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Tony Klapper

Tony Klapper
Tony Klapper is the former Managing Director of Litigation Consulting at A2L. He is now the Assistant General Counsel, Product Regulatory and Litigation at Volkswagen. Tony Klapper joined A2L Consulting after accumulating 20 years of litigation experience while a partner at both Reed Smith and Kirkland & Ellis. Today, he is the Managing Director of Litigation Consulting and General Counsel for A2L Consulting. Tony has significant litigation experience in products liability, toxic tort, employment, financial services, government contract, insurance, and other commercial disputes. In those matters, he has almost always been the point person for demonstrative evidence and narrative development on his trial teams. See his full bio at: http://www.a2lc.com/tony-klapper-litigation-consultant-a2l
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Many of us find ourselves, from time to time, in the position of having to give advice to friends and acquaintances. In those circumstances, it’s simply human nature that the person who is seeking the advice is frequently more than a bit resistant to following it. So the person giving advice needs to figure out ways to overcome that resistance and to persuade the friend. I believe that the same principles that help us persuade our fellow human beings to follow our advice are also very helpful for trial lawyers who want to convince a jury of the rightness of their case. Here are some of them. To me, the essence of persuasion is trust. If that friend trusts you, she is much more likely to follow your advice. The same is true of a jury. Much of a trial team’s work can be seen as a concerted effort to build up trust with the jury. Trust has several components. Certainly, a key component is credibility. Do your background and experience indicate to the jury that you know what you’re talking about? Another component is comfort. Standing before the jury, do you appear comfortable and at ease with what you are advising the jurors? Yet another aspect is rapport. This is a matter of addressing the jury directly and being mindful and focused so as to develop a connection with the jurors. No distractions or multi-tasking can be appropriate. The jury is your only focus. Then of course there is empathy. This is very important in the context of advice-giving to friends, and even more so with a jury. If your client is, say, a large company accused of polluting a river, you need to empathize with the jurors’ possible bias against your client. You need to give them a narrative that will help them change their preconceptions. Then there is culture. That is hard to define, but it involves all of the life experiences that the jurors come to court with. You wouldn’t speak identically to a jury in a high-income New York suburb as you would to a jury in the West Texas plains or the Florida Keys. In addition to trust, a key element of persuasion is logical argument. You can have a great deal of credibility with a friend and share her cultural background, but if your advice doesn’t make sense, she won’t follow it. The same is true of a jury. Finally, one must not neglect the importance of time. Even your best friend wouldn’t want you to waste his time while giving advice in a drawn-out way, and juries too tend to tune out an argument that is too lengthy and complicated. As with the other components, a good deal of the art of persuasion amounts to common sense. Other free A2L articles related to persuasion techniques, connecting with jurors, and being likable in the courtroom include: Three Top Trial Lawyers Tell Us Why Storytelling Is So Important Like It or Not: Likability Counts for Credibility in the Courtroom Still Think Persuasion is About Talking While Showing Bullet Points? Free A2L Consulting Webinar: Persuasive Storytelling for Litigation SPICE Is the Key to Persuasion Free A2L Consulting Webinar: Winning Your Case BEFORE Trial Using Persuasive Litigation Graphics — Watch OnDemand Now Free A2L Consulting Webinar: 5 Ways to Maximize Persuasion During Opening Statements — Watch Anytime How Pictures Are Increasingly Influencing You 5 Ways to Apply Active Teaching Methods for Better Persuasion 12 Ways to SUCCESSFULLY Combine Oral and Visual Presentations 5 Chart Tricks and Cheats to Watch Out For 7 Ways to Avoid Making Your PowerPoint Slides Your Handout 14 Tips for Delivering a Great Board Meeting Presentation Presentation Graphics: Why The President Is Better Than You 12 Reasons Bullet Points Are Bad (in Trial Graphics or Anywhere) 8 Videos and 7 Articles About the Science of Persuasion Could Surprise Be One of Your Best Visual Persuasion Tools? How to Be a Great Expert Witness (Part 3)

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by Tony Klapper Managing Director, Litigation Consulting A2L Consulting Lately, I’ve been reading journalist Thomas Friedman’s current book, Thank You for Being Late: An Optimist’s Guide to Thriving in an Age of Accelerations, and I’ve been reflecting on some of the book’s messages. The book focuses on the new, fast-moving world that technology has created for all of us and how we should adapt to living in it. It’s not explicitly about lawyers or trial preparation. But I think there are three lessons that lawyers and trial consultants can learn from Friedman’s book. It’s important to set aside time to think and reflect, to look at the bigger picture. That’s what Friedman meant by “being late” and its virtues. For the trial lawyer and consultant, the message is straightforward: Get off the constantly turning hamster wheel of time. Don’t focus endlessly on the myriad documents, motions and combative correspondence with opposing counsel in the case. Think of what the broad narrative should be. Ask yourself what the case is really about, not what you were doing in the last 15 minutes.

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by Tony Klapper Managing Director, Litigation Consulting A2L Consulting In these pages, we have discussed from time to time the role of the “hot seat operator” or “trial tech,” the person who is tasked at trial with ensuring that the visual presentations go off without a hitch, enabling the trial team to tell its story smoothly and effectively. The job requires almost supernatural calm under intense pressure, an understanding of the essence of a trial, superb computer skills, and the ability to improvise when needed. It’s one of those jobs that, if it is done perfectly, the tech’s presence is never noticed. People only notice the trial tech when something goes wrong.

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by Tony Klapper Managing Director, Litigation Consulting A2L Consulting War rooms at trial are very intense, high-pressure places. Obviously, the lawyers in the trial team are going to make the war room their “office” for the duration of the trial, as will other team members such as paralegals and consultants. Here are five reasons why a trial team should always consider having a graphic artist on site, right beside the attorneys. If an artist is not there, side by side with the lawyers, the team will lose a certain amount of flexibility and responsiveness. If a lawyer wants a visual to be slightly modified, based on testimony that’s just now being heard, there’s nothing like having someone by her side to share thoughts with. The response can be immediate and in real time. Communication between the lawyer and the litigation graphics artist is much easier to achieve. If the artist is not there, miscommunications can creep in like a child’s game of “telephone.” A lawyer can show an artist on site exactly what she means because the artist is able to see and hear the lawyer, not just read an email or listen on the phone. 

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by Tony Klapper Managing Director, Litigation Consulting A2L Consulting For the purpose of telling a story or presenting data, experts have, over the years, suggested two different approaches. I will call them the “static” approach and the “build” approach. The static approach, in the hands of outstanding practitioners of data presentation, can have memorable results. Essentially, it conveys a great many types of information simultaneously, using graphic elements to show the relationship among the different varieties of data. Long before the advent of computers, French civil engineer Charles Joseph Minard, a pioneer in the presentation of data, created brilliant drawings depicting Napoleon’s Russian military campaign of 1812. These are a classic example of the static approach. The drawings, published in 1869, show the size of Napoleon’s army at each point of the campaign, the distance traveled, the latitude and longitude, and other key pieces of information. The acclaimed contemporary information scientist Edward Tufte says Minard’s work is “probably the best statistical graphic ever drawn,” high praise indeed. Trial lawyers also need to tell stories and present complex data sets to juries. That, in fact, is a good summary of what trial lawyers do. Lawyers and clients sometimes ask us at A2L to use this “static” approach and create a demonstrative that “says it all” in one large graph or chart. However, despite Tufte’s praise for Minard’s classic design, we think that judges and juries often learn better from a “build” approach, which starts with the basics of a story and builds it up incrementally. In our view, there is great benefit to not overwhelming a jury but in reaching a result in baby steps, especially when using a PowerPoint presentation for a jury trial. If a jury went into deliberations using a Minard-type document, we are not sure that all the jurors would fully see the ramifications of all the data, no matter how skillfully it was presented. In fact, the presentation itself during trial may take too much time and may be ineffective—as the lawyer (or the witness) is trying to orient the jury as to what to focus on and not focus on at any particular moment in the narrative. People tend to learn incrementally, not all at once. When many variables need to be presented – say, corporate earnings and profits, the number of market competitors, and prices over time – we often prefer to start with a PowerPoint with just one of those variables and build it up slowly. Trials are one area of endeavor in which we think the “build” approach may work better than the “static” approach. Other free and popular A2L Consulting articles related to legal infographics, PowerPoint litigation graphics, PowerPoint presentation for a jury trial, and demonstrative evidence generally: 16 PowerPoint Litigation Graphics You Won't Believe Are PowerPoint 15 Fascinating Legal and Litigation Infographics Information Design and Litigation Graphics Litigators, Portray Your Client As a Hero In 17 Easy Storytelling Steps Litigation Graphics, Psychology and Color Meaning 6 Studies That Support Litigation Graphics in Courtroom Presentations How Much Text on a PowerPoint Slide is Too Much? 9 Things I’ve Noticed About Effective Litigation Graphics After 20 Years as a Litigator 16 Litigation Graphics Lessons for Mid-Sized Law Firms 17 Reasons Why Litigation Consultants Are Better at Graphics Than Law Firms Why Trial Tech ≠ Litigation Graphics Good-Looking Graphic Design ≠ Good-Working Visual Persuasion 12 Reasons Litigation Graphics are More Complicated Than You Think

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by Tony Klapper Managing Director, Litigation Consulting A2L Consulting I recently had the opportunity to make a presentation at a federal judges’ conference in New Jersey that brought together judges and lawyers from that state. About 300 lawyers attended, as did about two dozen federal judges. The subject of my presentation was storytelling and its role in trials. After my presentation was over, I informally polled the judges in the room on their views concerning the importance of visuals at trial and the role of storytelling. Every single one of the judges, with the possible exception of one bankruptcy judge, indicated that he or she thought that the use of demonstratives was a critical part of any trial presentation. This is a notable indication, if an unscientific one, that judges, who are key decisionmakers in any courtroom, understand the role of visual persuasion. I would add a caveat. They are judges, after all, and I have little doubt that they will sua sponte reject a trial lawyer’s effort to tell a story visually that in the judge’s view is inherently unfair to the other side. Judges will control what goes on in the courtroom when it comes to the use of demonstratives as part of your narrative, as they will in every other aspect of a trial. That means that, as we said in our most recent post, trial lawyers should always have a backup plan in mind, a “Plan B” in case the judge views their original approach as objectionable. But the results of my informal poll are consistent with what we at A2L have been saying for the past several years here. Jurors are human beings who learn best when they learn visually, and they understand a case the most instinctively if it comes to them in the form of a story. Other articles about bench trials, mock bench trials, using demonstrative evidence with judges, and visual storytelling from A2L Consulting include: 21 Ingenious Ways to Research Your Judge 7 Things You Never Want to Say in Court 10 Suggestions for Conducting Mock Bench Trial Consulting Exercises Using Litigation Graphics in Bench Trials: How Different Is It From Jury Trials? 11 Surprising Areas Where We Are Using Mock Exercises and Testing Storytelling at Trial Works - But Whom Should the Story Be About? Winning BEFORE Trial - Part 3 - Storytelling for Lawyers 12 Ways to SUCCESSFULLY Combine Oral and Visual Presentations 3 Articles Discussing What Jurors Really Think About You 11 Tips for Winning at Your Markman Hearings 5 Essential Elements of Storytelling and Persuasion 11 Tips for Preparing to Argue at the Federal Circuit 5 Keys to Telling a Compelling Story in the Courtroom Preparing for ITC Hearings Three Top Trial Lawyers Tell Us Why Storytelling Is So Important

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by Tony Klapper Managing Director, Litigation Consulting A2L Consulting We spend a lot of time in this blog describing the best practices to use in persuading a jury or judge, explaining why they work, and encouraging lawyers to use them. But what if your best-laid plans go astray? Even the most exhaustive set of trial preparations can go unexpectedly wrong. Hardware can fail, judges can issue unpredictable rulings, courtroom technology can prove incompatible. Our advice is to always double check everything and always have a backup plan. Do you have a PowerPoint that you need to use at trial? Make sure that the video screen you’re going to use is sized correctly for your presentation. Did you bring the right cables? We once had a client who brought the wrong cables and, as the trial began, found that she couldn’t use her PowerPoint. Thankfully, she had a hard copy of her slides and the presentation went just fine. Is there enough RAM in the computer you’ll be using in court to show your exhibits? This may not be the same computer that you have used to prepare the exhibits. At the very least, have those exhibits printed out in case of disaster. And always keep the finalized slides on a flash drive with you. Also, make sure the PowerPoint version is the same or newer on the machine you are going to show it on, since conflicting versions of PowerPoint can sometimes cause issues with your slides.

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Timelines are a frequently used, time-honored trial technique that we have discussed in these pages more than once. Since human beings like to focus on a story – what happened first, what happened next, and so on – timelines have the power to summarize, in a simple and straightforward way, the entire narrative of a case. But not all timeline graphics are created equal. Here are three ways to use what we call “top-bottom” timelines that most successfully take advantage of their power to persuade. In the first type of “top-bottom” timeline, the chronological portion of the line, in years, months, days, whatever is relevant, sits in the middle. At the top lie the actions of your client, tagged at the appropriate time when they occurred. Below the line are the actions, or inactions, of the other side in the litigation. Let’s say the case centers around a construction contract, and your point is that a subcontractor’s inaction caused a critical delay in the completion of the contract. Above the line are the actions of your client, the main contractor – the days when it began work, when it completed certain key steps of the project, when it contacted the subcontractor for progress reports. Below the line are the actions of the subcontractor, which diminish in number and in significance as the deadline approaches. The jury can look at the timeline and immediately draw a distinction between your client’s actions (good and appropriate) and the other company’s actions (few and showing evidence of foot-dragging).

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