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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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The Top 14 Litigation Consulting Articles You Loved from Q1-2014

 

 

top 14 litigation consulting report articlesby Ken Lopez
Founder/CEO
A2L Consulting

Since we publish articles a few times per week, it's easy to miss some of the great content posted at A2L's Litigation Consulting Report blog. Also, with so much valuable content, we know it's hard to read it all. That's why we publish four quarterly best-of articles, an annual best-of article and a best-of article every time we publish an additional 100 articles. The list included here covers our very top articles of the first quarter of 2014, as measured by the number of times these articles were read.

The first quarter saw our highest readership ever with tens of thousands of visits to our litigation-focused blog. All told, 61% more people visited in the first quarter of 2014 than visited in 2013. That's quite an increase!

We have definitely noticed an increase in readership since being named one of the top 100 legal industry blogs and one of the top 10 litigation blogs by the American Bar Association at the end of 2013. We are approaching 4,300 subscribers who get notified of new articles as they are published, and invite you to subscribe to the Litigation Consulting Report for free here.

Enjoy these articles from the Litigation Consulting Report, and share them using the LinkedIn and Twitter buttons below.

14. 11 Problems with Mock Trials and How to Avoid Them

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13. How To Emotionally Move Your Audience

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12. Why Reading Your Litigation PowerPoint Slides Hurts Jurors

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11. 10 Things Litigators Can Learn From Newscasters

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10. 12 Ways to SUCCESSFULLY Combine Oral and Visual Presentations

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9. FREE 250-Page Complex Civil Litigation E-Book

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8. 16 Litigation Graphics Lessons for Mid-Sized Law Firms

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7. 11 Traits of Great Courtroom Trial Technicians

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6. The Top 30 Litigation Articles Out of Our First 300 Articles

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5. Like It or Not: Likeability Counts for Credibility in the Courtroom

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4. 2 Metrics Showing Litigation Shifting to Midsize Law Firms

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3. Witness Preparation: The Most Important Part

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2. 7 Things Expert Witnesses Should Never Say

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1. 16 PowerPoint Litigation Graphics You Won't Believe Are PowerPoint

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

 

 

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

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

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

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

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

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

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

What does “no real voir dire” mean?

There are several typical scenarios for voir dire:

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

2)    Counsel can use an extensive written jury questionnaire

3)    Counsel can ask a few questions directly

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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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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The Very Best Use of Coaches in Trial Preparation

 

 

litigation coach lawyersby Ken Lopez
Founder/CEO
A2L Consulting

Some time ago, I wrote about my intensive preparation for a conference speech that I was asked to give and about the 21 steps I took that made it successful. We've also written about how even the greatest athletes practice with their coaches and how great actors prepare with the assistance of others.

It seems to me, however, that most lawyers preparing for trial are hesitant to take advantage of coaching as a means of practice. So I thought I would share my experience, in close to real time, about how I am preparing for an upcoming commencement speech.

This coming May, I’m giving a speech at the graduate campus of the University of Mary Washington, where I serve on the Board of Visitors. It will only be 10 to 15 minutes long, but it is an important speech for me -- and that much more so for my audience. So I'm taking preparation for this event quite seriously.

One of the first steps I took after being asked to deliver this speech was to engage a coach. Now, I'm an experienced speaker. Part of my business is to train others on how to best present themselves. My firm publishes books on the topic of presenting well and making great visual presentations. So why would I need a coach?

I need a coach because my responsibility is to do as good a job as I possibly can in this speech, and a coach can help me do that. This responsibility is quite similar to the duty that a litigator owes to his or her client.

Perhaps it's helpful to remember that every professional athlete works with a coach, no matter how far along in their craft they are. I've always wondered why most lawyers don't do the same during their trial preparations.

So over the coming two months I'll be meeting with my coach several times and delivering practice commencement speeches. The coach’s job will be to give me feedback on my style, my content, and my message. I have no question that my talk will be better with his help than if I had done it alone.

So if you have a trial coming up, I invite you to talk to me. I can recommend a coach of almost any variety who can assist with your trial preparation. Some work at A2L on the litigation consulting and jury consulting teams. However, I know people ranging from acting trainers to body language experts. There are good people working in the industry. Take advantage of them, be courageous and improve your trial presentation. You and your client deserve it.
 

Other articles and free e-books related to trial preparation, practice, coaching, and giving a great presentation on A2L Consulting's site:

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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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11 Problems with Mock Trials and How to Avoid Them

 

 

winning mock trials consultantsby Laurie R. Kuslansky, Ph.D.
Managing Director, Jury & Trial Consulting
A2L Consulting

A mock trial is one of the most sensible things a trial team can do as part of their trial preparation. Not only does a mock trial inform the trial team about how real jurors or a real judge will react to the fundamentals of the case, but it also helps narrow the scope of the evidence and arguments to use. If the research is done before the close of discovery, it can inform the key messages to assert or defend, the type of experts to retain, and the expert testimony that is sought or backfires. It can also inform the trial team if the case is a no-go when all arguments fail or the damages tend to be greatly higher against the defense or lower for the plaintiff(s) than expected. We have seen the results inform clients about dedicating additional resources to support counsel when the client underestimates what is needed to prevail.

In short, there are few pre-trial preparations one can conduct that have a higher return on investment than a mock trial. However, if you fail to avoid some very common mistakes, you are not using your time or your client’s money as effectively as you otherwise could.

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Below are 11 problems with mock trials and how to avoid them.

  1. Winning. You want to win for your side instead of actually testing your side’s strengths and weaknesses.
     
  2. Show Me – Don’t Tell Me. It is well established that most jurors prefer visual evidence and all modern trials use it. If you test a case without visuals, it’s a bit like going to the movies with a blindfold on and trying to understand the story. You will understand some of it, but there is a lot you won’t understand. Plus, the extra time invested in creating graphics pays for itself over and over in time efficiency and it is work you’ll use at trial anyway. Often, when it comes to creating a core set of graphics to show and tell your case, it forces you to focus on what is truly most important and what needs you to educate before you advocate. See Testing Graphics in a Mock Trial.
     
  3. Stacking the Deck. You provide graphics for your client, but not your adversary, so you tilt the results. Related to the first item and surprisingly common, if anything, you should work to stack the deck against yourself.  It is better to mock lose than to mock win so you learn as much as possible to remedy while there’s still time.
     
  4. Denial. You omit worrisome evidence. Often, trial counsel will leave out troubling evidence in a mock for a variety of reasons – some quite legitimate. However, you are better off knowing ten ways you might lose rather than one way you might win.
     
  5. Verdict on Liability. You use the results to predict the actual outcome on liability and damages. The reason to conduct a mock is not to predict what will happen -- although some analysis of that is inevitable and useful. Instead, use the mock to learn what works and what does not. Use the mock to gain language tools and learn subjects that require graphics tutorials that you can use at trial. If it helps to call someone a serial liar during the mock, you know you can do it at trial and it will help. If it boomerangs, better to know in advance.
     
  6. Buck to the Future. You use the results to predict the likely damages. It is unlikely that the economics permit such a large sample size that you can rely on the statistical results for predicting actual damages. Instead, you can learn the facts and arguments that fuel higher damages and ones which tend to mitigate damages and adjust for trial accordingly.
     
  7. Goliath vs. Some Other Guy. The best and most experienced person presents for your side and someone unequal to the task presents for the other side. No wonder you won, but what is that worth? Instead, make it an uphill battle. Put your 1st chair on your opponent’s side whenever possible. We understand that clients often want to see their advocate argue for their side, whether as a trial run or to put their best foot forward, but in the end, it can be a huge disservice.

    storytelling persuasion courtroom litigation webinar

     
  8. Chronology vs. Story. You try to cover too many details rather than creating a compelling story to test. Rattling off what happened is not telling a narrative. Use it as a foundation to tell the highlights in your story. It’s the spine, but not the body. See A2L's Storytelling in Litigation Webinar.
     
  9. Home is Where the House is. If you don’t do the mock trial in the actual trial venue, it is hard to know how the real jury pool will react and what they might be sensitive to as local issues that can impact their perception of the parties and the case. Clients may be over-sensitive to the risks of local research. If there are local rules against it (e.g., as in the E.D. Texas) or the pool truly is tiny, that’s a valid reason. If not, there are native sensibilities that are important, but will be missed if a matched venue is used.
     
  10. Cast of Characters. Without explaining who witnesses are when citing their testimony (e.g., the credentials of expert witnesses or the roles of fact ones), their testimony is flat. Instead, make a visual glossary of key players. If their positions are pertinent, include an organizational chart. If their credentials are important, present their CV visually.
     
  11. Set Client Expectations. Mock trials are best if you lose so that you learn challenges to overcome, but if your client loses confidence in the trial team for mock losing, then what? Instead, explain to your client up front that you are going to make it a challenge to win this so we can learn how best to fight this case by testing the worst-case scenario. The more criticism we hear from jurors, the better. 

It is better to fix the problems in the case than for the mock to be fixed.

 

Other articles and resources related to mock trials and jury consulting services from A2L Consulting:

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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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17 Trial Consulting and Jury Consulting Tips for Midsized Law Firms

 

 

jury consulting jury research trial consulting midsize law firm market share litigationby Ken Lopez
Founder/CEO
A2L Consulting

This is Part 3 of a four-part series on the rise of the midsized law firm in litigation. Parts 1,2,3,4.

$10 billion in legal fees spent by outside counsel over a recent three-year period were analyzed by Lexis-Nexis. For litigation matters where at least $1 million was spent, it was discovered that law firms with 201-500 lawyers (midsized law firms) increased their market share from 22% to 41% while firms with 750 or more lawyers (large law firms) saw their share fall from 26% to 20% over the three-year period. This shift represents one of the biggest changes in the history of law firms and makes obvious that the rise of midsized law firms is underway in high-stakes litigation.

In the previous two articles in this series, I talked about what midsized law firms need to know about using litigation graphics and trial technicians/trial technology. Here, I wish to discuss how a litigator from a midsized firm can use trial research, commonly called trial consulting, jury consulting or even litigation consulting.

For the most part, I think mid-sized law firms have made good use of mock exercises, even though they use them a bit differently than large law firms use them in large cases. If midsized firms are to find success in large cases and save money for their clients through lower fees, they will have to prove themselves.

One of the easiest and most logical ways to ensure success is to model it and test it, and that's what trial consulting or jury consulting is -- a platform for seeing what works and what does not. Surprises occur in every exercise -- although there are some common things all mock juries say.

1. One Size Does Not Fit All: Just as both a midsized firm and a large firm can try a case, not every large case needs a large exercise. It's not all or nothing. One mock jury panel is not usually enough, but four jury panels over multiple exercises with retired federal judges observing does not suit most cases either. These days, good trial consultants build an exercise to suit the case. See our Micro-Mock service for example.

storytelling persuasion courtroom litigation webinar

2. Corporate Clients Still Expect Large Law Firm Results: Great results are often the result of a great trial team that has extensively tested a case through research and adapted to those results. If your clients expect great results, explain that research is not an area to cut back on. Research, like other litigation consulting services, is really a drop in the bucket of the overall litigation budget and the ROI is very high.

3. Research is a Money Saver Not a Money Spender: You can cut more than you think in most cases. Trial consulting is one of the best ways to find out where. Often themes, experts, and litigation graphics can all be trimmed as a result of conducting good research.

4. Local is not critical: Can you try cases effectively only in your back yard? Of course not. The same is true for a good trial consultant. Don't skimp on quality just because you think there is some magic local understanding that the researcher must have. Remember, the research is conducted on local people and that is where the answers come from, not the researcher.

5. Your administrative staff is not a good barometer: It is well known that running a case by your admin staff or family is not a good use of time. You are not going to get the outside feedback that you need.

6. Nothing is more expensive than a cheap lawyer or trial consultant: Pay less, get less. Everybody is willing to reduce price these days, so you really need to distinguish based on quality and experience more than ever before.

7. Have your client see you perform: Since in-house counsel is still, on some level, trying to justify the choice of a midsized firm, it is a good idea to let them see you perform a bit. However, you might not want to use stage one of the exercise for this purpose because you'll look better in front of the client after some practice.

8. The Difference Between Small Cases and Big Cases is Really Big: One panel of jurors is not really research. There is not enough data to draw meaningful conclusions. Unfortunately, many midsized firms are used to a one-panel approach. In big cases (really all cases), two to four panels work but only one does not.

9. Longer is not usually better: Sometimes, counsel wants to schedule multiple days for a mock, and it is usually unnecessary. It is better to say less and gather more reactions than to schedule more detailed and longer presentations.

10. Test graphics: Today, graphics are an essential component of a mock exercise

11. Use technology: Practicing with your trial technician is often a good idea during the mock.

12. Most midsized firms are not used to using outside sources for witness preparation: Deposition may be the only testimony their experts give in most cases. However, there is little preparation of key witnesses just before the deposition. As a result, the witness can easily be tripped up. Preparation is the key. See Witness Preparation: Hit or Myth?

13. Investing time in voir dire. Don't rely on your tried and true approach. The questions that are submitted should be highly customized. Our five-part series on voir dire should be helpful. It begins with Jury Selection and Voir Dire: Don't Ask, Don't Know.

14. Jury questionnaires should be one result of a mock exercise wherever possible: They should be the result of an mock exercise, not something that is done by gut instinct. 10 Signs of a Good Jury Questionnaire.

15. Use mock exercises as development tools: One thing that has led to good results is experience litigating a case to verdict. Yes, experience matters. But, as fewer cases go to trial, getting that experience is largely being relegated to mock exercise rooms.

16. Budget: Rather than ask for a budget and try to get a deal, present what you have and ask your jury consultant to give you a solution. 

17. Mocks are Being Used in Surprising Places: We wrote an article that might surprise even a veteran litigator: 11 Surprising Areas Where We Are Using Mock Exercises and Testing.

Parts 1,2,3,4.

jury consulting trial consulting jury research

About A2L Consulting

•  Leading national litigation consulting firm since 1995

•  Personnel nationwide

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

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

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

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

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

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


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9 Things Outside Litigation Counsel Say About In-house Counsel

 

 

outside counsel say about inhouse counselKen Lopez
Founder/CEO
A2L Consulting

Even behind closed doors, our law firm clients have very good things to say about their in-house clients. It's relatively rare that I hear any serious complaints. Almost without exception, our outside litigation counsel clients are actually quite proud of the relationship they have with their mostly Fortune 1000® corporate clients.

However, especially in these times of change, with all the talk of a legal industry new normal, I do hear some frustrations being discussed regularly. Below are nine things I hear outside litigation counsel say regarding in-house counsel that deserve more attention:

  1. We would all benefit from better early case assessment: Outside litigation counsel understand that litigation costs are under fire. By making outside counsel part of the solution rather than a line item to avoid later, better decisions can be made. A2L, for example, is being increasingly asked to use a variation of our Micro-Mock process to help both in-house and outside litigation counsel assess the potential merits of a case closer to filing than to trial. Failing to do this type of formal analysis often leaves too much to instinct and emotion.
     
  2. When the stakes are high, let litigation counsel do what they are good at: Some corporations are often involved in litigation but are still rarely involved in high-stakes litigation. The two types could not be more different. Controlling costs in small cases is critical. However, trying to control the throttle too much when hundreds of millions or more are at stake can be like jumping over dollars to pick up dimes. Outside litigation counsel who are expert at their craft need room for creativity. However, that does not mean the relationship should be without structure. Rather, I believe that it is the structure, in the form of budgets, reporting and deadlines, that allows for maximum creativity by outside litigation counsel.
     
  3. Put settlement and trial preparation on separate tracks: Settlement talks often fail. Sometimes one side may disingenuously signal settlement just to slow down trial preparation. For these reasons and more, it is important to allow settlement talks to proceed while fervent trial preparations continue. It is normally best to create a separate settlement team when settlement is a possibility and trial is approaching. See related article about two-track trial preparation strategies: Litigation Consultant: Embrace a Two-Track Strategy & Win the War.
     
  4. Enthusiastically embrace mock trials: This is one of the most common frustrations I hear from outside litigation counsel. They want to conduct mock trials, but frequently get resistance from in-house. Once they get that resistance, they sometimes fear that insisting on a mock makes them look like they don't know what they are doing when exactly the opposite is true. After all, if practice didn't matter why would all great athletes and great actors do it almost obsessively? In this era when trials are quite rare at large law firms, in-house counsel should want to encourage practice via mock trials since it will help them get a better result and may help inform settlement. See 7 Reasons In-House Counsel Should Want a Mock Trial.


    Click here to Downloada Free Litigation E\u002DBook


  5. Watch the mock exercises: While I think outside litigation counsel from prior generations preferred to run a case with minimal regular input from in-house counsel, these days, in-house counsel are involved more regularly. One area where in-house counsel should increase their involvement further is in the attendance of mock trials. From behind a one-way mirror, you will learn more about your case, the perception of your firm, and your choice of outside litigation counsel in one day than in the year(s) of preparation that proceeded it. The great lawyers will want you there while the less confident prefer to prepare privately and avoid mock trials altogether. Keep an eye out for this litigation counsel red-flag.
     
  6. Be clear with your leadership approach: In a recent article about joint defense teams, I touched on the topic of litigation leadership by in-house counsel. Generally, I believe that a variety of team structures will work so long as they are clearly defined and executed. Trouble arises when there is confusion about who is in charge. See 5 Tips for Working Well As a Joint Defense Team as the lessons discussed here apply just as well when working with a single law firm.
     
  7. Litigation consulting vendors are not created equal: Preferred vendor relationships are on the rise for litigation consulting firms. We participate in them at A2L and encourage them. However, market disruptions are putting the future of some trial graphics firms (not ours) that regularly appear as preferred vendors in question. Procurement departments and in-house counsel are going to have less visibility into vendor stability than outside counsel, and outside counsel should generally make the final decision about who to use for jury consulting, litigation graphics and trial tech for best results.
     
  8. Pay vendor bills on time: Litigators never want to deal with getting bills paid as they prepare for trial. It's distracting and annoying. All relationships on the team are weakened when bills are not paid timely. The bottom-line benefits of simply paying bills on time was covered in more detail in a recent article, 10 Ways Timely Payment Helps You Save Money On Litigation Consulting.
     
  9. There's more that outside counsel can and should be doing: From early case assessment by litigators, to client counseling about the very things they try cases about, to participating in non-litigation messaging, to assisting in lobbying and legislative activities, outside litigation believe they have a lot more to contribute to the operation of a business than they are being asked to do. As an informed outsider, may I suggest that in-house counsel consider starting off 2014 by asking your outside litigation counsel how they can help you manage budget better and run the business more effectively. The best litigation counsel will have an informed answer for you. The litigators that you will soon want to relegate to your slip-and-fall cases will look at you like a doe in the headlights.

Articles related to the role in-house counsel can play in litigation and managing litigation costs:

storytelling persuasion courtroom litigation webinar

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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7 Reasons It's Okay to Procrastinate on Your Trial Preparation

 


trial prep litigation procrastination trial lawyers procrastinateby Ken Lopez
Founder/CEO
A2L Consulting

Don't get me wrong. I'm not suggesting procrastination is a good idea. Rather, I just want you to know that even if you do procrastinate on trial preparation, things will probably work out okay.

Why? Because we have spent 18 years designing a company around managing fire drills - and there are other companies like ours with the same mentality. Yes, we all are the firemen and firewomen, indeed the smokejumpers of the litigation support world. We're routinely being called in to fight a fire that blew up unexpectedly, to put out one that looked like it was being doused, or even to fight one that got much larger than anyone ever anticipated.

Sometimes, life's realities get in the way of good planning. It might be another client. It might be a holiday. It might be that the client is in denial about going to trial. We see all of these a lot. While not great excuses, they are understandable.

Fortunately, we at A2L and other firms like A2L have been doing litigation support work for a long time. We have seen it all when it comes to trial preparation. Mock trials are run a few days before trial. Litigation graphics are prepared at the 11th hour and the use of a trial technician is only approved a day before she is needed in another city.

Click here to Downloada Free Litigation E\u002DBook

It's not great when things go this way. I'm pretty sure the client is hurt in the end, but I'm not saying it's malpractice either. After all, more often than not, the client is at fault in some way, and it is usually about budget.

The great law firms won't stand for this behavior from their clients. They'll fund and execute trial preparation themselves when the client is dragging his feet. However, not every lawyer has the chutzpah to work with (or around) their client this way.

Although we still hope that you will practice extensively, plan for a great presentation using a 30:1 preparation ratio, develop a one-year trial prep calendar, and not make avoidable trial preparation mistakes, here are seven reasons that you can STILL procrastinate and we'll make sure it works out anyway.

  1. We're used to it. It is not uncommon for someone to call us and say they have a case with $100 million at stake and it's going to trial in less than a month. This used to happen more often than not. However these days, it is happening less and less. Trial lawyers have come to accept that the level of preparation expected of them is much greater than it was five years ago and hardly resembles what was acceptable 20 years ago.
     
  2. We have built our systems to spin up quickly. Rushing does not equal efficiency. However, we have built staffing and technology systems that allow us to expand and contract very quickly. We, and other firms like ours, can do this on-site or off-site.
     
  3. We use a variable staffing model. People often ask me how large our firm is, and my answer is usually that I don't know today. We have spent the last several years building a flexible system that can go up or down 30 or 40 employees in a week or two. This just-in-time system is brilliant if you think about it. It keeps costs down for our clients, and it avoids the problem that plagues many firms where people sit on the sidelines waiting for something to happen.
     
  4. We build stories for a living - often at the last minute. This morning, our team was discussing a case that is on the eve of trial but has no story built out yet. Like a lot of cases, it arrives on our doorstep as a chronology. There is no story, no meaning and nobody would care what happened really. Our opposition, however, has a simple to understand emotional story. So, in a week or so we will build out a truly compelling story for our side. We do this routinely.
     
  5. Let us sweat the small stuff. Since you now have to rush and get your case ready for trial, we can take on the challenges of preparing the trial database and being ready to present any document on a moment's notice. We can handle courtroom logistics as well and make sure all of the electronics are set up perfectly. That is what our trial technicians do every day.
     
  6. We can help you practice. We have systems to do small scale and rapid testing of a case. Sometimes we conduct a Micro-Mock exercise. Sometimes we conduct a full mock exercise but use the jury consultants to present the case (thus freeing up counsel from preparing for a mock and a trial) to the mock jury.
     
  7. We are professional simplifiers. If you go to trial often, you have certainly found that the simpler you make your case, the better your results. It's true for many reasons, but making a case simple for judge or jury takes a very long time. Fortunately, we litigation consultants know how to do this faster than anyone. Indeed, it may be the most valuable thing we do.

The more time we have, the better the result - always. However, when you are up against the wall for whatever reason, please be aware that our firm and many firms like ours know how to jump into battle instantly.


Other A2L Consulting articles related to trial preparation best-practices:

complex civil litigation graphics free ebook guide download

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


Winning Jury Support for the Employer When Plaintiff Is Union-Backed

 


labor employment union litigationby Laurie R. Kuslansky, Ph.D
Expert Jury Consultant

Employment cases present unusual difficulties for attorneys who represent employers. Because the employer is generally regarded as the heavyweight in equal-employment cases, it ordinarily faces a daunting challenge in a jury trial. Picture the following scenario: On one side, an individual employee with a lone attorney and an EEOC right-to-sue letter. On the other side, a large corporation with wheelbarrows full of documents and a “dream team” of lawyers. 

Who will get the benefit of the jury’s doubt? Though this scenario favors the vulnerable individual over the mighty corporation, the perception can be reversed. This difficult task is made easier when the employee is a union member.

Pretrial mock-jury research reveals that jurors who understand unions are an asset to the defense. Such jurors perceive that union members are supported and empowered by a system that provides rights to workers and exerts muscle over employers. Therefore, some commonly overlooked methods for defending a company in employment litigation should be considered when a union governs the workplace.

First, it must not be forgotten that employment litigation involves many “slackers turned plaintiffs.” These are employees who are tolerated, promoted, and paid but who complain of unfair treatment in the workplace when disciplined, demoted or fired for unacceptable behavior. In following through on their complaints, however, such underachievers tend to exhibit the same lackluster performance they did in their jobs. Since character is constant and produces consistent behavior, this profile is advantageous to the defendant.

Slacker-plaintiffs often ignore rules. This attitude emerges when they perform work, follow procedures, address deadlines and follow up on complaints in a manner that defies their union’s Collective Bargaining Agreement (CBA). In following these procedures, slacker-plaintiffs often do not sweat the details and tend to be inconsistent about the details on which they do fixate. A plaintiff’s handling of alleged grievances often mirrors his or her poor work ethic.

Details of the employee’s work habits lead jurors to question the employee’s credibility and sense of personal responsibility. It is easier to elicit jurors’ skepticism via details related to the plaintiff’s character than through evidence that may seem subjective or inconsistent relating to the plaintiff’s work product. This focus on the plaintiff’s character also shifts jurors’ attention from the defense to the slacker-plaintiff himself or herself.

Click here to Downloada Free Litigation E\u002DBook

So before attacking an employee’s job performance, introduce the jury to the employee’s questionable character in the form of documented failures to follow CBA procedures.

This approach can be more fruitful for several reasons:

  • The jury scrutinizes the plaintiff rather than the defendant.
     
  • An attack on job performance after the fact is not credible.
     
  • Performance reviews tend to lack documentation, timeliness, appropriate criticism and follow up, creating the misimpression that the employee performed the job better than the employer now claims.

Since key witnesses (HR personnel and middle and upper managers) rarely recall details that help the defense, they seldom satisfy jurors; in addition, such witnesses are scrutinized for their own imperfect behavior, especially by jurors with management, human resources or training experience.

When jurors learn, however, that a union worker has failed to uphold his or her end of a CBA by showing disregard for the CBA-specified time constraints or by failing to communicate appropriately with union staff who are there to protect him, the worker’s case progressively loses credibility as jurors keep score using the checks and balances provided by union membership and the CBA.

As jurors learn about the roles of union representatives and shop stewards and the options and protections available to union workers, they become more willing to view a union plaintiff critically. This applies especially to jurors who come to the case with knowledge of how unions operate.

A platform that reveals the plaintiff’s incompetence or irresponsibility regarding CBA procedures allows jurors to view the plaintiff as powerful (i.e., backed by the union) but lacking credibility. Such an approach:

  • Opens the minds of jurors to the plaintiff’s performance insufficiencies;
     
  • Permits jurors to view the employment arrangement as a “deal” that affords essential rights and obligations to either side;
     
  • Introduces an objective measure by which jurors may judge the plaintiff;
     
  • Provides objective evidence likely to bring consensus among jurors (and thus to invite less debate); and
     
  • Opens jurors’ minds to defense arguments pertaining to neutral reasons for the employer’s actions

An essential goal in employment litigation is to dictate which side jurors ultimately view as in control of the workplace. To achieve this goal, place the plaintiff firmly under the influential and protective shield of his or her union (i.e., as backed by an “army”). This establishes the plaintiff side as Goliath. 

Advance this strategy by educating jurors on the following points:

  • Explain to jurors the significance of union membership. Show proof of the plaintiff’s membership. Present points of contact between the employee and the union, such as membership dues, service charge authorization forms, etc. This will illustrate that by choosing to join the union, the plaintiff agreed to be bound by its rules and procedures.
     
  • Sympathy for plaintiff employees declines when jurors learn that unionized employees are provided with a sophisticated team to fight their workplace battles. To shift the jury’s perceived focus of strength, specify the relevant members of the union team, what they do, the power they wield and how they, not just the employer, set the rules.
     
  • Inform jurors of the issues about which union members vote. Clarify the fact that union workers gain control over the workplace through union votes and subsequent agreements between the union and the employer.
     
  • Educate jurors as to what it takes to negotiate and pass a CBA and who is involved in the negotiations. Detail the sophistication of the parties involved, and explain what a CBA governs. This will make it clear to the jury that the plaintiff is supported on the job by an organization that enjoys power equal to or greater than that of the employer. Point out to the jury that in exchange for the benefits of such power, the employee is obligated to follow the union’s policies and guidelines.
     
  • Note that through unions, workers and employers agree to work together in clearly defined ways. The consequences of any failure to follow these rules are spelled out in advance.

Most of what can happen in a union workplace already has been addressed in an objective, mutually agreed on and predetermined manner, rather than subjectively by an individual “on the spot.” Spell out how case-relevant issues are governed by both the CBA and company policy (e.g., specific discipline for specific misconduct, warning requirements, criteria for suspensions and discharges, etc.) This approach permits the jury to judge both sides. Who upheld their end of the deal? Often, it is the employee who comes up short, or at least, shorter than the employer.

With a basic understanding of unions, jurors become less receptive to the complaints of a worker who fails to follow union procedures when a problem arises. Walk jurors through the “if/then” paradigm prescribed by the CBA for solving workplace problems. Detailing this paradigm is a persuasive way to overcome employees’ claims of unfair treatment or claims that the employer disregarded their complaints.

An easy way for jurors to judge the validity of a claim is to compare the dates of alleged wrongful acts with the date of the plaintiff’s first action against the defendant. Details of timing appeal to jurors because such details make sense and are easy to consider. The longer the delay, the less credible the claim.  Hence, it is essential in a winning argument to show the plaintiff’s initial failure to act and to emphasize all remedies accessible to the employee at the time of the alleged problem that he or she did not pursue.

This “delay yardstick” can be applied repeatedly to the plaintiff’s new or ongoing complaints. The better jurors appreciate how and when the plaintiff could have acted, but did not, the less they will believe a problem ever existed. 

Finally, considering the current economic difficulties, many are grateful simply to have a job. Does this social and economic environment make jurors more suspicious of employers? Perhaps, but jurors may also be less receptive to lawsuits brought by unionized employees who benefit from job security in uncertain times.


Other A2L Consulting articles related to labor law, employment law and litigation generally:

complex civil litigation guidebook 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


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


11 Things Your Colleagues Pay Litigation Consultants to Do

 

 

litigation consultants services facepalmby Ken Lopez
Founder/CEO
A2L Consulting

I have had the following conversation thousands of times in my 18 years at A2L Consulting. It goes something like this one that I had yesterday:

Friend: So, what are you guys working on?

Me: Well, I believe we are probably involved in the top three cases in the country right now in terms of dollar value. Two are antitrust cases affecting most Americans, and one is a massive product liability case affecting people worldwide. Together, there are easily hundreds of billions of dollars at stake.

Friend: Wow, what would you guys do in those cases since there isn't an accident to depict or anything?

Me: Facepalm and sigh.

Since I am in charge of marketing at my firm, I knew immediately that to a certain extent I had failed. While we do depict the occasional accident, that type of case is actually quite rare compared with how often we are hired to help tell a visual story or conduct a mock trial.

Fortunately, with our litigation blog hitting 3,000 subscribers this week, I can begin to quickly set things straight. So in this post I'd like to provide as clear a description as possible of what most law firms pay us to do.

The term litigation consultant is a broad one. Many people use it to mean many things. We have written about this before and even produced an infographic to help explain the term. We use the term litigation consulting to collectively describe our three core services: jury consulting, litigation graphics consulting, and onsite courtroom technology consulting.

Still, these services are not evenly divided in our revenue makeup, and none of these terms really does a great job explaining our value added. So below is a list of 11 things, in descending order of frequency, that we really get paid to do.

1. Develop a Visual Presentation for Opening: At A2L we believe that most cases are won or lost in the opening statements. It's true because of the way juries reason, as my colleague Dr. Laurie Kuslansky discussed yesterday, and as we have written about in previous articles. Most top litigators share this belief, so they invest heavily in work getting this right. Since more than two-thirds of people prefer to learn visually, it is not surprising that top litigators spend countless hours getting ready to present an opening -- practicing it, developing litigation graphics and testing it.

2. Conduct a Mock Trial for an Upcoming Case: We spend a considerable amount of time every month conducting mock trials as well as preparing for them and reporting on the results. This is true both for jury trials and bench trials.

 

Click here to Downloada Free Litigation E\u002DBook

 

3. Develop a Markman Hearing Presentation: Because patent litigation has always led the industry in adopting the latest litigation consulting techniques, because patent case filings are rising at record rates and because one of our senior litigation consultants is a successful patent litigator, about half of our work continues to involve patent litigation.

4. Sit in the Courtroom and Run the Technology: Most of the time, we have a trial technician deployed or preparing to deploy to a trial, hearing or arbitration somewhere in the world. These talented folks are the technical wizards of the courtroom as we detailed in this article and others like it.

5.  Tease Out a Clear Theme or Story: As more and more litigators realize the value of storytelling in the courtroom, more trial lawyers hire us to help in this effort. We've built a Micro-Mock exercise that is tailored for this kind of work and we build storytelling into all of our visual presentations or mock trial recommendations.

6. Work with an Expert to Explain Something Visually: Experts are almost universally expert in explaining to other experts why they are correct. More challenging for experts is explaining to a judge or jury why they are correct.

7. Create an Animation: When I started our company 18 years ago this week, it was called Animators at Law. How far we have come. I started the firm in a rundown part of town, in a storage closet converted to an office. Today, we have personnel nationwide and this includes people in the animation business. We have created animations for airline disasters, to explain the failure of the levies in New Orleans and to demonstrate how certain technology works in countless patent cases.

8. Help Choose a Jury: We just published a great five-part series on jury selection. We write about this topic frequently, as it is something we do quite a bit of, usually in state courts. Here is a link to part one of that series.

9. Build a Model of Something: Technically, demonstrative evidence is anything that is not real evidence, but litigation consultants generally use the term to refer to anything used to help explain a point clearly to a judge or jury. One form of demonstrative evidence that is often overlooked are physical models or scale models. We just finished one this past week in a patent case that demonstrates the function of a key piece of technology.

10. Work to Refine Deposition Clips, E-Briefs & Building Trial Databases:  It's not exciting work, but the results of it certainly can be. Cutting depo clips is part of our regular work and is an essential part of going to trial. Building an electronic brief or e-brief is also an increasingly common task. The same is true for preparing the database of exhibits that will be shown at trial. When done correctly, any exhibit can be shown on a moment's notice. Normally, this work is conducted by our trial technicians.

11. All the Other Things: To be fair to A2L and other great firms like ours, we can’t sum up all that we do in only 11 steps. For a more complete list of other things we are doing as litigation consultants, have a look at 11 Surprising Areas Where We Are Using Mock Exercises and Testing and 14 Places Your Colleagues are Using Persuasive Graphics (That Maybe You're Not).


complex civil litigation graphics free ebook guide download

 

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


21 Steps I Took For Great Public Speaking Results

 


ken lopez a2l consulting presentation conferenceby Ken Lopez
Founder/CEO
A2L Consulting

Public speaking does not come naturally to me, but I know I can deliver good results -- so long as I am prepared. Last week, I spoke at a conference session of about 300 people, and here was a piece of feedback I received from one lawyer in the audience, someone I had never met before.  

"In more than two decades since I started studying and practicing law, I have seen 1000 experts speak in person on 1000 topics. Rarely do I feel compelled to write about a lecturer. Ken Lopez presented an incredible live program at the Inbound 2013 Conference, an event which attracted 5300 people from 35 nations. His advice stands out as unique and memorable - not only for attorneys - but for anyone in any business. Ken's phenomenal seminar proved that he is clearly the best at what he does."

Incredible, right? So how did I get such good results when public speaking does not come naturally to me? Here’s how.

My goal in telling you is to give you a sense of the level of preparation that we hope to see from most of our clients at A2L. After all, they have millions or even billions of dollars at stake in their presentations. I was merely giving a conference presentation where I was not likely to earn business or gain anything other than kind words.

First, some background on me. Even though most would describe me as outgoing, I am actually more introverted than extroverted. I simply chose, modeling my dad's behavior growing up, to adopt extrovert habits as I watched him win favors, airline upgrades and the best tables just by being outgoing and charming.

But, as long as I may have practiced acting extroverted, I still hate an event if I cannot connect meaningfully with one person. I actually prefer written communications to speaking, and I generally feel pretty awkward in a public speaking role. For the most part, my audience would not notice, but this is only the result of my hard work.

For the presentation I gave last week, I knew I’d be speaking to a group, half of whom knew more than me about the topic and half of whom knew less. Rather than try to research the topic extensively, I spoke simply about my experience. My topic, for what it's worth, was using publications like this blog to meaningfully connect with existing and future customers.

My scheduled talk was 40 minutes with 5 minutes of questions. Below are the 21 steps I went through to reach a great result.

Here is my exact preparation methodology. Where applicable, I make a comparison to trial preparation.

1. Getting Started (93 Days Prior to My Presentation): I became aware that I might have an opportunity to present at a high-profile marketing conference that I would attend anyway since I took on the Chief Marketing Officer role a couple of years ago.

2. Forced Early Preparation (90 Days Prior to My Presentation): I prepared a good but rough version of what I might present at a conference and presented it to a group of local CEOs. They were very happy with the content, and I indeed winged it for the most part with only a couple of practice sessions on my own. I got some valuable feedback from this group. This session was quite similar to the Micro-Mock session that we conduct at A2L, which I find helps trial attorneys gage how well their presentations are being received EARLY in the trial preparation process.

3. Theme Design (82 Days Prior to My Presentation): I worked with a person familiar with my actual audience to rough out my themes. In the trial presentation space, this discussion would be considered similar to my meeting with a jury consultant on a general topic.

4. Theme Decisions (62 Days Prior to My Presentation): I made the decision about what general topics would be included and those that would not be included.

5. Mind Mapping Session 1 (52 Days Prior to My Presentation): I use a technique called Mind Mapping that is useful for organizing most complex presentations -- whether an opening statement or a presentation like this.

6. Rough Outline (43 Days): I developed my first 12-point rough outline at this stage and shared it with my point of contact to solicit feedback.

7. Specific Outline (40 Days): Based on feedback from my point of contact, I refined my outline.

8. Mind Mapping Session 2 (37 Days): Whereas I had earlier only developed my mind map to the point where high level topics were fleshed out, I now took it to a deeper level and tried to consider the three points or so I'd like to make under each major topic.

9. Begin Graphics Work (33 Days): Although I had picked the designer I would be working with on my team a month before, we had our first serious walk-through of the subject matter about a month before I actually presented. He began work on a draft that was a combination of what I presented months before, what I developed in my mind map outline, and what he felt needed to be included.

10. Finalize First Presentation Draft (23 Days): I shared my first fully developed draft of the presentation with my point of contact at the conference.

11. Rehearsal 1 (21 Days): My first rehearsal via online meeting platform Go-To-Meeting occurred on this date with a couple of conference representatives.

12. Rehearsal 2 (20 Days): I believe that you are not really practicing unless you are practicing in front of an audience. I used a CEO peer group (my Vistage group) as my focus group for what works and what does not. I learned a lot.

13. Rehearsal 3 (19 Days): Another online presentation with my contact at the conference.

14. Graphics Refinement (18 Days): Although, there had been daily tweaking going on for two weeks, we did major refining of the graphics presentation at this point, mostly combining slides to cut out fat. As I always say, the slides you don't use are just as important as the ones that you do use.

15. Rehearsal 4 (14 Days): To help get new feedback, I invited 50 friends to one of 4 online practice sessions using Go-To-Meeting. This was the first. Each was attended by about 20 people. 

16. Final Presentation (12 Days): I finalized my visual presentation.

17. Rehearsal 5 (8 Days): I presented to an online group of 20 and collected feedback. I also recorded this session to watch myself and adjust accordingly.

18. Rehearsal 6 (5 Days): I presented to an online group of 20 and collected feedback. I made some mistakes at the beginning, so I used one of my favorite memory techniques to memorize the first two minutes for my next sessions. What I do is assign each key thought to a room in a structure I know well, and then I mentally walk through it as I am speaking. I have fond memories of the house I grew up in, so I use that. For example, the sound of the doorbell reminded me to "invite" my audience in, the foyer reminded me to tell them exactly what I wanted from them, and so on. It's a very useful memory trick.

19. Rehearsal 7 (2 Days): I presented to an online group of 20 and collected feedback.

20. Day Before: I got plenty of sleep, I drank lots of water and I used my voice as little as possible.

21. Day Of: I continued to use my voice as little as possible and practiced my 2-minute intro in my head, walking through my childhood home.

All told, I devoted roughly 50 hours to the preparation of a 45 minute presentation. I think this ratio of roughly 1 hour of preparation for every 1 minute of presentation time is appropriate for any high-stakes presentation.

For trial, a preparation timeline along these lines is possible but probably a bit too compressed, unless it is a small case. For a medium sized case, I would double the days I indicated for each stage. If it is a large case, I would increase the prep time by a factor of 3x to 5x the number of days indicated.

Notice that I did not start prepping what I had to say in PowerPoint, and neither should you.
 

Here are some related articles covering topics such as practice, trial preparation and making great presentations:

 

 

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