by Ken Lopez
Several months ago, I wrote about the 50 Characteristics of Top Trial Teams. Based on those 50 characteristics, we have created a trial team assessment tool. Although we've only just begun to collect the data, my hypothesis is that the quality of trial preparation, which this tool attempts to measure, is highly correlated with success at trial.
In my experience, only a small minority of trial teams rigorously prepare for trial in a way that would earn them a high score on this tool. In most cases, budgets and/or firm culture simply don’t permit the level of preparation that I see in the highest performing trial teams.
In our first effort to quantify what makes a good trial team, our beta version trial team assessment tool offers 10 criteria to measure performance. We selected these 10 points from among the 50 criteria, based on the collective experience of A2L's top litigation graphics consultant, our top jury consultant and on my experience. That's more than 75 years of accumulated litigation experience from work in thousands of cases.
We assign a maximum of 10 points to each criterion, and so far, we have observed trial teams ranging from a low of 33 to a high of 76. Losses tend to occur more often with low scoring teams, but the data are still quite fragmentary.
Here are the 10 criteria that we use to define great trial teams:
- Communication: They communicate in an orderly, consistent manner so that everyone knows at all times what is going on. They’re systematic in how they work and communicate with their outside consultants.
- Timely Preparation: They’re not frantic. They don't wait until the last minute to prepare fact and expert witnesses. They construct their key trial narratives early.
- Rigorous Preparation: They don't dismiss the level of intensive prep needed “just for deposition.” They work through dozens of drafts of their demonstratives. They don't relegate preparation of important witnesses to junior lawyers who lack experience. They require their experts to work with communications and visual design consultants.
- Storytelling/Theme Development: They understand the difference between a narrative and a theme. They don’t simply respond to themes introduced by the other side; they build their own affirmative narrative. They develop their thematic story right from the start and incorporate that into discovery.
- Organization/Management: The team leaders realize that there are too many aspects of a big-ticket litigation for the first chair to handle all of them alone. The leaders spend their time where they add the most value. They get some sleep. If they aren’t good organizers, they task someone who is a good organizer in order to assure continuity and avoid panic.
- Humility: They exhibit a distinct lack of arrogance. They don’t answer challenges by simply stating how long they’ve done this or where they went to school. They don’t answer their own questions, but let other people do that. They conduct post-hearing, post-conference, and post-trial debriefings.
- Openness and Curiosity: Great litigation teams want their answers questioned. They tell you their strengths and weaknesses. They don't sugarcoat the possible effectiveness of the other side's narrative and thematic points or fall too quickly in love with their own narrative and themes. Finally, they ask their litigation consultants what can they do better.
- Leadership and Teamwork: They don't lose it; they keep their cool. They understand that their success is a team effort and approach it that way. They give credit where credit is due, sincerely (not by patronizing). They pressure-test throughout the course of their pre-trial development and during the course of trial itself by continuously empowering the entire litigation and trial teams to provide their own input.
- Technology Comfort and Courtroom Presence: They’re not afraid of technology in the courtroom or elsewhere. They think about details like the color of their outfits and their body language. They constantly work to improve their delivery. They just look comfortable in front of a jury.
- Practice: They don’t assume anything and seek to verify everything with facts, including mock testing that shows which themes are winners and which juror types are worst. Effective litigation teams spend as much time preparing their witnesses for robust cross-examinations as they do for direct examinations. Witness preparation includes careful development of an effective visual presentation that is rehearsed but doesn't sound rehearsed.
How would your trial team rate on these criteria? Hopefully, your team is on the 50 or higher scale. I have never seen a team with an under-50 score win a case.
Other A2L Consulting articles related to trial preparation, success at trial and the relationship between in-house and outside litigation counsel include:
- 50 Characteristics of Top Trial Teams
- The 14 Most Preventable Trial Preparation Mistakes
- How Creative Collaboration Can Help a Litigation Team
- The 13 Biggest Reasons to Avoid Last-Minute Trial Preparation
- In-House Counsel's Role In Keeping Litigator Ego In Check
- Sample One-Year Trial Prep Calendar for High Stakes Cases
- 7 Things In-House Misses When Litigation Consultants are Underutilized
- 5 Things TED Talks Can Teach Us About Opening Statements
- Winning BEFORE Trial - Part 2 - Parallel Trial Preparation Tactics
- 25 Things In-House Counsel Should Insist Outside Litigation Counsel Do
- 9 Things Outside Litigation Counsel Say About In-house Counsel
- 9 Things In-House Counsel Say About Outside Litigation Counsel
- 3 Trial Preparation Red Flags That Suggest a Loss is Imminent