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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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7 Reasons Litigation Graphics Consultants are Essential Even When Clients Have In-House Expertise

 

 

litigation graphics consultants understandable clear storytellingby Ken Lopez
Founder/CEO
A2L Consulting

I frequently encounter trial teams that say things like:

  • "My client has some graphics capabilities in-house."
  • "Our client is a top expert in the field, so they want to explain the technology to the jury in their own way."
  • "My client wants to stand up at trial and use a flip chart to explain the science."

I hear these and other similar statements most frequently in patent cases and other science or technology-focused cases. On their face, there's nothing wrong with these remarks. However, sometimes the client's desire to be helpful interferes with the trial team's ability to try the case effectively. I empathize with these litigators. Nobody likes to say "no" to a client, especially when the desire to be helpful is partially motivated by budget concerns.

When I founded A2L nearly twenty years ago, the only meaningful competition we had in the litigation graphics and courtroom animation industries came from engineering firms who also supported trial teams. A2L's offering was very different. We brought artistic lawyers and litigators in to serve as litigation graphics consultants rather than using engineers.

My rationale was simple. Engineers may be very good at illustrating a point, but they are not especially good at persuasively making a point. For that, lawyers were best suited, and they could also rely on engineering, scientific or technical support from the client and experts as needed. Our model became synonymous with what we now commonly refer to as "litigation consulting."

It didn't take too many years before our competition morphed to look at lot like A2L, and those engineering firms eventually faded away. I believe the same principles apply when evaluating how or whether to use litigation graphics consultants when the ultimate client has significant internal expertise, even artistic expertise, in-house.

Just like those engineering firms A2L used to compete with, when support is offered by in-house resources at the client's firm, it is typically highly expert, highly trained and is useful for facilitating the illustration of a point in the courtroom. However, such in-house expertise, mostly scientists, engineers and technology experts, is not normally persuasion-oriented, and this group is almost always unfamiliar with what a fact-finder needs to see in order to find for the client.

In these situations, instead of an ideal client>litigator>expert>litigation graphics consultants>fact-finder flow of information, you end up with a highly imperfect client>expert>litigator>client>fact-finder flow that results in higher costs and worse outcomes. Here are seven reasons I think a trial team needs help from outside litigation graphics consultants no matter what kind of expertise the client's in-house people can provide.

  1. Well-founded discovery fears: Anytime the client is involved in trial presentation preparations, there is a risk that they will inadvertently generate new evidence that is subject to discovery. Since litigation graphics consultants are working for the law firm, these communications are protected from discovery.

  2. Storytelling assistance: With storytelling recognized as a serious persuasion tool, it is very helpful to work with litigation graphics consultants like A2L and others who are expert in helping trial teams craft a story. See 21 Reasons a Litigator Is Your Best Litigation Graphics Consultant. No matter how expert a client is in the underlying subject matter of a case, they are not likely also presentation experts, persuasion experts or storytelling experts.

  3. Fresh set of eyes: This cliché is one of the primary reasons trial teams use litigation graphics consultants at all. When you've lived with something for a long time as a trial team does and as in-house personnel at the client do everyday, it helps to hear how experts like trained litigation graphics consultants approach the same information.

  4. A forest perspective: Closely related to the fresh pair of eyes concept, a litigation graphics consultant is not burdened with all the details when a case is presented to them. Accordingly, they are able to hear it in a way that is similar to the way a juror will. Usually, neither a trial team nor any one from the client is able to step back far enough to get out of the trees and really see the forest in the same way a jury will.

  5. Mock trial testing: Firms like A2L are not just litigation graphics consultants, but are instead full-service litigation consulting firms. One key component of a comprehensive litigation consulting firm is the ability to conduct mock trials and provide mock trial analysis of the effort by a Ph.d.-level expert. Obviously, this is not going to be an expertise offered by the client's in-house team. Testing of how a judge or jury will react to a case is critical in large cases as are testing the visuals that will be used. See 7 Reasons In-House Counsel Should Want a Mock Trial and 10 Things Every Mock Jury Ever Has Said.

  6. Persuasion science is moving fast: Great litigation graphics consultants are experts in the science of persuasion. I suspect this group of people numbers fewer than a couple of dozen people nationwide. Since your goal at trial is to persuade the fact-finders, you really want every persuasion advantage you can find. It is not realistic to expect that you will find this expertise at the client firm or even inside most law firms for that matter. See Could Surprise Be One of Your Best Visual Persuasion Tools?Font Matters - A Trial Graphics Consultant's Trick to Overcome Bias6 Studies That Support Litigation Graphics in Courtroom Presentations5 Ways to Apply Active Teaching Methods for Better Persuasion, and 8 Videos and 7 Articles About the Science of Courtroom Persuasion.

  7. Masters of PowerPoint: A litigation graphics consulting firm can run circles around mere PowerPoint users as one of our most popular articles, 16 PowerPoint Litigation Graphics You Won't Believe Are PowerPoint, and one of our most popular webinars, Using PowerPoint Litigation Graphics for the Win, demonstrate. This kind of work takes real time to develop. Just because a client can generate some imagery does not mean it can generate persuasive imagery or put it together in a way that is going to align with the decisions we're asking our fact-finders to make. At the end of the day, it is not about pictures, it is about presentation, and those two things are entirely different (if you're an expert).

Other articles and resources related to using litigation graphics consultants 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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Planning For Courtroom Persuasion? Use a Two-Track Trial Strategy

 

 

two track litigation strategyby Ryan H. Flax, Esq.
Managing Director, Litigation Consulting
A2L Consulting

How early in the litigation process should you think about how a jury will react to your case, your client, or you? When should you begin to develop your case themes and storylines? Which is more important to your chances of winning a trial – having a compelling story to tell, or bringing in solid evidence under the law? Here’s an easy one: When you get to the appeal, would you rather be writing the red or blue brief (hint: it’s the red one for respondents)?

What I encourage in this article will seem elementary to the best litigators, but I’m writing from experience when I say that many trial attorneys fail to properly develop the necessary two-track strategy for their case – and lose because of it.

The Two-Track Strategy

What begins at the early stages of case preparation as a single track, which includes general case building, wrapping one’s mind around the full scope of the relevant law, filling in the useful facts where they are needed and identifying the harmful facts, must quickly change to a two-track strategy directed towards both a jury presentation and a solid evidentiary record. (Although this article is focused on courtroom persuasion in jury trials, it also applies well to a bench trial to a judge, an arbitration to a panel, or a mediation before a mediator, which are all forums with an audience of human beings.)

These two tracks clearly do not occupy the same route, but both are essential to winning.

The “Law Track”

Most attorneys, especially those closer to their law school graduation than to retirement, are more familiar with one of these two tracks than the other -- the creation of a solid evidentiary record that is focused on a winning defense on appeal. We’ll call this track the “law track.” That’s because it’s the track that is most heavily burdened with law and facts, which is what we are taught in law school: we were tasked daily with reading and briefing cases and statutes and being prepared to recite legal requirements when called upon by our professors.

Most attorneys approach their cases in this same way – by identifying what the court of last resort has to say about the relevant law, i.e., what must be proved for them to win in the eyes of the court, ordinarily by fulfilling all the “prongs” of the case law. Then these attorneys slowly build up their “garden of weeds” around the case, based on these issues.

These same attorneys focus on every fact they can soak up to decide where it fits into their legal position, they build preemptive defenses relating to any “bad” facts, and they search for hidden facts to support alternative theories of their case. This is very important because it’s the foundation of any case. But it’s not the only or even most important part of building a case for trial.  Moreover, as the “garden of weeds” grows and grows as discovery develops, it’s often very difficult for even the sharpest attorneys to extricate themselves from the weeds and see the bigger picture of the case they’re about to try.

So, in addition to the “law track,” what else should a trial lawyer consider?

The Persuasion Track

The other of the two tracks, and the one that many litigators tend to overlook, is building a case to satisfy a jury (or judge in the event of a bench trial) in a “real life,” non-legal sense. I call this the “persuasion track.”

After all, trying a case in court is something like making an extended elevator pitch for your client, and you need to make sure that the jury wants to hear it and that the jurors will be affected by your pitch in the way you intend.

Often, a litigator will spend too little time, or none at all, on this courtroom persuasion track. Most litigation teams tend to wait until the last minute before trial (often in the war room outside the courthouse) to really put their story together in a way that will be persuasive to jurors.

I have found that during trials (and mock trials), juries tend to find relatively few facts very interesting and “important” and that they then base the entirety of their decisions in the jury room on those few facts. There is a well-known psychological phenomenon called confirmation bias, which is the tendency to interpret new evidence as confirmation of one’s existing beliefs or theories.  After observing many mock trial exercises and seeing the results of dozens of jury trials, I have concluded that most juries tend to decide the outcome of a case in the first few minutes of opening statements and then use facts that fit their version of the case as reasoning in deliberations (the strongest or loudest or pushiest jurors typically triumphing in these deliberations).  Attorneys need to recognize this and to develop their trial story around the key facts onto which jurors will tend to latch.

If you don’t win at trial, you’ve got the short end of the stick when you head to post-trial arguments/motions and appeal. You must carefully develop your case along the persuasion track to plan to be successful on the second, law track.  The question now is, how is this done? That will be the subject of my next article.

*This article updates a 2012 article and lays the groundwork for a more detailed explanation of the two-track strategy in subsequent articles.

litigation consulting graphics jury trial technology

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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Mock Trials: Do They Work? Are They Valuable?

 


do mock trials work value juryby Elise Jefferson, M.A.
A2L Consulting

One might think it would be easy to run an experiment that could definitively conclude that mock trials are effective at predicting the outcome of a trial. If one could, it would solidify the value of mock trials in the eyes of litigators and consultants, and it would make mock trials a nearly mandatory part of the trial preparation process.

However, like many areas of trial preparation, mock jury trials are complex and involve an almost infinite number of variables. Because of this, it can be difficult to isolate a single dependent variable for study, while controlling for all of the other factors that may affect an experimenter’s ability to conclude that there is a causal link between the variable that was manipulated and the outcome of the trial.

Therefore, the question remains as to whether or not mock trials are at all effective. After all, if there cannot be a direct causal link drawn between a variable and the outcome, then how can one say that mock trials are worthwhile?

Historically, instead of attempting to address the overall question of the effectiveness of mock trial simulations, psychologists have focused their study of mock trials on what information can be gleaned from the mock trial process. Studies of the process have illuminated the many valuable aspects of mock trial simulations.

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The strength of the evidence presented in a trial has been shown to be one of the highest predictors of jury outcomes. Studies have found, not surprisingly, a positive correlation between evidence strength and liability or determinations of guilt (Devine et. al., 2001; Winter & Robicheaux).  As such, it is prudent for attorneys to use the mock trial process to evaluate how a jury or judge receives their evidence, in comparison to the opposing side’s evidence. In psychological research, the definition of “strength of the evidence” varies based on the study, with some studies using the quantity of evidence as the independent variable and others using the quality of evidence (Devine et. al., 2001; Winter & Robicheaux).

A study conducted by Taylor and Hosch (2004) found that the strength of prosecutorial evidence in criminal cases was strongly correlated to the defendant’s likelihood of facing conviction. This finding can be applied to civil trials, because when a jury is determining whether the preponderance of evidence requirement has been met, they will consider the quantity of evidence in order to come to their conclusion. Therefore, litigators can reliably use mock trial simulations to determine whether or not their evidence is strong enough to warrant going to trial in civil cases.

As mentioned in several articles on the A2L website, mock trials can assist in the fine-tuning of story formatting and presentation. There are multiple theories surrounding juror decision making, including both mathematical and explanation-based approaches. The most relevant explanation-based approach focuses on the use of a story model to explain the facts of a case to jurors. The story model states that jurors typically assimilate trial evidence into a story format (Winter & Robicheaux). As such, attorney presentation style should be geared toward making it easier for jurors to put the evidence into the story format. Litigators can test the effectiveness of various story formats through the use of a mock trial simulation. A study conducted by Pennington and Hastie (1988) found that jurors were more prone to decide in favor of the side that used a story format, as opposed to requiring jurors to construct their own story from those told by witnesses presented in a random fashion. Therefore, it is important for attorneys to consider what story best fits the evidence they will be presenting. Mock trials can be used to determine which story jurors are more likely to believe and determine how that story lines up with their knowledge of how the world works. A2L offers a storytelling webinar and an e-book focusing on storytelling in litigation.

The ability to definitively label mock trial simulations as completely accurate in predicting trial outcomes would require extensive research and controlled experimentation. Until such research is undertaken, studies show that mock trials can be extremely helpful in helping attorneys develop a strong case. These simulations can be especially effective in determining the strength of the evidence and selecting the appropriate story format.

Other useful articles related to mock trials, jury consulting and litigation consulting on A2L Consulting's site:

jury consulting trial consulting jury research

About A2L Consulting

•  Leading national litigation consulting firm since 1995

•  Personnel nationwide

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

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

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

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

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 13 Biggest Reasons to Avoid Last-Minute Trial Preparation

 

 

trial preparation litigation consultantsby Ken Lopez
Founder/CEO
A2L Consulting

When someone first works in the litigation consulting industry, the last-minute nature of trial preparation very often shocks them. In my experience, about half of all trial teams spend months or years preparing and testing themes, rhetorical strategies, and different approaches to their visual trial presentation. The other half of trial teams jam all trial preparation into the last month or two before trial.

No one approach is right for everyone, and I have certainly seen both approaches work well. After all if you are forced to prepare at the last minute, you're forced to simplify a case, and that's a good strategy for bench and jury trials. On the other hand, the ability to test and refine elements of the case is now a real science, and any case can benefit from a mock trial, the recommendations of litigation experts and other sophisticated testing.

While both strategies can work, when possible, I think slow and steady trial preparation wins the race more often. Still, we do great work in the last month before trial all the time, and sometimes there is just no other option. For those times when you have a choice, below are 12 reasons why last minute trial preparation might just set you back far enough to warrant starting now.

1. Last-minute costs more. I fear that some litigators believe that fewer hours available means lower cost for trial preparation. The opposite is usually true. Last-minute means your litigation consulting consultants have to use available staff rather than the ideal staff for a project. Often this leads to the use of more expensive staff and higher costs. Further, last minute trial preparation normally means using many more people to achieve the same result within a safe margin of error.

2. Building a good story takes time. We've written quite a bit about storytelling in the courtroom, we've published a book about storytelling in litigation, and we even have a webinar you can watch any time devoted to courtroom storytelling. The connection between storytelling and persuasion is a close one as scientific studies are increasingly proving. Unfortunately, like a fine wine, crafting a persuasive story is not something that should be rushed.

3. Maximizing persuasion in your litigation graphics takes time. Anyone can make a PowerPoint presentation quickly using a template and a few bullet points. However, as I wrote recently, Good-Looking Graphic Design ≠ Good-Working Visual Persuasion. If it's done well, it will be hard to do, require expertise and it will take time. I've written before about how the litigation graphics you don't use contribute enormously to your presentation, and an indicator of a good presentation is how full your trash can of unused litigation graphics is. To get to the point where you can reject some and keep others requires time for the creative process. See also, 16 PowerPoint Litigation Graphics You Won't Believe Are PowerPoint.

4. Getting your trial technology configured takes time. Rush or ignore your technology set up and months of preparation can be for naught. There's no winning back your credibility after a technology flub, a courtroom delay or an outright technological failure.

5. Mock trials really work. Mock trials are not about predicting precisely what will happen at trial as many lesser jury consultants might suggest. Rather, mock trials are useful for understanding how a judge or jury will react to the case, learning how an expert will perform, learning from practice what really works in your approach, learning your ideal juror profile, understanding your opposition's case and for helping to find those levers that will give you an edge at trial. See 7 Reasons In-House Counsel Should Want a Mock TrialWhy Do I Need A Mock Trial If There Is No Real Voir Dire?, 6 Good Reasons to Conduct a Mock Trial and 11 Problems with Mock Trials and How to Avoid Them. We have done a mock trial two-weeks before trial, but it is not an ideal approach. It is normally best to complete your final mock months before trial to give time for analysis and adjustment.

6. You wouldn't play a World Cup game without practicing (Congratulations to the U.S. team for advancing to the final 16 today!), why would you go to trial without some serious practice? See The Magic of a 30:1 Presentation Preparation RatioThe Very Best Use of Coaches in Trial Preparation3 Ways to Force Yourself to Practice Your Trial Presentation, and Practice, Say Jury Consultants, is Why Movie Lawyers Perform So Well.

7. Failing to understand the courtroom layout is a problem. Every court is different. Some will not accommodate an electronic presentation. Some do not easily accommodate a printed trial board. Some judges won't allow either. If you don't know these things in advance, you're setting yourself up for trouble and this all takes time to sort out.

8. There's every chance you'll win or lose in opening, so it's critical to get it right. See 6 Reasons The Opening Statement is The Most Important Part of a Case. Taking time to prepare your opening using modern approaches for drafting an opening statement requires ample lead time. See 7 Ways to Draft a Better Opening Statement and How to Structure Your Next Speech, Opening Statement or Presentation.

9. Too much gut. When trial preparation time is limited, a litigation team has to rely too heavily on its gut instincts and not enough on a scientific analysis of what will work. The good news is that successful litigators have the best people-focused gut instincts I've ever seen. However, great instincts coupled with great analysis, science, an outside perspective and modern trial expertise are always better.

10. You'll never be as confident as when you're well-prepared. Many in the litigation industry are great actors when it comes to feigning belief, indignation, and passion. It's part of the job. However, people can read subtle clues. If you're truly prepared and you know you are, confidence will come through. There's just no substitute for it, and it's not something that can be downloaded Matrix-style.

12. Settlement is less likely. As my colleague Dr. Laurie Kuslansky wrote in Don't Be the 2% - 6 Ways to Encourage Settlement with Trial Prep, there are so many ways to prepare for a case that simultaneously encourage settlement. When you prep a witness and test them and when you run a mock trial and understand strengths and weaknesses of a case, you are necessarily in a strong position to consider settlement. These steps take time.

13. Fewer Choices: When a student skips college, there's no reason they can't be as or more successful than a college graduate, but their options for success are more limited. The same is true with trial preparation. A trial team who waits until the last minute to prepare has fewer choices for how to prepare. I always prefer more choices, and I think most litigators and clients feel similarly.
 

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Other A2L Consulting articles relating to trial preparation, litigation graphics and mock trial work:

 

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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Mid-2014 Economic Outlook for the Litigation Industry

 

 

legal industry economics litigation consultingby Ken Lopez
Founder/CEO
A2L Consulting

Over the past couple of Decembers I've written articles offering an economic forecast for the coming year with a focus on litigation. These writings serve both to spread useful information to the legal industry and to help me to plan A2L's budget for the coming year. I thought a mid-year update might be valuable in these challenging economic times.

One might reasonably ask, if the focus is litigation, why would one look at the economy as a whole? First, there is no reliable litigation spending index that I am aware of, and second, my observation is that big-ticket civil litigation largely tracks the economy. When the economy is growing, litigation spending goes up. When the economy is shrinking or there is economic uncertainty (e.g. terrorist threats, massive changes to entitlement programs, election years etc.), cases settle and litigation spending shrinks.

While there are plenty of exceptions, many of A2L clients are large law firms with large corporations as customers. Large corporations are especially reactive to economic shifts. Indeed, for the most part, they are the economy, with Fortune 500 revenues now roughly equal to 78% of U.S. Gross Domestic Product (important note: not all of these revenues count toward U.S. GDP, such as overseas sales, so the actual percentage of GDP is much lower).

For the past 10 years, I've been watching one composite leading indicator from ECRI that does an excellent job of predicting the economy 6-9 months in the future. Last December, I observed that the U.S. economy was generally in a downtrend and that 2014 would look a lot like 2013 for litigation. That's largely held true unfortunately, and the economic news out today showing a massive Q1 contraction (revised way downward) is simply shocking. Perhaps though, there is a bit to be optimistic about.

Looking first at the bad news, in the first quarter (last quarter), we all saw the economy shrink by a historic 2.9%. To put that into perspective, look at the chart below to see the last few points in time we saw a contraction at or worse than today's level.

gdp contraction chart q1

That's right. The first quarter of 2014 is similar to points in 2009, 1991, 1983 and 1981. Yikes. That's pretty bad. To make matters worse, both the Federal Reserve and the Congressional Budget Office are forecasting painfully lackluster growth in the 2% range for the foreseeable future.

The only bright spots I am seeing are a meaningful uptick in the leading indicators and anecdotal evidence that our litigation practice is busy and looks to be setting up for an even busier 2015. We already have quite a number of mock trials being scheduled in 2014 for 2015 trials. Looking at the charts below, you can begin to see the difference between December's outlook and today's outlook. To quickly understand the charts, know that the green line represents a forecast about 8 months in the future from the date below any point. The blue line represents what actually happened at a given point in time in the economy. Even more simply, up is good, down is bad.

Last December 2013:

litigation market forecast 2014 ecri

Now (June 2014)

June 2014 economic outlook

The takeaway from the leading indicators here is this: In December of 2013, a downturn was forecast to continue (green line, upper chart). That downturn is reflected in the blue line in the lower chart stretching from October 2013 to March 2014. A modest uptick is forecast (green line, lower chart) that appears to run from roughly May 2014 through at least the end of the year. Let's hope that picks up steam.

For litigation, I would say things look slightly better than a year ago and much better than they did six months ago. The Q2 GDP number will be one to watch after it is revised a couple of times. I'm sure it will come out positive initially (they always seem to lately). The question will be whether it is revised to be negative later this year. If so, we would have two consecutive quarters of negative growth - an official recession. If that happens, you can bet Fortune 500s will cut back. They'll likely cut back on litigation modestly based on the Q1 number and wait for good news. If Q2 comes in negative, litigation spending cuts will likely get even deeper.

Articles related to the economics of the litigation market, law firm sales, pricing and more on A2L Consulting's site:

litigation consulting graphics jury trial technology

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 Ways Prepping for Trial is Like Being a Dad of Triplets

 

 

triplet dad trial prepby Ken Lopez
Founder/CEO
A2L Consulting

Happy Father's Day to all the dads out there.

As a dad of triplets, I have a unique perspective on fatherhood.

Sure, there are many dads with many more kids, but until you've had to learn how to feed three infants simultaneously, how to keep track of three similar-looking people in a crowd, or how to negotiate a quick settlement in a heated dispute over who will wear that special dress over the coming week, you just have not lived the life of a triplet dad.

As I head into Father's Day weekend, I'm thinking about all of the questions I regularly get asked by friends and strangers alike. Are they triplets? Are they all yours? How do you do it?

The 'how do you do it' question in particular reminds me of the work we do as lawyers or as litigation consultants engaging in trial preparation. So, it is with a blend of tongue firmly planted in cheek and with some real-life lessons that I share the 9 ways that trial preparation and trial itself are similar to being a triplet dad.

  1. Storytelling is essential: Just as my six-year-old girls are mesmerized by my nightly reading of Harry Potter, your jury will best be persuaded if you incorporate storytelling into your trial presentation. Here's a free book we've written about storytelling and here is a free webinar on litigation storytelling you can watch anytime.
     
  2. Outsource to experts: Similar to the way my wife and I relied on a triplet baby nurse to help our premature infants get a healthy start in life and to learn to sleep through the night, it is best to rely on outside trial experts who go to trial dozens or even hundreds of times per year for jury consulting, litigation graphics, persuasion consulting and trial technology consulting.

  3. If it's working, don't change it: One thing I learned early on in fatherhood was that if three kids are happy, don't change anything. I often see many parents interrupt a perfectly content child to get them to do something else, and I don't get that unless you disapprove of what they are doing. The same is true for trial preparation. If you are consistently successful using a particular approach, why change it? If you think times are changing and you need to adapt, then do so before you get a bad result. Claiming a free subscription to this litigation blog is a good way to stay one step ahead.

  4. Don't lose your cool: Whether you are parenting or whether you are working with your trial team on the eve of trial, you just can't lose your cool with so much at stake. Here are some good resources that can help: 10 Signs the Pressure is Getting to You and What to Do About It and When a Good Trial Team Goes Bad: The Psychology of Team Anxiety.

  5. Prepare for the unexpected: Just as one must prepare for the unexpected on a family outing, your trial preparation is only good to the degree that you've tested it's weak points. This is why we advocate for highly-structured mock trials. There is no better preparation tool available for a serious litigator. Here are five great resources related to mock trials:
     
    1. 6 Good Reasons to Conduct a Mock Trial
    2. 7 Reasons In-House Counsel Should Want a Mock Trial
    3. 12 Astute Tips for Meaningful Mock Trials
    4. 11 Problems with Mock Trials and How to Avoid Them
    5. 10 Things Every Mock Jury Ever Has Said
       
  6. Scheduled events make for smooth sailing: Sometimes I think both trial preparation and parenting are conducted on too much of an ad hoc basis. My wife works in real estate which can take up large chunks of some weekends. As she does when I am working, I plan activities in the outdoors or at any one of thousands of interesting places to go in the DC-area. The kids have fun, they usually learn something, and I have fun. Contrast this with an ad hoc approach of waking up and waiting until the last minute to decide what to do. It rarely generates good results. The same is true for trial. Perfect planning prevents poor performance. Use our one-year from trial calendar to plan your mock trial schedule and other trial preparation to take an organized approach to trial prep.
     
  7. Use compelling and persuasive visuals: Whether kids, a jury, your colleagues or the general public, learning how to teach and persuade with visuals is critical since more than two-thirds of the people prefer to learn this way. Here are five great resources related to litigation graphics:
     
    1. 16 PowerPoint Litigation Graphics You Won't Believe Are PowerPoint
    2. [Download New E-Book] Using Litigation Graphics to Persuade
    3. Persuasive Graphics: How Pictures Are Increasingly Influencing You
    4. Good-Looking Graphic Design ≠ Good-Working Visual Persuasion
    5. 16 Litigation Graphics Lessons for Mid-Sized Law Firms
       
  8. Don't be afraid to go outside: The picture above is of my kids when my wife and I were headed out for date night recently. The kids are sad to see us go, but as any parent knows, spending time as a couple is critical for parental happiness. For those preparing for trial, the lesson here is to remember to get outside of your daily routine and daily circles when preparing for trial. Talk to litigation consultants, talk to your colleagues and talk to your family about the case. It's amazing how commonsense insights can go overlooked when one is too in their own head.
     
  9. Celebrate success and remember time flies: In the context of trial, my favorite trial teams are those that schedule a thank you lunch, take our people out for drinks or even give us post-trial mementos to remember the great work we did together. The litigators who lead these teams are the best in the business. They know that recognition and a kind gesture creates loyalty for life. In the parenting context, I'll highlight something one of my friends did recently. Seeing his daughter growing up fast, he wrote her a song. Then, in an effort to connect more deeply with her, they flew to Nashville, they rented a studio, they hired a band and they recorded the song. They did something similar for a video. For all the dads out there, but especially those with daughters, the video below is heartwarming and a good reminder to cherish the time you have, celebrate the people around you and make the everyday moments count.

I hope this article provided some useful reminders. Happy Father's Day.

 

About A2L Consulting

•  Leading national litigation consulting firm since 1995

•  Personnel nationwide

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

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

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

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

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

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


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The Top 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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Integrating Expert Evidence and Argument in Complex Cases 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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Why Do I Need A Mock Trial If There Is No Real Voir Dire?

 

 

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

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

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

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

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

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

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

What does “no real voir dire” mean?

There are several typical scenarios for voir dire:

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

2)    Counsel can use an extensive written jury questionnaire

3)    Counsel can ask a few questions directly

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

jury consulting trial consulting jury research

 

 

About A2L Consulting

•  Leading national litigation consulting firm since 1995

•  Personnel nationwide

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

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

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

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

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:

deliver great presentations inside and outside of the courtroom

 

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:

  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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