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The Litigation Consulting Report

[New and Free E-Book] The In-House Counsel Litigation Toolkit

Posted by Ken Lopez on Fri, Dec 19, 2014 @ 10:28 AM


in-house-counsel-litigation-toolkit-cta-smallby Ken Lopez
A2L Consulting

In recent years, I have seen in-house counsel become increasingly involved in litigation. Gone are the days when in-house would simply hire the top name litigator and hope for the best.

Today, in-house counsel help determine trial strategy, they closely manage budget, they assist in choosing litigation support consultants, and they sometimes take a leadership role on the trial team. However, since trials are relatively rare and not many in-house counsel are trial lawyers themselves, how are in-house counsel supposed to effectively contribute in a litigation environment beyond simply managing the purse-strings?

Enter this new and free book, The In-House Counsel Litigation Toolkit, a first of its kind for A2L Consulting. We have published more than a dozen wildly popular books over the last several years that have been collectively downloaded more than 100,000 times. However, this new 172-page book is the first A2L book designed for in-house counsel and their outside counsel. It contains 50 hand-curated articles focused on litigation and the role of modern in-house counsel.

Inside, you will find articles like:

  • 25 Things In-House Counsel Should Insist Outside Litigation Counsel Do
  • 5 Signs of a Dysfunctional Trial Team and What To Do About It
  • Portray Your Client as a Hero in 17 Easy Storytelling Steps
  • 17 Tips for a Great Preferred Vendor Program
  • 12 Alternative Fee Arrangements We Use and You Could Too
  • 7 Reasons In-House Should Want a Mock Trial
  • 9 Things Outside Counsel Say About In-House Counsel
  • In-House Hiring Methods for Outside Litigation Counsel Are Surprising
  • and 43 other valuable articles.

In the litigation consulting industry, A2L Consulting is the top thought leading and quality leading organization. We have been consistently voted best jury consultants and best litigation graphics consultants, and our blog has been recognized by the ABA as one of the industry's very best. The authors of the articles in this book have collectively consulted on many thousands of cases over the last several decades. The articles contained here are one-of-a-kind expert-authored articles and have never been assembled together into a book.

I hope that you find the information in this book valuable, and I would welcome your feedback. You may download the complimentary book by clicking here or clicking the download image below. Enjoy and here's to a great 2015.

in-house counsel litigation toolkit e-book free download

Tags: Litigation Graphics, Trial Presentation, Jury Consulting, Trial Consulting, E-Book, Trial Technology, Trial Preparation, In-House Counsel, Alternative Fee Arrangements

In-House Counsel Should Make Outside Litigation Counsel Feel Safe

Posted by Ken Lopez on Fri, Dec 5, 2014 @ 11:04 AM


in-house-counsel-penny-wise-pound-foolish-pleasing-affraid-to-ask-supportby Ken Lopez
A2L Consulting

Earlier this week I published, 25 Things In-House Counsel Should Insist Outside Litigation Counsel DoI realized something important while writing that article and while participating in follow-up discussions with readers and colleagues. It's an important realization as I think recognition of it might just lead to better litigation results and money savings for in-house counsel.

Here it is. Because of the current state of the relationship between most in-house counsel and outside litigation counsel, outside counsel are not asking for budget for everything they believe would help win a case. This is leading to short term savings and longer term major expenses.

You see, outside litigation counsel really want to please in-house counsel. And why shouldn't they? In-house counsel pays the bills, they ARE the client, and they represent the holy grail—the hope of a longer and broader legal relationship that pays dividends for the relationship/billing partner for years to come.

So, what's wrong with having a service provider try to please you? We could all use more of that, right? Isn't that just good customer service?

Here's the problem. Outside litigation counsel is, ideally, not acting as a mere service provider. Rather, they are acting as, and please forgive the cliche, a trusted advisor. Unfortunately, I think most outside litigation counsel feel like the balance between trusted advisor status and mere service provider status has tipped a bit too far toward service provider status in recent years.

mock jury webinar a2l kuslansky

When you are a service provider, your motivations are a bit different than when you are a trusted advisor. As a service provider, your goal is to make the customer happy and preserve the business relationship. You wouldn't want your doctor to only tell you what you want to hear. You want them to tell you what you need to hear. The same is true for your outside litigation counsel. But how can we expect outside litigation counsel to tell us the truth if they don't feel safe doing so.

I think most outside litigation counsel are scared. They're scared of losing business. They're scared of RFPs. They're scared of asking for what they honestly believe they need. And I think it is negatively affecting litigation outcomes, and I think it is mostly up to in-house counsel to solve this.

My mentor recently said, if you're not getting what you want from a relationship, your partner is likely not experiencing you as safe. It's true in any relationship, of course. Translated for litigation, if you're not getting the litigation outcomes you seek, it may be because outside litigation counsel does not feel safe asking you for the tools they need.

So, if you are in an in-house counsel role, ask yourself, are my litigators truly comfortable telling me, let alone asking for, what they need? Are they talking to me about mock trials, litigation consultants, and litigation graphics created based on persuasion science rather than the mere gut instinct of an inexpensive twenty-something graphic artist?

If they are not telling you that they need these things, it's likely either because they are afraid to ask or because they don't know that they should be asking. Either way, it's probably going to be up to you as in-house counsel to solve this problem, and my article from earlier this week about the in-house/outside counsel relationship provides a good framework for discussion.

Other articles by A2L Consulting focusing on litigation consulting, in-house counsel and value:

litigation consulting graphics jury trial technology

Tags: Litigation Graphics, Mock Trial, Litigation Consulting, Litigation Management, Pricing, Leadership, In-House Counsel, Alternative Fee Arrangements

In-House Counsel Hiring Methods for Litigation Counsel Are Surprising

Posted by Ken Lopez on Thu, Nov 20, 2014 @ 05:04 PM

by Ken Lopez
A2L Consulting

surprise-inhouse-counsel-hiring-decisions-outside-litigation-counsel-litigatorA little more than a month ago, I surveyed our readership and asked, "how does in-house counsel hire outside litigation counsel?" Six possible answers were presented in random order.

  1. In-house chooses the lowest priced firm from a group of approved firms.
  2. In-house hires the best litigator based on prior experience.
  3. In-house hires the best litigator based on their reputation.
  4. In-house hires their litigator friends and former (or future) colleagues.
  5. In-house hires the litigator most likely to generate a win.
  6. Finally, a write-in field for other responses answers

Having worked in the litigation industry for more than 20 years and seeing favoritism trump skill plenty of times, I expected some cynicism to show through in the answers provided. However, even with that expectation, I was still very surprised with the results.

A2L Consulting is quite precisely in the business of helping litigators improve their results at trial, primarily through mock trial testing, litigator coaching and the development of persuasive litigation graphics. Said another way, we are in the business of helping trial teams win. Accordingly, perhaps seeing the world a bit too much through my own lens, I really did expect that the number-one result would be "in-house hires the litigator most likely to generate a win." 

Boy, was I wrong. That answer didn't place in the top four. In fact, other than "Other," win-generation-likelihood was the factor ranked lowest for how in-house counsel hires outside litigation firms. I find that amazing. Isn't a win exactly what we seek when going to trial in the first place?

mock jury webinar a2l kuslansky

Well, the results get even more surprising. Two answers stood out as the dominant rationale for making hiring decisions. They are essentially tied for first place and are together twice as popular as the next two highest ranked answers. Based on 168 responses thus far, in-house counsel hires outside litigation counsel by:

  • Hiring the best litigator based on prior experience, and;
  • Hiring their friends and former (or future) colleagues.

Those are pretty surprising answers if you think about it. In-house counsel are, by and large, hiring their buddies and litigators they've used before. They are not hyper-prioritizing winning, reputation and price, at least not over other factors. That's not to say that those factors are not considered. Rather, they are just factors not at the top of the list (albeit, by a wide margin).

There's nothing wrong with hiring a litigator who has generated good results before. Past performance is the best predictor of future performance. However, it is extraordinarily rare, if not impossible, to find a litigator that is the right fit for every case a business faces. Furthermore, most great litigators actually go to trial very rarely, so how can one reasonably predict great results based on one or two previous positive results? If favoritism is the dominant decision-making rationale, one can't really say they are deeply focused on winning. Trust may be important, but how much does it really contribute to getting great results at trial?

Putting on my CEO hat for a minute, I can't imagine our GC making a decision based on favoritism, and I wonder if CEOs and CFOs understand how the hiring of outside litigation counsel is being handled in their firms. How many dollars are being lost or left on the table (at trial or with outside counsel) because of this decision-making methodology? How would a CEO or Board of Directors even begin to evaluate whether the trial results they are getting are as good as they should be? I'm going to tackle this and many of these questions in future articles.

The write-in answers on this survey provide more clarity, confirmation of the dominant decision-making rationale and a few laughs. Here are a handful of answers that stood out to me when our readership was asked, how does in-house counsel hire outside litigation counsel, and chose "other":

  • "In-house hires the firm where a member of the board of directors is a senior partner."
  • "In-house hires the law firm least likely to cause in-house to be fired"
  • "In-house hires "IBM", which is the litigator or firm that they will not be questioned about if they lose"
  • "In-house hires the firm that presents the strongest strategic argument when interviewing the firms"
  • "In-house hires the team with whom they see themselves being able to spend the next five to seven years of the lives."
  • "In-house hires the litigator who best understands their business"
  • "Hire a big firm regardless of price or litigation history."
  • "Who they play golf with."

Other articles discussing litigation management, in-house counsel and working with litigation consultants like those at A2L Consulting:

litigation consulting graphics jury trial technology

Tags: Trial Consultants, Litigation Consulting, Litigation Management, Trial Preparation, Pricing, Leadership, In-House Counsel, Alternative Fee Arrangements

17 Topics We Would Absolutely Love to Speak to Your Group About

Posted by Ken Lopez on Mon, Apr 7, 2014 @ 02:30 PM


a2l litigation support speaking cleby Ken Lopez
A2L Consulting

My colleagues and I at A2L work hard to be thought leaders in the litigation consulting and visual persuasion industries. So, it is fortunate that we are invited to speak at quite a large number of events every year. Not only do we speak at the legal conferences you'd probably guess we do, but we also have the opportunity to speak at CLE's, litigation lunches, partner retreats, online webinars and even non-legal industry conferences.

In the past several years, I have participated in many such events in the legal industry. However, some of the most interesting events for me have been speaking at Salesforce.com's Dreamforce conference about professional services firms using salesforce, HubSpot's Inbound marketing conference about how to get started with content marketing, and one event I'm looking forward to in particular is a commencement address for the graduate campus of the University of Mary Washington next month.

My colleagues and I enjoy speaking, because we love what we do. Speakers at A2L Consulting include business experts, marketing experts, jury consulting experts, witness prep experts, visual persuasion experts, experts at communicating about science to lay audience, experts in PowerPoint usage and much more.

Using a combination of traditional travel and modern videoconferencing, we speak at events around the world. For the vast majority of events that we participate in, we do so at absolutely no charge. In general, law firms, government agencies and corporations will cover out-of-pocket costs for CLE registration and travel where applicable. I think these events are a win-win for everyone involved.

Below are 17 topics we would absolutely love to talk with your group about: 

1. Using PowerPoint Litigation Graphics to Win at Trial: We have a CLE already approved in a number of states related to this topic. We also recently conducted a webinar version that is similar to the CLE. Watch the webinar PowerPoint litigation graphics webinar anytime here.

2. Building Persuasive Visuals: For many years, we have been creating persuasive visuals outside of the courtroom environment. These visual persuasion devices are being used in lobbying presentations, to help motivate executives to take action, to influence the general public and much more. To learn more about building persuasive visual presentations, download our e-book, How to Build Persuasive and Engaging Presentations.

3. Storytelling for Litigators: There is good science that supports the use of stories when persuading an audience. It's something that great litigators know intuitively, and it is something that any litigator can learn. We recently conducted a free online webinar called Using Storytelling as a Persuasion Tool that can be watched free anytime.

storytelling persuasion courtroom litigation webinar

4. How to Make and Use Powerful Trial Timelines: We have released a free e-book called The Litigation Guide to Trial Timelines, and this is a topic no courtroom-focused professional can avoid. Timelines are used at almost every trial, and making a good one is quite hard.

5. Patent Litigation Graphics: Patent litigator Ryan Flax amazes new and veteran patent litigators by showing what works in patent litigation demonstrative evidence. He is a visual persuasion expert and contributed to more than $1 billion in jury verdicts while practicing. He recently conducted a free online webinar called Patent Litigation Visual Persuasion Techniques that can be watched here anytime.

6. Communicating Scientific Concepts to a Lay Audience: We work with leading scientific consultants frequently. In a soon-to-be-announced free webinar, we'll discuss how to pick the best experts and how to communicate scientific concepts to judges, juries and the general public. In the meantime, we have a great e-book called Using Science to Prevail in Your Next Case or Controversy.

7. Antitrust Litigation Graphics: As we recently wrote about in the just released Antitrust Litigation Guide to Trial Prep and Trial Presentation book, antitrust is a very challenging area for juries. The challenge of explaining economics, charts, graphs and equations is frequently underestimated by antitrust litigators - even in bench trials.

8. Environmental Litigation Graphics: We consult on a lot of environmental litigation at A2L. There are common challenges from case to case that mostly have to do with helping experts in their testimony. We cover these topics and more in a related e-book The Environmental Litigation Trial Presentation & Trial Prep E-Book.

9. Labor & Employment Litigation Graphics and Trial Consulting: Some of our team will be speaking to a government agency about this topic this week, and they are looking forward to it.

10. Construction Litigation Graphics: It's been a few years since we presented at the Construction SuperConference, but our work in construction delay and defect cases has continued unabated. Here are some related construction litigation blog articles.

11. How to Use Jury Consulting in a Valuable Way: Jury consulting is a misnomer for describing what we do. Our work frequently includes mock bench trials, mock appeal hearings, and witness preparation in addition to the traditional jury selection and mock trial services. Learning about how best to use trial consultants is a very valuable topic for litigators. We discuss many of these topics in our free Trial Consulting Handbook for Litigators.

12. Life in the New Normal Legal Economy: We have written articles about alternative fee arrangements that we use, suggestions for in-house counsel on setting up preferred litigation support vendor programs, penned a series of articles targeted at emerging midsize litigation law firms, and have released a book about the New Normal Legal economy. It's a topic we clearly enjoy speaking about even when sometimes it makes us all a bit uncomfortable.

13. Why Are So Many Opening Statements Ineffective: They don't have to be long to be strong, you should never say "I'll talk about that later," and what has to be accomplished in the first 5 minutes or you'll likely lose your case are all topics we are passionate and knowledgeable about.

14. How to Really Assess and Prepare a Witness: We write about witnesses often, both lay and expert. Getting either prepared is something our people have done for decades. We have thousands of accumulated hours preparing witnesses and a correspondingly long list of tips and secrets to share. I think this article and this one do a good job describing our feelings about witness prep and witness testimony.

15. How Important it is to Look at Non-Verbal Behavior in the Era of the Video Deposition: I am still stunned by watching the performances in these depositions, particularly the Justin Beiber depo. Learn how to manage your client from our experts. Sometimes it is easier, better and cheaper for an outsider to prepare the witness, and we'd love to discuss what we have learned from those experiences.

16. Why Lawyer-Generated Graphics Don't Work: We don't want artists to practice law any more than we want lawyers preparing graphics. There are dozens of reasons for this, and we are happy to share them. Here's a blog post to get the ball rolling on lawyer-prepared graphics though.

17. E-Briefing and Brief Writing in the Era of the iPad: Did you know that the way people read a page of text has changed in the last ten years? If you are still writing briefs the same way you did fifteen years ago, you're missing some easy opportunities to persuade quickly. Take a look at this discussion about ipads and hyperlinked e-briefs.

If you would like to discuss a member of A2L's team speaking at your next event or have any other questions, please contact A2L's Director of Operations, Alex Brown at brown@A2LC.com or 800.337.7697 x121. We try to say yes to everything that we can given our hectic schedules. Whether it is a litigation lunch via video conference, an in-person CLE or whether it is a conference speaking opportunity, we would love to hear from you.


PowerPoint Litigation Graphics Webinar Consultants

Tags: e-Briefs, Litigation Graphics, Jury Consulting, Patent Litigation, Environmental Litigation, Storytelling, PowerPoint, Opening, Alternative Fee Arrangements, CLE, Antitrust Litigation

16 Litigation Graphics Lessons for Mid-Sized Law Firms

Posted by Ken Lopez on Tue, Jan 7, 2014 @ 10:49 AM


litigation graphics mid size law firmby Ken Lopez
A2L Consulting

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

I have written about the "new normal" of the legal economy and have even published an ebook focused on pricing strategies and alternative fee arrangements, all part of a trend toward value that major corporations are receiving from their law firms. One other trend that I’ve noticed is that a lot more midsized law firms are now handed big cases to try. It's interesting to watch, since seeing how a midsized firm handles the case feels a lot like 1995 again.

In the 1990s, large law firms were just waking up to the idea of using litigation graphics at trial. It's hard to believe that back then, I spent most of my time convincing this pre-Internet generation that juries wanted to see visuals.

By 1998 or so, A2L Consulting (then Animators at Law) had its first billion-dollar win in part because of the effective use of printed trial boards. That was the same year that we started referring to our work as litigation consulting. Now, almost every case handled by a large firm uses litigation consulting in some form.

Over the past three decades, law firms have figured out that litigation best practices include the extensive use of visual aids, the regular use of a trial technician to manage electronic evidence at trial, and the value of conducting one or more mock exercises. Each of these practice areas has developed in response to specific problems that exist in bench and jury trials alike, and there is an art and science (and about a $250 million industry) that exists around litigation consulting.

storytelling persuasion courtroom litigation webinar

So, as more large litigation is pushed into midsize firms as a cost containment measure, I notice something interesting. Most midsized firms just don't know how to use litigation consultants, and what might look like cost savings is going to yield troublesome results later. After all, we figured all of these problems out once in the 1990s, and an industry exists to provide solutions.

So in the spirit of offering the midsized firm, or frankly any firm that is not an AmLaw 50 firm, a solid primer on what's been learned these past 20 years, I offer the following 16 lessons:

1. Using Litigation Graphics Yields Better Results: It's beyond "broad scientific consensus," it's just a fact, Litigation graphics provide better results. This recent 2013 study on the effect of visual evidence on juries [PDF] does a good job of summarizing the science of litigation graphics.

2. Litigators are Generally Not Well-Suited to Do Their Own Graphics: We wrote about this some time ago in a commonsense article called Trial Graphics Dilemma: Why Can't I Make My Own Slides? (Says Lawyer)

3. In-House Graphics Departments Mostly Don't Work: In general, firms do not go to trial enough to give in-house departments real trial experience. This article goes into some detail about in-house graphics litigation departments not working well.

4. Bullet Point Slides Will Hurt Your Case: We write about this often, because it is a big problem that is easily avoided. This is our seminal article on the topic of bullet points, but there are many others.

5. At least 2/3 of your jury will learn visually: A study we conducted in 2003 revealed that about two-thirds of the general public learns visually. It is available as a free download here.

6. Lawyers and Jurors Communicate Differently: The same study revealed something revolutionary too. Lawyers and juries tend to communicate differently. Juries want to see while lawyers prefer to speak.

7. Litigation Graphics Consultants Improve Your Perspective: I've heard it from hundreds of litigators at big firms that one of the things they most appreciate is the fresh pair of eyes that a litigation graphics consultant brings.

8. Showing Your Documents is Not Using Litigation Graphics: We often hear from smaller firms that they have their graphics needs covered because they have someone running their Trial Director database at trial. Actually there is very little overlap between the work talented litigation graphics consultants do and what a trial technician does at trial. In legal terms, generally, litigation graphics people handle demonstrative evidence while trial technicians handle real evidence. You need both to be successful.

9. Skilled Litigation Artists Can Make PowerPoint Do Things You Would Think are Impossible: PowerPoint is a surprisingly powerful tool. In the hands of a skilled consultant, real demonstrative evidence magic is possible.

10. No, your neighbor's son is not well-suited to make your graphics: We spend years taking a great artist and making them a great litigation graphic artist. The two do not automatically go together. In litigation, the goal is persuasion and simplicity.

11. Mixing your presentation forms is critical: I'm not sure this has been extensively studied yet, but I know it's true from my experience. The more you can mix up your presentation mediums at trial, the more you can keep at jury's interest. So, use scale models and use a trial board in addition to PowerPoint to surprise your jury.

12. You Can Actually Learn Big Law Firm Techniques from Your Litigation Graphics Firm: In most cases, a litigation graphics firm will have experienced more trials than nearly any large law firm. That’s just the way it is. Ask them what works.

13. Practice is key: There really is not enough practicing going on in the practice of law. Most people are not normally using visual aids while they are communicating. So, you need to practice this work to make it look natural and not distracting. See 3 Ways to Force Yourself to Practice Your Trial Presentation.

14. Budget for Litigation Graphics at the Beginning: If I were in an in-house position, I would hope to see my outside firm budget $50,000 for litigation graphics work. It might take more or less, but not including this line item in a litigation budget seems unsophisticated at best. Here are some articles on what to expect cost-wise for litigation graphics or animation and even how best to structure alternative fee arrangements with your litigation graphics consultants.

15. Trial is Not the Only Place to Use Graphics: Graphics are showing up in briefs pretty regularly. They are of course used in hearings. Here are 14 Places Your Colleagues Are Using Persuasive Graphics (That Maybe You're Not).

16. There are Very Few Top Notch Litigation Graphics Firms: We are a very small industry. There really are just a small handful of firms that you can trust and rely upon. Get to know them and don't be afraid to work outside of your local area as this is easy remote work. In all likelihood, the best firm for you is not down the street.

Parts 1,2,3,4. 

Other articles related to litigation graphics on A2L Consulting's site:

using litigation graphics courtroom to persuade trial graphics a2l consulting

Tags: Trial Graphics, Litigation Graphics, Trial Presentation, Animation, Scale Models, Alternative Fee Arrangements

2014 Economic Forecast for the Litigation & Litigation Support Markets

Posted by Ken Lopez on Tue, Dec 17, 2013 @ 09:30 AM

litigation support economy forecast 2014by Ken Lopez
A2L Consulting

When it comes to the economy, we have come so far since 2009 that it's not hard to be a bit optimistic. Of course, measuring from that historic trough can make anyone feel better. The real question is whether the economy is going to continue to improve from where it is now.

I evaluate the economic future not only to exercise my long-ago-earned-economics-degree muscles but to do some serious planning. Since I believe that large-scale litigation spending is closely tied to the economy's overall health and because most of my business life is closely tied to litigation, I watch leading economic indicators quite closely.

Last year at this time, I wrote about my affection for a particular leading indicator. In fifteen years, it has never let me down, as it accurately predicts the economy about 8 months in advance.

ECRI's Weekly Leading Index is a wonderfully simple indicator. When it goes up, it's generally good, and when it goes down, it's normally bad. Unfortunately, I don't like the direction it is headed in now.

At the end of 2012, the indicator was moving in the right direction - up - suggesting economic growth was ahead. That's what we got, although economic growth has been quite modest (only a bit over 2%) in 2013.

Looking at the ECRI chart below, the green line is the weekly FORECASTED economic growth rate looking about 8 months into the future from the date noted on the bottom. For example, the chart says that growth was forecasted to peak late this summer (February plus ~8 months) and that roughly 8 months from November 2013 (summer 2014) we will be experiencing our slowest growth in years. The blue line is the ACTUAL growth rate in real-time.

litigation market forecast 2014 ecri

In trial support, it's been a challenging year. Perhaps the best known firm (that isn't us) in our industry, reportedly laid off half of its staff and was sold yet again. Another big brand is quietly up for sale (also not us), and while we have had some major wins, earned many new clients and we're currently engaged on some of the largest cases in the world, we have not had a record growth year as we have in recent years. Although Citi is reporting optimism today in a subjective survey, my law firm managing partner friends have a similar outlook to mine.

At A2L in 2014, we'll be hiring, we're investing in some new breakthrough products and we expect growth, however I expect that we will be doing all of that in moderation. We will no doubt continue to expand our litigation-focused alternative fee arrangements and participate in even more litigation support preferred vendor (discount) programs.

The dials at the top of this article are a dashboard also from ECRI that summarize the economic growth outlook (green) and the inflation forecast (red). The arrows that are shaded reflect a snapshot of the changes in the forecast over time. You'll note that there is very little movement which suggests rather stagnant conditions similar to what we have right now going forward. It's not that a recession is forecast. Rather, it's just that very moderate growth is forecast.

2014 will likely be a year where most litigators and litigation support firms are working much smarter and just a tiny bit harder.

Articles related to economics, management and marketing that we find useful at A2L Consulting.

litigation support sales e-discovery

Tags: Economics, Litigation Support, Marketing, Alternative Fee Arrangements

10 Ways Timely Payment Helps You Save Money On Litigation Consulting

Posted by Ken Lopez on Thu, Oct 24, 2013 @ 10:45 AM

on time payments litigation consultantsby Ken Lopez
A2L Consulting

Trial consulting is certainly not a risk-free business. Recently, our most significant competitor laid off roughly 50 full-time staff, for example. That can serve as a cautionary lesson for our industry.

As a CEO, one of my jobs is to minimize risk to ensure that we don’t run into the same kind of problems. One of the biggest risks that our firm and litigation consulting firms like ours face is how we get paid. It’s probably the single largest barrier to entry in our marketplace.

We try to be thought leaders in our field, and publishing our litigation consulting report blog is part of that effort. I believe, and I know this view is shared by most in the industry, that if we can manage how we get paid better, the entire industry will be better for it. Simply, the better payments are managed in the tripartite relationship of litigation consulting firm, law firm and client, the lower the overall cost to the client (and everyone else too). That connection between good payment structures and the ultimate cost to the client may not be obvious at first glance.

Click here to Download a Free Litigation E-Book

No firm active in our industry is as large as a major law firm. Not one of us can really afford to float the bills for a major law firm or major corporation for very long. As a result, the more predictable the payments and the easier payments flow from client to law firm to litigation consulting firm, the lower the costs for everyone in the relationship.

To take a closer look at why this is true, here are 10 reasons that paying litigation consulting firms on time saves the client money.

1. Alternative Fee Arrangements Are Good Business. Clients love alternative fee arrangements. They're demanding them of law firms and litigation consulting firms alike. In this article about alternative fee arrangements, I outlined 12 methods we use for charging customers. Most of our alternative fee arrangements have predictable payment structures built into them. Sticking with these payment structures allows us to offer predictable pricing and usually offer discounts in the process.

2. Structured payments make for more reasonably sized invoices and predictable outcomes. We prefer and our long-time clients have come to prefer a model where we offer predictable structured payments throughout the lifetime of a project. It ends up saving everyone money. In the right kinds of cases, we even couple structured payments with fixed prices.

3. Litigation Consultants Are Not Like Other Experts. We often hear from clients that many of their experts are comfortable waiting months to get paid and so we should be too. However, there is one big difference between a litigation consulting firm and most experts. A litigation consulting firm brings a team in to solve a problem (i.e. people to run a mock trial, create litigation graphics, run courtroom presentations). There can be dozens of people and large out-of-pocket costs involved. An expert firm may only use one or two people to prepare an expert report; thus their costs are quite low. Time is money always, but it is especially true when there are many out-of-pocket costs. The shorter the length of the outlay, the lower the price we can charge ultimately.

4. Working Capital Requirements Are Large. In a large project for a large case, it would not be unusual for us to generate six figures worth of invoices in a single month. If we do that a few months in a row and then have to wait three or four months to get paid on those, we would need to have upwards of half a million dollars of cash on hand just to fund that single project. And we're never just working on one project. Given the opportunity costs of keeping cash on hand, we can charge less when we don't have to keep it to fund a project.

5. We Provide Rare Access to High-End Talent. I think there are only a small handful of people in the world who are experienced in litigation and have a creative talent. Many of those people work at our firm, and there are others at a small handful of firms around the world. You should not forget that you're paying for rare talent whether that is your jury consultant, your graphics consultant or your in court trial technician.

6.  You get what you pay for. This is true in terms of quality, but this is also true for payment. When litigation consulting firms are not getting paid, salespeople do not get their commissions, and they complain to the folks who deliver your product. When the people charged with delivering your product have questions about the firm they are working hard to support, you can imagine that everyone suffers. It is a lose-lose cycle that is so easily avoided.

7.  Responsible payment processing helps everyone. Most firms like ours have had clients fail to pay their bills at some point, and this is money we probably will never see. So, it quickly raises red flags when we see payments arriving late. One way or another, this causes the cost of a project to rise, often because work is delayed and must be inefficiently rushed close to trial. If bills never get paid, like shoplifting losses in retail, it just gets passed onto other clients in the form of higher prices.

8.  We offer discounts for early payments via wire transfer. We try to make it easy for our customers to pay, and we even pay them to do so. It is a win-win.

9.  Friction costs money. The more a litigation consulting firm has to do to get paid, the more it costs the client ultimately. Such costs come in many forms and are easily avoided. Why not simply create set-it-and-forget-it payment structures at the beginning of an engagement coupled with accountability systems around the work performed? Doing so produces smaller invoices and better relationships.

10.  The equities support on-time payment. In comparison, litigation consulting firms are dwarfed by law firms and their clients. Is it reasonable to ask a litigation consulting firm to fund the operations of a Fortune 1000 company? Of course not. The cost of capital for a litigation consulting firm is much higher than for a law firm or Fortune 1000. Accordingly, money is saved simply by not forcing a litigation consulting firm to tap its pricey lines of credit to fund litigation when that capital could more cheaply be deployed by firms with much more cash on hand.

Other articles related to alternative fee arrangements and working with litigation consulting firms:

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Tags: Litigation Consulting, Trial Consulting, Litigation Support, Pricing, Alternative Fee Arrangements

24 Things to Know About The "New Normal" of The Legal Economy

Posted by Ken Lopez on Wed, Jul 31, 2013 @ 09:00 AM

the new normal big law economy commitizationby Ken Lopez
A2L Consulting

The term the "new normal" is a term that is frequently used today to describe the changing state of the legal market.

In its present connotation, the term was apparently coined by Mohamed A. El-Erian, the head of PIMCO, a major global financial firm, to describe the new post-recession world of slower economic growth. It was quickly applied to the legal market by other theorists. The concept was recently mentioned in connection with the current Weil Gotshal layoffs and other efforts by law firms to reduce staff to meet reduced demand. We have written about the topic recently and plan to release an e-book about the new normal in a couple of weeks (*subscribe for free and be notified of its release).

The reason we are writing about the new normal is because we believe there has been a permanent shift that mirrors what is happening in the economy as a whole. With the rise of the Internet, buyers of almost anything can now quickly find information about various products or services and compare price. This used to be quite difficult not all that long ago, especially in the legal market. 

In business, this process is called commoditization. When a product becomes commoditized, buyers learn what the product or service actually consists of, and they learn to compare similar providers. Once that occurs, RFPs appear in the marketplace, and price eventually becomes the biggest factor in purchasing decisions.

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In our industry, it was printed trial boards that were commoditized first. Then it was courtroom trial technician support and increasingly it is graphics and jury work. Price is not the only consideration, but it is a big one, especially for in-house counsel, and it should be. The speed with which e-discovery services were commoditized surprised even experts.

Being much smaller than a large law firm, we adapted to the new normal back in 2008 when we first announced fixed-fee pricing and other discounting methods to create predictable pricing. We continue to offer a variety of innovative alternative fee arrangements and we routinely participate in preferred litigation support vendor discounting programs.

Not only have we adopted new pricing methods, thus embracing commoditization in one part of our business, but we continue to innovate and add new service offerings like mock hearings and sophisticated jury consulting services. For a firm to thrive for decades as ours has, that is the only way to address commoditization unless you intend to become the Wal-Mart of your industry. Law firms must do the same – strive to deliver many services much more efficiently, while at the same time introducing novel elements to their businesses.

Below are 24 great resources that discuss the new normal, divided into 11 topic areas.

1. The ABA has 30 pages of article titles devoted to the new normal with the first mention of the term back in October 2010.

2. The New Republic article last week, The Last Days of Big Law, has been widely discussed as an example of the “new normal.” I think it was a bit of a hatchet job on Mayer Brown, which is a great firm. This ABA article discusses the New Republic article and includes Mayer Brown's statement on the article. So many have written about the New Republic article in the last ten days that the author has already penned a rebuttal to critics.

3. The Weil Gotshal layoffs last month generated a lot of discussion about the new normal. This New York Law Journal article discusses the reaction of other law firm leaders. What was especially noteworthy was that Weil Gotshal's executive partner attributed the layoffs to the "new normal."

4. I love this article discussing business basics as it applies to the new normal. The author does a great job creating a financial primer for law firm management.

5. The reports of Citi and Hildebrandt on law firm management always generate good discussion, and increasingly that is focused overtly on the new normal. Here is a good Above the Law article commenting on the specifics of a recent Citi/Hildebrandt report.

6. Many industry observers have discussed alternative fee arrangements (AFAs). Broadly defined, that means anything that isn't simple billable hours times an hourly rate. We have written about AFAs, DuPont is a thought leader on the topic and there are many good articles such as this ABA piece.

7. Pricing specialists. The new normal has given rise to a new position at law firms, strategic pricing specialists. If you are a large corporation, you would want to work with law firms that have a pricing specialist on staff. Firms like Akin Gump, Crowell & Moring, and others have great programs in place. Good articles have been written about this topic such as this article in the Legal Intelligencer. Here is a great blog article on who holds these positions at large law firms.

8. Discussion of the death of the billable hour. A discussion of the new normal essentially goes hand in hand with a discussion of the passing of the billable hour.

9. I like this 2013 report [PDF] from Georgetown Law describing the state of the legal market. It is a good rational discussion backed up by a lot of data. Altman Weil's 2013 Law Firms in Transition Survey [PDF] is also illuminating.

10. Perhaps the whole industry should get a copy of Who Moved My Cheese? because the apparent shock expressed by some to the industry changes is surprising.  This article talks about Motivation and Morale in the New Normal.

11. There are many good blogs discussing the new normal, the business of law and law firm economics. Here are a few I think are worth a look: Adam Smith, Esq., Leadership for Lawyers, Corcoran's Business of Law, Legal Bill Reviewer

What is the silver lining in all of this? First, everything is going to be okay. We adapted our pricing models very quickly five years ago, and I have come to prefer fixed-price engagements for our jury consulting, litigation graphics and courtroom technology assignments. Such an alternative fee arrangement removes a lot of anxiety and allows us and the trial team to focus more deeply on winning.

Furthermore, just as it is a bad sign when people say it's a new economy when the market is soaring, it is probably a good sign that people are talking about a fundamental shift having taken place now. It suggests we are at or past the bottom, and that likely means good times are just around the corner. Here's an encouraging pair of articles that remind us that despite all we hear, law firm hiring is up 27% and revenue per lawyer at large law firms rose by 8.5% in 2012.

Click here to Download a Free Litigation E-Book


Tags: Economics, Litigation Management, Management, Leadership, Alternative Fee Arrangements

17 Tips for Great Preferred Vendor Programs

Posted by Ken Lopez on Tue, Jul 23, 2013 @ 06:45 AM

preferred vendor programs law firms inhouse litigation consultantsby Ken Lopez
A2L Consulting

You might have read a recent article about the 12 alternative fee arrangements we use at A2L. It's one of our most popular recent articles, and for me, that speaks volumes about the state of the legal market.

I confirmed that sense the other day over breakfast with a partner in management at a major law firm. I asked him what he thought about the "new normal," a term being used to describe the increased market power of corporate counsel over price and other terms when engaging a law firm. His response was not surprising to me, but I am afraid it may be for some.

In sum, he said that now that corporate in-house departments have experienced having the power to control price, things will never revert to the way they were before the recession began to hit in 2008, with the possible exception of highly complex/highly threatening/bet-the-company style litigation. I agree, and given his good business acumen, it's no surprise that his firm is performing well while other firms continue to struggle.

Not long after the recession hit, A2L began to roll out a series of alternative pricing arrangements. We've continued to innovate since then as well. I have been watching carefully as various firms, both law firms and large companies, make us a part of their preferred vendor programs as a provider of litigation consulting services. It's how they set these programs up that is interesting to me.

Click here to Download a Free Litigation E-Book

Although A2L is a preferred vendor for a number of major law firms, most preferred vendor programs have largely focused on e-discovery, legal process outsourcing, and other more easily commoditized services like copying or scanning. For services like ours, where the work is mostly intellectual and often unpredictable in scope, pricing can be a challenge. However, we have also worked with Fortune 1000 in-house departments to help establish preferred rates in the last year. These in-house departments and their procurement teams have worked with A2L to establish standardized rates for a variety of services.

Below, I share some of the best practices as they apply to the selection of a litigation consulting firm based on what I have seen from both law firms and in-house departments recently.

  1. Get bids based on scenario pricing: A major national insurance firm requested a preferred rate for our jury consulting, litigation graphics and trial technology services. However, instead of focusing on the billable hour, they asked for scenario pricing like "one day mock trial, three panels of 12 jurors."  I thought this was a smart approach, and we can certainly answer similar questions that specify scenarios such a five-day patent trial over two patents with 30 exhibits in the Southern District of New York and no wired courtroom; or a scenario of trial technology only in a three-week trial in the Eastern District of Texas with 20 video depositions.
  2. Try to obtain discounted blended rates for bundles of services: Pricing a mock trial is very different from pricing of litigation graphics. For a mock, most of the money spent will be on the facility and the jurors. The professional fees are small in comparison. However, it is possible to blend rates for jury consulting, for litigation graphics consulting and for trial technology services. When asked, we will do it for the entire firm's set of services, although, it is influenced by the scope of the work to be performed.
  3. Remember, litigation is generally a one-time thing: You never want to be so focused on price that you overlook this. For trial support, you generally only get one bite at the apple, and vendors, especially new ones, can be a risk. So, as you consider procurement, be mindful of quality. Trust me, all firms are not created equal in this industry.
  4. Ask about minority ownership and diversity: A2L is a registered minority-owned business in many states, and there are reciprocity agreements among many other states. If you are a law firm, your clients are probably asking for this already. If you are in-house, you already likely understand the value of such certifications.
  5. Check references: Ask for names of people who are a lot like you.  If you are a general counsel of a Fortune 1000 company, ask to speak with others who are similarly situated. If you are the top litigation partner at an AmLaw top 10 firm, ask for references of this type.
  6. Learn the categories well: If you look toward the bottom of this article, you will see a good list of our services with a number of sub-categories. Your goal should be to collect hourly and scenario-based pricing in all of these categories when evaluating litigation consultants.
  7. Use spreadsheets: Your goal is going to be to build a spreadsheet with vendor services on one side and vendor names on the other. Only by collecting the data from a number of firms can you compare apples to apples. Remember though, there are not as many qualified litigation consulting firms as there are law firms or e-discovery firms, so you will likely need to include a quality score of some type to avoid comparing high-performing firms with lesser firms and doing a disservice to your client.
  8. Use tiered groups: Our firm tends to focus on larger, more complex cases, however there are firms who focus mostly on smaller cases. Just as one would do if they were comparing law firms, one would not want to compare their bet-the-company litigation counsel to their slip-and-fall counsel. It is important compare litigation consulting firms in tiers of who they typically serve.

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  9. Leave wiggle room: The best preferred vendor agreements I have seen include a couple of terms that remain not fully determined, in order to encourage discussion. Some firms charge for things that others do not, and you should leave the room to discover this fact. For example, we have competitors who still charge hourly rates for the use of a trial laptop by a trial technician whereas we assume that to be built into the hourly rate.
  10. Promote success fees, caps, ceilings, and the like: Referring back to our list of various pricing strategies, you should ask your vendor list who is willing to participate in various pricing strategies. Our list is a good guide for what to consider.
  11. Trade things vendors value that are no-cost for you: Not only do you have power to control price by simply demanding more standardization from like vendors, but by giving more you can get more too. For example, A2L frequently negotiates on price just to know we will be getting paid in a timely way.
  12. If you have volume, use it to your advantage: Running a sales operation in litigation support is expensive. There's travel, use of tools like LawProspector to research who needs your services, there are sales meetings, CRM, commissions and much more. If you can help reduce those costs for a litigation support vendor with a preferred vendor program, you will benefit in the savings.
  13. Invite many bidders: In our industry, there are all a handful of go-to litigation consulting companies for “brain surgery” style litigation. However, there are many firms available for your everyday $500,000 personal injury case. Figuring out who's who is not easy. So, rely on referrals and high-volume best-of lists like the National Law Journal's annual best of surveys.
  14. Take advantage of training: Many firms like ours offer ongoing training in the form of CLEs and other events. Negotiating this as part of the relationship is probably good for both parties.
  15. Review our tips for evaluating vendors in these articles: How to pick a litigation consulting firm and what you must know when choosing a trial tech and 6 secrets of the jury consulting business.
  16. Focus on the possible payment of travel time: Different people take different views on this topic. I actually think it should be compensated in some form if it is difficult for the consultant to do other work, but plenty of F500's take a different view. Just remember, litigation consultants are generally different from law firms. We tend to focus on one client at a time.
  17. Build a trusted evaluation team: It is going to take some smart people to work through these issues, but the payoff is in the bottom line.
a2l litigation consultants top 20 articles

Tags: Economics, Trial Technicians, Litigation Graphics, Litigation Consulting, Litigation Management, Litigation Support, Jury Consultants, Pricing, Alternative Fee Arrangements

12 Alternative Fee Arrangements We Use and You Could Too

Posted by Ken Lopez on Tue, Jul 9, 2013 @ 01:08 PM

alternative fee arrangements law firm general counsel inhouse trial consultantsby Ken Lopez
A2L Consulting

These days, alternative fee arrangements (AFAs), agreed upon between major law firms and their clients, have become commonplace as part of the “new normal” relationship between corporate America and their law firms. The old days of the billable hour are coming to an end, if they haven’t already ended. Although some commentators think AFAs are more discussed than actually used, there’s no question that they are here to stay.

The same can be said of the relationships between law firms and vendors such as litigation and trial consultants. At A2L Consulting, we are pioneering the use of AFAs in our dealings with law firms, and both sides are very pleased.

We recently conducted a survey of people who downloaded some of our e-books and asked: What is your biggest fear about using litigation consultants? Of five options, fully 62 percent said they were concerned about the price for litigation consultants’ services.

We are listening. In 2008, we pioneered fixed price arrangements for the preparation of trial graphics. It was a revolutionary approach that won A2L a lot of loyal customers who prefer predictability over uncertainty. In 2010, we announced fixed pricing for trial technician/courtroom technology support. In 2012, we announced fixed pricing for mock trials and some other jury consulting services.

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These fixed price arrangements are just one form of AFA’s that we use. Why do this? Actually, we prefer AFAs. I think they are better for our clients and better for us.

Our clients in large law firms consistently tell us that they prefer alternative fee arrangements, because they only have to have one budget conversation with their corporate client, as opposed to the old way of an easy one up front and a hard one after trial, and because it is a “set it and forget it” system that allows the lawyers to focus on getting the work done. We like them as well, because they allow us to get paid on a timely and predictable basis.

I think a fixed price alternative fee arrangement is a pretty good form of AFA, but it's just not perfect for every case. Sometimes, things are just too unpredictable weeks before trial. So we have created a number of other pricing strategies and discounting methods that have also worked well for our clients. Since our litigation consulting services are similar to the "consulting" that a law firm provides to a client, each of these alternative fee arrangement methods is applicable for law firms as well.

1. Fixed Price: The key to a successful fixed price engagement is agreement on a scope of work. In agreeing to fix price, we normally make arrangements to have payments arrive at predictable intervals. It's a win-win for all involved unless the work departs significantly (upward or downward) from the scope.

2. Capped Fees: Keeping in mind the necessity of an agreed-to scope, capped fees allow a bit of flexibility by providing a not-to-exceed level of billing. This approach can be beneficial when both sides know there’s a good degree of unpredictability in how the trial will go.

3. Billable Hour + Floor and Ceiling: This approach keeps the traditional billable hour as the base but protects both us and the client in case the volume of the work proves to be greater or smaller than anticipated.

4. Blended Rate: We have a blended rate for each of our three service areas (jury/trial consulting, litigation graphics and courtroom technology support) and even a blended rate for any combination of these services. This approach allows for easier review of invoices since it is just naturally easier to evaluate a bill based on a number of hours rather than sort out the increased complexity of how various rates were balanced together.

5. Days Rates/Week Rates: These are especially appropriate for our on-site trial services like on-site preparation of trial graphics or trial technology support.

6.  Success Fees: Increasingly the litigation support world is seeing the use of success fees or incentive bonuses being used by clients looking to align interests with their key vendors. Agreements of this type should be crafted with the corporate client and not the law firm, since fee splitting is not allowed between law firms and legal support vendors that work with them.

7.  Holdbacks: Similar to success fees, holdbacks are usually constructed to allow costs to be covered during the litigation and then a final amount to be paid after the engagement is complete. This amount may be voluntary, at the client’s discretion.

8.  Firmwide Volume Discounting: For some large law firms, we offer across the board discounts up to 25 percent that are based on ongoing sales volume. After a threshold is reached in the first year or after it becomes obvious it will be reached, subsequent engagements are discounted so long as the volume levels are maintained. If you are a large law firm or corporation engaged in frequent litigation, this is a no-brainer.

9.  Firmwide Marketing Discounting: For law firms that cannot achieve volume levels or those that want to avail themselves of discounts out of the gate, we offer a discount of up to 20 percent in exchange for helping us to market to their litigation counsel internally.

10. Litigation Financing: Relationships with litigation financing firms allow us to work at a reduced rate since they can be a frequent source of trial consulting work for A2L and because we refer them clients regularly.

11. Hard-line Estimates: If you have an estimate you can believe in, it can be nearly as good as the arrangements listed above – except when it’s not. Sometimes, through a combination of lowball estimates and trial teams who underestimate the scope of work, a hard estimate proves quite inaccurate, to the detriment of the relationship between the law firm, the client and the trial consulting firm. However, we have an 18-year history of providing firm estimates and know how to manage to them.

12. Settlement Insurance is a term we use to describe a discounting methodology that applies in cases like fixed price alternative fee arrangements. We agree to discount proportionally if a case settles rather than enforce a fixed fee.

In the environment of the “new normal,” law firms are proposing AFAs to their corporate clients, either because they want to or because they need to. Either way, they understand the importance of AFAs and their economic value. When it comes to paying the costs of a litigation consulting firm, they would like to benefit from AFAs as a client, and we think we can benefit as a vendor. Why shouldn’t people be able to agree on price and value -- whether it is for jury consulting, litigation graphics, trial technicians, or legal services? It's just good business.


Related articles about law firm economics, getting value from vendors and more:

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Tags: Economics, Trial Graphics, Trial Technicians, Trial Consultants, Litigation Graphics, Litigation Consulting, Trial Technology, Litigation Management, Jury Consultants, Pricing, Leadership, In-House Counsel, Alternative Fee Arrangements

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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.


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. Tony can be reached at klapper@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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