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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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Victory at Any Cost! Using Litigation Consultants to Dominate

 


litigation consultants bet the companyThese days, only a very few cases can be said to have an unlimited litigation budget, but some still do. As the amount at stake in toxic tort, technology patent and product liability cases soars into the billions of dollars, we do hear from clients that they must win at all costs. Indeed, at A2L Consulting, it is common for us to work on multi-billion dollar disputes. Thus far in 2012, we have already consulted on cases with over $30 billion at stake.

In this two-part series, we share the menu of options available to a law firm and its client in situations at the opposite ends of the litigation consulting budget spectrum. What is possible when budget is not an issue, and what is possible when budget is severely constrained?

By far the biggest difference between unlimited budget cases and limited budget cases is the amount of time that can be devoted to the discussion and testing of alternative strategies.

There are three key areas of trial and pre-trial work: trial consulting, litigation graphics and courtroom technology support. A high-budget case can involve several trial consultants, a dozen or more artists, hundreds of demonstrative exhibits, several mock trials, months of work and an overall onsite litigation consulting and trial technology team with between four and 12 people.

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TRIAL CONSULTING

In trial consulting, the goal is to try to reach a successful result in a trial by testing and refining various components of the case to see what works and what does not.  The core of this work is usually the mock trial.  Most mock trial exercises involve either one or more retired judges or 30 to 40 mock jurors. In an unlimited budget case, we might perform the following services:

  • Early case and theme assessment with production of a wall-sized litigation mind map
  • Assistance in the development of mock openings and the preparation of mock trial graphics for both sides of the case
  • An actual mock trial with “jurors” from the trial venue representative of the jury pool who will hear the evidence and come up with a “verdict”; this can be repeated several times
  • A mock voir dire, showing attorneys how to pick the best jury
  • A juror questionnaire (if approved by the judge) to test attitudes in the potential jury pool
  • Work with expert witnesses to help them with their presentation and evaluate it with video and develop “jury friendly” graphics for complex concepts supporting these expert witness’ testimony (while experts often bring their own visuals, these are not typically suited to a trial environment where lay people are expected to learn from what is presented)
  • Background research on selected jury pool to determine potential influences and any ongoing or prior influential commentary occurring through social media
  • A shadow jury or shadow judge during the trial itself, providing nightly feedback to help adjust the presentation and guide the development of the case

 

LITIGATION GRAPHICS

For litigation graphics, in an unlimited budget case, we would obtain ideas for graphic presentations not only from the trial team and from our own resources but also from the feedback of mock jurors or judges. This can take months. Graphics should ideally be tested in front of a mock jury, and when they are, very likely new ideas for graphics will be generated.  When winning at all costs is a requirement, the litigation graphics approach should allows for the greatest volume of test graphics:

  • With time and budget allowance, litigation graphics can be created by the hundreds and refined down to the most effective possible – a no holds barred approach to creativity leveraging the significant trial experiences of our litigation consultants and litigation graphic artists
  • Development of sophisticated printed trial boards– with layered / interactive additions that potentially can be taken into the deliberation room and in the hands of the jury. 
  • Create physical models that can be handled and manipulated by the jurors

 

COURTROOM TECHNOLOGY SUPPORT

For courtroom technology support, in a major case it is common to have two or more hot-seat operators working on our team. Before trial, these operators and others will:

  • Set up a secure war room for effective operation while on site for trial
  • Assure effective equipment set up and configuration (often involving a pretrial site survey well in advance of trial)
  • Help witnesses work through their direct testimony
  • Build the trial database so that one of a million documents, video clips and accompanying transcripts can be displayed on a moment's notice
  • Cut 30-second deposition clips from days long video depositions
  • Develop new exhibits for cross and closing statements

Obviously, a level of service like this costs six if not seven figures, and only a few firms in the world are capable of it. It is not appropriate for every case, but when it is appropriate, even these seemingly high levels of expense can be very cost-effective in forestalling a verdict in the nine or even ten figures.

 

Additional Related A2L Consulting Resources:

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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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Explaining Patent Claim Language in Patent Litigation

 


Quick, tell me what this patent claim language means:

explaining claim construction language patent litigation

Unless you’re a patent geek like me, you probably haven’t the foggiest idea how to interpret this language.  But if you are an attorney in a patent infringement litigation, your job is not only to explain to a judge and jury what claim language means, but do so in a convincing and persuasive manner. If the fact finder remains as perplexed after your presentation as you were on first reading of these words, you are unlikely to win your case.

a2l-download-patent-ebook

 

iphone slide to unlock patent drawingWould it help you understand this claim language – from U.S. Patent 7,657,849 – if I showed you one of the drawings from the patent?  I suspect it will, so here’s one to the right.

So what have you learned now?  Now you know what the claim probably means by “a touch-sensitive display” because this figure says right on it that you’re looking at a “Touch screen.”  Still, what does the claim language cover, specifically?  What sort of product might infringe this claim?  Here’s a big hint:  This patent is owned by Apple Inc.  I’m sure you’ve guessed it now – this patent is written to cover this product below.

apple iphone slide to unlock patentSeeing the iPhone, as in the image to the left, makes most of the claim language pretty clear.  This is the now-famous Apple “slide-to-unlock” patent that covers the way users unlock the screen on an iPhone or iPad to use the device.  Hasn’t the language become so much clearer now that you have the graphical information I’ve provided by showing you an iPhone? 

People, including judges and jurors, are usually combination learners, and visual information is an important component of teaching and being persuasive.  Now that you’ve seen the iPhone, it’s probably pretty clear to you what the claim term “display an unlock image” means.  Also, it’s probably equally clear what the claim means by “transition the device to a user-interface unlock state if the detected contact corresponds to moving the unlock image along a predefined displayed path” – it means that the device senses that you’ve slid your finger along the arrow I added to the iPhone picture.  Pretty clear now, isn’t it?

Now, what other products might infringe this Apple patent?  What other products might use this type of unlocking feature?  What about this one?

 

android slide to unlock patentWow, HTC's new phone looks pretty similar, doesn’t it?  Are you convinced?  Maybe not completely yet, but you cannot deny that the similarities in this comparison are compelling.  This is a simple example of why trial graphics are so important, particularly in patent litigation when explaining claim language.

 

Additional Patent Litigation Resources on A2L Consulting's site:

 

Free E-Book: The Patent Litigation Trial Presentation Toolkit

Ryan Flax: 5 Surprises Transitioning from Patent Litigator to Litigation Consultant

20+ Articles About Patent Litigation from A2L

Free Subscription to the A2L Blog

Making Patent Drawings Come Alive!

Perfect Patent Tutorials for Your Judge

Creating a Presentation for an ITC 337 Hearing




Ryan Flax is the Managing Director of Litigation Consulting at A2L Consulting. He joined A2L after practicing as a patent litigator who contributed to more than $1 billion in successful outcomes.  

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


3 Ways to Handle a Presentation-Challenged Expert Witness

 


trial graphics for expert witnessesAt A2L, we have the privilege of working with experts in many diverse and highly technical fields, such as software patents, polymer patents, semiconductor patents, medical device design, environmental remediation, construction, financial disclosure, economic damages, transportation safety, corporate management and many more.

When we work with these highly educated and often brilliant specialists – people whose testimony can often make the difference between victory and defeat for our clients – our task is, quite simply, to help them be as effective as possible. We achieve this primarily by helping the attorneys painstakingly prepare them for their deposition testimony before trial and for their direct testimony during trial, including the development of visual presentations that track their testimony. Experts must not only be well prepared for their own set testimony, but even more so for every possible attack by cross-examination, which is really where the case can be won or lost.

In general, experts fall into two camps when it comes to their ability to use visual aids to support and even explain their testimony. Some welcome the help from trial graphics consultants so that their highly technical presentation will be better understood by a jury of laymen (and even the judge, who may not be technically savvy), but some are already quite certain that they will be well understood by judges and juries and don't think “charts” are going to help.

This article provides tips for how a litigator can deal with the latter, more difficult, type. 

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Twenty years ago, many trial lawyers believed that trial graphics were unnecessary to help them be persuasive to juries and judges. But now we have studies showing the overwhelming benefit of using visual tools in the courtroom, and especially because the pace at which people (remember, judges and juries are people) expect to receive information is ever increasing, these old-school views are no longer valid.

So how does one convince an expert witness who is a specialist on his or her subject matter and often testifies about it in court that he or she should accept some help at being understood?

I suggest three possible strategies.

  1. Appeal to the expert’s ego. Tell the expert that most jurors and many judges are just not as smart as the expert, so they need the visual tools to help them understand it.  A useful quote may inspire a willingness to accept the need to communicate more effectively.  Machiavelli said, “Before all else, be armed.” But, be armed with the right tool and the understanding that the typical juror may not have a college degree and is most used to learning by watching television.
     
  2. Video-test the expert. If the expert has shown any interest in improving the quality of his or her testimony, there is no better way to begin than using repeat video tests.  This can be done with or without a live mock jury or an online evaluation service.  In the world of performing, there is a cliché that is equally useful for the courtroom: A bad dress rehearsal means a great performance.
     
  3. Give up. Why try to force someone into a situation that he or she is not ready for? The expert, whom you need to look as confident as possible, will simply register discomfort on the stand. And in expert testimony, persuasion is 20% what you know and 80% how you feel about what you know. The reality is that, if the suggestions above have failed, this is probably the wrong expert, and next time, you should shop around.  As a litigator, you should no more have to explain the need for thoughtfully developed visual aids to an expert any more than a client should have to explain this to you.  After all, one cannot after all expect to solve today’s problems with yesterday’s tools.
     
best demonstrative evidence trial graphics dc

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


5 Top Litigation Consulting Report Articles from Q1

 


A2L Litigation Consulting Report top 5 articles q1 2012After a year of providing expert commentary on trials, litigation graphics, jury research, courtroom hot seat best practices and similar topics, I think it’s time to take stock.

In the past year, the A2L Consulting blog, The Litigation Consulting Report, has gone from zero subscribers to nearly one thousand. There have been more than two thousand downloads from our popular litigation e-book series. We have given away four iPads, a prize we give each quarter to one randomly chosen subscriber. And more than anything else, I am very excited that there have been more than 20,000 visits to our litigation-focused blog, making it one of the most popular litigation blogs.

Below are snippets of the most read articles in our blog for the first quarter of 2012 and the most read articles from the past year. 

litigation-supportdownload-the-litigat


Top 5 Articles from The Litigation Consulting Report - First Quarter 2012
 

Friday, Mar 16, 2012 Ken Lopez
The task of a trial lawyer is to convince a judge or jury to believe in the truth of a client’s case.  However, in many complex trials, the underlying facts are not as easily understood by the fact-finder as they would be in, say, a murder case or a traffic accident. A case, especially the type of litigation that we are involved in, often turns on complex issues of science , ...Read More

Monday, Feb 27, 2012 Ken Lopez
In the courtroom, the attorney who has the best chance of winning a case is generally the one who is the best storyteller. The trial lawyer who makes the audience care, who is believable, who most clearly explains the case, who develops compelling narrative and who communicates the facts in the most memorable way builds trust and credibility. If you follow some basic storytelling and speech...Read More

Thursday, Jan 5, 2012 Ken Lopez
TrialDirector, a trial presentation software package produced by InData, is an indispensable aid to the presentation of electronic and other evidence at trial. There is a reason why this product has claimed the majority of the market share for trial presentation software for more than 10 years: It can actually make it interesting for a jury or other fact-finder to listen to a witness testify...Read More

Tuesday, Jan 17, 2012 Ken Lopez
At first it sounds like something out of science fiction, but 3D printing has arrived – and it can be very helpful to the litigator and litigation consultant . In 3D printing, which was invented in 2003, the user either electronically sculpts or scans nearly any object into the printer, using a computer-assisted design (CAD) program to tinker with the color and shape of the...Read More

Friday, Mar 23, 2012 Ken Lopez
When a litigator engages a  trial graphics consultant , he or she will most likely be getting more than anticipated - an expert in information design. Information design , a field that is less than 50 years old, has been defined as a process that is “concerned with transforming data into information, making the complex easier to understand and to use. It is a rapidly...Read More


Top 5 Articles from The Litigation Consulting Report - Past Year

Monday, Feb 21, 2011 Ken Lopez
The term information design is less than fifty years old.  The use of specialty trial graphics in the courtroom started less than thirty years ago.  Only very recently have the terms been used in the same sentence. That is, only recently have individual practitioners of both arts emerged. Wikipedia describes information design as "the skill and practice of preparing information so...Read More

Wednesday, Sep 7, 2011 Ken Lopez
Although trial consultants prepare dozens of different types of exhibits that help judges and jurors understand a case, timelines are one of the oldest and most reliable. After all, most cases involve some sort of time sequence, and the order and timing of events can be crucial. Timelines give jurors an intuitive understanding of a case – if they are done well. While it seems simple...Read More

Friday, Aug 12, 2011 Ken Lopez
No trial presentation exhibit specialist can perform any better than his or her tools. Although the judge and jury aren’t usually aware of what software the trial consultant is using, the choice of presentation software is essential to the success of the consultant, and ultimately to the success of the case. Over the last decade, presenting demonstrative evidence has usually meant...Read More

Monday, Feb 7, 2011 Ken Lopez
Below is an article authored by a Senior Litigation Graphics Consultant at A2L Consulting.  It is set for publication in PLI's Trial by Jury book.  I think it does a great job of introducing the challenge of balancing color choice and culture in trial graphics . ******** Color Choice, Culture and Demonstrative Evidenc e -Theresa D’Amico Villanueva, Esq. About the...Read More

Tuesday, Nov 15, 2011 Ken Lopez
As litigation consultants, jury consultants, trial technology consultants and litigation graphics consultants, we have the opportunity to share our decades of experience in over 10,000 cases, working with litigators from all major law firms, with our litigation clients every day. Clearly, this is a valuable service, and I believe great litigators become better litigators for having worked with...Read More

Of course, not everyone interacts with our firm via our blog. Some like to follow us on A2L's YouTube channel, where one video about Hydraulic Fracturing (Fracking) has more than 13,000 views. Some follow us on A2L's Facebook page and many follow us on A2L's Twitter feed. Our newest web presence is on Pinterest, a site that lends itself well to the visual side of our business.

We encourage you to subscribe to this blog by following this link.

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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


Claim a FREE Subscription to this Blog - The Litigation Consulting Report - Quarterly iPad Giveaways for Subscribers


5 Surprises in Going from IP Litigator to Litigation Consultant

 

Ryan Flax ip litigation graphics consultantby Ryan H. Flax, Esq.
Managing Director, Litigation Consulting
A2L Consulting

Ryan Flax joins 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.  He has leveraged his significant experience in cases related to a wide array of technologies, including medical devices and systems, semiconductors, biotechnology, chemical engineering, mechanical engineering, software, and more.  Most recently, Ryan was part of the Dickstein Shapiro team that brought 2011’s largest patent verdict totaling (so far) close to $600 million, which is also the 6th largest patent verdict in history (Bruce Saffran, MD, Ph.D. v. Johnson & Johnson et al.).  It was during this experience that Ryan realized the excellent fit between his considerable expertise and skill sets as a patent law specialist, and his penchant for designing highly effective trial presentation materials through his collaboration with A2L Consulting.  Ryan made the move to A2L Consulting to become A2L’s Managing Director, Litigation Consulting.  Ryan earned his Bachelor of Science degree in Biology from Wake Forest University and his Juris Doctor degree from Southern Methodist University Dedman School of Law.  Between his undergraduate studies and law school, Ryan was a Laboratory Scientist conducting DNA research at the R.J. Reynolds Tobacco Company.

As a seasoned litigator and IP law specialist, over the last decade I saw the discipline of trial presentation evolve into a sophisticated art form of balanced science and persuasion.  It is no longer good enough to take the complex and make it simple, but, to be effective, litigators must do this in a way that skillfully and persuasively communicates the facts and themes of the case.  Litigation graphics, especially those presented in opening statements (and at claim construction in patent matters), can literally turn the tide for or against your case.

I have had the opportunity to practice this “art” in my role as a litigator and collaborate with some great litigation graphics specialists and it is my great pleasure to announce my latest collaboration.  I have moved from a position as a practicing litigator at a prominent national law firm with a vibrant IP practice to an exciting new role as the Managing Director, Litigation Consulting at A2L Consulting.

complimentary-timeline-e-bookuse-25-samp


Although my new position and my old one have many things in common, they are quite different in a number of ways:  one of the most interesting distinctions stems from the fact that, as a trial lawyer, I was keenly aware that relevant and determinative facts often emerge from literally millions of pages of documents.  It’s all too easy to get lost in the details as you try to sort out your case and find the best pieces of evidence for each point that can and must be proved at trial.  And this propensity for detail can be compounded when one is obliged to respond to an opposing counsel's case.

In such situations it can easily become difficult to see the forest for the trees as you begin looking at each individual proverbial tree under a magnifying glass to identify its species and recognize its characteristics.  There are almost always a lot of details to get lost in, yet it must never be forgotten that jury cases are ultimately about the forest.  Eventually, a trial lawyer needs to step back and regain perspective.  This is where a litigation consulting firm becomes essential.

The litigation consulting firm is unlikely to get bogged down in details and can maintain the perspective needed to develop a winning trial strategy.  The earlier a law firm engages a litigation consultant, the better.  One crucial role that a litigation consultant can play is to develop (and help develop) a working story for the client’s position early in the case.  This will necessarily be a flexible story that can be adapted to the facts as they are revealed in discovery, to the way the case progresses procedurally before the court, and in response to the opposing party’s positions.  Because A2L expertly utilizes seasoned attorneys as litigation consultants that support multiple trials every month (and hundreds over the years), our ability to add significant value to your litigation team cannot be overstated.

With all this in mind, as I make my transition from law firm litigator to litigation consultant, I have encountered a few surprises.  Here are my top 5, in no particular order:

  1. Attorneys have a surprisingly wide variety of styles in developing and litigating their cases.  Some prep early.  Some prep late.  Some 1st chair litigators do not get involved in a case until a couple of weeks before trial, while others tend to micromanage from the start.  Some take advice from dozens of collaborators.  Others work alone.  And, when it comes to trial graphics, some litigation teams like to sit down and collaborate with their consultant team to develop the graphics while others prefer the electronic (email) “tennis-style” back-and-forth volley of graphics and edits from consultants to litigators.
     
  2. Many trial lawyers delay a longer time than I would have expected in developing a coherent theme and story of their case.  At my former law firm, I had the privilege of working with some of the best in the business.  Most of the trials I have seen had themes and stories worked out many months (or literally years) in advance of trial.  However, I also see effective trial attorneys now doing this work on the eve of trial.
     
  3. Even I, an experienced and veteran litigator, can be swayed (surprisingly easily) to either of the opposing positions of a case depending on how well they are presented.  I have been so used to living in and believing one side of a case for so long, I am amazed by the power of a good presentation to convince me that an argument is correct.
     
  4. Few things are more valuable than brainstorming the key issues, but it is surprising how long this can take even for the simplest of issues.  If you’ve ever wondered what a litigation consulting firm looks like behind the scenes, think of the popular A&E show Madmen.  Smart and experienced people combine experience and intellect to develop the best approach to presenting a case or an argument within a case.  The brainstorming goes on for hours and is repeated over days, weeks, and months (if available) and produces amazing results.
     
  5. I wish I had utilized litigation consulting firms to their full potential when I was litigating cases.  As an insider, I now see the value of getting the outside perspective of people who spend all of their time either working in court or preparing others for it.

Armed with my “aha moments” and lessons learned in my first few days here at A2L Consulting, I am looking forward to achieving great things in my new position and to helping A2L Consulting’s clients do likewise in the courtroom.

I invite you to contact me, download A2L’s complimentary Patent Litigation Trial Presentation Toolkit and subscribe to this blog, to which I will be contributing frequently.

Ryan Flax is the Managing Director of Litigation Consulting at A2L Consulting. He joined A2L after practicing as a patent litigator who contributed to more than $1 billion in successful outcomes. 


patent litigator ryan flax joins a2l consulting 

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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In Trial Presentation - A Camel is a Horse Designed by Committee

 


trial presentation camel horse committeeThere is an old expression that a camel is a horse designed by committee.

The expression means that when many individuals design something as a group, every imaginable feature will go into the finished product – and it will end up with many important features. But the product will have lost its beauty – and sometimes will have lost some of its usefulness as a complete entity.

Working with trial teams to create a trial presentation can sometimes feel a bit like designing a horse and ending up with a camel. Many people provide lots of input on a particular presentation and sometimes, it ends up that too many features have been added to a single trial presentation. Unless a strong leader seizes control and dictates the final content, the project can go in any number of directions at once, and it may fail to be as outstanding a product as it can be.

download-free-e-bookleton-leading-litiga

An easy business comparison is Apple. There, great design is at the core of the company's success and has made it the most valuable company in the world.  Since the 1990s, the man behind this great design is London-born designer Jonathan Ive. Ive, Apple’s senior vice president of industrial design, has been responsible since 1996 for leading a design team widely regarded as one of the world’s best. Ive has been said to have “the obsessive desire to create products that are meaningful to people.”

Ive is ultimately responsible for the design of the iMac, the iPod, the iPhone and the iPad.  It was he who brought the great designs to Steve Jobs for his consideration. Jobs would pick among Ive’s proposed designs. Fortunately for us, Jobs was right most of the time.  What we never see from Apple, however, are all the rejected designs.

At A2L, we see ourselves as the Jonathan Ive of a trial team, constantly bringing great trial presentation ideas and prototypes forward with the hope that the first chair litigator will see something that he or she likes.  In my experience, the stronger the leader, the more likely it is that a good trial presentation design approach will be selected and the camel-like result avoided.

Our recommended approach when lots of individuals need to provide input on a project is simple. Everyone has a voice, but only one person has a vote.

trial presentation consultant 

About A2L Consulting

•  Leading national litigation consulting firm since 1995

•  Personnel nationwide

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

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

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

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

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

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


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3 Styles of Document Call-outs Used at Trial

 


document callout call-out legal graphicsWhenever a litigation team presents a document in a graphic way to the jury or other fact-finder at trial, there is an occasion for a document call-out. A “document call-out” is a term of art that means taking a document that is in evidence at trial and highlighting some key portion of it for easy reading and to draw the viewer's attention to the key language.

There are three usual ways to perform a document call-out: With trial presentation software such as TrialDirector, with a static exhibit with something highlighted, and with a PowerPoint presentation.

Each of these techniques has its pluses and minuses, and within each of these options there are various styles. Here is a summary of the pros and cons.

do-you-lead-trial-teamsdownload-leader  


1.  Within Trial Director,
there are a variety of tools for creating document call-outs, either in advance or live, on the fly.  In this video, you can see the screen of one of our hot seat trial technicians as he makes document call-outs on the fly during a televised arbitration.  Here, certain key accounting figures are highlighted through the use of color, the use of a moving cursor, and the use of a zooming-in technique to make certain numbers more prominent.


 


2.  In a static exhibit,
when used as the old-fashioned printed foam core trial exhibit board or on a slide, the document call-out becomes quite powerful.  In today's cases, where most exhibits are presented on screen, a printed board of the key document in a case can be a great tool.

Further, sometimes the document call-out can provide something more.  In the below document,  the message we wanted to convey to the jury was that the failure to follow procedures on the ground (to STOP traffic) was what led to the accident, not air traffic control.  The octagonal red area functions both as a document call-out, to highlight the established policy on the ground when there is an incoming helicopter, and also as a strong visual reminder that it was necessary to stop traffic and that this was not done.

stop sign document callout legal graphic 

The call-out below emphasizes the crucial language of an insurance policy defining the important term “accident.”

policy language pull quote document call-out legal graphic



3.  In PowerPoint slides,
there are various techniques for calling out document text culled from various courtroom presentations.  In this series of slides captured from a variety of PowerPoint presentations, we illustrate a number of common document call-out techniques.

 


document callout demonstrative evidence

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 Best Ways to Use Calendars in Legal Graphics

 


medical treatment calendar legal graphicsWe have previously discussed how valuable timelines used as legal graphics can be in the presentation of facts at trial. As we have noted, most cases involve the placing of events along some sort of time sequence, and timelines, if they are well designed, can give jurors a straightforward introduction to the facts of a case. In fact, we recently released an e-book describing best practices for the use of timelines and legal graphics at trial.

Like timelines, calendars are also an intuitive way to organize facts and events that occur in a time sequence. In fact, they are even more intuitive because everyone is familiar with them and because they help everyone organize information on a day-to-day basis. Calendars can be especially helpful at trial when there is a lot of data that must be conveyed quickly and understandably, and when that data must be understood as a time sequence. This could involve conversations, meetings, appointments, dates of official events (such as the signing of a will or a contract), and the like.

click-here-todownload-freetimeline-e-boo

 In What You Didn’t Learn In Law School About Trial Practice (2008), longtime Indiana trial lawyer Charles Bruess wrote: “In an employment discrimination case in which the defendant company maintained plaintiff was discharged for excessive absenteeism, an issue was what days plaintiff worked or did not work. Counsel brought large monthly calendars, placed them on an easel, and, as the witness testified as to the days worked or not worked, the dates were marked accordingly on the calendars. The calendars were marked as exhibits and were introduced into evidence.”

Below, to cite another legal graphics example, we used a calendar to illustrate key dates in the RFP process for a government contract, starting with the date on which the compressed RFP was issued by the Department of Defense.


In this series of legal graphics we show, in a partnership dispute, the dates on which the defendant was in the office and the dates on which he received calls or faxes from the plaintiff.
 

 

In an employment case, we used this ordinary calendar legal graphic to illustrate the dates on which a plaintiff took days off from work for various reasons. A simple color-coding technique made it easy for the jury to understand the sequence. 
 

describe the image


Next, in a medical treatment calendar legal graphic, we showed the dates of key surgeries, office visits, and hospital stays, again accompanied by a simple color-coding technique.

 

legal graphics medical treatment timeline


Finally, we used a calendar legal graphic to show key dates in the development of an invention that was at issue in a patent trial.
 

legal graphics patent invention calendar


 

legal graphics best demonstrative evidence provider

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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New Study: A Graphically Immersive Trial Presentation Works Best

 


immersive use of litigation graphicsA recent study about the best use of litigation graphics during trial reveals some new insights. This study was conducted by Persuasion Strategies, a litigation consulting firm that is part of Holland & Hart, a law firm. 

The study team was led by Ken Broda-Bahm, a leader in the art of visual presentation in the courtroom. With a doctorate in speech communication that emphasizes rhetoric and legal communication, Dr. Broda-Bahm is a genuine expert in jury consulting.

In the Visual Persuasion Study, Dr. Broda-Bahm and his team conducted extensive research about the best approach to trial presentation in the courtroom. Their experience, which remains the topic of continued research, reveals that a graphically immersive approach to trial presentation gets the best results with jurors.

In a project that compared various uses of graphics and their effects on potential jurors, Dr. Broda-Bahm wrote, he and his team learned something very important: “The occasional use of graphics is not enough.” 

need-a-hot-seaterdownload-20-things-yo

The study looked at 1375 mock jurors and tested five different ways of presenting a defense case: (1) no litigation graphics; (2) flip chart graphics created live; (3) static graphics; (4) animation; and (5) an immersion style of presentation in which animated and static graphics were in constant use.

The team found that in order to obtain the full benefits of visual persuasion, attorneys should be using a continuous approach, giving the jury something to look at in a constant manner, at all times. Instead of following the practice of most attorneys of only using the screen periodically to show a document or image when a particular need presents itself, effective attorneys use graphic immersion -- an approach relying on continuous imagery to reinforce all parts of the message. This approach turns out to be most effective of all the graphic modes that were tested.

Graphic immersion, Dr. Broda-Bahm’s test results concluded, greatly enhanced positive juror response, beyond the results that came from occasional use of static graphics or animation. It is possible that this result springs from the fact that when something is both shown and told to jurors, they engage two separate sensory processing areas of their brain – the auditory cortex and the visual cortex -- thus sharing the cognitive load and making it easy for the brain to process the information.

Dr. Broda-Bahm told me that the study has convinced him that “attorneys should be using PowerPoint throughout opening and closing and the same is true while experts are speaking.”

We believe that as the disciplines of jury consulting and litigation graphics become increasingly intertwined, more study is needed on what are the most effective techniques throughout the trial presentation.

 

best demonstrative evidence firm immersive

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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Who Are the Best Demonstrative Evidence Firms?

 

 

Best of NLJ A2L Consulting The National Law Journal is currently running a contest entitled “The Best of NLJ” to select the top providers of services to law firms nationwide. Everyone at A2L Consulting and I would, of course, like your vote, but more important than anything, please do vote.

Last year, A2L Consulting was voted the best demonstrative evidence provider in the Washington, D.C., area – our home base.

We are hoping to win the national honor this year. Voting is open through March 31, 2012.

I’m very excited about this contest not only because we were nominated, but also because it indicates that the demonstrative evidence industry is fully understood and accepted in the legal community and is here to stay.

Our type of service – using psychology and technology of all varieties to help trial lawyers present evidence in a clear and convincing way – is barely 25 years old. When A2L Consulting opened its doors, as Animators at Law, in 1995, we spent more time selling the need for our service than selling our firm.  Now, most large cases go to trial with at least two demonstrative evidence firms involved.

do-you-lead-trial-teamsdownload-leader

It turns out that it is quite difficult to make the complex simple. It takes time and expertise to do it well. With firms like ours going to trial all the time – far more frequently than even a top litigation law firm – we have a great deal of experience. As technology and change accelerate, cases have become more complex, and the need for demonstrative evidence firms has never been greater.

It is really quite amazing what we do – advise some of the nation’s best communicators about how to communicate more effectively.

As a finalist in the NLJ competition, we are in good company with other national firms such as TrialGraphix and DecisionQuest. We are proud to be in the same category as firms like these, which helped create our industry. DOAR, formed in 1989, helped bring technology to courtrooms in the 1990s. DecisionQuest popularized jury consulting on a national scale, and TrialGraphix helped give one element of our service a name.

I believe our unique approach to litigation consulting, using visually oriented attorneys and former litigators to lead our project teams, has profoundly improved the way top litigators try cases.

We would like your vote. Just go to https://www.surveymonkey.com/s/NLJBest2012, and

  1. Fill in your name and other information.

  2. Locate the question about the BEST DEMONSTRATIVE EVIDENCE PROVIDER. The 60 or so questions are presented in random order.

  3. You may respond to the other questions as well but you need not do so. Then click through to the end of the questionnaire to “Done.”

We hope that this contest is just another step in the recognition of A2L Consulting as an industry leader.

 

best demonstrative evidence provider 

 

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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