. Enjoy and here's to a great 2015.

Tags: Litigation Graphics, Trial Presentation, Jury Consulting, Trial Consulting, E-Book, Trial Technology, Trial Preparation, In-House Counsel, Alternative Fee Arrangements

Why You Did Not Use a Mock Trial [One-Question Survey]

Posted by Ken Lopez on Wed, Dec 17, 2014 @ 01:35 PM

 

reasons-did-not-conduct-a-mock-trialby Ken Lopez
Founder/CEO
A2L Consulting

Most would agree that mock trials are not conducted as often as they should be. After all, why wouldn't you want to learn what kinds of jurors you will see on your jury, understand what works about your case and what doesn't, understand what works about your opponent's case and what doesn't, gauge your settlement position, provide outside counsel a chance to practice and gain many more benefits all for a tiny fraction of the cost of what is often at stake?

Is a mock trial mandatory? Of course not—and neither is having someone else cut your hair. Both are entirely optional expenses, but both are very good ideas.

So why might a mock trial not be conducted? In my 20 years of observing trials and trial preparation, I have heard many good reasons and many bad reasons. Sometimes the rationale for not conducting a mock originates in the in-house department, and sometimes it comes from outside counsel. However, there are plenty of situations where both inside and outside counsel knew they would benefit from a mock and both, for one reason or another, chose not to conduct one. For most, the question comes down to budget. A2L offers mock exercise solutions starting from as low as $10,000, however four-panel multi-day mock trials always cost six-figures but pale in cost in comparison to the potential upside or downside of the case.

Rather than speculate why people don't conduct mock trials, I thought I would ask. Below is a one question survey that asks, "For a recent case where a mock trial would have helped but no mock trial was conducted, what was the biggest reason you didn't conduct one?" 

Create your free online surveys with SurveyMonkey , the world's leading questionnaire tool.

 

Other information and resources about mock trials, jury consulting and litigation consulting on A2L Consulting's site:

 

 

Tags: Trial Consultants, Jury Consulting, Mock Trial, Litigation Consulting, Litigation Management, Trial Preparation, Practice, Survey

A Mixed Litigation Industry Outlook for 2015

Posted by Ken Lopez on Wed, Dec 10, 2014 @ 03:13 PM

 

2015-economic-outlook-litigation-industryby Ken Lopez
Founder/CEO
A2L Consulting

The tree is up, the 2015 strategic plan is done, holiday travel plans are all set, so it must be time for my annual litigation industry economic outlook for 2015. First though, a reminder of why I do this.

I believe that the litigation industry's performance is closely tied to broader economy's performance. This is especially true for big-ticket cases.

As I have done in 2012, 2013, and earlier this year, I create an economic forecast to both exercise my undergraduate degree in economics a bit and force myself to take a hard look at what the coming year will be like for those of us who focus on litigation for a living.

While I can't help paying attention to anecdotal indicators, each year I focus on one leading indicator of economic conditions, ECRI's U.S. Weekly Leading Index. It reliably forecasts economic growth about eight months out into the future.

Big-ticket litigation is largely dominated by large companies who are sophisticated in their monitoring of economic conditions on a day-to-day basis, and it appears that they adjust their litigation spend rather quickly based on changes in the economic climate. When economic conditions are good they file cases, they spend on cases and they tend not to settle cases. When economic conditions are bad or uncertain, they don't file cases with the same fervor, and they do settle cases more quickly.

Truthfully, it's a complicated correlation dollar-wise as it usually takes a couple of good years of economic growth for cases to start being filed in earnest. Since litigation spending increases toward trial, there is also a lag for an upswing on litigation spend.

Anecdotally, we're seeing cases go to trial that might not have made it to trial a couple of years ago and A2L Consulting continues to grow. However, in just the past month we have seen one of the industry's best-known brands, Trial Graphix, be picked apart and sold yet again (is this the fourth time in five years?). It's not easy going in litigation support, but there is growth for those that deliver great value.

Before turning to the forecast, it's worth addressing what gets reported in the popular press. After all, the press keeps saying jobs are growing at the best rate in decades, and all the jobs lost since the beginning of the 2008 recession have been recovered. Well as much as I'd like to get on a bandwagon of optimism, the facts just don't support it - at the very least, the press is cherry picking the good news.

In reality, labor market participation, the percentage of Americans working, is at the lowest number since 1978, the Jimmy Carter years. Furthermore the jobs that are being created tend to be low-wage part-time positions. Wages, the total amount paid to workers in the U.S., are actually down 23% since just 2008.

Now, here's what the forecast says. When looking at the charts below, in the general, up is good and down is bad. The green line is the forecast of economic growth. The blue is what happened in reality.

ecri-wlgi-litigation-industry-economy

Here's what this chart says. The blue line tells us that economic growth has been positive for all of 2014 (yes, we did see a GNP dip in Q1 as I discussed earlier this year). The green line, the forecast of the future, tells us something ominous. Up until about June, future economic growth looked slow and steady, but that's when that indicator started falling. It's now negative. That means, beginning in about June + 8 months or so, about February 2015, we can expect to see conditions worsen for the broader economy until at least fall 2015.

Might falling oil prices give the economy a boost? Maybe, but those effects lag at least six months.

Here's the good news. Not many people have spare cash in this economy yet. But you know who does? Big companies do. Corporate profits are at their highest levels since the mid-1960s!

So, while the overall outlook for workers and small and medium sized businesses may not be great, those who focus on servicing the needs of big companies will likely be successful in doing so - if they deliver great value. That is where most of A2L's attention will be in 2015, and that is true for most large law firms.

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

Tags: Economics, Litigation Graphics, Litigation Consulting, Litigation Management, Litigation Support, Pricing, Leadership, Midsize Law Firms

In-House Counsel Should Make Outside Litigation Counsel Feel Safe

Posted by Ken Lopez on Fri, Dec 5, 2014 @ 11:04 AM

 

in-house-counsel-penny-wise-pound-foolish-pleasing-affraid-to-ask-supportby Ken Lopez
Founder/CEO
A2L Consulting

Earlier this week I published, 25 Things In-House Counsel Should Insist Outside Litigation Counsel DoI realized something important while writing that article and while participating in follow-up discussions with readers and colleagues. It's an important realization as I think recognition of it might just lead to better litigation results and money savings for in-house counsel.

Here it is. Because of the current state of the relationship between most in-house counsel and outside litigation counsel, outside counsel are not asking for budget for everything they believe would help win a case. This is leading to short term savings and longer term major expenses.

You see, outside litigation counsel really want to please in-house counsel. And why shouldn't they? In-house counsel pays the bills, they ARE the client, and they represent the holy grail—the hope of a longer and broader legal relationship that pays dividends for the relationship/billing partner for years to come.

So, what's wrong with having a service provider try to please you? We could all use more of that, right? Isn't that just good customer service?

Here's the problem. Outside litigation counsel is, ideally, not acting as a mere service provider. Rather, they are acting as, and please forgive the cliche, a trusted advisor. Unfortunately, I think most outside litigation counsel feel like the balance between trusted advisor status and mere service provider status has tipped a bit too far toward service provider status in recent years.

When you are a service provider, your motivations are a bit different than when you are a trusted advisor. As a service provider, your goal is to make the customer happy and preserve the business relationship. You wouldn't want your doctor to only tell you what you want to hear. You want them to tell you what you need to hear. The same is true for your outside litigation counsel. But how can we expect outside litigation counsel to tell us the truth if they don't feel safe doing so.

I think most outside litigation counsel are scared. They're scared of losing business. They're scared of RFPs. They're scared of asking for what they honestly believe they need. And I think it is negatively affecting litigation outcomes, and I think it is mostly up to in-house counsel to solve this.

My mentor recently said, if you're not getting what you want from a relationship, your partner is likely not experiencing you as safe. It's true in any relationship, of course. Translated for litigation, if you're not getting the litigation outcomes you seek, it may be because outside litigation counsel does not feel safe asking you for the tools they need.

So, if you are in an in-house counsel role, ask yourself, are my litigators truly comfortable telling me, let alone asking for, what they need? Are they talking to me about mock trials, litigation consultants, and litigation graphics created based on persuasion science rather than the mere gut instinct of an inexpensive twenty-something graphic artist?

If they are not telling you that they need these things, it's likely either because they are afraid to ask or because they don't know that they should be asking. Either way, it's probably going to be up to you as in-house counsel to solve this problem, and my article from earlier this week about the in-house/outside counsel relationship provides a good framework for discussion.

Other articles by A2L Consulting focusing on litigation consulting, in-house counsel and value:

Tags: Litigation Graphics, Mock Trial, Litigation Consulting, Litigation Management, Pricing, Leadership, In-House Counsel, Alternative Fee Arrangements

25 Things In-House Counsel Should Insist Outside Litigation Counsel Do

Posted by Ken Lopez on Tue, Dec 2, 2014 @ 04:00 PM

 

in-house-counsel-outside-litigation-counsel-requirementsKen Lopez
Founder/CEO
A2L Consulting

The relationship between in-house counsel and outside litigation counsel has changed dramatically over the last 20 years. Technology and the Internet have been the driving forces for many of the changes. 

Technology growth has forced outside litigation counsel into a quasi-technology consultant role in the way they deal with e-discovery and case management. Technology has made litigation more complex as the underlying subject matter of cases has become more complex. The availability of information via the Internet has made in-house counsel a more savvy shopper and a better informed manager. Technology has surely changed the way outside litigation counsel tries cases and has forced trial counsel to be trial-technology savvy. There are many more examples of how the fast flow of information is altering the balance of power between in-house and outside counsel, but you get the idea. Reflecting these changing times, the 25-point list below offers useful best-practices that in-house counsel should be demanding from outside litigation counsel.

  1. Alternative fee arrangements. At A2L, we have all but left the billable hour behind as a measurement of delivering value—mostly because it does not measure value at all. In July of 2013, we wrote about the 12 different alternative fee arrangements we use at A2L as a guide for anyone selling professional services. Not all clients want AFAs but they probably should. There's no better way to align the value of services delivered to the size of the problem solved.

  2. Mock trials. As we wrote in 7 Reasons In-House Counsel Should Want a Mock Trial, there are so many good reasons to conduct a mock trial and almost no reason, except for budget, not to. Dollar for dollar, I think a mock trial is the single best investment in-house counsel can make in trying to win a case. Since outside counsel may be hesitant to request budget for it, it may very well be up to in-house counsel to recommend it.

  3. Story development. Although many great trial attorneys used the technique 20 years ago, the science of why storytelling helps persuade was not fully understood. Today, it is recognized as essential for trial. See, Storytelling Proven to be Scientifically More Persuasive. All trial counsel should be able to articulate a clear story well before trial that succinctly explains the case and why your side should win. See also, 14 Differences Between a Theme and a Story in Litigation and 5 Essential Elements of Storytelling and Persuasion.


  4. A story that people care about. Not just any story will do. Trial counsel must develop a compelling story that both judge and jury will care about. See:

    1. Free webinar: Storytelling for Litigators
    2. 5 Keys to Telling a Compelling Story in the Courtroom
    3. Every Litigator Should Watch Scott Harrison Deliver This Presentation
    4. Your Trial Presentation Must Answer: Why Are You Telling Me That?
    5. Free download: Storytelling for Litigators E-Book 3rd Ed.

  5. Open practice. In addition to a mock trial, good trial counsel will want to schedule structured practice sessions and invite in-house counsel to attend. See 3 Ways to Force Yourself to Practice Your Trial Presentation and Practice is a Crucial Piece of the Storytelling Puzzle.

  6. Accept coaching. In this era where the highest profile litigators only go to trial rarely, using a coach, usually in the form of a litigation consultant is a best-practice. These professionals spend most of their time preparing for trial and in the courtroom, perhaps working on dozens of trials per year. See, Accepting Litigation Consulting is the New Hurdle for Litigators and Working in Parallel vs. Series with Trial Presentation Consultants.

  7. Abandon the last-minute when it comes to trial. The era of the litigator who swoops in at the last minute and tries a case, occasionally needing to be reminded of the client's name, is largely over. In-house counsel must be prepared to communicate the expectation that a case should be trial ready well before trial. See, The 13 Biggest Reasons to Avoid Last-Minute Trial Preparation.

  8. Use technology well. Litigators should be so well-practiced in their use of trial technology that it should look seamless. Missteps in the use of technology destroy credibility, and they must be anticipated and avoided. See:

    1. 5 Tips for Displaying Documents Well at Trial [CVN Video]
    2. 24 Mistakes That Make For a DeMONSTERative Evidence Nightmare
    3. Will Being Folksy and Low-Tech Help You Win a Case?
    4. 6 Tips for Effectively Using Video Depositions at Trial
    5. 12 Ways to Avoid a Trial Technology Superbowl-style Courtroom Blackout

  9. Use trial technicians well. There may come a time when trial counsel controls their presentation just as on-air meteorologists do with a simple clicker, but we're not there yet. Courtroom presentations are dynamic and unpredictable. If trial counsel is to look like a professional, they must learn how to work with a trial technician well. See:

    1. Making Good Use of Trial Director & Demonstratives in an Arbitration
    2. Why Trial Tech ≠ Litigation Graphics
    3. 11 Traits of Great Courtroom Trial Technicians
    4. 5 Tips for Using TrialDirector and Trial Technicians Effectively
    5. Download: Finding and using the best trial technicians



  10. No more surprises. I used to have a competitor that would low-ball every bid, bill 3x at trial and then write down their invoice by 10% when a post-trial dispute arose over the invoice. Once one of the top brands in the industry, they now lay in shambles, not surprisingly. We have always lived by a no-surprises model when it comes to pricing and billing. It is reasonable to insist on the same from outside counsel and legal consultants like us. See, 17 Tips for Great Preferred Vendor Programs.

  11. Post-trial lessons-learned sessions. Elite organizations spend lots of time planning and lots of time debriefing after the mission. Litigation should be no different. See, 9 Questions to Ask in Your Litigation Postmortem or Debrief.

  12. Be upfront about trial costs. To be fair, I've said this more than one way already, but it is worth emphasizing. If your vendor or outside counsel can't tell you what it is going to cost, how much experience do they really have? Very often, it is the job of in-house counsel to make outside counsel comfortable spending what is needed to win. Trust me, they're often afraid to ask. See, Learn How to Get Value in The New Normal Legal Economy.

  13. Proof they are staying current. How do you know your outside counsel is staying current with modern best-practices? If they are trying cases just like they did 20 years ago, they are going to see diminishing returns. Insist on proof that they are improving their game outside of simple CLEs and the like. See, 19 Ways in Which the World Has Changed Since 1995.

  14. Research your judge. No longer do we have to rely on vague tips from local counsel. Outside counsel should understand what really makes a judge tick and exploit that knowledge. Ask them what they know and push them to learn more. See, 21 Ingenious Ways to Research Your Judge.

  15. Anticipate non-legal implications. For litigators to really be trusted advisers, they need to demonstrate that they understand that things said in a courtroom can have a profound implication for the company, from reputation to stock price. Some day, cameras will be allowed in all courtrooms, and this will only accelerate the need to take a more global view of the client. Make sure your outside litigators understand the big picture. See, 10 Web Videos Our Jury Consultants Say All Litigators Must See.



  16. Really prepare the witnesses. Whether expert or fact witnesses, all witnesses should be professionally prepared. There is simply too much riding on their testimony. Litigation consultants and jury consultants may be better positioned to do this than lawyers at the firm. See:

    1. Witness Preparation: Hit or Myth?
    2. The Top 14 Testimony Tips for Litigators and Expert Witnesses
    3. Witness Preparation: The Most Important Part
    4. 7 Things Expert Witnesses Should Never Say
    5. 7 Smart Ways for Expert Witnesses to Give Better Testimony

  17. Work well with others. Litigators must also be leaders, and they must set an example for how to behave. They are representatives of the company and must remember this whether in an elevator, at a restaurant or on a subway. See, 5 Tips for Working Well As a Joint Defense Team10 Signs the Pressure is Getting to You and What to Do About It, Download: Leadership for Lawyers.

  18. Don't push boundaries. Whether ethical, legal or business boundaries, ask your outside counsel not to get too close to any boundary. In recent years we have seen such decisions bring down major law firms, and you don't want a scandal to land on your doorstep.

  19. Don't say "my client." Modern litigators should know how to personalize the company and tell the company story in the best way possible. See, 7 Things You Never Want to Say in Court.

  20. Don't melt down. I've seen plenty of partners melt down at trial, and I have seen plenty of partners sleep soundly on the eve of trial. A meltdown is usually a sign of poor preparation, and it is most certainly the role of in-house counsel to ensure that preparation is done early and done well. See, When a Good Trial Team Goes Bad: The Psychology of Team Anxiety and 5 Signs of a Dysfunctional Trial Team (and What to Do About It).

  21. No condescension about what they know. Of course trial counsel knows more about trying a case than in-house counsel. If they didn't, you wouldn't need them. However, the best outside litigation counsel include in-house counsel in the process of trial preparation and never talk down to the client.

  22. Body language and appearance. Outside trial counsel should understand the impact of body language and how best to appear in the courtroom. Even tie color makes a difference. See, 7 Videos About Body Language Our Litigation Consultants Recommend and Litigation Graphics, Psychology and Color Meaning.

  23. Use litigation graphics well. Yes, we have written the book on this topic, and A2L was once again just voted #1 demonstrative evidence consultants. This litigator-authored article describes the state-of-the-art thinking surrounding litigation graphics: How I Used Litigation Graphics as a Litigator and How You Could Too.



  24. Likability. In the courtroom, it matters a great deal that people like you. Maker sure that your outside counsel knows how to appeal to judge and jury. See, Like It or Not: Likeability Counts for Credibility in the Courtroom and 5 Things Every Jury Needs From You.

  25. Subscribe to this blog. Really, it may be the easiest (and certainly the cheapest) way to know that your trial counsel is staying current with best practices. Here's a free subscription that you can share.

In-house counsel, I can tell you that based on hundreds of conversations I have had over the years, outside litigation counsel is scared to make you unhappy. This means they hesitate to ask for budget for things that will help win the case. Part of your role has to be to insist on supurb trial preparation as you have the most riding on the outcome. Help guide outside counsel, and make them comfortable asking for the tools they need to win. You'll win more cases if you do.

Tags: Trial Technicians, Litigation Graphics, Mock Trial, Litigation Consulting, Trial Technology, Trial Preparation, Storytelling, In-House Counsel

How Long Before Trial Should I Begin Preparing My Trial Graphics?

Posted by Ken Lopez on Wed, Nov 26, 2014 @ 02:18 PM

 

how-long-before-trial-prepare-trial-graphics-consultantsby Ken Lopez
Founder/CEO
A2L Consulting

"How long in advance of trial should I be working with my trial graphics firm?"

I hear this question in some form quite regularly. Often the person asking it has some idea of what they are planning to do, and they are looking for validation of their plan. However, for those who are genuinely looking for best-practices, I can offer meaningful guidance based on 20 years of advising top litigators and watching top trial teams prepare for trial.

Clearly, a balance must be struck between the likelihood of settlement and the value of preparing your trial presentation long in advance of trial. Prepare too late and you risk not helping your fact finders understand your case, and you surely won't be maximizing your persuasiveness. Prepare too early and you run the risk of doing work that won't be needed if settlement occurs, and you might be focusing too much on your trial presentation and not enough on developing a good record.

So what's the right amount of prep time for trial graphics?

For some cases that we work on at A2L, we will begin graphics preparation and mock trial testing years in advance of trial. Sometimes we start working a potential issue before a single lawsuit has been filed. For other cases, we begin our work only days ahead of trial. The right answer for your case depends on several factors.

  • How much is at stake? If the answer is billions of dollars, a minimum of six months of trial graphics preparation is required, and the best practice approach would be a year or more. If the answer is a few million dollars, a month should be sufficient. If the answer is in between (and most of the time it will be), follow a best-practice approach of nine months of lead time and never dip below three months of lead time.

  • Is this pattern litigation? For pattern litigation, apply the rules above, but measure what is at stake by looking at the overall value of the potential cases combined.

  • Is the subject matter challenging? Some cases are more complex than others. A patent case involving chemistry with twelve patents at issue is much harder for a judge and jury than a single-site environmental contamination case. An antitrust case requiring complex economic testimony about market power is more complicated than a employment discrimination case. If you can't explain your case and why you should win to your grandparent in less than 30 seconds, it's probably complicated. In these instances, follow best-practice schedules, not a minimum allowable time approach.

  • Is it a close call? Be honest. Can you see a way that your opponent can win this case? If the answer is yes, prepare at a best-practice level time frames, not on minimum schedules.
     
  • Do you plan to test your trial graphics with a mock jury or in a mock bench trial? Without the benefit of having tested your trial presentation, it's very hard to know how well you prepared. Testing a case once is helpful, but real value happens when a case is tested multiple times, thus allowing for course corrections from the first event to be tested in subsequent events. If you are planning for a mock trial add three to six months to the trial graphics prep schedule.

A great deal can be achieved at the 11th hour. The litigation consultants, the litigation graphics consultants and the jury consultants on our team can very quickly assess whether best practices are being applied to persuasive storytelling, courtroom communications and trial presentation. Quick changes are possible that yield big results even late in the game. So, in a sense, it is never too late to focus on trial graphics.

Of course, it is probably never too early either. Building a compelling and persuasive story that people care about takes time, and a lot is left on the cutting room floor. There are just some things that cannot be rushed no matter how much talent, experience or intelligence are involved in trial preparations.

You will know that you've prepared enough when you know your presentation is going to work. You know it's going to work because you've tested it in a mock trial, a micro mock event, or by some other method. Great law firms and great in-house counsel favor intense trial preparation early regardless of the possibility of settlement.

Other articles related to trial graphics, litigation graphics and demonstrative evidence from A2L Consulting:

Tags: Trial Graphics, Litigation Graphics, Trial Presentation, Courtroom Presentations, Mock Trial, Demonstrative Evidence, Trial Preparation, Storytelling, Persuasive Graphics

Useful Directory of Peer-Approved Legal Consultants and Vendors

Posted by Ken Lopez on Tue, Nov 25, 2014 @ 11:45 AM

 

best-of-the-legal-times-2014-reader-rankingsby Ken Lopez
Founder/CEO
A2L Consulting

Yesterday, Legal Times released its annual directory of top legal consultants and vendors, The Best of Legal Times Reader Rankings 2014. While this reader-generated list focuses on Washington, DC, most of the categories have national relevance. In fact, most winning firms, like ours, are national firms who win similar accolades from Legal Times' sister publication, The National Law Journal.

600 firms were in the running for the various categories that include everything from jury consultants to litigation financiers to law firm web design to expert witness providers and much more. I'm very pleased to share the news that A2L Consulting, was voted #1 or #2 in all three of our core service areas. Click the green button at the end of this article to download your free copy of this useful directory.

Legal Times readers voted A2L Consulting:

  • #1 Demonstrative Evidence (Litigation Graphics) Provider
  • #2 Trial Consultants (Courtroom Trial Technicians)
  • #2 Jury Consultants

Legal Times appears to go to great lengths to ensure that only lawyers, paralegals and other members of the legal community are allowed to cast a vote. Legal vendor votes are not counted and neither are votes coming from non-work addresses like Gmail and Hotmail. Thus, this directory is quite valuable since each highly ranked firm is genuinely peer-approved.

In January, the National Law Journal will open its annual survey for voting. I hope that you will vote in this and other similar polls. Doing so helps highlight firms who are best-of-breed and elevates the performance of the entire legal industry.

You might also find these other free A2L resources helpful:

 

Tags: Trial Graphics, Trial Technicians, Trial Consultants, Litigation Graphics, Trial Presentation, Demonstrative Evidence, Jury Consultants, Washington D.C.

In-House Counsel Hiring Methods for Litigation Counsel Are Surprising

Posted by Ken Lopez on Thu, Nov 20, 2014 @ 05:04 PM


by Ken Lopez
Founder/CEO
A2L Consulting

surprise-inhouse-counsel-hiring-decisions-outside-litigation-counsel-litigatorA little more than a month ago, I surveyed our readership and asked, "how does in-house counsel hire outside litigation counsel?" Six possible answers were presented in random order.

  1. In-house chooses the lowest priced firm from a group of approved firms.
  2. In-house hires the best litigator based on prior experience.
  3. In-house hires the best litigator based on their reputation.
  4. In-house hires their litigator friends and former (or future) colleagues.
  5. In-house hires the litigator most likely to generate a win.
  6. Finally, a write-in field for other responses answers

Having worked in the litigation industry for more than 20 years and seeing favoritism trump skill plenty of times, I expected some cynicism to show through in the answers provided. However, even with that expectation, I was still very surprised with the results.

A2L Consulting is quite precisely in the business of helping litigators improve their results at trial, primarily through mock trial testing, litigator coaching and the development of persuasive litigation graphics. Said another way, we are in the business of helping trial teams win. Accordingly, perhaps seeing the world a bit too much through my own lens, I really did expect that the number-one result would be "in-house hires the litigator most likely to generate a win." 

Boy, was I wrong. That answer didn't place in the top four. In fact, other than "Other," win-generation-likelihood was the factor ranked lowest for how in-house counsel hires outside litigation firms. I find that amazing. Isn't a win exactly what we seek when going to trial in the first place?

Well, the results get even more surprising. Two answers stood out as the dominant rationale for making hiring decisions. They are essentially tied for first place and are together twice as popular as the next two highest ranked answers. Based on 168 responses thus far, in-house counsel hires outside litigation counsel by:

  • Hiring the best litigator based on prior experience, and;
  • Hiring their friends and former (or future) colleagues.

Those are pretty surprising answers if you think about it. In-house counsel are, by and large, hiring their buddies and litigators they've used before. They are not hyper-prioritizing winning, reputation and price, at least not over other factors. That's not to say that those factors are not considered. Rather, they are just factors not at the top of the list (albeit, by a wide margin).

There's nothing wrong with hiring a litigator who has generated good results before. Past performance is the best predictor of future performance. However, it is extraordinarily rare, if not impossible, to find a litigator that is the right fit for every case a business faces. Furthermore, most great litigators actually go to trial very rarely, so how can one reasonably predict great results based on one or two previous positive results? If favoritism is the dominant decision-making rationale, one can't really say they are deeply focused on winning. Trust may be important, but how much does it really contribute to getting great results at trial?

Putting on my CEO hat for a minute, I can't imagine our GC making a decision based on favoritism, and I wonder if CEOs and CFOs understand how the hiring of outside litigation counsel is being handled in their firms. How many dollars are being lost or left on the table (at trial or with outside counsel) because of this decision-making methodology? How would a CEO or Board of Directors even begin to evaluate whether the trial results they are getting are as good as they should be? I'm going to tackle this and many of these questions in future articles.

The write-in answers on this survey provide more clarity, confirmation of the dominant decision-making rationale and a few laughs. Here are a handful of answers that stood out to me when our readership was asked, how does in-house counsel hire outside litigation counsel, and chose "other":

  • "In-house hires the firm where a member of the board of directors is a senior partner."
  • "In-house hires the law firm least likely to cause in-house to be fired"
  • "In-house hires "IBM", which is the litigator or firm that they will not be questioned about if they lose"
  • "In-house hires the firm that presents the strongest strategic argument when interviewing the firms"
  • "In-house hires the team with whom they see themselves being able to spend the next five to seven years of the lives."
  • "In-house hires the litigator who best understands their business"
  • "Hire a big firm regardless of price or litigation history."
  • "Who they play golf with."

Other articles discussing litigation management, in-house counsel and working with litigation consultants like those at A2L Consulting:

Tags: Trial Consultants, Litigation Consulting, Litigation Management, Trial Preparation, Pricing, Leadership, In-House Counsel, Alternative Fee Arrangements

7 PowerPoint Trial Presentation Secrets Revealed

Posted by Alex Brown on Tue, Nov 18, 2014 @ 09:50 AM

 

trial-presentation-powerpoint-tool-mistakesby Alex Brown
Director of Operations
A2L Consulting

My hobby is woodworking. Recently, I had to build a dog fence so that my wife could train one of our dogs. From photos I figured out the dimensions, type of wood to use, and the hardware needed. What I did not take into consideration were the tools I would need to complete the job easily and on schedule.

In the process of building the fence, I ended up at our local ACE Hardware store shopping for multiple tools including one I had never used before, a planer. Only after destroying a few key parts for the fence did I learned my lesson, and I decided to figure out how to use the tool that was supposed to make the job easier.

When preparing for a trial, most decisions are made prior to the actual trying of the case. Who will be the expert witnesses, what is the theme, how and when do we introduce our evidence, and how do we present it to the jury or judge in an engaging and persuasive way in the form of a trial presentation. PowerPoint is key to most trial presentations, and we all believe we know how to use this tool. But, we also know that at 3 AM, 48 hours prior to opening statements, is the time when Murphy's Law shows up to cause a little havoc. Below are seven ways to use PowerPoint effectively to reduce the strain that Mr. Murphy seems to always introduce.

  1. Outline. Before you even click on the PowerPoint icon, you need to have the content ready so you can create an appealing graphic for trial presentation. What is your goal, who is your audience, what are the key points that need to be shown, and what needs to be discussed? Only then can you create the visual representation to persuade the audience.

  2. Less is more. Upon what should your audience be focusing while you are talking? You (mostly). The best presenters in the world know this, and we are mesmerized when they give a presentation. Reduce your text and increase your visuals. If someone tells you that a picture is NOT worth a thousand words, it is because they could not figure out what the picture should be. We are a visual society (the majority of the population learn and remember this way) this is your audience.

  3. You are not your audience. Most litigators are NOT visual preference learners. You have to remember to present in the language of your audience. Use all of the learning styles, use your words, but make sure your visuals support these words. Use models or boards so those in your audience that are "hands on" get the chance to learn from their base. This combination will mean, at one point or another, you will speak directly to everyone; this is key when you are trying to make them understand and, more importantly, persuade them.

  4. Timing is everything. If you are following the best practice of having each trial presentation slide only contain one point at a time, understand that this is one of the reasons: IMPACT. Have you ever been telling a joke and someone blurts out the punchline before you're finished? As you are guiding the jury down the story line you use your visuals as support, and when the time is right (not too early, and definitely not too late), you reveal your "impact" image to support your theme with the "smoking gun" evidence or graphic. It is a sure fire way to hammer your point home.

  5. Style is important. As much as we believe we know how to create an awesome PowerPoint, there are things that we do not use often enough, like Style Sheets. These are important so your presentation does not look like 66 writers were used to create it. Style Sheets allow you to create a unified and intentional look that flows from start to finish and keeps jurors focused on content, not uneven boarders, odd colors, or worse case, "I can’t read that, what did it say?"

  6. Practice? Were talkin' about Practice. "Practice doesn't make perfect. Practice reduces the imperfection." The key to a great PowerPoint trial presentation is, when you are using it, make sure it's not the first time. You have to know it as well as you know your story so it can be integrated into a cohesive unit, not just appear to be an afterthought.

  7. Use a professional. Last month I hired a podiatrist to perform open heart surgery on my family dog, said no one EVER. You are a litigator, and I’ll assume a damn good one, why in the world would you take time off the clock to create a PowerPoint presentation? Using a professional can actually reduce the pressure and cost of trial preparation for you and your client. A professional should be able to comprehend your theme and integrate it into the presentation. They should do it faster than anyone in your firm possibly will, and better. They should be able to give YOU ideas and an outsider's perspective that you might not have considered, and they should have the experience to make you comfortable with the process, allowing you to stay focused. The best of the best litigation consultants have litigation experience that they draw from which gives you another expert in the room when strategies are developed and implemented.

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

Tags: Litigation Graphics, Trial Presentation, Courtroom Presentations, Demonstrative Evidence, Juries, Practice, PowerPoint, Visual Persuasion

[New and Free Webinar] 12 Things Every Mock Juror Ever Has Said

Posted by Ken Lopez on Mon, Nov 17, 2014 @ 04:05 PM

 

mock-trial-mock-jurors-what-they-all-say-1by Ken Lopez
Founder/CEO
A2L Consulting

If you can learn the secrets of how mock jurors commonly behave during mock trial deliberations, you will be better positioned to win at trial. These behavior patterns are understandably foreign since most people see mock juries deliberate infrequently. However, when you are a jury consultant, mock trials are routine, and repeat behavior patterns become clear over a long career.

Surprisingly, it turns out that no matter where you go in the country, mock jurors tend to act in similar ways. Although there are venue-specific idiosyncrasies, mock jurors act quite similarly from locale to locale. If you understand the questions they almost always ask, the order of deliberations they usually follow and how mock juries address damages almost every time, you will be far ahead of almost all of your peers.  

We at A2L have put together a free 75-minute webinar, 12 Things Every Mock Juror Ever Has Said. It will be conducted live on December 9, 2014 at 1:30pm ET and is designed to share A2L's accumulated knowledge about mock jurors. Click here to register for it for free.

dr-laurie-kuslansky-jury-consultant-a2l-consulting-1This webinar will be led by Laurie R. Kuslansky, Ph.D., one of the world's top jury consultants and managing director of A2L's jury consulting team. She has conducted over 400 mock trials in more than 1,000 litigation engagements throughout the country over the past 20+ years. Dr. Kuslansky will describe how mock jurors make decisions about liability and damages. She will address how mock jurors tend to apportion justice, how they calculate damages, how they react to contracts and how mock jury trial deliberations compare to real-life trial deliberations.

Other topics expected to be discussed are how to best position a jury to discuss damages, how mock jurors handle verdict forms and instructions, how mock jurors split up blame among multiple parties, how mock jurors use graphics, what juries forget and much more. This event is suitable for anyone with an interest in litigation, but this webinar is designed for the courtroom lawyer.

Here are the details of the free webinar:

  • What: 12 Things Every Mock Juror Ever Has Said
  • When: Tuesday, December 9, 2014 at 1:30pm ET
  • How long: 60 minutes + 15 minute Q&A
  • Where: Online, once registered you will receive a personal login link
  • How much: Free
  • Why: Understand how fact-finders make decisions and you can win more cases.
  • Who: Led by veteran jury consultant, Dr. Laurie R. Kuslansky, A2L Consulting's Managing Director of Jury Consulting.
  • HowClick here or on the button below to register for the complimentary webinar.

Other A2L Consulting webinars that you can watch at any time include:

Tags: Trial Consultants, Jury Consulting, Litigation Consulting, Trial Consulting, Webinar, Juries, Jury Consultants, Voir Dire, Jury Selection, Damages

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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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