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The Litigation Consulting Report

How to Get Great Results From a Good Lawyer

Posted by Ken Lopez on Tue, Jan 31, 2017 @ 12:35 PM

litigation-consultants-great-lawyer-good-lawyer.jpgby Ken Lopez
Founder/CEO
A2L Consulting

Not all lawyers are created equal. It's amazing how hard it is for those outside the legal industry to understand this.

Many people regrettably believe that those human aptitudes that require creativity and skill are binary. Either you can design a house or you can't. Either you can knit or you can't. Either you have a singing voice or you don’t. And in that same vein, either you're a lawyer or you're not.

This is the wrong way to look at it. In all these areas, there are variations and gradations of skills. This is never more true than for trial lawyers. The distance that separates the satisfactory from the great is vast. I have met very few people who are great trial lawyers.

The challenge with great trial lawyers is that they know they're great, and they charge accordingly. So what should a client or company do when they want to get great results at trial, but they only have the budget to pay a lawyer who is good but not great?

It is possible to do that – but it requires a new type of thinking and a new way of looking at the legal industry.

I've written before about the characteristics of great lawyers, the characteristics of great trial teams, and the challenge resulting from the fact that very few trial lawyers have much trial experience these days. There's just no substitute for experience. No one is that smart, that well-educated, or that well-mentored.

This solution is going to sound self-serving, but the longer I work in the litigation field, the more deeply I believe it. It goes like this: In the modern era, clients and lawyers simply must learn to rely on expert litigation consultants. They are the performance-enhancing drugs that make good trial lawyers great and great trial lawyers unbeatable. 

To be clear, these litigation consultants are not trial techs or 20-something graphic artists. Those professionals are important too, but that's not who I'm talking about. Instead, these are trial-tested litigators or highly experienced Ph.D. consultants who routinely act as coaches to the best of the best trial lawyers. These are people who go to trial every month and operate with the best of the best.  

They offer a kind of assistance that is relatively new in the industry. They work with counsel to develop a compelling narrative. They help develop an opening statement. They prepare just the right visuals using scientifically proven techniques that enhance persuasion.

These litigation consultants are not easy to find. I'd be happy to recommend someone who is the right fit for you.

Other A2L articles and resources related to litigation consulting, storytelling, and the use of litigation graphics to persuade include:

litigation consulting graphics jury trial technology

 

Tags: Litigation Graphics, Litigation Consulting, Demonstrative Evidence, Jury Consultants, Storytelling, Opening, Midsize Law Firms, In-House Counsel, Persuasion

3 Trial Preparation Red Flags That Suggest a Loss is Imminent

Posted by Ken Lopez on Wed, Mar 2, 2016 @ 09:24 AM


trial preparation red flags litigator behavior loss associatedby Ken Lopez

Founder/CEO
A2L Consulting

In 20 years as a litigation consultant, I’ve personally seen hundreds of litigators try cases, and I have heard the observations of my colleagues on other cases, probably amounting to thousands of cases in all. So I’m in a pretty good position to evaluate what works and what doesn’t work, based on a non-scientific study of trials and trial teams.

One might think that a litigator who has been living and breathing a case for years is more likely to win a jury verdict than a litigator who has just been brought in for the trial. But I just don’t see that. Litigators do well in both situations. It is true, however, that trial teams that prepare longer and harder for trial are more likely to win.

There are, however, some trial preparation patterns that constitute “red flags” and indicate to me that a trial team may be headed for trouble. Here are three of them.

1) Extensive debates among the team about font, color, and PowerPoint templates. This often spells trouble. For example, if your litigation graphics shop (likely experts in visual persuasion) have produced more than 10 PowerPoint template/font/color combinations, and the merits of each are still being debated by the lawyers, the team is likely focusing on the wrong thing. Now a healthy debate about color, fonts, and templates can be OK. But don’t forget that there’s no real scientific agreement on what colors or fonts are persuasive, and also remember that some litigation graphics shops are experts in the nuances of color theory, font choice, and visual persuasion. So, when I see a litigator spending weeks on a template, I know we're in trouble.

2) Secretiveness about the case. Sometimes we see clients who are hesitant to talk about their case or who bristle when asked, "How could the opposition win?" The best litigators want to have their answers questioned. They are the furthest thing from yes-men or yes-women. See $300 Million of Litigation Consulting and Storytelling Validation to understand the kind of work some high-end litigators put in to generate a win.

3) Infighting between law firms. Once this breaks out, the real battle becomes which law firm will triumph rather than which side of the case will triumph. It almost always leads to a loss. If there is the slightest whiff of this behavior, in-house counsel must step in and eliminate it immediately. Allowing this sort of "drama" to persist simply increases the likelihood that the corporate budget for the arts is about to increase markedly (in the form of a losing verdict). See 5 Tips for Working Well As a Joint Defense Team.

However, all these behaviors, in my experience, can be reversed. Very often, they are simply tactics to avoid dealing with a real problem in the case. Good mock testing and good recognition of the behaviors as they are happening can often save a case in trouble. Sometimes, it is up to in-house counsel to assert their leadership and eliminate these behaviors.

Other A2L articles and resources about litigation leadership, in-house counsel, and trial preparation include:

in-house counsel litigation toolkit e-book free download

Tags: Trial Graphics, Litigation Graphics, Mock Trial, Demonstrative Evidence, Litigation Management, Trial Preparation, Leadership, PowerPoint, In-House Counsel

7 Bad Habits of Law Firm Litigators

Posted by Ken Lopez on Wed, Oct 28, 2015 @ 11:08 AM

attorney bad habits lawyer trial courtroomby Ken Lopez
Founder/CEO
A2L Consulting

In our role as trial consultants, we frequently work with some of the top law firm litigators in the nation, as well as with in-house counsel for some of the nation’s major companies. Ideally, we form a cohesive team that works seamlessly to provide outstanding trial representation and to win cases.

Occasionally, we find that law firm litigators are engaging in bad habits that can increase inefficiency, cost the client money, and decrease the chances of winning at trial. Here are seven of them.

1. Lawyers designing PowerPoint slides. Anyone who went to law school can of course use PowerPoint. Generating PowerPoint slides is not difficult, and lawyers are smart. Many lawyers can even make PowerPoint slides that look nice. But:

a. It's not about pretty slides, it's about effective slides, and the rules for how to create those take years to learn. See Litigation Graphics: It's Not a Beauty Contest

b. A lawyer doing slides costs the same or more per hour than a litigation graphics expert doing slides. Classically, you could cut your own hair, but why would you? See How Valuable is Your Time vs. Litigation Support's Time?

c. A lawyer creating slides does not know the tricks of the trade. See Trial Graphics Dilemma: Why Can't I Make My Own Slides? (Says Lawyer)

d. A lawyer creating slides will likely tell a chronological story instead of an effective story. See Don't Be Just Another Timeline Trial Lawyer

e. A law firm might claim to have in-house litigation graphics expertise (See 13 Reasons Law Firm Litigation Graphics Departments Have Bad Luck). But ask yourself: How many trials does that law firm do per year? For even the largest firms, that answer may be a couple dozen. How many cases does that lone artist work on? A small percentage of what is already a small number? Contrast that with a litigation consulting firm with graphics expertise that might do 50 or 100 trials per year concentrated among a handful of key staff. See With So Few Trials, Where Do You Find Trial Experience Now?

2. Paralegals running trial technology. This is pretty common, and I'm not as adamant about this as I am about content creation. Still, when something goes wrong, you want to have one or more people on the team who have been to hundreds of trials, not a few. You might save some money by keeping the service in-house, but the savings are small if any, and the trade-off is a lot of risk. Free Download: How To Find and Use Trial Technicians and Trial Technology 

3. Conducting in-house mock trials. I call this getting high on your own supply. You should pick mock jurors from a broad base of people that mirrors your likely jury. See 11 Problems with Mock Trials and How to Avoid Them

4. Lawyers running PowerPoint at trial. It often works, but it often does not work. Why would you allow your litigators to create risk with almost no benefit? See Making Good Use of Trial Director & Demonstratives in an Arbitration and 12 Ways to Avoid a Trial Technology Superbowl-style Courtroom Blackout

5. Outside litigators who are afraid to ask for help. Litigation is one of the few competitive areas in which people are afraid to rely on coaches, best practices, and experts, and that makes no sense. Even Michael Jordan had a coach. See Accepting Litigation Consulting is the New Hurdle for Litigators

6. Outside trial counsel who is afraid to ask for a needed budget item. They often see a pie of a set size, and asking for budget for a mock trial or other litigation consulting support, might take pie away. You should instead see a pie whose size can be changed when it makes sense. See In-House Counsel Should Make Outside Litigation Counsel Feel Safe

7. Outside litigators who conduct frighteningly last-minute preparation for trial. I really think the days of the cowboy litigator who rides in at the 11th hour and charismatically bends a jury to his will are largely over. The opposition is much more sophisticated now, and so are juries. See The 13 Biggest Reasons to Avoid Last-Minute Trial Preparation

Have you ever seen any of these habits play out?

Other articles and resources by A2L Consulting focusing on trial preparation, the relationship between in-house counsel and outside litigators and on winning cases generally include:

in-house counsel litigation toolkit e-book free download

 

 

Tags: Trial Graphics, Trial Technicians, Mock Trial, Litigation Consulting, Trial Technology, Litigation Support, PowerPoint, In-House Counsel

In-House Counsel's Role In Keeping Litigator Ego In Check

Posted by Ken Lopez on Fri, May 22, 2015 @ 02:57 PM

 

litigator-ego-id-inouse-counsel-winning-managementby Ken Lopez
Founder/CEO
A2L Consulting

I've seen litigator ego contribute to the winning of cases and the losing of cases. Unfortunately, however, I've seen more cases lost because of it than won because of it.

What do I mean by the ego of a litigator? If you've worked around litigators (or litigation consultants for that matter), you already know what I mean. For anyone else, I'm referring to all those first-chair litigators in trial-related situations who put themselves ahead of the client's best interests.

The best definition I have found of “ego” is "the idea or opinion that you have of yourself, esp. the level of your ability and intelligence, and your importance as a person." 

In litigation, we see how ego can play both good and bad roles. Sometimes the presence of ego leads to good outcomes, as it is at least in part ego that allows a litigator to ignore the advice of a client who may be too close to their problem. More often, however, we see ego show up in ways that are counterproductive for the client. For example, in situations where:

  • First-chair waits until the last minute to prepare the opening
  • First-chair prepares the opening alone
  • First-chair rules the trial team with an iron fist
  • First-chair berates fellow members of the trial team
  • First-chair refuses to practice opening and closing statements
  • First-chair won't do a mock exercise for fear of looking bad
  • First-chair does things the way they have been doing them for 30 years

What's wrong with all of these situations? Well, one way or another, they are all bad for the client. Worse, 90 percent of the time, the client has no idea that this is happening. So, what is a client to do?

For the past year, I've been encouraging Fortune 500 in-house clients to get more involved in trials than they have been over the past 30 years. While there are exceptions, most big companies simply hire their litigator buddies or those who have generated good results in the past and then just step out of the way.

I think that was the right approach for a long time, and most of the time, it's still a useful mindset. However, I prefer to see clients treat their outside litigators as a good manager would. That is, they should delegate effectively AND they should hold the client accountable.

I wrote about 25 Things In-House Counsel Should Insist Outside Litigators Do a number of months ago, and it has been a very popular article. The follow-up In-House Counsel Litigation Toolkit has been downloaded over 1,000 times since its December release. These and other resources speak to the concept of delegating effectively. That is, it is important to explain to outside counsel which decisions are, in corporate speak, root, branch and leaf level delegation decisions. It used to be the case that everything except settlement was delegated to outside counsel, but those days are long gone. The same is true for holding people accountable. You must follow up to make sure it gets done the way you want it done. 

There are several things I think in-house counsel must insist on to make sure that ego does not interfere with the outcome of the case.

  • Practice - either in the form of a mock trial or just an open practice session where in-house counsel participates.
  • Storytelling - in-house counsel must hear a compelling narrative from outside counsel as soon as possible, at least many months before trial.
  • The Company’s Story – in-house counsel should make sure the company’s story is being articulated in such a way that it does not cause harm in another case, in the press or with investors. 
  • Consultation – even the most brilliant trial lawyer should consult with his or her client about key strategic decisions in the trial.

It is true that these ideas don’t represent the way things were done 30 years ago. But juries and trials and companies are not the same as they were 30 years ago.

Other articles related to in-house counsel, trial teams and litigation management from A2L Consulting include:

in-house counsel litigation toolkit e-book free download

Tags: Jury Consulting, Mock Trial, Litigation Consulting, Jury Consultants, Psychology, Storytelling, Practice, Opening, In-House Counsel

7 Things In-House Misses When Litigation Consultants are Underutilized

Posted by Ken Lopez on Wed, May 20, 2015 @ 01:08 PM


litigation-consultants-for-in-house-counselby Ken Lopez
Founder/CEO
A2L Consulting

I think that a lot of in-house counsel don’t know that litigation consultants exist in the role that they play today. Trials are so rare these days that this is understandable. But high-quality litigation consultants are in business quite precisely because trial is so rare.

Top litigation consultants go to trial dozens of times per year, while even the best and highest-profile litigation attorneys go to trial once every several years at most.

Litigation consultants help inform litigators about new trends both in rhetoric and in visual presentation and help provide litigators with a knowledgeable sounding board. They are trusted advisors focused on winning. Yet many top litigators are resistant to using litigation consultants or, if they have them, they don't use them to their best advantage.

I'm pretty sure that any in-house counsel would see the value of hiring someone simply to offer opinions about the case, who either has been a litigator or is a jury consultant with tons of trial experience. Common sense tells you this is good for the client. Yet many litigators still resist.

Can you imagine an athlete who used to play a game many times a year who takes a multi-year break not using a coach of some sort to come back up to speed? It wouldn't make sense. Yet in-house counsel allow litigators to do this all the time.

Here are seven useful insights that the client misses out on when litigation consultants are underutilized.

1. The power of storytelling. We know that jurors learn and understand a case by viewing it as a story.

2. The structure of storytelling. A story needs to have a distinct beginning, middle and end.

3. The most persuasive order to present a case. An experienced consultant knows how to build a case in a persuasive way.

4. Practice. Simply by acting as a sounding board, a top consultant induces a trial lawyer to step up his or her game by constant practice.

5. A good visual strategy. Most litigators understand trial practice but they are not familiar with the latest research on how to present ideas visually.

6. Avoiding silly mistakes. Just one misconception, if it is not caught in advance by a consultant and shot down, can lose a case.

7. The insights of a person focused on winning not ego. Consultants have been in court hundreds of times. They know what wins.

in-house counsel litigation toolkit e-book free download

Tags: Litigation Consulting, Litigation Support, Storytelling, Practice, In-House Counsel, 3D Printing

10 AmLaw 100 Firms That Love to Learn

Posted by Ken Lopez on Mon, May 18, 2015 @ 11:08 AM

 

amlaw-100-best-love-to-learn-cleby Ken Lopez
Founder/CEO
A2L Consulting

There is a lot to learn from data, and these days data is everywhere. For better or worse, data can be available for everything from the number of steps you walked today to how long you took to read a particular Web page.

I recently took the time to assess how the AmLaw 100 law firms were interacting with our site, particularly with the articles on this blog. Some law firms are very active, and some hardly visit at all — and I think this information tells us a great deal about these law firms.

This data is interesting to me for many reasons. First, I’m interested in making sure that our articles appeal to the AmLaw 100 law firms, as just about every one of them has been a client of A2L Consulting at some point. However, I’m also interested in what the data says about the law firm itself. Is the firm interested in learning?  Is it serious about litigation? Is it set in its ways?

After more than 20 years of supporting top litigators, I find that there are litigators who like feedback from the courtroom experts on our staff, and there are litigators who simply want to do things their way. We work with both types, but our favorite is the former -- those litigators who say, “A2L, you're in court 50-100 times a year, and maybe I make it once a year, but it's not usually even that often any more. What advice do you have based on working with others like me, in similar cases and in this venue?”

In my experience, the litigators who present themselves and their cases this way are the ones who win most often. They have their own way of doing things, to be sure, but they are also open to taking a different approach when a high-quality idea is presented to them. Indeed, they solicit high-quality ideas and create an atmosphere where creativity happens.

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Our blog is written for people like that -- litigators who love to learn and want to improve their courtroom game. As an in-house lawyer said to me recently, “Many lawyers are trying cases the same way they did 30 years ago, but juries are deciding cases differently than they did 30 years ago.” Adapt or lose is the new mantra for high-end litigators.

If I were hiring litigators, this data would give me something to consider. After all, do you want the type of litigator who is flexible and staying up with the latest trends, or one who is set in his or her ways? Do you want one who is reading top litigation blogs with trial tips, or one who is satisfied with the old approach?

Below are two lists that rank the AmLaw 100 firms by the number of times that firm has watched one of our webinars or downloaded one of our litigation e-books. The second list shows how many verified and known visitors from that firm there have been.

Before telling you what the data reveals, I have some caveats. I’m only including data from verified visitors to our site whose identify we are sure of, based on their download history and other activity with our site. So the raw data is really a small sample of those who visit our site each month, since the vast majority of visitors have not left their name with us yet. Thus, the raw data understates the number of page views and visits considerably, probably by a factor of ten times or more. Since you have to provide your email, the number of downloads is quite precise and actually more telling except when someone has used Gmail. What is useful and interesting is how the law firms compare to each other. This data reflects about four years of visits.

These ten AmLaw 100 firms have downloaded more e-books and watched more webinars than the other 90 firms in that comparison group.

  1. Greenberg Traurig
  2. Jones Day
  3. K&L Gates
  4. Kirkland & Ellis
  5. Fish & Richardson
  6. Ogletree Deakins
  7. Kilpatrick Townsend
  8. Jackson Lewis
  9. Fox Rothschild
  10. Lewis Brisbois

These ten AmLaw 100 firms have viewed our site more than any other of their peer firms.

  1. Greenberg Traurig
  2. Fish & Richardson
  3. Haynes and Boone
  4. Kirkland & Ellis
  5. Jones Day
  6. Ogletree Deakins
  7. K&L Gates
  8. Pillsbury
  9. Latham & Watkins
  10. Bryan Cave

Interestingly, there was only one AmLaw 100 firm that showed no verified visitors, no downloads, and no one subscribing to our litigation blog (there are 6,600 subscribers). It's a big DC firm that we have a 100% win rate against in repeated cases over many years. Correlation? I sure think so.

Other articles related to best-practices, the role of in-house counsel guiding outside litigation counsel and continuous learning:

opening statements toolkit ebook download a2l

Tags: Litigation Graphics, Trial Presentation, Litigation Consulting, E-Book, Webinar, Articles, Trial Preparation, In-House Counsel, CLE

The Top 10 Litigation Articles From the Start of 2015

Posted by Ken Lopez on Tue, May 12, 2015 @ 10:50 AM

 

top-10-litigation-articles-early-2015by Ken Lopez
Founder/CEO
A2L Consulting

We publish a lot of articles on this blog here at A2L Consulting. Sometimes we publish so many that it’s not easy to decide which ones to read first.

That's why once a quarter we do a mini-retrospective of the best articles based on what our readers choose to look at. Our theory is that the more people that read an article, the more compelling and the better it is. All these articles relate in some way to persuasion: Why expensive-looking litigation graphics are better than inexpensive-looking ones, why you are less persuasive when you are using clichés, how people obtain trial experience these days when most cases don’t go to trial.

We think this also helps our readership sort through the very best of our content by relying on the votes of 6,600 fellow subscribers as indicated by their reading habits.

In the first quarter of 2015 we published 21 articles. The top article was read more than 4,000 times (so far).

Interestingly, the most-read article was about the famous “blue and black dress” that became an Internet meme, and what kind of trial evidence would be admissible to show what color the dress actually was. This tells us that people are fascinated not only by the dress and the optical illusions that it invoked, but also by the facts that the human mind and eye can easily be fooled and that evidence is necessary to solve the issue of the color of the dress. When you ask, what sort of evidence is necessary, you are already asking the question that a trial lawyer would ask.

The second most popular article described what in-house counsel often say about trial lawyers in major law firms. Again, the key was persuasion. Many in-house counsel said that what persuaded jurors 30 years ago is no longer what persuades them today. Many said that the details of the law were far less important than the need to tell a persuasive story at trial.

The third most-read article dealt with the well-known techniques of persuasion. Among them are the need to entertain the audience, connect with the audience, and respect the audience.

Here are the top trial and litigation consulting articles, in inverse order of how popular they were:

10. New and Free E-Book: The Voir Dire Handbook

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9. How PowerPoint Failures in Demonstrative Evidence Can Sink a Case

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8. How To Find Helpful Information Related to Your Practice Area

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7. Why Expensive-Looking Litigation Graphics Are Better

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6. How to Make PowerPoint Trial Timelines Feel More Like a Long Document

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5. Why The Use of Clichés Puts Your Persuasiveness at Risk

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

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3. How to Apply Cialdini's 6 Principles of Persuasion in the Courtroom

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2. 9 Things In-House Counsel Say About Outside Litigation Counsel

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1. Why the Color of a Dress Matters to Litigators and Litigation Graphics

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opening statements toolkit ebook download a2l

Tags: Trial Graphics, Trial Consultants, Litigation Graphics, Litigation Consulting, Articles, Voir Dire, In-House Counsel, Persuasion

How Valuable is Your Time vs. Litigation Support's Time?

Posted by Alex Brown on Tue, Mar 10, 2015 @ 08:37 AM

litigation-support-value-time-money-qualityby Alex Brown
Director, Operations
A2L Consulting

How do you determine value?
 
This weekend, while my oldest child was in Boston at a gymnastics meet, we thought this would be the perfect time to “renovate” her room back home. My youngest daughter wanted to help but also wanted to negotiate her fee to do so. I came up with many reasons for her to find value in helping: the good of the family, experience, and enjoyment, but none of these provided the proper balance of cost and value to her. Finally I told her that she will be able to destroy something that belongs to her big sister, without any concern for retaliation. This brought her on board, and in the end she not only loved it but she also had the added benefit of being able to tell her sister how much fun it was to destroy her room and how destructive the work needed to be.
 
As litigators, you have a similar job of having to persuade your client about, say, the importance of using expert witnesses or the need to bring on a litigation support team. This is always a delicate conversation because there are so many factors in play; emotions, money constraints, and inexperience, to name a few. For years, the use of expert witnesses has been an easy sell for the most part. But the importance of litigation support (i.e. theming, visual presentations, trial technology/hot seat operators, and mock trial exercises) is not universally accepted, so it can be more of an uphill struggle to convince clients of the need for these things and even harder to persuade them of the value. But why? It’s clearly not the cost, since that normally runs anywhere between .5 percent and 5 percent of the legal fees in a big case. So the sticking point is the need for these services.

Here are a few of the things we hear when discussing our services.
  • It's just PowerPoint, I can do that myself?

  • Just give me a list of universal questions I can ask the jury.

  • We'll just run a mock trial at the office.

  • I think we can bring you in after we know what we want, so it will be cheaper.
As a litigator, do you enjoy having the client sit next to you every step of the way, having the client in meetings when you discuss your next steps, and having them question you on every decision? Of course not. The client doesn’t have the experience, and these questions will drive down productivity. The same is true for litigation support. Perhaps in the back of your mind you think you can do it yourself. But the difference between doing it and doing it right is vast. I would never ask my doctor to fix my electrical problem, I would never ask my babysitter to fix the brakes on my car, and I will never ask my mother to drive at night. Likewise, I would never ask my litigator to do what A2L can do for them. A2L's team is experienced and professional. They can develop more options because they understand the case and are there to support you. They see more court time in a month than most litigators see in a several years. Why wouldn’t you want that level of experience in your corner?
 
David Beldon of iExecuVision International and Vistage once gave me the most important mantra that you as a litigator should incorporate into your life: “I will only do today, what ONLY I can do.”

Other A2L articles and resources related to the role of litigation support, getting value from litigation support and making a case for litigation support services to in-house counsel:

litigation consulting graphics jury trial technology

Tags: Litigation Graphics, Mock Trial, Litigation Consulting, Litigation Support, Trial Preparation, Pricing, Voir Dire, Practice, PowerPoint, In-House Counsel

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

Posted by Ken Lopez on Tue, Mar 3, 2015 @ 01:58 PM

 

experienced-trial-lawyers-litigation-consultantsby Ken Lopez
Founder/CEO
A2L Consulting

I have recently interviewed dozens of in-house counsel from large companies. One subject that continues to come up fascinates me and reflects the changing practice of litigation-focused law.

As my litigator turned litigation consultant colleague Ryan Flax says, "they call it the practice of law, but no one is practicing." That is, with so few trials occurring, the normal go-to litigators at big law firms are just not going to trial like they used to, and thus are not getting the practice that they used to get. Since that's true, where does one look for trial experience now, and will there be a shortage of experienced trial lawyers soon at large law firms? Let me offer some observations and five solutions.

The same trial lawyers I once saw go to trial at least once per year a decade or two ago, now go to trial every few years—at best. In their non-trial time, they are not watching trials since they are not being paid to go watch trials, and they do not usually participate in mock trial practice either. The difference between how often a large law firm goes to trial, let alone a single litigator, and a litigation consulting firm like A2L has never been greater than it is right now.

Whereas a major law firm may go to trial perhaps a dozen or two dozen times per year and a single litigator may go to trial every few years, a single litigation consultant at A2L will be involved in at least a dozen trials and often several dozen trials or more, every single year.

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If you think trial-loving partners at big law firms are unlucky, think of their associates, and ask yourself, how is anyone getting any trial experience any more? That is a question that in-house counsel are beginning to ask. As one noted, the people who now look truly comfortable in front of a jury are often plaintiff's counsel, since they are more frequently in court.

One in-house counsel at a large company poignantly noted about about the plaintiffs' counsel they face, "they have a swagger and body language that comes from experience, and that experience comes off as confidence, and confidence helps win cases." So, if in-house counsel recognizes that an experience gap is growing, what is the solution?

Here are five ideas for maximizing the amount of valuable trial experience on a trial team:

1) Litigation Consultants Add Experience to the Team: In-house counsel no longer expect a law firm to have all of the answers. They expect the involvement of litigation consultants early in a case. With litigation consultants in trial almost full-time, they are a logical add-on both from the trial team's and the client's perspective when considering early case assessment, mock exercises or trial. See, Litigator & Litigation Consultant Value Added: A "Simple" Final Product and 25 Things In-House Counsel Should Insist Outside Litigation Counsel Do and 21 Reasons a Litigator Is Your Best Litigation Graphics Consultant.

2) Learning by Doing Programs: Programs like those offered by NITA and others that allow for practice to occur should be a part of a litigators life-long-learning program every year. See NITA programs here.

3) Watch Trials on CVN: Until the Supreme Court figures out that televised trials will improve trial practice, there is an amazing resource trial lawyers can rely on. The Courtroom View Network captures video from trials and makes it available to watch online. In my view, every major law firm should be subscribing to this service to support the training of their litigators. See CVN discussed here

4) Take Every Opportunity to Run a Mock Trial: In-house counsel support the idea of a mock trial but are often afraid of the time and money investment. That's understandable, and while a multi-panel mock trial will always yield the best data, there are other solutions like a focus group or a Micro-Mock. Each offers a litigator the chance to practice his or her craft. See, In-House Counsel Should Make Outside Litigation Counsel Feel Safe and 7 Reasons In-House Counsel Should Want a Mock Trial and Introducing a New Litigation Consulting Service: the Micro-Mock™.

5) Read this Blog and Others Like it: There are several organizations who are publishing information that is far ahead of traditional CLE's when it comes to litigation. The ABA recognized our blog as one of the top ten litigation blogs, and I have highlighted other blogs helpful to litigators in the past. Subscribe free to this blog here. See, The Top 14 Blogs for Litigators & Litigation Support Professionals and Top 100 Legal Industry Blogs Named by the American Bar Association.

Other articles related to mock trials, getting trial practice and increasing your chances of winning at trial by A2L Consulting:

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Tags: Trial Consultants, Trial Presentation, Mock Trial, Litigation Consulting, Juries, Jury Consultants, Trial Preparation, Practice, In-House Counsel

9 Things In-House Counsel Say About Outside Litigation Counsel

Posted by Ken Lopez on Wed, Jan 21, 2015 @ 03:27 PM

 

what-inhouse-counsel-says-about-outside-counselby Ken Lopez
Founder/CEO
A2L Consulting

One month ago I wrote an article titled 9 Things Outside Litigation Counsel Say About In-house Counsel, and we recently included it in our free In-House Counsel Litigation Toolkit e-book. It is a popular piece read by several thousand people so far. Today's article looks at what is being said by in-house counsel about outside litigation counsel.

I've spent a lot of time talking with in-house counsel from large companies over the past two months. They have a lot to say about outside litigation counsel that I don't normally see reported in the popular press.

I expected to hear that outside counsel need to learn to manage budget and find ways to save money, since that's what I mostly read in legal publications. I heard some of that, but the feedback is more nuanced than simple price pressure, and the feedback speaks to a desire for more creativity from outside litigation counsel.

Of course, since I am most often talking to in-house counsel about jury consulting, litigation consulting and litigation graphics consulting, most of their comments relate to those subjects. With that in mind, here are nine things I've heard in-house counsel say about outside litigation counsel recently:

  1. "We have to stop deluding ourselves. At trial, the law is background noise." Big companies are frustrated with having the law on their side and still losing jury trials. As one in-house lawyer said to me, "it is clear that having a good story is important, as one can be right on the facts and the law and still lose." I agree completely, and we have made this point many times in our Storytelling for Litigators ebook and Storytelling for Litigators webinar. More and more, getting the story right is the focus of what A2L Consulting is hired to do as litigation consultants.

  2. Opposing counsel is often more trial-savvy than our outside litigation counsel. Defense-focused litigators from large law firms rarely go to trial, whereas their opposition in many types of cases like product liability, employment, securities and other case types, go to trial quite often. Plaintiff's counsel are quite comfortable relating to a jury, because they do it so often. Their experience comes across in their body language. Defense counsel must make up for this shortcoming with more frequent and repeated practice. Litigation consultants have an obvious role to play here in conducting structured practice, whether in front of a mock jury or more simply, in front of litigation consultants.
    mock jury webinar a2l kuslansky

  3. Gone are the days when one law firm would manage a relationship for the company, so some cost efficiencies get lost as a result. This includes how the company story is told from case to case and understanding the business well enough so that problems are avoided during litigation that might cause much bigger problems elsewhere (e.g. with investor relations or with marketing).

  4. In-house counsel want to hear outside counsel articulate a persuasive story for the case early, not only close to trial. You can add "the client is tired of it" to my list of The 13 Biggest Reasons to Avoid Last-Minute Trial Preparation, because they are. Last minute trial prep makes bills higher not lower, and in-house counsel gets it. See, In-House Counsel Should Make Outside Litigation Counsel Feel Safe

  5. In-house wants to understand how persuasive the opposition's story is. Too often it seems, the strength of the opposition's case is not well described, internalized or properly assessed early enough. See 7 Reasons In-House Counsel Should Want a Mock Trial.

  6. "If a trial team says it has all the answers, it's time to find new outside litigation counsel." Working with litigation consultants makes sense for many reasons but particularly because of the rarity of trial for most litigators vs. the incredible frequency of trials for litigation consultants. In-house understands this point much more so than I imagined before interviewing so many recently. See Accepting Litigation Consulting is the New Hurdle for Litigators.

  7. In-house counsel wants to offer input on the story told at trial. Too often, in-house counsel gives feedback but, as one said to me, "some words may change, but the book stays the same." The benefit of practice with in-house included early is something I've heard over and over.

  8. Most litigators get locked into their approach, and what won cases thirty years ago, may not work today. We like trusted advisors who help us win, but they must prove that they change with the times. See, 19 Ways in Which the World Has Changed Since 1995.

  9. Litigation budgets are often best addressed through early case assessment. By analyzing whether a case should advance toward trial early on, money can be saved by settling early. Creativity here is especially important and is often hard to find. I think the work of author Dan Pink describing the role of creativity in the modern workforce is especially relevant here. See, Daniel Pink, Conceptual Thinking and Trial Consulting.

Other articles and resources related to the work in-house counsel, outside litigation counsel and litigation consultants do together from A2L Consulting include:

in-house counsel litigation toolkit e-book free download

Tags: Litigation Graphics, Mock Trial, Litigation Consulting, Jury Consultants, Trial Preparation, Pricing, Storytelling, Practice, In-House Counsel

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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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