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The Litigation Consulting Report

12 Reasons Using Trial Consultants (Like Us) Is Possibly Not Fair

Posted by Ken Lopez on Thu, Feb 16, 2017 @ 11:03 AM

unfair-advantage-trial-consultants-jury-graphics-technology.jpgby Ken Lopez
Founder/CEO
A2L Consulting

When I speak to an audience about the work A2L does (other than trial lawyers from large law firms), I sometimes hear the question, “Is the kind of work A2L does fair?” That is, is it fair to have trial consultants support a trial team and use the latest in persuasion science to advocate only one side of a case? In a group setting, my lawyerly answer is usually something like, “What does ‘fair’ mean to you?” Then we litigate the nuances of fairness.

What I really think, however, is that the work we do definitely tips the scales of justice in our client’s favor. Is that fair? Probably. After all, ferociously advocating one’s position using all available tools is one of the hallmarks of our justice system. But what if, as is typical, one side has a larger litigation budget than the other. Is it fair to have a firm like ours on one side and not the other?

I've heard others reply to this question by comparing the vast differences in trial lawyer quality and arguing that the system is designed to smooth these talent gaps out. I don't have a specific answer right now, so I I'll simply say that I think it's a fair question. Trial consultants do influence outcomes of cases, sometimes to an enormous degree.

Indeed, a branding firm, after surveying our customers and staff, once recommended that we use “Unfair Advantage” as our firm motto. I never really fell in love with the motto, and we didn’t end up really using it, but I understand the sentiment completely.

In more than 20 years and thousands of cases, I’ve never seen one that was not improved by the input of a trial consultant. I've seen losing cases turned to winners and damages swing in the billions of dollars. Consider 12 advantages that trial consultants offer – ones that your opposition might say are just not fair.

  1. A Fresh Pair of Eyes: Trial lawyers who like to get their answers questioned outperform those who are not open to much input. Trial consultants offer a safe place to bounce theories, narratives, demonstratives, voir dire strategies, trial presentation strategies and more off smart people who are on your side. See 7 Reasons a Fresh Pair of Eyes Are Beneficial Before Trial.
  1. An Experienced Pair of Eyes: If you've been in the litigation industry for decades like me, you've watched as trial lawyers who used to go to trial every year now go to trial only every three, five or even eight years. Meanwhile, trial consultants have moved in the opposite direction and often see dozens of trials per year. So high-performing clients and high-performing trial lawyers very sensibly rely on trial consultants to enhance the trial experience of the team. See With So Few Trials, Where Do You Find Trial Experience Now?
  1. Practice: One of my former colleagues turned judge was so right about this: “They call it the practice of law but nobody is practicing.” Trial consultants help trial teams practice effectively. This is critical because so few trial teams are really practicing. Those who don't practice in front of peers underperform others. Those who do, outperform most trial lawyers. It's so obviously correlated with good outcomes, I believe that the quality of practice is a reasonable proxy for the outcome of a case. See 3 Ways to Force Yourself to Practice Your Trial Presentation.
  1. Even Michael Jordan Had a Coach: Name an athlete or anyone at the top of their game and you'll likely find a coach who helped them improve. That's what high-quality trial consultants do. They help bring out the very best in a trial lawyer. See Accepting Litigation Consulting is the New Hurdle for Litigators.
  1. Getting the Right Jury: Most jury research we engage in has a voir dire component. Conducting a mock trial with a voir dire component massively influences how juries are picked, and the makeup of a jury massively influences the outcome of a case. We've even released an entire book on this topic. See New and Free E-Book: The Voir Dire Handbook.
  1. Persuasion Science with Visuals: Understanding how visuals persuade people is a surprisingly new science, and many new discoveries are being made. Trial consultants bring a level of understanding regarding visuals that is not present in a law firm. There are visual persuasion tactics that knowledgeable trial consultants can use to influence juries. See Could Surprise Be One of Your Best Visual Persuasion Tools? and 6 Studies That Support Litigation Graphics in Courtroom Presentations.
  1. Persuasion Science with Rhetoric: Similarly, there are rhetorical techniques such as the use of repetition and surprise that are now known to persuade juries. Just the way you start your opening will influence what a jury thinks. It's not malpractice to not know these things, but it is certainly not a good practice. See A Surprising New Reason to Repeat Yourself at Trial.
  1. Persuasion Science with Storytelling: We so often write about how storytelling can be used to persuade. We even recently interviewed some top trial lawyers and asked them how they use storytelling. Rely on a talented trial consultant and they will make you a better storyteller. See Three Top Trial Lawyers Tell Us Why Storytelling Is So Important.
  1. Trial Consultants Save You Time: You can delegate certain persuasion-related tasks to a trial consultant that allow you to focus on other elements of the case. This gives you a real advantage over opposing counsel who cannot do thisSee Trial Consultants: Unfair Advantage?
  1. No Lost Opportunity Costs: My mentor likes to advise me in my CEO capacity by saying, “Only do what only you can do.” This advice works well for a trial team too. If you're editing PowerPoint slides, you're disobeying this good advice. See How Valuable is Your Time vs. Litigation Support's Time?
  1. More Poise = More Persuasion: The way you carry yourself influences your persuasiveness. Watch this video from Amy Cuddy and read my article about her new book. Trial consultants help give you real confidence by supporting you as a trial lawyer and they can also advise how to do this in those situations where you just need to fake it. See A Harvard Psychologist Writes About Presenting to Win.
  1. Using Trial Technology Well: Many lawyers think they can use technology effectively, but not many really have this skill. A good trial consultant will understand courtroom technology and will help you get a leg up on the other side. See 12 Ways to Avoid a Trial Technology Superbowl-style Courtroom Blackout.

litigation consulting graphics jury trial technology

Tags: Trial Graphics, Trial Consultants, Litigation Graphics, Litigation Consulting, Trial Consulting, Demonstrative Evidence, Trial Technology, Psychology, Storytelling, Practice, Body Language

[Free Download] Trial Lawyer’s Guide to Jury Consulting & Mock Trials

Posted by Ken Lopez on Wed, Sep 14, 2016 @ 03:19 PM

A2L-MOCK-TRIAL-JURY-CONSULTANTS-TALL.jpgby Ken Lopez
Founder/CEO
A2L Consulting

Today, we are publishing our latest free book -- A Trial Lawyer's Guide to Jury Consulting and Mock Trials.

This free 328-page book is based on the idea that even after some decades in which jury consulting has grown and established itself as a business, many lawyers still don’t necessarily understand what jury consultants do and how valuable they can be. Many lawyers probably still harbor the old idea that a jury consultant is just someone who sits next to a lawyer and uses a “gut feeling” based on a potential juror’s occupation, body language or appearance to ask the lawyer to exclude the juror or keep the juror. If that stereotype were ever true, it’s certainly not true today. We’re about as far now from the O.J. Simpson days 20 years ago as we are from the Perry Mason days.

This book is dedicated to bridging whatever conceptual gap may remain between trial lawyers and jury consultants. It pulls together many of the lessons that jury consultants have learned, so that any lawyer who reads the book can get up to speed quickly and save herself a good deal of money and time. We have been dismayed at times at the disconnection between long-held myths held even by seasoned litigators and what the data show.  Excellent trial strategies are the product of balancing art and science, data and wisdom, confidence and humility. 

Among the topics in this book are: 14 Places Your Colleagues Are Using Persuasive Graphics That Maybe You’re Not, Is Hiring a Jury Consultant Really Worth It?, Why Do I Need a Mock Trial If There Is No Real Voir Dire, 21 Ingenious Ways to Research Your Judge, 7 Videos About Body Language Our Litigation Consultants Recommend, 15 Things Everyone Should Know About Jury Selection and 6 Good Reasons to Conduct a Mock Trial.

A good lawyer knows the law. A great lawyer knows the jury and how it works. Read this book and reflect on its contents to know more than most trial lawyers do. This book is based on hundreds of trials and years of data, not mere theory or presumption. We hope you enjoy it and share it. Please send us your feedback and let us know if you have any questions or comments, any time. If you have any questions about a case, a witness, a jury pool, a venue, strategic options or dilemmas, or think your case is unwinnable, we’re only a phone call/email away and would love to hear from you. 

Jury Consulting Mock Trial

Tags: Jury Questionnaire, Trial Graphics, Trial Consultants, Jury Consulting, Courtroom Presentations, Mock Trial, Trial Consulting, Litigation Support, Juries, Jury Consultants, Trial Preparation, Jury Selection, Psychology, Body Language, Damages, Persuasion, Cognitive Bias

The Top 6 Litigation & Persuasion Focused Articles of Q1-2016

Posted by Ken Lopez on Tue, Apr 12, 2016 @ 03:48 PM


6_top_litigation_and_persuasion_articles.jpgby Ken Lopez
Founder/CEO
A2L Consulting

The first quarter of 2016 was one of A2L Consulting busiest in our 20+ year history. Not only was business up, visits to our web site increased 10% over the first quarter of 2015, and our Litigation Consulting Report Blog reached 8,000 subscribers. These metrics suggest that the litigation industry, particularly the big-ticket litigation segment, continues to perform well.

The growth in the number our blog subscribers is truly eyeopening. Just a little more than year ago we were celebrating reaching 5,000 subscribers. I still find it completely amazing that about 200 people sign up for our award-winning litigation and persuasion-focused blog every month.

Since we launched this publication that now sees more than 250,000 visits every year, hundreds of new clients have found their way to A2L and thousands more have benefited from the information we have shared here, from free articles to free e-books to free podcasts to free webinars. Five years ago, I thought the whole idea of blogging was misguided, and boy, was I wrong.

To enhance our reader's experience, each quarter we help surface those articles have been "voted" the very best in the most recent quarter. That is, if we publish 25 articles in a three-month period, some are going to be viewed more often than others, and these are effectively voted the very best.

These six articles below were voted the very best by our readers in the first quarter of 2016.

CBP1210903.jpg6.  Millennials and Jury Psychology: Why Don't They Follow the Rules?A jury consultant analyzes the jury psychology of Millennials (born between 1981 and 1996) and focuses on this generation's distrust for authority.











CBP1030985.jpg5.  A Jury Consultant Is Called for Jury Duty: A well-known jury consultant finds herself in a Manhattan courtroom as a prospective juror and describes her experiences.







CBP1104355.jpg4.  3 Trial Preparation Red Flags That Suggest a Loss is Imminent: Some trial team behaviors during trial preparation are leading indicators for a loss at trial. Here are three that are consistent red flags.











tony-klapper-welcome-litigation-consultant-litigation-graphics.jpg3.  9 Things I've Noticed About Effective Litigation Graphics After 20 Years as a Litigator: A top litigator with 20 years of trial experience shares his views on litigation graphics today: What are the best techniques?








cuddy-presenting-win-litigator-belief.jpg2.  A Harvard Psychologist Writes About Presenting to Win: Harvard psychologist Amy Cuddy released a new book called Presence, and it is filled with a wealth of useful information for litigators about persuasion.




Screen_Shot_2016-03-23_at_10.22.12_AM.png1.  5 Things TED Talks Can Teach Us About Opening Statements: A presentation expert analyzed what makes certain TED Talks successful. The same principles -- use hand gestures! -- apply to opening statements.

 

 



 

opening statements toolkit ebook download a2l

Tags: Trial Presentation, Jury Consulting, Litigation Consulting, Litigation Support, Jury Consultants, Articles, Jury Selection, Opening, Body Language

5 Ways to Maximize Persuasion During Opening Statements - Part 1

Posted by Ryan Flax on Mon, Apr 13, 2015 @ 11:08 AM

 

courtroom-demeanor-opening-statements-likableby Ryan H. Flax, Esq.
(Former) Managing Director, Litigation Consulting
A2L Consulting

It has been widely reported that more than 80 percent of jurors make up their minds about your case during opening statements.1 There is actually no quantitative study confirming this, but the best lawyers and the top litigation and jury consultants agree that a winning opening statement is critical.

Probably the most important reason that an opening statement is critical is that it establishes the lens through which your jurors will view the trial.2 If that lens is clear and focused on the issues and the evidence that you know are keys to victory, great. If the lens is cracked, foggy, or unfocused, you’ve got problems.

The concept of primacy effect is another reason that opening statements are critically important. Primacy means that information provided to an audience first is the most valuable and meaningful.3 Jurors are encoded with the first information they receive from you. If you give your jurors the first information that they receive, you’re creating the right lens for your case.

An example of the primacy effect can be seen in these sentences describing “Steve.”

Steve is smart, diligent, critical, impulsive, and jealous.

Steve is jealous, impulsive, critical, diligent, and smart.

Those exposed to the first sentence view Steve positively. Those exposed to the second view Steve negatively. But they, of course, contain exactly the same information in different order.

This is how the primacy effect works -- and the same thing happens to your case in opening statements. At the very beginning of opening statements, jurors form their working hypothesis for the case, and this hypothesis affects their interpretation of the rest of the information presented at trial. So the information at the beginning of an opening statement matters a lot. Primacy means that if you’re plaintiff’s counsel, you need to set a strong theme for your case and immediately tell the brief story of the wrong that got you to court. If you’re defense counsel, introduce the “dagger” that kills the plaintiff’s case immediately. Jurors only care about assigning blame, so make it easy for them.

Finally, confirmation bias plays a critical role because jurors will decide your case based on their views, not your evidence (for the most part). As a general rule, decision makers lack objectivity, and people tend to favor one choice over another and subsequently evaluate information to confirm that leaning.4 Your jurors will believe what they already believe and will remember evidence and arguments that supports those beliefs while ignoring evidence to the contrary. Tune your opening statement with this in mind. 

1. Give Your Jurors a Reason to Like You

In opening statements, we want to get the jurors’ attention and make them care about the case and the client. This requires that they like you and appreciate what you’re doing.

It is natural for everyone to take sides to have someone to root for. Have you ever watched a sporting event in a totally neutral way? Probably not. The same goes for jurors in the courtroom.

Remember the “90 Second Rule.” Within 90 seconds of meeting someone new, people decide whether they like the person or not, if they feel comfortable around them, if they trust them. This goes for jurors and you in the courtroom.

To make jurors like you, help them do their job. Make it easier for them. You’ll want the case and evidence to take center stage, but you need to make it interesting and easier to understand for jurors who are all new to the case, new to being jurors, new to you, and new to each other.

Litigation is confusing; make things simple. Do you remember your first day of law school? Did you feel confident that you understood what your professors were talking about? Probably not.

The trial is probably the most confusing and complicated thing your jurors will ever be put through in their lives. They’ll be asked to digest a bit of law it likely took you an entire semester of law school to understand. They’ll be asked to digest a ton of facts that you think are important and then to apply the law to those facts. Then they’ll be asked to decide which party should either get or not get a lot of money or lose their freedom. This is a confusing process, so if you can help make this job easier by distilling facts, simplifying the application of the law, and making the case easier to understand, jurors will appreciate it. In one study, jurors indicated that the prime value they saw in opening statements (and closing arguments) was that they provided a framework for the jurors to evaluate the case.5 This is perhaps the most effective way to influence juror decision making.

Litigation is boring, so make your presentation and case interesting. The Apple v. Samsung or Marvin Gaye Estate v. Pharrell Williams cases are few and far between, so your case is probably not inherently interesting. Make it so. There is conflict. There is betrayal. There is stealing and lying and deception and scheming. There is also honor and valor and compassion. Use these as tools to develop an interesting take on your case. Moreover, make the case visually interesting by using litigation graphics to help you make your points.

Litigation may be critical to you and your client. But to many jurors, it is an unwelcome interruption of their lives. In the opening statement, try to establish that you’ll get the jurors back to their lives quickly. Almost no juror wants to be in the jury box. They’ve probably each considered what they might say during voir dire to escape and failed. Assure them that your case is simple and that you’ll put it on in an efficient way so as not to waste their time.

Take the case seriously, but don’t forget to smile at the jury. It will make your appear more likable, more credible, more intelligent, and more trustworthy.6

Make the jurors feel good about you and your case. Make them happy to see you stand up when it’s your turn to talk. Do what the best teacher you ever had did – compare the old and new, the known and unknown, make learning simple, use analogies and metaphors, be tour guides, not lecturers, remove obstacles in the path to learning.

*** Watch for 4 more tips about opening statements soon - get notified of publication by clicking here ***

Other A2L Consulting articles and resources related to opening statements, being likable in the courtroom and litigator-juror communications:

Maximize Persuasion During Opening Statements 

 

[1] The most popular publication to cite is Dale W. Broeder, The University of Chicago Jury Project, 38 Neb. L. Rev. 744 (1959);  however, nowhere in this article does the author conclude that 80 percent of trials are actually decided in opening statements. It does indicate that trials are likely decided before deliberations most of the time.

[2] See, e.g., Bill Kanasky, Jr., The Primacy and Recency Effects: The Secret Weapons of Opening Statements, 3 No. 3 Trial Advoc. Q. 26 (2014).

[3] Ibid.

[4] Jonathan M. Lytle, The Domino Effect of Juror Decision-Making, 53 Orange Co. Law. 28 (2011).

[5] Valerie P. Hans and Krista Swigart, Jurors’ Views of Civil Lawyers: Implications for Courtroom Communication, 68 IND. L.J. 1297, 1329 (1993)

[6] Ken Broda-Bham, Ph.D., Smile (For Credibility and Affect), http://www.persuasivelitigator.com/2014/04/smile-for-credibility-and-affect.html ( Apr 24, 2014)(citing Brodsky et al., The Witness Credibility Scale: an outcome measure for expert witness research, Behav Sci Law, 2010 Nov-Dec;28(6):892-907; Nagle et al., Gender, smiling, and witness credibility in actual trials, Behav Sci Law, 2014 Mar-Apr;32(2):195-206; and Kleisner et al., Perceived Intelligence Is Associated with Measured Intelligence in Men but Not Women, Plos One (Mar 20, 2014)).

Tags: Litigation Consulting, Juries, Jury Consultants, Opening, Body Language, Emotions, Persuasion

Like It or Not: Likability Counts for Credibility in the Courtroom

Posted by Laurie Kuslansky on Thu, Jan 16, 2014 @ 07:00 AM

 

likeability courtroom litigation trial like lawyer attorneyby Laurie R. Kuslansky, Ph.D.
Managing Director, Jury Consulting
A2L Consulting

In the courtroom or anywhere else, for that matter, it’s hard to believe someone you don’t like … because you don’t want to.  Credibility depends on likeability and likeability is one of the easiest variables to overlook, at your own peril, whether we are talking about the likeability of a litigator, a client or a witness.  When assessing the likeability of someone on your side’s team, it is difficult to be objective because it’s your job to like them (say, if you are lead counsel, or lead counsel is your boss, plus the client, the client’s employees and your expert witnesses).  You already have plenty of motivation to do so – whether a paycheck, a promotion, a relationship, or other rewards.  A jury does not.  Jurors will not only have no rose-colored glasses on; they may have shades on altogether.

According to the “friendship/liking rule,”[1] people are more favorable to people they know and like and are more willing to comply with their requests. This principle can be used for good or evil.  For example, it is evident in one of the most successful business models to evolve: the Tupperware home party. Tupperware found that sales pitches are received more positively from friends and neighbors than from strangers, since we believe people we like more than ones we dislike.  It is also evident in affinity fraud, whereby people trust their money to people they know and like, which is exploited by many a con artist engaging in Ponzi schemes. As the U.S. SEC states (emphasis added):[2]

  • “These scams exploit the trust and friendship that exist in groups of people who have something in common.”  
  • “Affinity frauds can target any group of people who take pride in their shared characteristics, whether they are religious, ethnic, or professional.”

Notice that the common thread here is having common ground.  Having and using the common ground between participants in conversation is one of the most important routes to effectively communicating.  The converse is also true.  Among the most important building blocks toward reaching the skill of successful communication during development are the abilities to take another’s perspective, include it in forming one’s messages, making sure to use the common ground, and making one’s utterances contingent on the other’s input (rather than having a collective monologue, whereby each one says something that does not relate back to what the other just said).  Many of us can recall bad dates or failed relationships in which this has happened and how frustrating and unsatisfying such communication can be.  This behavior is more common (and age appropriate) for 3-year olds.  For example, one may say “I like ice cream,” to which the other responds, “Look, a puppy!”

storytelling persuasion courtroom litigation webinar

Using common ground to increase likability and trust is a variation on xenophobia, i.e., we are more likely to like and trust people more like ourselves than people who are different, like it or not.  Similarity (about opinions, personality traits, dress, background or lifestyle) has been shown to increase likability, so it is worthwhile for trial counsel and key witnesses to match styles with the local flavor of the jury, or, as Marisa Tomei said in My Cousin Vinny, “You blend” with your decision maker(s).[3]  Another way to increase similarity between your litigation team and the jury is to mirror body language by subtly matching the judge’s or jurors’ postures and gestures to make them feel more at ease and positive about you because you seem more like them.  In contrast, during cross examination, or when facing hostility in the courtroom, it may be more powerful not to match the style of the adversary.

Your job as a persuasive litigator is to understand the factors that can be used properly and ethically to be more likable, and thus more persuasive.  As your case is more complicated, jurors are more likely to seek shortcuts and give more weight to easier factors to understand, such as whom they like or not.  The less personally involved jurors are with evidence, such as information that is too dry or difficult, the more they tend to rely on peripheral cues rather than on an argument’s actual strength.[4] Being liked is an important ingredient in the cocktail of peripheral cues jurors use to decide whom to believe.  Knowing that likeability is so critical to credibility in litigation, what can you do about it?

What Increases “Liking” in the Courtroom?

Attorneys and witnesses who – by design – cannot share an existing friendship with jurors -- can still benefit from applying the liking/friendship rule by understanding a number of relevant factors outlined below.[5]

Factors of liking and friendship include: 

  • Physical attractiveness
     
  • Pretty positive: Positive reactions to good physical appearance generalize to talent, kindness, honesty, and intelligence.[6] Thus, attractive attorneys, witnesses and clients at counsel table are generally more likely to be persuasive at changing attitudes and getting what they request.[7]
     
  • The truth isn’t pretty: In fact, more physically attractive defendants have yielded less certainty of guilt from jurors and received recommendations for less severe punishments than less physically attractive defendants.[8]
     
  • Compliments can create return liking and willing compliance. For example, the actor McClean Stevenson once said: “My wife tricked me into marrying her – she said she liked me.”
     
  • Flattery, if not overtly manipulative, creates liking[9] and is just as effective at creating liking when true as when not true, and even when the recipient realizes that the flatterer stands to gain from being liked.[10]
     
  • Cooperation: People working together toward a goal, such as pulling together against a common enemy, feel more positive toward one another[11] Car salesmen and others often engage the principle of good cop/bad cop by setting up their manager or “Corporate” or someone more senior as the villain so the salesman and customer can do battle to win him/her over, creating a common alliance toward a mutual goal. To the extent possible, create mutual goals toward which you can help the jury work with you, whether a mystery you will help them solve, a more efficient way to get through certain procedures, clear tutorial graphics to become educated about facts, or another end you can help them reach.
     
  • Scarcity improves positive attitudes because if less is available, what is available seems better. Limited access to information makes us want it more and makes it more influential.[12] Hence, explaining “little-known facts of interest,” or information only the courtroom is privy to which are relevant to the case, and making jurors aware of this fact when possible, makes them feel special. Scarcity has increased how things are valued throughout history. Collectors know it; precious mistakes such as a misstamped coin are valuable because of it. It’s a shortcut to something’s value, it can cause the loss of freedoms, and people hate to lose freedoms they already have (because it diminishes personal control), also called “psychological reactance theory.”[13] The more threatened we are about losing something, the more we want to keep it and value it (you don’t know what you’ve got till it’s almost gone).
     
  • Reciprocity: Offering someone something first makes them more likely to want to give you something back, known as the “reciprocity reflex.”[14]  Phrasing what you promise the jury in voir dire in such terms (I promise to do “x” for you, and rely on you to do “y”), then keeping your word, is one way to act on this principle.
     
  • Smooth Talking: People highly responsive in conversation (those who responded faster and more, used more diverse words, and were more effusive when responding) were also perceived to be likeable, intelligent, and interesting, and were valued as a possible friend.[15] This implies that both attorneys responding to the Judge’s questions and witnesses responding to attorneys’ questions should beware of overly laboring the timing of their responses and should be conversational when responding – without overdoing it.
     
  • Other factors which have added to likeability are self-disclosure, listening, cordiality, showing interest, and of course, appropriate smiling.  A variety of research has yielded other highly valuable findings about the relationship of social validation (fitting in with what others are doing as a model for what to do), consistency (between prior and current actions) and authority (whereby credentials merit trust), among others, to increase persuasion.[16]


Jekyll vs. Hyde

Likeability and trust also come from consistency.  Knowing that what you see is what you get, over time, helps.  It is no wonder, therefore, that witnesses who drastically change their demeanor from friendly and cooperative on direct examination, and then morph into someone who refuses to answer questions, becomes antagonistic and uncooperative on cross – is not likable nor trusted.  The truth should look and feel the same, no matter who’s asking the questions.

In the end, sincerity bonds people together. Allowing them to see in you and your clients and witnesses the same truths and human traits that they recognize in themselves makes you genuine, likeable, and believable, like it or not.

 

Other Articles on A2L Consulting's Site related to a litigator's likeability and relationship with a jury and colleagues include:

storytelling persuasion courtroom litigation webinar

 

Additional Reading Offsite & Endnotes:

DeBono, K. G. and R. J. Harnish (1988). “Source expertise, source attractiveness, and the processing of persuasive information: A functional approach.” J. of Pers. And Soc. Psych., 55(4): 541-546.

Dolinski, D., M. Nawrat, et al. (2001). “Dialogue involvement as a social influence technique.” Pers. and Soc. Psych. Bulletin, 27(11): 1395-1406.

Lovas, Michael Holloway, Pam.  (2009).  Axis of Influence: How Credibility and Likeability Intersect to Drive Success. Morgan James Publishing: New York.

Miller, N., G. Maruyama, et al. (1976). ”Speed of speech and persuasion.” J. of Pers. and Soc. Psych., 34(4): 615-624.

 


[1] Shavitt, S. & Brock, T. C. (1994). Persuasion – Psychological Insights and Perspectives. Massachusetts: Allyn and Bacon.

[2]  U.S. Securities and Exchange Commission:  Affinity Fraud: How To Avoid Investment Scams That Target Groups at http://www.sec.gov/investor/pubs/affinity.htm

[3] Emswiller, T., et al. (1971). Similarity, sex, and requests for small favors. J. of Applied Soc. Psych., 1, 284-291; Byrne, D. (1971). The attraction paradigm. New York: Academic Press.

[4] Petty, et al. Ibid.

[5] Shavitt, et al. Ibid.

[6] Dion, K. et al. (1972). What is beautiful is good. J. of Pers. & Soc. Psych., 24, 285-290; Rich, J. (1975) Effects of children’s physical attractiveness on teacher’s evaluations. J. of Ed. Psych., 67, 599-607.

[7] Benson, et al. (1976). Pretty pleases: The effects of physical attractiveness on race, sex, and receiving help. J. of Exp. Social Psych., vol. 12, pp. 409-415; Chaiken, S. (1979). Communicator physical attractiveness and persuasion. J. of Pers. & Soc. Psych., 37, 1387-1397.

[8] Efran, M.G. (1974). The effect of physical appearance on the judgment of guilt, interpersonal attraction, and severity of recommended punishment in a simulated jury task. Journal of Research in Personality, 8, 45-54.

[9]   Byrne, D. and Rhamey, R. (1965). Magnitude of positive and negative reinforcements as a determinant of attraction. J. of Pers. And Social Psych., 40, 492-500.

[10] Drachman, D. et al. (1978). The extra-credit effect in interpersonal attraction. J. of Exp. Soc. Psych., 14, 458-467.

[11] Shavitt, et al. Ibid

[12] Brock, T.C. (1968). Implications of commodity theory for value change. In A.G.  Greenwald, T.C. Brock & T.M. Ostrom (Eds.), Psychological foundations of attitudes (pp.243-276). New York: Academic Press.

[13] Brehm, J. (1966). A theory of psychological reactance. New York: Academic Press.

[14] Cialdini, R. (1993). Influence. The psychology of persuasion. Q.W. Morrow Co., N.Y.

[15]   Swann, W. B. and P. J. Rentfrow (2001). ”Blirtatiousness: Cognitive, behavioral, and physiological consequences of rapid responding.” Journal of Personality and Social Psychology, 81(6): 1160-1175.

[16] The Science of Persuasion at http://www.aboutpeople.com/the-science-of-persuasion/

jury consulting trial consulting jury research

Tags: Trial Consultants, Jury Consulting, Litigation Consulting, Trial Consulting, Juries, Jury Consultants, Psychology, Expert Witness, Body Language

The Top 10 TED Talks for Lawyers, Litigators and Litigation Support

Posted by Ken Lopez on Thu, Dec 13, 2012 @ 06:15 AM


TED talks lawyers litigators litigation support videosby Ken Lopez
Founder & CEO
A2L Consulting

 

In the 1980s, a small conference was started in California focused on topics related to technology, entertainment and design. Now known by the acronym TED, what was once a small conference is now an international movement devoted to the dissemination of "Ideas Worth Spreading." 

The format is simple. Compelling speakers with compelling messages are invited to speak for between five and 20 minutes to a live audience. The talks are video recorded and generally posted online. These online TED Talks have been viewed over one billion times worldwide.

Some TED Talks are among the most popular educational materials on the Internet, and there is a lot that lawyers, litigators and litigation support professionals can learn from them. Whereas a PSY video may be the most watched video of all time on YouTube, TED Talks are the viral videos of the intellectually curious.

While the TED Talks are a pricey conference to attend live, there are now TEDx events as well. These are locally organized TED Talks that are only loosely affiliated with the parent. On average five occur every day somewhere in the world in over 1,200 cities, and they are inexpensive or free to attend.

I regularly attend TEDx talks that are close to me. They are inspiring, they are motivating, they are moving, and sometimes you even find a major law firm litigation partner speaking at one. I recommend you find one near you to attend.

Here are 10 TED videos that I believe are especially helpful to lawyers, litigators and litigation support professionals.

1) Changing How You Are Perceived by Changing Your Body Language: Whether you are trying a case in front of a jury, negotiating a deal, or managing a litigation support team, how you are perceived will change how people react to your message. Oddly, it turns out that by purposefully changing your body language, you will not only change how you are perceived, you will measurably change your own body chemistry.

 

2) Inspire and Persuade Others by Speaking in this Order: If you see me speaking somewhere or if I am advising on the development of an opening statement, you'll notice that I follow the teachings of Simon Sinek. I have recommended his golden circle talk before, and I still think it is among the best TED Talks, because it is just so easy to implement. 

 

3) How Lawyers Can Tell a Great Story (R-Rated): The writer of Toy Story, WALL-E and others reminds us of something critical to any trial presentation, "Make me care!" Learning to tell better stories may be one of the best skills a litigator can learn. Making an emotional connection with your audience is how you get them on your side - not by overloading them with facts, details and backup.

 

4) How to Structure a Great Talk: Nancy Duarte does a great job of explaining how to structure a good story and offers a format that can be applied easily to any brief, opening or closing statement

 

5) Persuading the Rational Decision-maker: The speaker reminds us that decisions are made on emotion and justified on fact. This is true in sales, and it is true in the jury deliberation room. To persuade, we must trigger people's encoded memories and their emotions. Even if your role is that of litigation support on a trial team, it is critical to remind trial counsel of the importance of these lessons. Remember, you can always forward this article.

 

6) How Statistics Fool Juries: We've written before on topics related to statistics including the use of trial graphics to teach statistics for trial and statistical significance as it relates to litigation. For anyone making a Daubert challenge, this is an especially useful talk.

 

7) Negotiating Effectively from the author of Getting to Yes: He shares his journey of walking in the steps of Abraham and how it may serve as a model for Middle East peace. In the process, he reminds us of how to negotiate effectively as lawyers, litigators and litigation support professionals by looking at the third side.

 

8) Let's Simplify Legal Jargon: As a designer with a law degree and a passion for simplicity, my eyes open wide any time someone says they want to simplify legal things. Here, in less than five minutes, another designer who has spent some time in law school, Alan Siegal, shows how he simplified IRS notices and credit card statements.

 

9) Battling Bad Science and How Evidence Can Be Distorted: An epidemiologist reminds us of how science can easily be interpreted incorrectly. Since we often consult on litigation where human health effects are alleged, sometimes on a mass scale, I find this talk helpful. It reminds me how often evidence is distorted to try to create liability.

 

10) Harnessing the Power of Introverts: I saw former corporate lawyer Susan Cain speak at a conference recently, and I found her talk eye-opening. Not only did I re-discover some of my buried but natural introvert roots, but I learned better techniques for leading introverted members of my team. Whether you lead a trial team, a litigation support group or a law firm, this is an important talk to hear for leaders.

 

I hope you've enjoyed the videos. If you've watched a number of them, you'll notice a similar presentation style. It's one that you might compare to a Steve Jobs keynote, or like that of Garr Reynolds, or Cliff Atkinson would follow. This style is one that I want to see more litigators embrace during opening and closing arguments.

Notice the lack of bullet points throughout the presentations. We wrote about avoiding the use of bullet points in July, and it has been one of our most popular articles ever.  And I don't think a TED Talk is all that dissimilar from an opening or closing statement.

Like this 2012 article? Here's a great follow-up article from 2014: The Top 14 TED Talks for Lawyers and Litigators 2014

Other great A2L Video Posts for lawyers, litigators and litigation support professions:

 

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Tags: Statistics, Trial Presentation, Courtroom Presentations, Litigation Consulting, Litigation Support, Psychology, Bullet Points, Opening, Closing Argument, Body Language, Negotiation

7 Videos About Body Language Our Litigation Consultants Recommend

Posted by Ken Lopez on Wed, Oct 24, 2012 @ 07:30 AM

 

body language for lawyers litigation consultantsby Ken Lopez
Founder & CEO
A2L Consulting

The truth is I am skeptical about the alleged science of body language reading. You can tell because my arms are crossed. But I cross my arms when I don't like what someone is saying, when I'm bored, and also when I'm cold. Body language, it seems to me, is a great tool – except when it doesn’t work. It’s far from an exact science.

Still, I'm a believer – up to a point. I know that I want to believe this since every time I watch a mock jury, a potential jury being questioned during voir dire, or a seated jury, I always wonder what they are thinking. And I always wonder if I can decode what they are thinking by looking at them.

Well, here's what the best and the brightest in body language studies have to say on the topic. Our litigation consultants have tried to pull out only the most concrete examples to come up with seven great body language videos for lawyers.

1. Tips for reading a jury. This expert suggests that “I can teach you how to tell when people are lying to you.” For example, when someone is in the courtroom with a rigid hand with wide-apart fingers, this says they are terrified and will tell us the whole truth.

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2. How one body language consultant read the Casey Anthony jury.  As a reminder, the case ended in a conviction of Ms. Anthony, but not for the murder in question, only for lying to law enforcement. The body-language consultant said, "I'm watching which ones are noting specific details or are writing down specific details on specific types of evidence. What I'm finding is that we've got a pretty strong analytic jury pool and about seven of them or more are state jurors, and are paying specific attention towards more damning evidence against the defense."

 

3.  How you might read a video deponent. Repetitive movements can be distracting – even for people who are telling the truth. The body language of Charlie Rose and Bill Gates, however well trained, can be seen as distracting. The challenge for the speaker is to use virtual space to identify different concepts.

 

4. Can you spot a liar? Theoretically, it is possible to tell from someone’s body language that he or she is lying, but this has not been scientifically proved. Such techniques are used by some litigation consultants during the voir dire process.

 

5. How lawyers should behave in front of the camera (or not): Expert Tonya Reiman analyzes the body language and tone used by lawyers for Drew Peterson. It serves as a reminder that as lawyers, we are always being watched during litigation - whether in the courtroom, in the hallway, in the bathroom or in front of a camera.

 

6. Your body language after a sidebar. Remember, it is not just the lawyers who are paying attention to body language in the courtroom. Jurors are watching too. The professionals at NITA posted this short video about how one lawyer behaved every time he wrapped up a sidebar. Working with litigation consultants before and during trial is an excellent way to be reminded of these tips in real time.

 

7. It has been said that 93 percent of communication is non-verbal. Ready for a deep dive on body language? Here is an entire 90-minute History Channel show on body language that summarizes most of what was discussed above. There is no question that body language can betray us and that we need to look beyond the words. 

Still, I would be skeptical of any expert or litigation consultant who says that body language is the only thing that matters. 

Other related resources from A2L's litigation consultants:

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Tags: Jury Consulting, Courtroom Presentations, Litigation Consulting, Juries, Psychology, Depositions, Body Language

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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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