Posted by
Ken Lopez on Mon, May 20, 2013 @ 09:00 AM
by Ken Lopez
Founder/CEO
A2L Consulting
I believe that jury consulting has been done the wrong way for 40 years -- at least the way most people do it. I want to share some new ideas, best practices, beliefs and around-the-corner thinking about trial consulting (a/k/a jury research, jury consulting, litigation consulting). If you can see how trial consulting is changing and will change, you will see how it has become more valuable than it was even five years ago and how bright its future is.
Why do I think there is a jury consulting problem? I had a potential client say to me recently, “We need your trial presentation help, but I want you to know that I don't believe in jury consulting.” He was surprised when I said, “I agree,” because I knew what he meant.
To clarify a key point: I was very proud when A2L Consulting was recently voted the #1 jury consulting firm by the readers of Legal Times. Our jury consultants are amazing industry veterans, they do amazing work, and obviously the legal marketplace agrees with me -- but they don't do it exactly the same way people did it 10, 20, 30 or 40 years ago. That's why I believe we’re being recognized on the national stage so often for both jury consulting and litigation graphics consulting, separately.
When that client pushed back on jury consulting, I deeply empathized. It turns out that jury consulting, as it is largely perceived and has largely been conducted, is the kind of thing that you either believe in or you don't, and everyone who has an opinion is pretty sure they are right.
Like many of you, I've watched countless mock trials, focus groups and related events, and they mostly look the same, right? Jurors are recruited, arguments are made for both sides of the case, jurors are sent to various rooms, and we consultants and litigators run between poorly decorated one-way mirrored rooms or hotel suites collecting insights from the deliberations. At the end, we gather around the jury consulting guru and are offered early words of wisdom -- weeks before we get the final 200-page report. Don't get me wrong, we learn a lot from this process, we win cases because we do this work, and cases get settled because of what happens in these dark rooms. And so it's been done for 40 years.
But, 40 years ago, seat belts were just catching on, you smoked at the doctor's office, and we used the miracle-like asbestos everywhere we could. We've improved those things, right? So, why is it that most jury consulting organizations are conducting jury research efforts roughly the same way they did in the 1980s or 1990s? Where's the improvement? How have they evolved with the changes in the litigation landscape? Remember when e-filing was “new”? Or when discovery wasn’t done electronically? The old arena is forever changed, and we must change to remain relevant.
We and some other leading jury consultants are doing some amazing work in this area, and we are changing the field for the better. In the sincere spirit of elevating the industry, here’s a behind-the-scenes look at some of the work we are doing and at some of the advances you can expect to see soon.
1. Blending of Testing Between Litigation Graphics & Arguments: There is broad scientific consensus that the majority of jurors learn best visually. I have seen a single graphic win a case. Yet, it is beyond perplexing to me that most jury consulting firms neglect to seriously test (or test at all) visual presentations during mock trials. Few meaningful suggestions for graphics come out of most jury exercises. This is, thankfully, changing, and we wrote about the need for testing trial graphics in mock trials in 2011.
2. Biometric Testing: We're testing a variety of objective biometric measures -- not people pushing a silly little button when they like something for a moment -- to measure sentiment and real reactions to arguments and graphics. Marketers have been using this approach for years, and we're in the testing stages of bringing this to the legal industry. Expect to see more of this in the future.
3. Massively Distributed Argument Testing: If there is a theme of this decade in business, it is disaggregation, and I love it. We're getting rid of middlemen everywhere from entertainment to car dealers to computers to art. The same is true in jury consulting. Increasingly, we are able to use venue-specific groups of people to test narrow slices of a case and then ‘reassemble’ those results to get a sense of reactions to arguments, evidence and graphics without revealing the overall context of our inquiry to protect confidentiality. This is cutting-edge work, and you can expect to hear more about this from our firm. Maybe you just want to know whether or not your defendant should testify, or whether to put on alternative damages, or decide which expert is better received. No need for the Full Monty.
4. Near-Real Time Testing: Social media, the Internet and the rise of crowdsourcing have given rise to a virtual social computer that is the minds of thousands or millions of people. With tools we are using now, we can ask 10,000 people in a particular venue which litigation graphic tells a particular story best and have an answer in minutes, not days or weeks, with a robust sample size.
5. More Easily Targeted Demographics: Social media allows us to quickly identify a group of forty-ish women in a small Midwestern town who prefer one political party over another. Now, not every potential juror is on social media, but we know a certain percentage will be. And, the better we can replicate the demographics of a jury pool, the better we can test a case. Perhaps you are especially concerned with people most like your opposing party. It no longer has to be a theoretical inquiry – it can be tested rapidly and cost-effectively.
6. Blending of Services & Service Providers: There used to be jury consultants and there used to be litigation graphics consultants and there used to be image/acting/communication consultants all serving in their various silos. Now, these are either found under one roof, or you have a problem.
7. Cost Efficiency: With most jury consulting efforts in large civil cases costing in the multiple six figures, there is a compelling need to achieve cost efficiencies by offering tiered services and utilizing technology. We're doing both, using tools like our micro-mock and creating custom research designs that fit the needs and the budget. For 40 years, most providers have had cookie-cutter formats that are used over and over, but that’s no longer the way to go.
8. Moving the Focus to Practice: I think there was real hope when jury consulting started back in the 1970s and 1980s that it would reliably predict the outcomes of cases, but I don't think you'll hear many credible jury consultants suggest this anymore. We do learn a ton from each exercise, however, and this provides enormous value to clients. I think we should be spending more time on something simple that mock trials help with -- practice. As my colleague Ryan Flax often says, we call it the practice of law, but there is very little practicing going on. I think that's brilliant. With his clients, he is encouraging more practice through a variety of unique events that are not as pricey as a full-blown mock exercise. By using a savvy outside consultant who can observe, critique, and help improve the form and substance of presentations and the visual support that bring them to life, a fortune can be spared instead of spent.
9. Data, Big Data and More Data - I frown on the term “big data.” I think it is a silly rebranding of something that's always existed. That said, as we now have tools that allow us to process large datasets, we can now do more with the data we collect. This includes analyzing arguments, word use, comparing various graphics options to find a winner - just as marketers have been doing for decades - and now in near-real time.
10. Predictive Beliefs Based on Social Media: Did you know that you can reliably predict someone's personality and behaviors if you have access to their social media? Well, it's true. We can tell you how someone is likely to vote, whether they'll likely be a smoker, or how they'll feel about environmental issues. They don't even have to talk about these things on Facebook directly. We can actually predict their behavior if we have enough data. This knowledge will be used in jury selection and to help move public opinion on various issues.
11. Longer Term Opinion Shifting: Increasingly, our work is focused both on litigation and on issue advocacy, and increasingly they are linked. So, when we are asked to help shift public opinion on an issue, we have to measure it. With the tools we have available to us, we can reliably measure public opinion on an issue over time. As litigation, public opinion and legislative action come closer to one another with time, expect to see more and more law firms directing this type of work.
12. Judge Consulting: I think we've done as many mock bench trials in the past three years as we have mock jury trial exercises. I'm still not even sure what to call the service. Obviously, it's not jury consulting, so I guess we'll call it trial consulting. As more and more data is available about judges, it becomes easier to simulate the environment of a bench trial, and so that's exactly what we're doing here, even in appellate arguments.
13. Earlier Evaluation: Considering that 98 percent of cases settle before trial, the optimal timing to involve outside experts to evaluate and troubleshoot a case is in discovery when there’s time to shape the arguments, attacks, and prepare for depositions better – where the real battle is actually being waged and the groundwork laid for dispositive motions. That’s the time to bring in a trial consultant.
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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by Laurie Kuslansky, Ph.D.
Although pop culture cases that capture the nation’s attention are hardly typical of trials today, many viewers believe they are and they tend to set unrealistic expectations for those who may be called for jury duty or to serve on a jury. They may expect more experts, more drama, and more interest than the reality at most trials. This underscores the need for clear presentations, litigation graphics, and experts who are aware of the added burden publicized trials may place on them.
There are various high-profile cases in the public’s awareness. One such current case is the Jodi Arias case in Phoenix, in which a young woman was just convicted of the murder of her ex-boyfriend and found to be eligible for the death penalty.
Why is there so much interest in such cases? Why the national obsession? There are several reasons. Here are some of them.
1. Because we expect evil to really look evil
2. They strike fear in our hearts and often have an odd fascination, since – but for the outcome – the situation was so normal.
As in the Arias case: Man meets woman. Man dates woman. Man and woman have sex. Woman becomes possessive and jealous, so man wants out, but likes the sex. Man and woman break up, make up, break up, but still have sex. Woman becomes a booty call until man reaches breaking point and wants out for good. If every man who had a booty call were slaughtered for it not being true love, how many would be left?
What should have happened next? Nothing. They go their separate ways.
What happened here, however, was a train off the tracks: Woman stalked man, repeatedly slashed his tires, hacked his Facebook, hacked his emails, checked his messages, spied on him from outside his home hiding in the bushes, sneaked into his home and stayed there, slept under his Christmas tree, recorded their phone calls, stole an engagement ring from his home, sent threatening emails to him and his ex-girlfriend, had sex with him, then, when her last-ditch effort to manipulate him back through sex didn’t work anymore, she slaughtered him.
This case raises questions that could affect almost anyone because it is terrifying to the core to know that someone who appears normal could be so crazy and violent. The same held true in the cases of the Menendez brothers and O.J. Simpson.
3. Often, we believe the tragic outcome could and should have been prevented, but it wasn’t.
The only way this tragedy could have happened was for every red flag to be ignored and unheeded, and it was. It is unfathomable that such extreme events went unchecked, and it is hard to believe that it could only have been stopped with the benefit of hindsight:
Jodi’s parents observed extreme and abnormal behaviors first-hand for years (extreme, unexplained mood swings, hitting her mother, moving out as a minor, claiming things that never happened), so they felt they needed to get her psychological help – but they didn’t.
They got multiple calls in the middle of the night from her friends urging them to get her psychological help because she was acting abnormally – but they didn’t.
Her father assumed she had bipolar disorder and told her to get help – but she didn’t.
Friends of Travis Alexander, the murdered man, were alarmed that Jodi was stalking him. Her eyes were creepy. She was distant. Her soul was empty. She was eavesdropping. He made excuses for her. He was emotionally blackmailed that she’d kill herself if he left her. They warned him that she was trouble and to get out – but he didn’t.
4. We are often dumbfounded by the conviction, frequency and speed with which someone can lie and with the narcissism that they exhibit.
Jodi’s behavior defies our wildest expectations of human behavior. It does not fit with anything in our own normal experience, conscience, or imagination. Simply put, how and how much she lied is unbelievable itself.
Instead of showing remorse, she reveled in herself and enjoyed all the attention, utterly detached from reality. She was often cocky and pleased with herself, with an answer for everything. She sought media attention before trial. When asked to explain why she smiled for her mug shot, she replied, “There`s no reason to be upset over this in my mind. Everything -- I have faith and in the end everything will be made known, everything will come out and in the meantime, smile and say ‘cheese.’ ”
She wrote a manifesto, sold sketches from the courtroom, tweeted during trial through others, planned to be free and famous, sniped on the stand and displayed delight with herself when sparring on cross examination, always couched herself as the victim or hero, gave an interview within an hour of being convicted, but apologized to no one and shed tears for no one but herself.
What is the impact of these cases?
It is important to know whether prospective jurors have viewed them, how consistently, and what impressions they formed from them. If you don’t have many experts in your case, will they think you didn’t make your case? If they ignored a lot of evidence, will they need summary graphics or tutorial graphics to track the evidence better? Do they tend to watch courtroom or police dramas? Do they think that is how it actually works?
In these days of televised courtroom dramas playing out publicly, it is important to know what’s in prospective jurors’ minds when you face them at trial and to do what is needed to satisfy them if they end up on your jury.
Other articles and resources related jury consulting, experts and courtroom presentations on A2L Consulting's site:
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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Posted by
Ken Lopez on Mon, May 13, 2013 @ 08:30 AM
by Ken Lopez
Founder/CEO
A2L Consulting
We at A2L Consulting have just published a new, completely free, e-book that anyone who’s interested in trials and litigation should have. No more comprehensive volume on litigation graphics exists, at any price.
In 74 articles and 219 pages, we show that there was a good reason A2L was voted the number one litigation graphics firm in the United States in a survey of 5,000 legal industry experts in the National Law Journal this year.
The book represents our best practices – lessons we have learned from 18 years of consulting on litigation graphics with the nation's best litigators in thousands of cases. We're a unique firm that combines Ph.D. social scientists, litigators, attorneys, information designers and courtroom technologists.
After all, litigation graphics is at the heart of what we do here. Many people refer to litigation graphics by other names such as trial graphics, demonstrative evidence, trial exhibits, courtroom graphics, courtroom animations, or even scale models. Together, they represent a visual medium that, according to the latest scientific studies, is virtually required for litigators who are in front of judges and juries. That’s because of the way people learn: Only a minority of human beings learn primarily from persuasive verbal arguments. More people learn through what they see.
In addition, most people tend to focus on the use of litigation graphics in trials. And they certainly are used in trials before juries and judges. What some people may not realize is that despite the common name “trial graphics,” this technique is used in dozens of other contexts as well – in motions, briefs, pretrial hearings, lobbying presentations to government officials, settlement discussions, pre-indictment meetings, and others.
So we have just put together our latest e-book, entitled “Using & Creating Litigation Graphics to Persuade.” This book pulls together A2L Consulting's best articles on litigation graphics. We cover a wide variety of legal subject areas including patent litigation graphics, antitrust litigation graphics, labor litigation graphics, environmental litigation graphics and much more.
The e-book is recommended for anyone who wants to know how litigation graphics really work. It features such topics as “Litigation Graphics, Psychology and Color Meaning,” “Information Design and Litigation Graphics,” “Seven Ways to Prepare Trial Graphics Early & Manage Your Budget,” “Why Patent Trial Graphics Matter -- And Not Just for Confused Jurors,” “Top Five Trial Timeline Tips,” “Antitrust Litigation Graphics: Monopoly Power and Price Fixing,” “Trademark Litigation Graphics: Making Your Best Visual Case,” “Legal Animation: Learn About the Four Types Used in the Courtroom,” and “Using Scale Models as Demonstrative Evidence – A Winning Trial Tactic.”
Read this book, and you will be well on your journey to becoming a litigation graphics professional, or at least to understanding how litigation graphics professionals do their jobs.
Enjoy the book, write me to offer feedback and by all means let me know if you have any questions about a case you are involved with. I'd be happy to speak with you.
Download Using & Creating Litigation Graphics to Persuade now.
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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Posted by
Ken Lopez on Thu, May 09, 2013 @ 06:00 AM
by Ken Lopez
Founder/CEO
A2L Consulting
I frequently help lawyers craft presentations – whether it’s the opening statement of a litigator, a pitch presentation for a law firm, or a seminar presentation for a corporate lawyer. And I too am often called upon to speak at events or even off the cuff to a group.
After a good bit of trial and error, I have found two nearly foolproof ways of organizing any of these talks that I use almost invariably, whatever the context may be.
The great thing about these models is that you can use them in an off-the-cuff speech just as well as you can in a highly scripted presentation. Whether it's the courtroom or your kid's school, these models work wonders. You will come off as inspiring, not just informative. You will appear confident. You will also be seen as following modern presentation styles – the spoken equivalent of using an electronic presentation versus using transparent overhead slides.
To understand these new approaches, which have become common in TED Talks, on the professional speaking circuit, and among A2L’s clients, you need to understand the old format and why it is a recipe for audience disconnection and boredom. It goes something like this:
"Hi, I'm Ken Lopez. Thanks for having me here this morning. It's a real pleasure to speak to a group like you.
I founded A2L Consulting in 1995, and today I am going to talk to you about litigation consulting. If you heed my message about conducting mock trials, using litigation graphics and relying on trial technicians in court, you are going to be at the top of your game in the modern courtroom."
Okay, it’s accurate, but it’s flat. And it gets worse. The agenda slide comes up. Ugh. The parade of bullet points starts marching across the screen. Ugh again.
Compare this with the following approach. These will be the first words you hear from me:
"Litigation consulting is a process that helps people like you, the world's best communicators, persuade even more effectively. For your must-win cases, it is a must-do and includes a three-stage system of structured practice including mock trials, the consultative creation of litigation graphics to bring your trial story alive, and flawless courtroom document and electronics handling by trial technicians who make you look like a star. Your judge and jury will reward your fine preparation.
I'm Ken Lopez, and I'm the Founder/CEO of A2L Consulting, the world's best litigation consulting firm."
Delivered the right way, with the right pauses and the right tone, version two should have left you feeling something entirely different than version one. It should have left you feeling. And that's no accident.
I'm using a format that I call BELIEF - ACTION - BENEFIT. I learned it from a professional speech coach many years ago. Essentially, it goes like this:
I believe ____, I think you should do _____, and if you do, the benefit will be _____. Then introduce yourself. Then go into detail about what you believe, what actions you want your audience to take and how they will benefit by doing so. Finally, repeat your initial belief - action - benefit statement.
This process needs to be modified to suit your situation. What a lawyer believes is not really relevant to an opening statement, so the belief - action - benefit approach needs to be couched a bit differently -- more like "Plaintiffs, self-described patent trolls, are attempting to wrongfully extort money from my client. You have a chance to make this right. If you do, you'll be standing up for small business and all that is just and right."
One well-known speaker who offers a similar format is Simon Sinek. He points to the golden circle of communication that follows a pattern of WHY - HOW - WHAT, whereas most people communicate the opposite way WHAT - HOW - WHY, which is exactly what I used in my first uninspiring example. Look at Simon's now legendary TEDx Talk:
I think Simon's format is extraordinary and pretty similar to BELIEF - ACTION - BENEFIT. I tend to weave both formats together when developing a story for trial, but when I am speaking off the cuff, I just find BELIEF - ACTION - BENEFIT to be a bit easier to remember. However you look at it, I bet this is not the presentation you would have given a year ago, or even a week ago.
Here's a chart that will help you visualize both approaches. Remember, most people, businesses and organizations communicate from the outside in. But to inspire rather than simply inform, communicate from the inside out.
Below are some additional articles and resources that you can find on the A2L Consulting site about storytelling, opening statements, making great presentations and giving a memorable and inspiring speech:
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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by Laurie R. Kuslansky, Ph.D.
While you know your expert is tops in their field, a jury only sees them briefly, when your expert witness may come across “witless.” Avoid pitfalls so your witness truly comes across as an expert witness.
Why do deer freeze in the headlights? Because they are built to see in low light at dawn and dusk, not bright lights. What are your expert’s blind spots?
Competence versus Performance
Lawyers often overlook the difference between competence (qualifications) and performance (real-world output). An expert witness may know a subject very well, but how would an observer know? Since there is no direct way to assess it, it is only by observing if that expert “passes the test” of testifying that observers can measure, by inferring, whether the witness possesses the knowledge of an expert witness. There are many real-life examples in which someone may have knowledge, but tests poorly. Does it mean they don’t know? No, but sometimes, only the grade matters.
When performance is successful, it reveals competence: “the ability to perform in effective ways on different occasions, including in differing and unexpected contexts” (Black, H. & Wolf, A., Knowledge and Competence. Careers and Occupational Information Centre/HMSO, London, UK., 1990).
There are generally three types of expert witnesses: Regardless of their level of competence, they have:
1) … testified so much that they are hacks/hired guns;
2) … testified enough to be confident;
3) … have never or rarely testified and are deer in the headlights.
Expert Witness - Type 1
While people experienced in a particular field (such as colleagues, competitors or the litigators) might know that a witness is a hack, it may not be apparent to jurors who lack the experience to judge them as critically. Instead, since such witnesses know how not to fall prey to classic cross-examination tactics, they tend to elicit confidence rather than skepticism. The criticism of those truly in the know may undermine the testimony, but go over the heads of the general public or jury for whom the points are too subtle and unfamiliar. It is often only when a hack overdoes it and appears “slick” -- not polished – that they lose jurors’ confidence.
Expert Witness - Type 2
Those with just enough experience to be confident without being cocky are in the sweet zone, but are hard to find. They are not absolutist and know when to stand their ground versus when to concede. They pick their battles, don’t play silly word games, and behave similarly on direct and cross examinations. They aren’t know-it-alls. They don’t freeze under attack, offer good examples, and speak in plain language. They aren’t “canned,” but candid.
Expert Witness - Type 3
A common mistake litigators tend to make is hiring an expert witness of the third type – one from a rare field with no experience testifying. Because it can be challenging to find an expert in an esoteric field, counsel may be put in the position of choosing someone without experience testifying. Such “experts” know their stuff – but only to those who already know their stuff, too. When they cannot communicate what they know effectively and lay jurors observe them flail when faced with skilled cross examiners, the expertise gets missed, but the flailing doesn’t.
What can interfere with performance?
- Anxiety over loss of control, unpreparedness or inexperience, causing intrusive thoughts that interfere with task-focused thinking
- Stress that decreases memory, information processing and attention
- Mood, sleep-deprivation, hunger, or impaired state
- Naïveté
- Distraction from the current question, anticipating to forestall future challenges
- Fear that conceding anything shows weakness
When a situational challenge is imposed externally (as opposed, say, imposed by the person himself or herself, e.g., to complete a marathon), there is a greater likelihood it will cause stress and more task-irrelevant ideas due to a perceived loss of control (Lazarus, R.S., 1982, The psychology of stress and coping. In C.D. Spielberger, et al. (Eds.), Stress and anxiety (Vol.8, pp.23-36). Wash., DC: Hemisphere).
Why Consider Competence and Performance?
For experts witnesses, subject-matter competence is necessary, but insufficient for success on the stand. In fact, for experts to consistently provide high-quality responses, litigators should place greater emphasis on how they perform in real-life legal settings, such as deposition and trial, rather than upon competence alone because jurors pay more attention to form over substance:
Why do jurors focus on performance over competence?
Because that is what they know – actions, not words. Jurors typically lack the expertise to appreciate nuances of the placement of a carbon atom, the DSM IV-TR, or the standard of care, but they know when someone looks nervous or evasive. A witness may be very competent in their field, but lack skill in performance, i.e., be poor at fielding questions and responding properly, yielding an expert that is witless. If their “look” isn’t as good as their book, jurors will miss their points. Conversely, a witness less competent in their field, but a great performer, may be perceived as a better expert witness.
Although counsel may spend hours and thousands of client dollars word-smithing an expert’s message, they may miss problems with the messenger – what they communicate through their demeanor which comes across loud and clear to anyone watching from the outside, but not by counsel.
12 Common mistakes that can make experts seem witless:
1) Attacking the questioner, not the question
2) Taking it personally
3) Being absolutist without picking battles
4) Reversing positions
5) Asking to repeat questions as a stalling tactic
6) Fighting over the meaning of words with common meaning
7) Breaking basic procedural rules: asking questions of the cross examiner, speaking over objections, making comments when there is no question pending, etc.
8) Not giving an inch, and thus, appearing unreasonable
9) Over-reaching and under-qualifying
10) Opining on subjects outside their expertise
11) Failing to use understandable litigation graphics
12) Being unavailable for or resistent to witness preparation
Case Study - The Jodi Arias Trial
In the recent criminal prosecution of accused murderer Jodi Arias, for example, the defense put forth two “experts,” Dr. Richard Samuels, clinical and forensic psychologist, and Alyce LaViolette, M.S., MFCC, a domestic violence expert.
Despite their credentials, possibly attesting to their competence (for Samuels, a Ph.D., licensed Psychologist since 1975, Diplomate and Fellow in various related disciplines; for LaViolette, a 20-page CV, M.S. in psychology and a state license in Marriage, Family and Child Counseling), both came across witless. Why?
Dr. Samuels was a mess:
- He was the subject of disciplinary action from the New Jersey Board of Psychological Examiners, a huge red flag.
- He switched theories midway through his testimony.
- He was missing crucial materials on the stand because he left them on his desk.
- He had re-scored test results when they didn’t yield the desired outcome.
- He used outdated materials.
- His work was obviously sloppy.
- He took challenges personally.
- He could not back up his positions with objective, professionally-recognized and standard testing.
- He was overdue for a haircut.
- He tried too little.
His performance was a failure.
Ms. LaViolette, personable and accessible, lacks a Ph.D. credential (a fact obvious to lay jurors). She acted like what she is – an advocate for abused women – not an unbiased expert.
- She wouldn’t reply “Yes” or “No” if her life depended on it.
- She dressed as if she were going to an organic food convention.
- She attacked the prosecutor, asking if he was angry at her.
- She made inappropriate impromptu comments, suggesting he needed a” time out” for his aggressive questioning.
- She didn’t give an inch, even when an inch was obvious.
- Playing tug of war was unresponsive.
- She believed, relied on and liked the defendant, an admitted liar.
- The way she attempted to stand her ground lost ground. She missed the difference between battle and war. In an attempt to be perfect instead of real, her opinions became more unreal. She tried too hard.
While her competence has been recognized for decades, her performance failed.
These criticisms do not go to the substance of their testimony or qualifications, i.e., competence, but to their performance.
In contrast, the prosecutor’s rebuttal witness, psychologist Janeen DeMarte, Ph.D.:
- Admitted without apology, “I would not call myself an expert in domestic violence specifically.”
- Her answers were short and sweet, “That’s correct.” “I’m aware of that.” “Yes.”
- She rejected having words put in her mouth, “Looking at that broad category that doesn’t relate to this case, yes.”
- She conceded flatly, “If those memories were not encoded, you can’t get them back.”
- She made her points and stood her ground appropriately. She didn’t strive for perfection, which is unreal, but was realistic and thus, real.
She has decades less experience than the defense experts, but her performance matched her competence. Was it enough?
As a Hail Mary, the defense put on sur-rebuttal witness, “Dr. Credentials,” licensed psychologist Robert Geffner, Ph.D., expert in family violence and sexual assault, Diplomate in two areas, professor, researcher and clinician with over 30 years of experience, who’s allegedly testified more than 100 times in 25 years. He reviewed and rescored psychological tests done by the prosecution’s expert. He conceded points and was less defensive than the prior defense experts, but still had problems:
- For hours on end, he droned on in a monotone. Length is not always strength. As Shakespeare said, “brevity is the soul of wit,” so seeing the forest for the trees was a challenge.
- He suffered from TMI, providing so much detail that he created an information overload, not impact;
- He co-edited an article by defense witness, LaViolette, they’ve referred clients to one another, and have crossed paths at conferences before;
- His “expert” testimony had been restricted or tossed out because of his reliance on a defendant’s testimony without independent verification in other cases.
- He never interviewed the (mendicant) defendant in this case (a double-edged sword)
Although he overcame the lack of credentials of LaViolette, and had more gravitas than DeMarte and Samuels, it was too much, too late. He seemed competent, but his performance was lackluster.
Finally, the prosecution’s sur-sur-rebuttal witness, Dr. Jill Hayes, licensed clinical, forensic, and neuropsychologist, with expertise in testing, rebutted Dr. Geffner. She asserted that tests are invalid if the person tested lied. She supported the methods and conclusions of the prosecution, but with more heft in experience than Dr. DeMarte. Her demeanor was assured and balanced, articulate and unflappable.
Net result in the Jodia Arias case
Justice for Travis
In the end, while no doubt a myriad of factors unrelated to the experts sealed the defendant’s fate, the fancy footwork of the defense experts could not explain away Jodi Arias’ conduct with her convenient amnesia or allegation of being a battered woman who suffered from PTSD. The defense experts’ shifting opinions, lack of objective support, reliance on her for information, and poor performance on the stand did nothing to help her.
How to prevent your expert from being witless?
1) Research their background thoroughly to make sure there are no skeletons in their closets so that red flags don’t completely undo their credibility;
2) Knowledge is power, so make sure to orient novice expert witnesses to the process, underscoring common mistakes and how to avoid them;
3) Have them watch “experts” testify on televised trials to observe what does and does not work well;
4) Explain how they can maintain control effectively, e.g., through re-direct, making sure they understand the question, avoiding letting others put words in their mouths, waiting for objections and attending to the objection’s coaching, only opining in their area of expertise, how to deflect questions, etc.
5) Dull the sting of cross examination by drilling the expert in mock cross-examinations prior to deposition and trial, especially focused on their weaknesses (Do they guess? Do they stray off campus to answer what they don’t know? If so, ask questions to elicit these behaviors and provide better alternatives).
6) Have someone unfamiliar with the expert do the mock cross so that the witness does not have a false sense of security, doesn’t feel betrayed by his or her own side, and the examiner doesn’t pull their punches in attacking questions.
7) Have the expert reverse roles with their handler to reveal the most dreaded questions and see model responses on how the subject can be handled. This works better than merely “telling” them.
8) If possible, choose an expert with impressive credentials on their surface to the common person (e.g., MIT graduate sounds more impressive than graduate of Bob’s Online College) and jurors may not understand a word they say, but may give higher grades because of the source.
9) If possible, choose a female for a field not stereotypically female-oriented – it will be perceived as better than it is, compared to a male of equal qualifications (due to the contrast effect, making the quality of their testimony exaggerated because it is unexpected, and the equity principle, whereby it is rewarded more).
10) Raise the expert’s self-awareness, asking them to consider:
- How much does the average juror know about their field?
- What visual support may help as tutorial material?
- What will jurors pay attention to in deciding?
- How will the expert draw jurors’ attention to what is most important?
- What may surprise jurors?
- What in the expert’s appearance is inconsistent with the stereotype for their profession and how can they match the stereotype better? Do cowboy boots fit jurors’ image of a scientist? Does long, unkempt hair match jurors’ expectations of an economist? Do spike heels, a lot of makeup and jewelry match jurors’ idea of a medical expert?
Assess and prepare your experts considering both competence and performance so you present an expert witness who is not witless.
For more articles about witness preparation, jury consulting or expert witnesses, see these resources on A2L Consulting's site:
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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Posted by
Ken Lopez on Tue, May 07, 2013 @ 07:00 AM
by Ken Lopez
Founder/CEO
A2L Consulting
Some companies have justifiably built a reputation for extraordinary customer service. Ritz-Carlton is one of them, but not everyone has had the opportunity to test that reputation in real life. As it happens, I recently put Ritz-Carlton to the test while I stayed at the Ritz-Carlton in Maui, Hawaii. It’s a lovely place, and my wife and I chose the Club Level for our stay.
But as can happen even at a Ritz-Carlton, some things went wrong. Actually, a lot of things went wrong. The club level was unexpectedly bought out by an unnamed VIP, and when my wife and I checked in for what was supposed to be our first real vacation without our triplets since our honeymoon in 2006, the front desk staff let us know that we would not be receiving the five meals per day and adult beverages associated with a Ritz-Carlton club level stay.
Well, I am a Ritz-Carlton vet, and I knew what this meant. I didn't need to switch into lawyer mode. On the contrary, I knew that I just needed to give them the room to make things right. And that is exactly what they did.
We were upgraded (big time), we received free meals, free drinks, discounts on what was already paid for, and, most importantly, the personalized touch of the managers, who worked diligently to make things right.
Vacation for me is a time of reflection, and I could not help but reflect on how Ritz-Carlton has systematized this level of service and indeed made it the focus of its culture. And this made me ask: As my own firm’s founder and CEO, how well would A2L Consulting live up to Ritz-Carlton standards?
Here are several of the Ritz-Carlton's principles of service, a subset of their Gold Standards, that I think are especially relevant for litigators, trial teams and a litigation consulting firm like ours. Can everyone in my company say these things as well? I hope they can.
- I build strong relationships and create guests for life.
- I am always responsive to the expressed and unexpressed wishes and needs of our guests.
- I am empowered to create unique, memorable and personal experiences for our guests.
- I own and immediately resolve guest problems.
- I am proud of my professional appearance, language and behavior.
- I protect the privacy and security of our guests, my fellow employees and the company's confidential information and assets.
As a litigator or litigation support professional, imagine if every one of your outside support firms exhibited only these six principles (translated for our industry of course) in every engagement. How good would that feel? I know I would love it if I could get this level of performance from vendors that we rely on - but all too often it's hard, right?
Well, I'm definitively declaring that any customer of A2L can expect to receive litigation consulting services, whether jury/trial consulting, litigation graphics or courtroom technical support, that are consistent with these Ritz-Carlton values. I think we get it right most of the time, and when something goes awry, we work hard to make it right - as quickly as we can. And I ask, why wouldn't you expect that from a litigation consulting firm?
Remember, you probably know what Ritz-Carlton-level service looks like, right? Well so do I, and it's what I ask our social scientists, litigators, information designers and trial techs to provide.
Other articles and resources on A2L Consulting's site that you may find helpful:
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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Posted by
Ryan Flax on Tue, Apr 30, 2013 @ 05:00 AM
by
Ryan H. Flax, Esq.
Managing Director, Litigation Consulting
A2L Consulting
As a litigation consultant, one of my primary responsibilities is to help litigation teams develop and effectively use demonstrative evidence to support their trial presentation. The primary means of doing this is to create litigation graphics, which are most commonly used as PowerPoint slides that accompany oral argument and witness testimony.
A lot of what goes into creating effective litigation graphics relies on the evidence to be presented. If the evidence relies on a document and, specifically, on a particular part of that document, a document callout is standard fare. If damages are the issue, it’s not uncommon to use a chart or table to illustrate to the jury how they should add up the money to arrive at the desired result. However, a lot more goes into designing and developing really effective litigation graphics than the clever manipulation of evidence. Did you know that color plays a major role?
Litigation graphics are almost never black and white – they almost always involve the use of color. Most colors carry psychological (and even physiological), cultural, personal, emotional, and expressive implications that can impact how persuasive you are when using them. Here’s an example:
Looking at the two photos of President Bush above, minus any personal political views you may have, which president is more trustworthy looking? I bet you said the one on the right. Do you know why?
In modern, holistic medicine, chromotherapy is used to heal with color. This form of treatment dates back millennia to ancient Egypt, China, and India. A more prominent use of color therapy occurs in environmental design, which considers the effect of color on health and behavior and develops interior design, architecture, and landscape design accordingly. An interesting example is use of the color Baker-Miller Pink (R:255, G:145, B:175), affectionately known as “drunk tank pink” because it is commonly used in jails to keep violent prisoners calm.
Human responses to color are not just biological, but are also influenced by our culture (in China the color yellow symbolizes royalty, but in Europe it’s purple that plays this role). David McCandless created this amazing color wheel (right) to illustrate how different cultures interpret colors (or “colours,” as Mr. McCandless is an author and designer from the U.K.). People (and by people, I mean jurors and judges) also respond to colors in individual ways. Although research reveals variables that help explain human responses to color, it is also true that is our own color preferences are important to us and partially dictate the effect color has on us.
Color also causes emotional effects, which depend partly on the color’s surroundings and partly on the ideas expressed by the work as a whole. There are two opposing ways to use color in graphics (as in art): local and expressive color. At one extreme is local color, which is the color that something appears when viewed under average lighting conditions, e.g., a banana is yellow. At the other extreme is expressionistic color, where artists use color to express an emotional rather than a visual truth. Just look at the famous art from Pink Floyd’s The Wall here – the use of dark blue, gray and black in the background convey an intense feeling of sadness and depression, while the blacks and reds of the figure convey danger and anguish. Both of these color concepts effect a viewer’s emotions. The expressionistic use of color is very important in the field of litigation graphics.
Why?
Jurors (and judges to an extent, as human beings) make decisions at trial based on their emotions above all else (download and read this paper on the subject by Todd E. Pettys, Associate Dean at the University of Iowa College of Law). Concepts like confirmation bias and research on decision making support this. Two thousand years ago, Aristotle observed that the most persuasive arguments are those that appeal, at least in part, to the audience’s emotions (Aristotle, On Rhetoric: A Theory of Civic Discourse 112-13 (George A. Kennedy trans. Oxford Univ. Press 2d ed. 2007).
Traditional artists have used color to evoke emotion in specific ways:
Red – heat, passion, danger, optimism
Yellow – warmth, caution, fear, cowardice
Blue – responsibility, trustworthiness, compassion, honesty, integrity, morality, coolness, quality
Orange – confidence, creativity, fun, socialness
Green – natural, healthy, harmony, cheer, friendliness, immaturity
Purple – regality, intelligence, wealth, sophistication, rank, shock
Gray – neutrality, ambiguity, dullness, somberness
Black – evil, unknown, treachery, depression, undesirability, danger, falsity
White – innocence, purity, fairness, conservatism, harmlessness, transparency
Pink – femininity, sweetness, liberalism
Brown – natural, solid, sadness
These same principles are applied today in information graphics and the graphic arts. For example, according to Mr. McCandless’s color wheel (above and at link), the color black represents and connotes authority, the color blue intelligence and rationality, and purple virtue – interestingly, he indicates no culturally based color in Western culture for wisdom or trust.
Did you ever notice how many law firm logos are blue? Why do you think that’s the case?
Here’s an exemplary litigation graphic that might be used by an expert witness using the above-discussed color principles to evoke a sense that the expert is honest, unbiased, and intelligent:
It may look simple, but a lot of thought went into its design. The overall color palate of blue, purple, and gray is intended to evoke trust and neutrality. Furthermore, the light blue color used in the text boxes is intended to again express that they are relaying true information. The accompanying icons (the check and x-marks) are similarly colored so as to relay that the top statement of opinion is trustworthy (blue) and that the second two are warnings (red) for jurors that they should not believe what they heard from the opposition’s expert witness.
If you want to be more persuasive at your next trial or hearing, let us worry about these details to help you be your best.
Here are some other articles related to litigation graphics that you may find helpful:
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.
Claim a FREE Subscription to this Blog - The Litigation Consulting Report - Quarterly iPad Giveaways for Subscribers
Posted by
Ken Lopez on Thu, Apr 25, 2013 @ 07:00 AM
by
Ken LopezFounder & CEO
A2L Consulting
At A2L Consulting, we are very interested in sharing valuable information about the litigation consulting industry with the thousands of monthly readers of our Litigation Consulting Report blog. Some of our readers are among the nation’s top litigators, some run litigation support departments, some work every day on the challenging and difficult task of putting together trial exhibits, and some are law students and other interested observers. All show a strong interest in the topics we routinely write about:
In this retrospective article, we look back at the articles we published last quarter and point to those that received the most online visitors. We’ve listed the top 15 below in descending order of their popularity among Internet users.
What I find interesting about this list is how interested our readers were in social media and how it affects the practice of law. Four of the top six articles in the list deal directly with various social media and their impact on law and litigation. Our readers, like many lawyers and observers of the legal scene, are clearly fascinated by the way in which Twitter, blogs, Facebook, YouTube, and other media are changing the daily life of attorneys. Pinterest, which is growing rapidly but which doesn’t yet have a clear impact on the legal scene, ranks ninth on the list.
It’s therefore no surprise that we recently released the Social Media Guide for Litigators and Litigation Support. It is a fascinating topic, our book is a good read, and our readers are clearly interested -- with hundreds downloading the guide in the first few hours of its release. We have little doubt that the story of social media and litigation is only in its very first chapters. Lawyers, litigation consultants and trial technicians are only beginning to tap the resources that are available and to come up with more and more creative ways to use social media in their daily lives.
Here is the list of the top 15 articles in the first quarter of 2013.
-
The 50 Best Twitter Accounts to Follow for Lawyers and Litigators
- The Top 14 Blogs for Litigators & Litigation Support Professionals
-
The 12 Worst PowerPoint Mistakes Litigators Make
-
10 Outstanding YouTube Channels for Litigators and Litigation Support
-
20 Great Courtroom Storytelling Articles from Trial Experts
-
21 Valuable Facebook Pages for Litigators and Litigation Support
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5 Signs of a Dysfunctional Trial Team (and What to Do About It)
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3 Ways to Force Yourself to Practice Your Trial Presentation
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8 Videos and 7 Articles About the Science of Courtroom Persuasion
-
10 Pinterest Pinboards for Lawyers, Litigators & Litigation Support
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[Free E-Book] The Complex Civil Litigation Trial Guide
-
5 Problems with Trial Graphics
-
[Free E-Book] The Litigation Support Toolkit - 2nd Edition
-
Introducing a New Litigation Consulting Service: the Micro-Mock™
-
[Free Litigation E-Book] Storytelling for Litigators
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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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Posted by
Ken Lopez on Tue, Apr 23, 2013 @ 07:00 AM
by
Ken LopezFounder & CEO
A2L Consulting
"I've got a case I might need some help with." That's how it usually starts when someone, usually a first or second chair litigator, reaches out to me at A2L Consulting.
What happens next is not something that I have discussed publicly a great deal. But there’s no reason not to. It actually represents a well-honed process that we have developed over the last 18 years that helps trial teams try cases more effectively. Our process is unique and special.
I want to share an overview of that process, because when you understand it, you can appreciate how we, as jury & trial consultants and as trial graphics experts, help many of the top trial lawyers in the nation prepare for trial.
Step 1: We request as many documents as will be helpful and relevant – pleadings, briefs (both sides), outlines, proof charts, key pieces of evidence, bad docs -- anything that has been developed by the trial team that will be useful in proving their case.
Step 2: We conduct an initial brainstorming session, sometimes using mind-mapping tools. Our goal is to understand the case and appreciate its basic strengths and weaknesses. This helps us craft a recommendation about how we should use mock trials and demonstrative evidence in our trial preparation.
Step 3: We meet with the trial team to hear the case from the team’s perspective. Very often we learn at this meeting that certain points warrant more emphasis than others in the trial presentation. We also find out what the key strengths and weakness of our client’s case may be, as opposed to what they may have said in their briefs. Litigators will often tell us that this step was critical to their success as it was the first time they had to try to convince someone of the merits of the case, and we helped them do this much earlier than they would have naturally done.
Step 4: We return to our office and form a team generally comprising between three and 10 people. The team will be made up of some combination of Ph.D. jury consultants, former litigators, information designers, trial technologists, and others. Then we organize a formal brainstorming session that includes members of this team as well as others from A2L who have no familiarity with the case. At this point, we present quickly both sides of the case and highlight key strengths and weaknesses. From this effort we gather common-sense reactions and learn more about the emotional triggers in the case.
Step 5: We brainstorm an initial trial graphics list and start to make decisions about what might work and what might not. We often share this list with counsel at this early stage to keep costs down and to get their feedback. Given the attorneys’ extensive familiarity with the case, our initial exhibit list will also prompt them to add other litigation graphics, possibly to delete some graphics, and to come up with other creative ideas at this point.
Step 6: We share our thoughts with the team and get some feedback on which demonstrative evidence and litigation graphics to move forward with.
Step 7: We prepare the initial litigation graphics as a sort of test run. We run them by the trial team to make sure that we are on the right track and haven’t missed anything important. At this stage, we are usually preparing the basic litigation graphics like litigation timelines, players charts, document call-outs, checklist exhibits, etc, but we might also produce physical scale models or courtroom animations.
Step 8: We test our exhibits in a mock setting of some sort. This can be a full mock trial with “jurors,” or it can be a less complicated version like our Micro-Mock format.
Step 9: We refine and retest our approach and our litigation graphics based in part on the results of the mock event.
Step 10: We sort out and execute our courtroom technology plan. Pretty soon after this step, we will be ready for trial.
So, as you can see, what seems like a complex process from the outside actually follows a well-defined set of steps designed to produce the best possible result.
Sometimes we execute this process over the course of two years. Sometimes we do a more accelerated version of this process in two weeks. When executed with a great trial team, this process will produce order out of chaos and help litigators tell a simple and persuasive trial story - proof of a job well done.
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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Posted by
Ken Lopez on Thu, Apr 18, 2013 @ 07:22 AM
by Ken Lopez
Founder & CEO
A2L Consulting
Here at A2L Consulting, we have just published our latest e-book. This one is entitled The Social Media Guide for Litigators and Litigation Support.
We think it will be useful to any attorney or litigation support professional who has anything to do with social media and who has anything to do with proving facts or putting on witnesses in the courtroom – in short, for any courtroom professional.
Social media are completely inescapable these days. When you realize that they include blogs, YouTube videos, Twitter feeds, anything on Facebook, the ever-growing Pinterest, you understand that nearly everyone who is online uses or comes into contact with social media every day.
This e-book is designed to help trial teams and those who support them make social media their ally rather than their enemy.
Consider: If you are picking a jury, you need to know what social media the prospective jurors are involved in and what they are learning about topics related to the case at hand. If you are engaged in discovery, you need to know how to get your hands on social media posts that may be relevant to the points you want to make at trial. If you are preparing an opening statement, you would do well to look at YouTube videos of top trial lawyers explaining how to do that. Ten years ago, how would you have gotten a chance to get that good advice? If you are in the middle of a heavily publicized trial, you need to see what the sentiment on Facebook and Twitter concerning your client may be; this will help you conduct a well-informed closing argument.
There are dozens of other ways in which social media can affect the life of a trial lawyer or litigation consultant, mostly for the better.
You also need to understand the way in which case law reflects the prevalence of social media. When can a mistrial be declared because a juror is tweeting from the jury box? What restrictions exist on what a public company can say on Twitter concerning its financial results? Does federal labor law protect comments made by employees on Facebook concerning their working conditions? Who becomes the owner of an employee’s Twitter account when the employee resigns? When we were in law school, there were no cases on these topics. Now they are being decided nearly every day.
Among the topics in the e-book are: Ten Things to Know About Social Media and Jury Consulting, 21 Valuable Facebook Pages for Litigators and Litigation Support, The 50 Best Twitter Accounts to Follow for Lawyers and Litigators, Ten Outstanding YouTube Channels for Lawyers and Litigation Support, The Top 14 Blogs for Litigators and Litigation Support Professionals, and 11 Great Social Media Videos for Litigation and Litigation Support.
Anyone who is selecting a trial graphics consultant, jury consultant or courtroom trial technician needs to select one who is fully aware of these issues and who understands that a single social media posting can be the key to success in a case. Here at A2L Consulting, we think about these issues every day and we know that our advice to our clients must constantly change in response to the constant changes in social media.
If you work in a courtroom, there is something valuable here for you. Click here to download the completely complimentary Social Media Guide for Litigators and Litigation Support.
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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