by Ken Lopez
When it comes to making a decision about hiring a litigation consulting firm like A2L to support a trial team, I notice that many factors are intuitively persuasive to the consumer of such services.
With litigation graphics, most trial lawyers understand they benefit from outside help since jurors are mostly visual learners, and visual persuasion experts help bridge the communications gap between the trial lawyer and the typical American.
With jury consulting, most trial teams respond to the notion that an experienced jury consultant has watched thousands of jurors deliberate and can thus offer insights based on that unique experience. Further, it just makes sense to most people that a jury consultant is in the best position, given her training, to create a proper forum for scientifically valid and actionable jury research.
However, more important than these considerations, there is one factor that seems to occur to almost everyone who is evaluating the use of a litigation consultant. It is the idea that a fresh pair of eyes is almost always helpful when preparing for trial.
By a fresh pair of eyes, I'm referring to a litigation consultant who has been engaged to support the trial team sometime in the year before trial. At this point, early theories have often been developed, perhaps a draft narrative is in place, and the evidence has largely been evaluated. However, all too often, scant attention gets paid to the presentation of the case until the final few months before trial.
It is in this period that people seem to recognize the value of the “extra pair of eyes” in giving the trial strategies and tactics their final form. Here are some specific reasons why these new eyes can help.
- Trial lawyers are likely to be too close to their case. After their long hours wrapped up with the case, they have subconsciously developed a theory or theories about the case that will be hard to shake. If these theories can be improved, it will take an outsider to convince the trial lawyer of that. See, Accepting Litigation Consulting is the New Hurdle for Litigators and 5 Surprises in Going from IP Litigator to Litigation Consultant.
- Trial lawyers identify with the client. That is a natural and understandable thing to do, since trial lawyers are supposed to zealously represent their client and think the client’s views are correct. However, sometimes the client’s ideas, though they reflect its perspective and industry realities, may be too hard to sell to a jury. Enter the new pair of eyes. See, 7 Reasons Litigation Graphics Consultants are Essential Even When Clients Have In-House Expertise and 5 Ways Litigation Consultants Add Pizzazz to a Tedious Case
- It’s hard to imagine “simple” when you are very smart. Trial lawyers are accustomed to being the smartest man or woman in the room. Sometimes, though, they will adopt a theory that lacks the common touch and is hard to explain to the everyday, common-sense thinker in the jury box. The outsider can help with this as well. See,
21 Reasons a Litigator Is Your Best Litigation Graphics Consultant, When Smart Ain’t So Smart - Cognitive Bias, Experts and Jurors and 12 Ways to SUCCESSFULLY Combine Oral and Visual Presentations.
- Don't Eat Your Own Fundraiser Doughnuts. When a trial team becomes too insular or if the 1st chair litigator becomes dictatorial, a closed feedback loop can develop. In this situation, all ideas are simply confirmed as good ideas by the internal team. Never is a fresh pair of eyes more valuable. See, 7 Bad Habits of Law Firm Litigators.
- Simple is hard to get to. Often, the most straightforward way of presenting the facts is the best. A trial lawyer can sometimes become taken with, even obsessed with, a more comprehensive yet more complicated approach to the facts. An outsider can give him or her a new perspective on this. See, Litigator & Litigation Consultant Value Added: A "Simple" Final Product and Planning For Courtroom Persuasion? Use a Two-Track Trial Strategy
- Collaboration can be creative. From the clash of ideas, a trial lawyer and a litigation consultant can develop new approaches to a case. They need to treat each other as equals and not be afraid to be wrong, nor be afraid to criticize the other person’s approach. See, How Creative Collaboration Can Help a Litigation Team and 9 Things I’ve Noticed About Effective Litigation Graphics After 20 Years as a Litigator
- Trials are rare, but not for litigation consultants. The “extra pair of eyes” will be someone who has been there and seen it all in the courtroom. Many trial lawyers, however skillful, go to trial once a year at most. See, With So Few Trials, Where Do You Find Trial Experience Now? and 9 Things In-House Counsel Say About Outside Litigation Counsel
Other A2L Consulting articles related to the support top-end litigation consultants provide to top-tier trial lawyers include:
- With So Few Trials, Where Do You Find Trial Experience Now?
- 9 Things In-House Counsel Say About Outside Litigation Counsel
- Free Download: The In-House Counsel Litigation Toolkit
- In-House Counsel Should Make Outside Litigation Counsel Feel Safe
- 25 Things In-House Counsel Should Insist Outside Litigation Counsel Do
- 7 Reasons In-House Counsel Should Want a Mock Trial
- 14 Differences Between a Theme and a Story in Litigation
- Accepting Litigation Consulting is the New Hurdle for Litigators
- 9 Reasons Litigation Consultant is the Best Job Title in Litigation