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The Litigation Consulting Report

20 New Litigation Realities (to Celebrate Our 20th)

Posted by Ken Lopez on Thu, Oct 1, 2015 @ 07:19 AM

litigation consulting litigation consultantsby Ken Lopez
A2L Consulting

Today is the 20th anniversary of the founding of A2L. We literally started in a closet not long after I finished law school. First, we were Animators at Law. Then almost five years ago, we became A2L Consulting to reflect the fact that litigation graphics were now less than half of our business. Jury consulting, trial technology support and litigation advisory services are now a bigger part of what we do.

Twenty years later, we're a national litigation consulting firm and arguably, the very top litigation consulting firm in the country. That's not mere puffery. We're consistently voted #1 in local and national legal industry surveys.

To celebrate our 20th, here are 20 new realities that litigators, in-house counsel and litigation support professionals should consider.

1. The New CLE: It is a rare CLE seminar that does not put us all to sleep. I think that modern formats of continued learning like our Litigation Consulting Report blog and other litigation blogs, including those recognized by the American Bar Association, are the best places to go for continued learning. It’s time for the legal establishment to agree.

2. The power of storytelling: The science behind the effectiveness of storytelling as a persuasion device is just now coming into view. It is critical for litigators to study this field and to understand the insights it has developed. See, Storytelling for Litigators E-Book 3rd Ed.

3. Big firm litigators rarely try cases: As a result of this new reality, litigators must get a new kind of help - help from trial tested litigation consultants. These courtroom experts may participate in 50-100 trials per year. It just stands to reason that they can help a litigator who is in court far less frequently. See, With So Few Trials, Where Do You Find Trial Experience Now?

4. Using PowerPoint incorrectly does more harm than good. Most lawyers will actually design slides for themselves that will reduce overall persuasion - but they don't have to. See, How Much Text on a PowerPoint Slide is Too Much?

5. Juror expectations are on the rise: Jurors expect litigators to wow them a bit with graphics and to keep them interested. They know what can be done in the form of graphics and at a lower price than ever before. See, Will Being Folksy and Low-Tech Help You Win a Case?

6. The ability to test is on the rise: The often high price of mock trials scares off many, but almost every case deserves some form of testing. To make this possible, our firm and others have developed a wide range of testing methodologies that can fit every budget. See, Introducing a New Litigation Consulting Service: the Micro-Mock™

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7. Persuasive visuals are everywhere. From White House press releases, to the courtroom, to advocacy organizations, the world is waking up to the power of persuasive graphics. See, Persuasive Graphics: How Pictures Are Increasingly Influencing You

8. All filings use visuals now. It used to be incredibly rare to see persuasive litigation graphics used in court filings, but now it is commonplace. See, 14 Places Your Colleagues Are Using Persuasive Graphics (That Maybe You're Not)

9. Law firms will become even more like businesses: Law firm marketing, business development and PR were unheard of 20 years ago. Law firm pricing strategies are a new and emerging field. Yet all of these areas are normal functions of even small businesses. Increasingly, law firms will look more like businesses going forward, embracing more transparency and developing sales teams. See, 24 Things to Know About The "New Normal" of The Legal Economy

10. Courtrooms are more electronic, but there are not all there yet. We still bring equipment into most trials. There are many things you need to check with the court. And a great deal still depends on the predilections of the judge. See, Trial Technicians, Hot-Seat Operators and Trial Technology

11. The science of persuasion is real science. Neurological research has shown that particular regions of the brain are activated when a person is persuaded by an argument. New findings are constantly emerging. See, 8 Videos and 7 Articles About the Science of Courtroom Persuasion

12. For a small trial, you can use an iPad and TrialDirector (for free). It's not something you want to try in a document intensive case, but for a case with a handful of documents and just a few video depositions, this is now a reasonable strategy to consider. See, 5 Tips for Using TrialDirector and Trial Technicians Effectively

13. Mock hearings are routine. From mock Markman hearings, to mock Federal Circuit appeals, trial consultants can and do provide mock sessions that hone litigators’ skills and show them what to expect. See, 11 Surprising Areas Where We Are Using Mock Exercises and Testing

14. Graphics in depositions. We are increasingly being called upon to create demonstrative evidence to be used during depositions. See these deposition articles generally.

15. Animation is used selectively. Once, animation was the be-all-end-all of the demonstrative evidence industry. 3D animation at least is now only used in big ticket cases involving complicated mechanisms that must be seen from multiple angles or anytime we want a jury to experience "seeing is believing." See, What Does Litigation Animation Cost? (Includes Animation Examples)

16. Animation is more PowerPoint than Pixar. These days, we create a lot of animation, but almost all of it is done in PowerPoint. Now, don't be fooled, you can do some pretty sophisticated work in PowerPoint now. Have a look: 16 PowerPoint Litigation Graphics You Won't Believe Are PowerPoint

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17. Voir dire testing is real science not gut instinct. There was a time when jury consultants were a lot of flash, bravado and gut instinct. Those days are now gone. Now, the great jury consultants let data based on testing speak about how best to conduct jury selection. See, 12 Insider Tips for Choosing a Jury Consultant

18. Judge expectations. Just as juror expectations have risen so have the expectations of most judges. They are not looking for CSI. Rather, they are looking for a much more efficient presentation of the evidence through the use of well thought through litigation graphics and even the design of ipad-compatible hyperlinked briefs. See, Hyperlinking Briefs: Be More Persuasive Using The iPad

19. The use of litigation consultants as coaches is on the rise. I know I'm biased, but if I were in-house, I would insist that my outside litigators worked with a firm like ours. With so much at stake and so few trials occuring, getting a third-party view of a case has enormous ROI in a big-ticket case. See, 25 Things In-House Counsel Should Insist Outside Litigation Counsel Do

20. Great litigation consulting firms endure, adapt and grow. Our firm was founded as an animation for lawyers firm, then it became a graphics for lawyers firm, then a litigation consulting firm (as far as I know we coined the use of that term in 1998), then a trial technology and litigation graphics firm, then a jury consulting and litigation graphics firm, and now our work advising in-house counsel about how to get great results from outside litigation counsel is taking A2L into new areas still. We'll keep adapting and growing, and I hope you'll join us in that effort. 

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Tags: Trial Graphics, Trial Technicians, Litigation Graphics, Jury Consulting, Litigation Consulting, Trial Consulting, Hot Seat Operators, Trial Technology, iPad, Jury Consultants, Voir Dire, Storytelling, PowerPoint, Persuasive Graphics, CLE, Persuasion

Hyperlinking Briefs: Be More Persuasive Using The iPad

Posted by Ryan Flax on Thu, Jul 19, 2012 @ 06:02 AM

Ryan H. Flax
(Former) Managing Director, Litigation Consulting

I recently participated in a CLE presentation to the chief appellate counsels of the Attorney General offices of each state in the U.S. (and a few U.S. territories) and got a big surprise.

Hyperlinking Briefs ipad ebriefs 1
I was there to discuss the virtues of hyperlinking briefs (aka e-briefing), a subject well covered by other A2L blog posts, but specifically focusing on designing for the iPad (and other tablets).  My co-panelist preceding me in presenting actually called several judges on the phone live to ask them what technology they used when reading briefs.  To my astonishment, every one of them uses an iPad to read briefs!

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I knew it was common, but I had no idea it was THAT common.  What a segue to my talk – I couldn’t have planned it better!  Suddenly, without me having to even try, every lawyer in the room was convinced of the importance of what I was about to say.

Hyperlinking Briefs e briefs ipad 2

My main points were that hyperlinked briefs/e-briefs (some even call them ibriefs) are a super persuasion tool and are a “simple” step beyond the typically court-required electronic filing for briefs and that it’s possible to design an e-brief to be specifically compatible with iPad (and other tablets) use.  Doing so provides a streamlined and convenient way for you to present your arguments to the court and also allows your writing style to shine through because the reader need not put your brief down to peruse the evidence and law you’ve cited.

It’s also possible to style your writing and brief presentation to be designed with an electronic-media-reading audience in mind. Attorney Robert B. Dubose commented on this subject [PDF], "The most important lesson . . . is that screen readers usually do not read thoroughly. . .  [A]lmost none of the readers read all of the words on the screen. When words are located toward the end of a paragraph, further down the page, or further to the right, they are less likely to be read."

list of courts prefer ebrief ipad hyperlinking hyperlinked

Beyond being a terrific convenience for the court, having hyperlinked e-briefs prepared is a major convenience for you as a litigator.  Imagine you’re in trial or a hearing and the subject matter of your hyperlinked brief becomes a contentious situation, e.g., you’ve filed a motion to preclude the opposing expert from straying from his report and he’s doing just that on the stand.  Now you can object and approach the bench with your iPad loaded with your motion that is hyperlinked to the expert’s report, which is also hyperlinked to its own exhibits.  Your objection will stand a far better chance of being sustained, and quickly, if you can show the judge exactly what the expert did and did not say in his report (instantly).

The bottom line is: because the courts’ usage of tablets is so common, if you’re not filing iPad-focused hyperlinked briefs, you’re leaving a persuasive tool in the shed.  You can find a sample of such an e-brief here http://www.a2lc.com/download-sample-ebrief/

Materials Related to Hyperlinking Briefs on A2L Consulting's Site:

How to hyperlink a brief?

How can I learn more about A2L's ebriefing services?

Who produced one of the first iPad compatible hyperlinked briefs?

What is new with ebriefs?


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Tags: e-Briefs, Courtroom Presentations, Litigation Technology, Trial Technology, iPad, Judges

The iPad Friendly Courtroom - The View of a Seasoned Trial Technician

Posted by Daniel Carey on Mon, Oct 24, 2011 @ 10:18 AM

ipad courtroom litigationby Daniel Carey, Senior Trial Technician, A2L Consulting

I'm in Chicago and halfway through a one-month arbitration. Seated across from me is opposing counsel. Steve Jobs would have been proud.

In the conference room where the arbitration is being held, four out of five attorneys are using iPads, propped in both landscape and portrait, all with Bluetooth keyboards. A Bluetooth keyboard is a wireless keyboard, either similar to a normal wireless keyboard or a pocket-size device that projects a full-size keyboard through infrared technology onto any flat surface.

In my last case, in Fairfax, Va., our counsel placed his iPad upon the ELMO (a device normally used to digitally project hard copy documents). The judge asked on the record, "Do you have an app for that?"

There is an app for nearly everything these days. The world has changed, and so has my work as a trial technician.

As you probably know, a trial technician (sometimes called trial consultant, trial tech or hot-seat operator) goes from trial to trial (or arbitration or hearing) providing litigation support services to the trial team. Specifically, I am normally responsible for:
  • building the exhibit and document database prior to trial;
  • cutting deposition clips and syncing them with a transcript;
  • working with counsel to prep witnesses to work with an electronic presentation;
  • setting up the war room and courtroom with electronics;
  • working to finalize the documentary and demonstrative presentations;
  • running the electronics in the courtroom so that any piece of evidence is accessible instantly;
  • making on-the-fly demonstratives to be used with a witness on cross;
  • running the demonstrative and documentary evidence presentation;
All of these tasks ordinarily need to be done on little sleep, and in the trial technician profession, we are not allowed to show stress – ever. In fact, our jobs as trial technicians are to absorb stress.

The same is true for technological change in our business. It is inevitable, and it is something that we must absorb.  The iPad is bringing rapid change just as PowerPoint once did.  It will not be long before jurors are given iPads to use throughout trial (Facebook-disabled, of course).

As Peter Summerill, a Utah attorney and author of the MacLitigator blog, has written, “At trial, the iPad really shines. Trial technology should be transparent. This means that it should not appear to the jury as (1) overly flashy; or, (2) a complete headache and a distraction to the attorney. Apple has created a product which facilitates presentation of evidence without getting in the way and does so in a completely unassuming fashion.”

Over the last year our technology team has pioneered ways to publish ebriefs on an iPad and to view all case documents and proposed demonstrative exhibits via an iPad app. Now I am seeing iPads spread quickly into courtrooms and arbitration rooms around the country.  It is an exciting time, and it is a great time to be a trial technician and a great time to try cases.

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Tags: Trial Technicians, Trial Consultants, Trial Presentation, Courtroom Presentations, Litigation Technology, Trial Consulting, Hot Seat Operators, Trial Technology, iPad, Arbitration/Mediation

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


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

dr laurie kuslansky jury consultant a2l consulting

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

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