The Litigation Consulting Report

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

How I Used Litigation Graphics as a Litigator and How You Could Too

Posted by Ryan Flax on Wed, Nov 12, 2014 @ 03:58 PM

 

litigation-graphics-trial-graphics-demonstrative-evidenceby Ryan H. Flax, Esq.
Managing Director, Litigation Consulting
A2L Consulting

It is well known and generally accepted by the top performers in the litigation community that you need to use demonstrative evidence, including litigation graphics, to be persuasive at trial. As a scientific certainty, using visual support to back up your key points and arguments is critical to maximizing persuasiveness. As a litigator, I’ve personally created and used graphics, and developed litigation graphics for others, to use at trial, at Markman (patent claim construction) hearings, and for other presentations. As a litigation consultant, I’ve seen countless terrific litigators both understand that they do need graphics and at the same time misunderstand how they should be using litigation graphics in these and similar settings.

My new friend, Alan Fisch of the DC-based, IP litigation powerhouse Fisch Sigler LLP, and I were just discussing this over lunch and agreed that it’s remarkable how true this is and how many great litigators lose at trial because they fail to master the basic principles of trial persuasion. Using trial graphics incorrectly can be as bad as or worse than not using them at all.

visual-learners-preference-jurorsBefore getting into the “how,” the question of “why” visual support is so critical to trial success must be touched-upon. Studies show that the majority of people are visual-preference learners, or at least combination visual and some-other-learning-style-learners. See, e.g., Felder and Spurlin, Applications, Reliability and Validity of the Index of Learning Styles, Int. J. Engng. Ed. Vol. 21, No. 1 at 103-112 (2005); Ayse Esmeray Yogun, Match or Mismatch Between Business Students’ and Business Academicians’ Learning Styles: A Research at Toros University, The Macrotheme Rev. 3(2), 38-46 (Spring 2014); see also, Animators at Law Communication Style Study. This means that people want to be taught and will better understand lawyer argument and witness testimony if it is not only spoken to them, but also shown to them visually.  The theory is that by presenting information and argument to jurors (and judges) in the way they likely prefer to receive it, they’ll enjoy and pay more attention to your presentation and remember what you say.

powerpoint-persuasion-litigationThere is actual scientific research to back this up, specifically in the litigation setting. A wonderful man named Dr. Jai Park and his research partner, attorney Neal Feigenson, studied the effects of using visual support (in the form of PowerPoint graphics) during opening statements of a basic employment discrimination lawsuit. Dr. Park and Mr. Feigenson found that using litigation graphics improved ultimate results (verdicts) by making jurors believe that the attorney using them was more capable, better prepared and probably more likable. Jurors were able to understand and remember the facts better when graphics were used.

broda-baum-immersive-trial-graphicsBeyond merely knowing that visual support must be used at trial, we know that you need to use an immersive technique when arguing and showing graphics.  Jury consultant Dr. Ken Broda-Bahm performed a study on mock jurors by using five different techniques for presenting oral argument (opening statements): (1) no graphics at all; (2) old-school flip charts; (3) professionally made, static graphics that were only sporadically shown; (4) fancier professionally made animated graphics still sporadically shown; and (5) a combination of 3 and 4 where the jurors were always given something to see during the presentation. Surprisingly, only the last technique, the immersive style, made any significant improvement in persuasiveness.

storytelling-litigation-courtroom-trialAnother important point is that we know that your argument needs to be structured as a story. People are hard wired to enjoy and expect stories. Storytelling literally gets the teller (you) and listener (juror) on the same mental wavelength. By this I mean that the very same areas of the brain are activated in synchronicity in the storyteller’s and listener’s brains – they share thinking patterns. Also, good storytelling causes release of oxytocin, called the trust molecule, in listener’s bodies. This physical reaction to a good story makes an audience more likely to be sympathetic and ready to “help,” which is what you want a jury feeling when your case is presented.

maya-angelou-made-them-feelAnd this word – feeling – is the key to victory at trial. As Dr. Maya Angelou famously said, “[p]eople will forget what you said, people will forget what you did, but people will never forget how you made them feel.” This is doubly true for jurors and litigators. Jurors will most remember how they felt about you and your case, and thus, about your client, and will decide your fate based on that feeling, sprinkled with some of the salient facts from the trial that fit with their conclusion on how the case should turn out.  Make them feel like you won.

All the above is essential knowledge to be persuasive at trial. You need to tell a compelling story, you need to support that story with litigation graphics, and you need to show those litigation graphics in an immersive way. But, how do we as litigators do this in real life? Here’s how:

When I explain these concepts to other litigators, and I do this all the time, I analogize trial presentation to the television news, where there are two kinds of presentation graphics. We are all well acquainted with the broadcast news and are comfortable with the style and format of its typical (really universal) presentation. The news is an informative presentation that always uses an immersive graphical style to tell story after story after story. The goal of the broadcast is usually to quickly inform you as a consumer of mass media, probably to evoke some emotion, and sometimes to persuade. What do we see news broadcasters doing and how can we adopt a similar style to be persuasive in presenting trial argument?

news-litigation-graphics-brian-williamsTake a good look at the photo here of anchor Brian Williams of the NBC Nightly News. Most news reports, like those presented by Williams, are dominated by the anchor speaking directly to us through the camera. Almost always, next to the anchor’s head is a large graphic, which is almost always static, but for (maybe) some sort of animated entrance for the graphic. This is what you see in this photo of Brian Williams reporting on an airline crash.

You obviously cannot hear anything of what Williams was saying because I’ve only provided you a picture, but you “know” what he’s saying nonetheless.  You’ve already created some “story” in your own mind explaining what you’re seeing in the picture – to explain the emotions evoked in you by seeing the image of the crashed plane and the look of concern on Williams’s face. Your concocted story may or may not be correct, but the mere fact that you’ve developed one for yourself is proof that everything I’ve said above is correct.

This is how you’ll use the lion share of your trial graphics during your immersive presentation.  You’ll make your points and tell your client’s story orally and show the jury graphics that support those point, storylines, and themes. However, this is not what most litigators think of when they think they need litigation graphics. What they typically think of is the weather man.

washington-dc-litigation-support-graphics-courtroomTo continue with my news report analogy, there is a wholly different kind of litigation graphic that will be interspersed within your larger visual courtroom presentation.  These second type of graphics are more complex, are directed to more complicated subject matter and issues, and are expressly spoken to by the presenter (you). These types of graphics are like those used by Washington, DC’s NBC4’s Doug Kammerer here in the photo of him doing a weather report and forecast. 

Kammerer is standing in front of his graphics (actually, they are superimposed over a green screen in production, but he can see what he’s doing) and discussing them in detail. You see that he is pointing to the jet stream pattern and the cold front it’s pulling down from Canada into the United States. You know what that weather pattern is doing – it is making us very cold – because the colors and graphics tell us that.

He’s looking us in the eye, but talking about the complicated weather patterns graphically displayed behind him – he’s explaining complex things to us in a way that we understand even though we are not meteorologists.  

Here’s America’s beloved weatherman, Al Roker of the Today Show explaining how to talk to a graphic like this:

What’s the benefit of following the “TV news” style of presenting? First, it allows you to use an immersive visual technique without it seeming over-done. Second, you’ll be presenting your case to the jury in a way that they expect and are very comfortable with. You’ll be able to connect with your jurors, you’ll make the trial more entertaining and enjoyable for them, and they’ll appreciate it. As Dr. Angelou said, they’ll remember how you made them feel, and it will have an impact when they decide the outcome of our case. If you choose not to follow the advice of this article you risk alienating, confusing, irritating, boring, or otherwise losing your jury-audience. This is disastrous for trial lawyers.

What’s the benefit of following the “TV news” style of presenting? First, it allows you to use an immersive visual technique without it seeming over-done. Second, you’ll be presenting your case to the jury in a way that they expect and are very comfortable with. You’ll be able to connect with your jurors, you’ll make the trial more entertaining and enjoyable for them, and they’ll appreciate it. As Dr. Angelou said, they’ll remember how you made them feel, and it will have an impact when they decide the outcome of our case. If you choose not to follow the advice of this article you risk alienating, confusing, irritating, boring, or otherwise losing your jury-audience. This is disastrous for trial lawyers.

When litigators come to us for the first time seeking litigation graphics for their trial, they usually say things like “I need a graphic that shows ________” (fill in this blank with any complex issue that’s hard to explain) rather than I need a visual presentation that supports this story, these themes, and tracks this opening statement. Once they get it, though, it’s the later they understand they really need and want. The complicated issues in any litigation present themselves more obviously to us and are, thus, the first things litigators realize they need to educate a jury about. It’s more difficult to unveil the heart of the case, develop and story around it (why are we really here in court?), and support that story visually and in conjunction with the important evidence of the case.  Following the path I’ve set out above, developing a story, committing to supporting that story with an immersive visual presentation, and presenting the story and visuals in the “TV news” technique will make you a better litigator.

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

Tags: Trial Graphics, Litigation Graphics, Trial Presentation, Jury Consulting, Courtroom Presentations, Litigation Consulting, Demonstrative Evidence, Storytelling, Information Design

A Tale of Two Patent Trial Presentation Styles [CVN Video]

Posted by Ryan Flax on Wed, Nov 5, 2014 @ 03:37 PM

 

patent-trial-presentation-style-cvnby Ryan H. Flax, Esq.
Managing Director, Litigation Consulting
A2L Consulting

A2L has a wonderful partnership with Courtroom View Network (cvn.com), which is a warehouse of video footage of courtroom presentations of all kinds and should be a valued resource for attorneys and law school students wishing to educate themselves on the “to-dos” and “not-to-dos” of litigation argument. I have been browsing the intellectual property video footage at cvn.com and wanted to provide you two examples of different presentation styles in patent litigations: one using no graphics and one using graphics.  I compare and contrast these presentations below.

First, here is a 5 minute video of attorney Joseph Zito introducing a patent at suit and discussing its technology, a bone screw. Watch it and then see my commentary after the jump.

patent-trial-presentation-style-courtroom

What did we just see?  This was a Markman hearing – the hearing before the court where counsel argues for a certain interpretation of the patent’s claims as a matter of law. The judge is the audience – there’s no jury at this point.

You see that Mr. Zito has elected not to use any litigation graphics to help him explain the technology or to argue his case. Instead, he’s chosen to use an ELMO overhead camera machine to show paper documents, including the patent and his claim charts. He explains the technology by flipping the patent’s pages to its drawings.  He explains the claims at issue by pointing to his claim charts that quote the patent’s claims. He’s also decided to showcase his fingers and pen.

Did you find what Mr. Zito had to say interesting? Did you particularly follow any of what he said? Did you find it easy to watch all 5 minutes of the argument?

I did not find Mr. Zito’s argument interesting, and I must admit that I found myself daydreaming just a little during the brief 5 minutes of video. The technology here is not super-complicated. It’s basically a screw with a threaded head and how it interacts with a bone plate. This is not too hard to understand, but I don’t feel I really get much of what Mr. Zito wants to argue and he sure hasn’t made bone screw technology interesting (it could have been to me as I’m quite partial to medical device technology).

Now let’s watch another courtroom video. Here is another 5 minutes of another attorney, John Adkisson, who, similar to Mr. Zito, introduces a patent in suit and its technology (completely different case).  Watch it and see my commentary after the jump.

patent-litigation-trial-presentation-style-courtroom

What did we see here?  Attorney Adkisson made, what I believe, a more interesting presentation – and, all things being equal, a better trial presentation.

First, we see Mr. Adkisson adhere to our first rule of persuasion: frame your case as a story. He introduces his client and the inventor and sets the scene for the judge. He asks and answers the all-important question of “why are we really here?” – we're here because of (Professor) Dr. Paul Blum’s invention in hyperthermophillic organisms (whatever that is).

Moreover, Mr. Adkisson uses litigation graphics to make his case. He hasn’t yet gotten to the real meat of his arguments yet, but we know what patent is at issue here, what the invention is about, which claims are being asserted, and how they might be infringed. Furthermore, Mr. Adkisson uses an immersive presentation style where he always shows the judge a graphic while he makes his argument – this is the only way to significantly improve your persuasiveness using visual support.

I’m not saying that Mr. Adkisson’s trial presentation/argument style was perfect – far from it.  He made some elementary mistakes that could wind up killing his presentation, e.g., using bullet points, not animating his graphics, simultaneously saying what’s written on his PowerPoint slide.  However, he did a far better job using litigation graphics than Mr. Zito did without litigation graphics.

What do you think?  Which style of trial presentation did you find more interesting? Which held your attention longer? Which presentation’s information did you feel you understood better and
which did you retain longer? I’d say the second one, but I’d love to hear from you.

Other A2L Consulting articles and resources related to storytelling, patent litigation, Markman hearings, trial presentation and litigation graphics:

Tags: Markman Hearings, Trial Graphics, Litigation Graphics, Trial Presentation, Courtroom Presentations, Patent Litigation, Storytelling

6 Ways We Just Made This Blog Better For You

Posted by Ken Lopez on Tue, Nov 4, 2014 @ 05:23 PM

 

litigation-consulting-report-blog-a2lby Ken Lopez
Founder/CEO
A2L Consulting

A2L Consulting's Litigation Consulting Report blog is successful by any measure, and we're very proud of that fact. We have gone from no subscribers to 5,500 subscribers in under four years, the ABA has named it one of the very top litigation blogs (and in the top 100 for any legal blog), plus the rate at which new readers are subscribing is actually accelerating. If you have not claimed your free subscription, you can do so by clicking here.

However, just because things are going great, we are most definitely not standing still when it comes to delivering new and innovative content and features. In fact, we have just made some major blog upgrades that I want to highlight for you so that you can have the best reading experience possible.

1) You can now change how often you are notified about new articles. It used to be the case that you were notified of new articles every time we published one, and that was your only option. Now, you can choose instant, daily, weekly or monthly notifications. We generally publish between two and four articles per week, so you choose the frequency that is right for you. Click here to set your new article notification preferences.

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2) The Litigation Consulting Report looks beautiful on all your devices. Our blog now incorporates responsive design which means that it looks equally good on a PC, tablet or mobile device. Agree? Comment below.

3) New article emails include a preview of the article. It used to be the case that we could only send the title of an article out by email when we published a new article. Now, each notification email includes a preview of the article with a "read more" prompt. This allows you to better spend your time reading only the articles that are valuable for you.

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4) New article emails allow you to share the article. Many people enjoy sharing content these days whether it is on a LinkedIn Group, Facebook or whether it means simply emailing a friend. The "share article" buttons on the notification email allow for instant sharing to friends and networks.

5) Wider variety of content. Just as our blog has grown over the past four years so has A2L's business. Whereas our work was almost exclusively litigation-focused four years ago, now we're increasingly being called upon to support advocacy organizations and others seeking to persuade skeptical audiences. We're also being contacted by in-house counsel more often than we used to be. Accordingly, our blog topics are broadening, and while they will almost always be persuasion-related, they may not always be litigation-focused.

6) Better commenting features. Now, it is easier than ever to leave a comment about an article. You can even comment on comments. I encouraged you to use comments as a good feedback system. They comment section is at the bottom of every article.

I hope you find these new features helpful. Please comment and let me know.

 

 

 

Phone Surveys Aren't What They Used To Be

Posted by Laurie Kuslansky on Fri, Oct 31, 2014 @ 12:59 PM

 

phone-survey-mock-juror-jury-juriesby Laurie R. Kuslansky, Ph.D.
Managing Director, Jury Consulting
A2L Consulting

Research has shown that a variety of individuals are not fully represented in telephone surveys, especially Democrats,[1] the young, nonwhite, and urban voters who can be the hardest for pollsters to reach.[2]

In addition, the migration from landline phones associated with home addresses to portable cell phones unrelated to home addresses compounds the problem of reaching and surveying a representative sample using traditional approaches to phone surveys.

And, not all venues were created equally. Some have more hard-to-reach residents, while some have more cell phones replacing landlines. 

In general, “It has become increasingly difficult to contact potential respondents and to persuade them to participate,”[3] dropping from 36% in 1997 to 9% now willing to participate in phone surveys.

Consequences?

There are many.  To name a few:

Lower representativeness of people willing to respond to phone surveys requires taking additional measures to assure a representative sample, but the options aren’t ideal:

  • Even if you weight the sample, you may simply be giving undue weight to those you reach who may not actually match the ones you missed;
  • It may cost more money to buy additional samples to get a sufficient number of people who represent a particular category.

o    For example, if you are seeking to survey jury-eligible adults and voter registration is one of the requirements, you may have to spend extra money and buy a list of registered voters if not enough people in the normal random digit dialing (RDD) sample turn up eligible to be a juror, assuming they answer the phone and are willing to answer questions in the first place... and 91% on average are not.

  • You may have to spend more money and/or time to reach a reasonable representative sample because of the low incidence rate (i.e., people willing and able to complete the survey). This approach has improved the field rate of responses from the 9% average to 22%,[4] but added time means added cost.

Are people who answer telephone surveys different than people who don’t?

Yes. Among other things, people who engage significantly more in volunteerism and civic activity are more likely to agree to participate in telephone surveys than people who do not.”[5] Intuitively, this makes sense.

What does this mean for telephone surveys of mock jurors?

  • Anecdotally, the kinds of people unwilling to agree to participate in phone surveys are more similar to people unwilling to be on a jury than those who end up as jurors.  Hence, those who respond to surveys are perhaps a better representation of likely jurors than those who do not.
  • Financial information tends to be hard to gather in phone surveys in general.  If that information is pertinent to a jury study, it can perhaps be gleaned indirectly from other factors (education, employment, home ownership, marital status, etc.). Instead of the specific dollar amounts, one might be able to code someone who has more vs. fewer markers of likely affluence vs. poverty;
  • Many work to design the sample of a study by first referring to the latest (2010) Census data and the ACS (American Community Survey) estimates, but they are somewhat off, especially in terms of under-estimating the rise of Hispanics.  The problem is that such information is often the only or best available data. Other options that may be more current are real-estate websites that describe communities as well as anecdotal information from local counsel about a particular jury pool. Putting together the specifications for the polling sample is part of the art and science of polling.

Are There Any Solutions? 

Yes. “A new study by the Pew Research Center for the People & the Press finds that, despite declining response rates, telephone surveys that include landlines and cell phones and are weighted to match the demographic composition of the population continue to provide accurate data on most political, social and economic measures.”[6] 

In addition to the technical issues that depress response rates, one should also consider how easy or hard you make it for someone to reply to the questions. Shorter and easier are better than longer and more difficult.  Questions that require greater effort or too many questions are more likely to end up being asked, but not answered.

Ironically, the data that are missing is that which describe people who don't take surveys or end up making much difference on juries.

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

 

[1] Midterm Calculus - Why Polls Tend to Undercount Democrats by Nate Cohn, The Upshot, N.Y. Times 10/30/14 at http://www.nytimes.com/2014/10/30/upshot/why-polls-tend-to-undercount-democrats.html?_r=0&abt=0002&abg=1

[2] Assessing the Representativeness of Public Opinion Surveys, by Pew Research Center for the People and The Press, 5/15/12 at http://www.people-press.org/2012/05/15/assessing-the-representativeness-of-public-opinion-surveys/

[3] Op. Cit. at Pew

[4] Op. Cit. at Pew

[5] See Katherine G. Abraham, Sara Helms and Stanley Presser. 2009. “How Social Processes Distort Measurement: The Impact of Survey Nonresponse on Estimates of Volunteer Work in the United States.” Am. J. of Soc. 114: 1129-1165. Roger Tourangeau, Robert M. Groves and Cleo D. Redline. 2010. “Sensitive Topics and Reluctant Respondents: Demonstrating a Link between Nonresponse Bias and Measurement Error.” Public Opinion Quarterly 74: 413-432. 

[6] Post-election assessments of poll accuracy by the National Council of Public Polls at http://ncpp.org/files/NCPP%20Election%20Poll%20Analysis%202012%20-%20FINAL%20012413.pdf

 

Tags: Jury Questionnaire, Jury Consulting, Mock Trial, Litigation Consulting, Juries, Jury Consultants, Jury Selection, Phone Survey

The 5 Very Best Reasons to Conduct a Mock Trial

Posted by Kaitlin Rothstein on Wed, Oct 29, 2014 @ 03:59 PM

 

mock-trial-jury-consultants-dc-va-ny-de-pa-nj-fl-tx-ca-ilby Kaitlin Rothstein 
A2L Consulting

Have you ever noticed that when you have someone else take a look at a problem or help edit a document, they find another way to address the issue or find additional areas that can be tweaked?  That is what mock trials serve as, a tool to put additional eyes and minds on a massive set of data and find out where it can be fine tuned and perfected. 

The purpose of the mock trial is to educate the lawyers and clients on the case’s strengths and weaknesses and find where it can be enhanced. If you are on the fence about using a mock trial, think about these important ways that one could enhance your case:

1. Mock trials are very helpful in assisting in the fine-tuning of story formatting and trial presentation

  • Storytelling and proper presentation style for the audience is key for persuasion
  • Learn how to tell the story to properly teach the jury or approach the topic with a judge
  • Allow you to test litigation graphics and themes on an audience to see reaction, level of understanding, and persuasion.
  • See Storytelling at Trial: Will Your Story be Used?

2. Mock trials help you see the case from the other side: in the weeds vs. fresh perspective

3. Mock trials cause you to find gaps in your case (that you didn’t even know were there)

  • You can get feedback from the mock jurors on what they did and didn’t understand, what did and didn’t work, or if there were issues missing in the presentation of the case.
  • See 10 Things Every Mock Jury Ever Has Said

4. Mock trials assist in evaluating case themes and stories

  • The mock jury will give feedback on the case and which themes worked and helped them along in their decisions and which ones were not helpful for your case.  While you may think that each theme is appropriate and key, you may learn that one should be left out or changed.
  • You may also find out which themes are sound but need more explanation, through support (visual or litigation graphic development)
  • This will also give you insight into how your jury will think, process, and determine the outcome of your case. This will help you to tailor how you respond, how you say it to hit home the hardest.
  • See Planning For Courtroom Persuasion? Use a Two-Track Trial Strategy

5. Mock trials allow you to hone your skills

  • There is no such thing as too much practice
  • Practicing to get comfortable with the materials, practicing to get comfortable with the venue, practicing to be well polished and confident but not slick, are all great benefits of mock trials
  • This focused preparation will come in handy during the heat of the day
  • See Practice is a Crucial Piece of the Storytelling Puzzle

Other articles from A2L Consulting about mock trials, mock juries, storytelling, practice and jury consulting:




Tags: Trial Graphics, Litigation Graphics, Jury Consulting, Mock Trial, Demonstrative Evidence, Jury Consultants, Storytelling, Practice, Persuasion

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    Authors

    KenLopez resized 152

    Ken Lopez founded A2L Consulting in 1995. The firm has since worked with litigators from all major law firms on more than 10,000 cases with over $2 trillion cumulatively at stake.  The A2L team is comprised of psychologists, jury consultants, trial consultants, litigation consultants, attorneys and information designers who provide jury consulting, litigation graphics and trial technology.  Ken Lopez can be reached at lopez@A2LC.com.


    ryanflax blog litigation consultant 

    Ryan H. Flax, Esq., Managing Director, Litigation Consulting, joined A2L Consulting on the heels of practicing Intellectual Property (IP) law as part of the Intellectual Property team at Dickstein Shapiro LLP, a national law firm based in Washington, DC.  Over the course of his career, Ryan has obtained jury verdicts totaling well over $1 billion in damages on behalf of his clients and has helped clients navigate the turbulent waters of their competitors’ patents.  Ryan can be reached at flax@a2lc.com.


    dr laurie kuslansky jury consultant a2l consulting
    Laurie R. Kuslansky, Ph.D, Managing Director, Trial & Jury Consulting, has conducted over 400 mock trials in more than 1,000 litigation engagements over the past 20 years. Dr. Kuslansky's goal is to provide the highest level of personalized client service possible whether one's need involves a mock trial, witness preparation, jury selection or a mock exercise not involving a jury. Dr. Kuslansky can be reached at kuslansky@A2LC.com.

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