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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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Storytelling at Trial - Will Your Story Be Used?

 

 

storytelling at trial litigation lawyersby Ryan H. Flax, Esq.
Managing Director, Litigation Consulting
A2L Consulting

In my last post, I discussed the importance of every trial lawyer of developing a two-track procedure in every trial – one track that focuses on developing a convincing story that jurors can instinctively relate to, and one track that focuses on building a record of law and facts for a possible appeal.

The first thing that every trial lawyer must do is recognize this two-track necessity and begin to immediately develop case themes around key facts. It’s essential to work as a team to identify your story and what facts fit into it. Remember, stories are supposed to be interesting and entertaining. They have a beginning, a climax, and an ending. They have a theme, a setting, and fully developed characters. Help your case by making it understandable to the jurors and by keeping them from being bored.

Why a Good Story Matters

Litigation is not easy for anyone involved. It’s usually something of a complicated mess for us as attorneys. For jurors it’s likely the most complex, complicated, and confusing thing they’ll ever be asked to participate in. After all, think of what is being demanded of them. You’re asking them to understand an area of law that probably took you an entire law school semester to understand and to apply that law to some new and unusual facts, then to hand one side a lot of money or send someone home empty-handed. As a litigator, you have the job of making it easier for them to find things your way. 

storytelling persuasion courtroom litigation webinar  

A key component of making it easier for jurors and making them feel like they understand you and your case is storytelling. Storytelling is both an art and science, and using storytelling techniques will make you a more persuasive litigator.

A story will emerge during a trial, and it may as well be yours. Mock trials and focus groups show us that when there are camps within a jury representing the two sides of the case, each camp will have a fairly consistent story. Consistently, those stories: (a) are short; (b) fit with “common sense”; (c) borrow some of the salient facts from the trial; (d) are complete – with a start, middle and ending, including what happened and what should happen; (e) take only a few moments to tell and use plain language; and (f) once embedded, are difficult – if not impossible – to change in jurors’ minds.

The question is, where do these stories jurors use come from?

Humans automatically make stories out of virtually all life events to gain a sense of control, even if it’s a false sense. It’s the difference between collecting bare facts and interpreting them in a coherent manner. Most people can’t resist making assumptions, drawing inferences, and imposing upon the facts what they “mean” rather than merely accepting information as is. Most of what people discuss in their social lives are stories and gossip – not random facts.

So, again, because we know that your jury will be using a story to sort out your litigation facts and determine its results, whose story do you want the jurors using -- one they’ve made up, one provided by opposing counsel, or yours?

As I just said, litigation is probably the most complicated thing your jurors will ever have to be involved with in their lives, but, even setting aside the subject matter and law of the case, let’s take a look at what each juror has to do just for the jury to reach a verdict:

  • show up,
  • stay awake,
  • be motivated enough to pay attention,
  • be mentally and physically able to pay attention,
  • know what is important to attend to,
  • understand what they are seeing and hearing,
  • be motivated and able to remember,
  • recall the information after some period of time,
  • be able to repeat the information in their own words, and
  • be willing and able to convince fellow jurors who disagree with them. 

That’s just one juror’s task. Moreover, the other jurors must also be awake, pay attention, and understand, etc., so that they can operate as a unit. That’s a lot required of those doing their civic duty, so the easier you can make it for them to do the tasks you can influence, the better.
 

Other A2L Consulting resources related to storytelling in litigation:

storytelling for lawyers litigators and litigation support courtroom narrative

About A2L Consulting

•  Leading national litigation consulting firm since 1995

•  Personnel nationwide

•  Routinely voted #1 for demonstrative evidence consulting, jury consulting or intellectual property litigation consulting nationally

•  Consulted for all major law firms on 10,000+ cases with trillions of dollars cumulatively at stake offering:

Trial Consulting: mock trials, Micro-Mock™, mock Markman hearings, jury consulting, shadow juries, jury selection and more; 

Trial Graphics: legal graphics and litigation graphics, courtroom animation, video, printed foam core trial exhibits, PowerPoint presentation consulting, simplifying the case story and more; 

Trial Technology & Onsite Personnel: ebriefs (electronic briefs), hot seat operators, trial technicians, courtroom presentations and more; 

Look for A2L trial consultants, graphics consultants and jury consultants in Washington, DC, Baltimore, MD, New York, NY, Boston, MA, Alexandria, VA, Atlanta, GA, Miami, FL, Chicago, IL, Houston, Texas, Los Angeles, CA, and San Francisco, California, Wilmington, Delaware, Philadelphia, PA, Phoenix, AZ, San Antonio, Palo Alto, Dallas, Detroit, Baltimore, Cleveland, Kansas City, Las Vegas, Pittsburgh, Richmond, VA, Salt Lake City, Denver, London, Dublin, Johannesburg, Brussels and many other cities and countries around the world. A2L Contact Information


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Planning For Courtroom Persuasion? Use a Two-Track Trial Strategy

 

 

two track litigation strategyby Ryan H. Flax, Esq.
Managing Director, Litigation Consulting
A2L Consulting

How early in the litigation process should you think about how a jury will react to your case, your client, or you? When should you begin to develop your case themes and storylines? Which is more important to your chances of winning a trial – having a compelling story to tell, or bringing in solid evidence under the law? Here’s an easy one: When you get to the appeal, would you rather be writing the red or blue brief (hint: it’s the red one for respondents)?

What I encourage in this article will seem elementary to the best litigators, but I’m writing from experience when I say that many trial attorneys fail to properly develop the necessary two-track strategy for their case – and lose because of it.

The Two-Track Strategy

What begins at the early stages of case preparation as a single track, which includes general case building, wrapping one’s mind around the full scope of the relevant law, filling in the useful facts where they are needed and identifying the harmful facts, must quickly change to a two-track strategy directed towards both a jury presentation and a solid evidentiary record. (Although this article is focused on courtroom persuasion in jury trials, it also applies well to a bench trial to a judge, an arbitration to a panel, or a mediation before a mediator, which are all forums with an audience of human beings.)

These two tracks clearly do not occupy the same route, but both are essential to winning.

The “Law Track”

Most attorneys, especially those closer to their law school graduation than to retirement, are more familiar with one of these two tracks than the other -- the creation of a solid evidentiary record that is focused on a winning defense on appeal. We’ll call this track the “law track.” That’s because it’s the track that is most heavily burdened with law and facts, which is what we are taught in law school: we were tasked daily with reading and briefing cases and statutes and being prepared to recite legal requirements when called upon by our professors.

Most attorneys approach their cases in this same way – by identifying what the court of last resort has to say about the relevant law, i.e., what must be proved for them to win in the eyes of the court, ordinarily by fulfilling all the “prongs” of the case law. Then these attorneys slowly build up their “garden of weeds” around the case, based on these issues.

These same attorneys focus on every fact they can soak up to decide where it fits into their legal position, they build preemptive defenses relating to any “bad” facts, and they search for hidden facts to support alternative theories of their case. This is very important because it’s the foundation of any case. But it’s not the only or even most important part of building a case for trial.  Moreover, as the “garden of weeds” grows and grows as discovery develops, it’s often very difficult for even the sharpest attorneys to extricate themselves from the weeds and see the bigger picture of the case they’re about to try.

So, in addition to the “law track,” what else should a trial lawyer consider?

The Persuasion Track

The other of the two tracks, and the one that many litigators tend to overlook, is building a case to satisfy a jury (or judge in the event of a bench trial) in a “real life,” non-legal sense. I call this the “persuasion track.”

After all, trying a case in court is something like making an extended elevator pitch for your client, and you need to make sure that the jury wants to hear it and that the jurors will be affected by your pitch in the way you intend.

Often, a litigator will spend too little time, or none at all, on this courtroom persuasion track. Most litigation teams tend to wait until the last minute before trial (often in the war room outside the courthouse) to really put their story together in a way that will be persuasive to jurors.

I have found that during trials (and mock trials), juries tend to find relatively few facts very interesting and “important” and that they then base the entirety of their decisions in the jury room on those few facts. There is a well-known psychological phenomenon called confirmation bias, which is the tendency to interpret new evidence as confirmation of one’s existing beliefs or theories.  After observing many mock trial exercises and seeing the results of dozens of jury trials, I have concluded that most juries tend to decide the outcome of a case in the first few minutes of opening statements and then use facts that fit their version of the case as reasoning in deliberations (the strongest or loudest or pushiest jurors typically triumphing in these deliberations).  Attorneys need to recognize this and to develop their trial story around the key facts onto which jurors will tend to latch.

If you don’t win at trial, you’ve got the short end of the stick when you head to post-trial arguments/motions and appeal. You must carefully develop your case along the persuasion track to plan to be successful on the second, law track.  The question now is, how is this done? That will be the subject of my next article.

*This article updates a 2012 article and lays the groundwork for a more detailed explanation of the two-track strategy in subsequent articles.

litigation consulting graphics jury trial technology

About A2L Consulting

•  Leading national litigation consulting firm since 1995

•  Personnel nationwide

•  Routinely voted #1 for demonstrative evidence consulting, jury consulting or intellectual property litigation consulting nationally

•  Consulted for all major law firms on 10,000+ cases with trillions of dollars cumulatively at stake offering:

Trial Consulting: mock trials, Micro-Mock™, mock Markman hearings, jury consulting, shadow juries, jury selection and more; 

Trial Graphics: legal graphics and litigation graphics, courtroom animation, video, printed foam core trial exhibits, PowerPoint presentation consulting, simplifying the case story and more; 

Trial Technology & Onsite Personnel: ebriefs (electronic briefs), hot seat operators, trial technicians, courtroom presentations and more; 

Look for A2L trial consultants, graphics consultants and jury consultants in Washington, DC, Baltimore, MD, New York, NY, Boston, MA, Alexandria, VA, Atlanta, GA, Miami, FL, Chicago, IL, Houston, Texas, Los Angeles, CA, and San Francisco, California, Wilmington, Delaware, Philadelphia, PA, Phoenix, AZ, San Antonio, Palo Alto, Dallas, Detroit, Baltimore, Cleveland, Kansas City, Las Vegas, Pittsburgh, Richmond, VA, Salt Lake City, Denver, London, Dublin, Johannesburg, Brussels and many other cities and countries around the world. A2L Contact Information


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12 Ways to Eliminate "But I Need Everything On That PowerPoint Slide"

 

 

busy powerpoint slide make it fitby Ken Lopez
Founder/CEO
A2L Consulting

Have you ever heard any of the following during a PowerPoint presentation?

  • "It may be hard to make out the details of this slide."
  • "I'm not sure if you can read this in the back of the room."
  • "In case you can't read this, let me read it for you."
  • "I know there is a lot on this slide, but bear with me."
  • "Let me try to zoom in on this part of the slide [proceeds to fumble with remote]"
Of course you have heard these apologetic statements. If you are in the business world, you have probably heard them all. However, there is never an excuse to say these things whether in a boardroom or in a courtroom. As much as you may want everything you have to say about a key message on a single PowerPoint slide, as hard as it may be to imagine another way of doing things, I promise, you most definitely do not need everything (or even a lot) on one slide. And, you can still get your point across.

The number one video in my recent article The Top 14 TED Talks for Lawyers and Litigators 2014 as well as other articles I have written like 12 Reasons Bullet Points Are Bad and 7 Ways to Avoid Making Your PowerPoint Slides Your Handout describe methods for limiting the amount you put on your slide.
With all this said, it is important to remember that sometimes you just need everything on a slide. Sometimes it is an advantage. So, in this article, I want to offer twelve easy methods for eliminating PowerPoint slide clutter and focusing your audeince's attention on what matters - you and your message. Sometimes, albeit rarely, this means getting everything onto a single slide. More often than not, however, it means taking a single slide's complicated content and spreading it across many slides without your audience knowing you've even changed slides.
 
  1. 28 point font: My recommendation is to use no less than 28 point text, and if you do so, you will be forced to take care of most slide-clutter issues before they become problems. Most of the points below will explain how one might do this.
     
  2. One idea per slide: Another technique for eliminating slide-clutter, and a best practice generally, is to only include one idea, one takeaway, and one message per slide. Try not to focus on your total slide count as this is mostly irrelevant to the length of a presentation. Focus instead on one idea per slide or one idea per click on your remote.

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  3. Zoom with remote: Some projectors have a nice high quality zoom feature that allows you focus in on one area of a slide. IF you are very adept with this feature, IF you are in control of the projector and the technology in the room and IF you have a high-enough-resolution image, then this may be a good option, but I don't recommend it for 99% of all presenters. The resolution of your image must be high enough so that it does not pixelate when you zoom.
     
  4. Zoom box: Say you want to present something like an organizational chart with 25 elements on it. You might show the whole thing to start with, but no one can be expected to read it since the font size will be far too small. Consider starting with the whole image and then placing a zoomed-in version of portions of the chart on subsequent slides. To keep your audience oriented, use a small icon of the full image in the corner with a red box to indicate the portion you are showing.
     
  5. Sliding timelines: Very often people want to put a timeline onto a PowerPoint slide. If it has more than five items on it, it gets hard to read. One technique that we use, described in example 25 in A2L's free book, The Litigation Guide to Trial Timelines, is to create a sliding transition between time spans in the timeline. If you break your timeline up onto multiple slides it is easier to read. If you use the sliding transition, you give the impression of a larger timeline and keep your audience oriented.
     
  6. Prezi: Prezi is an alternative presentation tool to PowerPoint. It allows the presenter to create a large canvas of materials (i.e. videos, text and images) and allows the presenter to zoom into portions of the canvas. I think it is a neat program, we use it at A2L, but in the hands of an untrained user, Prezi presentations give people motion sickness. You can learn more about it and see an example in my article Collateralized Debt Obligations (CDOs) Explained for a Jury.
     
  7. Custom animation: Zoom effects in PowerPoint are not for beginners. PowerPoint actually makes it quite hard to zoom in on an element in a slide without it becoming pixelated. However, if you have learned how to do this, you can take something like an org chart and create animated zooms into key elements of it to make your points. Done well, the audience never loses sight of the big picture.
     
  8. Layer elements in: When it is advantageous to show many elements together on a slide, the best way to do this is to build them in over time. Showing an audience too much at once causes them to shut down. Allowing comfort with the materials to build over time is a best practice. Example #4 in The Litigation Guide to Trial Timelines illustrates this nicely.
     
  9. Zoomed-pop-in elements: Similarly, if you need to show many things on a single image, you can make them legible by introducing one element at time, zoomed in, nearly full screen. Once introduced they can reduce in size and be placed where important. For example, in an org charge, each box could start full-screen sized and then shrink while moving into place on the chart.
     
  10. Hyperlinked elements: When you are not sure what order you have to show materials in, you can use PowerPoint's hyperlinking function to pop-up an object so that it is legible. For example, if you are showing an org chart, you could create a hotspot on each position that when clicked would zoom open a larger version of the box. Example #7 in How To Use and Design Trial Timelines shows how this is achieved.
     
  11. Printed materials: Very often, it just makes no sense to show something in PowerPoint. Printed documents have better resolution than a screen and offer a range of other advantages when handed out. See also 7 Ways to Avoid Making Your PowerPoint Slides Your Handout.
     
  12. Exception: Sometimes you want to show how hopelessly confusing something is to gain an advantage. This is the only exception to the rules articulated above. For example, if you want to show that a process was nearly impossible to follow, PowerPoint may be ideal since you can build elements of the process over time until it becomes impossible to follow.
In subsequent posts, I am going to take these topics and show how to handle each of them. In the meantime, here are some articles and resources that discuss eliminating slide clutter, best practices for using PowerPoint and how to present well in general:
 
litigation consulting graphics jury trial technology

About A2L Consulting

•  Leading national litigation consulting firm since 1995

•  Personnel nationwide

•  Routinely voted #1 for demonstrative evidence consulting, jury consulting or intellectual property litigation consulting nationally

•  Consulted for all major law firms on 10,000+ cases with trillions of dollars cumulatively at stake offering:

Trial Consulting: mock trials, Micro-Mock™, mock Markman hearings, jury consulting, shadow juries, jury selection and more; 

Trial Graphics: legal graphics and litigation graphics, courtroom animation, video, printed foam core trial exhibits, PowerPoint presentation consulting, simplifying the case story and more; 

Trial Technology & Onsite Personnel: ebriefs (electronic briefs), hot seat operators, trial technicians, courtroom presentations and more; 

Look for A2L trial consultants, graphics consultants and jury consultants in Washington, DC, Baltimore, MD, New York, NY, Boston, MA, Alexandria, VA, Atlanta, GA, Miami, FL, Chicago, IL, Houston, Texas, Los Angeles, CA, and San Francisco, California, Wilmington, Delaware, Philadelphia, PA, Phoenix, AZ, San Antonio, Palo Alto, Dallas, Detroit, Baltimore, Cleveland, Kansas City, Las Vegas, Pittsburgh, Richmond, VA, Salt Lake City, Denver, London, Dublin, Johannesburg, Brussels and many other cities and countries around the world. A2L Contact Information


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10 Things Litigation Consultants Do That WOW Litigators

 

 

litigation consultants wow factor best top ratedby Ken Lopez
Founder/CEO
A2L Consulting

As CEO of a litigation consulting firm offering litigation graphics consulting services, jury consulting services and trial technology support services, I hear the word "wow" quite often from A2L's clients, and I know our talented competitor firms hear the same. Usually, when I hear it, someone has wildly exceeded a client's expectations, one of our people came through in a pinch or someone on our team went without sleep for even longer than the litigator.

Whatever the reason for the "wow," I'm thrilled to hear it since it means we've truly delighted a customer. I've written about my passion for good customer service in the past in Litigators, You Deserve Ritz-Carlton-Level Service and 15 Tips for Great Customer Service from the Restaurant Industry. I believe great customer is just a minimum standard in the litigation consulting industry, and at our firm, we are really striving for delight.

Here are 10 situations where litigation consultants like A2L Consulting and other firms like ours often hear the word, "wow."

  1. Wow, you came in at or under budget: One of well-known competitors has struggled recently, and I think one of the biggest reasons was their constant lowballing on estimates. For them, it seemed every major case was estimated at $25K but the invoice always ended up closer to $250K. At A2L and at other great firms, we do a great job of setting expectations accurately. We often hear a "wow" around budget especially since we so often use fixed fee pricing and other alternative fee arrangements to delight customers. See 12 Alternative Fee Arrangements We Use and You Could Too.
     
  2. Wow, our jury behaved just like the mock jury: It is an amazing experience to watch a group of jurors arrive at a nearly identical outcome to those in a mock jury. While we often emphasize that a mock trial should be used primarily support voir dire, for practice and for hearing how mock jurors reason through your case during deliberations as opposed to a predictive tool, it is still fascinating to see a jury behave quite similarly to a mock jury. See Mock Trials: Do They Work? Are They Valuable?.

  3. Wow, the jury loved that demonstrative: When A2L started almost 20 years ago, we were exclusively a litigation graphics firm. We've since become known as one of the best in the jury consulting and trial technology spaces too. Still, after all these years, we have worked on more litigation graphics projects than any other type of project and probably more than most any other firm. Not surprisingly, we often hear about how a demonstrative we developed resonated with a jury. The litigators often seem surprised, but honestly, we're not. It's just what we do. See 16 PowerPoint Litigation Graphics You Won't Believe Are PowerPoint.

  4. Wow, you found a way to show that: It is fairly common that I hear this "wow" comment. A trial team, made up of brilliant lawyers, has been working on a case for years. They've struggled to find a way to persuasively describe a particular point, technology or set of facts. Through our creative process, our litigation consultants find just the right rhetorical technique or demonstrative exhibit that conveys a complex point efficiently and persuasively. See Courtroom Exhibits: Analogies and Metaphors as Persuasion Devices and Information Design and Litigation Graphics.

  5. Wow, you stayed right there with us: Usually when we hear this "wow" it means we were sleep deprived. More specifically, it is typically one of our trial technicians who was the most sleep deprived. These amazing consultants help make last minute changes to the trial presentation, prepare deposition clips and evidence for display and handle the running of the electronic show at trial that makes a lawyer look like a star or a flop. Often they stay awake for days at a time leading up to trial. See What Does Using a Trial Technician or Hot-Seater Cost? and 11 Traits of Great Courtroom Trial Technicians.
     
  6. Wow, I didn't know people did what you do: We have been litigation consultants for 20 years, but the industry is still quite young. While most litigators understand there are people who do demonstratives, jury and trial work, few understand that litigation consultants can be active coaches to litigators, can support theme and story development and do much more to help a litigator prepare a case. See Accepting Litigation Consulting is the New Hurdle for Litigators and 11 Small Projects You Probably Don't Think Litigation Consultants Do and 11 Things Your Colleagues Pay Litigation Consultants to Do.
     
  7. Wow, our judge praised your work on the record: This happens at least once a year, and my favorite clients take the time to send me the transcript. One judge in the Court of Federal Claims said, "These animations are fabulous. I have to commend the plaintiff . . . it's really fantastic." Another District Court Judge asked if our trial technician could help oppossing counsel get their presentation to work.
     
  8. Wow, you actually helped me improve as a litigator: This is really my favorite "wow" compliment although I rarely hear it. It takes someone with a lot of humility to believe it and then to say it, but some do, and it's amazing. We really do care about helping our clients win, and we hope to leave them a little better prepared for the next case as a result of having worked with our litigation consultants at A2L.
     
  9. Wow, you should have seen oppossing counsel when . . . : This is a wide category of wow. Sometimes we hear this because our trial tech was so much better than the other side's trial tech. Sometimes we hear this because our litigation graphics were so much better than the opposition. Regardless, we're quite competitive at A2L, and we live and breathe our cases. We love winning, but we often love defeating our opponent more. Many of our favorite customers feel exactly the same way.

  10. Wow, sorry, I don't have any suggestions for how you can improve: I'm big on post-trial debriefs. I wrote an article titled 9 Questions to Ask in Your Litigation Postmortem or Debrief that I think summarizes my feelings around this topic pretty well. Bottom line though, I love when a client answers my oft asked question, "on a scale of 1-10, how likely would you be to recommend A2L to a colleague?" with a "10." I'm happy to say I hear that answer quite often.
     
litigation consulting graphics jury trial technology

About A2L Consulting

•  Leading national litigation consulting firm since 1995

•  Personnel nationwide

•  Routinely voted #1 for demonstrative evidence consulting, jury consulting or intellectual property litigation consulting nationally

•  Consulted for all major law firms on 10,000+ cases with trillions of dollars cumulatively at stake offering:

Trial Consulting: mock trials, Micro-Mock™, mock Markman hearings, jury consulting, shadow juries, jury selection and more; 

Trial Graphics: legal graphics and litigation graphics, courtroom animation, video, printed foam core trial exhibits, PowerPoint presentation consulting, simplifying the case story and more; 

Trial Technology & Onsite Personnel: ebriefs (electronic briefs), hot seat operators, trial technicians, courtroom presentations and more; 

Look for A2L trial consultants, graphics consultants and jury consultants in Washington, DC, Baltimore, MD, New York, NY, Boston, MA, Alexandria, VA, Atlanta, GA, Miami, FL, Chicago, IL, Houston, Texas, Los Angeles, CA, and San Francisco, California, Wilmington, Delaware, Philadelphia, PA, Phoenix, AZ, San Antonio, Palo Alto, Dallas, Detroit, Baltimore, Cleveland, Kansas City, Las Vegas, Pittsburgh, Richmond, VA, Salt Lake City, Denver, London, Dublin, Johannesburg, Brussels and many other cities and countries around the world. A2L Contact Information


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Mock Trials: Do They Work? Are They Valuable?

 


do mock trials work value juryby Elise Jefferson, M.A.
A2L Consulting

One might think it would be easy to run an experiment that could definitively conclude that mock trials are effective at predicting the outcome of a trial. If one could, it would solidify the value of mock trials in the eyes of litigators and consultants, and it would make mock trials a nearly mandatory part of the trial preparation process.

However, like many areas of trial preparation, mock jury trials are complex and involve an almost infinite number of variables. Because of this, it can be difficult to isolate a single dependent variable for study, while controlling for all of the other factors that may affect an experimenter’s ability to conclude that there is a causal link between the variable that was manipulated and the outcome of the trial.

Therefore, the question remains as to whether or not mock trials are at all effective. After all, if there cannot be a direct causal link drawn between a variable and the outcome, then how can one say that mock trials are worthwhile?

Historically, instead of attempting to address the overall question of the effectiveness of mock trial simulations, psychologists have focused their study of mock trials on what information can be gleaned from the mock trial process. Studies of the process have illuminated the many valuable aspects of mock trial simulations.

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The strength of the evidence presented in a trial has been shown to be one of the highest predictors of jury outcomes. Studies have found, not surprisingly, a positive correlation between evidence strength and liability or determinations of guilt (Devine et. al., 2001; Winter & Robicheaux).  As such, it is prudent for attorneys to use the mock trial process to evaluate how a jury or judge receives their evidence, in comparison to the opposing side’s evidence. In psychological research, the definition of “strength of the evidence” varies based on the study, with some studies using the quantity of evidence as the independent variable and others using the quality of evidence (Devine et. al., 2001; Winter & Robicheaux).

A study conducted by Taylor and Hosch (2004) found that the strength of prosecutorial evidence in criminal cases was strongly correlated to the defendant’s likelihood of facing conviction. This finding can be applied to civil trials, because when a jury is determining whether the preponderance of evidence requirement has been met, they will consider the quantity of evidence in order to come to their conclusion. Therefore, litigators can reliably use mock trial simulations to determine whether or not their evidence is strong enough to warrant going to trial in civil cases.

As mentioned in several articles on the A2L website, mock trials can assist in the fine-tuning of story formatting and presentation. There are multiple theories surrounding juror decision making, including both mathematical and explanation-based approaches. The most relevant explanation-based approach focuses on the use of a story model to explain the facts of a case to jurors. The story model states that jurors typically assimilate trial evidence into a story format (Winter & Robicheaux). As such, attorney presentation style should be geared toward making it easier for jurors to put the evidence into the story format. Litigators can test the effectiveness of various story formats through the use of a mock trial simulation. A study conducted by Pennington and Hastie (1988) found that jurors were more prone to decide in favor of the side that used a story format, as opposed to requiring jurors to construct their own story from those told by witnesses presented in a random fashion. Therefore, it is important for attorneys to consider what story best fits the evidence they will be presenting. Mock trials can be used to determine which story jurors are more likely to believe and determine how that story lines up with their knowledge of how the world works. A2L offers a storytelling webinar and an e-book focusing on storytelling in litigation.

The ability to definitively label mock trial simulations as completely accurate in predicting trial outcomes would require extensive research and controlled experimentation. Until such research is undertaken, studies show that mock trials can be extremely helpful in helping attorneys develop a strong case. These simulations can be especially effective in determining the strength of the evidence and selecting the appropriate story format.

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

jury consulting trial consulting jury research

About A2L Consulting

•  Leading national litigation consulting firm since 1995

•  Personnel nationwide

•  Routinely voted #1 for demonstrative evidence consulting, jury consulting or intellectual property litigation consulting nationally

•  Consulted for all major law firms on 10,000+ cases with trillions of dollars cumulatively at stake offering:

Trial Consulting: mock trials, Micro-Mock™, mock Markman hearings, jury consulting, shadow juries, jury selection and more; 

Trial Graphics: legal graphics and litigation graphics, courtroom animation, video, printed foam core trial exhibits, PowerPoint presentation consulting, simplifying the case story and more; 

Trial Technology & Onsite Personnel: ebriefs (electronic briefs), hot seat operators, trial technicians, courtroom presentations and more; 

Look for A2L trial consultants, graphics consultants and jury consultants in Washington, DC, Baltimore, MD, New York, NY, Boston, MA, Alexandria, VA, Atlanta, GA, Miami, FL, Chicago, IL, Houston, Texas, Los Angeles, CA, and San Francisco, California, Wilmington, Delaware, Philadelphia, PA, Phoenix, AZ, San Antonio, Palo Alto, Dallas, Detroit, Baltimore, Cleveland, Kansas City, Las Vegas, Pittsburgh, Richmond, VA, Salt Lake City, Denver, London, Dublin, Johannesburg, Brussels and many other cities and countries around the world. A2L Contact Information


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7 Questions Will Save You Money with Litigation Graphics Consultants

 


litigation graphics consultants types stylesby Ken Lopez

Founder/CEO
A2L Consulting

I have been running an organization that offers litigation graphics consulting as one of its services for nearly 20 years. I've worked with both large and small law firms, I have worked with clients in many countries, and I have worked on large and small cases.

After all that experience, spanning thousands of cases, I can split up the clients who engage A2L Consulting for litigation graphics consulting work into two camps:

  • "Do This" Clients
  • "Help Us" Clients

Some clients come to A2L and say, this case is complicated, we've been working on it for years, and we're just too close to it to be able to explain it in a way that everyday people can understand. These are the "help us" clients.

Some clients come to us and say, "I litigate four patent cases and year, and I know what works. Can you make something like . . ." or "we need a litigation animation that shows exactly what our environmental expert says." These are the "do this" style clients.

Both types of clients are warmly welcomed at A2L and at other litigation graphics consulting firms. However, there is a real risk of wasting time and money when litigation graphics consultants are trying to "help" advise a "do this" client and vice versa. Thus, it is very valuable when a litigator knows what type of client they are before they engage litigation graphics consultants.

There are many firms in the litigation graphics business, however the truly great litigation graphics consulting firms are led by former litigators with meaningful and significant trial experience. You can count the number of these firms worldwide on one hand, and I really only know of A2L and our good friends at Cogent Legal. Firms like ours are capable of helping to develop themes, helping to craft opening statements as well as helping to design a presentation that will teach and persuade a jury in a complex case.

Our firm has personnel to support both the "help us" and "do this" clients. Not surprisingly, they come a different price points, though. Thus, in the beginning of an engagement, our litigation graphics consultants are trained to assess what type of client they are going to be supporting. Then, we staff accordingly. This works well unless the trial team shifts from "do this" to "help us" in the middle of case preparation. That's not uncommon.

I think it is possible for a litigator or trial team to self-assess and communicate their preferred style to their litigation graphics firm of choice. Doing so will save time and money since the litigation graphics firm can staff the project correctly from the beginning.

If there are opposing styles on a trial team, conducting a self-assessment of your team's style is critical. When there are opposing styles, it presents a challenge to a litigation graphics firm that they are not always in the best position to solve.

To self-assess and decide whether your team is taking a "do this" or "help us" approach to your upcoming trial (or mock trial or ADR event), ask yourselves these seven questions and keep track of your score out of seven:

  • Does our trial team know exactly what the judge and/or jury will understand about our case and what they won't. If no, give yourself one point.
     
  • Would most people consider our case complicated? If yes, give yourself one point.
     
  • Has our trial team sufficiently prepped our experts so that just about anyone can understand them and be persuaded by them? If no, give yourself one point.

  • Has our trial team developed a meaningful and emotional story, narrative and theme that the fact-finder(s) will relate to? If no, give yourself one point.

  • Does our team have access to most of the visuals we plan to use for the case already from our experts and clients? If no, give yourself one point.

  • Has our trial team simplified our case to the point where one could explain it convincingly to a driver in a short cab ride? If no, give yourself one point.

  • Could our lead litigator explain why we deserve to win to my Mom in five minutes or less? If no, give yourself one point. 
If you have scored three points or higher, your team would likely benefit from a consultative "help us" approach to developing litigation graphics. If you scored a one or a two, you can safely tell your litigation graphics consultants that you know what you need, and you just need them to listen and get it done.
If you are in that three points and higher consultative "help us" category, remember that you have very few real expert litigation graphics firms that you could rely on to offer science-proven advice (as opposed to the gut instinct of an artist or project manager). If you are serious about the consultative approach and are passionate about winning, I recommend using a firm that will offer a former litigator as your lead consultant. It is an amazing experience to be supported by someone at this level, and it saves time, money and energy.

Here are some articles related to litigation graphics, trial graphics and demonstrative evidence from A2L that you may also find helpful:

using litigation graphics courtroom to persuade trial graphics a2l consulting

About A2L Consulting

•  Leading national litigation consulting firm since 1995

•  Personnel nationwide

•  Routinely voted #1 for demonstrative evidence consulting, jury consulting or intellectual property litigation consulting nationally

•  Consulted for all major law firms on 10,000+ cases with trillions of dollars cumulatively at stake offering:

Trial Consulting: mock trials, Micro-Mock™, mock Markman hearings, jury consulting, shadow juries, jury selection and more; 

Trial Graphics: legal graphics and litigation graphics, courtroom animation, video, printed foam core trial exhibits, PowerPoint presentation consulting, simplifying the case story and more; 

Trial Technology & Onsite Personnel: ebriefs (electronic briefs), hot seat operators, trial technicians, courtroom presentations and more; 

Look for A2L trial consultants, graphics consultants and jury consultants in Washington, DC, Baltimore, MD, New York, NY, Boston, MA, Alexandria, VA, Atlanta, GA, Miami, FL, Chicago, IL, Houston, Texas, Los Angeles, CA, and San Francisco, California, Wilmington, Delaware, Philadelphia, PA, Phoenix, AZ, San Antonio, Palo Alto, Dallas, Detroit, Baltimore, Cleveland, Kansas City, Las Vegas, Pittsburgh, Richmond, VA, Salt Lake City, Denver, London, Dublin, Johannesburg, Brussels and many other cities and countries around the world. A2L Contact Information


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The Top 12 Litigation Consulting Articles from Q2

 

 

top 12 articles a2l consulting litigation consulting report q2by Ken Lopez
Founder/CEO
A2L Consulting

Long time readers of this blog know that we are big on lists. When the American Bar Association named the Litigation Consulting Report one of the top 100 legal industry blogs, even they said, "it's hard to resist the infectious numbered-list headlines that keep us reading their chatty, first-person posts answering questions we hadn't yet thought to ask."

At least once per quarter, I try to highlight recent articles that were unusually popular. It's easy to miss a great article with so much being published weekly. Today, I am highlighting the top twelve articles published last quarter.

During the second quarter of 2014, voir dire, PowerPoint litigation graphics and persuasion were very popular topics. These, plus other predictable terms related to our litigation graphics, jury consulting, in-court trial technology support and visual persuasion consulting services are, not surprisingly, among the top ways people find A2L when they search the Internet.

Recently, the top five search terms for people that found A2L's site all relate to jury selection or witness preparation in some way. Thus, it's not surprising that these consulting services are some of our most in-demand services with mock exercises lining up for end-of-2014 and 2015 trials.

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Enjoy the top 12 articles from the Litigation Consulting Report blog from the second quarter of 2014:
 

12. 5 Tips for Displaying Documents Well at Trial [CVN Video]

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11. The 13 Biggest Reasons to Avoid Last-Minute Trial Preparation

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10. The Magic of a 30:1 Presentation Preparation Ratio

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9. Good-Looking Graphic Design ≠ Good-Working Visual Persuasion

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8. 5 Ways to Apply Active Teaching Methods for Better Persuasion

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7. Hurry Up and Wait - Using Silence in Depositions

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6. What is Visual Persuasion and What Do You Need to Know About It?

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5. 4 Tips for Stealing Thunder in the Courtroom

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4. Walking the Line: Don't Coach Your Experts (Re: Apple v. Samsung)

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3. 7 Ways to Avoid Making Your PowerPoint Slides Your Handout

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2. Top 15 Litigation E-Books & Webinars from the Past 12 Months

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1. 5 Voir Dire Questions to Avoid

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litigation consulting graphics jury trial technology

About A2L Consulting

•  Leading national litigation consulting firm since 1995

•  Personnel nationwide

•  Routinely voted #1 for demonstrative evidence consulting, jury consulting or intellectual property litigation consulting nationally

•  Consulted for all major law firms on 10,000+ cases with trillions of dollars cumulatively at stake offering:

Trial Consulting: mock trials, Micro-Mock™, mock Markman hearings, jury consulting, shadow juries, jury selection and more; 

Trial Graphics: legal graphics and litigation graphics, courtroom animation, video, printed foam core trial exhibits, PowerPoint presentation consulting, simplifying the case story and more; 

Trial Technology & Onsite Personnel: ebriefs (electronic briefs), hot seat operators, trial technicians, courtroom presentations and more; 

Look for A2L trial consultants, graphics consultants and jury consultants in Washington, DC, Baltimore, MD, New York, NY, Boston, MA, Alexandria, VA, Atlanta, GA, Miami, FL, Chicago, IL, Houston, Texas, Los Angeles, CA, and San Francisco, California, Wilmington, Delaware, Philadelphia, PA, Phoenix, AZ, San Antonio, Palo Alto, Dallas, Detroit, Baltimore, Cleveland, Kansas City, Las Vegas, Pittsburgh, Richmond, VA, Salt Lake City, Denver, London, Dublin, Johannesburg, Brussels and many other cities and countries around the world. A2L Contact Information


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3 Articles Discussing What Jurors Really Think About You

 

 

what do jurors think about lawyersby Ken Lopez
Founder/CEO
A2L Consulting

I enjoy reading any article about juror feedback. However, finding such articles is pretty tough. Few authors have the time, budget or access to jurors to ask them what they think about the experience of trial and the lawyers involved.

As a litigation consultant, I have had the privilege of seeing many trials and mock trials over the past 20 years. In that time, I've observed certain characteristics that all mock juries possess. My colleague, Dr. Laurie Kuslansky, wrote a great article about commonalities among mock juries that is one of the best I have seen on the subject. Still, while we litigation consultants spend quite a bit of time with juries and mock juries, there is real value in hearing what others, such as judges and law professors have observed through study.

Below are three articles that offer meaningful insight into the minds of jurors. I think by reviewing these articles, any litigator will be better prepared for trial.

1. What Jurors Think About Attorneys: What if a judge collected data over a ten-year period from more than 500 jurors and compiled it in a meaningful way? Well, that is exactly what one Minnesota state court judge did, and the recently published results are fascinating.

Eighty-nine percent of this judge's jury trials were criminal. His goal in surveying his juries was to collect data about many aspects of the trial from the court building to the evidence displayed to the performance of counsel. The jurors were mostly from a rural part of the state.

You should read Judge Hoolihan's article. I found some of the interesting takeaways to be these:

  • Jurors tended to rate attorneys highest when they represented the prevailing party. From the data, I can't tell whether jurors tended to side with the attorneys that they liked best, or whether the high ratings were the result of a form of the Ben Franklin effect where jurors tended to like the people they sided with more, simply because they sided with them.
     
  • Jurors rated defense lawyers lower than plaintiff-side lawyers who were mostly prosecutors. Judge Hoolihan wonders whether this results from an anti-defense lawyer bias generated by Hollywood, but I would ask whether this is because the government generally has an advantage. I suspect it is mostly the latter.
     
  • Jurors tended to rate defense attorneys much lower when they lost a case compared to the ratings of plaintiff side attorneys when they lost.
     
  • Jurors wanted to see and hear more evidence.

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2. Trial Presentation Too Slick? Here's Why You Can Stop Worrying: I wrote this article in 2011, and the real focus of the article is on a trial consultant who smartly took the time to interview a jury post-trial and record it. The results are fascinating, especially when you consider that this was a rural Arkansas jury. The jurors shared that:

  • Jurors expect the use of technology.

  • Jurors expect the use of PowerPoint.
     
  • Video depositions synced with the transcript were very helpful.
     

3. What Jurors Think About Trials [PDF]: In this book chapter from a law professor at Northwestern University Law School, the surprisingly limited scientific study of jury trials is well-summarized. Here are some interesting findings:

  • About 40 percent of all jurors initially want to get out of jury duty. When they were done with jury service though, more than 60 percent thought highly of jury service.

  •  40 percent of jurors thought jury selection lasted too long.

  • Jurors "are active information processors who bring expectations and preconceptions with them to the jury box, filling in missing blanks and using their prior knowledge about the world to draw inferences from the evidence they receive at trial."

  • 51 percent of jurors wonder why certain people mentioned at trial did not testify. 27 percent of jurors held that very lack of testimony against the side that did not call the witness.

  • 83 percent of jurors in civil trials said that an exhibit helped them reach a decision. 
     
  • 30 percent of civil trial jurors say that the verdict ultimately reached was not the majority viewpoint when deliberations started.
I find many of these statistics fascinating and helpful, and I hope you do too. If you are aware of similar articles that discuss the scientific study of jurors, I would encourage you to post them in the comments section below.

Here are more than 80 additional articles and free downloadable books on A2L Consulting's site related to how juries think and behave:

jury consulting trial consulting jury research

About A2L Consulting

•  Leading national litigation consulting firm since 1995

•  Personnel nationwide

•  Routinely voted #1 for demonstrative evidence consulting, jury consulting or intellectual property litigation consulting nationally

•  Consulted for all major law firms on 10,000+ cases with trillions of dollars cumulatively at stake offering:

Trial Consulting: mock trials, Micro-Mock™, mock Markman hearings, jury consulting, shadow juries, jury selection and more; 

Trial Graphics: legal graphics and litigation graphics, courtroom animation, video, printed foam core trial exhibits, PowerPoint presentation consulting, simplifying the case story and more; 

Trial Technology & Onsite Personnel: ebriefs (electronic briefs), hot seat operators, trial technicians, courtroom presentations and more; 

Look for A2L trial consultants, graphics consultants and jury consultants in Washington, DC, Baltimore, MD, New York, NY, Boston, MA, Alexandria, VA, Atlanta, GA, Miami, FL, Chicago, IL, Houston, Texas, Los Angeles, CA, and San Francisco, California, Wilmington, Delaware, Philadelphia, PA, Phoenix, AZ, San Antonio, Palo Alto, Dallas, Detroit, Baltimore, Cleveland, Kansas City, Las Vegas, Pittsburgh, Richmond, VA, Salt Lake City, Denver, London, Dublin, Johannesburg, Brussels and many other cities and countries around the world. A2L Contact Information


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The Top 14 TED Talks for Lawyers and Litigators 2014

 

 


top ted talks for lawyers litigatorsby Ken Lopez

Founder/CEO
A2L Consulting

In 2012, I wrote an article called The Top 10 TED Talks for Lawyers. Back then, most readers didn't know what TED was. Now, just a couple of years later, a majority of people have heard of TED and most have usually seen at least one TED talk. Over the last several years, a number of TED offshoot events were launched that dramatically increased the footprint and influence of TED and its "ideas worth sharing." TEDx events are TED-like speaker conferences but are independently organized and usually quite local. TEDed videos are informative videos produced and posted online to teach about a particular topic of interest.

The list of TED talks I put together for lawyers and litigators in 2012 still holds up nicely, and I encourage you to browse it. In it, I included talks that focused on storytelling, neuroscience, juries and the legal system generally. For 2014, I want to share new videos on those same topics and also highlight a subject that the legal industry is passionate about: persuasion.

Even though lawyers engage in persuasion all the time, and it is at the core of the work we do, persuasion is something most are street-smart about, not book-smart. In other words, most people's knowledge of how to persuade tends to come naturally or is attained by observing how other talented persuaders behave.

I spend a great deal of time reading about the science of persuasion, studying those who do it well and practicing the craft myself. I tend to separate visual persuasion and oral persuasion, but they are, of course, fundamentally interrelated as many of these TED talks touch on. Across our service areas at A2L, persuasion is central to our jury consulting and our litigation graphics consulting practices. Thus, it is something we are consciously doing as litigation consultants and as visual persuasion consultants every day.

I hope that you enjoy my top 14 TED talks for lawyers of 2014 and can use these videos to improve your skills as a lawyer and litigator:
 

14. Influence at Work: Proven Science for Business Success: "Rarely, in isolation, does information influence or persuade us." At A2L, this sentence rings true with our core belief system and offers the primary reason our firm is hired by so many litigators. This speaker does a good job of discussing how information can overwhelm and introduces proven scientific techniques for persuasion. There are good lessons here for how to communicate with jurors.

 

13. Storytelling, Psychology and Neuroscience: A graduate student explains the connection between these three concepts in a way that would be useful for most lawyers to understand.

 

12. The Science of Stage Fright (and how to overcome it): I have seen many litigators with dozens of years of experience get nervous, sometimes distractingly so, in court. This TEDed presentation discusses the physiological effects of stage fright and how to overcome fear of public speaking.

 

11. Why We Should Trust Scientists: Frequently, litigation involves science. This talk provides a good framework for explaining why we should believe in science. It can be a useful guide for helping to explain to a jury why your expert is correct.

 

10. The Impact of Persuasion: As many TED speakers discuss, Don Norman discusses how social proof influences our behavior and other scientific concepts of persuasion. These concepts are useful to keep in mind when communicating with judges and juries.

 

9. The Aesthetics of Decision Making: The hero's journey is discussed and the real truths about how decisions are made are revealed.


8. Persuasion: Influencing the Rational Decision Maker:
A shopper strategy consultant discusses how people make decisions. Many lessons for persuasive visual communications are discussed.

 

7. Hear "Yes" More Often with the Science of Influence: This speaker discusses how to use influence and persuasion based on the latest science. Concepts such as information social influence, authority and reciprocity, are discussed.

 

6. 3 Ways the Brain Creates Meaning. Information designer Tom Wuject discusses something near and dear to me: how the brain processes visual imagery and makes meaning out of it. The applicability here for litigators is wide ranging. In particular, the techniques discussed here are excellent for case preparation in complex cases. Furthermore, he lays out some of the fundamental reasons that litigation graphics are essential in every single trial.


5. The Mystery of Storytelling: This TED Talk helps explain why most storytelling fails and offers a methodology for telling good stories. We have talked a lot about storytelling, written a book on the topic and even offer a recorded version of our popular storytelling for litigators webinar for free. This talk complements our work well by offering a structure for a good story.


4. How Your Working Memory Makes Sense of the World:
This talk focuses on the something we discuss frequently on our blog, namely, working memory. If you understand how working memory operates, you can better understand how to persuade an audience. In a nutshell, people have a very limited working memory. Thus, what we present at trial must be incredibly simplified and properly structured.

 

3. Leadership Storytelling: "Most stories do not work." Stories must be true, must be positive, must be simple and must contrast the before and after to be effective. Consider this when putting together your next opening or closing.

 

2. The Power of Story: PR agent Greg Power discusses why storytelling works.


1. How to Avoid Death by PowerPoint:
At A2L, we frequently write about how best to use PowerPoint, and how we work with litigators, CEOs and advocates to find the best ways to persuade using this tool. This speaker does a good job of summarizing many of our beliefs about what works best when persuading with PowerPoint. I don't agree on every point (e.g. the use of dark backgrounds), but we agree on almost every point. If you'd like to learn more about our recommendations for how to use PowerPoint, read our articles on the topic, download a free book we have written about it or watch our popular webinar about persuading with PowerPoint.

 

I hope that you have found this list helpful. If there are other good TED talks for lawyers, litigators or anyone seeking to persuade an audience, please post a link to them in the comments below.

Here are some related A2L Consulting articles about persuasion and the topics discussed in this article:

litigation consulting graphics jury trial technology

About A2L Consulting

•  Leading national litigation consulting firm since 1995

•  Personnel nationwide

•  Routinely voted #1 for demonstrative evidence consulting, jury consulting or intellectual property litigation consulting nationally

•  Consulted for all major law firms on 10,000+ cases with trillions of dollars cumulatively at stake offering:

Trial Consulting: mock trials, Micro-Mock™, mock Markman hearings, jury consulting, shadow juries, jury selection and more; 

Trial Graphics: legal graphics and litigation graphics, courtroom animation, video, printed foam core trial exhibits, PowerPoint presentation consulting, simplifying the case story and more; 

Trial Technology & Onsite Personnel: ebriefs (electronic briefs), hot seat operators, trial technicians, courtroom presentations and more; 

Look for A2L trial consultants, graphics consultants and jury consultants in Washington, DC, Baltimore, MD, New York, NY, Boston, MA, Alexandria, VA, Atlanta, GA, Miami, FL, Chicago, IL, Houston, Texas, Los Angeles, CA, and San Francisco, California, Wilmington, Delaware, Philadelphia, PA, Phoenix, AZ, San Antonio, Palo Alto, Dallas, Detroit, Baltimore, Cleveland, Kansas City, Las Vegas, Pittsburgh, Richmond, VA, Salt Lake City, Denver, London, Dublin, Johannesburg, Brussels and many other cities and countries around the world. A2L Contact Information


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The 13 Biggest Reasons to Avoid Last-Minute Trial Preparation

 

 

trial preparation litigation consultantsby Ken Lopez
Founder/CEO
A2L Consulting

When someone first works in the litigation consulting industry, the last-minute nature of trial preparation very often shocks them. In my experience, about half of all trial teams spend months or years preparing and testing themes, rhetorical strategies, and different approaches to their visual trial presentation. The other half of trial teams jam all trial preparation into the last month or two before trial.

No one approach is right for everyone, and I have certainly seen both approaches work well. After all if you are forced to prepare at the last minute, you're forced to simplify a case, and that's a good strategy for bench and jury trials. On the other hand, the ability to test and refine elements of the case is now a real science, and any case can benefit from a mock trial, the recommendations of litigation experts and other sophisticated testing.

While both strategies can work, when possible, I think slow and steady trial preparation wins the race more often. Still, we do great work in the last month before trial all the time, and sometimes there is just no other option. For those times when you have a choice, below are 12 reasons why last minute trial preparation might just set you back far enough to warrant starting now.

1. Last-minute costs more. I fear that some litigators believe that fewer hours available means lower cost for trial preparation. The opposite is usually true. Last-minute means your litigation consulting consultants have to use available staff rather than the ideal staff for a project. Often this leads to the use of more expensive staff and higher costs. Further, last minute trial preparation normally means using many more people to achieve the same result within a safe margin of error.

2. Building a good story takes time. We've written quite a bit about storytelling in the courtroom, we've published a book about storytelling in litigation, and we even have a webinar you can watch any time devoted to courtroom storytelling. The connection between storytelling and persuasion is a close one as scientific studies are increasingly proving. Unfortunately, like a fine wine, crafting a persuasive story is not something that should be rushed.

3. Maximizing persuasion in your litigation graphics takes time. Anyone can make a PowerPoint presentation quickly using a template and a few bullet points. However, as I wrote recently, Good-Looking Graphic Design ≠ Good-Working Visual Persuasion. If it's done well, it will be hard to do, require expertise and it will take time. I've written before about how the litigation graphics you don't use contribute enormously to your presentation, and an indicator of a good presentation is how full your trash can of unused litigation graphics is. To get to the point where you can reject some and keep others requires time for the creative process. See also, 16 PowerPoint Litigation Graphics You Won't Believe Are PowerPoint.

4. Getting your trial technology configured takes time. Rush or ignore your technology set up and months of preparation can be for naught. There's no winning back your credibility after a technology flub, a courtroom delay or an outright technological failure.

5. Mock trials really work. Mock trials are not about predicting precisely what will happen at trial as many lesser jury consultants might suggest. Rather, mock trials are useful for understanding how a judge or jury will react to the case, learning how an expert will perform, learning from practice what really works in your approach, learning your ideal juror profile, understanding your opposition's case and for helping to find those levers that will give you an edge at trial. See 7 Reasons In-House Counsel Should Want a Mock TrialWhy Do I Need A Mock Trial If There Is No Real Voir Dire?, 6 Good Reasons to Conduct a Mock Trial and 11 Problems with Mock Trials and How to Avoid Them. We have done a mock trial two-weeks before trial, but it is not an ideal approach. It is normally best to complete your final mock months before trial to give time for analysis and adjustment.

6. You wouldn't play a World Cup game without practicing (Congratulations to the U.S. team for advancing to the final 16 today!), why would you go to trial without some serious practice? See The Magic of a 30:1 Presentation Preparation RatioThe Very Best Use of Coaches in Trial Preparation3 Ways to Force Yourself to Practice Your Trial Presentation, and Practice, Say Jury Consultants, is Why Movie Lawyers Perform So Well.

7. Failing to understand the courtroom layout is a problem. Every court is different. Some will not accommodate an electronic presentation. Some do not easily accommodate a printed trial board. Some judges won't allow either. If you don't know these things in advance, you're setting yourself up for trouble and this all takes time to sort out.

8. There's every chance you'll win or lose in opening, so it's critical to get it right. See 6 Reasons The Opening Statement is The Most Important Part of a Case. Taking time to prepare your opening using modern approaches for drafting an opening statement requires ample lead time. See 7 Ways to Draft a Better Opening Statement and How to Structure Your Next Speech, Opening Statement or Presentation.

9. Too much gut. When trial preparation time is limited, a litigation team has to rely too heavily on its gut instincts and not enough on a scientific analysis of what will work. The good news is that successful litigators have the best people-focused gut instincts I've ever seen. However, great instincts coupled with great analysis, science, an outside perspective and modern trial expertise are always better.

10. You'll never be as confident as when you're well-prepared. Many in the litigation industry are great actors when it comes to feigning belief, indignation, and passion. It's part of the job. However, people can read subtle clues. If you're truly prepared and you know you are, confidence will come through. There's just no substitute for it, and it's not something that can be downloaded Matrix-style.

12. Settlement is less likely. As my colleague Dr. Laurie Kuslansky wrote in Don't Be the 2% - 6 Ways to Encourage Settlement with Trial Prep, there are so many ways to prepare for a case that simultaneously encourage settlement. When you prep a witness and test them and when you run a mock trial and understand strengths and weaknesses of a case, you are necessarily in a strong position to consider settlement. These steps take time.

13. Fewer Choices: When a student skips college, there's no reason they can't be as or more successful than a college graduate, but their options for success are more limited. The same is true with trial preparation. A trial team who waits until the last minute to prepare has fewer choices for how to prepare. I always prefer more choices, and I think most litigators and clients feel similarly.
 

complex civil litigation ebook free

Other A2L Consulting articles relating to trial preparation, litigation graphics and mock trial work:

 

About A2L Consulting

•  Leading national litigation consulting firm since 1995

•  Personnel nationwide

•  Routinely voted #1 for demonstrative evidence consulting, jury consulting or intellectual property litigation consulting nationally

•  Consulted for all major law firms on 10,000+ cases with trillions of dollars cumulatively at stake offering:

Trial Consulting: mock trials, Micro-Mock™, mock Markman hearings, jury consulting, shadow juries, jury selection and more; 

Trial Graphics: legal graphics and litigation graphics, courtroom animation, video, printed foam core trial exhibits, PowerPoint presentation consulting, simplifying the case story and more; 

Trial Technology & Onsite Personnel: ebriefs (electronic briefs), hot seat operators, trial technicians, courtroom presentations and more; 

Look for A2L trial consultants, graphics consultants and jury consultants in Washington, DC, Baltimore, MD, New York, NY, Boston, MA, Alexandria, VA, Atlanta, GA, Miami, FL, Chicago, IL, Houston, Texas, Los Angeles, CA, and San Francisco, California, Wilmington, Delaware, Philadelphia, PA, Phoenix, AZ, San Antonio, Palo Alto, Dallas, Detroit, Baltimore, Cleveland, Kansas City, Las Vegas, Pittsburgh, Richmond, VA, Salt Lake City, Denver, London, Dublin, Johannesburg, Brussels and many other cities and countries around the world. A2L Contact Information


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