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The Litigation Consulting Report

Using Litigation Graphics in Bench Trials: How Different Is It From Jury Trials?

Posted by Tony Klapper on Thu, Feb 9, 2017 @ 10:25 AM

judge-litigation-graphics-bench-trial.jpgby Tony Klapper
Managing Director, Litigation Consulting
A2L Consulting

We’ve spoken here more than once about the fact that jurors, unlike most attorneys, tend to be visual learners who like to be shown, not told. The best way to show them what they need to know, as we have said, is through litigation graphics. Science has also taught us that the best way to keep a jury’s attention is by telling a story in the courtroom. These insights obviously have major implications for how trial lawyers should use the arts of persuasion in a jury trial.

What about a bench trial or an arbitration? Here, the decisionmaker is trained as an attorney. Do we toss out all that we know about jury trials and proceed in an entirely different manner?

Not at all. First, narratives are just as important in a trial before a judge as they are in a jury trial. Judges are human beings, and like all human beings, they have minds that search constantly for an organizing principle, a way to tame the vast river of information that flows to them in a trial. A narrative is the best way for them to do that. Even a brilliant judge who happens to be an aural learner, not a visual learner, needs some way to organize data. That’s where your narrative comes in. (“First this happened, then this happened, then something else happened.”) Not only does story-telling make the trial lawyer’s job’s easier by making his or her case easy to understand; it also makes the case easier to remember.

After all, judges are not computers. They come to any case with their human values, perspectives and predispositions. A narrative will help them connect the case with these values and will help them build a story in their mind, based on those values and on the information they receive at the trial.

The same is true with litigation graphics. Even someone who learns predominantly through aural or kinesthetic means can still find a chart or a timeline interesting and helpful as a way of organizing information. For example, in Markman hearings, which occur exclusively before judges, patent lawyers almost invariably present diagrams of the patent figure or blow-ups of the patent language. In hearings like these and in bench trials, a trial lawyer may sometimes need fewer litigation graphics, but that doesn’t mean that the lawyer shouldn’t use any at all.

Just as top trial firms often use mock juries to test their case on before the actual trial, they can use “mock judges” in the case of a bench trial. If their budget permits, they could find a retired judge, possibly someone who knows the judge in the case, and present their evidence before him or her.

They can ask the judge what types of evidence and themes were most convincing, and which demonstratives did or did not work. It’s another good practice in presenting a case to a judge who is the decisionmaker.

Other articles about litigation graphics in bench trials, mock bench trials, and mock testing from A2L Consulting:

persuasive storytelling for litigators trial webinar free

Tags: Markman Hearings, Trial Graphics, Litigation Graphics, Trial Presentation, Courtroom Presentations, Mock Trial, Demonstrative Evidence, Storytelling, Judges

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

Storytelling at Trial Works - But Whom Should the Story Be About?

Posted by Ken Lopez on Mon, Nov 21, 2016 @ 11:20 AM

storytelling-for-lawyers-trial-courtroom-a2l.jpgby Ken Lopez
Founder/CEO
A2L Consulting

I go to a marketing conference in Boston every year, and every year I see a handful of outstanding presentations about storytelling. One stood out for me this year that will have immediate applicability for our field.

The presenter, Amina Moreau, is a filmmaker and co-founder of Stillmotion. Her session, Scientific Secrets of Superpowerful Storytellers: Techniques to Spur Action, covered some topics that are particularly useful for trial lawyers looking to persuade audiences.

We are constantly discussing storytelling among ourselves at A2L and with our litigation-focused client base. We've published books about storytelling, conducted webinars about storytelling (a new one is going to be announced soon), and routinely conduct storytelling CLEs at top law litigation departments. Our articles about storytelling at trial are read and shared regularly. See Dan Pink, Pixar, and Storytelling for the Courtroom5 Essential Elements of Storytelling and Persuasion, and Storytelling at Trial Proven to be Scientifically More Persuasive.

Using neuroscience as a foundation, Ms. Moreau raised a question that we frequently wrestle with: Whom should we tell stories about to generate the most powerful call for action and to be as persuasive as possible? Should the story be about a team, should it be about the CEO, should it be about the victim's wife, should it be about the inventor? How do we make the story most meaningful to our audience?

After all, if the story is not meaningful, we can't connect with the audience, and if we can't connect, we can't persuade using emotions and the framework that a well-told story provides.

To illustrate her point, Ms. Moreau used an interesting example. She compared “baby Jessica” -- the child who fell in the well in 1987 and was rescued -- with 60 million undernourished and undereducated girls in Africa. She pointed out how baby Jessica generated massive donations for her college fund in just hours and how organizations around the world struggle to raise fractions of the dollars raised for baby Jessica for needy girls in Africa. This is an illustration of the identifiable victim effect, in which it is far easier for people to sympathize and to act for a specific, identifiable person rather than for vague groups of individuals.

It makes sense of course. There's a compelling narrative around baby Jessica that fits all the classic storytelling elements, whereas making a rational argument about needy children in Africa is too often emotionless talk that does not impel action.

Ms. Moreau offered several useful tips for deciding about whom a story should be told. In general, a story about an individual will outperform a story about a group. So when trying to find the right individual to use to tell a story, she says there are three crucial criteria to use. The same criteria can and should be used in selecting a person to focus on in a trial.

  1. Desire. People identify with a character who reaches a goal or conquers an obstacle. Passion to achieve the goal is what they start with, but it’s not enough. 
  1. Complexity. Complexity is what makes us believe in the character. Complexity is what sustains the connection between the viewer and the main character of your story. It's what keeps the viewer rooting for them to reach their desire.

  2. Uniqueness. People are attracted to characters who have a novel approach to tackling the challenges that the world presents.

Keep these three criteria in mind, and you will understand how to choose the character who is at the heart of your story.

Other storytelling at trial free resources, articles, books, and downloads from A2L Consulting:

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

Tags: Juries, Psychology, Storytelling, Judges, Persuasion

[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

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

Winning BEFORE Trial - Part 3 - Storytelling for Lawyers

Posted by Ryan Flax on Wed, Aug 12, 2015 @ 11:17 AM

 

storytelling-for-lawyers-1by Ryan H. Flax
(Former) Managing Director, Litigation Consulting and General Counsel
A2L Consulting

This may seem trite to a lot of lawyers, but storytelling is essential to winning trials – and that goes for mediations, arbitrations, and hearings, literally anywhere you must connect with an audience. That audience can be a jury, a judge or a mediator. Most lawyers leave law school with an understanding that to win a case, we need to identify the intersection of law and facts. We are never taught, however, about this very important final issue – the fact that we are always dealing with human beings and that the need to persuade people is paramount.

Whether it’s your story or not, a story will inevitably emerge during a trial. Mock trials and focus groups have repeatedly shown that when a jury has two camps representing the two sides of the case, each camp will have a fairly consistent story that it endorses and clings to. Consistently, we find that those stories are short, that they fit with “common sense,” that they borrow some of the salient facts from the trial, and that they are complete tales, with a beginning, a middle and an end – including what happened and what should have happened. They take only a few moments to tell, and they use plain language. Once embedded in a juror’s mind, these stories are difficult, if not impossible, to change.

Where do these stories come from? The answer is that people automatically make stories out of virtually everything they see, in order to gain a sense of control – even if it’s a false sense. Most people can’t resist making assumptions, drawing inferences, and imposing upon the facts their notions of what the facts “mean” rather than simply accepting information as is. Most of what people discuss with others is stories and gossip, not random facts.

Scientists at Princeton University looked at brain scans (fMRI) of storytellers and listeners to the stories. What they found was that the most active areas of the brains of the speakers and listeners matched up, i.e. they were in sync with each other. This synchronized activity was found in the areas of the brain that were relevant to social activity, not the areas that drive memory or the prefrontal cortex that is associated with cognitive processing. The stronger the reported connection between speakers and listeners, the more neural synchronicity was observed in the test subjects.

The extent of brain synchronicity predicted the success of the communication in this study. So connecting with your audience, in a literal sense, makes you more persuasive.

Other research using brain scans reveals other important information about effective storytelling and will help you understand better the art of persuasion. This research shows that our brains react differently based on the types of words that we hear. Information, or evidence, that was presented to the test subjects without using sensory language stimulates only the brain’s language areas (Broca’s and Wernicke’s areas), and is interpreted by jurors simply as noise. With this type of language, the task for the listener is to simply remember words and more words. That is not enjoyable and not interesting for the audience, which makes keeping them engaged and persuading them much more difficult.

By incorporating metaphors and sensory language, you engage your audience’s brain. By using sensory words such as “lavender” or “cinnamon,” or movement words like “running” or “swimming,” you activate the part of the listener’s brain that would be active were they actually having that experience. You can thus engage an audience – such as a judge, jury or mediator – by inducing their brains to operate more as a participant than as an observer.

What else do stories do for jurors? They interrupt daydreaming and help jurors organize information. They make the intake of information enjoyable. Jurors, and even judges, can get bored otherwise and can daydream during trial when they should remain engaged.

In our next post, we will look at the rules of thumb for developing an effective trial story.  Click here to be notified of subsequent articles.

Other articles and resources related to trial preparation, storytelling for lawyers and persuasion from A2L Consulting:

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

Tags: Litigation Consulting, Juries, Science, Psychology, Storytelling, Judges, Persuasion

7 Award-Winning LitigationWorld Articles

Posted by Ken Lopez on Wed, May 27, 2015 @ 01:07 PM

 

litigationworld-450by Ken Lopez
Founder/CEO
A2L Consulting

We just learned that a blog post that we wrote recently was named the “Pick of the Week” by LitigationWorld, a popular email newsletter for litigators, litigation support professionals, and corporate counsel who manage litigation. This is the seventh A2L Consulting post since 2011 to be so honored.
 
For each issue of LitigationWorld, the editorial team there reviews hundreds of articles published during the previous week. From these articles, one is selected as LitigationWorld Pick of the Week. The article is selected because the editors there believe that it is a must-read for anyone interested in litigation.
 
The article that won this honor was entitled “12 Reasons Litigation Graphics are More Complicated Than You Think.”
 
Many awards that are given out these days are meaningless because marketing can play a role in determining who wins. By contrast, those who win the LitigationWorld Pick of the Week award don't even know they're in the running and cannot influence the editorial team. That’s what makes this award meaningful to us.
 
The winning article, not surprisingly, lists 12 reasons that litigation graphics are more complicated than one might think. Among them: Litigation graphics must be more than merely electronic versions of printed documents; real litigation graphics experts are storytelling experts as well; and litigation graphics experts understand the psychology of a jury and how a litigator can use psychology to his or her advantage.
 
This prize-winning post is only one example. Our blog is full of interesting and useful thoughts about trials, juries and litigation. The American Bar Association recently named A2L's Litigation Consulting Report blog one of the eight best in the litigation industry. Below is a list of the seven articles that LitigationWorld has named Pick of the Week.

  1. 21 Ingenious Ways to Research Your Judge

  2. 12 Reasons Litigation Graphics are More Complicated Than You Think

  3. 16 PowerPoint Litigation Graphics You Won't Believe Are PowerPoint

  4. 10 Things Litigators Can Learn From Newscasters

  5. 10 Ways to Spot Your Jury Foreman

  6. 8 Reasons to be Optimistic About the Litigation Economy

  7. Your Trial Presentation Must Answer: Why Are You Telling Me That?

We're hard at work on writing new articles, and I'm very interested in hearing from you how we can be even better. To that end, if you have questions/ideas about The Litigation Consulting Report blog or about mock trials, litigation graphics for trial/ADR, trial technology/hot-seat operators or litigation advisory services for in-house counsel? Please comment below or write to Alex Brown at brown@A2LC.com. If you would like to subscribe or change how often you are notified about new blog articles articles? Click here.

Other articles that list our top blog posts, discuss A2L accolades or provide a useful directory of how to access information close to your interests include:

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Tags: Economics, Trial Graphics, Litigation Graphics, Trial Presentation, Demonstrative Evidence, Juries, Judges, Awards

3 Articles Discussing What Jurors Really Think About You

Posted by Ken Lopez on Wed, Jul 16, 2014 @ 09:25 AM

 

what do jurors think about lawyersby Ken Lopez
Founder/CEO
A2L Consulting

I enjoy reading any article about juror feedback. However, finding such articles is pretty tough. Few authors have the time, budget or access to jurors to ask them what they think about the experience of trial and the lawyers involved.

As a litigation consultant, I have had the privilege of seeing many trials and mock trials over the past 20 years. In that time, I've observed certain characteristics that all mock juries possess. My colleague, Dr. Laurie Kuslansky, wrote a great article about commonalities among mock juries that is one of the best I have seen on the subject. Still, while we litigation consultants spend quite a bit of time with juries and mock juries, there is real value in hearing what others, such as judges and law professors have observed through study.

Below are three articles that offer meaningful insight into the minds of jurors. I think by reviewing these articles, any litigator will be better prepared for trial.

1. What Jurors Think About Attorneys: What if a judge collected data over a ten-year period from more than 500 jurors and compiled it in a meaningful way? Well, that is exactly what one Minnesota state court judge did, and the recently published results are fascinating.

Eighty-nine percent of this judge's jury trials were criminal. His goal in surveying his juries was to collect data about many aspects of the trial from the court building to the evidence displayed to the performance of counsel. The jurors were mostly from a rural part of the state.

You should read Judge Hoolihan's article. I found some of the interesting takeaways to be these:

  • Jurors tended to rate attorneys highest when they represented the prevailing party. From the data, I can't tell whether jurors tended to side with the attorneys that they liked best, or whether the high ratings were the result of a form of the Ben Franklin effect where jurors tended to like the people they sided with more, simply because they sided with them.
     
  • Jurors rated defense lawyers lower than plaintiff-side lawyers who were mostly prosecutors. Judge Hoolihan wonders whether this results from an anti-defense lawyer bias generated by Hollywood, but I would ask whether this is because the government generally has an advantage. I suspect it is mostly the latter.
     
  • Jurors tended to rate defense attorneys much lower when they lost a case compared to the ratings of plaintiff side attorneys when they lost.
     
  • Jurors wanted to see and hear more evidence.

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2. Trial Presentation Too Slick? Here's Why You Can Stop Worrying: I wrote this article in 2011, and the real focus of the article is on a trial consultant who smartly took the time to interview a jury post-trial and record it. The results are fascinating, especially when you consider that this was a rural Arkansas jury. The jurors shared that:

  • Jurors expect the use of technology.

  • Jurors expect the use of PowerPoint.
     
  • Video depositions synced with the transcript were very helpful.
     

3. What Jurors Think About Trials [PDF]: In this book chapter from a law professor at Northwestern University Law School, the surprisingly limited scientific study of jury trials is well-summarized. Here are some interesting findings:

  • About 40 percent of all jurors initially want to get out of jury duty. When they were done with jury service though, more than 60 percent thought highly of jury service.

  •  40 percent of jurors thought jury selection lasted too long.

  • Jurors "are active information processors who bring expectations and preconceptions with them to the jury box, filling in missing blanks and using their prior knowledge about the world to draw inferences from the evidence they receive at trial."

  • 51 percent of jurors wonder why certain people mentioned at trial did not testify. 27 percent of jurors held that very lack of testimony against the side that did not call the witness.

  • 83 percent of jurors in civil trials said that an exhibit helped them reach a decision. 
     
  • 30 percent of civil trial jurors say that the verdict ultimately reached was not the majority viewpoint when deliberations started.
I find many of these statistics fascinating and helpful, and I hope you do too. If you are aware of similar articles that discuss the scientific study of jurors, I would encourage you to post them in the comments section below.

Here are more than 80 additional articles and free downloadable books on A2L Consulting's site related to how juries think and behave:

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Tags: Trial Consultants, Jury Consulting, Trial Consulting, Trial Technology, Juries, Jury Selection, Judges, Depositions

Walking the Line: Don't Coach Your Experts (Re: Apple v. Samsung)

Posted by Ryan Flax on Tue, Apr 29, 2014 @ 01:49 PM

 

bdo not coach expert witnesses apple samsungy Ryan H. Flax, Esq.
(Former) Managing Director, Litigation Consulting
A2L Consulting

Expert witnesses are a key component of almost every big-litigation. As litigators, we rely on the evidence developed by our expert witnesses, presented as their testimony opinions based on the facts, to show jurors or the court why our client should prevail. Well, it’s not as easy to do this as you think, because you can’t control your experts and you also can’t leave it up to them.

In federal court, experts are bound by Rule of Civil Procedure 26 to disclose the subject matter upon which they’ll testify in court. As litigators, it’s our job to make sure (1) the expert report is accurate and comprehensive to the needed expert testimony that serves the client’s litigation needs and (2) that the expert is well prepared to be deposed and then testify on the subject matter of that report. Even very experienced expert witnesses need intense help preparing for depositions and trial testimony.  Inexperienced expert witnesses require a ground-up education.

So what happens if that report, as it was served to opposing counsel when it was scheduled to be, doesn’t jive with what you need that expert to say in court? We have just received a free lesson in what not to do from Judge Lucy Koh in the current edition of the Apply v. Samsung patent litigation currently underway in the Northern District of California.

Just to lay a bit of foundation for this lesson – the case involves several patents of each company who accused each other of infringement relating to smartphone technology. One of the Apple patents covers the swipe-to-unlock feature of the iPhone, another covers a feature called “quick links” found in Apple’s devices. This later patent (No. 5,946,647 shown below) has just now been returned to the Samsung litigation based upon an order by the U.S. Court of Appeals for the Federal Circuit, which in an opinion last Friday (April 25, 2014) revived the patent by affirming a claim construction by Judge Richard A. Posner from a different case by Apple against Motorola – Judge Posner’s claim construction contrasted with that of Judge Luch Koh in the Samsung litigation. 

Confused? So was the judge and so were the parties and so were their experts.

quick links patent apple samsung“Quick links” refers to a software function that recognizes text and other things viewable on a smartphone, e.g., a phone number, an email address, a date, or a name, and provides an automatic link to other relevant functions in the phone, like dialing that phone number, drafting an email, adding a calendar event, or adding a contact. Earlier in the Samsung trial, Apple argued that the Motorola-related case information be excluded – Judge Koh agreed and, so, neither Apple nor Samsung presented evidence relating to the Judge Posner claim construction of the ’647 patent (a key to the divergent construction seems to be that a separate thing, called an “analyzer server,” is required as a go-between for the recognizable link and the related functionality).

With all the apparent confusion over the correct claim construction at this point, you could almost forgive Samsung’s expert for using an ultimately incorrect claim construction of the ’647 patent’s claims in his expert report (he followed the one Judge Koh made giving claim terms their plain and ordinary meaning, but he could have given alternate opinions based on the divergent constructions of Judge Posner).  What he cannot be allowed to do, and what Samsung’s counsel cannot be allowed to encourage, is to testify in the current case on an opinion not expressed in his expert report on the patent (and, apparently also not introduced in deposition testimony, which could have arguably opened the door to the issue).

expert witness apple samsung coached preparedAfter Samsung’s patent/technology expert, Kevin Jaffay, testified, “I have been using this [Posner’s] construction since the first day I worked on this case,” a “visibly angry” Judge Koh said, “[i]n his report, he does not adopt Posner’s construction and then he gets up on the stand and says he adopted it from day one.  I’m going to strike what he said.  I think he was primed to say that and that’s improper.”  (reported by Law360, B.Winegarner (subscription required)).

Not only did Judge Koh strike Samsung’s expert’s testimony on non-infringement of the ’647 patent, she didn’t refund Samsung’s time on the chess clock at trial, which may be a crippling one-two punch for an already-behind-the-8-ball-Samsung. Quite a sanction by an angry judge.

The take-home lesson from this series of events is multifold. First, experts are bound by their expert reports, but that doesn’t mean their expert reports must be limited in any specific way.  As counsel, when we work with our experts to outline the issues to be addressed in reports and then, potentially, testified to at trial, we should be strategic and tactical and keep our experts on track, but be open-minded, flexible, and do our best to plan for every trial contingency so we can include “outs” in the expert reports. Here, it appears that Samsung’s expert suggested that he had considered Judge Posner’s claim construction all along, but his expert’s report did not bear that out in any useful way and it made an enemy of the already-sensitive judge (about her claim construction).

Second, we all know that as counsel it’s our job to get our experts totally ready to competently and persuasively testify at trial. We need to spend hours and days and weeks doing this witness preparation and cover all bases of evidence and all contingencies for trial developments and cross examination. However, what we cannot do is put words in our expert’s mouth. This is the line we must walk. It is the expert’s job to present his own opinions on the facts under the law as we explain it to him. It is not the expert’s job to be our and/or our client’s mouthpiece.  The lines are clearer in other countries, such as the U.K., but the principle remains true that expert witnesses are akin to servants of the court and the legal system – they are not advocates, that’s our job as counsel. Make sure you stay on the right side of the line by preparing, not coaching your expert witnesses.

Other articles related to expert witnesses and the Apple v. Samsung litigation from A2L Consulting:

Integrating Expert Evidence and Argument in Complex Cases Webinar

Tags: Patent Litigation, Trial Preparation, Expert Witness, Judges, Claim Construction, Witness Preparation, Apple v. Samsung

5 Settlement Scenarios Where Litigation Graphics Create Leverage

Posted by Ken Lopez on Fri, Mar 7, 2014 @ 10:41 AM


settlement litigation graphicsby Ken Lopez
Founder/CEO
A2L Consulting

My colleague Ryan Flax published an article earlier this week about six key triggering events that warrant at least a call to your litigation consultant of choice. One of those triggers was settlement, and that got me thinking. In the hundreds of litigation-focused articles we've published here over the last several years, we haven't talked about settlement very much. Looking back, that seems silly since nearly all cases settle.

Over the past decades as a litigation consultant, I've had the opportunity to participate in a variety of settlements. Most frequently, we are engaged to assist in the preparation of litigation graphics for a mediation that is essentially a structured settlement process.

If you think of settlement as mediation, then how would you prepare? In mediation, I think most lawyers would prepare an aggressive presentation that helps persuade your fact finder. I think you should do the same for settlement talks.

In federal court, a magistrate judge will often try to force a settlement during pretrial conferences. Usually this involves the judge putting the parties in separate rooms, running back-and-forth between rooms, and telling each party that they're going to lose horribly. It's an effective tactic.

At this point, the judge is usually working from a short summary of the facts of the case and is by no means an expert in the facts. The judge is attempting to take a very quick look at the facts, and attempting to force both sides’ hands using fear as a motivator.

What if instead you were able to open up a laptop (or the same in paper form) and say, “Your Honor, if you'll allow me a three minutes, I'll show you six things that may change the way you are looking at this case.” I think most judges would say yes.

The same is true in direct settlement negotiations. Again, if you have a brief and powerful presentation available to you, you might be able to create enough worry in the other side’s mind to move them somewhat off their position. It is well known that fear of loss is a 10x greater motivator than hope of gain, so use it to your advantage.

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

So here are five areas where you can use litigation graphics meaningfully, powerfully, and successfully during settlement talks.

1. During actual mediation. Here there are usually no federal rules of evidence. It's a good time to be aggressive with your litigation graphics. 

2. During settlement talks in a judge’s chambers. Whether you open a laptop to a PowerPoint or whether you have tabletop-size charts to share, using visuals will show that you're serious, will allow a judge to get her arms around your case quickly, and will provide ammunition to force settlement from the other side closer to your number.

3. During direct settlement talks. Using graphics during settlement talks will help put some fear into the opposition and may induce opposing counsel to change their long-held beliefs about the case.

4. During an email exchange settlement. Some settlements happen entirely over email. Sharing a handful of graphics in an email is simple and shows you're prepared and ready for trial. It does not take many graphics to get your point across.

5. During mock settlement discussions. Not all settlement discussions are created equal. In some cases the dollars at stake are such a big deal that mock settlement discussions or mock mediations are conducted. This is an excellent time to test your litigation graphics to see how they fly with your mock opponents or mock mediators.

Don't overlook litigation graphics in your settlement talks. They are an essential weapon in the arsenal of the well-prepared trial lawyer.

Other A2L articles related to litigation graphics use in arbitration/mediation or at trial generally:

  

  complex civil litigation ebook free

 

 

Tags: Trial Graphics, Litigation Graphics, Courtroom Presentations, Demonstrative Evidence, Arbitration/Mediation, Judges, Settlement

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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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