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The Litigation Consulting Report

The Results Are In for Best Trial Consultants

Posted by Ken Lopez on Wed, Dec 7, 2016 @ 01:17 PM

best-trial-consultants-best-of-the-legal-times-2016.jpgby Ken Lopez
A2L Consulting

I don't want this post to be purely self-congratulatory, but I do have some good news to share. I think it's relevant and useful news for litigators and litigation professionals.

A2L was just voted number one in the legal industry again. This time, it's in the category of trial consultants, in a poll conducted by the prestigious Legal Times newspaper. This accolade comes on the heels of being voted the number one jury consultant and number one litigation graphics provider in a variety of other national polls.

Here's why I think this information is helpful for our readers. Twenty years after founding A2L, when I look at our industry I see three or four firms capable of delivering truly top-class results in high-profile litigation. However, the view from the law firms seems entirely different.

If you Google any of our services like jury consulting, litigation graphics, or trial technician providers, we may very well come up first in many of these searches (for good reason), but there will be dozens if not hundreds of other providers listed for these services.

How is one expected to sort the wheat from the chaff? You can't tell from a Google search because it's obviously not a reliable indicator of who is a top services provider. You can't always tell from your colleagues either. Have they had have many excellent experiences with a provider, or just a one off -- or do they have a longstanding relationship with a provider without a reliable track record?

Well, it's exactly surveys like this one in Legal Times that provide an objective source from thousands of lawyers surveyed. And I'm proud to say that over the last five years, A2L has been consistently highly ranked in just about everywhere we've been nominated.

So if you're in the market for a litigation consulting firm like ours or if you're in the market for another service like discovery, court reporting, or even law firm and litigation financing, a guide like this one is a good source of information. These guides prepared by objective organizations like Legal Times provide a directory of high-quality providers and can save a stressed litigator or litigation paralegal considerable time identifying the very best jury consultants, the very best litigation graphics providers, the very best trial technicians, the very best trial consultants or any one of dozens of categories relevant to litigation.

Click here to download your copy of this 2016 guidebook. I hope it's helpful to you.

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Tags: Trial Graphics, Trial Technicians, Trial Consultants, Litigation Graphics, Jury Consulting, Trial Consulting, Demonstrative Evidence, Hot Seat Operators, Litigation Support, Jury Consultants, Voir Dire, Jury Selection, Awards

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

The Top 5 Litigation & Persuasion Focused Articles of Q2 & Q3 2016

Posted by Ken Lopez on Fri, Sep 30, 2016 @ 03:25 PM

iStock_79502561_SMALL.jpgby Ken Lopez
A2L Consulting

In the first quarter of 2016, A2L Consulting reported record amounts of business and web traffic. Well, those numbers have only continued to climb throughout the second and third quarters of this year. High stakes litigation is booming across the industry, although it's not heavily concentrated in any one law firm or in any one business sector. 

Every year, more than a quarter million visits are paid to A2L's blog, The Litigation Consulting Report. Each year we publish more than 100 articles focused on highly specialized areas of persuasion science, jury consulting, high-stakes litigation, and the use of litigation graphics at trial.

To help our readership find the very best articles, we publish "best of" articles like this one throughout the year. Today, I'm highlighting the five articles that you, our readers, voted the very best of the past two quarters. I think each is a fascinating read.

How top trial teams and top trial lawyers behave5. 10 Criteria that Define Great Trial Teams: Our top trial experts at A2L seek to distill the essence of trial preparation and develop a numerical way to measure its quality and predict success.

top trial team trial lawyer traits4. 50 Characteristics of Top Trial Teams: We tell our readers what the unique characteristics of the top trial teams are. Some of them are quite surprising.

Better storytelling for lawyers3.  6 Ways to Become a Better Storyteller: At A2L, we share the results of our best thinking on storytelling at trial. What are the best time-tested techniques?

SPICE persuasion tricks2.  SPICE Is the Key to Persuasion: An expert on the art of persuasion identifies the key aspects of persuading juries or anyone else, summed up in the acronym SPICE.





PowerPoint tips and tricks1. 12 Things About PowerPoint You Probably Never Knew: A litigation graphics expert shows how little-known aspects of PowerPoint, far from being dull, can help persuade when creating PowerPoint trial graphics.




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Tags: Trial Presentation, Jury Consulting, Mock Trial, Litigation Consulting, Litigation Support, Jury Consultants, Articles, Trial Preparation, Jury Selection, Opening

[Free Download] Trial Lawyer’s Guide to Jury Consulting & Mock Trials

Posted by Ken Lopez on Wed, Sep 14, 2016 @ 03:19 PM

A2L Consulting

Today, we are publishing our latest free book -- A Trial Lawyer's Guide to Jury Consulting and Mock Trials.

This free 328-page book is based on the idea that even after some decades in which jury consulting has grown and established itself as a business, many lawyers still don’t necessarily understand what jury consultants do and how valuable they can be. Many lawyers probably still harbor the old idea that a jury consultant is just someone who sits next to a lawyer and uses a “gut feeling” based on a potential juror’s occupation, body language or appearance to ask the lawyer to exclude the juror or keep the juror. If that stereotype were ever true, it’s certainly not true today. We’re about as far now from the O.J. Simpson days 20 years ago as we are from the Perry Mason days.

This book is dedicated to bridging whatever conceptual gap may remain between trial lawyers and jury consultants. It pulls together many of the lessons that jury consultants have learned, so that any lawyer who reads the book can get up to speed quickly and save herself a good deal of money and time. We have been dismayed at times at the disconnection between long-held myths held even by seasoned litigators and what the data show.  Excellent trial strategies are the product of balancing art and science, data and wisdom, confidence and humility. 

Among the topics in this book are: 14 Places Your Colleagues Are Using Persuasive Graphics That Maybe You’re Not, Is Hiring a Jury Consultant Really Worth It?, Why Do I Need a Mock Trial If There Is No Real Voir Dire, 21 Ingenious Ways to Research Your Judge, 7 Videos About Body Language Our Litigation Consultants Recommend, 15 Things Everyone Should Know About Jury Selection and 6 Good Reasons to Conduct a Mock Trial.

A good lawyer knows the law. A great lawyer knows the jury and how it works. Read this book and reflect on its contents to know more than most trial lawyers do. This book is based on hundreds of trials and years of data, not mere theory or presumption. We hope you enjoy it and share it. Please send us your feedback and let us know if you have any questions or comments, any time. If you have any questions about a case, a witness, a jury pool, a venue, strategic options or dilemmas, or think your case is unwinnable, we’re only a phone call/email away and would love to hear from you. 

Jury Consulting Mock Trial

Tags: Jury Questionnaire, Trial Graphics, Trial Consultants, Jury Consulting, Courtroom Presentations, Mock Trial, Trial Consulting, Litigation Support, Juries, Jury Consultants, Trial Preparation, Jury Selection, Psychology, Body Language, Damages, Persuasion, Cognitive Bias

The Top 6 Litigation & Persuasion Focused Articles of Q1-2016

Posted by Ken Lopez on Tue, Apr 12, 2016 @ 03:48 PM

6_top_litigation_and_persuasion_articles.jpgby Ken Lopez
A2L Consulting

The first quarter of 2016 was one of A2L Consulting busiest in our 20+ year history. Not only was business up, visits to our web site increased 10% over the first quarter of 2015, and our Litigation Consulting Report Blog reached 8,000 subscribers. These metrics suggest that the litigation industry, particularly the big-ticket litigation segment, continues to perform well.

The growth in the number our blog subscribers is truly eyeopening. Just a little more than year ago we were celebrating reaching 5,000 subscribers. I still find it completely amazing that about 200 people sign up for our award-winning litigation and persuasion-focused blog every month.

Since we launched this publication that now sees more than 250,000 visits every year, hundreds of new clients have found their way to A2L and thousands more have benefited from the information we have shared here, from free articles to free e-books to free podcasts to free webinars. Five years ago, I thought the whole idea of blogging was misguided, and boy, was I wrong.

To enhance our reader's experience, each quarter we help surface those articles have been "voted" the very best in the most recent quarter. That is, if we publish 25 articles in a three-month period, some are going to be viewed more often than others, and these are effectively voted the very best.

These six articles below were voted the very best by our readers in the first quarter of 2016.

CBP1210903.jpg6.  Millennials and Jury Psychology: Why Don't They Follow the Rules?A jury consultant analyzes the jury psychology of Millennials (born between 1981 and 1996) and focuses on this generation's distrust for authority.

CBP1030985.jpg5.  A Jury Consultant Is Called for Jury Duty: A well-known jury consultant finds herself in a Manhattan courtroom as a prospective juror and describes her experiences.

CBP1104355.jpg4.  3 Trial Preparation Red Flags That Suggest a Loss is Imminent: Some trial team behaviors during trial preparation are leading indicators for a loss at trial. Here are three that are consistent red flags.

tony-klapper-welcome-litigation-consultant-litigation-graphics.jpg3.  9 Things I've Noticed About Effective Litigation Graphics After 20 Years as a Litigator: A top litigator with 20 years of trial experience shares his views on litigation graphics today: What are the best techniques?

cuddy-presenting-win-litigator-belief.jpg2.  A Harvard Psychologist Writes About Presenting to Win: Harvard psychologist Amy Cuddy released a new book called Presence, and it is filled with a wealth of useful information for litigators about persuasion.

Screen_Shot_2016-03-23_at_10.22.12_AM.png1.  5 Things TED Talks Can Teach Us About Opening Statements: A presentation expert analyzed what makes certain TED Talks successful. The same principles -- use hand gestures! -- apply to opening statements.




opening statements toolkit ebook download a2l

Tags: Trial Presentation, Jury Consulting, Litigation Consulting, Litigation Support, Jury Consultants, Articles, Jury Selection, Opening, Body Language

Jury Selection Psychology: Beware of Sleeping Jurors – They’re Like Sleeper Cells

Posted by Laurie Kuslansky on Fri, Mar 4, 2016 @ 09:25 AM

jury selection psychology;  jurors; mock jury; jury consulting; jury studies; juries; jury psychologyby Laurie R. Kuslansky, Ph.D.
Managing Director, Jury & Trial Consulting
A2L Consulting

Invariably, despite excellent presentations at mock trials, some observers serving as mock jurors fall asleep. The typical response by clients is to ask us to wake them up, which we often do, but with limited success, as they tend to fall back asleep. The myth, debunked time and again, is that these people aren’t taking it seriously, aren’t taking it in, aren’t paying attention, and will have nothing to contribute as feedback. In fact, we have found that this is almost always contradicted by what ensues.

Contrary to what one observes with the naked eye, sleepers have heard more than you think, and certainly have taken in enough in their minds to reach a conclusion. They have fallen asleep because they are “done” and don’t feel as if they need or want more information. Perhaps they find the information boring, repetitive or superfluous, but nonetheless, once deliberations start, clients are amazed to hear what these people say and do. They speak up! They voice well-formed opinions supported by some facts. They don’t ramble and don’t stay quiet in the shadows as one might expect.

The insights of jury psychology tell us that these jurors tend to be very verbal and on point, whether friendly or hostile. At some point in the presentations, one of the parties lost them for good. Funny enough, in over 30 years, we have never heard another juror mention as a counterattack – “What do you know? You were sleeping the whole time!”

Understanding this phenomenon means you should not overlook those jurors in jury selection who seem to sleep either, because they are a few strikes away from being on your jury. They may be susceptible to a variety of cognitive biases we have discussed in prior publications.

Instead of making assumptions about them, find out, if possible, if any prospective jurors work the day shift or have any medical condition that might prevent them from staying awake and alert at trial. If they do not, but still seem sleepy, pay extra attention to how the sleepers answer other voir dire questions. Assume they will have some say in deliberations, rather than dismiss them as low risk because they will sleep. That’s a falsehood. If you take these precautions, we hope you have sweeter dreams and a sweeter reality at trial.


Other A2L Consulting articles and resources related to jury selection, voir dire, mock trials and jury consulting:

jury consulting trial consulting jury research



Tags: Jury Questionnaire, Jury Consulting, Juries, Jury Consultants, Voir Dire, Jury Selection, Psychology

Jury Research and Mock Trials During Presidential Elections

Posted by Laurie Kuslansky on Fri, Feb 26, 2016 @ 11:32 AM

jury research mock trials
by Laurie R. Kuslanksy, Ph.D.

Managing Director, Jury & Trial Consulting
A2L Consulting

The litigation arena competes with the political arena in presidential election years. Everyone including large pollsters, such as Pew Research and Quinnipiac, major networks, each political party, each candidate, and myriads of social scientists and politically-interested entities are conducting research using the same resources - i.e., your potential mock jurors and facilities.

Many services for conducting mock trials and other forms of jury research, including focus groups, online surveys, telephone surveys, ballroom studies (large format live research involving potentially hundreds of live mock jurors) and “mall intercepts” (in-person interviews) are called upon by political campaigns, pollsters and other interested parties.

Both camps need:

  1. Recruiting of research subjects
  2. Eligible adults to serve as subjects
  3. Focus facilities for space to conduct live research
  4. Online and phone survey implementers

What is the impact on people interested in conducting jury research in a Presidential election year?

Due to a finite supply and increased demand:

  1. If you want a specific date to do jury research, don’t depend on short lead time or rushes to get it. Availability is more limited than normal as there are many others in line for the same services and space. Instead, plan and prepare better instead of waiting till the last minute;

  2. Recruiters are requesting longer lead time in which to solicit mock jurors, so allow extra time to do this, including preparing in advance a list of involved people and entities with whom any affiliation or knowledge should preclude a potential mock juror from participating (“Terminants”). This can be done leisurely while other details are being hammered out, contracts await being signed, and payment is being arranged;

  3. Comparison shopping is more difficult and less effective in price negotiating. If you plan and commit to doing jury research earlier, you can avoid this loss of leverage. The closer to the date that you seek options, the less you can optimize your choice and the more you are bound by simply what is available, if anything.

  4. Survey subjects are harder to come by, especially in areas laden with caucuses or anywhere highly politically engaged.

In short, avoid coming up short by understanding that you need to plan earlier and work more efficiently in the event you may or will conduct jury research. Doing so will put you at the head of the line and save money on the bottom line.

I vote for clients enjoying strategic planning, cost effectiveness and freedom of choice. You?

Other articles related to jury research, mock trials, and jury consulting from A2L Consulting include:

jury consulting trial consulting jury research

Tags: Jury Consulting, Mock Trial, Juries, Jury Consultants, Jury Selection

Jury Selection: The Dumbest Jurors Don't Know They Are Dumb

Posted by Laurie Kuslansky on Wed, Feb 17, 2016 @ 03:24 PM

Jury Selection Dumb JurorsBy Laurie R. Kuslansky, Ph.D.
Managing Director, Jury & Trial Consulting
A2L Consulting

Ignorance, the gift that keeps taking

Ever talk to someone who dismissed valid information as if they were swatting a mosquito? Ever seen an uninformed person hear a fact, not skip a beat, and dig further into their original, ridiculous position? Do you know any bad drivers who think they’re great or subpar workers who always think they deserve a promotion and a raise? Of course you do. No names, please – but you know what I mean.

This phenomenon has been studied as a cognitive error called the Dunning-Kruger Effect. It shows that “less competent people rate their competence higher than it actually is, while more competent people humbly rate theirs lower.”  

There really is no justice.

Incompetent people overestimate their own skill, while competent people overestimate the skill of other people. Most people overestimate their social judgment and mind-reading skill, especially narcissists.

The more you know, the better you can identify gaps in your knowledge and perhaps, fill them in or seek to do so. It takes intelligence to realize (1) there are things that you know that you don’t know, and (2) that there are things you don’t even know that you don’t know. Talented, competent people tend to think it’s just normal and underestimate themselves. This is especially true for difficult tasks and is known as the “Worse-Than-Average Effect.”

Why ignorance is bliss, but hell for the rest of us.

Here is the painfully precise description by David Dunning, psychologist and named investigator of the Dunning-Kruger phenomenon:

“What’s curious is that, in many cases, incompetence does not leave people disoriented, perplexed, or cautious. Instead, the incompetent are often blessed with an inappropriate confidence, buoyed by something that feels to them like knowledge. . . . ignorance carries with it the inability to accurately assess one’s own ignorance.”


The Dunning-Kruger Effect describes the gap between one’s self-assessment and actual ability. Those with the least ability inflate their self-ratings the most. It isn’t that they haven’t been told of their failures – they just cannot recognize their incompetence or incorporate the feedback. In fact, the beauty of this bias is that the more one knows, the less confident one becomes, and vice versa. You need to know something to realize how little you know. But, for the uninformed, the sky’s the limit. You’ve met them at cocktail parties, the office, and elsewhere.

Ignorance and Jury Trials

At a cocktail party, it is annoying, but you can turn away, redirect attention to the bar or go to the restroom, but what can you do if someone experiencing the Dunning-Kruger effect is a potential juror during jury selection? When that is the case, you may hope that your evidence, the law and your persuasive skills hold some sway, when for such jurors, they don’t. Pseudo-evidence, false beliefs and unfounded opinions are their “facts.” Maybe this comes as good news to you, but for most, it does not. (More bad news? In varying subject areas, everyone at some time is subject to this flaw in thinking. Sad but true.)  

What can you do about it?

Accept that they are not going to change. It is a closed circuit that is not open to feedback. Low performers fail to see the relevance of explicit, concrete feedback critical of their performance and instead disparage the accuracy or relevance of it.

Unless nonsense helps your case -- which is unlikely, but possible -- assess prospective jurors’ education and whether they are data-seekers and information gatherers or not. For example, even based only on their jury summons information, you can consider their occupation and whether it is or is not fact-based. If you have the luxury of attaining more information through voir dire, ask: How often and where do they get news? What is the last book they read (if they read)? What programs do they watch (if any)? Would they ever consider continuing their education? Why or why not? Does their education or occupation involve fluffy stuff or “STEM” (science, technology, engineering or math) subjects? Are they more cognitive or emotional deciders? Do they think big picture or focus on critical details? What do they do in an argument when someone disagrees?

If you’re reading this, you’re an information seeker. You are definitely not ignorant and are probably a lot smarter than you think you are. You might even seek to learn more. If so, see and enjoy “The Dunning- Kruger Effect: On Being Ignorant of One’s Own Ignorance.”


Other A2L Consulting articles and resources related to jury selection, voir dire, mock trials and jury consulting:

mock jury webinar a2l kuslansky

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

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

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

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

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

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

Specifically, these biases are:

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

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

What Makes Very Smart Jurors a Risk?

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

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

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


What Makes Very Smart Experts a Risk?

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

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

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


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

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

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

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

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

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

Getting jurors who are:

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

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

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

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

If your goal is to dazzle

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

If your goal is to teach

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

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

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

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

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

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

Millennials and Jury Psychology:  Why Don’t They Follow the Rules?

Posted by Laurie Kuslansky on Tue, Feb 2, 2016 @ 08:49 AM

millennials jury psychology jury selectionby Laurie R. Kuslansky, Ph.D.
Managing Director, Jury & Trial Consulting
A2L Consulting

Baby Boomers (yeah man, those who “grew up” in the ‘60s) raised kids to buck the system. No surprise there. They raised kids to think for themselves, to be more independent and not follow rules blindly, and to distrust institutions.

The result? Millennials (born roughly between 1981-96) are the least religious generation yet. It isn’t that they started off very religious in the first place. They tended to start by being less religious than their parents, and then drop off from there.

This trend applies equally to a distrust of other nonreligious organized institutions such as the labor market, government and marriage, as well as less confidence in the press, government and churches. The study shows, in part, that the biggest shift is the rise of those, heavily represented by Millennials, who claim they do not belong to any organized faith. This isn’t a wholesale rejection of all things spiritual, just of the traditional, institutional variety of beliefs and practices.

How does this relate to litigation and jury psychology?

  1. Historically, jury research has shown that people who are dogmatically religious or are extremely pious tend to see things differently when on a jury, if they do not get exempted based on their unwillingness to judge others. They tend to put a “moral” overlay on the issues being considered, rather than apply a strictly legal standard. Hence, while the defense may pass the lower, strictly legal standard, but not the moral one, the defense may lose for the “wrong” reason. Consequently, defendants have in the past wisely questioned prospective jurors on this issue. That margin, however, is likely narrowing because of the rise of Millennials, so one should reconsider how morality may now play in litigation. If one wants to see morality used by jurors as a filter in judging actions of the defense, avoid Millennials to be safe.

  2. Many cases involve institutions, whether literally or figuratively, e.g., regulators, industry organizations, marriage, contractual agreements and many others. It has long been the practice in litigation for one party, often the plaintiff, to rely on the obligations and expectations imposed by these institutions, but for Millennials, this appeal may well fall on deaf ears. Consider whether to strike Millennials or shift your strategy away from reliance on the responsibilities and rules imposed by the respective “institution” if your jury is heavily stacked with younger jurors. Certainly, you should shade questions in voir dire, if possible, to learn prospective jurors’ beliefs about rule-following and their regard, or lack thereof, for the relevant institutions in your case, not to mention, the legal instructions.

The good (or bad) news, if you have a Millennial juror?

As long as there are older people on the jury who carry more gravitas, jurors won’t likely listen to younger, less experienced and/or less educated jurors. The sense is, “What do you know?” While Millennials may be harmful to your case by themselves, they are unlikely to be determinative. Remember that a jury is a group that interacts together, so before you waste a precious peremptory strike on a Millennial, consider whether he or she has the means, skill and personality in light of the rest of the jury to carry any real weight.

If not? As the Beatles song goes, Let It Be.

Other articles about jury psychology, jury selection, and voir dire from the jury consultants at A2L Consulting include:

A2L Consulting Voir Dire Consultants Handbook

Tags: Jury Questionnaire, Trial Consultants, Jury Consulting, Trial Consulting, Juries, Jury Consultants, Voir Dire, Jury Selection, Psychology

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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.

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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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