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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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Why Do I Need A Mock Trial If There Is No Real Voir Dire?

 

 

mock trial provides vision jurors no voir direby Laurie R. Kuslansky, Ph.D.
Managing Director, Jury & Trial Consulting
A2L Consulting

Answer: So you can learn the best story for the worst jury.

Have you ever gotten to your seat on an airplane and, without speaking to anyone, seen who was next to you and thought, “This is gonna be trouble!”? Or boarded a train and decided to keep walking before choosing your seat? Of course you have. And that’s because there is a wealth of information that we, as humans, gather instinctively and automatically all the time. 

We observe a myriad of valuable information before any questions are asked out loud, such as:

  • How does someone look?
  • Are they attractive?
  • Are they neat or sloppy?
  • Do they appear dressed appropriately for court?
  • Are they flamboyant or conservative?
  • Did they show up on time?
  • Are they chatting with neighbors or reading a book?
  • Are they using Kindle or reading People magazine?
  • Are they fidgeting?
  • Are they asking someone questions?
  • Did they drop everything on the floor?
  • Are they limping on the way to their seat?
  • Are they having problems seeing or hearing?
  • Did they complete the jury summons form correctly?
  • According to the form, where do they live and work? Do they have children and where do they work? How’s their spelling and punctuation on the form?
  • Are they speaking too loudly?
  • Are they laughing and acting like they’re on stage?
  • Do they have photos on their Facebook profile for the entire world to see?
  • Are they on LinkedIn or on Plenty of Fish?
storytelling persuasion courtroom litigation webinar

If you can answer these questions, you know most of what you need to know to make important jury-selection choices – but only if you know how best to use this information, i.e., what are the personality traits that may indicate adverse jurors, who are unlikely to favor your client and your view of damages. So, the real issue isn’t whether you can control voir dire, but what to do with the information that you can glean with your ears and eyes (and maybe a few keystrokes on a laptop).

For an amusing read on what merely seeing how someone dresses can tell you, for example, see http://lamasatonline.net/en/psychology-of-clothing

What does “no real voir dire” mean?

There are several typical scenarios for voir dire:

1)    Counsel has almost unlimited ability to directly ask prospective jurors questions

2)    Counsel can use an extensive written jury questionnaire

3)    Counsel can ask a few questions directly

4)    Counsel can only ask a few follow-up questions

5)    The judge or clerk conducts an extensive or abbreviated voir dire and accept a few proposed questions from counsel or not

6)    There is a liberal or draconian policy about letting people off for claimed hardships.

7)    Cause is construed very narrowly or broadly by the Court.

8)    The judge or clerk conducts voir dire just looking for a pulse and accept everyone who does.

In each of these scenarios, you will be permitted unlimited strikes for cause that the judge accepts and limited (usually 3 per side) peremptory strikes. The key is to fight to use cause strikes against harmful biases and exercise your peremptory strikes against true enemies and not inadvertently strike potentially good jurors or mildly bad ones in favor of worse ones. The question is: how do you know which ones they are?  It isn’t because you can’t get relevant information about them because you didn’t get to ask, but because you need a reliable blueprint for what makes a potentially bad juror for your case, or you risk striking blindly.

The only thing worse than being blind is having sight but no vision." (Helen Keller)

Jury research is one of the only ways to avoid that by informing your vision. In particular, several critical outcomes emerge from properly conducted jury research which can provide counsel with night vision goggles, so that even if you operate largely in the dark at voir dire, you are armed with:

1)    A thematic story of your case that works best for most jurors – good and bad alike;

2)    A list of statistically significant traits, attitudes and experiences that jurors most adverse to your case seem to share.

3)    A clear sense of the issues, facts, evidence and arguments that detractors reject in your case and why, as well as how to overcome them (e.g., What they’d need to hear or see to accept your position, which reasoning or argument turned them off and how you can modify it, and the like).

4)    Knowledge about what was misunderstood, distorted or unclear, and what you need to do about educating before you advocate.

“No voir dire” is a myth. It’s that simple. It is only a short-sighted, narrow view of voir dire that permits the belief that, just because counsel doesn’t ask the questions or there isn’t an extensive opportunity to make inquiry of prospective jurors, that it is an all-or-nothing proposition when it is not.

storytelling for judge jury courtroom best method for trial persuasion and emotion

In our daily lives, without interrogating strangers, we make judgment calls all the time about who seems dangerous, who seems friendly, and many other “attributions.” That is, we can draw inferences about other people without asking them a single question. It is ingrained and a matter of survival. The key to doing so effectively in court is to be a skilled observer, knowing what you are looking for and looking out for, and avoiding what is called the “fundamental attribution error” (Lee D. Ross), which is attributing causes for observed traits to internal factors (such as personality characteristics) rather than to external, situational variables (such as how the setting may alter a person’s behavior, dress and mannerisms). Consider how the setting may itself be altering prospective jurors’ natural tendencies, if at all.

What is interesting and useful in the courtroom setting is that the situational variables (an unusually authoritarian, formal setting to most prospective jurors) and how people react to it is, in and of itself, critical information to consider in limited voir dire situations insofar as one can see, for example, how people dress for court. If they are wearing a running suit or a business suit speaks volumes, and if they are doing so because they hope to get out of being picked and going straight to work – whether as a gym instructor or financial analyst – you are likely to know and draw the proper inferences about them.  If someone is tardy or punctual is itself a marker of behavior that people draw inferences about everywhere else in life, so why not in the courtroom?

In brief, jury research is more important than ever when you will be making important decisions based on limited information and the information you get matters, but only reliable data can tell you how.

Other articles related to mock trials, mock juries, jury consultants, voir dire and jury selection on A2L Consulting's site:

jury consulting trial consulting jury research

 

 

About A2L Consulting

•  Leading national litigation consulting firm since 1995

•  Personnel nationwide

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

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

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

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

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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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Powerful Preconceptions and Malaysia Airlines Flight 370 TV Coverage

 

 

malaysian airlines flight 370 photo of planeby Laurie R. Kuslansky, Ph.D.
Managing Director, Jury Consulting
A2L Consulting

The year is 2014. We can land on Mars, predict earthquakes, and, with GPS, find a lost dog, a misplaced cell phone, or just about anything else. When you get an X-Ray, “x” marks the spot of what’s there, whether a fracture or something else. The general public, which largely thinks of satellites as a combination of science and magic, cannot comprehend why, then, if the satellites of several nations have spotted an apparent debris field in the same “spot” in the Indian Ocean, someone can’t just zip over to that “spot” and Bingo!, find the possible remains of Malaysia Airlines Flight 370. 

News networks have interviewed endless “experts” to try and explain why “it isn’t so easy.” But so far, it doesn’t seem that they’ve succeeded in making the answer comprehensible.

As anyone skilled in presentation, they’ve attempted to do so using various visual aids. There, too, it hasn’t helped much either, because to understand their explanations, you have to already understand what they’re saying. Most allude to how large “the spot” is and the passage of time between receiving the image and being able to get “there.” Again, the public wonders, why does it take so long, when time is of the essence?  It doesn’t make sense. You get an X-Ray and in moments, have your answer, so why does it take days in this case?

They’ve used metaphors, the most popular being that it is like looking for a needle in a haystack, but haven’t yet found the farm, let alone the haystack. 

malaysian airlines flight 370 sattelite imageWe’ve been told how hostile the southern ocean is. Check. We’ve been told how far the search area is from Perth, Australia – like flying from D.C. to Denver. Check. We’ve been told that planes have limited fuel time to spend searching once there. Roger that. But we haven’t been taught the key points – not about what caused MH370 to disappear, but why we can’t find it when the satellites have.

Despite so much media coverage, the preconception persists, fueling distrust and frustration. Why?

Understanding in this type of scenario requires getting over multiple hurdles first:

  • People are impatient and eager to learn the information;
  • People are anxious about the dangers of flying;
  • A major airplane disaster is many people’s worst fear;
  • If knowledge is power, not knowing makes one feel powerless;
  • No information is better than inconsistent, vague and unreliable information;
  • The information provided is shrouded in secrecy and what is disclosed does not relate to common knowledge;

And on and on . . .

Complex information in troubling circumstances often breeds distrust from the get-go. It is no different in litigation involving unfamiliar information – whether in the field of technology, science, finance or others that the typical jury doesn’t know or understand.    

With this backdrop, persuasion requires a lot of education to an audience that is seeking quick, clear answers where none exists. How can the points be made better?

For starters, it would help if the “experts” actually answered people’s questions: Why is it so hard when it seems so easy? How is it possible, with all the technology we now have available to us, not to be able to do better?

Educating and advocating are also not as easy as they may seem.  This disaster should serve to provide many important lessons, including understanding the fact that being an expert hardly matters if you don’t get your message across to your audience.

Other A2L Consulting resources related to aviation/airline litigation, teaching science, courtroom persuasion and expert testimony:

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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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How To Emotionally Move Your Audience

 

 

emotions courtroom sympathy trial anger juryby Laurie R. Kuslansky, Ph.D.
Managing Director, Jury Consulting
A2L Consulting

“One ought to hold on to one's heart; for if one lets it go, one soon loses control of the head too.” 

Friedrich Nietzsche

In other words, once emotion comes into play, fact and reason go out the door. For at least one side of the courtroom, that is the precise goal. For the other, the goal is to combat it, but if you cannot beat them, then you must learn how to join them. What does that mean?

There are several emotions that can often play a role in jury trials: anger and sympathy being chief among them.

Sympathy

Can I see another's woe, and not be in sorrow too? Can I see another's grief, and not seek for kind relief?”

— William Blake

Many attorneys are concerned about the role of sympathy in jury trials for fear that it will dictate how the jury rules. This is a well-placed concern in cases involving a truly helpless victim (such as a newborn in a “bad baby case”). 

However, decades of jury research through mock trials and post-trial interviews of actual juries show something different in many other instances: that jurors measure a party’s actions by what they knew or should have known and what they did or failed to do about it based on what they knew (i.e., knowledge and control). If the party knew too much (or should have known) and did too little, for example, it trumps sympathy. 

For example, a journeyman electrician and popular, well-liked football star, was engaged to his high-school sweetheart. He was tasked with cleaning the electrical workings on a ship on a fast turnaround. The floor of the ship had salty sea water. He was to clean high-voltage equipment. He didn’t check if the electricity was on or off (“tagged out”) and did the unthinkable – cleaned the equipment with a metal brush, while standing in salt water. Sadly, the power was not turned off and he was almost killed by the electrical shock that resulted. Miraculously, he survived, but was in very bad shape, and no longer the baby-faced young man, but a disfigured, disabled one. Although he was highly sympathetic, the yardsticks of knowledge and control yielded a failing grade. Any housewife knows not to mix electricity and water, let alone salt water. Anyone knows this from common sense, so while they were greatly sympathetic, jurors faulted him for engaging in such risky behavior. As a result, their damages award was significantly discounted for his contributory negligence. Although they also blamed a failure in supervision, his own actions undermined sympathy for him and the result.

A retired school-bus driver dreamed of driving around the country with his wife in an RV in their golden years. Before departing for such a trip, he realized he needed to change one of the tires. Unlike tires on a typical car, tires on this vehicle clearly required – as would those on a school bus – special procedures to avoid injury, such as placing chains on the tire and other precautions.  Sadly, despite his years of professional experience with a bus that required a similar procedure, he cut corners and simply approached changing the tire as if it was on a VW bug. It exploded and nearly killed him. He was no longer going to tour the country. He could hardly walk and had significant and permanent brain damage. His wife, a nurse, was on permanent duty to care for him. Again, while some felt sympathy, jurors used the yardstick of knowledge and control, concluding he should have known better and exercised more appropriate caution. Goodbye windfall.

So, if you represent the Plaintiff, before you seek sympathy (or damages), first hold a mirror up to the actions of your client to consider what they knew or should have known, and what they did or failed to do. To the extent you can minimize these for your client and increase them for the defense, the better you will do.

Similarly, defendants may be assumed to be more knowledgeable and powerful and to have an obligation to be so, but being able to show a lack of access or ability for control can diminish liability, and in turn, damages. For example, what was the state of the art? What was the basis for your client’s beliefs and actions? Why was that reasonable and keeping with industry standards? What lack of control did your clients have over changes?  Why wasn’t the “ideal” possible”? Often times, jurors will believe that profits motivated defendants’ actions or inactions, putting profits over safety, for example. This in turn often leads to the most powerful emotional driver in litigation: anger.

Anger

Anger cannot be dishonest.

— Marcus Aurelius

One of the most potent drivers of jury decisions is anger, whether in deciding liability, awarding compensatory damages, or most relevantly, punitive damages. Even in cases in which punitive damages are not a real option, jurors often express their punitive emotions by awarding higher compensatory damages.  One of the best ways to move a jury is to move them to anger and vice versa.

Angry jurors are more committed to their position, loath to abandon it, and prone to accelerate the amounts to award, thereby raise the ceiling, while less likely to want to listen to reason or facts. While facts, if they do seep in somehow, are a powerful way to combat anger, failing to address the causes of anger is a risky approach.

storytelling for judge jury courtroom best method for trial persuasion and emotion

Anger shows you care. One cannot get angry about something one doesn’t care about, so the trick is to discover what matters to the jury. In order to access their anger – or overcome it – you must know the trigger.  What do people care about most? Themselves. They ask, “What if that was me? Or my child?” “Can that happen to me?” “What if they don’t fix that problem?”  Next, people care about greed and unfairness, particularly when those in power take advantage of those who are not. 

For example, a young construction worker working on the roof of a building in which a sky light was under construction did not notice the open hole and fell through, suffering permanent brain injury. Plaintiff’s counsel could display safety rules and OSHA guidelines and the like, as well as medical records, but none of that promised to anger the jury outright. It would only make them think.  The goal was to infuriate the jury. How? By having an expert testify about the proper way to secure the hole – including some plywood and some 2x4s blocking access to it – and then, marching those items into court during summation and showing the Home Depot receipt for about only $80.00. Once angered by the callous cost-cutting of the owner, jurors were angry that it would have taken so little to prevent so much harm, and showed their anger honestly in the currency of jury anger by awarding significant damages.

As a defendant, there are ways in which one can inadvertently anger jurors and thus, move them in the wrong direction.  This often occurs when counsel considers facts without considering the emotions that can naturally attach to them.  While the facts in a vacuum may seem very convincing, they can backfire in the context of jurors’ feelings. For example, while it may be true that an M.I.T. study shows that women make less in the workplace largely due to their own work/life choices, how do real people react to that? By saying that since women are the ones who have babies, employers should make adjustments to level the playing field by taking that into account. Or, say that an industry study shows that most people in an industry do precisely what the defendant did in the case, but jurors find that behavior objectionable. In that case, jurors will use the verdict as a means to correct the industry, starting with your client. In another instance, in order to refute claims of “pain and suffering” of passengers on an ill-fated flight, expert testimony may show, that depressurization in the cabin results in hypoxia, which causes a mild sense of euphoria and feeling “high” before passing out and eventually dying due to lack of oxygen as a way to say that people on a crashing flight didn’t suffer. Try selling a bridge. Even if true, jurors are likely to storm the defense counsel’s table rather than accept this factual position as helpful. Instead, they ended up mocking it and displaced it with their own disaster fantasies of what the last 18 seconds of life was like for the poor people on the doomed flight on their way down. The expert testimony backfired and made them angry. 

Skilled plaintiff attorneys tend to know how to dial up emotions. They know how to include details that bear the ring of truth, words that touch the soul, and images that relate to jurors’ own lives. It is usually the defense that needs greater awareness in this realm. When one considers presenting only the facts, they are giving their opponent a great advantage. Instead, consider also how the facts will play on jurors’ feelings. For the defense to succeed, it must consider how the events impacted everyone involved as well as how the verdict may impact everyone involved, and then, how all of that may impact the jury. It may be tedious, but failing to do so is perilous and failing is not a good feeling.

Other A2L Consulting resources related to jury communications, jury consulting and storytelling:

storytelling for lawyers litigators and litigation support courtroom narrative

About A2L Consulting

•  Leading national litigation consulting firm since 1995

•  Personnel nationwide

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

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

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

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

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

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


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Witness Preparation: The Most Important Part

 


witness preparation deposition trial consultantsRyan H. Flax
Managing Director, Litigation Consulting
A2L Consulting

Winning at trial is largely about the juror’s gut reactions to you as an attorney and to your witnesses, as well as their gut reactions to the counterparts on the other side of the courtroom. Trial testimony and videoed deposition testimony are the lenses through which jurors (and the court) will get to know those individuals that know the most about your case. These situations are often the make or break moments during a litigation that either ensures your victory or defeat. So, you absolutely must prepare your witnesses for these situations by educating them on the process, what to expect, how to behave, and the goals of your client.

As litigators responsible for the task of witness preparation, we should all be familiar with the basic rules our deposition witnesses should follow:

  1. Always, always tell the truth
  2. Always understand the question before you answer it and say so if you don’t
  3. Never offer extra information, aka just answer the question asked
  4. Never guess/speculate – if you don’t know the answer, say so
  5. Always answer based on what you remember accurately - if you really cannot remember, say so
  6. Never testify about a document without reading it – all of it, take your time
  7. Always have a strategy
  8. Always comport yourself with decorum – remember, you’re testifying (on video) in a surrogate courtroom

When I prepare a witness for deposition I explain the things above and give them a routine for answering questions that they MUST adhere to on every question. That routine is: (1) listen carefully to the question asked; (2) identify whether you understand it; (3) formulate the complete answer to that specific question in your head; and (4) take a breath and then say the answer you just formulated. This accomplishes several things. It forces your witness to take his or her time. It forces the witness to think about each question. And, it creates a pattern for the deposition. All this will help your witness get through the process and should help you not suffer overwhelming damage during the deposition - you can't win a deposition, but you can definitely lose one.

What brought this to mind is the recently-released video footage of Justin Beiber being deposed in relation to a lawsuit brought against him by a paparazzi photographer (apparently, Mr. Beiber’s bodyguard roughed up the photographer, allegedly at Mr. Beiber’s order). Here’s the released video (courtesy of TMZ), which is about six and a half minutes of Mr. Beiber’s deposition(s), if you’re a litigator, watch it:

To say that this fellow will be an unsympathetic witness at trial seems to be a severe understatement. After watching the video above, I’d put him right up there with O.J. Simpson and Alec Baldwin’s character in Malice as a bad witness. He oozes arrogance, he’s belligerent with the deposing attorney, he’s not wearing a suit, his posture is terrible, his hair is ridiculous, he’s rude, he’s evasive, he’s a smart-aleck, and he is overstepping his witness role and actually objected to a question. If the jurors at this trial aren’t 12 year old girls, he’s going to lose.  Worst of all, now that this is public, anyone with a lukewarm legal gripe against this “kid” (he’s 20 years old) will be chomping at the bit to sue him.

Justin Beiber is either unteachable or was not properly prepared for this deposition (he might be unteachable). How would I have handled the witness preparation?

First, he should have been educated about what a deposition really is – it’s a surrogate for the courtroom and what you do and say during a deposition should portray you as you’d want the court or jury to know you.  I doubt Mr. Beiber understood what testifying under oath means, what perjury is, that the video of the deposition could be played in court as testimony or for impeachment purposes. He showed no understanding and less respect for the process and judicial system.

Mr. Beiber was not prepared to keep his cool – he was totally flustered by the mere mention of his on-again-off-again girlfriend Selena Gomez. I’d guess he wasn’t ready for the types of questions he was asked in the clip you saw above, but he should have been. It’s our duty as counsel to give our witnesses whatever mental/psychological tools they need to do a great job. 

Mr. Beiber should have been forced to practice tough deposition questions, should have been educated how to answer questions strategically, and should have been prepared so he didn’t look like a fool. Effective witness preparation should have been conducted. Like I said, though, maybe it’s him.

Let’s take a look at a clip from the deposition of a guy that might be a bit more intelligent than Mr. Beiber. Below we have a few minutes of the deposition Bill Gates gave the Department of Justice when defending Microsoft against antitrust charges:

 

Was Mr. Gates much better than Mr. Beier? He may sound smarter, but still looked like a jerk (and will, forever, on video).  What Mr. Gates didn’t understand, but should have been educated on prior to being deposed, is that YOU CANNOT WIN A DEPOSITION. You can’t. You can only survive one and mitigate your damage.

To prepare a witness to do just that, survive and mitigate, they must know the eight rules I set out above. Moreover, they must have a strategy for answering deposition questions that serves to end the deposition more quickly rather than draw it out.

What do I mean by this?  Well, while Bill thought he was being smart and challenging the deposing attorney on question after question and pointing out ad nauseam why he thought the attorney was doing a bad job deposing him what was he accomplishing? Nothing, but extending his time in the witness chair.

What should Bill’s counsel have told him?  “Don’t try to win this deposition, that’s impossible.  Just answer the questions you’re asked truthfully and specifically. That will speed things along and any arguing or expanding or offering information you do will make this exercise longer and more painful.”

Let’s see another testimony and decorum failure to the tune of $10,000 and jail time.

OK, so technically this is not a deposition, but it’s entertaining and emphasizes a point.  You must treat a videotaped deposition like a court appearance and if you screw around during a court appearance you’re going to have a bad day.

Are all celebrities terrible deposition witnesses?  Let’s take a look at another (Rated R):

Here’s another guy that’s not prepared for his deposition. This is Dwayne Michael Carter, Jr., better known to consumers of hip hop music as “Li’l Wayne.” Here’s a guy that needs to be convinced to take this exercise seriously. He shows absolutely no respect for the deposing attorney or the process, and, hence, for the court.

Does Li’l Wayne seem truthful? Does he seem credible? Does he seem like someone you’d, as a potential juror, want to help or see fail?

Li’l Wayne might be a tough witness to help prepare because he doesn’t fear much: not the lawyers, not the press, not even jail time (the jail time he received may have even helped his street “cred” and career). So, what do you do to help him get through this experience? Perhaps it’s his time that he values, so appeal to his desire to have the deposition be as short as possible and teach him how to listen to and answer only the questions asked, clearly, straight forwardly, and briefly.

Finally, here’s an all-time favorite deposition video (Rated R). 

Had he been prepared for this video, this “gentleman” would have known this subject would come up and could have been ready to keep his emotions under control.  The middle of this tirade would have been a good time for his counsel to reach over and put his hand on him and say, “calm down and just answer the question asked.”  Even though representing counsel is not supposed to intervene during questioning, the deposing counsel would have probably preferred not to be sworn at by the witness.

Sometimes, when the deposition or court witness to be prepared is familiar to the attorney preparing him, such as a client or expert witness, it can be difficult for the attorney to fully prepare the witness alone. It’s often hard for an attorney in such a relationship to give the “tough love” needed. Sometimes, having had to fully imbibe the Kool-Aid for the case, the shortcomings of the witness may be glossed over by counsel. This is where engaging a 3rd party witness preparation consultant can help. 

Much of what I know about witness preparation I learned from the great Dave Malone.  He was a terrific guy and a terrific help when I prepared my own witnesses for deposition and then trial testimony.  Dave was taken too soon and too young and I’ll always remember him fondly.

Other A2L Consulting articles related to witness preparation, depositions and testimony:

jury consulting trial consulting jury research

About A2L Consulting

•  Leading national litigation consulting firm since 1995

•  Personnel nationwide

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

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

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

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

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

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


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10 Things Litigators Can Learn From Newscasters

 

 

litigators newscasters similaritiesby Ken Lopez
Founder/CEO
A2L Consulting

High-caliber newscasters are an interesting group. They inform, they teach and they persuade us. They use visuals in a way that complements what they are saying quite seamlessly. Their attire is impeccable, they look the part, and their delivery feels more like a conversation than a lecture. Somehow, they confidentially speak to an audience who can't talk back to them, and yet they manage to build a relationship with that audience. 

If you think about this description, it sounds a lot like a litigator.

Of course, there are big differences between litigators and newscasters. Litigators don't simply read what is in front of them (at least not the good ones). Preparation for a newscast takes hours or days, not the months or years a trial might take. And of course, the skill set of a litigator is quite broad outside of the courtroom performance aspect of the job, typically requiring the ability to negotiate, write well, organize well, think on your feet, lead a team, sell and much more.

Still, I believe there are some very useful lessons to be learned from watching how the news is put together. The Nightly News with Brian Williams is a good example of a high-quality newscast, and about 10 million people watch it every day. Whether the evening's anchor is Brian Williams, Lester Holt or Savannah Guthrie (she happens to be an attorney), the presentation is well-refined, the delivery is exceptional and overall, it serves as a good model for how to communicate in the courtroom.

Let's look at 10 things that litigators, especially those who participate in jury trials, can learn from a high-quality news broadcast.

1) Newscasters never speak in jargon: The language used is comfortable and accessible to all audiences. Litigators must work hard on themselves and with experts to strip away as much jargon and tech-speak as possible in their presentations.

2) Newscasters look the part. Brian Williams has been named to Vanity Fair's fashion hall of fame for his consistent well-tailored looks that convey professionalism without distracting from the information presented. I know great litigators who use style consultants to help plan their courtroom attire. If you can't or don't want to do that, read up on what works well as far as attire goes.

3) The graphic presentation style is simple and clear. A newscast is short. To get a lot of information across quickly and clearly, useful visual aides are critical. This chart below shown Wednesday night certainly gets the attention of those of us on the East Coast and quickly conveys information. It follows the simple rule of 'one concept, one slide' that we promote.

simple news weather graphics courtroom

4) The graphic presentation style is immersive. We learned about the value of an immersive style of visual presentation from Dr. Ken Broda-Bahm. Watch this segment and notice how the visuals never stop coming. Indeed, they never stop during an entire newscast. Studies suggest this approach is best for courtroom persuasion. [38 seconds]

5) The graphics complement what is being said. Litigation graphics should not compete with what you are saying. They should only complement what you are saying. Watch here as visuals are constantly in motion, informative and persuasive. The golden moment is at the end when he describes the size of the search area. The visual combined with the phrase "size of Colorado" is unforgettable whereas neither would really be all that memorable alone. [23 seconds]

6. The presentation is not just informative. The presentation is entertaining as well. Brian Williams does a good job of appropriately injecting humor into his presentation. It makes him more credible and trustworthy. With that said, please remember that you never want to force courtroom humor and get a result like the one we discussed last June.

7. Convey massive amounts of information. In 20 minutes of the news, we learn quite a bit about some key subjects. The visuals are essential to this process as mentioned above. Also, clear language goes a long way to making it digestible. Many trials are much longer than they need to be because the trial team has not made proper use of demonstrative evidence. Free Downloads: A2L's Complex Civil Litigation Trial Guide or A2L's Litigator's Guide to Using Litigation Graphics

8. Attention is switched (intentionally) between spoken word and visuals. You must keep your audience on their toes. You must surprise them. Watch any Nightly News broadcast, and you'll see a combination of photos, graphics, video and talking heads used every time. The frequent switching of presentation methods keeps the viewer engaged. Try to match this style at an appropriate pace in the courtroom.

9. The nightly news is on every night. Until we can watch federal trials regularly, we have to learn from other sources like mock trials, state trials, televised appeals, CLE's, YouTube clips and the way they do things on the news. One of the great things about watching how they do things on the Nightly News is that it is on every day of the week, and they keep improving their approach. It is an easy and free place we courtroom experts can learn from.

10. Don't take yourself too seriously. Brian Williams is brilliantly funny, and it's his dry delivery that really sells his humor. He does not show too much of that on the Nightly News, but he shows just enough to forge a relationship with the audience. In this story, there is a two-and-a-half-minute video with some funny Brian Williams moments.

powerpoint litigation graphics consultants  

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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21 Reasons a Litigator Is Your Best Litigation Graphics Consultant

 

 

litigator trial attorney lawyer litigation graphics consultantby Ken Lopez
Founder/CEO
A2L Consulting

Since the founding of our attorney-led litigation consulting business 19 years ago, I've been asked this question hundreds of times: "why would I need an attorney to help me prepare my litigation graphics?" It's an understandable question, and I have a very good answer - indeed 21 good answers.

Before I explain why an attorney or litigator can help a fellow litigator better than others can, a review of A2L's history is in order.

I founded A2L (then Animators at Law) as a litigation graphics consultancy after I finished law school in the 1990s. After a few years in the industry, I recognized that litigators who build visual aides for trial and work with other creatively-minded lawyers to do so get better results than those who work alone or those who work only with a graphic artist. By the latter part of the 1990s, we started calling this work "litigation consulting," and an industry was born. Here is a 1999 article about how our piece of the litigation graphics industry developed.

Back then, litigation graphics industry leaders were mostly engineering firms. They were great at illustrating and very poor at persuading. So, firms like A2L and others came to dominate the industry and were quickly relied upon by the legal industry's top trial attorneys.

Now, all these years later, with the majority of litigation rapidly shifting from large law firms to midsize law firms, I'm again hearing questions about why lawyers should be helping other lawyers with litigation graphics and more. I think the frequency of questioning has increased because midsize law firms are trying to understand how best to win big cases without spending huge sums of money. Fortunately, litigation consulting services are quite inexpensive compared to legal fees or e-discovery fees, and the ROI is just enormous.

using litigation graphics courtroom to persuade trial graphics a2l consulting  

From some of these newer big-ticket litigation market entrants, we're hearing that they are planning to skip the litigation graphics development stage and just rely on their trial tech for visuals. Unfortunately, this means that some midsize law firms are making the classic mistake of believing they are using litigation graphics when they are simply displaying electronic evidence and text PowerPoint slides via a projector in the courtroom.

Some are planning to use in-house law firm marketing graphics staff or a freelance graphic artist. In most cases, that's about as likely to produce a successful result as hiring a 3rd year law student to 1st chair a trial. Sadly, it's pretty common for us to be engaged to rescue a trial team on the eve of or even mid-trial that has made these mistakes.

These well-intentioned but misguided uses of "graphics" may not be actionable malpractice yet, but I bet they will be one day. If you think that statement is strong, consider that judges are already demanding that litigators understand technology at a fairly complex level when it comes to e-discovery. Can the expansion of the duty of competence to include competent visual advocacy be far behind?

So, to understand why a litigator is your best litigation graphics consultant, I offer 21 observations based on watching visually creative litigators on our team serving as litigation graphics consultants, how they work with trial counsel and the good results they regularly achieve:

  1. Using a Litigator as Your Litigation Graphics Consultant Saves Money. Imagine being able to speak in lawyer short hand about amici, claim language, market power, causation, Rule 403, bioequivalence and hundreds of other concepts that you don't want to take five minutes to explain during the run up to trial. When you have a litigator serving as your litigation graphics consultant, you don't have to spend your client's money training someone about a legal concept or procedure. They already understand what the fact-finders will not, and they will automatically design this into the presentation.
     
  2. Using a Litigator as Your Litigation Graphics Consultant Saves Time. Time is money, so the same reasons listed above for money apply here for time too. Additionally, commonsense should answer the questions: who is going to understand and process your case faster, a visually creative litigator with trial experience or a project manager/graphic artist? They're all good people, but only one will save you time.
     
  3. Using a Litigator as Your Litigation Graphics Consultant Removes Stress. I have a couple of pet peeves, although the team at A2L might tell you the list is longer than that. One pet peeve of mine is that I really don't like having the same conversations more than once. I think most litigators feel similarly especially during pre-trial prep. A litigator turned graphics consultant is much more likely to recall details or be in a position to find the answer on their own. This saves the trial litigator time, money and most importantly, stress.
     
  4. Using a Litigator as Your Litigation Graphics Consultant Gets You Graphics + Trial Experience. Nearly all good litigators tell me that they would love nothing more than to go to the courthouse and watch trials they are not involved in and learn from watching peers. Unfortunately, they cannot due to the incessant pressure to keep billing hours. Until the days comes when cameras are finally allowed in federal courtrooms and we can all learn from watching the best, one of the best ways to get meaningful training is to use your litigation graphics consultant a bit like a coach. Remember, they watch your peers all of the time, and they have been exactly where you are.

    storytelling persuasion courtroom litigation webinar

  5. Using a Litigator as Your Litigation Graphics Consultant Is Like an Insurance Policy. One hopes to not use insurance, but we're all grateful when it's there. The same is true for your litigation consultant. If you really rely on them and invite them to be there for all or part of your trial, you have a cost-efficient method to adapt as the trial unfolds. They can anticipate new visuals that need to be used and put their development in motion midday. They can offer new strategies at a peer level. They can be a non-judgmental sounding board.
     
  6. Using a Litigator as Your Litigation Graphics Consultant Helps You in the Venue. Chances are we have spent time in your venue. We even write about trying cases in popular venues like SDNY. Local counsel is a big help, but why not rely on a litigator who likely has expertise persuading the jury pool or judge using visuals and who has probably watched trial lawyers from many firms in the venue?
     
  7. Using a Litigator as Your Litigation Graphics Consultant Is a Bit Like Getting Graphics AND a Trial Consultant. Litigators who are also litigation graphics consultants blur the lines between what is considered a trial consultant and a litigation graphics consultant. They are an especially nice fit when there is not enough budget for a proper mock trial.
     
  8. Using a Litigator as Your Litigation Graphics Consultant Means You'll Likely Get More Meaningful Feedback. A lot of litigators say they like to get commonsense feedback from family and non-attorney staff. I agree that helps, but sometimes non-attorneys give bad advice like encouraging counsel to ask a jury to put themselves in the shoes of the injured and other rookie mistakes. A litigator knows what advice helps and what distracts.
     
  9. Using a Litigator as Your Litigation Graphics Consultant Means They're Not (as) Scared of You. A lot of litigators I know appreciate that a good litigation graphics consultant is honest with them. Too often they are surrounded with too many "yes" people. Your litigation graphics consultant is trained to tactfully deliver honest feedback after asking permission to do so.
     
  10. Using a Litigator as Your Litigation Graphics Consultant Means Your Relationship With In-House Is Understood. A good litigation graphics consultant who is a litigator will keep watch over your relationship with in-house counsel. It is not unusual to be approached by an in-house lawyer during a mock trial or during trial who wants our litigation consultant's opinion of outside counsel. A good litigation consultant knows how to support counsel even when no one is looking.
     
  11. Using a Litigator as Your Litigation Graphics Consultant Means that You Have Someone Who Understands Law Firm Politics On Your Side. We all wish the workplace was politics-free, but that is not realistic. Whether there is a subtle battle for 1st chair, whether there are hidden relationships on the trial team, whether someone is underprepared, we have seen it all - and you'll never hear about it. Keeping yourself out of the politics is a task best left to those who understand it, and a litigator who has worked at a law firm knows best.

    storytelling for judge jury courtroom best method for trial persuasion and emotion

     
  12. Using a Litigator as Your Litigation Graphics Consultant Means You Know You Have Someone Who REALLY Understands Confidentiality. I've heard trial techs and graphic designers talking about degrees of confidentiality, and I hope that we can all agree it's really a binary issue. When you have a litigator as your graphics consultant, your confidential information is better protected.
     
  13. Using a Litigator as Your Litigation Graphics Consultant Means They Have Ethical Obligations. No matter where a lawyer goes, they have ethical obligations. This is certainly true when working in litigation, regardless of the role they are playing. Woundn't it be nice to know your consultant has a higher duty when supporting your team?
     
  14. Using a Litigator as Your Litigation Graphics Consultant Means They Will Understand How to Treat a Judge and Clerks. In law school, we were all taught to treat the court with honor and respect. A graphic designer may be a respectful person, but they have not been trained like us, right? I think it matters when we have to talk to clerks, interact with opposing counsel and in how we dress for court.
     
  15. Using a Litigator as Your Litigation Graphics Consultant Means You Have Another Warrior on Your Side. I referenced one of the reasons I started our firm at the beginning of this article. In 1995, I was disappointed to see engineering firms playing such a large role in litigation as litigation graphics firms do. In retrospect, I was right. Having passionate advocates work in parallel with the trial team to develop a visual presentation is like having one more believer - as opposed to just one more follower - on your team.
     
  16. Using a Litigator as Your Litigation Graphics Consultant Ensures Appearance Will Be Considered for All Personnel. I am very concerned with how people dress for court or even a client meeting. In my jurisdiction, shirts that are not solid and white are still frowned upon by many judges. A litigator will help make sure that litigation decorum is followed for the litigation support team.
     
  17. Using a Litigator as Your Litigation Graphics Consultant Helps Prevent Typos. One of my pet peeves is shared by many litigators. I really cannot stand it when typos make it onto a draft of a demonstrative for trial. Of course, one can never occur at trial, because it would damage the credibility of the trial team. Who do you think is less likely to make a mistake, a litigator or a graphic designer? I can tell you from decades in this industry that the answer is the former, 100-fold to 1.

  18. Using a Litigator as Your Litigation Graphics Consultant Gives You an Observer Free from the Details of the Case. Hard as we may try, we litigation consultants will never know the case as well as trial counsel. This is a feature, not a bug. Staying out of the weeds allows an attorney litigation graphics consultant to offer meaningful advice about how to persuade the fact-finder(s) while not getting lost in the details.

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  19. Using a Litigator as Your Litigation Graphics Consultant Means You Have a Professional Storyteller at Your Disposal. Good litigation graphics consultants are always pushing a trial team to clearly articulate a meaningful and emotional story in a case - even in a seemingly dry patent trial. If you have not watched our recent storytelling in litigation webinar yet, you should (or share it with someone you know).

  20. Using a Litigator as Your Litigation Graphics Consultant Gets You a Ton of Trial Experience at a Low Price. If you are in house counsel, wouldn't you want to have the benefit of another trial lawyer in the room acting as a support system to the team. You might be surprised to learn that we could go to trial more than 50 times in a given year. That's more than any single major law firm. For a fraction of the price of another trial lawyer, you get the benefit of that experience plus the value created during the develop of litigation graphics.

  21. Using a Litigator as Your Litigation Graphics Consultant Means You Indirectly Learn from Your Peers. As litigation consultants we see both good and bad trial teams. Cross pollination of good ideas and tactics between firms is pretty rare. If you want to learn from your peers, one of the best and least expensive ways to do so is to ask a qualified attorney litigation graphics consultant what they see that works well.
Our team at A2L includes the kinds of people I would want on my side if I were spending our firm's money on litigation. They are members of a small group of 5-10 creative-minded lawyers in the country with the experience, the training and the talent to meaningfully affect a trial team's experience going to trial. If you don't want to work with our firm for some reason, I would be happy to refer you to someone else who fits this description.
 
Try to remember this - when you fail to find and locate a litigator who can be your creative guide when developing litigation graphics, you are failing to follow what are now common best practices, and you put your case, client and reputation at risk. Again, it's commonsense . . . who would you trust to give you advice, a litigator with millions or billion of dollars of jury verdicts, the experience of working with your peers and a creative background or a twenty-something artist who does not understand the impact of their advice? I believe that using a litigation graphics consultant who is also an experienced trial lawyer puts you in the best position to win a case.

Other A2L Consulting articles related to litigation consultants and litigation graphics:

PowerPoint Litigation Graphics Webinar Consultants

About A2L Consulting

•  Leading national litigation consulting firm since 1995

•  Personnel nationwide

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

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

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

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

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

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


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The Top 30 Litigation Articles Out of Our First 300 Articles

 


litigation consulting report blog 300 articlesKen Lopez
Founder/CEO
A2L Consulting

This is a proud moment for me and for all of the authors who have contributed to The Litigation Consulting Report blog since its launch just three years ago. This article is our 300th article!

To celebrate, I'm listing our all-time top 30 articles as measured by your readership over the past three years. Each article has a click to tweet link and a share on LinkedIn link associated with it. I encourage you to share these articles with your colleagues and networks.

When I look at the statistics about The Litigation Consulting Report blog, I am amazed. 

  • 250,000 visits in three years
  • 3,950 subscribers and growing
  • An average of two articles published per week for three years
  • Almost 2,000 litigation e-books are downloaded from A2L every month.
  • In 2011, we started with 800 people visiting our website and blog each month, and now we approaching 20,000 unique visitors every month!

Perhaps the biggest honor of all came this year when the American Bar Association named The Litigation Consulting Report one of the top 100 blogs in the entire legal industry and one of the top 10 blogs in litigation. All this, and just three years ago, I was not sure if anyone would take the time to visit at all.

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Thank you readers. I'm honored that you take the time to visit, that you take the time to subscribe, and that you take the time to share our articles. I'm very proud of the information we share, and your engagement is the fuel that drives more sharing.

Below are the top 30 articles that we have published at The Litigation Consulting Report based on the number of visits to that specific article:

 

30. Our 12 Very Best Articles of 2013 for Lawyers & Litigation Support

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29. 20 Fascinating Articles About Social Media and Litigation

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28. Litigation Graphics, Psychology and Color Meaning

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27. Today's Tech Failure at the George Zimmerman Trial Takes Center Stage

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26. 5 Keys to Telling a Compelling Story in the Courtroom

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25. 15 Fascinating Legal and Litigation Infographics

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24. Trial Graphics, Color Choice and Culture

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23. 16 Trial Presentation Tips You Can Learn from Hollywood

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22. 7 Things Expert Witnesses Should Never Say

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21. The Jodi Arias Trial, A Case Study in Experts, Witness or Witless?

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20. 10 Videos to Help Litigators Become Better at Storytelling

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19. 20 Great Courtroom Storytelling Articles from Trial Experts

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18. 10 Outstanding YouTube Channels for Litigators and Litigation Support

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17. 16 PowerPoint Litigation Graphics You Won't Believe Are PowerPoint

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16. The Top 14 Blogs for Litigators & Litigation Support Professionals

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15. Top 5 Trial Timeline Tips

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14. Beyond PowerPoint: Trial Presentations with Prezi and Keynote

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13. 21 Ingenious Ways to Research Your Judge

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12. 12 Alternative Fee Arrangements We Use and You Could Too

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11. The 14 Most Preventable Trial Preparation Mistakes

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10. 10 Things Every Mock Jury Ever Has Said

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9. The 12 Worst PowerPoint Mistakes Litigators Make

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8. How to Structure Your Next Speech, Opening Statement or Presentation

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7. The Top 14 Testimony Tips for Litigators and Expert Witnesses

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6. Demonstrative Evidence & Storytelling: Lessons from Apple v. Samsung

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5. Lists of Analogies, Metaphors and Idioms for Lawyers

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4. The Top 10 TED Talks for Lawyers, Litigators and Litigation Support

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3. 12 Reasons Bullet Points Are Bad (in Trial Graphics or Anywhere)

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2. 5 Questions to Ask in Voir Dire . . . Always

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1. The 50 Best Twitter Accounts to Follow for Lawyers and Litigators

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complex civil litigation ebook free

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


New Webinar - PowerPoint Litigation Graphics - Winning by Design

 

 

PowerPoint Litigation Graphics Webinarby Ken Lopez
Founder/CEO
A2L Consulting

One month ago, I published an article (pictured right) about PowerPoint litigation graphics that you just could not believe were in PowerPoint. I was quite surprised by the attention it generated.

Five-times the number of normal readers have read that article, and it so far has 75 Facebook likes, 20 Google+ +1's and 77 shares on LinkedIn. From those readership statistics, I knew we had a topic that people wanted to know a lot more about.

So, I asked my A2L colleague Ryan Flax, Esq., who is arguably the foremost authority on how best to use litigation graphics at trial, to conduct a free webinar on the topic. I'm pleased to share the news that this webinar, PowerPoint Litigation Graphics - Winning by Design, will be conducted live next week - and yes, it is completely free and without any obligation.

Over the past six months, we have hosted many online webinars and CLE's. Most notable and well-attended were Patent Litigation Graphics and Storytelling in Litigation. Combined, more than 1,000 attendees have watched those webinars so far. About half of the attendees were from AmLaw 200 law firms, and half were from a combination of smaller firms, competitors, governments and other institutions.

Before A2L created its award winning jury consulting operation and it's courtroom technology operation, it was a litigation graphics firm. Now in our 19th year, litigation graphics are still something I am passionate about. For me and for people like Ryan, the creation of persuasive visual evidence is something that mostly comes naturally. But, creating an effective trial presentation would not be possible without the amazing team of highly trained and experienced litigation consultants and litigation graphics artists we have on staff here. Many of the important lessons we've learned from our work will be shared at this webinar.

Topics that will be covered in the webinar include some of the most important and misunderstood information in the trial graphics business including:

  • Why bullet points almost always do damage to your presentation.
  • The real science behind what works with litigation graphics and what does not.
  • How to weave litigation graphics into a story you are telling at trial.
  • How to use complementary rather than competing graphics in a visual presentation.

Ryan Flax, the webinar's presenter, is an experienced litigator. As such, the webinar will be directed at anyone who spends time in a courtroom or who makes persuasive presentations for a living. With that said, litigation support professionals and those who aspire to persuade others with visual tools will find significant value in this presentation.

I hope that you'll take a moment to register for this free webinar, PowerPoint Litigation Graphics - Winning by Design. If you have a schedule conflict on Tuesday, March 18th at 1:30pm ET, register anyway, and we'll send you an archived version after the live webinar occurs.

PowerPoint Litigation Graphics Webinar Consultants  

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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5 Settlement Scenarios Where Litigation Graphics Create Leverage

 


settlement litigation graphicsby Ken Lopez
Founder/CEO
A2L Consulting

My colleague Ryan Flax published an article earlier this week about six key triggering events that warrant at least a call to your litigation consultant of choice. One of those triggers was settlement, and that got me thinking. In the hundreds of litigation-focused articles we've published here over the last several years, we haven't talked about settlement very much. Looking back, that seems silly since nearly all cases settle.

Over the past decades as a litigation consultant, I've had the opportunity to participate in a variety of settlements. Most frequently, we are engaged to assist in the preparation of litigation graphics for a mediation that is essentially a structured settlement process.

If you think of settlement as mediation, then how would you prepare? In mediation, I think most lawyers would prepare an aggressive presentation that helps persuade your fact finder. I think you should do the same for settlement talks.

In federal court, a magistrate judge will often try to force a settlement during pretrial conferences. Usually this involves the judge putting the parties in separate rooms, running back-and-forth between rooms, and telling each party that they're going to lose horribly. It's an effective tactic.

At this point, the judge is usually working from a short summary of the facts of the case and is by no means an expert in the facts. The judge is attempting to take a very quick look at the facts, and attempting to force both sides’ hands using fear as a motivator.

What if instead you were able to open up a laptop (or the same in paper form) and say, “Your Honor, if you'll allow me a three minutes, I'll show you six things that may change the way you are looking at this case.” I think most judges would say yes.

The same is true in direct settlement negotiations. Again, if you have a brief and powerful presentation available to you, you might be able to create enough worry in the other side’s mind to move them somewhat off their position. It is well known that fear of loss is a 10x greater motivator than hope of gain, so use it to your advantage.

storytelling for judge jury courtroom best method for trial persuasion and emotion

So here are five areas where you can use litigation graphics meaningfully, powerfully, and successfully during settlement talks.

1. During actual mediation. Here there are usually no federal rules of evidence. It's a good time to be aggressive with your litigation graphics. 

2. During settlement talks in a judge’s chambers. Whether you open a laptop to a PowerPoint or whether you have tabletop-size charts to share, using visuals will show that you're serious, will allow a judge to get her arms around your case quickly, and will provide ammunition to force settlement from the other side closer to your number.

3. During direct settlement talks. Using graphics during settlement talks will help put some fear into the opposition and may induce opposing counsel to change their long-held beliefs about the case.

4. During an email exchange settlement. Some settlements happen entirely over email. Sharing a handful of graphics in an email is simple and shows you're prepared and ready for trial. It does not take many graphics to get your point across.

5. During mock settlement discussions. Not all settlement discussions are created equal. In some cases the dollars at stake are such a big deal that mock settlement discussions or mock mediations are conducted. This is an excellent time to test your litigation graphics to see how they fly with your mock opponents or mock mediators.

Don't overlook litigation graphics in your settlement talks. They are an essential weapon in the arsenal of the well-prepared trial lawyer.

Other A2L articles related to litigation graphics use in arbitration/mediation or at trial generally:

  

  complex civil litigation ebook free

 

 

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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6 Triggers That Prompt a Call to Your Litigation Consultant

 

 

when should one hire litigation consultantby Ryan H. Flax, Esq.
Managing Director, Litigation Consulting
A2L Consulting

This seems to be a significant hurdle in many cases – trial counsel believes he or she needs assistance with the courtroom presentation, trial technology, and/or jury consulting, but doesn’t know when the right time to get started with the process is (or doesn’t fully consider this need until it’s become an “emergency”).  Holding-back their decision are uncertainties about costs, about what exactly the litigation and jury consultants can and will do to help, how long the process should take, and how definite the trial strategy must be to fire the proverbial starter pistol.  Let me clear it up: it’s never too early (or too late).

There are many logical starting points to engage litigation consultants during the lifespan of a case.  Let’s take a look at some of them below:

1. Trigger: Complaint (Call Your Litigation Consultants Right Away)

I’m not suggesting you need to seek a litigation consultant to serve your complaint or file the answer, BUT per my (previously published) recommendation that you use a two-track litigation plan in developing your trial strategy, it is important to begin planning your courtroom presentation very soon after these litigation-initiating events and a litigation consulting team will benefit this process.  That two-track strategy includes: (1) preparing to persuade a jury and/or judge so you can win the trial; and (2) doing all the really “lawyery” stuff like establishing a comprehensive record, meeting your prima facie case, etc., that becomes very important at summary judgment or on appeal.

The benefits of engaging a litigation consulting firm like A2L early in your case is that it forces you to think about those things that will help you win at trial.  These include developing the foundational story of your case, identifying complexities of the case that must be simplified and distilled so that a jury of lay-people will understand and be persuaded by your arguments, and developing an understanding of your jury pool’s demographics and tendencies so that your case can be built around that knowledge.  Moreover, you can begin developing the visual component to your case, which has been conclusively and scientifically proven [pdf] to be a key aspect of litigation persuasion.

Another important reason to start early is your litigation budget.  At the beginning stages of every case you have the opportunity to build into your budget all the things that will help you win (attorney and paralegal time, electronic database storage, discovery software, war-room facilities, jury research, litigation consulting and demonstratives, travel expenses, court reporting and videographers, trial technology, etc.) and have your client understand and approve these things.  A litigation consultant is clearly one of those things you’ll want to include and if you wait too long it will have to be an add-on cost to your case that you’ll have to get further approval for, rather than an initially planned-for, built-in line item cost.  Plus, explaining this litigation need to your client early in the case reinforces the fact that you’ve got the experience to handle his/her case – you know all the bits needed for a successful result.

Starting early like this, engaging the consultant and having them begin some preliminary work on your case, doesn't really increase costs.  The counsel-consultant relationship can be kept at a low simmer over the course of the months (or years) of litigation.  You can seek consult on issues as you move along, e.g., test storylines on an outside player, develop graphics to use in briefing or discovery or hearings or settlement negotiations, do early jury research. 

Eventually, as you get closer to trial, you’ll turn up the heat for more trial-relevant and essential input from your consultant and to develop demonstratives to use at trial.

See also:

2. Trigger: Expert Reports (Call Your Litigation Consultants About 1 Month Before Service is Due)

expert witness prep testimonyDiscovery is often a time during which the end-goals of litigation can be forgotten or at least swept to the side while attorneys build the heap of facts they’ll later use to try and convince some regular folks that their legal case is better than opposing counsel’s legal case.  Try not to do this.  Your case themes and developing storyline should, in part, direct your discovery requests, discovery review, and depositions.  Engaging a litigation consulting team will help keep you tuned in to these important aspects of your case.

In most big litigation, expert witnesses are a very big part of the discovery process and, ultimately, trial.  First you’ll likely have expert reports to (help) prepare and then you’ll have expert depositions to take (unless you want to try and restrict the expert’s testimony to his/her report’s disclosure for some reason).  Expert reports are opportunities to use visual support in the form of graphics, animations, or scale models to enhance your expert’s positions.  To do this you need assistance from your litigation consultant who can work with you and your expert to develop persuasive visuals that compliment your case and the expert’s opinions.

Expertly crafted demonstratives can be embedded within an expert report or, if they are large and detailed images, more advanced animations, or even scale models, they can be appended as exhibits to the report.  Taking the time to prepare these things for your expert paves the way to using them without reasonable objection at trial (see FRCP 26).  Additionally, going through this process of thinking through how to visually convey his key messages engages your expert in a way more akin to the way he’ll have to think at trial – where his goals will be persuasion through education.

What follows the production/exchange of expert reports?  Expert depositions. 

Unless your expert is an expert at testifying, he likely needs some work to get him in good form to testify.  Many attorneys handle this exercise themselves by reviewing the expert’s report with him, explaining the deposition process, explaining the dos and don’ts of being deposed, etc., but often this is not enough.  You may choose to do as I did when I was trying cases – engage a third-party coach to help prepare your expert to be deposed.  Litigation consultants (and often jury consultants) can provide outside expertise in preparing your witness.  As third parties to the case, consultants can play the “bad guy” more easily than can members of the attorney litigation team.  Many times, it’s this “tough love” that turns a novice expert “disaster” into the key piece of the puzzle that wins the day at trial (or doesn’t lose the day at deposition).

All this means that in the weeks leading up to expert reports coming due, you should consider pulling the trigger and calling in your litigation consulting team.

See also:

3. Trigger: Settlement Conference (Call Your Litigation Consultants About 1 Month Before)

This, too, is a good time to get going with your trial preparation.  A lot of clients contact us at this point because they want to have a sort of Closing-Argument-Lite to show opposing counsel how strong their case is and how weak the opposing case is. 

settlment negotiations litigation consultants graphicsYou’ll want to use a professional litigation graphics firm to help for two reasons: (1) you want this presentation to effectively convey the story you want it to convey so that your argument seems super reasonable, persuasive, and imminently winnable; and (2) you want your litigation graphics to look “sophisticated” so that your opposing counsel sees how seriously you’re taking the case and how much time and money you and your client are willing to spend on it. 

In reality, it is not expensive to prepare this short presentation and the time, money, and effort is all well-spent if it moves your opposition.  Consider the cost balance in this scenario: if you believe settlement is reasonable, but you cannot convince opposing counsel to do so on favorable terms and have to continue through trial it will likely cost your client hundreds of thousands,  If, on the other hand, you prepare a persuasive settlement presentation at this point for less than 5-10% of such costs and your presentation is effective in accomplishing the settlement on your terms, you’ve saved your client those hundreds of thousands of dollars.  Even if you don’t settle at this point the costs are not lost because you’ll likely re-use much of the litigation graphics or versions thereof later in the case.

See Also:

4. Trigger: Dispositive Motions or Markman Hearing (Call Your Litigation Consultants About 2-3 Months Before)

There comes a time in every case where it can end on a motion and this is an important time to have a litigation consulting team available to help make sure your briefing, argument, and presentation are everything they can be. 

summary judgment litigation graphicsIn all cases there are typically motions for summary judgment – this is a good time to call.  In patent cases, there are also summary judgment motions, but before these there are patent claim construction hearings called Markman hearings (named after the case establishing claim construction as a matter of law).  Both summary judgment and Markman hearings are case-pivotal, mini-trials that must be taken very seriously and litigation teams often come to A2L at this point in their cases.

When presenting oral argument for a summary judgment hearing you will be presenting what you’ll argue is undisputed evidence and related case law on why there’s absolutely no reason you shouldn’t win the case right then and there.  Your undisputed evidence will likely include documents that came right from the opposing party that prove they can’t win (in your opinion).  You will also want to make some points on how all the evidence adds up to this undeniable victory for you.  To do this you must have a visual component to your presentation – you want to show the evidence electronically and also graphically illustrate how it all fits together for your case.  This is where a good litigation consultant and trial graphics artist, and maybe even a trial technology professional and a jury consultant, can serve you well.

In a patent case’s Markman hearing you’ll have to argue why certain language from what is likely already a complex and confusingly written patent claim means something other than what it actually says on its face.  You will point to descriptions in the patent’s specification, to the patent’s drawings, to the prosecution history (and maybe to extrinsic evidence also) to make these points – you’ll need to show the court precisely where the documents prove your case and do so in a convincing way.  There may also be a technology tutorial aspect to the Markman hearing required.  All this makes it absolutely necessary to have a professional team available to develop persuasive visual support for your oral arguments (and briefing, too, if possible).  This is likely your only chance to influence the claim construction of your case, which will likely determine the outcome at trial – make sure you do all you can to win here.

Make sure in your next case you consider these dispositive occasions to be the potential triggers to seek expert assistance for litigation.

See also:

5. Trigger: Trial is Scheduled (Call Your Litigation Consultants About 6 Months Before)

OK, now things are getting pretty serious.  Trial dates are moved all the time in litigation, but if your case is scheduled for 6-months out, it’s likely that’s when you’re going to trial.  At this point, if you’ve waited to engage an outside consultant to help you prepare your trial presentation, this is the time to pull that trigger. 

time for trial no settlementDoing so with 6 months to spare enables you and your new litigation consulting team to develop a strategy around jury research, develop convincing and relatable trial story lines, figure out what visuals are needed, etc.  With 6 month to go, you still also have time to do mock jury exercises, but that time is quickly slipping away so start planning immediately.  With 6 months to go you can have your litigation consultants fully engaged and supplying you with fresh, outsider’s ideas on where your case’s storylines are strong and what just doesn’t make sense.  With 6 months to go you have the time to play with and tinker with your visual presentation with a bit of leisure, rather than under looming trial pressure to “just get everything done.”

If you just cannot commit to engaging a litigation consultant at an earlier stage of your case, do it now.

See also:

6. Trigger: Trial is REALLY Coming (Call Your Litigation Consultants About 1-3 Months Before)

As you can see, there are lots of other trigger points preceding your very final trial-preparation that should initiate a call to your demonstrative evidence / jury consulting / trial technician team.  However, right or wrong, the majority of litigation teams wait until this end-game to get serious help in developing their trial presentation and improving their jury-persuasion strategy.  It’s not the end of the world, obviously.

At this final stage of your case (baring appeal), we (litigation consultants) must be very committed to developing the specific presentations that will be made in court: opening statement, closing argument, direct testimony, and cross examination.  This presentation development includes one-on-one consulting with the litigation team to sort out the best themes and storylines of your case.  Events that must be conveyed to the jury to induce a perception of causation as to key issues in your case must be identified to make graphics, including timelines.  If scale models are needed, there’s not much time to make them at this point so we must focus on doing so immediately.  If any jury research is to be done, it’s unlikely that a full-blown mock jury exercise can be organized at this point, but you can still do smaller focus group studies or micro-mock exercises to fine tune your presentation. 

Of course, a lot of litigation graphics must be produced to support (typically) an hour of opening statement, an hour of closing statement (again, typical), any visuals to support your expert(s), impeachment, litigation boards, etc.  Also, if your evidence is largely electronically based you’ll need a trial tech to immediately begin developing a trial database for you and then go with you to trial to display your evidence for you seamlessly.  If your courtroom is already high-tech and wired and ready to go, great; if not, you’d better arrange to have the equipment there that you’ll need to make your best presentation.

Clearly, there’s a lot to consider and waiting to the last minute is not ideal.  But, if this is your situation, engage an expert to help you along this tricky path.

See also:

storytelling for lawyers litigators and litigation support courtroom narrative

About A2L Consulting

•  Leading national litigation consulting firm since 1995

•  Personnel nationwide

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

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

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

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

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

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


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