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The Litigation Consulting Report

Hydraulic Fracturing (Fracking): Advocacy and Lobbying Presentations

Posted by Ken Lopez on Wed, Aug 3, 2011 @ 07:30 AM

by Ken Lopez

The courtroom is a forum where issue advocacy is enhanced by persuasive litigation graphics. However, other settings exist where attorneys, consultants, politicians, lobbyists and advocacy organizations must persuade skeptical audiences.

This article focuses on the creation of advocacy graphics for a particular issue: hydraulic fracturing, better known as fracking. Advocacy or lobbying graphics are especially valuable as the material may be used to educate a potential jury pool, to persuade and inform government officials and to support settlement negotiations. These advocacy presentations may be distributed via PowerPoint, YouTube or even delivered in person from an iPad®.

With information flowing faster than ever before and with timelines for decisions involving billions or even trillions of dollars shrinking (e.g. the recent Congressional budget-debt debate), we believe the need for quickly produced lobbying presentations is expanding quickly.

Indeed, just days ago, Animators at Law, publisher of The Litigation Consulting Report, announced its name change to A2L Consulting.  This better aligns our corporate identity with additional services offerings like advocacy, grass roots and lobbying visual presentations, in addition to the services we have provided for 16 years like jury consulting, litigation graphics and trial technology. By way of example, we tackle the hot-button issue of fracking to show how issue advocacy presentations may be used when many scientific issues remain to be answered and no clear national consensus yet exists.

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Fracking is the modern evolution of a 60-year old production stimulation technique that involves injecting fluid at very high pressure into a well. This technique is widely used to extract natural gas from shale, a form of rock that is found all over the United States in large quantities. The process produces tiny fissures in the rock, freeing natural gas for recovery.

Natural gas companies insist that fracking is safe for people and the environment. They also believe it can produce enough energy, from purely domestic sources, to last for decades or perhaps centuries.

Indeed, a study released in July 2011 concludes that a large field of rock on the New York-Pennsylvania border known as the Marcellus Shale can safely supply 25 percent of the Nation’s natural gas needs. Thus, it is no surprise that energy companies are seeking to recover this trapped natural gas.

While we do not take any position in the heated debate over fracking, we have prepared this narrated presentation that theoretically could be used to defend fracking against its opponents in a courtroom setting or used as a widely distributed issue advocacy presentation.

Our fracking presentation first shows, in schematic form, how far below the earth’s surface fracking occurs and the industry’s routine use of cement and steel casings to protect groundwater from the tools and substances used in the fracking process. Whereas groundwater is typically found within hundreds of feet of the surface, fracking occurs miles beneath the surface of the earth.

Our advocacy presentation goes on to respond to challenges regarding the nature of the fracking fluid. We aid in dispelling those concerns by using a pie chart to illustrate the point that roughly 99 percent of the fluid is merely water and sand, while the remaining amount is composed of chemicals that have familiar and reassuring uses - such as soaps, deodorants and household plastics. The advocacy message is that the environmental concerns about fracking are overstated.

A two part summary chart is then used to highlight the benefits of fracking in terms of energy independence, environmental advantages, and underscores the benefits of fracking, proving the benefits far outweigh the minimal risks.

Finally, a bar graph that uses schematic drawings of gas reservoirs and a barrel of oil demonstrate that the domestic natural gas reserves that can be tapped by fracking will last decades or centuries longer than the nation’s domestic oil reserves, thus contributing to the drive toward energy independence.

Such advocacy pieces are typical of the work we create. Most often our work is used in litigation or arbitration. However, we also create print and animated presentations for lobbying organizations around legislative and policy advocacy work or even as part of early settlement negotiations. From our perspective, all of these information conveyance requirements have the common theme that there is a skeptical audience who needs to learn and understand enough about an issue to see that the presenter’s position is correct.

More often than not, seeing is believing in our business.  Comments from all sides encouraged and welcomed.

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advocacy presentations demonstrative evidence

Tags: Energy Litigation, Trial Graphics, Litigation Graphics, Trial Presentation, Trial Consulting, Animation, Science, Presentation Graphics, Environmental Litigation, Advocacy Graphics, PowerPoint, Climate Change

Trial Presentation Graphics: Questioning Climate Change in Litigation

Posted by Ken Lopez on Tue, Jun 28, 2011 @ 08:27 AM

In trial presentation graphics, a great deal can depend on the quantity of data that is presented to the jury and on the way in which it is presented.

For example, it has become conventional wisdom that humans generate pollution in the form of carbon dioxide, that carbon dioxide and other pollutants cause a greenhouse effect on the planet, and that this effect noticeably raises global temperatures and/or causes climate change. Al Gore's movie, An Inconvenient Truth, cemented this belief in the minds of the public and future jurors, largely through the use of effective visual presentations.
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The U.S. Government chart below captures the conventional wisdom well. As large quantities of carbon dioxide entered the atmosphere with rapid industrialization in the past 100 years or so, global temperatures went up, it shows.

Trial Presentation Graphics Climate Change

Because of the recent rapid spread of the conventional wisdom, as illustrated in charts like this one, it has become almost unthinkable to suggest an alternative. But in the trial context, it can be necessary to do just that.

Climate change litigation is making its way through court systems around the world. The targets can be government agencies or large power companies, especially the coal-fired power plant industry. Should a jury be called upon to decide such a case, conventional wisdom will be on the side of the plaintiffs. But the defendants are entitled to show their version of the world’s fluctuations in average temperature – without falsifying facts, of course.

The answer is to add more data that can call into question the conventional wisdom. Changing the scale of the horizontal and vertical axes can change the climate story.

We believe the above 2.5-minute PowerPoint presentation goes a long way toward making the defendant's case that global warming of human origin is not a scientific certainty. By expanding the time frame from 120 years or 1,000 years to 800,000 years or even more, this trial presentation graphic tells a different story from the conventional wisdom.

In the courtroom, our goal in using such trial exhibits would be to create enough doubt about the plaintiff's case so that a jury cannot reasonably award money to the plaintiff.  Using additional data from scientifically valid sources and from paleoclimatologists, telling this story in way that creates doubt is possible.

Our point in creating these trial presentation graphics is not to disprove climate change. Rather, our goal is to show how even the most skeptical viewer can be persuaded through the use of effective presentation graphics. Wasn't that part of what Al Gore taught us all?

We are in the business of telling the right story, our client's story. You can almost hear the closing argument that a defendant’s lawyer would make: "More data is better, isn’t it?  Does the other side want you to look at less data?  Do they want to hide the whole truth, inconvenient though it is?”

We welcome your feedback and encourage your comments below.

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Tags: Energy Litigation, Trial Graphics, Litigation Graphics, Trial Presentation, Trial Consulting, Science, Environmental Litigation, PowerPoint, Timelines, Clean Air Act, Climate Change, Information Design

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Ken Lopez founded A2L Consulting in 1995. The firm has since worked with litigators from all major law firms on more than 10,000 cases with over $2 trillion cumulatively at stake.  The A2L team is comprised of psychologists, jury consultants, trial consultants, litigation consultants, attorneys and information designers who provide jury consulting, litigation graphics and trial technology.  Ken Lopez can be reached at lopez@A2LC.com.


Tony Klapper joined A2L Consulting after accumulating 20 years of litigation experience while a partner at both Reed Smith and Kirkland & Ellis. Today, he is the Managing Director of Litigation Consulting and General Counsel for A2L Consulting. Tony has significant litigation experience in products liability, toxic tort, employment, financial services, government contract, insurance, and other commercial disputes.  In those matters, he has almost always been the point person for demonstrative evidence and narrative development on his trial teams. Tony can be reached at klapper@a2lc.com.

dr laurie kuslansky jury consultant a2l consulting

Laurie R. Kuslansky, Ph.D., Managing Director, Trial & Jury Consulting, has conducted over 400 mock trials in more than 1,000 litigation engagements over the past 20 years. Dr. Kuslansky's goal is to provide the highest level of personalized client service possible whether one's need involves a mock trial, witness preparation, jury selection or a mock exercise not involving a jury. Dr. Kuslansky can be reached at kuslansky@A2LC.com.

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