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The Litigation Consulting Report

The Importance of Litigation Graphics in Toxic Tort Litigation

Posted by Tony Klapper on Wed, Dec 28, 2016 @ 01:23 PM

iStock-456090227.jpgby Tony Klapper
Managing Director, Litigation Consulting
A2L Consulting

If anyone thought the era of toxic tort litigation was coming to an end, they were wrong. The Environmental Protection Agency recently announced its priority list of 10 chemicals, including asbestos, that it is considering banning under the Frank R. Lautenberg Chemical Safety for the 21st Century Act. Although it remains an open question how aggressive the Trump administration will be with safety regulations, the reality is that regulatory lists like this, and the inevitable studies that follow, often become a treasure trove of “support” for a plaintiffs’ bar eager to add scientific credibility to their legal claims.

This presents challenges for defense lawyers – especially given the continued currency of quasi-scientific principles or principles that are fine for regulators to rely on, but have no place in today’s courtroom, such as the “precautionary principle.” This is most evident with the mantra of “no safe dose” that asbestos lawyers and some environmental groups trumpet as justifying liability for even the most meager and infrequent of chemical exposures. Of course, toxicology, epidemiology and other scientific disciplines have exposed the fallacy of principles like “no safe dose” (after all, Paracelsus teaches us that “dose makes the poison – more about this later). But the appeal of the seemingly aphoristic “no safe dose” is tough to counter in court when an effective advocate plays to a jury’s fears and is buttressed by governmental pronouncements that, albeit for different reasons, embrace the notion that there is some theoretical, modeled risk from exposure to virtually any chemical.

So the task for the defense bar is how to convince juries to reject these and other fallacious concepts that serve as easy, digestible substitutes for the more complex elements of true causation.

This task requires more than just the hiring of well-credentialed risk assessors, toxicologists, epidemiologists and pathologists, and the deployment of powerful rhetoric. It also requires careful thought on the best way to persuade jurors visually that many of the concepts proposed by plaintiffs in toxic tort cases are indeed spurious. With some creativity, defense lawyers and graphic artists working with them can come up with ways to explain complex scientific concepts, such as exposure pathways and epidemiology, so that jurors can understand them.

A good example is the basic principle of toxicology that “the dose makes the poison.” This doctrine states that the amount of exposure to a substance is what defines the impact that that substance has on the human body. A moderate amount of water is a good thing. Actually consuming too much can kill you (hyperhydration). This concept should be relatively easy for lawyers and graphic artists to explain to juries without becoming overly technical and resorting to scientific mumbo-jumbo that will only confuse. 3-D and 2-D animations can be useful in this type of case, as can the simple bar chart or creative illustrations that analogize concepts like thresholds and total dose. Sometimes the simplest approach is the best.

Too often, when lawyers think about litigation graphics in toxic tort cases, they rely excessively on callouts of phrases in long-forgotten documents or hopelessly complicated charts presenting arcane data. If the message from the plaintiff’s lawyer is very simple – as in “this case is as easy as A, B, and C—Asbestos in Brakes cause Cancer” – the defense needs to respond with a similarly basic approach that will remain in jurors’ minds.

Other articles and free resources related to toxic torts, litigation graphics, teaching science, and environmental litigation from A2L Consulting include:

persuasive storytelling for litigators trial webinar free

Tags: Trial Graphics, Litigation Graphics, Demonstrative Evidence, Science, Environmental Litigation, Toxic Tort, Persuasion

7 Reasons the Consulting Expert is Crucial in Science-Based Litigation

Posted by Tony Klapper on Fri, Jun 3, 2016 @ 11:49 AM

consulting-expert-managing-expert-science-litigation.jpgby Tony B. Klapper, Managing Director, Litigation Consulting & GC, A2L Consulting and David H. Schwartz, Ph.D., Co-Founder, Innovative Science Solutions 

The successful litigator knows that one of the first and most important steps to be taken when confronted with complex science-based litigation is to identify and engage a top-notch testifying expert. The ideal testifier is one who is highly qualified, able to credibly communicate to a jury, and can educate the legal team. These characteristics go for experts involved in patent disputes, product liability litigation, and consumer fraud cases involving allegations that a supplement, drug, or device is not effective.

Testifying experts are indeed critical for the success of a case, but as we have discussed in a previous post, many litigators fail to recognize that it is equally important to engage an experienced and litigation-savvy consulting expert. To understand why, consider the following seven points.

1. Availability

If you have recruited the ideal testifying expert, his or her time may be limited by the day-to-day obligations as an opinion leader in their field. I am sure that most of the litigators reading this post have experienced the challenges of working with a testifier who teaches, is conducting scholarly research, or has just simply overcommitted to too many legal clients. When this happens, getting the expert’s attention may prove just as difficult as understanding the science upon which the expert relies. And because understanding the science enough to cross-examine the other side’s expert is a critical component of effective advocacy, having a consulting expert available to take the time to educate you and help you prepare your case can be indispensable.

2. Context

Consulting experts tend to understand the litigation landscape better than an academic testifying expert. With the exception of the oft-used professional testifier, most testifying experts are not particularly litigation savvy and may not be familiar with the manner by which scientific evidence in their field may be twisted and turned by more experienced testifiers. A consulting expert who has studied not only the literature, but the positions espoused by the adversary’s experts—as articulated in expert reports, depositions and trials—can help litigators more effectively prepare their testifiers’ reports and direct examinations, as well as prepare for cross.

3. Cost-Containment

Third, consulting experts provide the litigator with a means of evaluating an adversary’s case, as well as his or her own, and understanding where the strengths and weaknesses lie. As we all know, we live in an age when early case assessments have become critically important to the business client. Those clients increasingly demand that their outside counsel find ways to resolve resolvable disputes well before hundreds of thousands (if not millions) of dollars are spent in motions practice, discovery and expert retention. Having a consulting expert help assess your case before retaining your testifier often proves to be one of the most cost-effective ways to satisfy the client’s cost-saving demands.

expert witness teach science complex subject courtroom webinar 4. Discoverability Concerns

Notwithstanding changes to Fed. R. Civ. P. 26(b)(4)(B)-(C), discoverability concerns remain with testifying experts (particularly in state courts) that are not as relevant with consulting experts. Know your jurisdiction. In addition to all the reasons mentioned above and below for retaining a consulting expert, if you litigate in a state court that does not provide full work product protection to communications with testifying experts, beware. The consulting expert might be your only safe harbor for open and candid discussion about the scientific evidence.

5. Find the Best Testifiers

Fifth, the right consulting expert can help you find and recruit the ideal testifying experts, especially when the issues are extremely complex and esoteric. This is particularly true when the litigator has not had the time to fully immerse him or herself into the science. Until that happens, finding the right testifier can be a complete crapshoot. Who are the real thought-leaders in the field? Among them, are there any candidates who have espoused views antithetical to my client’s? They may say they haven’t, but how do you know without fully understanding the literature and that expert’s writings? Can the candidate’s methodology expose him or her to a blistering Daubert attack? These and other questions are critical in the search process. But who has the time and the skills to make these judgment calls? A good consultant can help in the vetting and selection process in ways that busy litigators often cannot.

6. Help To Ensure Victory

Sixth, in the age of increasing Daubert (and other expert) challenges, having a consultant available to help assess the adversary experts’ methodologies and brainstorm areas of attack can be the difference between winning and losing a case. Yes, lawyers can be very skilled at identifying the logical flaws, errors of omission, and unfounded inferences that plague many an expert’s analysis. But having a consulting expert dig into the literature and/or serve as a sounding board for lawyer-based “scientific” musings helps ensure that potential arguments are carefully vetted and those selected are truly effective.

7. Some Examples

Where can these consultants and consulting services be most helpful? Consider their use in patent disputes, personal injury litigation, and consumer fraud matters.

For example, pharmaceutical and medical device patent disputes revolve around demonstrating issues of patent validity and infringement. If you represent an innovator, you will be focused on demonstrating that the patent is valid under intense scrutiny and that your adversary is infringing on the teaching present in your patent. If you are defending a generic manufacturer, your goals will most likely be reversed. Consulting experts can help you perform these tasks and identify the right testifying experts to make these assertions. These non-testifying experts can scrutinize the laboratory notebooks and meeting minutes to spot documents that both support and potentially refute your case. For these types of cases, you will be looking for consulting experts with credentials in medicinal chemistry, drug metabolism, as well as basic cell and molecular biology.

In personal injury product liability cases involving healthcare products—such as pharmaceutical and medical devices, dietary supplements, agra-chemicals, and foods—consulting experts are perfectly positioned to work closely with counsel. The knowledgeable consulting experts can be instrumental resource in matters that involve a complex regulatory landscape and equally complex science-based issues. Consulting experts can help clients develop strategies and approaches that are central to the defense, and they can help identify the difficult-to-find regulatory testifying experts.

Finally, as many of our readers know all too well, consumer fraud cases are becoming extremely common, especially for products such as dietary supplements, cosmetics, and other consumer healthcare products. These cases generally involve allegations that no competent and reliable scientific evidence supports the advertised benefits of the products at issue. Like personal injury litigation, consulting experts are critical to an in-depth understanding of the science relevant to the case. Because there is a specific regulatory standard at issue in these cases, it is sometimes less important to have experts who are experts in the medical area at issue and more important to have consultants who understand regulatory standards and the types of studies that would be considered competent and reliable scientific evidence. Consulting experts in these cases will be able to evaluate and assess the substantiation reports that the defendant may have generated and they will help you perform an up-to-date, comprehensive review of the scientific literature relevant to a substantiation of the advertising claims at issue.

Other articles from A2L Consulting related to science-focused litigation:

ISS A2L Combating Junk Science E-Book

Tags: Litigation Management, Science, Environmental Litigation, Expert Witness, Witness Preparation, Toxic Tort, Damages, Product Liability

One Voir Dire Must Do and One Voir Dire Must Never Do

Posted by Laurie Kuslansky on Tue, Jun 16, 2015 @ 03:07 PM

 

voir-dire-must-do-dont-doby Laurie R. Kuslansky, Ph.D.
Managing Director, Jury Consulting
A2L Consulting

You’re defending an alleged polluter. You ask prospective jurors, “Who here thinks there is too much government regulation of business?”

You represent an individual hurt in a workplace accident. You ask, “Has anyone ever filed a worker’s compensation claim?”

Your client is an employer accused of gender discrimination. You ask, “Please raise your hand if you believe that workers sometimes claim wrongful treatment when they simply don’t get what they want.”

Why would you do that, if the only answers you can get to these questions are ones that reveal potential allies? That is your adversary’s job, not yours. Your job is to help your supporters fly under the radar so that they can remain on the jury. If your question is likely to reveal nothing useful to you -- or worse, will point out who your friends are -- don’t use that question.

In other words: What is the single most important “Never Do” in voir dire? Clearly, it is to never ask questions that reveal who your fans are.

Instead, here is a voir dire Must Do: Invite your enemies to show themselves and make it as easy as possible for them to do so. 

For example, defending the toxic tort, ask “Some people feel that there isn’t enough government regulation because companies cannot be trusted to mind the environment on their own. Can anyone here relate to that at all? Explain.”

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Or as the personal injury plaintiff’s counsel, you’d be better off asking: “Some people favor capping damages, meaning putting a limit on the amount of money to pay in lawsuits, even if the plaintiff – meaning the injured party, such as my client – proves their case. Can you raise your hand if that makes some sense to you or you feel that way even a little bit?

For the employment defense, you might ask: “Many people are unhappy with their jobs or have had bad experiences in the workplace. Some feel they’ve been treated badly or unfairly at their job in some way. Can you think of any examples of how that may apply to you or someone close to you?”

As the song says, “Don’t believe me – just watch!” When someone says they can be fair, it is meaningless. “Fair” means using their yardstick. Instead, watch and listen to what they actually believe by asking meaningful and cautiously phrased questions. Assume that what they believe cannot be put aside, certainly not based on the transient request of a stranger to whom they have no allegiance and from whom they reap no benefit. Their beliefs can only stay where they live ... on their minds and in their decisions in deliberations. Better to reveal what they are before it’s too late.

Other articles and resources related to voir dire, jury selection and jury consulting from A2L Consulting:

A2L Consulting Voir Dire Consultants Handbook

Tags: Jury Consulting, Juries, Jury Consultants, Environmental Litigation, Voir Dire, Jury Selection, Labor and Employment

How To Find Helpful Information Related to Your Practice Area

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

 

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

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

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

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

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

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

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

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

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

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

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

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


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

mock jury webinar a2l kuslansky

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

17 Topics We Would Absolutely Love to Speak to Your Group About

Posted by Ken Lopez on Mon, Apr 7, 2014 @ 02:30 PM

 

a2l litigation support speaking cleby Ken Lopez
Founder/CEO
A2L Consulting

My colleagues and I at A2L work hard to be thought leaders in the litigation consulting and visual persuasion industries. So, it is fortunate that we are invited to speak at quite a large number of events every year. Not only do we speak at the legal conferences you'd probably guess we do, but we also have the opportunity to speak at CLE's, litigation lunches, partner retreats, online webinars and even non-legal industry conferences.

In the past several years, I have participated in many such events in the legal industry. However, some of the most interesting events for me have been speaking at Salesforce.com's Dreamforce conference about professional services firms using salesforce, HubSpot's Inbound marketing conference about how to get started with content marketing, and one event I'm looking forward to in particular is a commencement address for the graduate campus of the University of Mary Washington next month.

My colleagues and I enjoy speaking, because we love what we do. Speakers at A2L Consulting include business experts, marketing experts, jury consulting experts, witness prep experts, visual persuasion experts, experts at communicating about science to lay audience, experts in PowerPoint usage and much more.

Using a combination of traditional travel and modern videoconferencing, we speak at events around the world. For the vast majority of events that we participate in, we do so at absolutely no charge. In general, law firms, government agencies and corporations will cover out-of-pocket costs for CLE registration and travel where applicable. I think these events are a win-win for everyone involved.

Below are 17 topics we would absolutely love to talk with your group about: 

1. Using PowerPoint Litigation Graphics to Win at Trial: We have a CLE already approved in a number of states related to this topic. We also recently conducted a webinar version that is similar to the CLE. Watch the webinar PowerPoint litigation graphics webinar anytime here.

2. Building Persuasive Visuals: For many years, we have been creating persuasive visuals outside of the courtroom environment. These visual persuasion devices are being used in lobbying presentations, to help motivate executives to take action, to influence the general public and much more. To learn more about building persuasive visual presentations, download our e-book, How to Build Persuasive and Engaging Presentations.

3. Storytelling for Litigators: There is good science that supports the use of stories when persuading an audience. It's something that great litigators know intuitively, and it is something that any litigator can learn. We recently conducted a free online webinar called Using Storytelling as a Persuasion Tool that can be watched free anytime.

storytelling persuasion courtroom litigation webinar

4. How to Make and Use Powerful Trial Timelines: We have released a free e-book called The Litigation Guide to Trial Timelines, and this is a topic no courtroom-focused professional can avoid. Timelines are used at almost every trial, and making a good one is quite hard.

5. Patent Litigation Graphics: Patent litigator Ryan Flax amazes new and veteran patent litigators by showing what works in patent litigation demonstrative evidence. He is a visual persuasion expert and contributed to more than $1 billion in jury verdicts while practicing. He recently conducted a free online webinar called Patent Litigation Visual Persuasion Techniques that can be watched here anytime.

6. Communicating Scientific Concepts to a Lay Audience: We work with leading scientific consultants frequently. In a soon-to-be-announced free webinar, we'll discuss how to pick the best experts and how to communicate scientific concepts to judges, juries and the general public. In the meantime, we have a great e-book called Using Science to Prevail in Your Next Case or Controversy.

7. Antitrust Litigation Graphics: As we recently wrote about in the just released Antitrust Litigation Guide to Trial Prep and Trial Presentation book, antitrust is a very challenging area for juries. The challenge of explaining economics, charts, graphs and equations is frequently underestimated by antitrust litigators - even in bench trials.

8. Environmental Litigation Graphics: We consult on a lot of environmental litigation at A2L. There are common challenges from case to case that mostly have to do with helping experts in their testimony. We cover these topics and more in a related e-book The Environmental Litigation Trial Presentation & Trial Prep E-Book.

9. Labor & Employment Litigation Graphics and Trial Consulting: Some of our team will be speaking to a government agency about this topic this week, and they are looking forward to it.

10. Construction Litigation Graphics: It's been a few years since we presented at the Construction SuperConference, but our work in construction delay and defect cases has continued unabated. Here are some related construction litigation blog articles.

11. How to Use Jury Consulting in a Valuable Way: Jury consulting is a misnomer for describing what we do. Our work frequently includes mock bench trials, mock appeal hearings, and witness preparation in addition to the traditional jury selection and mock trial services. Learning about how best to use trial consultants is a very valuable topic for litigators. We discuss many of these topics in our free Trial Consulting Handbook for Litigators.

12. Life in the New Normal Legal Economy: We have written articles about alternative fee arrangements that we use, suggestions for in-house counsel on setting up preferred litigation support vendor programs, penned a series of articles targeted at emerging midsize litigation law firms, and have released a book about the New Normal Legal economy. It's a topic we clearly enjoy speaking about even when sometimes it makes us all a bit uncomfortable.

13. Why Are So Many Opening Statements Ineffective: They don't have to be long to be strong, you should never say "I'll talk about that later," and what has to be accomplished in the first 5 minutes or you'll likely lose your case are all topics we are passionate and knowledgeable about.

14. How to Really Assess and Prepare a Witness: We write about witnesses often, both lay and expert. Getting either prepared is something our people have done for decades. We have thousands of accumulated hours preparing witnesses and a correspondingly long list of tips and secrets to share. I think this article and this one do a good job describing our feelings about witness prep and witness testimony.

15. How Important it is to Look at Non-Verbal Behavior in the Era of the Video Deposition: I am still stunned by watching the performances in these depositions, particularly the Justin Beiber depo. Learn how to manage your client from our experts. Sometimes it is easier, better and cheaper for an outsider to prepare the witness, and we'd love to discuss what we have learned from those experiences.

16. Why Lawyer-Generated Graphics Don't Work: We don't want artists to practice law any more than we want lawyers preparing graphics. There are dozens of reasons for this, and we are happy to share them. Here's a blog post to get the ball rolling on lawyer-prepared graphics though.

17. E-Briefing and Brief Writing in the Era of the iPad: Did you know that the way people read a page of text has changed in the last ten years? If you are still writing briefs the same way you did fifteen years ago, you're missing some easy opportunities to persuade quickly. Take a look at this discussion about ipads and hyperlinked e-briefs.

If you would like to discuss a member of A2L's team speaking at your next event or have any other questions, please contact A2L's Director of Operations, Alex Brown at brown@A2LC.com or 800.337.7697 x121. We try to say yes to everything that we can given our hectic schedules. Whether it is a litigation lunch via video conference, an in-person CLE or whether it is a conference speaking opportunity, we would love to hear from you.

 

PowerPoint Litigation Graphics Webinar Consultants

Tags: e-Briefs, Litigation Graphics, Jury Consulting, Patent Litigation, Environmental Litigation, Storytelling, PowerPoint, Opening, Alternative Fee Arrangements, CLE, Antitrust Litigation

The Top 10 A2L Consulting Litigation E-Books

Posted by Ken Lopez on Thu, Mar 28, 2013 @ 08:00 AM


top 10 a2l consulting litigation ebooksby Ken Lopez
Founder & CEO
A2L Consulting

At A2L Consulting, we not only try to serve our clients and to produce great results at trial; we also want to become thought leaders in the trial consulting world and to educate lawyers, experts, and others on the exciting developments that are going on, both in research on juries, persuasion and other topics, and in the actual use of trial techniques.

All of our ebooks are free to anyone. You need not be a client of A2L. In the past two years, more than 10,000 free ebooks have been downloaded from A2L Consulting's site. 

We release a new book focused on a particular area of the legal industry just about every month.  Our first ebook, back in 2011, was not even 10 pages long.  Some of our recent books have been more than 150 pages long.

Most of our ebooks feature a curated list of articles culled from our hundreds of published blog posts and other articles on litigation topics plus a few extras. All have been released completely free in the spirit that we can elevate the quality of work being done in the litigation consulting industry.

For example, the Complex Civil Litigation Trial Guide, our most popular download so far, is 174 pages and is designed for the trial lawyer preparing for a complex case. But the insights in it can help almost anyone who wants to learn more about trial strategy and tactics.

The topics in that ebook include: Seven Ways to Draft a Better Opening Statement, How to Embrace a Two-Track Strategy and Win the War, Six Reasons the Opening Statement is the Most Important Part of a Case, How Timelines Can Persuade Judges and Juries, and Ten Videos to Help Litigators Become Better at Storytelling.

This ebook, like many of our other offerings, starts with the premise that the most important thing that a litigation consultant can do to help a trial team is to focus on the story that that trial team wants to develop. A litigation consultant brings not only the common sense that a fresh pair of eyes offers but also the experience of having seen, in hundreds of trials, what works and what does not work.

So one of the reasons this ebook has succeeded so well is that it can help any trial team develop a case and win at trial. It shows how to master the complexities of your case, yet still remain able to explain them to a judge or jury in a straightforward manner.

It also shows how to pick a trial graphics consultant to support your work, what to do when your trial team goes bad as a result of the anxiety that understandably can accompany any piece of complex litigation, and how trial graphics can explain even the most complicated scientific and engineering concepts to a jury. 

Here are our top 10 litigation ebooks listed in descending order by download count. 

  1. describe the imageComplex Civil Litigation Trial Guide (1st & 2nd Editions) - 1,918 Downloads, released Feb 25, 2013
     
  2. patent litigation graphics presentation guide Patent Litigation Trial Presentation Toolkit (1st & 2nd editions) - 1,669 Downloads, released September 10, 2012
     
  3. litigation support ebook Litigation Support Toolkit (1st & 2nd editions) – 998 Downloads, released February 24, 2013
     
  4. describe the image Litigation Timeline Reference Book - 943 Downloads, released March 6, 2012
     
  5. describe the image Antitrust Litigator's Trial Prep & Trial Presentation Guide - 807 Downloads, released October 17, 2012
      
  6. describe the image Leadership Lessons for the Trial Team Leaders (1st & 2nd editions) – 676 Downloads, released TKTK
     
  7. storytelling for lawyers litigators litigation support courtroom narrative icon Storytelling for Litigators - 589 Downloads - Released March 11, 2013
     
  8. describe the image How to Find the Top Trial Technicians (1st & 2nd editions) 417 Downloads, released August 22, 2012
     
  9. describe the image Environmental Litigator's Trial Presentation Handbook (1st and 2nd Editions) 395 Downloads, released December 24, 2012
     
  10. describe the image Litigator-Jury Communications 3-Year Study Results 359 Downloads, released January 2, 2007


a2l consulting voted best demonstrative evidence jury consultants  

Tags: Energy Litigation, Trial Graphics, Trial Technicians, Litigation Graphics, Trial Presentation, Litigation Consulting, Litigation Technology, Demonstrative Evidence, Trial Technology, Litigation Support, Patent Litigation, Environmental Litigation, Storytelling, Leadership, Trial Director, HubSpot Tips, Antitrust Litigation

Environmental Litigation Trial Presentation & Trial Prep E-Book 2nd Ed.

Posted by Ken Lopez on Thu, Dec 27, 2012 @ 10:22 AM

 

environmental litigation trial presentation trial prep ebook a2lby Ken Lopez
Founder & CEO
A2L Consulting

Environmental cases are among the hardest types of cases to litigate. They include technical elements similar to patent cases, they involve scientific elements similar to pharmaceutical cases, and they can bring in damages issues similar to construction cases.

In addition, for many jurors, environmental cases are fraught with political ramifications in a way that many other cases are not. Jurors often harbor a basic belief that if a big company is on trial, it has probably harmed the environment in pursuit of profits and has caused long-term damage to the planet – either by directly polluting the air, water, or ground, or by contributing to global warming.

In addition, the natural complexity of many environmental cases means that demonstrative evidence must be used extensively in any trial presentation, and this demonstrative evidence will almost always be highly scientific in nature – something that can numb the minds of many jurors.

In law school, I concentrated on environmental law and worked in the environmental department of a major pharmaceutical firm, so I understand both the complexity of environmental cases and their importance in trial presentation.

So the challenge for those involved in trial presentation in environmental cases is to overcome jurors’ biases and to keep the cases interesting.

The first rule in developing a litigation narrative and the appropriate litigation graphics, especially in an environmental case, is to simplify the complex. Unlike the trial lawyers, a jury has not lived with the case for many years. The key is to build trial presentations that present evidence and information in a manner that can be easily digested by those who, based on limited time and/or limited exposure to the case, want and need to see the big picture.

For example, a case may center on the process of hydraulic fracturing, better known as fracking. As a means of extracting natural gas from rock, fracking has the remarkable potential of quickly making the United States a net exporter of natural gas rather than a net importer. Yet fracking has been challenged on a number of seemingly cogent environmental grounds.

In a case that involves fracking, a good trial presentation may be used to educate a potential jury pool, to persuade and inform government officials and to support settlement negotiations. The same would be true in nearly every kind of environmental case.

In many other types of cases, the task is further complicated by the fact that environmental harm occurs over a period of years or even decades. In such situations, it is crucial to show not only how the damage occurred initially but how it became more serious, or less serious, over a period of time.

Both sides in a major environmental case usually bring in environmental experts to help explain their side of the case to the jury. However, these experts are trained in science and engineering, not in information design, so their testimony, however scientifically compelling, may be presented in a way that is too complex to appeal to jurors. An astute expert knows that testimony can be bolstered by the inclusion of an outstanding trial presentation.

We have prepared a handbook on environmental litigation and trial preparation called the “Environmental Litigation Trial Presentation & Trial Prep E-Book.” We planned it as a guide to all the issues and all the possibilities that can come up in environmental litigation – whether the issues involve the use of PowerPoint, scientific expert witnesses, body language, or any of a myriad of other questions that can come up in this complex field. 

Download a Complimentary Copy Here & Enjoy Your New A2L Consulting E-Book!

Download Environmental Litigation E-Book Here

Tags: Energy Litigation, Trial Graphics, Trial Consultants, Litigation Graphics, Trial Presentation, Litigation Consulting, E-Book, Demonstrative Evidence, Jury Consultants, Environmental Litigation

Using Trial Graphics & Statistics to Win or Defend Your Case

Posted by Ken Lopez on Mon, Jul 9, 2012 @ 09:00 AM


david schwartz innovative science solutionsThis article is coauthored by A2L Consulting’s CEO, Kenneth J. Lopez, J.D., a trial graphics and trial consulting expert and David H. Schwartz, Ph.D. of Innovative Science Solutions. Dr. Schwartz has extensive experience designing programs that critically review the scientific foundation for product development and major mass tort litigation. For 20 years, he has worked with the legal community evaluating product safety and defending products such as welding rods, cellular telephones, breast implants, wound care products, dietary supplements, general healthcare products, chemical exposures (e.g., hydraulic fracturing components), and a host of pharmaceutical agents (including antidepressants, dermatologics, anti-malarials, anxiolytics, antipsychotics, and diet drugs).

[See also follow-up article discussing the null hypothesis

Many of us have been there in the course of a trial or hearing. An expert or opposing counsel starts spouting obscure statistical jargon. Terms like "variance," "correlation," "statistical significance," "probability" or the "null hypothesis." For most, especially jurors, such talk can cause a mental shutdown as the information seems obscure and unfamiliar.

It’s no surprise that talk of statistics causes confusion in a courtroom setting. Sometimes, a number can be much higher than another number and yet the finding will not be statistically significant. In other instances, a number can be nearly the same as its comparison value and this difference can be highly statistically significant.

Helping judge and jury develop a clear and accurate understanding of statistical principles is critical – and using the right type of trial graphics can be invaluable. 

Let’s demonstrate this by way of example.

Suppose we want to know whether a petroleum refinery increases the level of benzene in fish that inhabit the coastal waters near the refinery.


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The hypothesis is that the benzene level in the coastal fish near the refinery (the Refinery Fish) is higher than the benzene level in off-shore fish that live in waters far from the refinery (the Control Fish).

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Because we can never collect every single fish and measure benzene levels in all of them, we will never know the precise answer to the hypothesis (not to mention the fact that if we did, the study would be irrelevant because there would be no more fish). But we can sample some of the fish near the refinery and then compare the benzene levels in these fish to a sample of fish collected from the middle of the sea. Statistical techniques are a clever tool that we use to answer the research question, even though we haven't measured all the fish in each location.

Unless one is trained in statistics, the evaluating might appear easy and straightforward. Simply compare benzene levels in the Refinery Fish sample to the benzene levels in the Control Fish sample and see which is higher. But what if our sample only reveals a very small difference between the benzene levels in the Refinery Fish sample compared to the Control Fish sample? How do we know if that difference we observed in our samples is a real difference (i.e., potentially due to a causal relationship with the refinery) or whether it was simply due to our sampling techniques (i.e., due to chance)? Statistical techniques provide us with a way to properly interpret our findings.

An overview of well-established statistical techniques surrounding hypothesis testing is in the trial graphic below:

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While this graphic is somewhat oversimplified, it does provide the basic steps that are taken in the hypothesis testing decision tree.

Although imperfect [pdf], a criminal case serves as a useful analogy to help understand how statistics work. In a criminal case, the defendant is assumed to be innocent unless proven guilty beyond a reasonable doubt. In statistical terms, the overall trial can be likened to statistical testing of a hypothesis (i.e. did he do it?), and the presumption of innocence can be likened to the "null hypothesis." Like the null hypothesis, the starting point in a criminal trial is that defendant is not guilty, and in statistical terms, that the connection you've set out to establish is just not there. The trial graphics below provide an overview of this concept. Again, this is an imperfect metaphor and is subject to criticism from a pure statistical vantage point. Neverteless, it provides some assistance to the novice in clarifying the fundamental tenets of hypothesis testing.

trial graphics explaining null hypothesis criminal analogy statistics resized 600

Returning to our refinery hypothetical, we form our null hypothesis.

In this case, the null hypothesis is that the Refinery Fish are exactly the same as all the other fish in the ocean in terms of benzene levels — specifically, that they come from the same population. Succinctly, the null hypothesis is as follows:

Null Hypothesis

There is no difference in benzene levels between the Refinery Fish and the Control Fish.

In our study, as in all scientific studies, we will be testing how likely it is that we would obtain dataat least as extreme as our data if the null hypothesis were true. In other words, we will be evaluating the conditional probability of obtaining the data that we observe.

In plain English, proper statistical testing means assuming your hypothesis is wrong and then evaluating the likelihood that you would come up with the findings that you did. Statistical testing is not about proving things true. Rather, it is about proving that the alternative — i.e. your null hypotheses — is likely not true. Only then can we reject the null hypothesis and conclude that our research hypothesis is plausible.

Determining whether or not it is reasonable to reject the null hypothesis is done by collecting data in a scientific study. Here, we start by measuring benzene levels in two samples of fish: (1) a group of fish near the refinery (Refinery Fish); and . . . 

trial graphics statistics hypothesis testing standard resized 600


(2) a group of fish in the middle of the ocean, nowhere near the refinery (Control Fish).

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We will then calculate an average benzene level in each group of fish, which will serve as a reasonable estimate of the benzene level in each population of fish (i.e., all fish living near the refinery and all fish not living near the refinery). Of course, how we take our samples is a critical component of the study design, but we will assume for this example that we have used appropriate sampling techniques.

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Let's examine 3 possible outcomes in the trial graphics below. The first possibility will deal with an obvious result.

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In this example, let's assume that every fish in the Refinery Fish sample had a benzene level of 10, and every fish in the Control Fish sample had a benzene level of 1. Thus, the average Refinery Fish benzene level is 10 and the average Control Fish benzene level is 1. When we do our statistical test, we calculate the conditional probability – i.e., the probability that we would have obtained this dramatic difference (10 vs. 1) given that the null hypothesis is true. This probability is called a "p value."

In this case, the p value is so low (let's say: p = 0.00000001) that we reject the null hypothesis. Stated another way: The probability of obtaining such extreme data if the null hypothesis were true is 0.0000001. Based on this analysis, it doesn’t make sense to believe that we would have obtained these results if the null hypothesis were true. So we reject the null hypothesis.

Our study was a success. We reject the null hypothesis, and we draw a clear-cut conclusion -- i.e., the Refinery Fish come from a different population of fish with respect to benzene levels. So we conclude that the refinery, absent other factors, may have something to do with the benzene levels in these fish. Because this difference was so clear-cut (every single fish in the Refinery Fish sample had extremely high benzene levels and every single fish in the Control Fish sample had extremely low values), we didn’t even need statistics to get our answer.

Now let's look at another, more realistic, possibility. This time the difference between the two samples is a little less clear cut.

trial graphic using statistics in courtroom 2 resized 600

In this example, the average benzene level in the Refinery Fish sample is 8 and the average benzene level in the Control Fish sample is 3. When we do our statistical test, we learn that the p value is 0.02. Said another way, the probability that we would have obtained these findings, given that the null hypothesis is true, is about 2%.

Thus, as with the extreme example above, the probability of obtaining these findings, given that the null hypothesis is true is very low (not quite as low as in the prior example, but still pretty low). This raises the question: how low a probability is low enough?

null hypothesis teaching to jury standards rules resized 600

Traditionally, statisticians have used a “cut-off” probability level of 5%. If the probability of obtaining a certain set of results is less than 5% (given the null hypothesis), then scientists and statisticians have agreed that it is reasonable to reject the null hypothesis. In this case, we reject the null hypothesis and conclude that the Refinery Fish must come from a different population than the Control Fish. Again, as with the earlier example, we conclude that the refinery must have something to do, absent other factors, with the benzene levels.

So far, so good. Now, let's do one more. This time let's assume that the difference between the Refinery Fish sample and the Control Fish sample has gotten much smaller.

trial graphics using statistics judge jury law 3 resized 600 1

In this example, the average benzene level in the Refinery Fish sample is 5 and the average benzene level in the Control fish sample is 4. The benzene levels, on average, are numerically higher in the Refinery Fish compared to the Control Fish. But are they statistically higher? In statistical terms, how likely would it be to obtain these findings if all the fish were the same with respect to their benzene levels? In other words, is it reasonable to conclude we would have obtained findings this extreme if the refinery had nothing to do with the benzene levels?

When we do our statistical test, we learn that the p value is 0.25. Thus, the probability that we would have obtained findings this extreme, given that the null hypothesis is true, is about 25%. One in four times that we take these samples, we will get findings like this if the null hypothesis is true.

A twenty-five percent chance is not so unlikely. It certainly doesn't meet the 5% cut-off rule (i.e., less than 5%). Therefore, statistical best practices tell us that we cannot reject the null hypothesis.

But what does it mean when we cannot reject the null hypothesis? Can we conclude that the null is true? This is actually a critical question, and it represents an area where statistics often get misused in court, in trial graphics, in the media and elsewhere. And what about other intervening factors like bias and confounding?

Our next posts on using trial graphics and statistics to win or defend your case will grapple with these important questions. Please do leave a comment below (your email address is not displayed or shared).

 

[See also follow-up article discussing the null hypothesis

 

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Tags: Energy Litigation, Statistics, Trial Graphics, Litigation Graphics, Courtroom Presentations, Demonstrative Evidence, Science, Environmental Litigation, Advocacy Graphics

Explaining a Complicated Process Using Trial Graphics

Posted by Ken Lopez on Tue, Apr 24, 2012 @ 12:12 PM


process flow charts trial graphicsIn our work as trial graphics specialists, many cases require us to prepare a demonstrative exhibit that simplifies a complex process. This could be a scientific or technical matter such as how environmental remediation is conducted, how surgical mesh is used, or how data backups are migrated, or it could be a business or governmental matter such as how a form of bond obligation is created and sold or how a government contract is bid and awarded.

The key to making a successful process chart or flow chart is to create a simple trial graphic that anyone can quickly understand. It does not have to spell out every last detail of the science, technology, business concept, or governmental action involved; it merely has to discuss it accurately and in a way that will help the judge or jury understand what is at issue in the case.

Here are some examples of process chart trial graphics that we have used and that we thought were effective.

In this video below, we use PowerPoint intellectual property graphics to explain how video playback and freeze frames are handled through the use of tagging technology. This was a very valuable trial graphic in a patent case.

 

In the presentation below, we explain, in schematic form, the hydraulic fracturing (fracking) process that is used to extract natural gas from rock. The presentation shows 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.


In the presentation below, we show in graphic form the process in which collateralized debt obligations are created by investment banks. Through the use of Prezi presentation software, we were able to make this highly technical and complex matter comprehensible to a fact finder by introducing the concept of an “investment” and then showing how CDO’s are simply a type of investment.

In the trial graphics, we explain the drug development process in the United States and the process for regulatory approval of new drugs by the Food and Drug Administration. This PowerPoint demonstration helped a jury understand the length of time that the process can take, why it can take so long to bring a drug to market, and all the steps involved. 


Below, we introduce a jury to the process of creating a FLIP (Foreign Leveraged Investment Program). By numbering the steps in the process and creating arrows from the taxpayer to other entities, we were able to show how this tax shelter unfolds.

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What Is FLIP

 

The PowerPoint trial graphics below, created for a patent trial, shows how a coal conversion process occurs.

 

process charts trial graphics

Tags: Energy Litigation, Trial Graphics, Demonstrative Evidence, Animation, Patent Litigation, Pharmaceutical, Environmental Litigation, PowerPoint, Securities Litigation, Process Charts

Demonstrative Evidence: Using Maps as Courtroom Exhibits

Posted by Ken Lopez on Mon, Mar 12, 2012 @ 08:02 AM


demonstrative evidence mapsBecause maps are used by jurors constantly in their daily life and because they are so frequently used to represent common locations and processes, they are one of the most frequently used and most effective types of demonstrative evidence. Whenever something can be conveyed geographically, through the use of space, it is worth considering the use of a map. Even though maps don’t always represent the highest and newest technology, their importance cannot be underestimated.

In the words of Ray Moses of the Center for Criminal Justice Advocacy, which was formed in Texas as a grass-roots training resource to help new lawyers in becoming competent criminal trial practitioners: “Visuals (graphics) such as time lines, charts, illustrations, maps, etc. are sufficiently important to communicating your message that you owe it to your client and yourself to learn how to incorporate visuals into your presentation.”

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We have used maps in any number of ways as demonstrative evidence to help make our clients’ cases understandable to juries and judges. Here are a few of them.

The demonstrative exhibit below is a screen capture of a PowerPoint interactive trial presentation developed to show that an area was not actually a wetland. Specific spots on the map are pegged to portions of a video that show that there is no water channel in the affected area.

 

The below animated demonstrative map is a screen capture of a PowerPoint interactive demonstration developed to show how New York City gets its water supply.  The demonstrative graphic successfully combines the known geography of the New York State region with the actual flow of water from the reservoirs. 


The next demonstrative exhibit, below, is a screen capture of a PowerPoint trial presentation developed to show how a conflict of interest was vetted in a government contracting False Claims Act dispute. This map is an excellent example of demonstrative evidence. It shows the entire United States and the locations in which vetting officers were located. 

 

The final piece of demonstrative evidence is a map of the United States showing where various air taxi helicopter accidents occurred, to show that they are a very small percentage of all general aviation accidents.

helicopter safety map

 

 demonstrative evidence

Tags: Trial Graphics, Trial Presentation, Demonstrative Evidence, Animation, Environmental Litigation, Trial Boards, Aviation Litigation

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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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