The Litigation Consulting Report

13 Revolutionary Changes in Jury Consulting & Trial Consulting

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by Ken Lopez
Founder/CEO
A2L Consulting

I believe that jury consulting has been done the wrong way for 40 years -- at least the way most people do it. I want to share some new ideas, best practices, beliefs and around-the-corner thinking about trial consulting (a/k/a jury research, jury consulting, litigation consulting).  If you can see how trial consulting is changing and will change, you will see how it has become more valuable than it was even five years ago and how bright its future is.

Why do I think there is a jury consulting problem?  I had a potential client say to me recently, “We need your trial presentation help, but I want you to know that I don't believe in jury consulting.” He was surprised when I said, “I agree,” because I knew what he meant.

To clarify a key point: I was very proud when A2L Consulting was recently voted the #1 jury consulting firm by the readers of Legal Times. Our jury consultants are amazing industry veterans, they do amazing work, and obviously the legal marketplace agrees with me -- but they don't do it exactly the same way people did it 10, 20, 30 or 40 years ago. That's why I believe we’re being recognized on the national stage so often for both jury consulting and litigation graphics consulting, separately.

When that client pushed back on jury consulting, I deeply empathized. It turns out that jury consulting, as it is largely perceived and has largely been conducted, is the kind of thing that you either believe in or you don't, and everyone who has an opinion is pretty sure they are right.

Like many of you, I've watched countless mock trials, focus groups and related events, and they mostly look the same, right? Jurors are recruited, arguments are made for both sides of the case, jurors are sent to various rooms, and we consultants and litigators run between poorly decorated one-way mirrored rooms or hotel suites collecting insights from the deliberations. At the end, we gather around the jury consulting guru and are offered early words of wisdom -- weeks before we get the final 200-page report.  Don't get me wrong, we learn a lot from this process, we win cases because we do this work, and cases get settled because of what happens in these dark rooms. And so it's been done for 40 years.

But, 40 years ago, seat belts were just catching on, you smoked at the doctor's office, and we used the miracle-like asbestos everywhere we could. We've improved those things, right?  So, why is it that most jury consulting organizations are conducting jury research efforts roughly the same way they did in the 1980s or 1990s?  Where's the improvement?  How have they evolved with the changes in the litigation landscape?  Remember when e-filing was “new”?  Or when discovery wasn’t done electronically?  The old arena is forever changed, and we must change to remain relevant.

We and some other leading jury consultants are doing some amazing work in this area, and we are changing the field for the better. In the sincere spirit of elevating the industry, here’s a behind-the-scenes look at some of the work we are doing and at some of the advances you can expect to see soon.

1. Blending of Testing Between Litigation Graphics & Arguments: There is broad scientific consensus that the majority of jurors learn best visually. I have seen a single graphic win a case. Yet, it is beyond perplexing to me that most jury consulting firms neglect to seriously test (or test at all) visual presentations during mock trials. Few meaningful suggestions for graphics come out of most jury exercises. This is, thankfully, changing, and we wrote about the need for testing trial graphics in mock trials in 2011. 

2. Biometric Testing: We're testing a variety of objective biometric measures -- not people pushing a silly little button when they like something for a moment -- to measure sentiment and real reactions to arguments and graphics. Marketers have been using this approach for years, and we're in the testing stages of bringing this to the legal industry. Expect to see more of this in the future.

3. Massively Distributed Argument Testing: If there is a theme of this decade in business, it is disaggregation, and I love it.  We're getting rid of middlemen everywhere from entertainment to car dealers to computers to art. The same is true in jury consulting. Increasingly, we are able to use venue-specific groups of people to test narrow slices of a case and then ‘reassemble’ those results to get a sense of reactions to arguments, evidence and graphics without revealing the overall context of our inquiry to protect confidentiality. This is cutting-edge work, and you can expect to hear more about this from our firm.  Maybe you just want to know whether or not your defendant should testify, or whether to put on alternative damages, or decide which expert is better received.  No need for the Full Monty.

4. Near-Real Time Testing: Social media, the Internet and the rise of crowdsourcing have given rise to a virtual social computer that is the minds of thousands or millions of people. With tools we are using now, we can ask 10,000 people in a particular venue which litigation graphic tells a particular story best and have an answer in minutes, not days or weeks, with a robust sample size.

5. More Easily Targeted Demographics: Social media allows us to quickly identify a group of forty-ish women in a small Midwestern town who prefer one political party over another. Now, not every potential juror is on social media, but we know a certain percentage will be. And, the better we can replicate the demographics of a jury pool, the better we can test a case.  Perhaps you are especially concerned with people most like your opposing party.  It no longer has to be a theoretical inquiry – it can be tested rapidly and cost-effectively.

6. Blending of Services & Service Providers: There used to be jury consultants and there used to be litigation graphics consultants and there used to be image/acting/communication consultants all serving in their various silos. Now, these are either found under one roof, or you have a problem.

7. Cost Efficiency: With most jury consulting efforts in large civil cases costing in the multiple six figures, there is a compelling need to achieve cost efficiencies by offering tiered services and utilizing technology.  We're doing both, using tools like our micro-mock and creating custom research designs that fit the needs and the budget.  For 40 years, most providers have had cookie-cutter formats that are used over and over, but that’s no longer the way to go.

8. Moving the Focus to Practice: I think there was real hope when jury consulting started back in the 1970s and 1980s that it would reliably predict the outcomes of cases, but I don't think you'll hear many credible jury consultants suggest this anymore. We do learn a ton from each exercise, however, and this provides enormous value to clients. I think we should be spending more time on something simple that mock trials help with -- practice.  As my colleague Ryan Flax often says, we call it the practice of law, but there is very little practicing going on.  I think that's brilliant.  With his clients, he is encouraging more practice through a variety of unique events that are not as pricey as a full-blown mock exercise. By using a savvy outside consultant who can observe, critique, and help improve the form and substance of presentations and the visual support that bring them to life, a fortune can be spared instead of spent.

9. Data, Big Data and More Data - I frown on the term “big data.” I think it is a silly rebranding of something that's always existed. That said, as we now have tools that allow us to process large datasets, we can now do more with the data we collect.  This includes analyzing arguments, word use, comparing various graphics options to find a winner - just as marketers have been doing for decades - and now in near-real time.

10. Predictive Beliefs Based on Social Media: Did you know that you can reliably predict someone's personality and behaviors if you have access to their social media?  Well, it's true. We can tell you how someone is likely to vote, whether they'll likely be a smoker, or how they'll feel about environmental issues. They don't even have to talk about these things on Facebook directly. We can actually predict their behavior if we have enough data. This knowledge will be used in jury selection and to help move public opinion on various issues.

11. Longer Term Opinion Shifting: Increasingly, our work is focused both on litigation and on issue advocacy, and increasingly they are linked. So, when we are asked to help shift public opinion on an issue, we have to measure it. With the tools we have available to us, we can reliably measure public opinion on an issue over time. As litigation, public opinion and legislative action come closer to one another with time, expect to see more and more law firms directing this type of work.

12. Judge Consulting: I think we've done as many mock bench trials in the past three years as we have mock jury trial exercises. I'm still not even sure what to call the service. Obviously, it's not jury consulting, so I guess we'll call it trial consulting. As more and more data is available about judges, it becomes easier to simulate the environment of a bench trial, and so that's exactly what we're doing here, even in appellate arguments.

13. Earlier Evaluation:  Considering that 98 percent of cases settle before trial, the optimal timing to involve outside experts to evaluate and troubleshoot a case is in discovery when there’s time to shape the arguments, attacks, and prepare for depositions better – where the real battle is actually being waged and the groundwork laid for dispositive motions. That’s the time to bring in a trial consultant.

About A2L Consulting

•  Leading national litigation consulting firm since 1995

•  Personnel nationwide

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

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

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

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

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

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


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Top 15 Articles from Q1 2013 in the Litigation Consulting Report

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• Trial tactics
• Jury consulting
• Litigation graphics
• Trial technology and its best uses
• Leadership for lawyers
• And much more

In this retrospective article, we look back at the articles we published last quarter and point to those that received the most online visitors.  We’ve listed the top 15 below in descending order of their popularity among Internet users.

What I find interesting about this list is how interested our readers were in social media and how it affects the practice of law. Four of the top six articles in the list deal directly with various social media and their impact on law and litigation. Our readers, like many lawyers and observers of the legal scene, are clearly fascinated by the way in which Twitter, blogs, Facebook, YouTube, and other media are changing the daily life of attorneys. Pinterest, which is growing rapidly but which doesn’t yet have a clear impact on the legal scene, ranks ninth on the list.

It’s therefore no surprise that we recently released the Social Media Guide for Litigators and Litigation Support. It is a fascinating topic, our book is a good read, and our readers are clearly interested -- with hundreds downloading the guide in the first few hours of its release. We have little doubt that the story of social media and litigation is only in its very first chapters. Lawyers, litigation consultants and trial technicians are only beginning to tap the resources that are available and to come up with more and more creative ways to use social media in their daily lives.

Here is the list of the top 15 articles in the first quarter of 2013.

1. The 50 Best Twitter Accounts to Follow for Lawyers and Litigators
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2. The Top 14 Blogs for Litigators & Litigation Support Professionals
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3. The 12 Worst PowerPoint Mistakes Litigators Make
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4. 10 Outstanding YouTube Channels for Litigators and Litigation Support
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5. 20 Great Courtroom Storytelling Articles from Trial Experts
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6. 21 Valuable Facebook Pages for Litigators and Litigation Support
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7. 5 Signs of a Dysfunctional Trial Team (and What to Do About It)
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8. 3 Ways to Force Yourself to Practice Your Trial Presentation
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9. 8 Videos and 7 Articles About the Science of Courtroom Persuasion
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10. 10 Pinterest Pinboards for Lawyers, Litigators & Litigation Support
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11. [Free E-Book] The Complex Civil Litigation Trial Guide
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12. 5 Problems with Trial Graphics
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13. [Free E-Book] The Litigation Support Toolkit - 2nd Edition
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14. Introducing a New Litigation Consulting Service: the Micro-Mock™
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15. [Free Litigation E-Book] Storytelling for Litigators
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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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10 Key Steps After: "I've Got a Case I Might Need Help With”

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What happens next is not something that I have discussed publicly a great deal. But there’s no reason not to. It actually represents a well-honed process that we have developed over the last 18 years that helps trial teams try cases more effectively. Our process is unique and special.

I want to share an overview of that process, because when you understand it, you can appreciate how we, as jury & trial consultants and as trial graphics experts, help many of the top trial lawyers in the nation prepare for trial.

Step 1: We request as many documents as will be helpful and relevant – pleadings, briefs (both sides), outlines, proof charts, key pieces of evidence, bad docs -- anything that has been developed by the trial team that will be useful in proving their case.

Step 2:  We conduct an initial brainstorming session, sometimes using mind-mapping tools. Our goal is to understand the case and appreciate its basic strengths and weaknesses. This helps us craft a recommendation about how we should use mock trials and demonstrative evidence in our trial preparation.

Step 3: We meet with the trial team to hear the case from the team’s perspective. Very often we learn at this meeting that certain points warrant more emphasis than others in the trial presentation. We also find out what the key strengths and weakness of our client’s case may be, as opposed to what they may have said in their briefs. Litigators will often tell us that this step was critical to their success as it was the first time they had to try to convince someone of the merits of the case, and we helped them do this much earlier than they would have naturally done.

Step 4: We return to our office and form a team generally comprising between three and 10 people. The team will be made up of some combination of Ph.D. jury consultants, former litigators, information designers, trial technologists, and others. Then we organize a formal brainstorming session that includes members of this team as well as others from A2L who have no familiarity with the case. At this point, we present quickly both sides of the case and highlight key strengths and weaknesses. From this effort we gather common-sense reactions and learn more about the emotional triggers in the case.

Step 5: We brainstorm an initial trial graphics list and start to make decisions about what might work and what might not. We often share this list with counsel at this early stage to keep costs down and to get their feedback. Given the attorneys’ extensive familiarity with the case, our initial exhibit list will also prompt them to add other litigation graphics, possibly to delete some graphics, and to come up with other creative ideas at this point.

Step 6: We share our thoughts with the team and get some feedback on which demonstrative evidence and litigation graphics to move forward with. 

Step 7: We prepare the initial litigation graphics as a sort of test run. We run them by the trial team to make sure that we are on the right track and haven’t missed anything important. At this stage, we are usually preparing the basic litigation graphics like litigation timelines, players charts, document call-outs, checklist exhibits, etc, but we might also produce physical scale models or courtroom animations.

Step 8: We test our exhibits in a mock setting of some sort. This can be a full mock trial with “jurors,” or it can be a less complicated version like our Micro-Mock format.  

Step 9: We refine and retest our approach and our litigation graphics based in part on the results of the mock event.

Step 10: We sort out and execute our courtroom technology plan. Pretty soon after this step, we will be ready for trial.

So, as you can see, what seems like a complex process from the outside actually follows a well-defined set of steps designed to produce the best possible result.

Sometimes we execute this process over the course of two years. Sometimes we do a more accelerated version of this process in two weeks. When executed with a great trial team, this process will produce order out of chaos and help litigators tell a simple and persuasive trial story - proof of a job well done.

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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Sample One-Year Trial Prep Calendar for High Stakes Cases

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by Ken Lopez
Founder & CEO
A2L Consulting

A high percentage of the work that we do at A2L Consulting is on cases with billions at stake. Over the last 18 years, we've seen trial teams prepare well and we've seen trial teams caught underprepared, often because they believed that settlement was imminent and that there was little or no need for trial preparation.

So that no one gets caught without being prepared, here’s a sample calendar that lays out a trial preparation plan for mock trials, the creation of litigation graphics, the planning and deployment of trial technology, witness preparation and informal run-throughs on the eve of trial.

Not every case warrants this level of preparation. However if your client is in a bet-the-company situation, if there is $20 million or more at stake or if there is a threat of pattern litigation, then this level of preparation is entirely appropriate - if not required.

Gone are the days when a trial lawyer wings his or her way through a trial and tries to use charm to win a case. Juries and judges expect a lot more these days from attorneys than they did 10 years ago. They want to see a well-rehearsed show with evidence nicely teed up for decision-making, witnesses who are well prepared, and a lawyer who has planned everything out, including the technology. Anything less, and they'll likely punish your client for it on some level.

The best litigators that I see prepare a lot with the support of a client. Often this involves several rounds of full-scale mock trials. However, the most important thing a client can do is create an environment where the trial attorney feels that he or she can make mistakes. As they say in show biz, bad rehearsal, great performance.

In the sample calendar below, we show a year's worth of preparation for a hypothetical 2-week December trial. We use our Micro-Mock™ service for an early case assessment and to help clarify the likely trial themes and story. Preparation of litigation graphics starts early to allow for several rounds of testing, refinement and approval over the course of the year. Two mock-trial exercises are planned with three or four panels of jurors per exercise. Witnesses are thoroughly prepped and trial technology for both the war room and the courtroom are planned and set up. Finally, a series of run-throughs are scheduled just prior to trial to make sure that trial counsel, the trial technician, witnesses and the trial technology are operating like a well-oiled machine.

What we are describing below is a general sense of how this should work, using a sample calendar. There is considerable variability in the investment required, both in terms of time and money, depending on how many witnesses there will be, how long a mock trial, how many graphics there are, how long the trial is, and other variables.

Click here or on the image below to download a larger PDF version of the sample trial preparation one-year calendar for a two-week trial in a high-stakes case:

 Articles related to trial preparation in high-stakes and bet-the-company cases:

• Free Download: The 174-Page Complex Civil Litigation Trial Guide
• 16 Trial Presentation Tips You Can Learn from Hollywood Lawyers
• Why Do Movie Lawyers Look So Polished? Practice!
• 3 Ways to Force Yourself to Practice
• Why Should I Conduct a Mock Trial?
• What is a Micro-Mock™ Trial and How Does it Help Me Prepare for Court?
  
  
  

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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8 Strategies for Hurricane Sandy Litigation

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by Ken Lopez
Founder & CEO
A2L Consulting 

Hurricane Sandy, sometimes called Superstorm Sandy since it did not strike land as a hurricane, ranks as the second costliest storm to hit the United States. Damage estimates range from $50 billion to nearly $100 billion, second only to Hurricane Katrina at about $150 billion (adjusted for inflation).

How bad was it?  It destroyed or damaged 400,000 homes and caused the loss of power, often for a week or more, in 8.5 million homes in 16 states. It destroyed 250,000 cars. At least 150 people lost their lives. It struck an area with about 17 percent of the U.S. population living on about two percent of the nation’s land area.

The storm has already spurred a good deal of litigation. Many of the cases are breach of contract cases related to insurance coverage, and many of these cases will turn on whether damages were caused by wind (covered by insurance) or flood waters (not normally covered by insurance).  One challenge here for litigators will be that Sandy was, unlike Hurricane Katrina, downgraded from a hurricane.  Other suits will no doubt be filed for power outage lawsuits, price gouging, negligence cases (remember the construction crane collapse in Manhattan), worker exposure suits, and likely some toxic tort suits related to spilled chemicals.

Our firm, then known as Animators at Law, was involved, either briefly or for years, in four significant Hurricane Katrina cases.  Our work was divided into two categories -- those in which our client was seeking to recover millions or billions from insurance companies for property damage and those in which the client was being held responsible for property damage related to the levees in New Orleans. I learned some valuable lessons from my work on these cases, much of which will be applicable for Sandy litigation. 

1. Prepare early. For one case, we began our preparations years before a potential trial. Demonstratives were created, courtroom animations were created and physical models were built.  These things take time to get right, especially when multiple law firms and multiple expert firms are involved.

2. Seeing is believing. In one case, we created an animated presentation that was so realistic that it would be hard to imagine that the events had happened another way.

3. Accuracy counts. In a hurricane case there will be questions about wind vs. flooding damage. Don’t leave any room for doubt.

4. Storyboarding is a cost saving technique.  Measure twice, cut once, goes the old carpentry adage. This is also true in the production of animation for the courtroom. By using storyboards to sketch out a litigation animation well before creating the animation, enormous amounts of money will be saved.

5. The book is usually better than the movie.  If you are on the plaintiff's side, you might be tempted to produce a sophisticated recreation of some event arising from the hurricane. These can involve wind experts, water experts, and more. As I told one plaintiff's attorney in a plane crash case who asked us to recreate in animated form the passenger experience and synchronize that with audio from the cabin, you don't need to; the jury will hear the audio and what they imagine will be much worse than anything we can create for them.

6.  Causation is key. All too often, causation is critical in hurricane cases.  Here there will be questions of whether the damage was caused by Sandy or by the nor’easter that quickly followed Sandy.

7.  Test juror attitudes.  Mock trials will be essential as attitudes will vary from jurisdiction to jurisdiction.

8. Don’t rely on jurors’ recollections.  Even for a major event like Sandy, memories fade after months and years. Remind jurors of the details of the storm and how bad it was.

About A2L Consulting

•  Leading national litigation consulting firm since 1995

•  Personnel nationwide

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

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

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

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

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

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


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3 Ways to Force Yourself to Practice Your Trial Presentation

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by Ken Lopez
Founder & CEO
A2L Consulting

Ryan Flax
Managing Director, Litigation Consulting
A2L Consulting

The old adages roll off the tongue when someone says the word “practice,” don’t they?

“Practice makes perfect”
“Practice makes the master”
“Practice is everything”
“Perfect practice makes perfect”

 - or one of my favorites -

“In theory there is no difference between theory and practice. In practice there is.”

Whether you hear these in the voice of a parent, the Karate Kid mentor, Mr. Miyagi’s voice, Yoda’s, or Morgan Freeman’s, these words resonate. Yet many highly regarded litigators resist practicing their trial presentations.

Take a look at what a proven winner, Coach Pete Carroll, has to say about practice theory:

Jeff Stott, an expert consultant to business and sales professionals, confirms the importance Carroll puts on carefully planned practice and confirms how reluctant most non-athlete professionals are to engage in the activity:

We don’t know why they resist it exactly, but it may have something to do with not wanting to be seen as less than perfect. While this is a valid emotion, succumbing to it does an injustice to your case, your client, and yourself.

For the real best of the best professionals, including trial lawyers, practice is not only common, it is usually public. These people create a culture in which presentations are not expected to be perfect at the outset, and everyone is better for the experience. Accustoming yourself to this mindset, much less creating such a culture, is not easy. But you can make it happen.

Take some tips from Victoria Labalme, a communications consultant to Fortune 100 executives:

Victoria makes some terrific points in her six-minute video: 

1. First, you must practice to be any good
2. Practice on the clock
3. Practice with an audience
4. Watch yourself practice
5. Video (and audio) record your practice
6. Practice as you’ll play – wear the clothes you’ll wear, rehearse as you’ll do the presentation, imagine yourself in the “arena” you’ll be playing in

Finally, Marsha Hunter advises attorneys in NITA on the best ways to practice presentations, speeches, and opening statements. Here’s an excerpt of a 2012 NITA talk she gave to a group of litigators:

We strongly believe in continuous self-improvement. It’s best for us and the people around us, and it is certainly best for our clients. With that in mind, here are three ways in which you can build practice into your trial preparation routine:

1)   Use a mock jury (trial). We offer a variety of mock jury formats that range from the full multiday event involving 50 to hundreds of mock jurors to single-panel focus groups or mock jurors. Either way, you get access to a Ph.D. jury consultant, a formal report, and a review session.  If you can afford it and have the time, this is the way to both practice your case and get the maximum feedback.

2)   If a full mock jury session is not in your budget, you don’t have the time, or it’s too early in your case to do it, use a Micro-Mock™ session. The Micro-Mock™ is A2L’s proprietary service. There are a variety of options, but at a minimum you get access to our expert litigation consulting team and tremendous feedback on your case.  This is the ultimate in balancing budget and results.  No other service is as effective at forcing you to practice your case and get the formal feedback you need to improve.

3)   On your own, practice, practice, practice your opening statement or oral argument. Do it yourself at home, in the car, in your firm’s conference room, in your partner’s office, and do it over and over again. Enlist your peers as well as non-attorneys as your audience. Get their feedback. Listen to yourself talk out loud and try different ways of getting your points across.

It’s best to use all three of these suggestions. Progress from very informal practice to very formal practice and back again. Put these things on your calendar now and be a better litigator for it when it counts.

Here are some other articles related to practicing your trial presentation:

• Practice like an actor playing a lawyer, and you'll be Gregory Peck in no time
• Learn more about mock trials
• Learn more about A2L's unique Micro-Mock service
• Free Download: The Complex Civil Litigation Trial Guide
• 7 ways to help experts give better testimony

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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Introducing a New Litigation Consulting Service: the Micro-Mock™

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Ryan H. Flax
Managing Director, Litigation Consulting
A2L Consulting

How important is it to you to give your clients and their cases the very best service?

How important is it to you to be and become the best litigator possible?

How important it is to you to save litigation costs while bringing maximum value to your cases?

As an experienced litigator and litigation consultant, I already know your answers to these questions. For the best litigators, answering these questions is easy. We all want to win, make our clients happy with and proud of us, and minimize unnecessary costs while doing it. The challenge for most of us is that we have to make competing choices as we prepare for trial.

As much as we would like to schedule a mock trial for each case, because we learn so much from them and the case is always better for it, money and time budgets often prevent it. Yet, one of the things we often hear from trial teams after mock trials, or even after working with our litigation consulting team on themes or graphics preparation, is how valuable the process was and how much they appreciated getting an earlier start on developing trial strategy than they otherwise would have. Working out the complexities of a case and simplifying issues sooner, rather than later, are essential to litigation best practices.

I believe that our team has the perfect antidote to the time / money / value balancing act in the launch of a unique approach to resolving these competing priorities. In utilizing our proprietary methodology, I know that overall litigation costs will be reduced, while at the same time exponentially improving litigation results.

In-house counsel should pay particular attention to this because your outside counsel is constantly balancing the potential for settlement, litigation budget, and the desire to “win.” It’s necessary, but sometimes this balancing act can come at the expense of being as prepared for trial as trial counsel would like to be (or you would like them to be).

Today, A2L Consulting introduces a special new service designed to help you better prepare your case, while not breaking the bank.

It’s called the Micro-Mock™ and only A2L offers it. The service starts at a fixed-rate of $9,500.

The Micro-Mock™ is A2L’s proprietary service that fits almost every litigation team’s budget and almost no litigation team can afford not to use. You may have used mock juries and jury consultants in the past to hone a case and prepare for trial, and there are few better ways to fully prepare for a trial than with a well-crafted mock exercise.

But the process is not inexpensive and can be time consuming – two issues often creating a barrier to the process. The Micro-Mock™ is a different service that can complement jury consulting when used or can be an alternative if your time and expense budget won’t allow for full mock jury services. For a small fraction of the cost and time of a full mock jury process, you can utilize A2L’s Micro-Mock™ to sharpen your case and your presentation skills.

I wish I could write in more detail about the Micro-Mock™ service, but because it is a revolutionary new product for the litigation consulting field, it’s something we want to share with litigation teams directly. If you are interested in learning more about the service, please let us know by following this link, clicking the Micro-Mock™ button above, or by contacting me directly.

This is a service I helped develop, because it is one I wish had been available to me when I was trying cases and is one that I know will benefit almost every litigation team. I promise it will benefit whatever cases you’re working on and will improve your advocacy abilities. I would welcome the chance to explain the service and how it will help you win.

Click here to learn more.

Here are some related mock trial, trial consulting & jury consulting resources from our litigation consultants:

• Overview of our traditional mock trial services
• 6 good reasons to conduct a mock trial
• A2L Voted Best Jury Consulting Firm [pdf]
  
  
  

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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Introducing Mock Markman Hearings for Patent Litigation

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by Ryan H. Flax, Esq.
Managing Director, Litigation Consulting
A2L Consulting 

What’s the most important part of a patent litigation?  Unless you’re a patent attorney, chances are you don’t really know.

Regardless of who you are or what you do, you probably understand that patent litigation is an extremely complex process – from beginning to end.  What we patent attorneys know, and the answer to the question above, is that the pivotal point in every patent litigation is the claim construction hearing – called a Markman hearing by patent litigators.

Patent claim construction in Federal Court involves extensive briefing of opposing positions over the course of several weeks or months.  In prelude to this briefing, each party will have likely put in thousands of hours in analyzing the patent claims at issue and developing their positions in view of infringement and validity concerns (if you’re the plaintiff, or non-infringement and invalidity concerns if you’re the defendant).  The briefing culminates in a hearing before the court where the parties present oral argument in support of their claim construction positions – the Markman hearing.

Here’s the famous (if largely unknown) patent that started it all.  It’s a bit shocking to believe that one of the foundational underpinnings of patent law – that claim construction is an issue of law for the court – sprang from a patent covering the humble technology of dry cleaning tracking.

Patent claim construction by the court is so very important because it often determines the outcome of the case.  If the claims are interpreted too broadly they may easily cover the accused infringing thing or method, but they will also be more exposed to invalidity attacks.  On the flip side, if the claims are construed narrowly they may be somewhat immunized from invalidity, but may not read on whatever is accused of infringement.  And, to add to the complex balancing act, each and every word of the patent claims is susceptible to interpretation by claim construction (although, typically, only some of the claim terms and phrases are at issue in any case) and any wrong turn can spell disaster for your case.

Jury consulting has been a staple tool for litigation teams seeking to gain an edge over their competition.  Patent litigators, in particular, have been frequent mock jury users because of the typically high-stakes of patent cases.  Less frequently (verging on never), however, do patent litigation teams utilize a mock Markman hearing.  But, why?

We know that the Markman hearing and claim construction process is probably the most important part of a patent litigation, so why do patent litigation teams not use a mock Markman process to vet their claim construction positions prior to briefing and oral argument?  Perhaps it’s the lack of a layperson-filled jury and the emphasis on patent law.  Regardless of why, it’s a process that should be used and is now available to patent litigators through A2L.

A2L provides a range of options for mock Markman hearing needs.  The process can be somewhat informal, with counsel presenting oral argument and briefing on a few select claim terms for interpretation.  Such a process can be “presided over” by our litigation consultants, including myself (I am a patent litigator with over 12 years experience and over $1 Billion in damages awarded to my clients).  Or, the process can be highly formalized with full briefing and oral argument and participation of a panel of former federal judges.  The level of formality depends on client preference, desired budget, and expected multiplicity of mock Markman hearings (you are not limited to just one).  Regardless of format, you get a formal report and projected claim construction from an unbiased, disinterested observer upon which you can fine tune your case, tie up loose ends, prevent yourself from taking too broad or too narrow a claim construction position, and identify which claim terms to fight aggressively over and which to let go.

As a patent litigator, you should consider using a mock Markman process to gain an edge over your competition.  Contact A2L when you’re ready.

More on A2L's site about patent litigation, claim construction and Markman hearings.

• Download the Patent Litigatator's Trial Presentation Handbook for Free
• More about Mock Trials and Mock Juries
• Learn about A2L Consulting's Litigation Consulting Services
• Read dozens of A2L's articles about patent litigation

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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Patent Litigation Graphics + Storytelling Proven Effective: The Apple v. Samsung Jury Speaks

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By: Ryan H. Flax
Managing Director, Litigation Consulting
A2L Consulting 

In last week’s article on the conclusion of the Apple v. Samsung patent infringement trial I emphasized that it would be the storytelling and the patent litigation graphics that accompanied the storytelling that would win the case for either Apple or Samsung.  Well, now the jury has returned its verdict: 6 of the 7 Apple patents are infringed (willfully) by Samsung (3 utility patents and 3 design patents), none of Apple’s patents are invalid, and none of Samsung’s patents are infringed by Apple.  The jurors awarded Apple $1.05 billion, or just less than half of what it asked for.

The amazing, but not unexpected, thing about the jury’s verdict is not the overwhelming victory for Apple, but how the available post-verdict jury interviews completely validate the points made in last week’s article.  As expected, the verdict was only superficially based on the law and evidence, but more so on the fact that Apple’s counsel had the better story and better intellectual property graphics (and the juiciest tidbit of evidence around which the story could be woven and graphics designed).

Jurors Want a Story, Not a Legal Case

When asked to point to the evidence that compelled their verdict, one juror – Manuel Ilagan – explained, “on the last day, [Apple] showed the pictures [below] of the phones that Samsung made before the iPhone came out and ones that they made after the iPhone came out,” and this visual evidence at the closing was enough!

Juror Ilagen went on, “we were debating about the prior art.  Hogan was jury foreman.  He had experience.  He owned patents himself . . . so he took us through his experience.  After that it was easier.  After we debated that first patent – what was prior art – because we had a hard time believing there was no prior art.  In fact we skipped that one, so we could go on faster.  It was bogging us down.” 

So, the jury skipped talking about the difficult evidence, instead relying on how they felt about the case and on the story weaved by plaintiff’s counsel.  And, as discussed below, relying heavily on the background and experience of the jurors.

Speaking of the jury foreman – Velvin Hogan – he also reported in a post-verdict interview that he had a revelation after first night of deliberations while watching television (he called it his “a ha moment”), explaining, “I was thinking about the patents, and thought, 'If this were my patent, could I defend it?'  Once I answered that question as 'yes,' it changed how I looked at things.”  So, once more, a juror (the foreman no less) reported basically disregarding the complex specifics of the law and evidence, here going with his instincts in deciding the validity of Apple’s patents and then deciding whether they were infringed.

Another juror – Aarti Mathur – expressed to reporters that, “it was a very exciting experience and a unique and novel case.”  As a litigator, can you imagine one of your jurors saying this about your next trial – what would you do to provide this kind of exciting experience for them?  This was a patent case and yet it instilled this feeling of excitement in the jurors.  Research establishes that the best way to do this is by immersing the jurors in argument and litigation graphics throughout the trial.  You want to get them interested and keep them interested.

Seasoned patent litigator, Sal Tamburo, a partner with Dickstein Shaprio LLP noted, “patent litigators, and really litigators of any complex subject matter, face a difficult task when heading to trial.  The law is complicated as is the technology and it is our job to convince jurors, who are usually unfamiliar with the nuances of either the law or the technology, that we’re right and should win.  In essence, we need to prepare two cases, one for the jurors that is interesting, compelling, and persuasive, and one for the district and appellate courts that is solidly based in the necessary legal proof.”  Sal's right.

It was apparent that the complex law of patent infringement and the overwhelming jury instructions made it all but impossible for the Apple v. Samsung jury to really decide the case on its merits.  Not only were the jurors confused by the verdict form, but they actually came back with inconsistent verdicts and damages awards, e.g., awarding damages of $2 million on a patent they found not-infringed, and had to be sent back by the judge to resolve the inconsistencies.  This little “speed bump,” however, did not slow them down much.

As I reported in the article last week, this was a case so complicated that the judge begged the parties to settle before it went to a verdict (calling it a “coin toss”) and was also a case in which the jury instructions took two hours to explain and included a 109 page document.  With all this complexity and nuance of law, these jurors were nonetheless able to return a verdict in just under 22 hours.  This turn-around time would be extraordinary for even a simple case and is beyond imaginable for this patent case.

Jurors Want Great & Useful Graphics

In addition to juror Ilagan’s expressed reliance on Apple’s patent infringement graphics, according to its foreman the jury cut through unnecessary work by hand-drawing a matrix on a notepad to illustrate which patents Apple said were infringed by each of 26 Samsung smartphones and tablet computers.  This jury-created graphic is exactly the type of trial graphic counsel should have shown the jury during its closing arguments and then requested be entered into the record as a summary of evidence so the jury could take it with them to the jury room.

Juror Ilagan said, “my impression was that [Apple's attorneys] Bill Lee and McElhinny were pretty good in their presentation and questioning of the witnesses.”  Mr. Ilagan was also complementary of Samsung’s counsel’s presentation (recall, this was a “coin toss”).

As I mentioned in last week’s article, with effective patent litigation graphics attorneys can teach and argue from their comfort-zone – by lecturing, but the carefully crafted graphics will provide the jurors what they need to really feel they understand what’s being argued and give them a chance to agree.  Most people, including judges and jurors, are visual learners and in court litigators must play on this battlefield and with the appropriate weapons.

Jurors Will “Hang Their Hat” on Bits of Evidence

Jury foreman Hogan explained that the jury’s decision was based on documents illustrating Samsung’s intent to closely mimic the look of the iPhone and that “certain actors at the highest level at Samsung Electronics Co. gave orders to the sub-entities to actually copy, so the whole thing hinges on whether you think Samsung was actually copying.  The thing that did it for us was when we saw the memo from Google telling Samsung to back away from the Apple design.  The entity that had to do that actually didn’t back away.”  The litigation graphic to the left illustrates this important evidence.

And, so, on the back of one email chain, the hammer fell on Samsung to the tune of a billion dollars.

This point is very instructive.  It shows us that testing litigation facts, themes, and stories before trial with mock jurors is an important tool in crafting a persuasive and winning case.  Before you get to the courtroom, you want to know what facts resonate with mock jurors of the same demographics as your jury pool so you’ll use the right ammunition when it counts.

You Must Use Jury Consultants

Another interesting take-away from this jury’s verdict is that it relied heavily on the backgrounds and experiences of the jurors, even to the disregard of the law and evidence presented at the trial and instructed by the Court.  This is instructive and shows how important jury consulting can be for litigators.

For example, the jury’s foreman (Mr. Hogan) was an engineer and holds a patent (relating to video compression software, at right).  The jury relied heavily on him to deal with the patent law issues in the jury room and he even told the Court that the jurors had reached a decision without needing the instructions! 

Experts agree this isn’t uncommon at all.  According to Stanford Law School Professor Mark Lemley, “if there is one juror who seems more clearly knowledgeable than the others, the jury will often look to that person to help them work through the issues, and perhaps elect him foreman.”

Hogan, told the court he had served on three juries in civil cases, spent seven years working with lawyers to obtain his own patent covering “video compression software,” and worked in the computer hard-drive industry for 35 years.  Based on this he was elected jury foreman and, I suppose this background also relieved the other jurors of having to worry too much about the gritty nuances of the law of patent infringement and validity because Mr. Hogan could sort out those details for them.

It’s been reported that Mr. Hogan said that the jurors were able to complete their deliberations in just three days and much faster than almost anyone predicted because a few jurors had engineering and legal experience, which helped with the complex issues at play.  According to Mr. Hogan, once they determined Apple's patents were valid, jurors evaluated every single device separately.

These leaps in deliberations are remarkable, but, as discussed in last week’s article, predictable.
 

One More Thing

Foreman Hogan explained in a televised interview his thought process regarding the law of patent validity and how he helped the rest of the jury come to terms with the law – it’s clear that (although he’s obviously very intelligent) he does not really understand it and he and the rest of the jury went on their gut instincts in most instances.  To a patent litigator, like myself, his interview is frightening on one level because it shows how hard it is to get through to lay jurors and even technically experienced jurors on the nuances of patent law and how it should apply to the facts. 

But, it’s also very instructive.  All litigators should watch and note his explanation of the jury’s process.  I think Mr. Hogan is fairly representative of what the top of the juror food chain is like and he’s a good place to start when developing your trial strategy.  Cater to their needs in proving your case – use graphics extensively, use jury consultants, and test your case.

Oh, there is one more thing.  Just for the sake of stirring the pot, here’s an ironic and amusing video of Steve Jobs discussing what great artists (and presumably great innovators and great companies, including Apple Inc.) do to succeed (can you guess what it is?):

I wish good luck to both the parties and their counsel in the appeal process, which I and other patent experts will be attentively watching.  (write this down: it’s my bet that this case ultimately settles before any opinion from the Federal Circuit).  Stay tuned.

• Download E-Book: Patent litigation graphics trial presentation
• Patent litigation graphics articles on our site
• 11 Patent Litigation Graphics Tips from Courtroom Experts
• A2L's focus on patent litigation graphics

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 Ways to Draft a Better Opening Statement

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For any trial lawyer, writing an opening or closing statement is one of the best parts of a trial. It lets us use our writing skills, speaking skills, and persuasion skills like no other moment of trial. I happen to believe that the opening statement is the single most important part of a trial.  

Blow the opening by showing documents not yet in evidence, reading your opening from a script, misusing your time, not telling a story -- and you put yourself at a severe disadvantage from the outset. Nail the opening and you are doing more than just starting off on the right foot. Some astute trial observers believe that 80% of cases are won or lost in opening.

Sitting down and drafting an opening, especially one of more than an hour’s length, can be especially daunting. Fortunately, the great speakers of today and of the past, as well as persuasion theorists, have developed practical ideas that can be applied to the drafting of an opening statement.

One technique that should be avoided, though, is simply sitting down to write your opening in Microsoft Word. Like setting off on a hike without a good plan, this technique will usually end up leaving you feeling lost. 

Instead, here are seven approaches to drafting an opening statement:

1.  Go old school. It is said that Abraham Lincoln kept notes in his hat as a technique for writing speeches. Lincoln, of course, wasn’t able to resort to a smartphone, but you are. Today, leaving snippets in a notepad application is an excellent way to build up an opening statement. Each time a great idea comes to you, you simply store it in the same app, and if you use iOS devices, this ends up getting synched across your iPhone, iPad, laptop and desktop instantly.

2.  Use mind mapping techniques. We've written about mind mapping before, and we offer it as a service to help trial teams organize their thoughts around an opening or the overall case strategy. Mind mapping describes the very useful and sensible process of making large outlines that are usually printed poster size and tapped up on the first chair litigator's wall.

3.  Follow the Post-It approach. Although I tend to prefer the use of mind mapping, this is still a favorite technique of mine. It works as follows: First, use a pad of Post-Its to write down all your thoughts about an opening statement, one thought per Post-It. Second, put them all up on a wall. Third, put related concepts together, using no more than five or six groups.  Fourth, title those groups. These will be your chapter headings.  Fifth, put the Post-Its in order under the chapter headers, and now you have a well organized speech.

4.  Use an integrated graphics approach in your notes. Using Microsoft Word, speakers’ notes in PowerPoint, or a mind mapping program like Mind Manager (the one we use), prepare your slides so that they are laid out next to your text. This technique can be see in video #9 in our recent article on closing statements.

5.  Join Toastmasters. One problem most litigators have is that they do not have enough time to practice their speeches. Some advocate practicing in unexpected places such as the car, and doing so in small segments. One easy place to practice in a structured way is at a Toastmasters meeting. 

6.  Memorize your opening. My favorite technique for memorizing a speech is to use a spatial technique. Since I remember my childhood home very well, I make sure to associate elements of my speech with places in my house, starting in the foyer, moving to the living room, sitting on the sofa, and so on.

7.  Test your work with a mock jury or mock judge panel. There is no substitute for presenting a case in front of mock juries or judges. You will likely prepare earlier than you would have, and the feedback from the mock jurors or judges will guide what to include in your opening statement at trial.

Related information on A2L Consulting's site:

• Download The BIG Litigation Interactive E-Book
• Request information about our CLE Programs
• Why Opening is the Most Important Part of a Case
• Better Storytelling for Litigators
• How to Deliver a Great Closing Argument

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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