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The Litigation Consulting Report

How to Be a Great Expert Witness (Part 3)

Posted by Tony Klapper on Tue, Dec 13, 2016 @ 01:07 PM

expert-witness-testimony-guide-tips-free.jpgby Tony Klapper
Managing Director, Litigation Consulting
A2L Consulting

In our last post, we discussed why expert witnesses should rely on visual aids and litigation graphics in preparing their testimony.

Another key point for expert witnesses is that no matter how well credentialed a witness is, if the jury thinks he is a jackass or if he acts in a way that is inc
onsistent with jurors’ perception of how an expert should act, his testimony will be useless.

In every trial, the jury and the judge evaluate the credibility of every witness who testifies. If you have done something as a witness to lessen your credibility quotient, what you say will either be filtered through that lens or not even considered.

For example, some experts make the mistake of engaging opposing counsel in a pitched battle during cross-examination. While a feisty expert who resists answering “yes” or “no” questions might be seen by her attorney as a hero, the jury more likely sees an expert who is being difficult -- particularly when the “yes” and “no” questions are intuitively answerable. Similarly, an expert who regularly resorts to “I don’t recall” and “I don’t know” responses to questions that objectively seem knowable and recallable also undercuts her credibility. The same is true of an expert who fights over the meaning of words that have common meanings, or starts asking questions of the questioner.

When these things happen, the expert no longer is perceived as an expert; she is perceived as an advocate who is hiding some element of the truth. Even when the expert is not on the witness stand, how the expert interacts with court staff, opposing counsel, and even her own team can affect the expert’s perceived credibility. Being gracious and dignified can help; being cocky or surly can hurt.

For better or worse, jury trials can be show trials. While they certainly involve the search for truth, the way that truth is arrived at is often foreign and unnatural to the novice testifier. For example, unlike the laboratory or classroom, your evaluators at a jury trial are often less educated and less patient.

Additionally, unlike normal conversations, the questions asked and answered at a jury trial are orchestrated and controlled by arcane evidentiary and procedural rules. While being liked and respected is important in the “real world,” its impact is magnified dramatically in the courtroom, where snap decisions and judgments are made by people you have never met before and will likely never meet again. Not recognizing these facts can spell disaster.

Another key issue for the expert witness is to realize that she is going to be in very good company, intellectually, during the trial. She may see herself as the smartest person in the room on her subject matter. Is she? Perhaps. She needs to recognize that some of the best trial lawyers pride themselves in playing the game of one-upmanship and outmaneuvering and outworking the expert.

Those lawyers have some very real advantages. First, they are smart. They may not be as educated as you in the field of your expertise, but they are quick studies and careful readers. The best lawyers take great pride in securing the winning admission from the other side’s experts -- albeit with a smile on their face. Many a war story has been told of a cross-examination that brought a testifying expert to tears or so frazzled the expert that he caved on points that he did not need to cave on. Sometimes aggressive lawyering on cross-examination can backfire, and the expert is perceived as a victim and the lawyer as a bully. But sometimes the jury (like the throngs at a gladiator fight in ancient Rome) waits with anticipation for at least some blood to be drawn.

Second, in cases with significant economic exposure or opportunity, opposing counsel will likely be well-financed. They will have a team of associates, and possibly even science consultants, available to look for ways to outsmart you. They will have scoured all of your writings and the scientific literature you have relied upon. They might have better recall about footnote 29 or the limitations expressed by another author about the regression analysis in one of the studies upon which you rely. And they will be looking for statements and opinions that are flat-out inconsistent (or appear inconsistent) with the statements and positions you presented in your expert report and direct examination

Third, opposing counsel will know the case backwards and forwards. As an expert, you invariably must rely on your understanding of at least some of the facts in order to apply those facts to whatever scientific methodology you employ -- though sometimes you are simply asked to assume certain facts as true. Either way, opposing counsel will work hard to exploit any of your knowledge gaps with what they perceive to be the “real facts.”

The simple solution is to remember that you really are THE expert. If you believe in your opinions and have prepared properly for your testimony, you will do just fine.

expert witness trial testimony ebook a2l ims

Tags: Trial Consulting, Juries, Expert Witness, Witness Preparation, Cross Examination

Is the Witness a Big Fat Liar, and Can the Jury Tell?

Posted by Katie Bagwill on Mon, Dec 5, 2016 @ 03:40 PM

witness-how-to-tell-if-lying-liar-deposition-trial.jpgby Katie Bagwill
A2L Consulting

Wouldn’t it be nice to be able to learn, just from hearing a witness utter a few phrases, that the witness is lying? Unfortunately, we can’t read minds, so we need to make do with second best: reading the tone of the witness’s voice and eye movements.

The scientific community has been working hard to develop a way to gauge an individual’s truth telling based on the person’s behavioral, verbal, and physiological responses. In the meantime, you can use these ideas when questioning a witness, preparing your own witness to give testimony, and selecting potential jurors.

Vocal Cues. Using questioning methods similar to that of a polygraph, voice stress analysis is used to pick up on changes in the frequency in a person’s tone of voice when speaking. The basic idea is that when you are lying, the muscles that contract when you are speaking will produce a slightly higher or lower frequency. By having someone speak into a microphone, you can use a vocal stress analyzer on your computer or, thanks to technology, on your phone.

Why it should matter to you: Even if those tools aren’t available to you or would be too time-consuming to use, the basic principle is something you should keep in mind: lying causes physiological stress and stress causes a person’s vocal pitch to change. While a seasoned liar may be good at keeping his or her voice steady when lying, the average person (i.e. someone called for jury duty) could let it waver.

Eyeball Movements. There’s this idea floating around that if someone is looking to the right they are lying and if they look to the left they are telling the truth. While this isn’t necessarily always true, there is a science behind it. Research has been done that links patterns of eye movements to different forms of cognitive processing. Each direction notes the characteristics of the thought process in question (visual, auditory, emotional). The difference in sides refers not to just “lying” but to the cognitive processes used in creating a realistic story, which requires a higher level of thinking than recalling. (see also http://www.a2lc.com/eyechart)

Why it should matter to you: Take note of the witness’s or potential juror’s normal eye movements while speaking. Deviance from their “normal” is a stronger indicator of “creative” thinking than utilizing the eye movement chart alone. In combination with other methods of detecting deception, it is a useful tool.

Other articles about psychology, cogitive bias, persuasion, and influencing juries from A2L Consulting include:

A2L Consulting Voir Dire Consultants Handbook

Tags: Trial Consultants, Jury Consulting, Trial Consulting, Juries, Voir Dire, Jury Selection, Psychology, Expert Witness, Witness Preparation

How to Be a Great Expert Witness (Part 2)

Posted by Tony Klapper on Mon, Nov 28, 2016 @ 10:57 AM

expert-witness-visual-persuasion.jpgby Tony Klapper
Managing Director, Litigation Consulting
A2L Consulting

In my last post, I talked about the fact that an expert witness needs to express her expertise in a convincing way – but also in a way that the typical juror can understand and not in the language of a specialist.

The next step in becoming a truly effective expert witness is to understand the power and the importance of visual learning.

It’s a safe bet that your peer-reviewed articles contain tens of thousands of words. Your academic poster contains hundreds, maybe thousands, of words. Your PowerPoint presentations delivered to your peers contain bullet point after bullet point of words (and maybe a smattering of cartoons).  

Ask yourself: How many television commercials convey the importance of the advertised product through words? How many magazine advertisements do the same through words? How many movies convey their story through words? How many architects explain their designs through words? How many patents have no pictures and just words? And how many biology textbooks have no illustrations and just words? In all these instances, the visual is what matters.

Studies have shown that two-thirds of jurors learn primarily through visual means. And the need for visuals becomes even greater when the information being conveyed is highly complex. That does not mean that you should simply rely on Excel charts, images of equations, and chemical formulas to convey your points. It means that you should consider incorporating litigation graphics as demonstrative evidence for your opinion testimony.

Explaining with 2D animation in PowerPoint how the mucociliary escalator removes inhaled particles from the body is far more effective than just talking about it. Describing through an interactive timeline the complex series of steps that were employed to design and build a consumer product is far more effective than just talking about it. And demonstrating through high-quality photographs and well-placed arrows that the key component of your client’s widget looks nothing like the component claimed in the allegedly infringed patent is far more effective than just talking about it.

When working with counsel to prepare your direct examination, you should demand that time be spent not just on what you are going to say but also on how to present it visually. If possible, find opportunities to leave the witness stand and demonstrate your point with physical evidence, or draw a picture on the flip chart. The more you are the teacher and not the talking head, the more likely the jury will connect with you and find you credible.

In our next post, we will discuss the proper state of mind for the testifying expert.

Other articles from A2L Consulting discussing the importance of visual learning, PowerPoint, and expert witness testimony:

expert witness trial testimony ebook a2l ims

Tags: Trial Graphics, Trial Consultants, Litigation Graphics, Trial Consulting, Demonstrative Evidence, Juries, Advocacy Graphics, Expert Witness, Persuasive Graphics, Visual Persuasion, Judges, Persuasion

How to Be a Great Expert Witness (Part 1)

Posted by Tony Klapper on Tue, Nov 15, 2016 @ 04:05 PM

iStock_92127667_SMALL.jpgby Tony Klapper
Managing Director, Litigation Consulting
A2L Consulting

You are a specialist in your field of study. You are about to take the stand as an expert witness in court. You have read hundreds, if not thousands, of articles in your field. You likely have an advanced degree that touches on the area about which you have been asked to testify. You may have taught classes on the subject at a university. You may have presented your thoughts and research at conferences attended by your peers. You are smart. You are well-credentialed.

But are you prepared to testify in a court of law? Do you know what you have to do to be just as effective on the witness stand as you are at the podium?

To help you answer these questions, here is a series of articles that chronicle the unique challenges that a testifying expert faces and lays out a road map for overcoming those challenges and becoming a truly effective expert witness.

“Supercalifragilisticexpialidocious.” Too often, that is what jurors hear when experts speak to them in court. The nonsense word made popular by the Disney musical, Mary Poppins, “supercalifragilisticexpialidocious” certainly sounds impressive. But, like many arcane polysyllabic terms used by experts in various specialized fields, it serves only to obfuscate, not clarify, concepts for a jury—a jury composed of people who are likely far less educated than the expert witness herself.

The fact is, experts in a particular field are most comfortable speaking to those who have a similar base of knowledge. They speak at conferences to peers who share a common language and experience. They speak to students who attend multiple lectures, read the course book, and presumably have a particular interest in the material. And even when they discuss their work in more social settings, their milieu is typically more sophisticated and educated than the milieu of your typical juror. When an expert speaks about her field of expertise, it is typically the kind of thing that only those in the field will regularly understand.

That does not mean that the expert must dumb down her words in order to be effective. It means that for an expert to be effective, she must deconstruct her presentation so that every element and every term in her opinion testimony is explained and not assumed to be understood. And it also means that if the process of explaining every element and every term leads to an unwieldy, complex and dense presentation, maybe the presentation itself needs to be simplified.

Learning to speak to a different audience in a different way is not easy. It requires patience and practice, and it requires visuals, given that the majority of people are visual learners. But it also requires a keen awareness of whether you are losing your audience. The attorney who is asking you questions on direct examination should be asking you to speak to the jury, not to the lawyer. You are there as a teacher. If your students’ eyes are glazed over or completely shut, you will see it, you will know it, and you will want to do something about it. Explaining information simply and without the jargon of your profession will go a long way towards keeping the jury engaged and helping your client achieve its goals. If you are too readily dismissed as the ivory-tower, detached, and inscrutable presenter, the one or two key points that your testimony is intended to convey will be lost in a sea of big words.

Our next topic will be about how and why an expert should use graphics in his presentation.

expert witness trial testimony ebook a2l ims

Tags: Juries, Psychology, Expert Witness

[New and Free E-Book] Expert Witnesses - Direct and Cross Examination

Posted by Ken Lopez on Wed, Nov 9, 2016 @ 11:48 AM

A2L-IMS-EXPERT-WITNESS-TESTIMONY-TALL.jpgby Ken Lopez
Founder/CEO
A2L Consulting

We at A2L are launching a new e-book this month. This time, we are publishing the book jointly with IMS ExpertServices, one of the nation’s premier providers of experts and consultants for top law firms and Fortune 500 corporations.

The title of the new book is Expert Trial Testimony: Direct and Cross-Examination. The book answers every question you might have thought of in connection with expert testimony at trial in U.S. courts, and it does so in a clear, conversational manner. Plus, it’s a free download.

As more and more money is at stake in civil trials, and as the subject matter grows more and more complex and difficult for many jurors to understand without assistance, the value and importance of expert witnesses has grown dramatically.

The difference between an effective, well-prepared, convincing expert witness and one who does not come across well to a jury can often be the difference between winning and losing a trial where hundreds of millions, or billions, of dollars are at stake.

The book is directed at experts themselves and gives dozens of do’s and don’ts that will make any expert’s testimony effective and convincing at a trial. It’s not only experts who will benefit from reading this book but also trial attorneys, trial technicians, in-house counsel, and anyone who wants to understand the best ways to put on expert testimony.

The book addresses the typical expert witness as follows:

You have read hundreds, if not thousands, of articles in your field. You likely have an advanced degree that touches on the area about which you have been asked to testify. You may have taught classes on the relevant subject matter at a university. You may have presented your thoughts and research at conferences attended by your peers. You are smart. You are well-credentialed. But are you prepared to testify in a court of law? Do you know what you have to do to be just as effective on the witness stand as you are at the podium?

Among the key topics in the book are:

  • How an expert can explain complex scientific topics in language that a juror can understand without “dumbing down” her testimony
  • Why pictures, schematics and visuals of all sorts are as important to an expert witness’s testimony as the words he uses
  • How an expert should prepare for the toughest questions on cross-examination, including questions that the expert might view as unfair
  • How to deal with a “yes or no” question and avoid the pitfalls that such a question usually brings with it
  • How an expert should use body language to help, not detract from, the quality of her testimony

We think this book will be invaluable to expert witnesses, lawyers, trial techs, in-house counsel, and others. Please download it here.

 

Tags: Litigation Graphics, Jury Consulting, Mock Trial, Demonstrative Evidence, Juries, Jury Consultants, Expert Witness, Persuasive Graphics, Visual Persuasion, Judges, Cross Examination, Persuasion, ebook

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

50 Characteristics of Top Trial Teams

Posted by Ken Lopez on Thu, Apr 21, 2016 @ 02:22 PM


trial team win litigation traits characteristicsby Ken Lopez
Founder/CEO
A2L Consulting

After the more than 20 years that we have spent in the litigation consulting business, we don't hear very many questions that we’ve never heard before. However, this week I did hear one, and the story is worth sharing because it goes to the heart of how a truly great litigator performs. The question I heard was, “What can we do better as a trial team on the next engagement?”

Consider how remarkable this is. Here was a litigator from a large law firm sincerely trying to improve the performance of his team and himself. I was deeply impressed, as this was the first time I've had someone ask that question after an engagement.

It's a very sensible question, of course. A2L's team has worked with thousands of litigation teams from the very best law firms in the world. I have watched many litigators perform near-magic in the courtroom, and I have seen teams fail miserably. There are patterns that lead to success and patterns that lead to failure.

In the spirit of the question that this litigator asked me, I started thinking about the traits of the world’s most effective trial teams. Here are 50 of them culled from my experience and that of my colleagues Dr. Laurie Kuslansky and Tony Klapper.

  1. Practice is by far the single most obvious indicator of a trial team's success. The great litigators draft their openings months or years in advance of trial and practice them dozens or hundreds of times. See, Practice, Say Jury Consultants, is Why Movie Lawyers Perform So Well

  2. Preparation. Great trial teams start preparing long before trial, and they don't ask the client’s permission to do so. Their attitude is, “If you work with a team like ours, it means you want to win and we know how to win and we're going to get that done, whatever it takes.” I think they are right. There are only a handful of law firms that I have observed that have this sense of preparation embedded in their litigation culture. See, The 13 Biggest Reasons to Avoid Last-Minute Trial Preparation

  3. Great litigation teams want their answers questioned. Great litigators are confident. They are so confident that they open themselves up to rigorous scrutiny in their approach to trial. Through a whole host of methods, they invite criticism, suggestions, fresh pairs of eyes, lay people’s opinions, experts’ opinions, and they use all of these voices to perform at their best. See, Accepting Litigation Consulting is the New Hurdle for Litigators

  4. They lead, but they can be led too. Great litigators avoid dominating all discussions. They intentionally let others lead them and be seen as leaders. Download the Leadership for Lawyers eBook

  5. They just look comfortable in front of a jury. Confidence equals persuasiviness and humans are born with an expert ability to detect it.  See, A Harvard Psychologist Writes About Presenting to Win

  6. They build narratives early. They know how important a narrative is to winning a case. They have also learned from experience that the earlier this is done, the better. A well-constructed narrative can inform everything from briefing to discovery to witness preparation. Download The Opening Statement Toolkit

  7. They understand the difference between a narrative and a theme. See, 14 Differences Between a Theme and a Story in Litigation

    storytelling for judge jury courtroom best method for trial persuasion and emotion
  8. They spend their time where they are most valuable and add the most value. How Valuable is Your Time vs. Litigation Support's Time?

  9. They begin developing their visual presentation months or years before trial. See, How Long Before Trial Should I Begin Preparing My Trial Graphics?

  10. They’re not afraid of technology in the courtroom or elsewhere. Skipping technology means losing credibility in most cases now. Jurors have come to expect it and no longer take kindly to simply being lectured to. See, Trial Presentation Too Slick? Here's Why You Can Stop Worrying

  11. They’re systematic in how they meet with their outside consultants. Great trial teams usually hold weekly calls or meetings and schedule the next event at the end of each meeting.

  12. They’re not frantic. There are so many reasons why one should not be frantic, and even when the facts are terrible, great lawyers work at a measured and even pace and don't go negative. See, 10 Signs the Pressure is Getting to You and What to Do About It

  13. They don't jockey for position with other lawyers and law firms. The worst and least effective trial teams that I have ever seen play politics to the detriment of the client in the run up to trial. See, 5 Tips for Working Well As a Joint Defense Team

  14. They exhibit a distinct lack of arrogance. I think some people confuse arrogance with ability. The best trial teams I have observed display tons of confidence, show mastery of the subject matter, demonstrate massive respect for one another and never allow arrogance to enter the picture. See, In-House Counsel's Role In Keeping Litigator Ego In Check

  15. They probably subscribe to our blog. Alright, not everyone subscribes to this blog, but 8,000 people do. Litigators who demonstrate that they hope to grow their own skill set are typical subscribers. See, 10 Surprising Facts About Litigation Consulting Report Blog Readers



    Complimentary Subscription to This Blog



  16. They realize there are too many parts in big-ticket litigation for the first chair to handle all of them alone. They know how to divide the work among attorneys, paralegals, experts, and others. The only way to build a simple case is to start with a complicated one and break it down. Truly complex cases require lots of team effort to achieve this result. See, Litigator & Litigation Consultant Value Added: A "Simple" Final Product

  17. They require their experts to work with communications and visual design consultants. Perhaps 1 in 500 experts is an expert in presenting information in a jury-friendly way, but most believe that they are. 7 Smart Ways for Expert Witnesses to Give Better Testimony

  18. They don't lose it; they keep their cool. There are plenty of stressors in the pre-trial environment. People not used to doing this kind of work would find it hard to maintain a positive attitude, but it is so critical to do so. See, 5 Signs of a Dysfunctional Trial Team (and What to Do About It)

  19. They conduct post-hearing, post-conference, and post-trial debriefings. Truly great trial teams do this, and all bad trial teams simply blame a bad judge, bad facts, and/or a bad jury. See, 9 Questions to Ask in Your Litigation Postmortem or Debrief

  20. They contemplate their thematic story right from the start and incorporate that into discovery. We're working with a number of clients now who are making sure a narrative is developed early in a case, not just on the ease of trial. This is a best-practice for highly effective trial teams. See, Planning For Courtroom Persuasion? Use a Two-Track Trial Strategy

  21. They tell you their strengths and weaknesses. When we meet with a trial team for the first time, they usually present to us as if we were potential jurors. That is, they advocate. Good trial teams do that, but then great trial teams say, "here's what our opponents will say and here's where we are vulnerable."

  22. They don’t answer their own questions, but let other people do that. Often, these answers are found in a mock trial setting. As we frequently advocate, let the data speak, don't guess or just use your gut instinct. See, 10 Things Every Mock Jury Ever Has Said

  23. Before dismissing new ideas, they consider how to apply them, no matter how new. See, How Creative Collaboration Can Help a Litigation Team

  24. They repeat back recommendations to make sure they understand them. This mirroring technique is used by many highly effective litigators and great listeners in all fields.

  25. They send drafts of their work with enough lead time for others to provide comments. Time management in litigation is a skill that must be developed and is a given with great trial teams. See, The 13 Biggest Reasons to Avoid Last-Minute Trial Preparation

  26. They communicate in an orderly, consistent manner so that the left and right hands know what the other is doing. 

  27. If they aren’t good organizers, they task someone who is to assure continuity and avoid panic. Download the Leadership for Lawyers eBook

  28. They don’t assume anything and seek to verify with facts, including mock testing that shows which themes are winners and which juror types are worst. See, 11 Problems with Mock Trials and How to Avoid Them

    mock jury webinar a2l kuslansky

  29. They don’t answer challenges by simply stating how long they’ve done this or where they went to school. See, 6 Studies That Support Litigation Graphics in Courtroom Presentations

  30. They lead, but don’t micromanage. We recently wrote about how some trial teams will agonize over fonts, colors, and PowerPoint templates while ignoring bad facts in their case during trial preparation. See, 3 Trial Preparation Red Flags That Suggest a Loss is Imminent

  31. They are respectful to junior staff and outside consultants. See, 13 Reasons Law Firm Litigation Graphics Departments Have Bad Luck

  32. They understand that their success is a team effort and approach it that way. See, When a Good Trial Team Goes Bad: The Psychology of Team Anxiety

  33. They give credit where credit is due, sincerely (not by patronizing).

  34. They lead by example. Download the Leadership for Lawyers eBook

  35. They pay their bills on time or early. I'm pretty sure most litigators don't understand how important timely payment is and how it contributes to winning cases. See, 10 Ways Timely Payment Helps You Save Money On Litigation Consulting

  36. They don't sugarcoat the possible effectiveness of the other side's narrative and thematic points and fall too quickly in love with their own narrative and themes. See, 12 Astute Tips for Meaningful Mock Trials

  37. Notwithstanding a keen awareness of what the other side will say, they don't simply respond to the other side; they build their own affirmative narrative. See, $300 Million of Litigation Consulting and Storytelling Validation opening statements toolkit ebook download a2l
  38. They pressure test throughout the course of their pre-trial development and during the course of trial itself by continuously empowering the entire litigation and trial teams to provide their own input. They eschew groupthink. See, How Creative Collaboration Can Help a Litigation Team

  39. All attorneys on the team have meaningful roles that sync with their individual strengths.

  40. They don't wait until the last minute to prepare fact and expert witnesses and instead dedicate sufficient resources to ensure those witnesses are prepared. See, Witness Preparation: Hit or Myth?

  41. Witness preparation includes, of course, careful development of an effective visual presentation that is rehearsed but doesn't sound rehearsed. See, The Top 14 Testimony Tips for Litigators and Expert Witnesses

  42. Effective litigation teams spend as much time preparing their witnesses for robust cross-examinations as they do for direct examinations. See, 
    Witness Preparation: The Most Important Part

  43. They look for opportunities to score significant points on redirect, a redirect that is thought through well in advance of trial and not simply reactive to cross.

  44. They seek candid feedback, not false praise, during trial.

  45. They get some sleep. One of my favorite, now retired, trial lawyers used to say that he never slept better than when we was at trial. He always knew he was fully prepared.

  46. They don't relegate preparation of important witnesses to junior lawyers who lack actual experience. See, Witness Preparation: Hit or Myth?

  47. They don't dismiss the level of intensive prep needed “just for deposition,” waiting for trial.  Most cases settle, and discovery can make or break a case. My favorite lawyers are just as "on" at a depo as they are at trial. See, 6 Tips for Effectively Using Video Depositions at Trial

  48. They think about details like tie color, suit color, and body language, and they work to improve their delivery at every event they participate in. See, Litigation Graphics, Psychology and Color Meaning

  49. They are grateful that they get to do the kind of work that they do. I watched a top trial lawyer and friend be interviewed recently. His attitude was one of sincere gratitude about being a litigator. That sincerity comes through in everything that he does, and it is part of the reason he is so successful in front of juries. It's something that is almost impossible to fake.

  50. Finally, they ask their litigation consultants what can they do better. So far, as mentioned in the introduction to this article, it has happened just this once. However, I have a feeling we'll get asked this question more and more. I hope this article provides a useful framework for these types of discussions.

litigation consulting graphics jury trial technology

Tags: Trial Graphics, Litigation Graphics, Trial Presentation, Jury Consulting, Courtroom Presentations, Mock Trial, Trial Consulting, Demonstrative Evidence, Litigation Management, Litigation Support, Juries, Jury Consultants, Trial Preparation, Storytelling, Management, Practice, Expert Witness, Leadership, Judges, Opening, Depositions, Witness Preparation, Persuasion

When Smart Ain’t So Smart - Cognitive Bias, Experts and Jurors

Posted by Laurie Kuslansky on Fri, Feb 12, 2016 @ 02:46 PM

Cognitive Bias Jurors Expert Witnessesby Laurie R. Kuslansky, Ph.D.
Managing Director, Jury & Trial Consulting
A2L Consulting

Ever been told you were too smart for your own good? I never thought it was possible. I might be too smart for someone else’s good, but not my own.

When it comes to jurors and experts, it could be true. Two reasons are cognitive, decision-making biases that are of special interest because they can seriously impair your case. Both follow the lines of “Really? You don’t think like me?!”

Specifically, these biases are:

  • The “Curse of Knowledge Bias" in which well-informed people find it hard to think about problems from the perspective of others who are less informed, and

  • The “False-Consensus Bias", whereby people tend to overestimate how much other people will share their beliefs or opinions. Assuming that their own values and beliefs are normal and typical, they hold the false belief that there will be a consensus between others’ opinions and their own. In fact, when they discover that others do not share the same expected opinion, this bias leads them to believe that there must be something wrong with those people who think differently.


What Makes Very Smart Jurors a Risk?

Individual jurors, who have abided by the court’s instruction not to discuss the case prior to deliberating, often enter deliberations believing that others see the case as they do. Learning that others see it differently initially comes as a surprise based on their false expectation.

If a juror is better informed and suffers from the “Curse of Knowledge” bias, and a reason some jurors disagree is due to a poorer understanding of the case, a lack of background experience or knowledge, or an intellectual deficit, very smart jurors may have a hard time bridging the gap to reach a consensus with these fellow jurors. The “Curse of Knowledge Bias” may cause them to have a tough time seeing the case from the perspective of less-informed people. If so, they will fail to take the perspective of others and fail to find common ground with which to forge a true consensus to reach a verdict.

Depending on your position, that is either good or bad news.

 

What Makes Very Smart Experts a Risk?

Not only are jurors subject to these biases, but so are experts. Someone who is at the top of his or her field of expertise may be very knowledgeable -- but may also be challenged in other types of intelligence, whether emotionally, socially, or as a teacher, persuader or communicator.

Experts who are less experienced in testifying in court may be used to sharing knowledge with peers or students who are highly motivated to learn, but may be vulnerable to these two biases, to the peril of the litigator and client who hired them.

In order to successfully teach and persuade, at a minimum, one must be able to retrace the steps from ignorance to knowledge and pave the way to get there. Otherwise, the expert may really be too smart for their own – and your – good, because they cannot imagine other ways to see an issue and what is needed to understand their position. Assuming too much knowledge or understanding on the part of the recipient (student or juror) is a good way to alienate them.

 

Implications for Jury Selection: Is Your Goal to Reach or Prevent Consensus?

If your goal is reach consensus on a jury, e.g., the plaintiff(s) or prosecutor

In selecting jurors, many factors must be considered in whom to strike or keep, but open-mindedness and social skill, diplomacy and the ability to be somewhat flexible and less egocentric may be traits to consider, rather than just how smart or well-informed a juror may be. Selecting a juror who is smart but rigid can backfire.

If your goal, on the other hand, is to prevent a consensus on the jury, e.g., the defense

It isn’t as simple as getting a contrasting mix of well-informed and poorly-informed jurors to do the trick of avoiding consensus, but it’s a start.

However, if one camp is meek, inarticulate, lacking in passion and unable to stand its ground, they will reach consensus by merely following the lead – whether of the better-informed or more passionate. Hence, one must consider:

Getting jurors who are:

  1. well-informed mixed with ones who are not well-informed;

  2. passionate for you to win or the opponent to lose;

  3. smart, but somewhat cognitively rigid (i.e., have difficulty changing their way of thinking), fail to reflect upon hearing information in voir dire, show an inability to shift if asked to consider something different in voir dire. Are they open-minded and flexible, showing some transition (bad) or do they freeze/repeat their initial response or fail to respond (better)?


Implications for Expert Selection: Is Your Goal to Dazzle or Teach?

If your goal is to dazzle

Your expert may never be able to teach the subject at issue because it is simply ridiculously complicated and all you hope for is for jurors to a) see them as an expert, b) trust their credentials, and c) trust them and their opinion. If so, someone who displays both forms of bias is the man or woman for you.

If your goal is to teach

Don’t just consider whether your expert is smart. Also ask whether the expert is effective at teaching and persuading others because he or she does not suffer from these cognitive biases. How do you do this?

Assess the expert’s ability to assess and understand the mindset of the uninformed lay person. Can they speak their language? Do they voluntarily offer to translate lingo into lay terms? Do they provide useful analogies for the common person? Can they appreciate the complexity of their subject area for the uninformed or why it might not be interesting to outsiders? Can they make it interesting and relevant?

Whatever you do, be too smart for your own good.


Other A2L Consulting articles related to cognitive bias, jury persuasion, and expert witnesses include:

A2L Consulting's Storytelling for Litigators 3rd Ed E-book

Tags: Jury Questionnaire, Jury Consulting, Trial Consulting, Juries, Jury Consultants, Jury Selection, Psychology, Expert Witness, Persuasion, Cognitive Bias

How We Judge People Is Shaped Mostly By Who We THINK They Are

Posted by Ryan Flax on Thu, Nov 5, 2015 @ 12:52 PM

photography client lawyer portrayby Ryan H. Flax
(Former) Managing Director, Litigation Consulting & General Counsel
A2L Consulting

It’s always interesting to me how humans view and judge each other. We all do it almost all of the time, in every interaction with other people. We even do it when we don’t even interact with others, for example, while driving or watching TV. We develop little dramas and characters in our minds to make sense of the world around us and its characters.

This is particularly important in my profession, where my goal is to help litigators frame their case or showcase their client in a compelling and engaging way for judge or jury. I’ve just watched the video below and it highlights how important it is to frame our clients’ character correctly when we want a decision maker to see things our way. That “correct” way of introducing our client is whatever way will result in a decision in our favor – Ask: what would make the judge or jury feel our client should prevail?

What we see in this little experiment is the audience, here photographers, were introduced to their subject in a very specific way, that is, as a successful man, an alcoholic, a hero, a criminal, a working man, etc., and this framing of the character dictated how they saw that subject going forward. It also dictated how the photographers then presented the character to the world – in the photos they took. We see that the group of photographers themselves, upon reviewing each other’s photographs, noted that the subject/character looked like a completely different person in each of their pictures. To each of them, he was a completely different person and they judged him based on that framing.

So, this (non-scientific) experiment sheds light on the importance of how we frame and introduce our clients (and ourselves, too) to judges and juries. What we can honestly and convincingly convey to jurors about our client to make them a sympathetic, honorable, trustworthy, or dedicated (or whatever superlative you like) character, and, on the flip-side, portray our opposition as just the opposite, can go a long way toward providing the right lens through which your audience views your case and evidence.

Other A2L Consulting articles and resources related to storytelling and portraying your client's image intentionally:

storytelling for judge jury courtroom best method for trial persuasion and emotion

Tags: Jury Consulting, Courtroom Presentations, Trial Consulting, Psychology, Storytelling, Expert Witness

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

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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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