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The Litigation Consulting Report

NITA Experts Agree: Jurors Want Lawyers to Show, Not Tell

Posted by Tony Klapper on Thu, Feb 2, 2017 @ 04:43 PM

bored-jury-show-dont-tell-litigation-graphics.jpgby Tony Klapper
Managing Director, Litigation Consulting
A2L Consulting

We have written many times about the fact that scientific studies have shown that nonlawyers (who are the vast majority of jurors) tend to be visual learners, and tend not to be auditory learners or kinesthetic learners –people who learn by experiencing. Lawyers (who are the ones who present facts and tell stories to jurors) tend not to be visual learners and are often drawn from the ranks of auditory or kinesthetic learners.

Of course, this can present an intrinsic problem that we have discussed before. If most lawyers like to tell but not show, and our audience, the jury, prefers to be shown something and not to be told, we may completely fail to connect with our audience.

It’s not just psychologists and other students of human behavior who say so; it’s also people who devote full time to understanding trial advocacy. The National Institute of Trial Advocacy (NITA) is a fantastic organization that represents the “gold standard” of trial advocacy. In addition to putting on outstanding CLE programs for newbie and experienced litigators, NITA also publishes many great books from scholars who have thought long and hard about advocacy.

In a famous NITA publication, Modern Trial Advocacy, author Steven Lubet connects the obvious aspects of our daily lives with what we should be doing in the courtroom. He writes: “We are used to receiving our visual information from a screen . . . Why would any trial lawyer not want to provide jurors with the same graphic quality and medium that they experience in most other aspects of their lives?” Flip charts are fine, but carefully crafted litigation graphics might be better.

Another example comes from an ABA-published book recommended by NITA speakers and written by Steven Easton called, How to Win Jury Trials: Building Credibility with Judges and Jurors. Easton says something that may be obvious but still needs to be stated clearly. He writes, “We live in a picture-based society that is dominated not by words, but by television sets, video cameras, movie screens, computers and photo albums.” His implicit message? Don’t just tell, SHOW! It’s even more true now that so many people get their news from Facebook and turn to Instagram every day for photos. 

Finally, there is this NITA-recommended example from a well-regarded trial advocacy scholar, Thomas Mauet, and his classic book, Trial Techniques: “Studies show that learning and retention are significantly better if information is communicated visually.” No question about it.

So we need go no further than NITA publications or those recommended by NITA, which for 40 years have helped countless lawyers understand how to try a case simply by doing it in simulated fashion. NITA and its writers and thinkers, top trial lawyers all, agree that showing rather than telling is the way to go.

Other A2L Consulting free articles and free learning resources about litigation graphics, jury psychology, trial advocacy, storytelling and demonstrative evidence include:

persuasive storytelling for litigators trial webinar free

Tags: Trial Graphics, Litigation Graphics, Jury Consulting, Demonstrative Evidence, Juries, Psychology, Storytelling, Persuasion

Three Top Trial Lawyers Tell Us Why Storytelling Is So Important

Posted by Ken Lopez on Tue, Jan 17, 2017 @ 09:53 AM

storytelling-trial-lawyers-interviewsby Ken Lopez
Founder/CEO
A2L Consulting

We recently had the opportunity to interview three top trial lawyers. We asked them for their views about the practice of law and about what really works at trial.

Collectively, more than 100 years of wisdom are speaking in these interviews. I couldn't agree more with these trial lawyers’ positions, and over the coming weeks, we will share some of these interviews, edited for clear and quick messages and understanding.

These three lawyers, Patrick Coyne, Rob Cary, and Bobby Burchfield, are at the top of their field. Let's hear what they have to say about storytelling at trial.

Finnegan partner Patrick Coyne, an intellectual property litigator, said: “I think a lot of lawyers approach IP cases with the idea that all I have to do is convince them that I’m right. Wrong. People make their decisions based on their values and beliefs. What the story does is give the jurors a narrative that you can tie in to their values and beliefs, and they can then fill in the gaps themselves. It makes sense to them based on their perspective.”

Rob Cary, a litigation partner at Williams & Connolly, said, “Being a litigator is about storytelling, making a narrative that makes sense and that is credible and reasonable. So much of what is taught in law school is so complicated and so nuanced that it inhibits good storytelling. So I think all lawyers when they get out there, and especially if they practice before jurors, need to be good storytellers. It is crucial to stick to the truth, and of course you need to be able to show as well as to tell.”

Said Bobby Burchfield, a litigation partner at King & Spalding, “I think of a trial in terms of putting together a comprehensible and comprehensive story in terms of what I can get people to remember and what I can get people to believe. That’s when you really mature as a lawyer, when you understand it really that is the narrative that decides the case and not whether you think you’re right.”

As is clear from the interviews with these top trial lawyers, building a narrative is essential to the consulting work that A2L does, because developing a persuasive narrative is essential in the modern trial. All too often it's overlooked or only considered at the eleventh hour.

We've written about storytelling extensively in articles like 5 Essential Elements of Storytelling and PersuasionStorytelling Proven to be Scientifically More Persuasive, $300 Million of Litigation Consulting and Storytelling Validation, and Winning BEFORE Trial - Part 3 - Storytelling for Lawyers. And we've even created a compendium-style book of articles related to storytelling - it's a free download.

Finally, if you happen to miss last week’s A2L Consulting storytelling webinar delivered by A2L's Managing Director of Litigation Consulting, Tony Klapper, and attended by nearly 500 of your peers, you can now watch a recorded version here.

persuasive storytelling for litigators trial webinar free

Tags: Trial Graphics, Litigation Graphics, Trial Consulting, Juries, Psychology, Storytelling

How to Be a Great Expert Witness (Part 3)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

expert witness trial testimony ebook a2l ims

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

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

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

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

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

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

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

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

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

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

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

A2L Consulting Voir Dire Consultants Handbook

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

5 Key Lessons You Can Learn From Mock Juries

Posted by Katie Bagwill on Wed, Nov 30, 2016 @ 01:32 PM

mock-jury-focus-group-mock-trial-jury-consultants.jpgby Katie Bagwill
A2L Consulting

Watching a mock jury deliberate is a lot like watching Dr. Phil; there is a lot of arguing, and most of the “facts” end up skewed. Nevertheless, a mock jury’s conclusions and how they reach them are essential to any lawyer who wants to understand the weaknesses of his or her case. Here are some of my takeaways from observing this fascinating exercise recently.

  1. Be clear. If a point or idea you want to instill in the jury isn’t clarified enough, you will see it warped and interpreted wildly during the deliberations. During each mock presentation that I saw, the amount of attention paid and the volume of notes taken varied, but one constant seemed to be apparent: jurors want to feel as if they have all the information. Even if they don’t, once they have a firm opinion, they will use any of the “facts” they have to defend it. Naturally you want these facts to be in your favor, but for the sake of this exercise it is actually more beneficial to you for the stacks to be weighted against you. In order to improve, you need to know how you could lose.
  1. Be passionate but humble. It is important for the jury to feel empathetic toward your client, and for that to happen they need to connect with you. While presenting your case, you want to appear confident and informed without coming off as arrogant. Persuasion is all about presentation. One of the most important notes that our mock jurors made about one of our presenters was that he seemed “smug,” which made him seem sneaky, and it spiraled from there.
  1. Honesty is the best policy for your mock juries – by far. An important factor for an experiment, the mock trial, to be generalizable to the greater population, the entire jury pool, is that participants be honest in their answers. In our exercise, we had remote devices that each participant used to answer our questions, and we received feedback in real time. To set the stage of how they should answer the questions, a test question was asked, “Have you ever driven over the speed limit?” The expected answer would be “yes” across the board, assuming that all participants drive. However, in our group we had one “no” and one “not applicable.” The former had been unsure of “how serious it was” and apologized for not answering completely honestly, while the latter seemed to just be completely in denial. The idea that, “it doesn’t count because everyone else was doing it, but I was the only one caught,” is a dangerous mindset in a child and even scarier in an adult. With this experience in mind, you should remember not to put too much weight on any individual’s answer to one question, but rather look at the patterns of decision-making in the group.
  1. Ignorance is not bliss. The people who paid the least amount of attention during the presentations seemed to be the biggest talkers in the deliberation room. This would confirm the idea of the Dunning-Kruger effect, a cognitive bias in which less competent people believe they are more competent, and more competent people doubt themselves. This is a scary idea in theory, and even scarier in practice. Imagine you are being tried by a jury full of people who don’t really understand any of the facts of the case, but their “instincts” tell them you’re guilty. Unfortunately, these people don’t wear a sign around their necks professing their ignorance, and you’re just going to have to gather as much other information about their decision-making during voir dire as you can. In the exercise I observed, it was sad to see that there were a handful of participants whose bloated confidence in their opinions kept all opposing mock jurors silent for fear of being yelled into submission.
  1. Be prepared in advance. Once you’re selecting your jury or presenting your case in court, it is too late to start thinking about how you will keep the jury on your side. Using a mock jury will separate the “good” evidence in your presentation from the “bad” while you still have time to reshape your narrative.
      

Other A2L Consulting articles about mock juries, mock trials and jury consulting:

Jury Consulting Mock Trial

Tags: Trial Consultants, Jury Consulting, Mock Trial, Trial Consulting, Juries, Jury Consultants, Trial Preparation, Psychology, Persuasion

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

How to Be a Great Expert Witness (Part 1)

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

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

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

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

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

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

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

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

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

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

expert witness trial testimony ebook a2l ims

Tags: Juries, Psychology, Expert Witness

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

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

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

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

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

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

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

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

The book addresses the typical expert witness as follows:

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

Among the key topics in the book are:

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

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

 

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

5 Reasons Why Jury Consulting Is Very Important

Posted by Tony Klapper on Tue, Oct 18, 2016 @ 03:45 PM

iStock_50484796_SMALL.jpgby Tony Klapper
Managing Director, Litigation Consulting
A2L Consulting

When I was a practicing lawyer, trying high-stakes cases in the major law firm world, many of my colleagues would often cast doubt on the need for jury consultants and mock trials. They would say that as experienced trial lawyers, they already had a good feel for a jury and for the art of persuasion. In addition, lawyers would argue that very few reliable conclusions could be drawn from the attitudes and outlooks of a small number of mock jurors. Actually, this is a rather short-sighted way to approach the topic. A jury consultant can add immeasurable value to a trial team’s efforts in any number of ways. Here are five of them: 

  1. Theme development. Working with a mock jury provides invaluable research into what themes will work with the actual jury and what themes will not work. The mock jury will get a chance to hear several proposed themes for your side, as well as the way in which the opposition can be expected to rebut those themes. Interviewing the mock jurors will shed considerable light on what works for them, emotionally, and what does not.
  1. Message clarity. Many lawyers on a trial team get lost in the weeds and develop countless lines of information without any concern for whether they contribute to their side’s main narrative. It is very easy to review documents for their own sake without any consideration of why they should care about the documents. A mock trial will force all those attorneys to focus on the facts that really matter to their case and will provide the needed discipline.
  1. Development of visuals. A mock trial is a trial run for your visuals as well as for your theme development. It’s a way of “pressure-testing” the litigation graphics that your side has planned to use and seeing if they work in the real world. Ask your mock jurors whether or not the proposed visuals did enough to make the complex ideas of the case easy to understand for a nonlawyer. If they jurors are still perplexed about your case, they will tell you that in no uncertain terms. Be prepared to ditch the graphics that you have been using and to develop different ones, or to add new ones.
  1. Juror attitudes. After a mock trial, you will have a much better idea of what kinds of people are not going to be good jurors for your side. By interviewing the jurors after the mock, you will get a sense of whose world view will fit in perfectly with your message and whose view is quite the opposite to your message. You will never have a real jury that’s 100 percent on your side, but a mock trial will help you increase that percentage. Those jurors who see the world the way you do can and will be your “advocates” on the jury during deliberations.
  1. Support for your recommendations. Sometimes you as a trial consultant will have some difficulty getting your client to accept your view of the case. A mock trial can provide the support that you may need. A mock jury is another set of eyes that will evaluate your case independently and may see things the way that you do. In any case, a mock trial is a good way for everyone on your team to park their egos and listen.

Articles from A2L Consulting about jury consulting, mock trials, litigation consulting, and trial consulting: 

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Tags: Trial Graphics, Litigation Graphics, Jury Consulting, Mock Trial, Demonstrative Evidence, Juries, Jury Consultants

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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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