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The Litigation Consulting Report

7 Ways to Overcome Cognitive Bias and Persuade

Posted by Alex Brown on Wed, Nov 23, 2016 @ 04:50 PM

cognitive-bias-persuasion-a2l-litigation-consultants.jpgby Alex Brown
Director of Operations
A2L Consulting

I read an article today that can be applied to our industry so well that I thought I should apply its lessons. The article was written by Eddie Shleyner and is titled: How to Defeat Your Most Dangerous Writing Habit: 7 Ways to Lift 'The Curse of Knowledge'

The article highlights the concept of being cursed due to knowing too much. The issue refers to someone who has studied a subject so thoroughly that it becomes difficult to explain it to people who don’t know as much about the subject.

As an example, he discusses the book, Made to Stick, where the Heath brothers provide an example: “Think of a lawyer who can’t give you a straight, comprehensible answer to a legal question. His vast knowledge and experience renders him unable to fathom how little you know. So when he talks to you, he talks in abstractions that you can’t follow. And we’re all like the lawyer in our own domain of expertise.”

Cognitive bias is what we are talking about. Shleyner notes that this is particularly dangerous to writers, since in conversation, a listener can ask questions to clarify the issue. But litigators, when giving an opening or closing statement, are in the same boat as writers since they are unable to ask or receive questions from their audience.

So, how can you defeat this curse? Ironically, more knowledge is the answer. The more you know about the curse, the less likely you will succumb to it and the more persuasive you will be. Let’s take a look at his seven best practices to combating this curse and apply them to our industry.

1. Know your audience’s base subject knowledge.

Jury Research. Focus Groups, Mock Exercises. Basically, you need to know your audience. Not only to know how they think, but why, what, who, where and the often forgotten wow. Learn how they think, learn the history to know why they think this way, but most importantly, figure out how to say it in a way that will wow them and be remembered.

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

5 Reasons Why Jury Consulting Is Very Important

Group Psychology, Voir Dire, Jury Selection and Jury Deliberations

2. Tone down your vocabulary.

cognitive-bias-synapse.jpgSpeak to the audience, not at the audience. A sure way to do this is to talk to them in a way that they will not only be able to understand, but also remember. Last night I was working on AP Psychology with my oldest (a junior in high school) and we were discussing the structure of the brain and the nervous system, specifically the identification of synapse gaps and the different interfaces.  I used the concept of roundabouts and how they connect roads. It fits but I did not consider the audience, since my daughter does not drive yet. My wife talked about soldering and it clicked since my daughter is doing that currently in her mechanical engineering class. Remember to speak “to” your audience, not “at” or “down” to them.

21 Steps I Took For Great Public Speaking Results

8 Habits of Successful and Persuasive Public Speakers


3. Tell a story.

At least 65% of your audience will be or consider himself or herself a visual learner. This means that they relate better and retain information at a higher rate through visuals or graphics. No matter how well you can paint a picture with words, the majority of your audience actually wants pictures. So that’s what you give them.

Litigators, Portray Your Client As a Hero In 17 Easy Storytelling Steps

6 Ways to Become a Better Storyteller

10 Videos to Help Litigators Becme Better at Storytelling

Storytelling Proven to be Scientifically More Persuasive


4. Ditch the abstractions.

Abstraction involves induction of ideas or the synthesis of facts into one general theory. It is the opposite of specification, which is the analysis or breaking-down of a general idea or abstraction into concrete facts. Basically, give examples that are concrete. Example:

ABSTRACT: Americans must be willing to protect our freedoms. 

CONCRETE: Voters must protect their Fourth Amendment right against illegal searches and seizures by calling or writing their representatives to protest the administration's warrantless wiretapping program. 


5. Provide examples.

Unlike abstractions, examples put concepts into perspective. In one of our cases involving alleged improper laddering transactions, the client was envisioning an abstract concept of showing a runner in a marathon jumping ahead and how in essence the opposition was intimating that this affected all the other racers in a way that was unfair or even illegal. We struggled with the concept because we could not guarantee that everyone who saw this would go down the same path and reach the same conclusion. Instead, we came up with the “dots” slide, which ended up appealing to the jurors’ sense of logic and was memorable.


As you can tell, this was done a few years ago, but it does not diminish the impact. Examples based on concrete concepts are usually more persuasive then abstract concepts.


6. Use visuals.

Bullet points are not visuals. Visuals reinforce the message and they are not meant to be redundant reiterations of what you are saying. Here are some good examples in these photos.


12 Reasons Bullet Points Are Bad

The Redundancy Effect

Should You Read Documents Out Loud at Trial?

Could Surprise Be One of Your Best Visual Persuasion Tools?

7. Get an outside point of view.

When we are creating images/graphics for the matters we are supporting, we always discuss it amongst ourselves, the clients, strangers passing by… pretty much everyone. Not because we are worried or just want to show off, but because the input is invaluable to get the most persuasive graphic for our audience to connect with and understand. Why would it be different when considering your opening, closing or witness interviews or cross. Get people together to hear and see what you are planning on saying. Use peers and A2L in a MicroMock so we can review the message, and how you are delivering it.

Introducing a New Litigation Consulting Service: the Micro-Mock

With So Few Trials, Where Do You Find Trial Experience Now?

3 Ways to Force Yourself to Practice Your Trial Presentation

Other A2L Consulting articles and free resources about cognitive bias and persuasion:

how to persuade visually arguments persuasive graphics

Tags: Jury Consulting, Mock Trial, Litigation Consulting, Trial Consulting, Storytelling, Persuasive Graphics, Visual Persuasion, Opening, Closing Argument, Persuasion, Cognitive Bias

6 Ways to Use a Mock Trial to Develop Your Opening Statement

Posted by Laurie Kuslansky on Tue, Sep 29, 2015 @ 10:45 AM

mock  trial jury consulting opening statementBy Laurie R. Kuslansky, Ph.D.
Managing Director, Jury & Trial Consulting
A2L Consulting 

It’s often said that the door to winning your case closes in your opening statement. Unless you are able to grab your audience, the jury, then and there, you may never be able to do so.

So how do you maximize your chances of grabbing the attention of the jury at the time that it matters most? One way is through the use of mock trials. How?

Mock trials can help you avoid losing jurors from the start, help you set the stage properly, and help mock jurors begin to use their selective attention in your favor in the following ways:

  1. Confusion. Mock trials readily reveal helpful and harmful sources of confusion.  Usually, but not always, simplicity is your friend. Either way, you will need to know how to make your points clearly during your opening. You can also determine whether your points needs graphics support from the start, how best to word them, and the context needed to place them properly in opening.
  1. Resistance. In addition to confusion as a barrier to accepting certain points in your case, jurors may bring other sources of resistance, such as personal experience, common sense, emotions, negative beliefs and the like. Unless you know what these are, you can’t get past them, no matter how hard you try. However, you can clear the way for jurors to be willing to listen to you by addressing these issues early in your opening, as by saying what the case is not about, or showing them that you are aware of their potential negativity and how you plan to overcome it. Otherwise, they will shut you out and shut down, right from the start.
  1. Cognitive Overload. You may have a lot to say, but jurors are limited in what they can hear, remember and use.  A mock trial will help identify where those two worlds optimally meet – the right amount of information needed to prove your case at the level the jury needs to find in your favor. Opening helps jurors map out what to expect and can show them that you will do as much as needed to provide them with proof, but you won’t scare them off by threatening them with too much information.
  1. Themes. One of the most important things a mock trial can reveal is the winning story, in which the key stepping stones are the case themes. These in turn should be the main takeaways, starting from the opening and running through the summation like paragraph headings to a well-constructed essay with no fluff.
  1. Witnesses. Often the “star” witness of the case for jurors is different from the star witness for counsel.  Mock trials reveal the nature of the most important testimony and its source from the decision-makers’ perspective and thus help you decide whom to feature in your case or which opposing witness to start discounting in opening.
  1. Outcomes. Mock trials teach us what result jurors seek, what it means to them, and what they hope to accomplish with their verdict.  As a result, counsel can incorporate the mock jurors’ motivations into the opening statement to align with how actual jurors may feel and start winning them over from the start. Often, why you care about the case result is different from why they may or may not care about it. Unless you know what drives them and tap into it, you lose critical momentum from the start.

In summary, mock trials are an indispensable step in the process of developing a winning opening statement.

Other free articles and free resources about mock trials, opening statements and storytelling for litigation from A2L Consulting:

opening statements toolkit ebook download a2l

Tags: Jury Consulting, Mock Trial, Psychology, Storytelling, Expert Witness, Opening, Closing Argument, Witness Preparation

5 Ways to Maximize Persuasion During Opening Statements - Part 3

Posted by Ryan Flax on Mon, Apr 20, 2015 @ 03:15 PM


burst-bubble-wind-sails-opening-statementby Ryan H. Flax, Esq.
(Former) Managing Director, Litigation Consulting
A2L Consulting

In our two previous posts, we discussed two important roles that an opening statement can play: making you and your client appealing to the jurors, and telling a convincing story. Here are two other key functions for an opening statement.

Showing How the Facts Fit the Law

You cannot argue in an opening statement. That is objectionable. But you can accurately tell jurors what you need and intend to prove to win, thus giving the jurors in effect a list that they can check off during the trial. Don’t tell the jury what the law is; that’s for the judge to do. Instead, tell them what you’re going to prove and why it’s important. You’ll want to combine this with your storytelling. Most cases aren’t as complicated as lawyers think they are, and if jurors are to do their job, they simply can’t be too complicated. Boil down the things you need to prove into a simple list. Tell the jury that you’re going to show them all these things.

For example, in a basic breach of contract case the question is: Shouldn’t a deal be honored? To win the case, you need to first show that there was a valid contract, that it was reasonable, and that there was performance by your client.

Once you’ve established the framework of proof, give your jurors a taste of the evidence that will be presented at trial and explain that it’s enough to win without any more evidence (but of course there will be more). For example, there is already deposition testimony from the defendant that there was an agreement, a contract. The defendant has also already conceded in testimony that the amount in the contract was reasonable. Finally, there can be no doubt that our client performed under the contract. Now, if we can just get a stipulation from the defendant that he hasn’t paid our client, we’re there.

Now that the jury knows what to expect at trial, they’re primed and they have a working outline for the trial.

Deflating The Opponent’s Balloons

Every case has a weakness, even yours. How do you handle weaknesses in the opening statement? Beat your opponent to the punch — identify your opposition’s strongest points and explain why they don’t matter. Bringing out weak points in your case in as positive a way as possible takes the sting out of the issues, makes you appear honest, and lessens the negative impact of your opponent pointing them out.1

If you go first and identify for the jury what opposing counsel will say in their opening and discount it, you’re already winning. Lawyers who ignore their weaknesses lose credibility. Jurors will not believe a lawyer who is perceived to be hiding important facts.

The key to handling weaknesses is to make them part of the story and turn them around. Admit them as if they were “no big thing” or if they seem to be a big deal, explain why they’re not really that big. Reason and logic rule: You’ll need a reasonable and convincing but terse explanation for why your client waited three years to sue or why a couple of beers before heading home didn’t matter.

Deflating balloons doesn’t mean telling the jury about every single piece of conflicting evidence or argument the opposition may use. Deal with major problems that could really matter if left to your opponent to introduce.

Other A2L Consulting articles and resources for opening statements, trial presentation and litigation consulting support generally:

jury consulting trial consulting jury research


[1] J. Alexander Tanford, The Trial Process: Law, Tactics and Ethics 3d, at 169 (2002).

Tags: Litigation Consulting, Juries, Storytelling, Opening, Depositions, Closing Argument

4 Ways That Juries Award Damages in Civil Cases

Posted by Ken Lopez on Wed, Oct 15, 2014 @ 09:13 AM

jury foreman damages award how calculate askby Elise Jefferson, MA
A2L Consulting

An intriguing and complex aspect of civil litigation is the use of damage awards as a means of achieving justice. This remains an inexact science; no one can predict the amount of money that a jury is going to award the plaintiff if liability is found. However, a good deal that is worth knowing has been learned about what goes into that decision. For example, studies have examined damage awards when jurors are asked to award a specific amount, as well as how jurors’ perceptions of the plaintiff’s motives for suing can affect damage awards. Although it can be difficult to predict how much money a jury may award, it is still important to consider the various theories that attempt to explain what influences jurors when determining damages.

Following are four theories that reflect the current state of the art.

1. Horizontal Inequity   

Horizontal inequity theory attempts to explain why there is a significant amount of variability among similar injury types. For example, if two plaintiffs lose their ring fingers, their damage awards may be significantly different if one of them is a professional guitar player and one is a triathlete. This can make it difficult for attorneys or consultants to make an educated prediction. One way plaintiff’s attorneys can counteract this issue is by giving jurors examples of previous award amounts as reference points insofar as this is admissible; plaintiff’s attorneys can suggest an appropriate amount during opening statements and justify that amount throughout the course of the trial via witness testimony. In a bifurcated trial in which the defendant has already been found liable, defense attorneys can use this theory to counteract the amount suggested by the plaintiff, by giving examples of lower amounts awarded in similar trials.

2. Anchoring and Adjustment Heuristic

Another theory that addresses juries’ determination of damage awards is known as the anchoring and adjustment heuristic. This theory holds that, in making quantitative judgments, jurors are influenced by a numerical starting value, regardless of how arbitrary the starting value is. This supports previous psychological research and anecdotal evidence that the more money that plaintiffs attorneys seek in damages, the more money they typically receive. For plaintiffs attorneys, this does not necessarily mean that they should suggest damage award amounts beyond what would be considered reasonable by the average juror. However, they should suggest awards that may be higher than the average amounts awarded for that injury type. For defense attorneys, this information would be helpful in making settlement offers, in order to counteract the plaintiff’s initial offer and ultimately lower the amount.

3. Fusion Theory

A third theory on how jurors award damages concerns the concept of fusion. While jurors are usually given instructions to select a damage award amount based on the defense’s conduct as opposed to the plaintiff’s injury, studies have shown that jurors are essentially unable to differentiate between the two. Under the fusion theory, jurors use relevant information from one legal decision to influence how they make other legal decisions. One study surmised that, because jurors hear evidence about the defendant’s conduct and the plaintiff’s injuries simultaneously, the information from both is often fused together to help juries make a decision on the award. Both plaintiff and defense attorneys can use this concept to their advantage by lumping together or separating both components during opening and closing statements.

4. LEL and Distinct Award Conditions 

A significant amount of research has been conducted to examine how instructions given to jurors affect damage awards in personal injury cases. A study conducted in 2011 examined lost enjoyment of life (LEL) and how jurors awarded damages when this factor was considered separately from pain and suffering (a common requirement in personal injury cases). LEL is defined as damages that are awarded in order to compensate the plaintiff for the ways in which the plaintiff’s life is limited because of an injury caused by the defendant. These limitations typically focus on the inability to enjoy activities that the person once enjoyed. In some jurisdictions, jurors are able to consider LEL separately from pain and suffering in personal injury cases.

In this study, jurors were asked to render non-economic damage awards in one of three conditions: 1) overall pain and suffering only, 2) two separate awards: mental pain and suffering and physical pain and suffering, or 3) four separate awards: mental anguish, LEL, physical disability/impairment, and disfigurement.

In keeping with previous research, the psychologists hypothesized that the more injury types the jurors were asked to consider, the higher the overall damage amount awarded. The researchers found that jurors did in fact tend to provide higher damage awards when considering the four-element condition, as opposed to the one-element condition. They also found that LEL played the most significant role in influencing award decisions..

Attorneys should consider these study results when requesting a specific amount of damages from the jury. In order to encourage jurors to award a larger sum of money, it may be beneficial for plaintiffs attorneys to isolate various types of potential damages. Instead of a lump sum only, breaking it into components may provide additional opportunities for jurors to fill in more blanks. However, it would be advantageous for defense attorneys to encourage jurors to consider a lump sum, in order to decrease the award amount.

In conclusion, damage award research has the potential to help litigators understand how to better achieve award amounts that will be most beneficial to their clients as plaintiffs and/or ways to defeat them when representing defendants.

Other A2L Consulting articles and resources discussing damages, mock trials and how juries make decisions:

complex civil litigation ebook free



Tags: Jury Consulting, Mock Trial, Juries, Jury Consultants, Jury Selection, Psychology, Opening, Closing Argument, Damages

14 Differences Between a Theme and a Story in Litigation

Posted by Ken Lopez on Thu, Oct 9, 2014 @ 09:16 AM


storytelling theme courtroom trial openingby Ken Lopez
A2L Consulting

Twenty years ago in my trial advocacy class, we talked a lot about developing a theme for a case. We learned to say things in an opening statement like, "this is a simple case about right and wrong" or "no good deed goes unpunished."

The goal of developing and communicating a theme is to give your fact-finder(s) an organizing principle that they can fit the evidence into neatly. However, for as much as we talked about themes, one thing I was not taught much about in law school was storytelling.

The two devices, themes and storytelling, are related, but they are not the same. A case theme can be thought of as a case's tag line, somewhat similar to corporate slogans like "when it absolutely, positively has to be there overnight" or "the ultimate driving machine." It's a shorthand version of the case designed to connect with the life experiences of the fact-finder(s).

I have seen cases where a story was told, but no theme was used. I have seen cases where a theme was used, but no story was told. The reality is you need both, particularly during opening statements, and appreciating the differences between themes and stories is critical for success at trial. With estimates running as high as 80 percent for the number of jurors who have made up their minds just after opening statements, getting your theme-story combo right is nothing short of essential - for BOTH plaintiff and defendant.

Here are fourteen key differences between themes and stories used in litigation:

  1. Themes are attention getters, stories are attention keepers. You're a clever lawyer, and you can rattle off a great case theme that gets people thinking. However, without a meaningful story to back up your opening line, fact-finders are just going to make up their own story or just tune you out.
  2. Themes provide a reason to be interested, stories provide the emotional connection required to care. If a jury does not care about your case, they are likely not going to get on your side and could very well just be daydreaming even while making eye contact.
  3. Themes explain, stories motivate. A well-told courtroom story will trigger a biological and an emotional response that leaves your fact-finder open to being persuaded.
  4. Themes sound like you are being a lawyer, stories sound like you are being human. It is very important to be likable at trial, and being likable generally means behaving like someone people can really relate to. If you are over-using lawyer-language, you create distance between you and a jury.

    storytelling persuasion courtroom litigation webinar

  5. Themes provide a smidgen of structure, stories provide a decision-making framework. You know that you've told a story well in the courtroom when the jury tells the same story to one another during deliberations. We see this occur during mock trials regularly. See 10 Things Every Mock Jury Ever Has Said.
  6. All lawyers know to use themes, many lawyers will fail to use stories. I recommend downloading our free Storytelling for Litigators book and watching our free Storytelling for Persuasion webinar to rapidly improve your storytelling skill set. I've watched good lawyers lose cases when they failed to articulate a good story.
  7. Themes are mostly tools for opening and closing statements, stories are incorporated throughout the trial. If you have set up your story well and worked with every member of your trial's cast including fact and expert witnesses, everyone will add clarity to a story throughout the trial.
  8. Juries will not usually talk about your themes, juries will talk about your stories and often adopt them as their own. See Your Trial Presentation Must Answer: Why Are You Telling Me That? and 10 Videos to Help Litigators Become Better at Storytelling.
  9. Stories have many characters with understandable motives, themes provide little in the way of character development. See Are You Smarter Than a Soap Opera Writer?
  10. Themes may offer the what or how, but stories offer the why. See Your Trial Presentation Must Answer: Why Are You Telling Me That? and 20 Great Courtroom Storytelling Articles from Trial Experts. 
  11. Themes offer something quickly relatable, stories offer something you can get lost in. See 5 Essential Elements of Storytelling and Persuasion
  12. Themes affect one part of the brain, stories affect another. See Storytelling Proven to be Scientifically More Persuasive
  13. Themes don't really persuade, stories will persuade. See Storytelling as a Persuasion Tool - A New & Complimentary Webinar
  14. Themes don't need litigation graphics to support them but stories sure do. See Why Trial Graphics are an Essential Persuasion Tool for Litigators

Other articles and resources related to courtroom storytelling, theme development and opening statements on A2L Consulting's site:

Tags: Litigation Graphics, Trial Presentation, Mock Trial, Juries, Storytelling, Opening, Closing Argument, Persuasion

Every Litigator Should Watch Scott Harrison Deliver This Presentation

Posted by Ken Lopez on Thu, Oct 17, 2013 @ 11:10 AM


litigators can learn from scott harrison charity water presentationby Ken Lopez
A2L Consulting

I had the pleasure of speaking at a conference where another speaker blew me away recently. His name is Scott Harrison, and he is the founder of charity: water. What's special about Scott is what an exceptional storyteller, marketer and presenter he is.

He wants to solve the world’s water crisis in our lifetimes -- to make clean water accessible to every single person in the world.

Normally when I write a blog post it's designed to be consumed in a few minutes. This one has a one-hour video at the bottom of it. Chances are if you read our blog, you are a pretty busy person. I recently sent this video to about 100 close friends. I'm really enjoying how many of them are telling me that they watched it and how it changed their view of the world.

Briefly, Scott tells a compelling story that is understandable, simple and believable. It's something you can get your arms around. This is similar to what litigators are called upon to do every day. I just happen to think this guy has an unusual natural talent for it.

Scott has upended and disrupted charity in a way that frankly I had no idea needed to happen. I give to quite a few charities in the course of the year. I can't even remember what most of them are except for a few key ones. All I remember is that they were worthy causes, a friend asked and it was something I could easily do.

What Scott Harrison is doing is entirely different. He recognizes something that I didn't fully recognize before: I don’t really trust charities. For the most part I think they're not going to make good use of their money. They're going to probably be a bit better than government in efficiency but they're not going to be anything like the way we operate in the private sector.

charity: water, Scott’s organization, is different. Instead of reporting what percentage of their donations go to administrative costs, they give 100% of donated money to their projects. How is this possible? Simple: They fund raise separately for administrative costs to run the business, and they fund raise separately for donations. Scott figured out how valuable it is to be able to say that 100% of your donation goes to the people that need it.

clean water charity water scott harrisonThe second key feature of this charity is the fact that they prove every donation. This concept is quite wonderful when you understand what it means. Simply stated, it means that you're able to trace every single dollar to a specific project. Depending on the project, you will get tweets, Google maps, photographs, your name on a sign -- whatever it takes to prove that you contributed something specific.

Another technique that charity: water uses is amazingly simple: it's called giving away your birthday. The idea is that for your birthday instead of asking for presents or Facebook posts, you ask people to donate dollars equivalent to the number of years you have lived.

This is an amazing thing. My birthday is in a few weeks. I set a goal of raising about $2000 which will help about 50 people in India get clean water. I've raised about $1000 as of this writing. I think that's amazing. All in all, I see this organization as a reinvention in the entire way we think about charity.

To say I presented at the same conference as this founder of charity: water is a little bit embarrassing. It sounds as if I'm trying to associate myself with someone really great, and I think I am. What this guy is doing is on a whole other planet. I have no right to ask for an hour of your time, but I promise it will be worth it.

Like others who have seen Scott speak, when I left I felt compelled to act. His presentation was so moving and compelling that there's no other way I would have done anything else. Now, I've seen lots of charity presidents and executive directors stand up and ask for money. I've seen incredible stories that no one would say no to. But Scott's pitch was entirely different. What he's asking for doesn't just feel selfless. It feels like a movement. And people like movements. People like meaning.

I hope you can see where I'm going in this post. All of this is so similar to an opening statement and a closing statement in the cases we present that I hope you can see the similarity at once.

scott harrison presentation inbound charity waterWhen Scott presented his case, he gave it meaning. He told compelling stories. He used photography, graphics and simple slides to explain complex subjects. He used language and imagery that would appeal to visual, auditory and kinesthetic learning styles. Perhaps most important of all, at the end he asked me to do something. When you watch this presentation I want you to watch Scott Harrison's use of stories. How he memorizes what he presents. And how he uses graphics to make his case.

I make a living watching presentations, designing presentations and helping people improve how they present. Even though I know Scott’s presentation has been given hundreds of times, it felt real and new that day. And that is how we should make our judges and juries feel every time.

This doesn't mean playing on emotions because you can. It doesn't mean tugging heartstrings because you can. It doesn't mean slyly taking advantage because you can. No, it means being authentic, creating meaning, and asking for what's right.

Watch this video and tell me you can skip over doing something. Lots of people call us horrible things in the legal industry. Here's a chance to show something different. Watch this, learn from it, and then take action that feels right to you. You can donate to my campaign, you can start your own, but I'm telling you there's a movement underway here, and it's going to change the world.

Articles related to storytelling, persuasion and using graphics well on A2L Consulting's site:

Tags: Science, Presentation Graphics, Storytelling, PowerPoint, Closing Argument, Marketing, Charity, Information Design

10 Things Every Mock Jury Ever Has Said

Posted by Laurie Kuslansky on Thu, May 30, 2013 @ 11:39 AM

mock trial mock jurors what they all sayby Laurie R. Kuslansky, Ph.D.
Jury Consultant

For decades and in every part of the nation, mock jurors who are presented with various fact patterns and legal issues tend to have the same reactions. Some are helpful and others are harmful, depending on where you stand in the case.  Knowing that these issues recur over and over can help to prevent those which are unfavorable to you:


1)     Why did the plaintiff wait so long to sue?

While there may be good reason to delay filing suit, mock and actual jurors often use the delay between the alleged problem and the filing of a claim as a yardstick of its merit.  The longer the gap, the less credible the claim.  If counsel fails to address this issue, it tends to work against the plaintiff. It is especially damaging, for example, when someone claims an issue in the workplace, but waits until they are no longer employed. To many jurors, this signals  that it was the termination, separation, or voluntary departure that was the issue, not the conduct, such as discrimination, that is the subject of the complaint.


2)    That doesn’t make sense.

Lawyers don’t always put their case through the basic “smell test” or test of common sense from the layperson’s perspective.  They skip this step at their own peril, because those are the tools most accessible to lay jurors.  While the theory of the case may work for a sophisticated user, it may go over other people’s heads and not square with more fundamental questions.  Jurors’ questions may and often do fall outside the strict legal requirements of verdict issues to answer -- but if left unanswered for the jury, those gaps often harm the party that failed to close them.  For example, motive may not be required legally, but is required for most cases psychologically.  People want to know who gained and who lost?  Why did they do what they did?  Did they have alternatives?  Why would someone act against their own interest?  Why would a rich person nickel and dime?


3)     How much should we give them?

Without the benefit of law school, or knowledge of the law, lay jurors often have no difficulty separating causation from damages.  Instead, some permit other motives (e.g., sympathy), to drive a desire to award some money, whether or not liability has been proven.  Therefore, it is not uncommon for mock deliberations to begin not with a question of liability but with the question, “So, how much should we give [plaintiff]?”  A mere reading of instructions is not the remedy.  Instead, defense counsel needs to pay particular attention to this possibility and address it directly – not only legally (the law requires a finding of liability before considering damages) – but in terms of messages of why it is okay not to award damages, or not okay to award them from a practical perspective. For example, one might argue that awarding damages to the plaintiff means that the defendant did the wrong thing and the evidence shows that these people (defendants) did not do the wrong thing.


4)     That may be true, but they didn’t prove it.

Thankfully for some defendants, many jurors express their belief that the plaintiff is right, but accept that the plaintiff must prove its case and that the evidence does not amount to proof. Arming defense-oriented jurors to espouse this posture to defeat plaintiff-leaning jurors is always worthwhile, especially in cases that may engender sympathy for the plaintiff.  “You may think the plaintiff is right or you may want the plaintiff to win, but the test is for the plaintiff to prove their case and if they do not do so, then you cannot find for the plaintiff.”  This line of thinking should also be incorporated into the voir dire where available, e.g., asking questions along the lines of “If plaintiff has to prove its case and does not prove its case with the evidence, can you assure me that you will not find for the plaintiff?”

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5)     Let’s see what everyone wants to give and divide it.

In an attempt to fairly represent everyone’s position about damages, the most commonly seen approach is the quotient verdict on damages, whereby the average of the individual awards is the final one.  Research has shown that it is not a true mean, but rather skewed upward because those wishing to award/punish more strongly tend to stand their ground more fervently and exaggerate the amount more than the opposing camp.  To prevent this, individual jurors should be encouraged to stand their ground and should be armed with messages in summation on how to deal with this possibility.


6)     Do we have to be unanimous?

No matter how clear the jury instructions when unanimity is required, someone in the deliberations will question it.  This typically occurs when the group is not in agreement and seeks an easier way out of resolving their differences.  If unanimity helps your side, then additional attention needs to be paid in summation to what the jury is being asked to do. Summary litigation graphics that make it easy for everyone to have a mutual reference point can help disparate thinkers converge on the points made visually, and the presenter should incorporate language that leads them to unanimity, e.g., “As we can see in this summary of the evidence, no one should disagree that x, y, z.”  “Everyone on the jury saw and heard the testimony of X, which showed that …., so everyone has the evidence needed to come to a unanimous decision on that issue to decide Y.”


7)     Were those real attorneys or actors?

It is surprising, but consistent, that mock jurors assume the actual attorneys are actors, but that the jury consultant is an attorney.


8)     Where is it in writing?

People who lack legal training or involvement in fields in which spoken agreements are common are extremely skeptical about any oral agreement, absent documentary support.  In some places, cultures, or age groups, a handshake is a durable bond (e.g., the South and the older generation), but in others, it amounts to a mere he said/she said and means little to nothing.  Overall, most jurors and mock jurors reject the concept that a verbal agreement is as binding as a written one, no matter what the law may say.  Though a course of conduct may help reinforce that there was an agreement, it often requires some writing to be believed, so it is an uphill climb to prove a binding agreement in its absence.


9)     We should give them something.

When a plaintiff is especially sympathetic (e.g., a baby or a child), a defendant is disliked or perceived to be rich (e.g., a pharmaceutical or insurance company), or the conduct is notably unlikable (alleged pollution), jurors often rig their decisions in order to award money to plaintiffs, stating their discomfort and reluctance to send plaintiff home empty-handed.  This echoes the process of awarding damages stated earlier, whereby there is a disconnection between liability and damages.  Part of overcoming this behavior entails arming jurors with a message of why it is not okay to penalize the defendant when wrongdoing is not found, or why it is okay not to reward plaintiff.  Again, it is a subject that should be addressed in voir dire.  “Although you may have sympathy for the plaintiff(s) in this case, do you have any doubt or discomfort awarding no money if the plaintiff does not prove his/her case?”


10)  It may be legal, but it just isn’t right.

For some mock and actual jurors, the moral barometer is sufficient to find liability, regardless of the legal standard.  Counsel for the defense should make sure to address this possibility.  While someone may not like the law, the law is what he or she is required to follow.  The subject should also be included in voir dire, e.g., “If your personal feelings are different from the legal instructions, please explain if you would have any difficulty following only the law and the evidence to reach your decision.” “If you have any religious or moral beliefs that might stand in the way of you making a decision only based on the law, and setting those aside, please let us know/raise your hand.”

Here are some other resources on A2L Consulting site about jury consulting, trial consulting and mock trials:

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Tags: Trial Consultants, Litigation Graphics, Jury Consulting, Mock Trial, Litigation Consulting, Trial Consulting, Juries, Jury Consultants, Closing Argument

No Story, No Glory: Closing Arguments that Don't Close Loops

Posted by Laurie Kuslansky on Fri, May 24, 2013 @ 12:45 PM

closing argument tell story storyingtelling trialBy Laurie R. Kuslansky, Ph.D.
Jury Consultant

A trial lawyer can have all the facts, but unless he or she can weave them into a story that makes sense and doesn’t leave unanswered questions in the closing argument, the facts aren’t likely to add up to the result the lawyer seeks at trial.

For example, in the recent Jodi Arias murder trial, in which Arias was convicted in an Arizona court of murdering her ex-boyfriend Travis Alexander, prosecutor Juan Martinez left several critical holes and questions:

1)     Why would the defendant have sex all afternoon with the victim and then kill him?

2)     How could her killing him not be in the heat of passion or the result of an argument after they had sex that day?

3)     Why would she have sex with the victim if she headed to his home with the premeditated plan to kill him?

4)     Why not kill him when his back was turned?

5)     Why use a knife if she had a gun?

6)     Why take photographs and create evidence if you’re planning a murder?

The evidence pointed to the notion that the defendant’s Plan A was winning the victim back: 

  • Arias brought CDs and the couple watched photos of good times they’d had together on trips

  • They had sex twice that afternoon

  • Arias “relented” and agreed to have Alexander take nude photos of her to “please him”

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The defense claimed she snapped and that “something happened in this moment in time between 5:29:20 and 5:32:16.” “Something happened” just before the victim was killed, i.e., something different than the sexcapades that preceded it, but what was it?

The answer could have been that Plan A, which was reconciliation, did not work, so Arias resorted to Plan B, to kill him and spin it as self-defense. The evidence points to this common-sense story, but the prosecutor didn’t tell it to the jury.

The story of what really may have happened with Plans A and B leads to confusion of another sort:  reconciling them with the legal instructions, also unanswered by the prosecutor in summation. 

For example:

1)     Could it be premeditated and heat of passion at the same time? If the murder was solely premeditated, she wouldn’t have had sex with him before killing him. If it was in the heat of passion (when Plan A failed), how could it be premeditated? 

2)     The crime clearly shows high emotion and overkill (28 stab wounds, a gunshot, a slashed throat), not a well-planned method. Why? If it was planned, wouldn’t it have happened earlier upon her arrival and been “neater”?

3)     Doesn’t Plan A (winning him back) undermine premeditation? Doesn’t Plan B require an argument (related to his refusing to take her back/to Cancun)?

4)     If there was an argument, doesn’t that cancel out premeditation?

It is a serious oversight for a litigator not to explain a defendant’s actions in closing argument and close the gaps in light of the legal instructions. Although the prosecutor reviewed Arias’ actions for the jury, he did not tie them directly to the full story. He did not educate the jury on how it was possible that both plans were premeditated, and that not winning Travis Alexander back with Plan A could have caused an argument and passion, yet could have been in Arias’ plan all along. This could have been an example of premeditated murder for just that reason. His solution was potentially risky – to offer that the premeditation occurred at two different times and circumstances:  1) at the end of May, after the break up, in advance of planning her trip to see Travis Alexander AND/OR 2) at the time of the crime. 

The prosecutor did yeoman’s work trying the case solo, rarely using notes, and doing his summation after a marathon in court the prior day. This article is not intended as criticism, but as a lesson to learn to reduce the risk of failure. 

Ultimately, the 12 jurors determined that the defendant was guilty of premeditated first-degree murder:  7 of them finding premeditated felony murder.

However, so much hard work can be left on the cutting-room floor if the story is not told in a manner that satisfies tough questions. Jury research has shown that when questions are unanswered and gaps are not filled, jurors do so themselves, which is very risky and often inaccurate. While in the Arias case in Arizona, one of the few states that permits ongoing juror questions, jurors revealed their questions and counsel was able to answer them before it was too late. In most other states, it is up to counsel to anticipate and address jurors’ questions.

It is better to try to have more control over how such questions and gaps are handled by addressing them at the very latest, in your closing argument, if not earlier.

Other resources and articles on A2L Consulting's site related to closing argument and storytelling: 


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Tags: Jury Consulting, Jury Consultants, Storytelling, Closing Argument

How to Structure Your Next Speech, Opening Statement or Presentation

Posted by Ken Lopez on Thu, May 9, 2013 @ 07:00 AM

opening statement structure order presentation speech outline a2lby Ken Lopez
A2L Consulting

I frequently help lawyers craft presentations – whether it’s the opening statement of a litigator, a pitch presentation for a law firm, or a seminar presentation for a corporate lawyer. And I too am often called upon to speak at events or even off the cuff to a group.

After a good bit of trial and error, I have found two nearly foolproof ways of organizing any of these talks that I use almost invariably, whatever the context may be.

The great thing about these models is that you can use them in an off-the-cuff speech just as well as you can in a highly scripted presentation. Whether it's the courtroom or your kid's school, these models work wonders. You will come off as inspiring, not just informative. You will appear confident. You will also be seen as following modern presentation styles – the spoken equivalent of using an electronic presentation versus using transparent overhead slides.


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To understand these new approaches, which have become common in TED Talks, on the professional speaking circuit, and among A2L’s clients, you need to understand the old format and why it is a recipe for audience disconnection and boredom.  It goes something like this:

"Hi, I'm Ken Lopez. Thanks for having me here this morning.  It's a real pleasure to speak to a group like you.

I founded A2L Consulting in 1995, and today I am going to talk to you about litigation consulting. If you heed my message about conducting mock trials, using litigation graphics and relying on trial technicians in court, you are going to be at the top of your game in the modern courtroom."

Okay, it’s accurate, but it’s flat. And it gets worse. The agenda slide comes up. Ugh. The parade of bullet points starts marching across the screen. Ugh again.

Compare this with the following approach. These will be the first words you hear from me:

"Litigation consulting is a process that helps people like you, the world's best communicators, persuade even more effectively. For your must-win cases, it is a must-do and includes a three-stage system of structured practice including mock trials, the consultative creation of litigation graphics to bring your trial story alive, and flawless courtroom document and electronics handling by trial technicians who make you look like a star. Your judge and jury will reward your fine preparation.

I'm Ken Lopez, and I'm the Founder/CEO of A2L Consulting, the world's best litigation consulting firm."

Delivered the right way, with the right pauses and the right tone, version two should have left you feeling something entirely different than version one. It should have left you feeling. And that's no accident.

I'm using a format that I call BELIEF - ACTION - BENEFIT. I learned it from a professional speech coach many years ago.  Essentially, it goes like this:

I believe ____, I think you should do _____, and if you do, the benefit will be _____.  Then introduce yourself.  Then go into detail about what you believe, what actions you want your audience to take and how they will benefit by doing so. Finally, repeat your initial belief - action - benefit statement.

This process needs to be modified to suit your situation.  What a lawyer believes is not really relevant to an opening statement, so the belief - action - benefit approach needs to be couched a bit differently -- more like "Plaintiffs, self-described patent trolls, are attempting to wrongfully extort money from my client. You have a chance to make this right. If you do, you'll be standing up for small business and all that is just and right."

One well-known speaker who offers a similar format is Simon Sinek. He points to the golden circle of communication that follows a pattern of WHY - HOW - WHAT, whereas most people communicate the opposite way WHAT - HOW - WHY, which is exactly what I used in my first uninspiring example.  Look at Simon's now legendary TEDx Talk:

a2l consulting belief action benefit why how whatI think Simon's format is extraordinary and pretty similar to BELIEF - ACTION - BENEFIT.  I tend to weave both formats together when developing a story for trial, but when I am speaking off the cuff, I just find BELIEF - ACTION - BENEFIT to be a bit easier to remember. However you look at it, I bet this is not the presentation you would have given a year ago, or even a week ago.

Here's a chart that will help you visualize both approaches. Remember, most people, businesses and organizations communicate from the outside in. But to inspire rather than simply inform, communicate from the inside out.

Below are some additional articles and resources that you can find on the A2L Consulting site about storytelling, opening statements, making great presentations and giving a memorable and inspiring speech:

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Tags: Courtroom Presentations, Litigation Consulting, Trial Consulting, Jury Consultants, Psychology, Storytelling, Opening, Closing Argument

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

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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 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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