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The Litigation Consulting Report

How To Find Helpful Information Related to Your Practice Area

Posted by Ken Lopez on Fri, Jan 2, 2015 @ 04:34 PM

 

practice-area-experience-a2lby Ken Lopez
Founder/CEO
A2L Consulting

Not every page, blog article, webinar or e-book on A2L Consulting's site is right for everyone. As the saying goes, what is everyone's favorite radio station? WII – FM, of course. Otherwise known as "what's in it for me?"

With hundreds of articles, dozens of e-books and hundreds of other pages, A2L's website has over 2,500 pages of valuable content. Sometimes, finding materials that are specific to your litigation practice area or need can be a challenge with all the available options.

You can search A2L's site or even browse by topic area using a topic list in the sidebar of every blog post. In spite of this, I still hear from a lot of people who wonder whether we have experience working in their specific practice area or where they can find useful information related to their practice.

I wrote this article to highlight some very useful information organized by practice area below. I've broken down the practice areas into 14 topics that cover most of the work we do. The alphabetical list with links under each topic should prove helpful when looking for the information most relevant to you.

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Antitrust: Our work in antitrust often involves making complicated economic principles make sense to judge and jury. Working with experts is essential in these cases to help them develop a coherent story.

Banking, Securities & Finance: Our banking litigation work has most often included allegations of banking fraud, disputes involving CDOs or some other financial industry-collapse related litigation.

Bankruptcy: Our bankruptcy work usually involves advisory disputes or the failure of a large company.

Complex Civil Litigation: Many disputes we are involved in are contract disputes between large corporations. Goliath vs. Goliath litigation requires special care given the stakes and resources available to both sides.

Construction & Architecture: Architecture one type or another construction disputes typically relate to defects in construction or leasing disputes or construction delays

Employment & Labor: Our labor work often involves allegations of discrimination or other large scale labor disputes. Increasingly wage and hour disputes are finding their way to trial.

Environmental & Energy: Environmental work often involves discussing human health risk from a particular chemical or the migration of a particular leak.
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International:
 Our international work often involves arbitration work at ICSID at the World Bank, at the ICC in New York or at some other venue around the world.
Life Science-Related: Science-focused topics dominate many forms of litigation. This includes disputes around pharaceuticals, medical devices, biotech and many products. Our challenge as a litigation consulting firm is frequently to make the material understandable for judge and jury.
Medical Malpractice: Our medical malpractice work sometimes involves showing how a surgery occurred and sometimes involves handling allegations of errors.
Patent, Trademarks & Copyright: Our are patent work is wide ranging and frequent, covering all lines of marketplace. About half of the cases we consult on are complex patent cases.
Product Liability: We have spent the last several decades consulting on everything from tobacco litigation to cell phone litigation to fracking litigation.These cases always involve detailed interaction with consulting experts and testifying experts.
Transportation (Aviation, Space, Automobiles, Trains and Ships): Although trials are rare since most cases tend to settle that involve a crash of planes trains or automobiles. More often transportation cases involve product liability or some other cause of action.
White-Collar & Criminal: Our work in criminal cases used to be restricted to basic white collar criminal work. Increasingly though, we are being called upon to consult on everything from campus sexual assault cases to murder cases.


Other articles and resources on A2L Consulting's site that relate to our experience by type of case and by type of experience:

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Tags: Patent Litigation, Science, Environmental Litigation, Banking Litigation, Construction Litigation, White Collar, Labor and Employment, Product Liability, Antitrust Litigation

5 Ways the Economic Crisis Has Changed Jurors

Posted by Laurie Kuslansky on Mon, Aug 19, 2013 @ 01:30 PM


jurors new normal economic crisisby Laurie R. Kuslansky
Expert Jury Consultant

We have participated in a number of Great Recession cases. They tend to be related to banking, lending, LIBOR, fraudulent conveyance, securities, housing, a partnership gone bad, failed corporate spin-offs, failed transactions, or some type of fraud. We're about to start another one that also has its roots in the economic crisis and the government's response to it.

In many of these cases, we have had the challenge of reminding jurors that economic conditions looked awfully good in the years leading up to the staggering downturn. It was only at the very end of 2008 that real fear set in for the masses. So, often a jury is now asked to put themselves into a pre-recession mindset. We have used a variety of visual and rhetorical techniques to do so. From litigation graphics that incorporate a rear-view mirror or Monday morning quarterbacking metaphors, to a whole host of really scary charts showing just how bad things got and just how fast the economy crumbled, but that at some earlier point in time, it was unforeseeable.

“I knew it all along…”

The challenge is that looking back in the absence of what one already knows is daunting, and what psychology terms as “hindsight bias,” [1] “The term hindsight bias refers to the tendency people have to view events as more predictable than they really are. After an event, people often believe that they knew the outcome of the event before it actually happened.”[2] 

So, on this backdrop, how does it go when we ask jurors to get into a pre-recessionary mindset and judge the decisions our client made then in that light? Well, as you’d imagine, not well. It turns out that, for the most part, jurors cannot shift their thinking to really get into that mindset and some just can't even remember good times anymore or aren’t willing to do so. They can’t un-know or un-feel what they have experienced since. This is similar to the scenario in pollution cases in which, unless a juror is old enough to remember changing their car oil and dumping it, it seems unfathomable.

So, what is one to do if your case depends on a judge or jury reaching a conclusion that decisions were reasonable -- then -- not now?  We're finding that the answer is embracing the reality, changing your approach, and managing for the new reality. In martial arts terms, you might think of it as redirecting your opponent's energy instead of resisting it.

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Here are 5 ways jurors have changed because of the economic crisis and what to do about it.

1) Rethink Jury Selection: Most of us have stereotypes about who is the typical plaintiff or defense juror. These must be revisited freshly and on a one-to-one basis during jury selection. Some formerly defense-minded jurors have turned into virulent plaintiff-oriented ones.  If their once-secure portfolio or job were hindered, they tend to be less defense-oriented;

2) Bankers Will Pay: If your opponent is a bank, use it against them relentlessly. If you or your client is a bank, expect a jury to punish that fact. To inoculate against a banker attack, you should, to paraphrase Gordon Gecko, say, “Of course my clients are greedy, they're bankers! So why do you think they would do something that would yield bad results?  They wouldn't, because they are (greedy) bankers (or CEO's or business people or a Board of Directors).”

3) Perceptions Have Changed - But Not How You Might Think: Since the recession, Pew Research Center polls consistently find that the general public actually says their first priority in this economy is time -- not money -- as one might expect. Therefore, you must not waste the jury's time! Make your case very efficient by refining it with your mock jurors and litigation consultants and by summarizing the key information into user-friendly graphics.  Don’t show pages of information that can be better condensed into one graphic.  Know your point and get to the point.

4) Embrace New Emotions: Because of the Great Recession, emotions may be running high in voir dire depending on the length of your case, the subject matter of your case or by factors that have nothing to do with either. Rather than run from these emotions, encourage jurors to let it all out and express what is on their mind. Remember, revealing your enemies is the first goal in jury selection.  Of course, those who do express themselves strongly stand a fair chance of being excused for cause and you might just be able to tamp down some of the emotions in the jury room IF this is helpful to your case. Jury selection is one of the rare instances in which it helps you and your client to welcome hostility.

5) Trial Presentation Matters More Now Than Ever: Jurors expect faster trials than we used to see twenty years ago. You have to be quicker and very often your trial presentation is the best way to achieve that. Do not beat around the bush. Tell jurors exactly what they need to know. Rather than putting up litigation graphics that encourage a conclusion to be made, show the chart AND show them the conclusion they should draw from it. 

It's not just a new normal in the legal community, it is a new normal for most Americans. Things are getting much better and most people's optimism is returning, cautiously. For many jurors however, you can expect to see a lag, corporate distrust, and a way to finish the job of serving so they can get back home and to their real job, if they have one.



[1] Myers, David G. (2005). Social psychology (8 ed.). McGraw-Hill Education. pp. 18–19.

[2] Cherry, Kendra http://psychology.about.com/od/hindex/g/hindsight-bias.htm

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Tags: Trial Consultants, Jury Consulting, Litigation Consulting, Trial Consulting, Juries, Jury Consultants, Psychology, Securities Litigation, Banking Litigation

Improving Economy Predicted to Bring More and Different Litigation

Posted by Ryan Flax on Mon, Jul 1, 2013 @ 08:25 AM


economic crisis bank failure litigationby Ryan H. Flax
(Former) Managing Director, Litigation Consulting
A2L Consulting

Over the last few years we’ve seen a lot of litigation brought under a variety of auspices, but largely directed to the same thing: plaintiffs blaming their business partners for failures brought on by the failed economy.  Some examples include a contract dispute where less than the projected product sales were reaped on expensive, luxury medical machines because hospitals didn’t want to buy them, environmental / bankruptcy claims alleging fraud where a spun-off company failed because of decreased housing demands, and fraud claims where investors made risky investments without protections and lost big.  What each of these have in common is that, had the economy not tanked right around the time the alleged damage was inflicted upon the plaintiff (that is, around 2008-2009), there would likely have been no problem, no injury, and no lawsuit.  Also common is that the plaintiffs in these cases can’t sue the economy, but they can sue their business partners.

great recession litigation consultantsBut, good news!  In case you’d not heard, the economy is getting pretty good now (or at least improving).  Even though the U.S. jobless rate isn’t what we want it to be (still hovering just below 8%), the economy at large is feeling comfortable enough for the U.S. Federal Reserve to announce that it will start rolling back its stimulus programs and will let the U.S. economy try to walk on its own.  So, the question everyone in the legal field is asking is: how will this improvement affect how corporate America will spend its money in litigation?

My prediction is that corporate budgets, including those of their legal divisions, will expand, companies will be willing to spend more money asserting and defending their legal rights, and more big-budget and high stakes litigation will result.  What’s big budget litigation?  It’s litigation that will likely cost several million to execute and that is less reactive or defensive litigation and more proactive and aggressive litigation.  Falling into this category are suits in intellectual property, antitrust, environmental law, and government contracts.  I may be leaving some practice areas out here, but these are case-types that are expensive and time-consuming to assert and defend.  They are discovery-intensive, complicated, and will usually be vigorously defended.

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Even in January of this year (2013), Law.com predicted an increase in trade secret litigation, antitrust litigation, white-collar crime enforcement/defense, labor and employment litigation, government contracts litigation, patent litigation, environmental litigation, class actions, and ITC cases.  Not each of these fits my definition of big-budget litigation, but most do.

litigation budgets increasing economyInterestingly, the law firm Crowell & Moring made a very similar forecast for 2013 litigation trends. Crowell emphasized the need for corporate in-house counsel to take “a more proactive approach” to their legal needs.  Crowell observed that the number of antitrust case increased from 2011 to 2012 at a rate of about 50%.  Crowell further observed that patent cases involving non-practicing entities (NPEs or “patent trolls”) increased by 129% from 2011 to 2012.  Even taking the “troll” issue off the table, for example, the increase in patent litigation over mobile device technology is apparent even to the casual observer.

The law firm Morgan, Lewis & Bockius LLP predicts significant increases in litigation involving technology; not necessarily just over patents.  Morgan identified data security and privacy, government investigations, counterfeit merchandise, design patents, and trade secret misappropriation as hot-spots for 2013.

The law firm Fulbright & Jaworski LLP surveyed almost 400 in-house attorneys to identify and predict trends in litigation for 2013 – the great majority of those surveyed attorneys were either corporate general counsel or in charge of litigation.  These decision-making in-house counsel (from the energy, engineering/construction, financial services, healthcare, insurance, manufacturing, real estate, retail, and technology industries) indicated that they expected an increase in litigation.  They indicated that, while contract, labor, and personal injury disputes were the most numerous pending cases against U.S. companies, they experienced and expect increases in IP lawsuits, class actions, and privacy and data protection lawsuits.

So, what we see is a lot of groups with their fingers on the pulse of the litigation-economy in the U.S. predicting more litigation and bigger litigation now and in the near future.  It’s true that the legal “industry” generally moves a tick slower than the economy at large, but I suggest you get ready for more work. It's what we're doing.

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Tags: Economics, Litigation Consulting, Management, Banking Litigation

Banking Litigation Courtroom Presentations

Posted by Ken Lopez on Fri, Oct 28, 2011 @ 01:44 PM


We have have created courtroom presentations in banking cases almost since our very beginning nearly 17 years ago. From savings and loan litigation in the 1990s to IPO litigation stemming from the 2001 dotcom meltdown to ongoing banking fraud and bankruptcy litigation connected with the 2008 financial crisis, we have helped jurors understand complicated financial concepts that are at the heart of most banking litigation.

We have discussed earlier this year how a good trial consultant can make complex financial concepts comprehensible to jurors by using courtroom presentations that relate to a juror’s basic understanding of life and personal experience. See our discussions of collateralized debt obligations and of securities litigation.

The same can apply to courtroom presentations for seemingly complex banking litigation. Since nearly all jurors have bank accounts and have used ATM’s, they have a basic sense of what banks do. So it often is not a long stretch for them to have an intuitive notion that banks are involved in complex ATM networks, that they sell profitable investment products to clients, or that they manage and move large sums of money. What is more difficult is explaining the details of how these things work.

In a straightforward courtroom presentation graphic below, we showed that the total revenue of a bank far exceeded the gross national product of Guatemala. We used a supermarket scale and money bags – a basic concept that any juror can follow – to make an indelible impression on the jurors.



In another very straightforward courtroom presentation graphic, we showed people sitting around a conference table as a partner in a major accounting firm told them about a highly questionable tax shelter that the firm was marketing. The “shady characters” are shown in shadow to emphasize the dubious nature of what they are doing.

banking fraud skelly

In another courtroom presentation illustration for the same case, we portrayed this complicated financial transaction with an illustrated flow chart with seven steps, beginning with “Taxpayer realized Capital Gain” and ending with “Taxpayer Reports Loss to IRS.” Even if a juror does not fully understand the transaction on the same level as those who devised it, he or she certainly understands that somehow a “Capital Gain” was transformed into a “Loss” for the IRS. The juror has paid taxes and has never been able to convert a gain into a loss, we can be assured.

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We also graphically portrayed how a worldwide ATM network functions. At the bottom of the courtroom presentation chart are the individual bank customers, who are faced with the possibility of paying a “foreign fee” and a “surcharge.”

foreign atm fee graphic courtroom presentation

Finally, for litigation involving the BCCI bank scandal of the 1980s, we created a similar chart that showed the flow of money from various entities in that case to BCCI.  This case represented our first billion dollar win.  We've had hundreds since.

BCCI banking fraud courtroom presentations


Tags: Trial Graphics, Litigation Graphics, Trial Presentation, Courtroom Presentations, Trial Consulting, Securities Litigation, Banking Litigation, White Collar

4 Tips for Using Trial Graphics in Motions and Briefs

Posted by Theresa Villanueva on Tue, Oct 11, 2011 @ 08:24 AM

Most people, when they think of trial graphics, focus on exhibits to be used at trial. But graphics can also be used in motions and briefs presented to judges, even if jurors will never see them. After all, if you are using 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?

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.

Here are some tips for using graphics in your brief:

  1. First, keep it simple. The judge is, after all, reading a document, and the images need to be easily incorporated into the document. Motion pictures and similar animations obviously won’t work well -- unless of course you are submitting an e-brief.
     
  2. Second, consider the amount of space you have to work with. The image needs to fit into the space appropriately.
     
  3. Third, using color is OK; just because a trial graphic is embedded in a court document doesn’t mean it has to be in black and white.
     
  4. Fourth, using trial graphics to simplify a complex aspect of the case is one of the best possible uses.
Trial graphics can effectively be used to illuminate motions in a number of areas of law, including bankruptcy, patent litigation, and litigation involving highly technical areas of scientific research.

In the first example below, the issue regarding the patent was the curvature of the rails in the equipment. As a portion of the case itself involved graphics in the form of the geometric curve, the curvature was hard to explain verbally but was much easier to delineate in a sketch.
graphics in motionsSecond, in a bankruptcy matter, a law firm needed to explain the Continuous Linked Settlement (CLS) system that was carried out by CLS Bank to provide settlement services. The CLS settlement process is very difficult to explain, so we developed a series of graphics for use in a brief that explained the settlement and clearing process.
graphics in briefs
Finally, in a pro bono assignment that we undertook involving the interpretation of a prohibition on the use of federal funds for stem-cell research, a key issue emerged regarding the definition of the term “research” in an amendment passed by Congress.

Through a series of graphics that were incorporated in a memorandum in opposition to a motion for summary judgment, we illustrated our client’s position that the term “research” can be conceptualized in many different ways and that the opposing brief, in selecting just one of those interpretations, was interpreting the term arbitrarily.

In Figure 1, for example, we showed that stem-cell research can be defined as separate from the derivation of embryonic stem cells and is not identical with the derivation process. In Figure 2, we showed that the opposing brief was trying to group stem-cell research and the derivation process together, a conclusion that was not justified by the statute. And in Figure 3, we showed that it is even possible to interpret the term “research” to encompass an entire area of inquiry, thus preventing federal funding of a whole type of research in a way that Congress could not have intended.
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Tags: e-Briefs, Trial Graphics, Trial Consultants, Litigation Graphics, Trial Consulting, Patent Litigation, Science, Securities Litigation, Banking Litigation, Briefs, Pleadings, Bankruptcy

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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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