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This weekend, television news is sure to be dominated by Hurricane Florence. Many of us will watch the all-too-familiar scenes of high waves hitting the coastline and reporters being blown about by powerful winds. It's almost routine from a TV-watching perspective. But one unusually persuasive graphic caught my attention this week. Did you happen to see the Weather Channel’s storm surge simulation? I think it’s brilliant, and it potentially offers some lessons for forward-thinking trial counsel. The simulation begins at the 55-second mark in the video below:

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It seems to me that a good many sophisticated people, including a lot of lawyers, don’t fully understand the role of storyboards in developing an animation. A storyboard has been defined as a graphic organizer in the form of illustrations or images displayed in sequence for the purpose of pre-visualizing a motion picture, animation, motion graphic or interactive media sequence. The first story boards were used by the Walt Disney animation team in the early 1930s, and at A2L, we use storyboards in exactly the same way – to pre-visualize an animation that we are intending to use at a trial. As longtime readers of this blog may know, I came to this business about 25 years ago, just after my law school graduation. I knew a good deal about computer animation in the Toy Story era, and I originally envisioned A2L as a trial animation company for attorneys, focusing in the intellectual property area. A2L has grown to become a leading trial consulting firm and a top provider of litigation graphics and jury research, but I’ve always had a special fondness for litigation animation. Animation remains a very vibrant part of trial practice, especially now that common tools like PowerPoint provide a basic animation function as a standard offering. It’s no longer necessary to bring in a specialized designer to provide animation for trial. We’ve written about this in articles like Legal Animation: Learn About the Four Types Used in the Courtroom, What Does Litigation Animation Cost? (Includes Animation Examples), and Patent Comes Alive! Turning Patent Drawings into Trial Presentations.

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Courtroom Technology and Its Limitations

We write here frequently about the importance of using visual evidence in trials and indeed in all sorts of other legal forums. But technology is not the be-all and end-all of persuasion. It is a very useful tool, but the importance of technology does not lessen the need to tell a convincing story to a jury or another decisionmaker. In fact, if courtroom technology is not deployed correctly, presenting visuals to a judge or jury can detract from one’s message rather than enhance it. In other words, figuring out who will be victorious at trial is not simply a matter of determining who is using litigation graphics and who is not. Any trial is ultimately about how each side can use its graphics to support an effective story. Technology-based graphics, therefore, should not be used to make up for the trial skills a lawyer lacks, but rather to enhance the skills he or she already possesses. The type of technological visual is another variable to consider when presenting an argument. Some research has suggested that depending on the case, different types of technology-based graphics can have different persuasive effects on the jury. For example, researchers compared a computer simulation of an air crash, an audiotape with written transcript of a cockpit voice recorder, and a speaker reading the cockpit voice recorder, and asked people to decide whether they believed there was a pilot error based on the evidence to which they had been exposed. The researchers found that jurors who were shown the computer animation believed the flight crew to be significantly less negligent that the other jurors who did not. Animations are so powerful because they can take us to places human beings cannot go. But even without animations, simple PowerPoint slides can be quite effective in advancing your narrative if done right.

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It is unquestioned that technology has had a profound impact on our environment in the last couple of decades. Our brains are constantly adapting at a physical level to our environment, and research has suggested that technology has changed the way we perceive, remember, and process information. Not much has yet been said, however, about how technology has changed the ways in which jurors process information and the appropriate new styles that trial lawyers ought to use in presenting information to a jury. The growth of the internet, 24-hour television, and mobile phones means that we now receive five times as much information every day as we did 30 years ago. With the appropriate internet connection, technology allows us to access any information in less than a second. According to Internet Live Stats (2014), 88.5 percent of people in the United States are internet users. In addition, the internet has also changed the way we as a society process information. For example, when we read a book we do so linearly, from one sentence to another, but when using multimedia devices, we scan for keywords and grab small bits of relevant information. The internet has influenced people’s cognition in a way which they will now typically forego complex analytic thinking to get information quickly and easily. In other words, people allow the internet or even their smartphones to think for them. As a result, it is much harder to sustain attention, to think about one thing for an extended period, and to think deeply when new stimuli have been pouring in all day long. This is not to say that technology has negatively impacted our brain. Instead, the excess amount of information at our fingertips has changed the way we process large amounts of information and specifically, what information engages our attention.

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Law360 is a top legal industry publisher owned by Lexis-Nexis. Its daily newsletters are a must-read for trial lawyers involved in big-ticket litigation. This interview, Trial Consultants Q&A: A2L Consulting's Ken Lopez, was originally published on April 28, 2017, and is reprinted here with permission. Links to A2L articles and resources have been added by A2L in this reprint. Q: What aspect of trial consulting do you and your firm specialize in? What is unique about your firm, compared to other trial consulting firms? A: Founded in 1995, our firm is a leading national litigation consulting firm that helps trial lawyers and other advocates more reliably win complex and high-dollar disputes. We are typically in trial year-round and deliver world-class client-pleasing results in three key service areas: jury research and consulting, litigation graphics consulting, and trial technology consulting. We have recently been voted #1 in each of these categories by major legal publications. The composition of our leadership distinguishes it from other trial consulting and litigation consultant firms. Unlike firms whose origins are rooted in the trial technology business, the engineering business or the marketing/public relations fields, our team is composed of experts in the persuasion sciences. These include former litigators from top law firms, attorney-artists and social science Ph.Ds with decades of experience working with judges and juries. We primarily serve AmLaw 100 law firms and their clients. However, the firm regularly works with boutique law firms and in-house departments. It counts amongst its clients nearly all top law firms and a large portion of the Fortune 500. Most people find A2L through its litigation and persuasion-focused blog, The Litigation Consulting Report. It has nearly 10,000 subscribers and was named one of the top ten blogs in litigation by the American Bar Association. Q: What was the most interesting or memorable case that you worked on? A: The average case at A2L Consulting is a business dispute between global companies with $100 million at stake where we provide jury consulting, a mock trial, litigation graphics, and courtroom hot-seat trial technology support. One of our most memorable cases was entirely — not average. Through a top trial lawyer, we were hired to work on behalf of a surviving family member of the 1996 crash of ValuJet Flight 592 in the Everglades. This was not a plane that exploded or quickly crashed. Instead, oxygen containers in the cargo area helped fuel a fire that caused smoke to fill the plane. Then, the oxygen-fueled fire burned through the passenger cabin floor from below. After some time, controls on the plane were destroyed by the fire. Then, the plane flipped and dove into the Everglades below. No one survived. It took a long time for the tragedy to unfold and the passengers had awareness of what was happened. We know this because the plane was equipped with recording devices in both the cockpit and the passenger cabin. The recording is confidential, but none of us who worked on this case will ever forget what we heard on that recording. To help the jury visualize the experience the passengers had, we could have created a 3-D animation to show what the experience inside of the cabin was like. Instead, we synced that chilling audio with an animation we created that helped tell the tragic story. Once the animation was admitted into evidence, the case quickly settled. Q: Which stage of the trial process is the most challenging, and why? A: While we support all phases of litigation from prefiling to appeal, our firm most often focuses its consulting efforts on the opening statement. Indeed, we speak and write about opening statements often. Perhaps second only to jury selection, the opening statement can make or break an entire case. It provides the framework and narrative upon which the judge or jury will hear the evidence. For many, consciously or subconsciously, the decision about the outcome of the case will be made during opening statement. Because the opening statement is so critical, the best trial lawyers expend enormous amounts of effort preparing for openings. I’ve seen some trial lawyers practice their opening more than 100 times over the course of a year. Not surprisingly, these trial lawyers tend to win their cases. In every type of litigation consulting we provide, the opening statement is a central focus. When we conduct a mock trial, the attorneys present their openings to mock jurors or mock judges. When our senior litigation consultants work with top trial lawyers to refine their trial presentation, we ask them to present their openings as part of that process. When we design a PowerPoint presentation for opening, we ask our clients to do run-throughs of openings. When we introduce one of our trial technicians/hot-seat operators to a trial team, we ask the first chair to practice opening statements so they develop a rapport with the trial tech. Indeed, sometimes, we are asked to draft an opening statement as part of our litigation consulting effort. Opening statements are the most challenging part of the trial process because they should be. Cases are regularly won and lost because of them. Q: How has trial consulting evolved over time? What major differences are there between the industry when you started and the industry now? A: Our firm, now a national litigation consulting firm with jury consulting, litigation graphics consulting and trial technology consulting practices all voted #1 by the legal industry, was started as Animators at Law, an animation and litigation graphics firm for trial lawyers focused on persuasion. Back in the mid-1990s when we started our firm, the idea of using demonstrative evidence/litigation graphics during a trial was new. Today, no serious trial lawyer would go to trial in big-ticket litigation without litigation graphics and nearly all would hire a litigation graphics consulting firm like ours. When we started our firm, PowerPoint did not exist. Most litigation graphics were printed trial boards. Today, trial boards are used as unique emphasis tools that supplement a PowerPoint trial presentation. The practice of jury research has changed too. It has evolved from a guru-dominated practice where gut instinct drove many decisions. Today, there is more scientific rigor among top jury research firms. They let the data speak for itself and supplement that data with advice based on experience. Of course, the trial technology practice has radically changed. In the 1990s, it barely existed. Now, the complexity of cases demands that an experienced trial technician/hot-seat operator run the technology, show the trial presentation and be ready to pull up evidence on a moment’s notice. Q: What are some of the biggest challenges when working with attorneys and their clients? A: One of my colleagues likes to say, “they call it the practice of law, but nobody is practicing.” I agree wholeheartedly. If I could change one thing about the way trial lawyers prepare for trial, it would be the way they practice. The correlation between open practice in front of peers and winning cases is unmistakable. Half of the time, trial lawyers practice extensively and seek feedback from litigation consultants and colleagues. These lawyers tend to win their cases. When we see a trial lawyer who wants to privately prepare their trial presentation on the eve of trial, we worry. It’s not that this approach can’t work. It often does. Instead, we simply recognize that the more a trial team openly practices, the more often that trial team wins.

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  by Ken Lopez Founder/CEO A2L Consulting We recently asked three top trial lawyers about what makes them so successful in the courtroom. They are quite a successful trio. One of them is Bobby Burchfield of King & Spalding, whose bio notes, “Mr. Burchfield has never lost a jury trial.” That's an especially impressive track record as he's been in practice more than 30 years. So what does winning take? Well, as we saw in previous clips from the same interviews, these trial lawyers believe, as we do, that storytelling is at the heart of building a successful case. Furthermore, as all demonstrative evidence consultants and most trial lawyers will tell you, combining persuasive visual evidence with persuasive oral communications produces a truly synergistic persuasive effect. Persuasion is a rare circumstance where 1+1 really does equal more than 2. Of course, as we have long counseled, just because something is projected on a screen does not make it helpful at a trial. In many cases, as in the case of lawyers who use bullet points to summarize their arguments on screen, some visuals actually make you less persuasive. If yours looks like the image here, then you are certainly doing more damage than good. For more on why that's true, please see our articles 12 Reasons Bullet Points Are Bad (in Trial Graphics or Anywhere), The 12 Worst PowerPoint Mistakes Litigators Make, and Why Reading Your Litigation PowerPoint Slides Hurts Jurors. In this three-minute clip, we hear from the best of the best -- Bobby Burchfield of King & Spalding, Rob Cary of Williams & Connolly, and Patrick Coyne of Finnegan. And we certainly don't hear them talking about the power of bullet pointed lists. Instead, you hear these trial-tested litigation experts talking about the use of animation, the value of timelines, and the importance of showing real evidence to ground your argument in credibility. Burchfield said, “People learn both by seeing and by hearing, and if you can combine those two in one presentation, the more sensory perceptions you combine, the better off you are. Timelines are powerful persuasive tools. A timeline shows from left to right who did what and to whom. Sometimes you show in a timeline above the line what your client knew and below the line what your client didn’t know. It can be a powerful story to show contrasting events that were going on simultaneously. This helps the jury put the entire case into context.” Cary noted, “When a jury can see something that visually displays the evidence, that cloaks you in credibility. That’s critical in earning their trust.” Coyne pointed out, “People are predominantly visual. Most people need an image. They need it to tie things together. Ken [Lopez] and his people did a fantastic animation for us. The judge turned to the other side and said, ‘If I credit this animation, you lose. Do you know that?’ It was a very compelling animation. That’s what I mean by appealing to the judge by giving him a visual that explains what you’re trying to say.” Watching lawyers like these work is a pleasure and their teams score high on our assessment of what makes a great trial team. Other articles related to persuasion in trial, the use of bullet points, and trial presentation best practices from A2L Consulting: Don't Use PowerPoint as a Crutch in Trial or Anywhere 6 Trial Presentation Errors Lawyers Can Easily Avoid 12 Reasons Bullet Points Are Bad (in Trial Graphics or Anywhere) 10 Criteria that Define Great Trial Teams How Much Text on a PowerPoint Slide is Too Much? 5 Ways to Maximize Persuasion During Opening Statements - Part 4 Free A2L Consulting Webinar: Persuasive Storytelling for Litigation The 12 Worst PowerPoint Mistakes Litigators Make 12 Ways to SUCCESSFULLY Combine Oral and Visual Presentations The Effective Use of PowerPoint Presentation During Opening Statement 16 PowerPoint Litigation Graphics You Won't Believe Are PowerPoint

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by Alex Brown Director of Operations A2L Consulting

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  by Ken Lopez Founder/CEO A2L Consulting A2L Consulting offered its first free litigation webinar just 18 months ago. Since then we've conducted six litigation focused webinars, all free, including: Storytelling for Litigators, Patent Litigation Graphics for Litigators, Making Expert Evidence Persuasive, Persuasion & Opening Statements, Using PowerPoint Litigation Graphics and What Mock Jurors Always Say. These webinars may be viewed on our site anytime, and they have been viewed nearly 10,000 times already. I find that amazing. Since each new webinar is a bit more popular than the one that came before it, it's a bit hard to tell which topics are really the most popular. So, I thought it would be helpful to ask our 6,500 blog readers what topic we should cover in our next webinar (likely May or June). Finding a good webinar presenter will not be difficult. On the A2L team, we have expert jury consultants, trial-tested litigators, experts in persuasion science, the top consultants in visual persuasion and many categories of litigation and persuasion experts. 

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