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The Litigation Consulting Report

Winning BEFORE Trial - Part 1 - Consider Litigation Costs and Opportunities

Posted by Ryan Flax on Wed, Aug 5, 2015 @ 01:59 PM

 

pre-trial-graphics-litigation-consultantsby Ryan H. Flax
(Former) Managing Director, Litigation Consulting and General Counsel
A2L Consulting

High-stakes litigation is hugely expensive these days. But what if there were a means of reducing litigation costs in a way that helps both the trial team and the client and doesn’t sacrifice the quality of legal representation? That would make in-house counsel very happy, since an important part of their job is to budget and control litigation costs. There are a number of ways to do this, such as using alternative fee arrangements, streamlining litigation teams and bringing e-discovery in house.

But what about a more radical step – trying to win your case well before trial? That would indeed be a cost saver and would lead to an excellent result.

Let’s first look at how expensive this type of litigation can be. A piece of employment litigation that is in the top 25 percent of costs (but not in the top one percent or anything like that), costs close to $1 million by the end of discovery – and that’s before closing arguments. And the costs are mostly borne by the defendant.

Or consider a typical patent infringement case – say, one that involves possible damages of $1 million to $10 million. This kind of case usually ends up costing more than twice as much as that employment case. By the time discovery is over in the patent case, you’re well past the $1 million mark in costs. Other types of cases – antitrust, environmental, contract cases and the like – are not quite as expensive, but costs add up there too.

how-much-does-litigation-cost

But it doesn’t have to work out that way. There are quite a few ways of winning a case without a trial.

First, we all know about dispositive motions – motions to dismiss, summary judgment motions, motions related to venue and jurisdiction, and the like. These can end a case before trial, but after the filing of a brief and usually an oral argument.

Second, a Markman hearing is a special type of proceeding in a patent case in which the court hears argument (and sometimes some expert testimony) and decides what the patented invention actually is by interpreting the patent claims and resolving disputes over claim language.

Third, a pre-indictment meeting is one that takes place when your client is under investigation by the government and you would reasonably expect charges to be presented against it. This usually involves an attempt by counsel to persuade the government to drop a case before it begins.

Finally, we all know about mediation, arbitration and settlement.

All of these are out-of-court occasions in which lawyers have a chance to argue their clients’ cases before trial. They can happen in lieu of a trial or just before a possible trial.

What do all of these have in common? They are all opportunities, before trial, to begin winning your case by using the best practices of case framing and persuasion.  If you can raise your game in these situations, if you can persuade the court or opposing counsel or the opposing party or a mediator or the opposition’s star witness that you’re a winner, how much better off would you be?

In our next post, we will discuss more about these best practices and how they can help you win. To be notified when subsequent articles are published, click here.

Additional articles and resources focused on pre-trial strategy and trial preparation from A2L Consulting:

* Chart data is based on 2013 Court Statistics Project Caseload Highlights, RAND Institute for Civil Justice “Where the Money Goes, Understanding Litigant Expenditures for Producing Electronic Discovery” (2012) and 2013 AIPLA data.

pretrial trial graphics motions briefs hearings

Tags: Economics, Markman Hearings, Arbitration/Mediation, Trial Preparation, Pricing, White Collar, Settlement, Briefs

[New Webinar] Winning Cases BEFORE Trial Using Persuasive Graphics

Posted by Ken Lopez on Tue, Jul 7, 2015 @ 04:41 PM

 

A2L-pre-trial-graphics-tallby Ken Lopez
Founder/CEO
A2L Consulting

We at A2L are sponsoring later this month a new and exciting webinar entitled “Winning Your Case BEFORE Trial Using Persuasive Litigation Graphics.” Whether you are in-house counsel, outside counsel, or a member of a litigation support team, this 60-minute webinar will prove invaluable and will reveal secrets of persuasion that will help you win cases before trial.

The key insight here is that graphics aren’t only for use at trial. They can also be used very effectively in motions and briefs presented to judges, even if jurors will never see them. If you are planning to use graphics to make your argument or tell your story at trial, why not use them at an earlier stage to make your argument convincingly in your brief or motion?

In addition, a lawyer who introduces graphics early in a proceeding can lay the groundwork for later use at trial or in another aspect of the case. This can also give the lawyer a sense of how receptive the judge is to the use of trial graphics in the case.

In fact, you’d be amazed at the different ways in which litigation graphics can be used. We have seen them deployed effectively in all of the following:

  •       Motions and briefs before judges
  •       Pretrial depositions
  •       Mock trials
  •       Alternative dispute resolution hearings
  •       Class certification hearings
  •       Lobbying presentations
  •       E-discovery disputes
  •       Settlement talks
  •       Pre-indictment meetings with prosecutors

Even if you can't make it to the live webinar later this month – it will take place July 29 at 1:30pm EST -- you'll receive access to the recorded version just for registering.  The presenter, A2L's Managing Director of Litigation Consulting, Ryan H. Flax, Esq., regularly works with top trial teams to help develop, refine and test storylines and persuasive graphics for briefs, hearings, depositions, ADR, tutorials, and pre-indictment presentations.

The topics of the webinar will include:

  • Why and how to frame your case as a story from the very beginning
  • Putting effective graphics in unexpected places: depositions, ADR and hearings
  • Techniques for persuading skeptical audiences with graphics
  • Using litigation graphics persuasively in briefs and motions

We hope to see you at the webinar later this month. Click here to reserve your free seat or be notified when the recorded version is available.

pretrial trial graphics motions briefs hearings

Tags: Markman Hearings, Trial Graphics, Litigation Graphics, Mock Trial, Arbitration/Mediation, Persuasive Graphics, Settlement, Briefs

5 Settlement Scenarios Where Litigation Graphics Create Leverage

Posted by Ken Lopez on Fri, Mar 7, 2014 @ 10:41 AM


settlement litigation graphicsby Ken Lopez
Founder/CEO
A2L Consulting

My colleague Ryan Flax published an article earlier this week about six key triggering events that warrant at least a call to your litigation consultant of choice. One of those triggers was settlement, and that got me thinking. In the hundreds of litigation-focused articles we've published here over the last several years, we haven't talked about settlement very much. Looking back, that seems silly since nearly all cases settle.

Over the past decades as a litigation consultant, I've had the opportunity to participate in a variety of settlements. Most frequently, we are engaged to assist in the preparation of litigation graphics for a mediation that is essentially a structured settlement process.

If you think of settlement as mediation, then how would you prepare? In mediation, I think most lawyers would prepare an aggressive presentation that helps persuade your fact finder. I think you should do the same for settlement talks.

In federal court, a magistrate judge will often try to force a settlement during pretrial conferences. Usually this involves the judge putting the parties in separate rooms, running back-and-forth between rooms, and telling each party that they're going to lose horribly. It's an effective tactic.

At this point, the judge is usually working from a short summary of the facts of the case and is by no means an expert in the facts. The judge is attempting to take a very quick look at the facts, and attempting to force both sides’ hands using fear as a motivator.

What if instead you were able to open up a laptop (or the same in paper form) and say, “Your Honor, if you'll allow me a three minutes, I'll show you six things that may change the way you are looking at this case.” I think most judges would say yes.

The same is true in direct settlement negotiations. Again, if you have a brief and powerful presentation available to you, you might be able to create enough worry in the other side’s mind to move them somewhat off their position. It is well known that fear of loss is a 10x greater motivator than hope of gain, so use it to your advantage.

storytelling for judge jury courtroom best method for trial persuasion and emotion

So here are five areas where you can use litigation graphics meaningfully, powerfully, and successfully during settlement talks.

1. During actual mediation. Here there are usually no federal rules of evidence. It's a good time to be aggressive with your litigation graphics. 

2. During settlement talks in a judge’s chambers. Whether you open a laptop to a PowerPoint or whether you have tabletop-size charts to share, using visuals will show that you're serious, will allow a judge to get her arms around your case quickly, and will provide ammunition to force settlement from the other side closer to your number.

3. During direct settlement talks. Using graphics during settlement talks will help put some fear into the opposition and may induce opposing counsel to change their long-held beliefs about the case.

4. During an email exchange settlement. Some settlements happen entirely over email. Sharing a handful of graphics in an email is simple and shows you're prepared and ready for trial. It does not take many graphics to get your point across.

5. During mock settlement discussions. Not all settlement discussions are created equal. In some cases the dollars at stake are such a big deal that mock settlement discussions or mock mediations are conducted. This is an excellent time to test your litigation graphics to see how they fly with your mock opponents or mock mediators.

Don't overlook litigation graphics in your settlement talks. They are an essential weapon in the arsenal of the well-prepared trial lawyer.

Other A2L articles related to litigation graphics use in arbitration/mediation or at trial generally:

  

  complex civil litigation ebook free

 

 

Tags: Trial Graphics, Litigation Graphics, Courtroom Presentations, Demonstrative Evidence, Arbitration/Mediation, Judges, Settlement

14 Places Your Colleagues Are Using Persuasive Graphics (That Maybe You're Not)

Posted by Ken Lopez on Thu, Oct 11, 2012 @ 08:15 AM


persuasive graphics trial litigation graphicsby Ken Lopez
Founder & CEO
A2L Consulting 

People often focus on the use of trial graphics in, well, trials. And there’s no doubt that that’s where persuasive graphics, presentations, and exhibits are most often used. But you might be surprised to see how many other places are appropriate for the use of litigation style graphics. Here are 14 good examples. 

  1. In motions: A juror will never see them but a judge will. For more on this topic, read our article on using litigation and trial graphics in motions.

  2. In briefs: Generally, trial graphics are used for perfectly normal reasons in briefs. Occasionally, an attorney will use them for the sake of humor or just to prove a point. See this comical courtroom brief.

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  3. In depositions: One of our clients recently asked us to prepare litigation graphics for depositions with an eye toward using those same graphics at trial.

  4. In mock trials: These can be an excellent investment of money and time in a case that is large enough and significant enough to justify the use of litigation graphics during the mock. See our article on using litigation graphics during a mock trial.
     
  5. In pre-trial hearings: We all know graphics are used in Markman hearings, but they are also frequently used in summary judgment hearings and in hearings on motions to dismiss. Again, the jury will not see the exhibits but a judge will.

  6. In arbitration and alternative dispute resolution: This use of trial graphics is overlooked more than others. Many arbitrations follow rules of evidence and resemble trials, and litigation graphics are quite appropriate in them and in ADR generally.

  7. In class certification hearings: Graphic demonstrations can be used in many aspect of class actions, and the issue of “predominance” is one in which they are especially useful.

  8. In advocacy and lobbying presentations: Hydraulic fracturing is a controversial issue, and the graphic that we prepared shows how fracking works and may dispel some unwarranted myths and fears about fracking. It's received 60,000 views as of this writing demonstrating how one might use PowerPoint and video to get a message out.

  9. In presentation graphics: Most of us prepare and deliver presentations as part of our work. This article on presentation graphics showing how the President prepares and delivers an effective visual presentation using persuasive graphics is a good guide for any of us.

  10. In e-briefs: This technique is being used more and more frequently by trial lawyers, and e-briefs are now including litigation graphics, sometimes animated graphics too.

  11. In e-discovery disputes: Sometimes, a courtroom presentation consultant will demonstrate what documents were missing and why sanctions were warranted. Sometime the graphics illustrate, to the contrary, that the documents were completely or largely produced or that the matter in dispute is not large enough to require sanctions. E-discovery hearings are utilizing persuasive graphics more and more.

  12. In settlement discussions: We have seen trial graphics prepared for settlement many times in the last two decades. Recently, however, the sophistication demanded of those graphics has been on the rise. Sometimes, even high-end 3-D animations are prepared. The trick, of course, is to balance the persuasive benefit of the graphics with the risk that settlement talks fail, and you tip your hand leading up to trial.

  13. In pre-indictment meetings: As government budgets have increased over the last four years, so too have pre-indictment meetings with prosecutors. We have prepared countless 'clopening' style presentations for these meetings hoping to help our client avoid indictment altogether. Well-thought-through persuasive graphics may help avoid a negative life or company changing event.

  14. In technology tutorials: No longer are technology tutorials used only in patent cases to help educate the judge. Litigators are requesting to submit them in other cases where educating the judge is beneficial to both sides. This could include complex financial cases, large antitrust matters with a complex product at issue and many other types of cases.
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Tags: e-Briefs, Patent Tutorial, Markman Hearings, Arbitration/Mediation, Presentation Graphics, Advocacy Graphics, Judges, Claim Construction, Depositions, White Collar, Class Action

Making Good Use of Trial Director & Demonstratives in an Arbitration

Posted by Ken Lopez on Thu, Jan 5, 2012 @ 07:26 AM


trial director technology presentationTrialDirector, a trial presentation software package produced by InData, is an indispensable aid to the presentation of electronic and other evidence at trial. There is a reason why this product has claimed the majority of the market share for trial presentation software for more than 10 years: It can actually make it interesting for a jury or other fact-finder to listen to a witness testify about corporate balance sheets, long-ago emails, and other documents that can be fatally boring and lose the attention of the fact-finder.
 

At A2L Consulting, we have been using TrialDirector to support our presentations and to help our clients win cases for more than a decade. The combination of this software and a well-trained “hot seat operator” makes presentations interesting and sprightly. We generally pair TrialDirector with PowerPoint, other specialty software, specially constructed scale models, and the occasional printed large-format foam core trial board to put together a full trial presentation. We use TrialDirector for more than half the cases we support.
 

For example, in the case of Railroad Development Corporation v. Republic of Guatemala, we worked with the Railroad Development Corporation and with the international law firm of Greenberg Traurig to make an arbitration case at the International Centre for Settlement of Investment Disputes, the leading international arbitration institution devoted to investor-State dispute settlement. This was a two-week arbitration.


 

The video here shows how closely integrated the witness’s testimony is with the document that he is describing (an excellent use of TrialDirector), as well as the use of a carefully designed PowerPoint to show the status of the Guatemalan railroad at issue and the work that was done to improve that railroad. Using Trial Director, our hot seat operator brings up documents in real time and highlights them in color to point out the key aspects that we want to emphasize.
 

The video also briefly shows part of the opposing side’s low-tech presentation (begins at 5:15), which is based on “sticky notes” and a PowerPoint template that is not tailored to the case at hand. Our presentation is much more likely to capture the attention of the fact finders in what otherwise might be seen as a dry-as-dust case.
 

The basic point is that all cases benefit from the thoughtful presentation of evidence. The more haphazard the presentation, the less credible the presenter will be. Our TrialDirector operators are specifically trained in the use of that powerful software – but the key to success for a trial technician is not just the software savvy but also the ability to work on the fly, to suggest creative ways of presenting evidence, and to work long hours for weeks at a time.
 

Below are some other resources about TrialDirector and Trial Technicians on our site:


Trial technicians using TrialDirector are normally responsible for the following at A2L:
  • creating a trial exhibit and document database before trial starts;
  • making deposition clips and syncing them with a transcript;
  • helping the litigation team to prepare witnesses to build their comfort with an electronic presentation;
  • setting up a war room and electronic courtroom with trial presentation technology;
  • helping to finalize the case-in-chief and demonstrative evidence presentations;
  • running the trial presentation technology in the courtroom so any document is accessible instantly;
  • creating on-the-fly demonstrative evidence to be used with a witness on cross examination;
  • running the entire trial presentation using Trial Director;

Some additional trial technology, trial graphics and trial technician articles that you may find useful include:

 

best demonstrative evidence trial presentation provider

Tags: Trial Technicians, Trial Consultants, Trial Presentation, Litigation Technology, Hot Seat Operators, Trial Technology, Arbitration/Mediation, PowerPoint, Trial Director, Document Call-Outs

The iPad Friendly Courtroom - The View of a Seasoned Trial Technician

Posted by Daniel Carey on Mon, Oct 24, 2011 @ 10:18 AM


ipad courtroom litigationby Daniel Carey, Senior Trial Technician, A2L Consulting

I'm in Chicago and halfway through a one-month arbitration. Seated across from me is opposing counsel. Steve Jobs would have been proud.

In the conference room where the arbitration is being held, four out of five attorneys are using iPads, propped in both landscape and portrait, all with Bluetooth keyboards. A Bluetooth keyboard is a wireless keyboard, either similar to a normal wireless keyboard or a pocket-size device that projects a full-size keyboard through infrared technology onto any flat surface.

In my last case, in Fairfax, Va., our counsel placed his iPad upon the ELMO (a device normally used to digitally project hard copy documents). The judge asked on the record, "Do you have an app for that?"

There is an app for nearly everything these days. The world has changed, and so has my work as a trial technician.

As you probably know, a trial technician (sometimes called trial consultant, trial tech or hot-seat operator) goes from trial to trial (or arbitration or hearing) providing litigation support services to the trial team. Specifically, I am normally responsible for:
  • building the exhibit and document database prior to trial;
  • cutting deposition clips and syncing them with a transcript;
  • working with counsel to prep witnesses to work with an electronic presentation;
  • setting up the war room and courtroom with electronics;
  • working to finalize the documentary and demonstrative presentations;
  • running the electronics in the courtroom so that any piece of evidence is accessible instantly;
  • making on-the-fly demonstratives to be used with a witness on cross;
  • running the demonstrative and documentary evidence presentation;
All of these tasks ordinarily need to be done on little sleep, and in the trial technician profession, we are not allowed to show stress – ever. In fact, our jobs as trial technicians are to absorb stress.

The same is true for technological change in our business. It is inevitable, and it is something that we must absorb.  The iPad is bringing rapid change just as PowerPoint once did.  It will not be long before jurors are given iPads to use throughout trial (Facebook-disabled, of course).

As Peter Summerill, a Utah attorney and author of the MacLitigator blog, has written, “At trial, the iPad really shines. Trial technology should be transparent. This means that it should not appear to the jury as (1) overly flashy; or, (2) a complete headache and a distraction to the attorney. Apple has created a product which facilitates presentation of evidence without getting in the way and does so in a completely unassuming fashion.”

Over the last year our technology team has pioneered ways to publish ebriefs on an iPad and to view all case documents and proposed demonstrative exhibits via an iPad app. Now I am seeing iPads spread quickly into courtrooms and arbitration rooms around the country.  It is an exciting time, and it is a great time to be a trial technician and a great time to try cases.

Click me
 

Tags: Trial Technicians, Trial Consultants, Trial Presentation, Courtroom Presentations, Litigation Technology, Trial Consulting, Hot Seat Operators, Trial Technology, iPad, Arbitration/Mediation

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Authors

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-headshot-500x500.jpg 

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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