Posted by
Ryan Flax on Tue, Apr 16, 2013 @ 02:49 PM
by Ryan H. Flax, Esq.
Managing Director, Litigation Consulting
A2L Consulting
In patent law, usually the U.S. Court of Appeals for the Federal Circuit (affectionately called the Federal Circuit or just Fed. Cir. for short by us patent practitioners) has the last say in any case. It’s the court of appeal for patent cases in the U.S. and has made most of the law on patent infringement and validity. As a patent attorney, I’ve had my cases heard before the Fed. Cir. and as a litigation consultant, I’ve worked with retired Fed. Cir. judges in helping prepare appeal teams for their oral argument before the court. After just doing so in collaboration with a (very impressive) retired Fed. Cir. judge, I’ve identified 11 things you must consider when getting ready for your own oral argument. Read on below and, once you have, I invite your feedback, either by email or as a comment below.
1. Practice, practice, practice.
It may seem obvious, but you need to practice your oral argument - like crazy. It needs to become like reciting the pledge of allegiance. You must be able to recite your 15-minute argument all the way through and do so convincingly. You also need to be able to begin the argument, get interrupted, discuss something tangential to your argument, and then jump right back in where you left off and do it in a way that makes sense and flows well.
You will have a total of 15 minutes to make your case at oral argument, but you’ll never be able to do it from beginning to end in the real hearing because the judges will likely interrupt you just moments after you say “May it please the court,” to ask the questions they’ve been wanting to ask since they read your brief. But, that doesn’t mean you shouldn’t be prepared to do so. And, being prepared in this way will allow you to stay on your own agenda, rather than bending completely to the direction the Fed. Cir. panel forces you to take with their questions.
I just listened to the oral argument of a client at the Fed. Circuit. We’d prepared for every conceivable question the panel could offer, and our client was ready. However, the panel was surprisingly laid back compared to most. They did ask a few questions, but, for the most part, had little to say. This was an opportunity for counsel to really argue and present all the reasons why his client should win. But, to do that, you need to be ready to do it and have your arguments in the bag.
2. Craft a sharp, focused, and memorable introduction.
As I just mentioned, it’s likely that you will have barely gotten through your introduction to the Court when you’ll be interrupted by the panel asking a question. For this reason, it’s of paramount importance that you have a terse, memorable, and eloquent statement for why you should win that you can lead with.
Everyone reading this article knows the quote to the right and who made it. Johnnie Cochran was certainly not arguing before the Fed. Cir. when he said those famous words, but they were supremely effective in setting O.J. Simpson free. This one line summed up the entirety of the defense’s position on the case – “the evidence just doesn’t fit here, something’s wrong, and you can’t convict O.J.” I’m not suggesting you begin your Fed. Cir. argument with a rhyme or something silly, but whatever you say should stick with the judges after the hearing is over and it should encapsulate your case for them, because it’s not impossible that this could be the only scripted part of what you actually argue at the podium.
3. Give the panel a good reason to listen to you.
Most Federal Circuit cases are won and lost on the briefs and, so, the oral argument may be of less importance both generally and to the Court. However, I’m sure you’re not willing to forgo your chance to explain why you should win in the courtroom. If you want your oral argument to have the impact it should, you need to have the judges listen to what you have to say, not just use you as a punching bag for their questions.
To do this you must have an introduction that explains to the panel that what they’re about to hear, they could not get by simply reading the briefs. You need to explain why what you’re about to say is different, more focused, and, perhaps, will clarify things that may have seemed confusing from simply reading the papers.
You want to get the panel sitting back in their seats, both figuratively and literally, so they are waiting to hear what you’ll say and so they will hear you out. If you don’t do this, you’re on the Court’s agenda, not your own.
4. Focus on the paper.
All that matters to the court is the record. Appeal courts in general are slaves to the record. If something didn’t happen on paper, it didn’t happen at all as far as the Fed. Cir. is concerned.
So, how do you include this knowledge in your oral argument strategy? The answer is that you need to have a solid cite to the appeal record for each and every point you want to make and for each and every response to every conceivable question the Court may ask.
You also need to be able to find the things you identify as supportive in the record so you can quote from the record. Have a copy, tabbed and ready with you at the podium. Have your second chair as familiar with your argument and tabbed record as you are and have his own so that he or she can help you should you become “flustered” at the podium.
5. Use a demonstrative or two.
Using demonstrates during Fed. Cir. oral argument is not common, but that doesn’t mean you shouldn’t consider it. If a graphic might help you make your argument or help you explain something complicated about the patent and/or technology at issue, have such a litigation graphic professionally created in consultation with a litigation consultant. But, you need to carefully consider doing this.
First, if you get to use a demonstrative at oral argument at all, you’ll likely only get to use one. So, you’d better make that one graphic count. It should be useful for several purposes. For example, using an image or illustration of the accused infringing device can be useful both to explain your own invention and the proper claim constructions and also how the accused thing infringed the correctly construed claims.
Second, be careful. A lot can go wrong using a demonstrative in the Fed. Cir. It’s not as dangerous as an animal act on live late night TV, but you can certainly look pretty un-smooth if you’re not well versed in what the demonstrative shows, how you plan on using it, or if you haven’t practiced actually referencing the board while you argue. And, that’s precisely the type of demonstrative I suggest, a very large, clear, and precise poster-board graphic. And, another real danger is that you will “fall in love” with your demonstrative so much that you overuse it as a tool. Be careful not to become a slave to your graphic, don’t turn your back on the panel while using it, and stop using it when its usefulness has ended.
6. You have to manage your time, the court won’t do it for you.
Each party gets 15 minutes to argue before the Court – use and manage your time wisely. The Court will do nothing but monopolize your time – it will not manage your time or urge you along your argument agenda.
If you are the appellant you’re going to argue first, but you also want to argue last so be sure to tell the court you want to reserve between 3 and 5 minutes for a rebuttal after the respondent argues. When you get down to the 10 or 12 minute mark, you need to put the brakes on and remind the panel that you intended to reserve time for rebuttal because if you let the Court go on, it will and it may steal away your rebuttal if you don’t speak up.
When you’re arguing there are lights at the podium. When the lights turn yellow, your time is running out and when they’re red, you’re out of time. When you’re out of time, that’s it unless the Court makes an exception for you. Sometimes this happens if the panel asks an excessive number of questions and recognizes that it’s pushed you over the time limit. Usually if this happens, the panel will grant you the extra time and also add an equal amount to the opposing side’s argument.
Part of managing your time is being prepared to respond in a completely responsive, but pithy way to every question the panel might ask. Doing so allows you to be respectful of the Court, but also get back to your own points.
Considering your introduction, the time taken up by the judges asking questions, and, if you’re the appellant, your rebuttal time, you’ve really only got about 6-8 minutes of oral argument, so make the best of it. And, you’re likely going to be a bit flustered, so practice and be prepared to handle this time management.
7. Seek help.
Get feedback from outsiders, like me, on how your planned argument is going to go over at the Fed. Cir. Sure, you’re a very smart person and an experienced and talented attorney, but that doesn’t necessarily or automatically mean you’re going to make a great presentation to the Court. Part of getting to the appeal is likely drinking a lot of your own Kool-Aid. You’ve had to convince yourself that your case is a winner, had to try to convince opposing counsel your case is a winner, and try to convince the district court judge and the jury that your case is a winner. Then you had to write a super-compelling and persuasive 14,000-word brief. After all this, it’s understandably hard to view your position and arguments objectively.
That’s where I come in. You can have the partner down the hall sit with you and listen to your ideas about oral argument and even watch you practice, but it’s unlikely you’re going to get the type of objective feedback you need under such circumstances. I recommend conducting a mock oral argument before a mock panel. You need to prepare carefully and thoroughly for such a mock exercise and you need to be grilled with the toughest questions anyone associated with the case, including me, can think of. If you do not practice in this way, unless you do Fed. Cir. oral arguments frequently, you’re not going to be ready when the day comes (at least not in my book of “ready”).
8. Prepare to be the most reasonable person in the room.
You need to be well-reasoned in all aspects of your oral argument. Any point you’re affirmatively making must be backed up, and backed up well, by some point in the record and you need to be able to direct the court right to that record-cite. When responding to the panel’s questions, you need to have anticipated the issue and have a terse, one sentence, reasonable answer to that question that fits with your appeal positions (and you need a record cite to back it up, too).
If you have an argument that’s a loser, concede it unless it’s dispositive and focus on what you need to to win the war. Maybe you’ve brought some superfluous causes of action that can be dropped while maintaining your case-at-large. Maybe some of your patent’s claims can be allowed to be either abandoned (in terms of infringement) or acknowledged to be (possibly) invalid if it saves the patent and case, generally.
Basically, don’t fight needless and likely-losing battles just to sacrifice the war. Look like a reasonable person. It’s easier to take your case and points seriously if you are.
9. Be ready for anything and everything.
Brainstorm and identify every single possible question that may be asked and have a one sentence, perfect answer for each. Over-do this preparation.
You really do need to spend a lot of time imagining what questions may be asked by the panel because, for all the reasons discussed above, you need to be ready for what the judges will throw at you. You need to have an understandable, reasonable, and completely responsive answer for anything and everything a judge might question – and that answer must fit within the confines of a single sentence or two, at most.
All the judges have to go on is the briefing in the case, the record, and whatever their clerks have to report before the hearing. Re-read all this stuff again. Have an outsider read it and give you feedback. Ask yourself: where are the holes in my argument? What points seem strongest for the opposition based on their brief? What might be confusing based on the briefs alone?
Ask: What can the judges do to simply dispose of this case without much fuss. This last one identifies what the judges’ primary goal will be during the hearing. If they can identify a simple reason to rule one way or another and develop a reasonable rationale for that reason, that’s the path of least resistance and the one most likely to be taken. Be ready.
10. On rebuttal, don’t rehash.
Rebuttal is available to rebut, not to review and restate arguments already made. As confirmed by my retired-judge-collaborator, the Fed. Cir. judges will just tune you out (at best) if you rehash and could affirmatively end your argument for you (at worst).
Listen carefully to what your opposition argues and to the questions asked by the panel during your opposition’s argument. If opposing counsel makes a good point – counter it on rebuttal. If the judges seem to identify a chink in your opposition’s armor – drive your sword into it and make it bigger (tell the panel how astute they were to see it and how important it is to why you should win).
Take your time during the opposition’s oral argument to read any notes your second chair may provide you – they were likely dying for you to say something specific during your argument that you just didn’t think of in the stress of the situation – you can make that point on rebuttal. Carefully consider how your argument went and the questions asked by the judges. What did you do well and where could you have done better? What could you fix by rephrasing or by identifying an appropriate cite to the record? Do it when you get the chance.
Of course, all this rebuttal strategy only works if you’re the appellant because the respondent (appellee) does not get a rebuttal.
11. Write a brief that the Court can follow, easily.
Lastly here, but the first thing you should do in a real appeal, make sure your brief is a winner, not just on the facts and law, but in how it’s formatted and organized. I leave it to you to know what issues must be addressed and what precedent supports your positions, but I believe you need to make your brief a “recipe” for victory.
As discussed above, most cases are won on the briefs. You don’t want to have to rely on giving a perfect oral argument, because it’s likely too late by then. Set your brief up in a way that the Court can instantly recognize your primary points. I suggest setting it up in a “check-list” style.
What this means is that a reader (the Court) should be able to fully understand the entirety of your argument and why you should “win” by simply reading the headings of your brief. The headings should be terse, but crystal clear in their point. The rest of the brief (the substance under the headings) should be there simply for the purpose of supporting the big points you’ve made in the headings. This way, when the judges initially read your brief, it’s simple to follow along and there’s a clear organization to your arguments. Then, when the judges want to review your brief right before your oral argument (which they likely will), they can get through it quickly and understand it – checking off your arguments and rationale.
When I say make your brief a “recipe” for victory, I mean that it should be as easy to follow and as understandable as a cookbook. You should give the Court exactly what it needs (the steps and ingredients under the appropriate burden) to rule in your favor, but not so much embellishment that it detracts from the clarity of your positions.
I hope you’ve found the 11 suggestions above informative and thought provoking. I believe if you follow my advice, you will be ahead of the game for your next oral argument before the Fed. Cir. (or, really, any appeal court).
Some other A2L Consulting materials related to arguing cases in the Federal Circuit, in patent litigation or at trial generally are linked below:
About A2L Consulting
• Leading national litigation consulting firm since 1995
• Personnel nationwide
• Routinely voted #1 for demonstrative evidence consulting, jury consulting or intellectual property litigation consulting nationally
• Consulted for all major law firms on 10,000+ cases with trillions of dollars cumulatively at stake offering:
Trial Consulting: mock trials, Micro-Mock™, mock Markman hearings, jury consulting, shadow juries, jury selection and more;
Trial Graphics: legal graphics and litigation graphics, courtroom animation, video, printed foam core trial exhibits, PowerPoint presentation consulting, simplifying the case story and more;
Trial Technology & Onsite Personnel: ebriefs (electronic briefs), hot seat operators, trial technicians, courtroom presentations and more;
Look for A2L trial consultants, graphics consultants and jury consultants in Washington, DC, Baltimore, MD, New York, NY, Boston, MA, Alexandria, VA, Atlanta, GA, Miami, FL, Chicago, IL, Houston, Texas, Los Angeles, CA, and San Francisco, California, Wilmington, Delaware, Philadelphia, PA, Phoenix, AZ, San Antonio, Palo Alto, Dallas, Detroit, Baltimore, Cleveland, Kansas City, Las Vegas, Pittsburgh, Richmond, VA, Salt Lake City, Denver, London, Dublin, Johannesburg, Brussels and many other cities and countries around the world. A2L Contact Information.
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by Laurie R. Kuslansky, Ph.D.
Have you ever helped a witness get up to speed, or interviewed a witness who seemed all put together, only to see him or her take the stand and unravel? For example, had Mark Fuhrman been able to appropriately acknowledge his regrettable actions of the past in the O.J. Simpson criminal trial, how many days of courtroom drama would we have been spared?
Recent high-profile cases suggest the need to rethink basic assumptions about witness preparation – to, in effect, probe the essentials of this fine art more deeply than is encouraged in most litigation skills training.
There are two fundamental levels of witness preparation:
- Witness Prep Level 1: Surface, which includes observable outward appearance, demeanor, body language, and delivery of verbal testimony.
- Witness Prep Level 2: Subsurface, which includes the emotional/ personal/professional conflicts that act as an undercurrent to the surface level.
Witness Preparation Level 1 – Surface
Many practitioners (lawyers and others) attempt to modify the exterior aspects of witness testimony (i.e., the surface level) by rehearsing the “correct” responses with witnesses, admonishing them about incorrect responses, and telling them how or how not to look (i.e., cosmetic fixes). It is common to discuss the selection of the appropriate suit and tie for a male witness or the right style of dress and accessories for a female witness.
It is also common to provide witnesses with lawyer-generated outlines or scripted responses for Q & A sessions, and to ask them to study and internalize the scripts. Efforts of this type require witnesses to perceive, attend to, comprehend, store and recall information. In other words, they must use their perceptual and cognitive abilities.
However, traditional witness preparation tends to yield unreliable results because it is superficial and does not address subsurface conflict. For example, we have often heard counsel advise a witness, “Don’t worry about this particular issue in your testimony,” without knowing what the witness actually does have to worry about.
Progress made through surface-level preparation alone is transient and highly susceptible to being reversed in the absence of constant reinforcement. Conflict tends to undermine surface-level preparation because it interferes with the perceptual and cognitive skills involved in processing and recalling the information. Distractions or emotional concerns may cause the witness to simply forget the answer due to limited recall of the “correct” response when under pressure. Second, even when the witness recalls the “correct” response, the delivery can unwittingly communicate unaddressed, underlying discomfort or conflict and betray the intended message. In other words, the delivery (through intonation, choice of words, facial expression, body language, posture and eye contact) can sabotage the response (for example, when the mouth says “no” but the head nods yes).
Finally, since rote feeding of responses cannot predict every possible question, it cannot supply every possible answer. The witness may progressively fail to hold up under attack on cross examination because he or she does not know the prescribed response to an unanticipated question. If, in the face of the unexpected, a witness senses that they’ve lost control, it will throw them off track and into a tailspin.
Witness Preparation Level 2 – Subsurface
The surface-level approach thus ignores two powerful sources of potential witness failure:
- The inability to predict every possible question and thus to model every possible response for the witness.
- The fact that, in some way that relates to the case or the experience of testifying, the witness is conflicted. Such conflict tends to undermine surface level preparation because it interferes with the perceptual and cognitive skills involved in processing and recalling the information necessary for effective witness performance. In addition to pondering and reviewing legal or technical facts, almost every witness is likewise preoccupied by internal and personal issues. These may pertain to his or her real or imagined vulnerabilities, may or may not be case-related, and may be known or unknown to the trial team. Usually they are unknown.
For example, there was “the man who bent over backwards,” a caring, hardworking disaster-claims adjuster with an impeccable professional record who had an extramarital affair during a claim assignment. The handling of that claim later became the issue of a lawsuit. The adjuster’s diligence might be a positive issue under cross, but because of his affair (not the work he had done), he experienced great angst while preparing to testify. The consequences of being exposed threatened to undermine his testimony. It was only by bringing the issue of his affair to light, discussing possible consequences and solutions, and reconciling them in the context of the case that the witness was able to cope with it. Once free of his dark secret, he was prepared to assert affirmative points, focus on his proper handling of the disputed claim, and present himself with dignity. In fact, further dialogue revealed that, in some instances, his on-the-road relationship may have actually benefited the insured because he had offered extra assistance to his coworker paramour (crawling into difficult-to-reach inspection sites, for example), which he would not have done had they not been so close.
The sources of conflict are typically not cognitive, but emotional or personal in origin. Since one’s emotional state affects perception and memory as well as overall competence and performance, it is risky to engage in preparing a witness on the surface level until the covert, subsurface-level issues are addressed first and fully. The conflicts must be explored, revealed and resolved before a witness can come to a state of optimal competence and reliable performance in which he or she is fully able to process and handle information.
During typical preparation sessions, witnesses are unlikely to voluntarily bring their personal conflicts and concerns to the surface and reveal them to the trial team, either because they are unaware of the conflicts themselves or because they experience shame, regret, dread of repercussion, or self-recrimination. This is particularly so for expert witnesses who often fancy themselves (or believe others should see them) as invincible. Admitting a problem could shatter that image.
The goal is to prepare a witness to be conflict-free. The term “conflict-free” does not mean “problem-free,” in which witnesses would be reassured by simply playing down the challenges to overcome in the testimony. Instead, it means a witness free of unaddressed emotional dread about undisclosed issues. Internal conflict is fueled by anxiety and is then unwittingly disclosed on the stand in a variety of self-defeating behaviors. These include defensive preempting of, or sparring with, the cross-examiner; anticipating questions; interrupting the examiner; becoming antagonistic; misstating known facts; failing to recall memorable facts; or contradicting prior testimony.
Solving Conflict: Important Steps
Being conflict-free is achieved by:
- Establishing rapport and trust with the witness;
- Empowering the witness with knowledge about the case, the process, procedure, case progress, and expectations; and
- Exploring and addressing internal personal fears by providing concrete coping strategies and helping to reframe issues. It is not necessarily a “bad fact” that undermines a witness; rather, it is how the witness views and reacts to the bad fact that determines his or her credibility and durability as a witness. One senior engineer had a habit of jotting down highly provocative and inflammatory comments in the margins of his company’s internal memos. In a lawsuit years later, he was terrified those notations would come back to haunt him. The day was won by shifting his focus from the notations to his behavior, and by getting him to acknowledge outright that he had a bad habit of writing “cockamamie” things which were immature, impudent, and intended to get a rise out of his superiors, but which did not relate to the plaintiff’s allegations of fraud.
- Establish rapport and trust. Ask fundamental questions that show concern for witnesses. Who are they outside the context of the case? What are their family histories and backgrounds? Place in birth order? Role in family, role in business, role in the case? How has all of this affected their personal and professional lives? What makes them angry or worried or upset? What is the best and worst outcome they could expect? How do they feel about the possible consequences? What is their prior experience testifying? What from that experience still applies? What’s different now? What, if anything, do they regret regarding this case? How, if at all, can it be remedied? What would they have done differently if they knew then what they know now?
Maximizing contact between the witness and the trial team helps to maintain the established rapport and sends a message to the witness that the trial team is receptive and values their participation. Individuals such as junior or lower level associates and staff who are capable of building rapport with witnesses can act as communications liaisons between witnesses and senior members of the trial team. Such liaisons are commonly more accessible and less threatening. Witnesses are apt to ask them questions or express concerns to them. These contacts can be especially valuable during the pretrial countdown days when what the witness considers important can be superseded by the trial team’s priorities.
Empower the witness with knowledge. Even a seasoned professional can be reassured by a review of fundamentals and details of what is expected in an upcoming procedure (whether deposition, hearing or trial). Make sure witnesses are kept up to date regarding the status of the trial and changes that may impact the order and substance of their testimony. The communications liaisons discussed above can assure that witnesses are continually apprised of developments. Address areas of conflict and provide coping strategies. Particularly troublesome witnesses who have difficult dispositions, attitudes, and/or substantive problems can be significantly aided with the help of professionals.
Appropriate professionals to consult include those who specialize in psychology and law, who have an astute understanding of trial tactics as well as the know-how to deftly elicit and manage witness conflict. Psychologists who lack an understanding of trial context and strategy will be of limited value. Explore, through nonjudgmental dialogue, how the witness witnesses reframe issues to alleviate undue stress and resolve internal conflict. Perhaps most importantly, do not supply answers before hearing out the witness. Here are a few specific coping strategies:
Reframe Difficult Issues
From: “I did the wrong thing.”
To: “Knowing what I knew at the time, I did my best under the circumstances: I made a reasonable choice and took reasonable action. I did not know and could not have known then what I know now.”
Overcome Anticipated Criticism or Exposure
From: “I fear this issue is going to come out. I pray it doesn’t. I don’t know what to say. I should have done a better job/more/shouldn’t have done what I did.”
To: “That issue may very well come out. If it does, I can respond with x, y and z. It is not really relevant because it has nothing to do with this case. It is simply intended to make me look bad. Knowing that, I can prepare for it. In any case, I can bring the focus back to my main point.”
Modify Unrealistic Expectations
From: “I wish I had read everything, knew what everyone else was going to say or said, and could remember everything so I don’t get tripped up and look stupid.”
To: “No one can read, know or remember everything. I can reasonably review what’s important, make a plan and be diligent. After that, it’s perfectly fine to ask to see documents to refresh my recollection, to take my time and contemplate questions, and to say I don’t know/remember’ if that is the case. I do not have to be perfect, I just have to be myself and do my best.”
Take Reasonable Control
From: “No one is really looking out for me. The lawyers don’t even know the right questions to ask. I’ll have to straighten them all out.”
To: “I’m part of a relay race. I have my part, no more and no less. My part is a-b-c. If my lawyers
choose not to ask for a certain detail, that’s based on their expertise. They probably know something I don’t, so I’d better do my job and let them do theirs. “I’ll just stay cooperative and answer the questions asked as best I can. If the other lawyer asks a poor question or a mistaken assumption, I will simply offer accurate information and not attack the lawyer. I’ll have another chance on redirect to respond if my lawyer thinks it is necessary. If not. I’ll have to trust their judgment. They’re running the show, not me.”
Learn Where to Pick Fights
From: “I’d really like to show up (opposing counsel). He really gets my goat. I’m not going to give him an inch.”
To: “I’d rather win the war than the battle. When I respond cooperatively and make my point, I show real strength instead of showing I have something to be afraid of by playing tug-of war. If I let go of the rope, my opponent will fall, not me. Otherwise, I’ll be sending a red flag and creating smoke. That hurts me, not them. “Conceding minor points is sometimes appropriate. Otherwise, it will seem like I am difficult and combative, which is unpleasant and not persuasive. What really matters in this case is that the jury understands x, y and z. I can help send that message.”
How Not to Take It Personally
From: “If I don’t blow it on the stand, I’ll be a hero; if I do and we lose, it will all be my fault.”
To: “I know what I know, I’ll prepare well and do my best. My goal is to communicate two points, ‘a’ and ‘b.’ Beyond that, I have no control over what happens. I am only one part of the case. I will let the lawyers and other competent witnesses do their part. I will make a sincere effort. Whatever happens, I’ll be the same person afterwards as I was before.”
In sum: To present a witness who is well-prepared, it is vital to reveal and remove conflicts which, like hidden land mines, can cause irreversible damage.
More jury consulting and witness prep resources on A2L Consulting's site:
About A2L Consulting
• Leading national litigation consulting firm since 1995
• Personnel nationwide
• Routinely voted #1 for demonstrative evidence consulting, jury consulting or intellectual property litigation consulting nationally
• Consulted for all major law firms on 10,000+ cases with trillions of dollars cumulatively at stake offering:
Trial Consulting: mock trials, Micro-Mock™, mock Markman hearings, jury consulting, shadow juries, jury selection and more;
Trial Graphics: legal graphics and litigation graphics, courtroom animation, video, printed foam core trial exhibits, PowerPoint presentation consulting, simplifying the case story and more;
Trial Technology & Onsite Personnel: ebriefs (electronic briefs), hot seat operators, trial technicians, courtroom presentations and more;
Look for A2L trial consultants, graphics consultants and jury consultants in Washington, DC, Baltimore, MD, New York, NY, Boston, MA, Alexandria, VA, Atlanta, GA, Miami, FL, Chicago, IL, Houston, Texas, Los Angeles, CA, and San Francisco, California, Wilmington, Delaware, Philadelphia, PA, Phoenix, AZ, San Antonio, Palo Alto, Dallas, Detroit, Baltimore, Cleveland, Kansas City, Las Vegas, Pittsburgh, Richmond, VA, Salt Lake City, Denver, London, Dublin, Johannesburg, Brussels and many other cities and countries around the world. A2L Contact Information.
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Posted by
Ken Lopez on Mon, Apr 08, 2013 @ 12:30 PM
by
Ken LopezFounder & CEO
A2L ConsultingAs social media have become an integral part of life in the 21
st century, they have inevitably and dramatically affected law, litigation, and trial strategy. Whether it’s a question of jurors who tweet from the jury box, service of a subpoena through Facebook, ownership of a social media account after an employee resigns, the dollar value of a Twitter “follower,” or any number of other issues, no lawyer or trial consultant can remain unaware of the issues. Here is a collection of 20 interesting social media discussions from various online legal locations, with brief summaries.
- Social Media Litigation Risks & Opportunities: It’s important to seek discovery of social media content in litigation, to name one interesting opportunity.
- How to Get Social Media Evidence Admitted: Social media information is discoverable, but what’s the best way to ask for it?
- Using Social Media Evidence as a Defense Litigation Tool [pdf]: How insurers and others can use social media as a litigation tool.
- Social Media Evidence and Privacy Preferences: Not surprisingly, the rules governing e-discovery apply to social media and trump both a social media website's privacy guidelines and an individual user's privacy preferences.
- How to Avoid a Social Media Lawsuit: How to set up an appropriate social media policy for your employees to fend off a potentially ruinous lawsuit.
- Who owns a Twitter account when an employee resigns? It’s crucial to use discretion and good business judgment in launching a social media campaign, just as you would for any other aspect of your business.
- What can an employer do about employee communications: Interpreting the NLRB’s recent decision about when concerted employee conduct on social media is protected activity.
- Social Media and E-Discovery [pdf]: An overview of the risks and rewards of seeking social media information in e-discovery.
- Service of Process via Social Media [pdf]: The use of Facebook for service of process satisfies due process requirements, one judge recently held.
- The ABA's View of Judges Using Social Media [pdf]: The ABA’s view is that a judge may participate in social media but that in doing so, he or she must comply with the Code of Judicial Conduct and avoid any conduct that would undermine the judge’s independence, integrity, or impartiality, or create an appearance of impropriety.
- Texas State Bar Report on Social Media and the Law [pdf]: A full issue of the journal of the Texas State Bar’s litigation section on the interplay between litigation and social media.
- Authenticating Social Media Evidence [pdf]: Evidentiary standards for admission of evidence that were developed for other forms of electronic data may not be sufficient.
- New York State Bar's Social Media & Litigation [pdf]: An excellent broad overview of the issues that can arise.
- How Social Media Can Hurt You in Litigation: What small and midsize businesses need to know about the discovery of social media information.
- Social Media and the Federal Securities Laws: Here are some of the pitfalls that public companies can encounter when they try to disseminate company information through social media.
- Waving Attorney-Client Privilege via Social Media: Interesting decision that a client waived attorney-client privilege when she discussed, in chat rooms, her discussions with her attorney.
- Social Media and Antitrust Litigation: Companies can violate the antitrust laws through the use of social media, and antitrust compliance programs should include discussion of these risks.
- Getting the most out of Social Media for Litigation: How to use the resources of social media to test your litigation themes before you get to a real jury.
- The Social Media Trojan Horse: What you say in social media can come back to haunt you in litigation.
- The SEC and Full Disclosure in Social Media: The SEC just announced that public companies are allowed to use social media to make key corporate announcements as long as they alert investors about which sites they intend to use.
About A2L Consulting
• Leading national litigation consulting firm since 1995
• Personnel nationwide
• Routinely voted #1 for demonstrative evidence consulting, jury consulting or intellectual property litigation consulting nationally
• Consulted for all major law firms on 10,000+ cases with trillions of dollars cumulatively at stake offering:
Trial Consulting: mock trials, Micro-Mock™, mock Markman hearings, jury consulting, shadow juries, jury selection and more;
Trial Graphics: legal graphics and litigation graphics, courtroom animation, video, printed foam core trial exhibits, PowerPoint presentation consulting, simplifying the case story and more;
Trial Technology & Onsite Personnel: ebriefs (electronic briefs), hot seat operators, trial technicians, courtroom presentations and more;
Look for A2L trial consultants, graphics consultants and jury consultants in Washington, DC, Baltimore, MD, New York, NY, Boston, MA, Alexandria, VA, Atlanta, GA, Miami, FL, Chicago, IL, Houston, Texas, Los Angeles, CA, and San Francisco, California, Wilmington, Delaware, Philadelphia, PA, Phoenix, AZ, San Antonio, Palo Alto, Dallas, Detroit, Baltimore, Cleveland, Kansas City, Las Vegas, Pittsburgh, Richmond, VA, Salt Lake City, Denver, London, Dublin, Johannesburg, Brussels and many other cities and countries around the world. A2L Contact Information.
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Posted by
Ken Lopez on Thu, Apr 04, 2013 @ 06:02 AM
by
Ken LopezFounder & CEO
A2L Consulting
Trial lawyers need to be aware of any viable source of information about law and about trial practice and exhibits. There’s no end to the resources available to trial lawyers and trial consultants on the Web these days. One of the great features of social media is that it is, by and large, free. With this in mind, let's take a look at YouTube, which is a very helpful social network with pages, channels, and subscribers. It has a great many free resources that can help trial lawyers advise their clients on an interesting topic – how social media can and does interact with the law.
- Is social media just marketing hype? Is everyone on social media essentially a liar? Here, two experts debate whether social media has anything to add to lawyers’ ability to market themselves and gain legal skills.
- Social media and litigation: Social media evidence is becoming increasingly more prevalent in corporate litigation. Here’s an interesting and sprightly account of what evidence can be found on Twitter, YouTube, and the like. Are young people these days less concerned about privacy than people were 30 or 40 years ago?
- Social media and the law: Here, an attorney provides a one hour lecture on social media and the law generally. This is a great overview of the issues from intellectual property rights to online torts. When does citation and quotation become plagiarism, for example?
- An overview of the current generation’s use of social media: I like this presenter not only because he presents information succinctly, but because he has five-year-old triplet daughters like me. How does “Generation Z,” born after 1995, use social media? They will soon become a significant plurality of lawyers.
- Labor and employment law and social media: There are five parts to this talk. You should be able to see all of them if you click through to the video on YouTube. Often, the requirements of human resources law fly in the face of common sense, and that is true when it comes to social media.
- Ethics issues for lawyers: Robert Ambrogi, a Massachusetts lawyer and consultant, answers the question, “Are you aware of any cautionary horror stories about the ethics problems caused by lawyers’ use of social media?”
- Ethical considerations for lawyers in social media: Some tweets that have gotten lawyers and law students in trouble because they are, well, too honest, and can violate ethics rules or point to embarrassing facts or experiences.
- Social media and compliance with basic ethics rules: This 90-minute presentation does a nice job of explaining the various considerations, although the audio could be better.
- Divorce and social media: In this area in particular, lawyers and investigators may be mining your personal information to obtain evidence for a divorce case. A lot of personal and highly relevant information can already be out there on Facebook. What are the ethical limitations on this type of activity, and what considerations should lawyers and clients be aware of?
- Serving legal documents through social media: Bloomberg covered this interesting topic recently. Will social media change how we litigate? Can service be made via Twitter or Facebook?
- Law enforcement has found a new tool to monitor demonstrators and political protesters – social media. Just as Twitter and Facebook are now essential tools for protest movements, law enforcement agencies are monitoring the social media giants and using what they find to make cases against demonstrators.
Other social media for lawyers resources on A2L's site:
About A2L Consulting
• Leading national litigation consulting firm since 1995
• Personnel nationwide
• Routinely voted #1 for demonstrative evidence consulting, jury consulting or intellectual property litigation consulting nationally
• Consulted for all major law firms on 10,000+ cases with trillions of dollars cumulatively at stake offering:
Trial Consulting: mock trials, Micro-Mock™, mock Markman hearings, jury consulting, shadow juries, jury selection and more;
Trial Graphics: legal graphics and litigation graphics, courtroom animation, video, printed foam core trial exhibits, PowerPoint presentation consulting, simplifying the case story and more;
Trial Technology & Onsite Personnel: ebriefs (electronic briefs), hot seat operators, trial technicians, courtroom presentations and more;
Look for A2L trial consultants, graphics consultants and jury consultants in Washington, DC, Baltimore, MD, New York, NY, Boston, MA, Alexandria, VA, Atlanta, GA, Miami, FL, Chicago, IL, Houston, Texas, Los Angeles, CA, and San Francisco, California, Wilmington, Delaware, Philadelphia, PA, Phoenix, AZ, San Antonio, Palo Alto, Dallas, Detroit, Baltimore, Cleveland, Kansas City, Las Vegas, Pittsburgh, Richmond, VA, Salt Lake City, Denver, London, Dublin, Johannesburg, Brussels and many other cities and countries around the world. A2L Contact Information.
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by Laurie R. Kuslansky, Ph.D.
As the jury pool progressively ages and more and more jurors hail from the Facebook generation, it has become utterly crucial for litigators to consider social media in the processes of jury selection, jury consulting and persuasion. The statistics of Facebook’s prevalence alone are astonishing.
- Facebook has more than one billion members worldwide
- The average person spends about 12 hours/month on it
- The average person has 229 friends, but for the 18-34 set, the average is 318
- The average person creates three pieces of new content every day
- Fifty percent of all users log in every day
- Fifteen percent of all users update their own status every day
- One billion pieces of content are shared every day
- About one-third of the U.S. population is on Facebook
- Ninety-eight percent of 18-24 year olds use social media
- The fastest growing demographic of Facebook users is age 35 and older
As we view social media, we must remember that research has shown that – perhaps surprisingly -- most people present their real self, rather than their idealized self, on social media profiles. In court, in contrast, jurors may intentionally put their best or worst foot forward, depending on their agenda. Thus, social media offers a wealth of data about prospective jurors not evident in court.
Here are 10 places in the jury consulting process where we need to pay particular attention to social media:
1) Voir Dire: Ask questions such as, "Do you use any social media? If so, is it for personal use, professional use, or both? Which ones do you use and for what purpose(s) specifically? How often?" A good jury consultant will provide other useful questions.
2) Voir Dire Investigation: Learning about a potential juror's likes and dislikes from social media can be very helpful in making peremptory challenges. Make sure there is WiFi in the courtroom and that you have someone available who is fast and focused on running the names of prospective jurors on the major sites. It's a key part of the modern jury consulting process.
3) Peremptory Challenges: If possible, check sites such as Facebook and LinkedIn to see whether prospective jurors use discretion, have private or public information, and whether what they report in court matches their posted information or not. A demure female in court may post photos of herself on Facebook in a bikini. An unemployed person may claim a different profession or work status on LinkedIn or fail to report prior work history to the court. This information can greatly inform the use of follow up questions, challenges for cause, and the use of peremptory challenges.
4) Social Media Monitoring Pre-Trial: If you have a client that is in the news or a case that is in the news, monitoring social media can be an excellent way to get a sense of buzz around a topic.
5) Testing Attitudes Toward a Brand: One of the great benefits of social media is that one can easily run tests, often in the form of ads or other offline testing platforms.
6) Finding a Good Demographic Sample: If you plan to conduct a test, whether it be a mock trial, online jury research, or attitude surveys as part of the jury consulting process, social media like Facebook and Linkedin offer an incredible ability to slice and dice up the perfect demographic sample for a particular venue, keeping in mind that there is the potential for bias insofar as non-computer literate or non-users are excluded.
7) Social Media Monitoring During Trial: In a high profile or televised case, monitoring the sentiment on social media is important. Social media discussions may very well reflect the overall success or failure of the case. It may help you understand, in near real time, what people do or do not understand about the case or what questions need to be asked as part of an examination and addressed in closing. For example, during the highly publicized Casey Anthony trial, a jury consultant for Anthony’s attorneys analyzed more than 40,000 opinions on social media sites and used them to help the defense put together their trial strategy. Further, if you spot a juror using social media during a trial, you may have a case for a mistrial or new trial.
8) Social Media Evidence: Many cases involve the use of social media evidence. Facebook communications during divorce hearings may get a lot of press, but increasingly, we are seeing social media evidence in large corporate cases too. Since not all jurors are familar with social media, jury consultants and graphics consultants will need to work hard to explain it to the uninitiated, which is often related to juror age.
9) Finding and Evaluating Potential Mock Jurors: What better way to recruit mock jurors who fit a particular venue's demographic than via social media tools, when applicable? This applies equally well for online and offline juror recruitment. However, if you seek older, non-computer users, this approach may not fit your needs. Who doesn’t use the internet?
- 1/5 Americans does not use the internet.
- 59% of U.S. seniors don't go online.
- Nearly 60% of U.S. adults who didn’t complete high school don't use the Internet.
- Nearly 40% of people with annual household incomes less than $30,000 don't go online.
- Only 54% of people with disabilities are Internet users
However, “mobile devices such as smart phones are closing the gap for young adults, minorities, those with no college experience, and those with lower household income levels who are more likely than other groups to say their phone is their main source of Internet access” according to the Pew Internet Project.
10) Using what you reveal: If you learn information that is helpful to your case during jury selection, that is one thing, but if it is potentially harmful or reveals dishonesty by the prospective juror in their prior voir dire responses, don’t suffer in silence. Check the local rules and bring it to the Court’s attention.
Read other interesting jury consulting articles on A2L's site:
About A2L Consulting
• Leading national litigation consulting firm since 1995
• Personnel nationwide
• Routinely voted #1 for demonstrative evidence consulting, jury consulting or intellectual property litigation consulting nationally
• Consulted for all major law firms on 10,000+ cases with trillions of dollars cumulatively at stake offering:
Trial Consulting: mock trials, Micro-Mock™, mock Markman hearings, jury consulting, shadow juries, jury selection and more;
Trial Graphics: legal graphics and litigation graphics, courtroom animation, video, printed foam core trial exhibits, PowerPoint presentation consulting, simplifying the case story and more;
Trial Technology & Onsite Personnel: ebriefs (electronic briefs), hot seat operators, trial technicians, courtroom presentations and more;
Look for A2L trial consultants, graphics consultants and jury consultants in Washington, DC, Baltimore, MD, New York, NY, Boston, MA, Alexandria, VA, Atlanta, GA, Miami, FL, Chicago, IL, Houston, Texas, Los Angeles, CA, and San Francisco, California, Wilmington, Delaware, Philadelphia, PA, Phoenix, AZ, San Antonio, Palo Alto, Dallas, Detroit, Baltimore, Cleveland, Kansas City, Las Vegas, Pittsburgh, Richmond, VA, Salt Lake City, Denver, London, Dublin, Johannesburg, Brussels and many other cities and countries around the world. A2L Contact Information.
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Posted by
Ken Lopez on Thu, Mar 28, 2013 @ 07:00 AM
by Ken Lopez
Founder & CEO
A2L Consulting
At A2L Consulting, we not only try to serve our clients and to produce great results at trial; we also want to become thought leaders in the trial consulting world and to educate lawyers, experts, and others on the exciting developments that are going on, both in research on juries, persuasion and other topics, and in the actual use of trial techniques.
All of our ebooks are free to anyone. You need not be a client of A2L. In the past two years, more than 10,000 free ebooks have been downloaded from A2L Consulting's site.
We release a new book focused on a particular area of the legal industry just about every month. Our first ebook, back in 2011, was not even 10 pages long. Some of our recent books have been more than 150 pages long.
Most of our ebooks feature a curated list of articles culled from our hundreds of published blog posts and other articles on litigation topics plus a few extras. All have been released completely free in the spirit that we can elevate the quality of work being done in the litigation consulting industry.
For example, the Complex Civil Litigation Trial Guide, our most popular download so far, is 174 pages and is designed for the trial lawyer preparing for a complex case. But the insights in it can help almost anyone who wants to learn more about trial strategy and tactics.
The topics in that ebook include: Seven Ways to Draft a Better Opening Statement, How to Embrace a Two-Track Strategy and Win the War, Six Reasons the Opening Statement is the Most Important Part of a Case, How Timelines Can Persuade Judges and Juries, and Ten Videos to Help Litigators Become Better at Storytelling.
This ebook, like many of our other offerings, starts with the premise that the most important thing that a litigation consultant can do to help a trial team is to focus on the story that that trial team wants to develop. A litigation consultant brings not only the common sense that a fresh pair of eyes offers but also the experience of having seen, in hundreds of trials, what works and what does not work.
So one of the reasons this ebook has succeeded so well is that it can help any trial team develop a case and win at trial. It shows how to master the complexities of your case, yet still remain able to explain them to a judge or jury in a straightforward manner.
It also shows how to pick a trial graphics consultant to support your work, what to do when your trial team goes bad as a result of the anxiety that understandably can accompany any piece of complex litigation, and how trial graphics can explain even the most complicated scientific and engineering concepts to a jury.
Here are our top 10 litigation ebooks listed in descending order by download count.
Complex Civil Litigation Trial Guide (1st & 2nd Editions) - 1,918 Downloads, released Feb 25, 2013
Patent Litigation Trial Presentation Toolkit (1st & 2nd editions) - 1,669 Downloads, released September 10, 2012
Litigation Support Toolkit (1st & 2nd editions) – 998 Downloads, released February 24, 2013
Litigation Timeline Reference Book - 943 Downloads, released March 6, 2012
Antitrust Litigator's Trial Prep & Trial Presentation Guide - 807 Downloads, released October 17, 2012
Leadership Lessons for the Trial Team Leaders (1st & 2nd editions) – 676 Downloads, released TKTK
Storytelling for Litigators - 589 Downloads - Released March 11, 2013
How to Find the Top Trial Technicians (1st & 2nd editions) 417 Downloads, released August 22, 2012
Environmental Litigator's Trial Presentation Handbook (1st and 2nd Editions) 395 Downloads, released December 24, 2012
Litigator-Jury Communications 3-Year Study Results 359 Downloads, released January 2, 2007
About A2L Consulting
• Leading national litigation consulting firm since 1995
• Personnel nationwide
• Routinely voted #1 for demonstrative evidence consulting, jury consulting or intellectual property litigation consulting nationally
• Consulted for all major law firms on 10,000+ cases with trillions of dollars cumulatively at stake offering:
Trial Consulting: mock trials, Micro-Mock™, mock Markman hearings, jury consulting, shadow juries, jury selection and more;
Trial Graphics: legal graphics and litigation graphics, courtroom animation, video, printed foam core trial exhibits, PowerPoint presentation consulting, simplifying the case story and more;
Trial Technology & Onsite Personnel: ebriefs (electronic briefs), hot seat operators, trial technicians, courtroom presentations and more;
Look for A2L trial consultants, graphics consultants and jury consultants in Washington, DC, Baltimore, MD, New York, NY, Boston, MA, Alexandria, VA, Atlanta, GA, Miami, FL, Chicago, IL, Houston, Texas, Los Angeles, CA, and San Francisco, California, Wilmington, Delaware, Philadelphia, PA, Phoenix, AZ, San Antonio, Palo Alto, Dallas, Detroit, Baltimore, Cleveland, Kansas City, Las Vegas, Pittsburgh, Richmond, VA, Salt Lake City, Denver, London, Dublin, Johannesburg, Brussels and many other cities and countries around the world. A2L Contact Information.
Claim a FREE Subscription to this Blog - The Litigation Consulting Report - Quarterly iPad Giveaways for Subscribers
Posted by
Ken Lopez on Mon, Mar 25, 2013 @ 12:41 PM
Ken Lopez
Founder & CEO
A2L Consulting
For someone who is on trial, there is often no substitute for a jury of one’s peers in rendering a fair verdict. For a company such as A2L Consulting, which works with the top litigators in the nation every day and provides trial consulting services, there is no substitute for the judgment of the people we work with on a regular basis. And those judgments, embodied in a National Law Journal nationwide survey, placed us first in the category of demonstrative evidence providers.
More than 450 firms were nominated in the various categories, more than 5,000 non-vendor votes were tallied and A2L Consulting outpolled some very well-known trial exhibit and demonstrative evidence firms to reach the #1 spot.
We are very proud to have earned the confidence of the legal industry, with whom we go to trial in state and federal courts across the country. The trial exhibit and trial consulting field has changed dramatically from 1995, when we were founded. For example, in our less than two decades in business, PowerPoint became the standard for presentation software, jury consulting services are increasingly moving online and printed trial boards went out of favor and are now undergoing a renaissance. At A2L, our job is to stay ahead of the rapid pace of technology in many different areas.
We hope to work with you in the future. Our principals are trial lawyers ourselves, and we understand the pressures and dilemmas that trial presentations involve. We can and will be at your side in creating the best possible presentations and the most convincing evidence.
You can download the full 2013 National Law Journal guide to the top legal support service companies by clicking here or on the image below:
About A2L Consulting
• Leading national litigation consulting firm since 1995
• Personnel nationwide
• Routinely voted #1 for demonstrative evidence consulting, jury consulting or intellectual property litigation consulting nationally
• Consulted for all major law firms on 10,000+ cases with trillions of dollars cumulatively at stake offering:
Trial Consulting: mock trials, Micro-Mock™, mock Markman hearings, jury consulting, shadow juries, jury selection and more;
Trial Graphics: legal graphics and litigation graphics, courtroom animation, video, printed foam core trial exhibits, PowerPoint presentation consulting, simplifying the case story and more;
Trial Technology & Onsite Personnel: ebriefs (electronic briefs), hot seat operators, trial technicians, courtroom presentations and more;
Look for A2L trial consultants, graphics consultants and jury consultants in Washington, DC, Baltimore, MD, New York, NY, Boston, MA, Alexandria, VA, Atlanta, GA, Miami, FL, Chicago, IL, Houston, Texas, Los Angeles, CA, and San Francisco, California, Wilmington, Delaware, Philadelphia, PA, Phoenix, AZ, San Antonio, Palo Alto, Dallas, Detroit, Baltimore, Cleveland, Kansas City, Las Vegas, Pittsburgh, Richmond, VA, Salt Lake City, Denver, London, Dublin, Johannesburg, Brussels and many other cities and countries around the world. A2L Contact Information.
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Posted by
Ken Lopez on Thu, Mar 21, 2013 @ 07:12 AM
by Ken Lopez
Founder & CEO
A2L Consulting
Some online estimates say that about 30 million PowerPoint presentations are given every day. That number seems more than a bit high, and it’s hard to find a credible source for it. But let’s say it’s off by a factor of 80 percent, so that just one-fifth of that many presentations are given each day. Still, that would be 6 million PowerPoints.
In the legal community, we give our fair share. Since legal services are about 1% of the total economy, we can make a guess that at least 60,000 PowerPoints are being given every day in the U.S. legal industry, or about 6,000 for every hour of the working day.
If we assume that every legal industry PowerPoint is being watched by an average of two other people and all of those people charge $200 on average for their services, America's legal industry is producing at least $3.6 million of PowerPoints every hour! That’s a lot of time and a lot of money. We ought to at least use it well.
PowerPoint has been the dominant presentation software in the courtroom since 2003. When used well in the courtroom, it allows a skilled presenter to captivate an audience with a well told story, enhance the audience's understanding of a case, and persuade skeptics that the presenter’s position is correct. In other words, a well-crafted PowerPoint presentation helps tip the scales of victory, potentially substantially, in your client's favor.
Unfortunately, I believe the typical PowerPoint presentation used in the courtroom causes more harm than good. Here are twelve easy-to-avoid PowerPoint mistakes.
- The bullet point list. This is the mother of all PowerPoint mistakes. If you make this one, you probably make several others on the list. We have written about why bullet points are bad many times, and below is an example of what not to do. The most significant problem is that people will normally read your bullets and ignore what you are saying. Further, their brains will remember less than if they had either read OR heard what you were saying because of the split attention effect.
- The wall of text. Courtroom presentations should be a lot more Steve Jobs and a lot less like the example below. Nobody can read it.
- The “who cares.” If you fail to tell a compelling story that nobody cares about, your presentation was a waste.
- The flying whatever. Please do not use PowerPoint animation effects. They are distracting and add little to your presentation.
- The “huh” image. Don't include images that only vaguely enhance your message.
- The back turn. Do not turn your back on your audience. Watch the TED Talks for good presentation form.
- The itsy bitsy. For text on a slide that is projected, I would not go below 24-point text.
- The slide that overstayed its welcome. Don't leave up a slide that has nothing to do with the point you are making. Either insert a black screen slide or press the B key to toggle on and off your presentation.
- The Bob Marley. "Turnnn your lights dooowwwwnnn looooowwww." If you have to, you have the wrong projector. Use 3000 lumens; that’s good, and 5000 lumens is great.
- The highly objectionable. Do not put up materials that the judge will rule inadmissible.
- The “ehhh.” If you have sound to play, make sure you have the equipment to amplify it with. Your laptop speakers are not enough for any courtroom.
- The End (is missing): Please do insert a black screen on your last slide so that we don't see you hit the “next” key one more time only to reveal the desktop photo of you and your kids in Tahoe.
About A2L Consulting
• Leading national litigation consulting firm since 1995
• Personnel nationwide
• Routinely voted #1 for demonstrative evidence consulting, jury consulting or intellectual property litigation consulting nationally
• Consulted for all major law firms on 10,000+ cases with trillions of dollars cumulatively at stake offering:
Trial Consulting: mock trials, Micro-Mock™, mock Markman hearings, jury consulting, shadow juries, jury selection and more;
Trial Graphics: legal graphics and litigation graphics, courtroom animation, video, printed foam core trial exhibits, PowerPoint presentation consulting, simplifying the case story and more;
Trial Technology & Onsite Personnel: ebriefs (electronic briefs), hot seat operators, trial technicians, courtroom presentations and more;
Look for A2L trial consultants, graphics consultants and jury consultants in Washington, DC, Baltimore, MD, New York, NY, Boston, MA, Alexandria, VA, Atlanta, GA, Miami, FL, Chicago, IL, Houston, Texas, Los Angeles, CA, and San Francisco, California, Wilmington, Delaware, Philadelphia, PA, Phoenix, AZ, San Antonio, Palo Alto, Dallas, Detroit, Baltimore, Cleveland, Kansas City, Las Vegas, Pittsburgh, Richmond, VA, Salt Lake City, Denver, London, Dublin, Johannesburg, Brussels and many other cities and countries around the world. A2L Contact Information.
Claim a FREE Subscription to this Blog - The Litigation Consulting Report - Quarterly iPad Giveaways for Subscribers
Posted by
Ken Lopez on Tue, Mar 19, 2013 @ 03:21 PM
by Ken Lopez
Founder & CEO
A2L Consulting
In February of this year, we released a draft infographic to help explain what a litigation consultant is and what a litigation consultant does. We solicited and received feedback from the many members of the legal industry. Today, we're proud to release this litigation consultant infographic [PDF] and to encourage others to use it to help explain what we litigation consultants actually do.
This exercise caused me to ask: What, in fact, do litigation consultants actually do? It also allowed me to reflect on the experience I had working with a colleague over the last year.
A year ago, a new litigation consultant joined our team and quickly observed, “All too often, we don't have a chance to actually consult. Why?” He had been a litigator at a major law firm who had actually hired A2L for a case where we went on to win more than $500 million in a jury verdict. So he had a good perspective, and we've spent the last year discussing how we would like the industry to develop over the next 10 years.
We've already made some general observations like:
1) Too many people call themselves “consultants” in our industry who do not actually consult (i.e. share their unique expertise) on anything.
2) Our firm is quite serious about adding noticeable and measurable value to each engagement.
3) Not all trial teams leave room for litigation consulting.
So, we've spent the last year adding some structure to trial preparation. For example, we've introduced two new mock exercises - the Mock Markman for patent litigators and the Micro-Mock™ for general litigation, arbitration and hearings. These add to our Mind-Mapping litigation strategy session.
Each of these exercises is designed to help the trial team be their best at trial. Each is designed to help enforce the idea that each opening statement must consist of a story with a well-developed theme that people care about. Each is designed to be consultative.
There are good litigation consultants out there, and, just as there are bad lawyers, there are also bad litigation consultants. The evidence that a bad one is involved includes a lack of preparation, a lack of meaningful experience, and an inability to add value.
Compare our team (and the teams of some other top litigation consulting firms) with lesser firms. Our client-facing people are litigators themselves -- some with more than a billion dollars of jury verdicts. By contrast, some other firms in the industry, I'm told, are of the order-taking variety, they have client-facing "consultants" who are really 20-something project managers and there are firms who offer strategy consulting former law firm technical support staff.
So, one takeaway of figuring out who a litigation consultant is and what he/she does is recognizing that there are different types. If you have a serious case, pick serious consultants. If you have a minor technical challenge and need documents displayed properly, find a firm that does simply that - whether they call themselves litigation consultants or not.
Download a PDF Version of the Litigation Consultants Infographic by clicking here.
About A2L Consulting
• Leading national litigation consulting firm since 1995
• Personnel nationwide
• Routinely voted #1 for demonstrative evidence consulting, jury consulting or intellectual property litigation consulting nationally
• Consulted for all major law firms on 10,000+ cases with trillions of dollars cumulatively at stake offering:
Trial Consulting: mock trials, Micro-Mock™, mock Markman hearings, jury consulting, shadow juries, jury selection and more;
Trial Graphics: legal graphics and litigation graphics, courtroom animation, video, printed foam core trial exhibits, PowerPoint presentation consulting, simplifying the case story and more;
Trial Technology & Onsite Personnel: ebriefs (electronic briefs), hot seat operators, trial technicians, courtroom presentations and more;
Look for A2L trial consultants, graphics consultants and jury consultants in Washington, DC, Baltimore, MD, New York, NY, Boston, MA, Alexandria, VA, Atlanta, GA, Miami, FL, Chicago, IL, Houston, Texas, Los Angeles, CA, and San Francisco, California, Wilmington, Delaware, Philadelphia, PA, Phoenix, AZ, San Antonio, Palo Alto, Dallas, Detroit, Baltimore, Cleveland, Kansas City, Las Vegas, Pittsburgh, Richmond, VA, Salt Lake City, Denver, London, Dublin, Johannesburg, Brussels and many other cities and countries around the world. A2L Contact Information.
Claim a FREE Subscription to this Blog - The Litigation Consulting Report - Quarterly iPad Giveaways for Subscribers
Posted by
Ken Lopez on Thu, Mar 14, 2013 @ 02:44 PM
by Ken Lopez
Founder & CEO
A2L Consulting
Anxiety does strange things to people, especially when they are working together in teams. When they become anxious, a rare few people become more focused and Zen-like. For most people and teams, however high anxiety causes one (or more) of five predictable dysfunctional behaviors to be manifested, of course subconsciously. The anxious person is usually not aware that he or she is behaving in this way.
There’s a close connection between trial preparation and anxiety. All too often, much is left to the eleventh hour, and the more that is left, the more anxiety there is. Many litigators procrastinate until a few weeks in advance to prepare for trial. It's understandable why this happens. Usually this is just that litigator's style, or the attorney is accustomed to getting excellent results with minimal preparation, or he or she is trying to please their client by not spending money until the client can see they are headed for trial.
No matter the reason, procrastinating does not serve a client well. We've written about this topic before (see also Simplicity Takes Time and Two-Track Litigation Strategies). No large case should be prepped for trial in the two weeks leading up to it, and one of the reasons this is true is due to the anxiety it causes.
High anxiety causes most people to behave irrationally and to follow primitive signals from their “old” brain, the amygdala. These five dysfunctional behavior patterns can be spotted in a trial team if you know what you are looking for.
1) Fighting or passive-aggressive behavior. People openly pick arguments with fellow team members, often over seemingly trivial matters, or they exhibit passive-aggressive behavior by seeming to agree but sabotaging the other person’s plan.
2) Exits. People abruptly leave the trial team. Often the only thing these people are able to say is that it “just became too much for them,” or that they had “had enough.”
3) Dependence/Deification. People look to the leader to make the anxiety go way through specific behaviors that invite the leader to assume control. These include not participating actively in discussions, appearing confused, or saying to the leader things like “we just need you to decide.”
4) Control. Someone may deal with anxiety by assuming dictatorial control of a team or engaging in a mass firing. When someone behaves like Al Haig after the Reagan assassination attempt, that person is in a dysfunctional pattern.
5) Pairing. Pairing is seen when a team completely cracks under the pressure. Odd as it may sound, pairing can be thought of as a form of mating whose offspring is a new team (which paradoxically usually goes on to repeat these behaviors again down the road). Pairing sometimes shows up in the form of a coup, and in the trial team context we often see new law firms being brought in at the eleventh hour, the first chair being thrown off the case, or a full blown departure of the team's subordinates.
All these behaviors reflect a subconscious desire to make the anxiety go away, and it is all subconscious. Nobody really wants to behave in these counter-productive ways. The problem is that the person doesn’t know that he or she is really operating out of fear. However, unless you have a team that has both been educated about these behaviors and has the emotional wherewithal to rise above its own psychology, it's very hard to pull a team back together.
So, what is a leader of trial teams to do? Here are my suggestions.
1) Keep cool. A leader must never lose his or her cool when these dysfunctional patterns occur. This is especially difficult as it is often the leader who is under attack by the team.
2) Calmly diagnose. The leader must coolly diagnose what is causing the anxiety.
3) Describe reality. The leader must then accurately describe the reality.
4) Do NOT blame. The leader must not under any circumstances blame the rest of the team. Do this during these critical moments, and you'll lose the team for good.
5) Talk about the problem. The leader must talk through the issue and tackle the thing that is causing the anxiety head-on. Hopefully, the team will reengage and their bar for what triggers their anxiety breakdowns will now be higher.
Want to learn more about trial team dynamics and group dynamics generally? Try these sources:
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