I have had the following conversation thousands of times in my 18 years at A2L Consulting. It goes something like this one that I had yesterday:
Friend: So, what are you guys working on?
Me: Well, I believe we are probably involved in the top three cases in the country right now in terms of dollar value. Two are antitrust cases affecting most Americans, and one is a massive product liability case affecting people worldwide. Together, there are easily hundreds of billions of dollars at stake.
Friend: Wow, what would you guys do in those cases since there isn't an accident to depict or anything?
Me: Facepalm and sigh.
Since I am in charge of marketing at my firm, I knew immediately that to a certain extent I had failed. While we do depict the occasional accident, that type of case is actually quite rare compared with how often we are hired to help tell a visual story or conduct a mock trial.
Fortunately, with our litigation blog hitting 3,000 subscribers this week, I can begin to quickly set things straight. So in this post I'd like to provide as clear a description as possible of what most law firms pay us to do.
The term litigation consultant is a broad one. Many people use it to mean many things. We have written about this before and even produced an infographic to help explain the term. We use the term litigation consulting to collectively describe our three core services: jury consulting, litigation graphics consulting, and onsite courtroom technology consulting.
Still, these services are not evenly divided in our revenue makeup, and none of these terms really does a great job explaining our value added. So below is a list of 11 things, in descending order of frequency, that we really get paid to do.
1. Develop a Visual Presentation for Opening: At A2L we believe that most cases are won or lost in the opening statements. It's true because of the way juries reason, as my colleague Dr. Laurie Kuslansky discussed yesterday, and as we have written about in previous articles. Most top litigators share this belief, so they invest heavily in work getting this right. Since more than two-thirds of people prefer to learn visually, it is not surprising that top litigators spend countless hours getting ready to present an opening -- practicing it, developing litigation graphics and testing it.
2. Conduct a Mock Trial for an Upcoming Case: We spend a considerable amount of time every month conducting mock trials as well as preparing for them and reporting on the results. This is true both for jury trials and bench trials.
3. Develop a Markman Hearing Presentation: Because patent litigation has always led the industry in adopting the latest litigation consulting techniques, because patent case filings are rising at record rates and because one of our senior litigation consultants is a successful patent litigator, about half of our work continues to involve patent litigation.
4. Sit in the Courtroom and Run the Technology: Most of the time, we have a trial technician deployed or preparing to deploy to a trial, hearing or arbitration somewhere in the world. These talented folks are the technical wizards of the courtroom as we detailed in this article and others like it.
5. Tease Out a Clear Theme or Story: As more and more litigators realize the value of storytelling in the courtroom, more trial lawyers hire us to help in this effort. We've built a Micro-Mock exercise that is tailored for this kind of work and we build storytelling into all of our visual presentations or mock trial recommendations.
6. Work with an Expert to Explain Something Visually: Experts are almost universally expert in explaining to other experts why they are correct. More challenging for experts is explaining to a judge or jury why they are correct.
7. Create an Animation: When I started our company 18 years ago this week, it was called Animators at Law. How far we have come. I started the firm in a rundown part of town, in a storage closet converted to an office. Today, we have personnel nationwide and this includes people in the animation business. We have created animations for airline disasters, to explain the failure of the levies in New Orleans and to demonstrate how certain technology works in countless patent cases.
8. Help Choose a Jury: We just published a great five-part series on jury selection. We write about this topic frequently, as it is something we do quite a bit of, usually in state courts. Here is a link to part one of that series.
9. Build a Model of Something: Technically, demonstrative evidence is anything that is not real evidence, but litigation consultants generally use the term to refer to anything used to help explain a point clearly to a judge or jury. One form of demonstrative evidence that is often overlooked are physical models or scale models. We just finished one this past week in a patent case that demonstrates the function of a key piece of technology.
10. Work to Refine Deposition Clips, E-Briefs & Building Trial Databases: It's not exciting work, but the results of it certainly can be. Cutting depo clips is part of our regular work and is an essential part of going to trial. Building an electronic brief or e-brief is also an increasingly common task. The same is true for preparing the database of exhibits that will be shown at trial. When done correctly, any exhibit can be shown on a moment's notice. Normally, this work is conducted by our trial technicians.
11. All the Other Things: To be fair to A2L and other great firms like ours, we can’t sum up all that we do in only 11 steps. For a more complete list of other things we are doing as litigation consultants, have a look at 11 Surprising Areas Where We Are Using Mock Exercises and Testing and 14 Places Your Colleagues are Using Persuasive Graphics (That Maybe You're Not).