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The Litigation Consulting Report

One Voir Dire Must Do and One Voir Dire Must Never Do

Posted by Laurie Kuslansky on Tue, Jun 16, 2015 @ 03:07 PM

 

voir-dire-must-do-dont-doby Laurie R. Kuslansky, Ph.D.
Managing Director, Jury Consulting
A2L Consulting

You’re defending an alleged polluter. You ask prospective jurors, “Who here thinks there is too much government regulation of business?”

You represent an individual hurt in a workplace accident. You ask, “Has anyone ever filed a worker’s compensation claim?”

Your client is an employer accused of gender discrimination. You ask, “Please raise your hand if you believe that workers sometimes claim wrongful treatment when they simply don’t get what they want.”

Why would you do that, if the only answers you can get to these questions are ones that reveal potential allies? That is your adversary’s job, not yours. Your job is to help your supporters fly under the radar so that they can remain on the jury. If your question is likely to reveal nothing useful to you -- or worse, will point out who your friends are -- don’t use that question.

In other words: What is the single most important “Never Do” in voir dire? Clearly, it is to never ask questions that reveal who your fans are.

Instead, here is a voir dire Must Do: Invite your enemies to show themselves and make it as easy as possible for them to do so. 

For example, defending the toxic tort, ask “Some people feel that there isn’t enough government regulation because companies cannot be trusted to mind the environment on their own. Can anyone here relate to that at all? Explain.”

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Or as the personal injury plaintiff’s counsel, you’d be better off asking: “Some people favor capping damages, meaning putting a limit on the amount of money to pay in lawsuits, even if the plaintiff – meaning the injured party, such as my client – proves their case. Can you raise your hand if that makes some sense to you or you feel that way even a little bit?

For the employment defense, you might ask: “Many people are unhappy with their jobs or have had bad experiences in the workplace. Some feel they’ve been treated badly or unfairly at their job in some way. Can you think of any examples of how that may apply to you or someone close to you?”

As the song says, “Don’t believe me – just watch!” When someone says they can be fair, it is meaningless. “Fair” means using their yardstick. Instead, watch and listen to what they actually believe by asking meaningful and cautiously phrased questions. Assume that what they believe cannot be put aside, certainly not based on the transient request of a stranger to whom they have no allegiance and from whom they reap no benefit. Their beliefs can only stay where they live ... on their minds and in their decisions in deliberations. Better to reveal what they are before it’s too late.

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

A2L Consulting Voir Dire Consultants Handbook

Tags: Jury Consulting, Juries, Jury Consultants, Environmental Litigation, Voir Dire, Jury Selection, Labor and Employment

Implications for 2015 Workplace Litigation, Voir Dire and Trial

Posted by Laurie Kuslansky on Mon, Jan 12, 2015 @ 12:22 PM

 

workplace-litigation-a2l-consulting-jury-consultantsby Laurie R. Kuslansky, Ph.D.
Managing Director, Jury & Trial Consulting
A2L Consulting

Q:  Per Glass Door’s 10 Biggest Job Likes and Gripes of Employees for year-end 2014,1 what do you think topped the lists of likes vs. gripes: co-workers or pay?

A:  Good vs. annoying co-workers topped the lists; good vs. low pay trailed in slot 5:

10 Biggest Job Likes of Employees
1. Great Co-workers
2. Work Environment
3. Good Benefits
4. Interesting Work
5. Good Pay
6. Work-Life Balance 
7. Flexible Work Schedule
8. Company Culture
9. Fast-Paced Environment
10. Smart People
 
10 Biggest Job Gripes of Employees
1. Annoying Co-workers
2. Poor Work-Life Balance
3. Poor Work Environment
4. Long hours
5. Low Pay
6. Management
7. Inflexible Work Schedule
7. Few Career Opportunities
8. Poor Company Culture
9. Few Training Opportunities
10. Little Fun

 

What are the implications for litigation involving the workplace and possible ways to avoid it? 

Can’t we all just get along?  Maybe not.

Employers may want to spend less time worrying about pay increases and pay more attention to the company their employees keep at their company. Perhaps you know that some people just don’t get along. If there isn’t a bad worker, just a personality conflict, forcing them to work it out may have been conventional wisdom, but offering alternatives may make more sense;

mock jury webinar a2l kuslansky  Who’s in the jury pool?  Everyone.

People who . . . 

  • . . . never worked outside the home
o   Students
o   Disabled
o   Homemakers
o   Stay-at-home parents
o   Dependent on others
  • . . . used to work outside the home, but don’t any more
o   Retired
o   Disabled
o   Homemakers
o   Stay-at-home parents
o   Unemployed because fired/RIF’d/quit
o   Dependent on others
  • . . . currently work full-time or part-time

Each type of potential juror has variations and potential baggage about the workplace that they bring to workplace litigation – either based on good or bad personal and direct experience or the lack of it (based merely on jaundiced or idealized beliefs). These beliefs color prospective jurors’ decision-making in trials that call upon their judgment of the workplace, the workers, the management, and events that took place there, allegedly. 

Work with Co-Worker Attitudes at Trial

Knowing how much of a premium people place on co-workers to make or break their satisfaction at work is something likely to be overlooked at trial. But knowing how prominent it is suggests exploring it. How? Remember that voir dire is for revealing detractors, not fans, so ask questions that reveal jurors likely to ally with your opponent. 

Good questions to ask in voir dire:

“Do you have any co-workers that especially ...
(defense:) annoy you?/(plaintiff:) make work more enjoyable?

Follow-up:

Without naming names, can you explain?
How do you deal with it?
What is your overall opinion of your employer and work experience?
Based on what you’ve heard so far about this case, what comes to mind from your own experience?

Jury Selection

Say a prospective juror reveals a very positive/negative co-worker experience.  Is that prospective juror worth a peremptory strike or not?  To decide, you must factor in other traits about them (e.g., are they leaders or followers? Do they have strong opinions? Do they have a souring experience in the workplace?).  They may have very good or bad co-worker experiences, but have little weight on other jurors, and thus, do not over-value that single point. 

Trial

Throughout trial, from Openings, presentation of evidence, witness examinations and Summations, counsel has the opportunity to weave the notion of co-workers into the case to their benefit, whether because of strongly positive or strongly negative workplace atmospheres, and that is likely to resonate with jurors in 2015.

Despite the fact that Pharell Williams’s song “Happy” topped the Hot 100 Charts in 2014,2 a lot caused prospective jurors to be unhappy. The place to address that unhappiness is in voir dire and trial, if it isn’t addressed in the workplace first.

A2L Consulting Voir Dire Consultants Handbook

 

[1] at http://www.glassdoor.com/blog/10-biggest-job-likes-gripes-employees/?utm_medium=email&utm_source=newsletter&utm_campaign=YearEnd2014&utm_content=YearEnd2014

 

[2] http://www.billboard.com/charts/2014/year-end

 

Tags: Jury Questionnaire, Trial Consultants, Jury Consulting, Juries, Jury Consultants, Voir Dire, Jury Selection, Labor and Employment

How To Find Helpful Information Related to Your Practice Area

Posted by Ken Lopez on Fri, Jan 2, 2015 @ 04:34 PM

 

practice-area-experience-a2lby Ken Lopez
Founder/CEO
A2L Consulting

Not every page, blog article, webinar or e-book on A2L Consulting's site is right for everyone. As the saying goes, what is everyone's favorite radio station? WII – FM, of course. Otherwise known as "what's in it for me?"

With hundreds of articles, dozens of e-books and hundreds of other pages, A2L's website has over 2,500 pages of valuable content. Sometimes, finding materials that are specific to your litigation practice area or need can be a challenge with all the available options.

You can search A2L's site or even browse by topic area using a topic list in the sidebar of every blog post. In spite of this, I still hear from a lot of people who wonder whether we have experience working in their specific practice area or where they can find useful information related to their practice.

I wrote this article to highlight some very useful information organized by practice area below. I've broken down the practice areas into 14 topics that cover most of the work we do. The alphabetical list with links under each topic should prove helpful when looking for the information most relevant to you.

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Antitrust: Our work in antitrust often involves making complicated economic principles make sense to judge and jury. Working with experts is essential in these cases to help them develop a coherent story.

Banking, Securities & Finance: Our banking litigation work has most often included allegations of banking fraud, disputes involving CDOs or some other financial industry-collapse related litigation.

Bankruptcy: Our bankruptcy work usually involves advisory disputes or the failure of a large company.

Complex Civil Litigation: Many disputes we are involved in are contract disputes between large corporations. Goliath vs. Goliath litigation requires special care given the stakes and resources available to both sides.

Construction & Architecture: Architecture one type or another construction disputes typically relate to defects in construction or leasing disputes or construction delays

Employment & Labor: Our labor work often involves allegations of discrimination or other large scale labor disputes. Increasingly wage and hour disputes are finding their way to trial.

Environmental & Energy: Environmental work often involves discussing human health risk from a particular chemical or the migration of a particular leak.
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International:
 Our international work often involves arbitration work at ICSID at the World Bank, at the ICC in New York or at some other venue around the world.
Life Science-Related: Science-focused topics dominate many forms of litigation. This includes disputes around pharaceuticals, medical devices, biotech and many products. Our challenge as a litigation consulting firm is frequently to make the material understandable for judge and jury.
Medical Malpractice: Our medical malpractice work sometimes involves showing how a surgery occurred and sometimes involves handling allegations of errors.
Patent, Trademarks & Copyright: Our are patent work is wide ranging and frequent, covering all lines of marketplace. About half of the cases we consult on are complex patent cases.
Product Liability: We have spent the last several decades consulting on everything from tobacco litigation to cell phone litigation to fracking litigation.These cases always involve detailed interaction with consulting experts and testifying experts.
Transportation (Aviation, Space, Automobiles, Trains and Ships): Although trials are rare since most cases tend to settle that involve a crash of planes trains or automobiles. More often transportation cases involve product liability or some other cause of action.
White-Collar & Criminal: Our work in criminal cases used to be restricted to basic white collar criminal work. Increasingly though, we are being called upon to consult on everything from campus sexual assault cases to murder cases.


Other articles and resources on A2L Consulting's site that relate to our experience by type of case and by type of experience:

mock jury webinar a2l kuslansky

Tags: Patent Litigation, Science, Environmental Litigation, Banking Litigation, Construction Litigation, White Collar, Labor and Employment, Product Liability, Antitrust Litigation

4 Tips for Stealing Thunder in the Courtroom

Posted by Laurie Kuslansky on Mon, Apr 28, 2014 @ 04:45 PM

 

stealing courtroom thunder motion in limineby Laurie R. Kuslansky, Ph.D.
Managing Director, Jury & Trial Consulting
A2L Consulting

In Limine” in Latin means “at the threshold” and some judges wait for the threshold of trial to rule on motions in limine. Using this motion, litigants may attempt to preclude arguments and/or evidence that one side believes is a “side show” by the other side, but may not find out until trial begins if it will be in or out of the case. Lenient judges may let in such information, despite cogent protests against it. When that happens, how do you deal with it?

The Problem

In many venues, and for many jurors, the side show is more interesting, understandable and dramatic than the drier facts of the case.  For example, wording of a contract pales in comparison to illicit acts alleged against some of the key actors. Nasty remarks ring louder than appropriate conduct. A spotty personal history is a bigger attention-getter than that person’s work history. An affair outside the workplace is juicier than business as usual.

 

When to deal with the side show?

Answer:  As soon as possible.

We understand the reluctance of counsel to appear defensive and side-tracked by overly-attending to the opposing side’s case. However, not doing so leaves too much room for the opponent to enjoy an unwanted advantage. If the jury gets the wrong impression from your adversary, it is difficult to reverse it by waiting too long or worse, leaving it to jurors to figure out themselves. Leave nothing to chance. In order to downplay the relevance or importance of distracting, negative information, address it head on and early. Some refer to the potential techniques as “stealing thunder” or “raining on their parade.” 

 

What is thunder?

“Thunder” in litigation is potentially powerful, negative information asserted by an adversary. It may be front-and-center information that is harmful, a weakness in your case presented by your opponent, or the stuff of a side show that is not immediately relevant, not really probative, but presented for that very reason – to be loud and problematic in order to leave a lasting impression.

Where does “thunder” come from for jurors?

Anywhere. 

There are numerous real-life anti-heroes in the news who can easily roll off the tongues of potential jurors (e.g., Bernie Madoff, Toronto mayor Robert Ford, Olympian-turned-murder defendant, Oscar Pistorious, George Zimmerman, or good-turned-bad teen idols, such as Justin Bieber, Miley Cyrus, Lindsay Lohan, Amanda Bynes and Chris Brown). 

Antiheroes became all the rage in TV and movies of late. Popular culture and its vivid images are easy points of reference for many jurors.  For example, 10.3 million viewers watched the final episode of Breaking Bad.  Such figures lend credence and impact for negative impressions. 

If jurors have seen movies such as “Wolf of Wall Street” or characters on TV shows such as Tony on The Sopranos, Walter White, the meth-making chemistry teacher on Breaking Bad, Patty Hewes, the super-lawyer representing amoral corporations on “Damages” and others – they have immediate access to highly negative images of anti-heroic characters in fiction that are summoned when evaluating key figures in a lawsuit who may share negative traits with them. Or, at least, that is the hope of a trial lawyer trying to use negative information as thunder. Here is a list of TV’s top 17 anti-heroes of 2013. After all, jurors may have seen them, so you should know what you may be up against if they have.

 

“Stealing Thunder”

If you are certain your opponent will raise potentially negative information that can highlight weakness to your case, thereby creating thunder, it is foolhardy to let it echo unaddressed.  If such weaknesses will not be raised by your opponent, of course there is no reason for you to do so. 

One way to do counter damaging negative information is by stealing its thunder, i.e., “a dissuasion tactic in which an individual reveals potentially incriminating evidence first, for the purpose of reducing its negative impact on an evaluative audience.“ [1]

 

How to Steal Thunder?

It isn’t enough to tell people not to think about the pink elephant in the room, or at trial, to simply “tell” jurors what doesn’t matter. You have to go the extra step of explaining how and why it doesn’t matter. Taking the bull by the horns requires showing that the side show doesn’t pass muster in specific ways:

1)    Do it first.  If you are the Plaintiff, anticipate the defense presenting a side show, and steal their thunder by addressing the negative information in your opening – before the defense does so in its opening statement.

2)    Actions speak louder than words.   For example, were there any actual actions taken at the time to show that the complaints had merit? Did anyone lodge a formal complaint at the time? Did anyone go to HR? Did anyone file a lawsuit? If not, then those are issues that were not issues at the relevant time, but only ones magnified after the lawsuit. 

3)    Now vs. Then.  If possible, show that those allegedly disgruntled about such conduct now did not take action at the time. Contrast the two time frames to show a lack of support for the allegations at the time and that they only became alleged issues after the fact.

4)    Options and control: Key in succeeding to defeat such issues is showing that, at the time they allegedly mattered, the aggrieved had the wherewithal to make choices and take actions, but did not – not because they couldn’t, but because they didn’t have reason to do so.  Otherwise, dismantling their complaints is anemic.

 

Does it work?

Yes. Stealing thunder significantly reduces the impact of negative information. [2]  It minimizes the importance and reduces the potential damage of negative information. However, this tactic is “no longer effective when opposing counsel revealed that the stealing thunder tactic had been used on them.”[3]

 

Sorry, but I have to steal your thunder, too.

You may be countering the advice provided here with the thought that you don’t want to draw attention to the opposing side’s side show by talking about it directly in your case.  While that is understandable, it is ill advised. Even if you don’t talk about it, and your opponent does, the jury will, too, and decades of real-life jury interviews have shown that when jurors talk about your client, you do worse, and vice versa. Litigation is just the opposite of what Oscar Wilde once said, i.e., There is only one thing in litigation worse than not being talked about, and that is being talked about -- so take heed to direct the talking.

 

Other articles related to courtroom communications, trial prep tactics and staying one step ahead of your opponent.

Science Issues Experts Trial Litigation Litigation Graphics


[1]  Dolnik, L., Case, T. I., & Williams, K. D. (2003). Stealing thunder as a courtroom tactic revisited: Processes and boundaries. Law and Human Behavior, 27, pp. 267-287 at http://www.ncbi.nlm.nih.gov/pubmed/12794964

[2] Williams, Kipling D., Bourgeois, Martin J. and Croyle, Robert T. The Effects of Stealing Thunder in Criminal and Civil Trials. Law & Human Behavior (Springer Science & Business Media B.V.);Dec1993, Vol. 17 Issue 6, p.597

[3] Op Cit. Dolnik, et al.

 

Tags: Jury Consulting, Litigation Consulting, Juries, Jury Consultants, Trial Preparation, Labor and Employment, Emotions

Trial Timelines and the Psychology of Demonstrative Evidence

Posted by Ryan Flax on Wed, Dec 4, 2013 @ 10:45 AM


by Ryan H. Flax, Esq.
(Former) Managing Director, Litigation Consulting
A2L Consulting

Research shows that visuals are a key to presenting information clearly and persuasively, be that presentation in a courtroom, an ITC hearing, the USPTO Trial and Appeal Board, a DOJ office, or in a pitch to a potential client. Because of what you can do with them and how your audience will psychologically react, if designed properly, trial timelines are one of the most important demonstrative aids you can use to be more persuasive.

trial timelines litigation courtroom examples

Studies show that the vast majority of the public (what I’ll call “normal” people – not us lawyers) learns visually – about 61% - which means that they prefer to learn by seeing. The majority of juries learn by seeing lawyers courtroomattorneys, on the other hand, do not prefer to learn this way, but are auditory and kinesthetic learners – about 53% - which means we typically learn by hearing and/or experiencing something – we are different than most people.  This makes sense, when you think about it – we all learned this way in law school by sitting through class lectures and we continue to learn this way as practicing attorneys by having to learn litigation by experiencing it. However, most people do most of their “learning” watching television or surfing the internet.

No matter how smart you are, you typically teach the same way you prefer to learn, unless you carefully plan to do otherwise.  Visual learners teach by illustrating. Auditory learners teach by explaining. Kinesthetic learners teach by performing. So, left to our own devices, we attorneys will usually teach by giving a lecture (consider your last opening statement, for example). 

But, when you do this in an effort to persuade most “normal” people, you’re not playing the game to win. It is not sufficient to just relay information because that’s not how your typical audience wants to learn.  You must bridge the gap between how you prefer to teach and how your audience prefers to learn, and demonstrative evidence, including graphics, models, boards, animations, and trial timelines are the way to bridge this gap, make your audience feel better prepared on the subject matter, feel it’s more important, pay more attention, comprehend better, and retain more information.

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

Besides simplifying the complex, providing an opportunity to strategically use familiar, well-understood pop culture templates, and satisfying your audience’s expectations of a multimedia presentation, trial timelines are a key component of your persuasion because they enable you to emulate generic fictions to produce a truth to be accepted by your audience. These are the four rules of thumb to effective visual information design.

Social psychology studies show that different sources of information are not neatly separated in juror’s minds. Trial timelines are one of the most effective ways to exploit this reality to be more persuasive at trial.

Visual meaning is malleable, so design your timelines to show a generic fiction you want the facts to fit: e.g., there was a reasonable cause for your client’s behavior or the opposing party’s actions directly led to the injuries we’re here about.  The essential generic fiction for litigation (and all other circumstances, really) is that of cause and effect – people are intensely hungry for a cause and effect relationship to provide a basis, or perceived basis, in logic and reason for their emotional beliefs.

A trial timeline is the key visual aid for establishing a perception of causation relating to any set of facts. Once you induce such a perception of causation in jurors and they can adopt this perception as truth.  This is the result you want in litigation.  If you can set the factual stage for why your view of things makes more sense than your opposition’s version, you’ve won (unless the facts are devastating, in which case you should have settled).

So, what perception of causation is being established by the first timeline (above) in this article?  This timeline relates to a trade dress case where the design at issue was a yellow casing for an electrical device.  What you’re seeing is how long our client used this yellow casing design (since 1969 and through the trial) at top, when the defendant changed its product to have a yellow casing (1999), and how similar their accused design is to our client’s product line.

You get all this information visually from a single trial timeline – it doesn’t just relay information, it tells a story.  Imagine having the timeline at the top of this article on a large board and available to show the jury over and over again.

Here’s an alternative way of showing the very same information that is far less effective:

trial timelines litigation use tell a story

The same information is there, but there’s no self-evident story.  There’s no cause and effect established.  This is just no good as a persuasion tool, but this is what most attorneys think of when they consider developing a timeline (unless they envision the flags-on-a-stick conveying a series of events).

Here is a pretty standard, if attractive, trial timeline.  It shows two series of related events.  The series on top, as you might guess, relates to stuff our client did and the stuff in the shadows there on the bottom is what the opposing party did over the same period.

trial timeline court jury trial

This rather simply, but clearly shows important interrelated events and very clearly establishes the key facts to induce the perception of cause and effect in the jurors. What do you learn from the timeline above?  You learn that while the plaintiff claims that he was fired as retaliation for his claim of discrimination against his employer (and if you only knew that he made the claim and was then fired just days later you might believe him), the timeline shows that he had a terrible and well-documented history of unexcused absences from work and even a violent confrontation with a co-worker. This history is the real cause of the effect (his termination) and it’s all conveyed in this graphic.

You must feed a jury what it needs to find for you. The more a jury feels they understand where you’re coming from, the more you emulate generic fictions to establish a truth, and the better you induce the perception of cause and effect in your audience using the facts you know matter, the better your chances of winning.
 

Other A2L articles related to trial timelines and trial presentation:

trial timeline trial graphics litigation courtroom timelines

Tags: Trial Graphics, Litigation Graphics, Courtroom Presentations, Demonstrative Evidence, Storytelling, Timelines, Labor and Employment, Trial Boards

Winning Jury Support for the Employer When Plaintiff Is Union-Backed

Posted by Laurie Kuslansky on Mon, Oct 21, 2013 @ 10:03 AM


labor employment union litigationby Laurie R. Kuslansky, Ph.D
Expert Jury Consultant

Employment cases present unusual difficulties for attorneys who represent employers. Because the employer is generally regarded as the heavyweight in equal-employment cases, it ordinarily faces a daunting challenge in a jury trial. Picture the following scenario: On one side, an individual employee with a lone attorney and an EEOC right-to-sue letter. On the other side, a large corporation with wheelbarrows full of documents and a “dream team” of lawyers. 

Who will get the benefit of the jury’s doubt? Though this scenario favors the vulnerable individual over the mighty corporation, the perception can be reversed. This difficult task is made easier when the employee is a union member.

Pretrial mock-jury research reveals that jurors who understand unions are an asset to the defense. Such jurors perceive that union members are supported and empowered by a system that provides rights to workers and exerts muscle over employers. Therefore, some commonly overlooked methods for defending a company in employment litigation should be considered when a union governs the workplace.

First, it must not be forgotten that employment litigation involves many “slackers turned plaintiffs.” These are employees who are tolerated, promoted, and paid but who complain of unfair treatment in the workplace when disciplined, demoted or fired for unacceptable behavior. In following through on their complaints, however, such underachievers tend to exhibit the same lackluster performance they did in their jobs. Since character is constant and produces consistent behavior, this profile is advantageous to the defendant.

Slacker-plaintiffs often ignore rules. This attitude emerges when they perform work, follow procedures, address deadlines and follow up on complaints in a manner that defies their union’s Collective Bargaining Agreement (CBA). In following these procedures, slacker-plaintiffs often do not sweat the details and tend to be inconsistent about the details on which they do fixate. A plaintiff’s handling of alleged grievances often mirrors his or her poor work ethic.

Details of the employee’s work habits lead jurors to question the employee’s credibility and sense of personal responsibility. It is easier to elicit jurors’ skepticism via details related to the plaintiff’s character than through evidence that may seem subjective or inconsistent relating to the plaintiff’s work product. This focus on the plaintiff’s character also shifts jurors’ attention from the defense to the slacker-plaintiff himself or herself.

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So before attacking an employee’s job performance, introduce the jury to the employee’s questionable character in the form of documented failures to follow CBA procedures.

This approach can be more fruitful for several reasons:

  • The jury scrutinizes the plaintiff rather than the defendant.
     
  • An attack on job performance after the fact is not credible.
     
  • Performance reviews tend to lack documentation, timeliness, appropriate criticism and follow up, creating the misimpression that the employee performed the job better than the employer now claims.

Since key witnesses (HR personnel and middle and upper managers) rarely recall details that help the defense, they seldom satisfy jurors; in addition, such witnesses are scrutinized for their own imperfect behavior, especially by jurors with management, human resources or training experience.

When jurors learn, however, that a union worker has failed to uphold his or her end of a CBA by showing disregard for the CBA-specified time constraints or by failing to communicate appropriately with union staff who are there to protect him, the worker’s case progressively loses credibility as jurors keep score using the checks and balances provided by union membership and the CBA.

As jurors learn about the roles of union representatives and shop stewards and the options and protections available to union workers, they become more willing to view a union plaintiff critically. This applies especially to jurors who come to the case with knowledge of how unions operate.

A platform that reveals the plaintiff’s incompetence or irresponsibility regarding CBA procedures allows jurors to view the plaintiff as powerful (i.e., backed by the union) but lacking credibility. Such an approach:

  • Opens the minds of jurors to the plaintiff’s performance insufficiencies;
     
  • Permits jurors to view the employment arrangement as a “deal” that affords essential rights and obligations to either side;
     
  • Introduces an objective measure by which jurors may judge the plaintiff;
     
  • Provides objective evidence likely to bring consensus among jurors (and thus to invite less debate); and
     
  • Opens jurors’ minds to defense arguments pertaining to neutral reasons for the employer’s actions

An essential goal in employment litigation is to dictate which side jurors ultimately view as in control of the workplace. To achieve this goal, place the plaintiff firmly under the influential and protective shield of his or her union (i.e., as backed by an “army”). This establishes the plaintiff side as Goliath. 

Advance this strategy by educating jurors on the following points:

  • Explain to jurors the significance of union membership. Show proof of the plaintiff’s membership. Present points of contact between the employee and the union, such as membership dues, service charge authorization forms, etc. This will illustrate that by choosing to join the union, the plaintiff agreed to be bound by its rules and procedures.
     
  • Sympathy for plaintiff employees declines when jurors learn that unionized employees are provided with a sophisticated team to fight their workplace battles. To shift the jury’s perceived focus of strength, specify the relevant members of the union team, what they do, the power they wield and how they, not just the employer, set the rules.
     
  • Inform jurors of the issues about which union members vote. Clarify the fact that union workers gain control over the workplace through union votes and subsequent agreements between the union and the employer.
     
  • Educate jurors as to what it takes to negotiate and pass a CBA and who is involved in the negotiations. Detail the sophistication of the parties involved, and explain what a CBA governs. This will make it clear to the jury that the plaintiff is supported on the job by an organization that enjoys power equal to or greater than that of the employer. Point out to the jury that in exchange for the benefits of such power, the employee is obligated to follow the union’s policies and guidelines.
     
  • Note that through unions, workers and employers agree to work together in clearly defined ways. The consequences of any failure to follow these rules are spelled out in advance.

Most of what can happen in a union workplace already has been addressed in an objective, mutually agreed on and predetermined manner, rather than subjectively by an individual “on the spot.” Spell out how case-relevant issues are governed by both the CBA and company policy (e.g., specific discipline for specific misconduct, warning requirements, criteria for suspensions and discharges, etc.) This approach permits the jury to judge both sides. Who upheld their end of the deal? Often, it is the employee who comes up short, or at least, shorter than the employer.

With a basic understanding of unions, jurors become less receptive to the complaints of a worker who fails to follow union procedures when a problem arises. Walk jurors through the “if/then” paradigm prescribed by the CBA for solving workplace problems. Detailing this paradigm is a persuasive way to overcome employees’ claims of unfair treatment or claims that the employer disregarded their complaints.

An easy way for jurors to judge the validity of a claim is to compare the dates of alleged wrongful acts with the date of the plaintiff’s first action against the defendant. Details of timing appeal to jurors because such details make sense and are easy to consider. The longer the delay, the less credible the claim.  Hence, it is essential in a winning argument to show the plaintiff’s initial failure to act and to emphasize all remedies accessible to the employee at the time of the alleged problem that he or she did not pursue.

This “delay yardstick” can be applied repeatedly to the plaintiff’s new or ongoing complaints. The better jurors appreciate how and when the plaintiff could have acted, but did not, the less they will believe a problem ever existed. 

Finally, considering the current economic difficulties, many are grateful simply to have a job. Does this social and economic environment make jurors more suspicious of employers? Perhaps, but jurors may also be less receptive to lawsuits brought by unionized employees who benefit from job security in uncertain times.


Other A2L Consulting articles related to labor law, employment law and litigation generally:

complex civil litigation guidebook a2l consulting

Tags: Trial Consultants, Jury Consulting, Mock Trial, Trial Consulting, Jury Consultants, Labor and Employment

20 Fascinating Articles About Social Media and Litigation

Posted by Ken Lopez on Mon, Apr 8, 2013 @ 01:30 PM


social media articles litigators litigation supportby Ken Lopez
Founder & CEO
A2L Consulting

As social media have become an integral part of life in the 21st century, they have inevitably and dramatically affected law, litigation, and trial strategy. Whether it’s a question of jurors who tweet from the jury box, service of a subpoena through Facebook, ownership of a social media account after an employee resigns, the dollar value of a Twitter “follower,” or any number of other issues, no lawyer or trial consultant can remain unaware of the issues. Here is a collection of 20 interesting social media discussions from various online legal locations, with brief summaries.

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  1. Social Media Litigation Risks & Opportunities: It’s important to seek discovery of social media content in litigation, to name one interesting opportunity.
     
  2. How to Get Social Media Evidence Admitted: Social media information is discoverable, but what’s the best way to ask for it?
     
  3. Using Social Media Evidence as a Defense Litigation Tool [pdf]:  How insurers and others can use social media as a litigation tool.
     
  4. Social Media Evidence and Privacy Preferences: Not surprisingly, the rules governing e-discovery apply to social media and trump both a social media website's privacy guidelines and an individual user's privacy preferences.
     
  5. How to Avoid a Social Media Lawsuit:  How to set up an appropriate social media policy for your employees to fend off a potentially ruinous lawsuit.
     
  6. Who owns a Twitter account when an employee resigns?  It’s crucial to use discretion and good business judgment in launching a social media campaign, just as you would for any other aspect of your business.
     
  7. What can an employer do about employee communications: Interpreting the NLRB’s recent decision about when concerted employee conduct on social media is protected activity.
     
  8. Social Media and E-Discovery [pdf]: An overview of the risks and rewards of seeking social media information in e-discovery.
     
  9. Service of Process via Social Media [pdf]: The use of Facebook for service of process satisfies due process requirements, one judge recently held.
     
  10. The ABA's View of Judges Using Social Media [pdf]: The ABA’s view is that a judge may participate in social media but that in doing so, he or she must comply with the Code of Judicial Conduct and avoid any conduct that would undermine the judge’s independence, integrity, or impartiality, or create an appearance of impropriety.
     
  11. Texas State Bar Report on Social Media and the Law [pdf]: A full issue of the journal of the Texas State Bar’s litigation section on the interplay between litigation and social media.
     
  12. Authenticating Social Media Evidence [pdf]: Evidentiary standards for admission of evidence that were developed for other forms of electronic data may not be sufficient.
     
  13. New York State Bar's Social Media & Litigation [pdf]: An excellent broad overview of the issues that can arise.
     
  14. How Social Media Can Hurt You in Litigation: What small and midsize businesses need to know about the discovery of social media information.
     
  15. Social Media and the Federal Securities Laws: Here are some of the pitfalls that public companies can encounter when they try to disseminate company information through social media.
     
  16. Waving Attorney-Client Privilege via Social Media: Interesting decision that a client waived attorney-client privilege when she discussed, in chat rooms, her discussions with her attorney.
     
  17. Social Media and Antitrust Litigation: Companies can violate the antitrust laws through the use of social media, and antitrust compliance programs should include discussion of these risks.
     
  18. Getting the most out of Social Media for Litigation: How to use the resources of social media to test your litigation themes before you get to a real jury.
     
  19. The Social Media Trojan Horse: What you say in social media can come back to haunt you in litigation.

  20. The SEC and Full Disclosure in Social Media: The SEC just announced that public companies are allowed to use social media to make key corporate announcements  as long as they alert investors about which sites they intend to use.
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Tags: Social Media, Judges, Securities Litigation, Labor and Employment, Ethics

11 Great Social Media Videos for Litigators and Litigation Support

Posted by Ken Lopez on Thu, Apr 4, 2013 @ 07:02 AM


social media for litigators videosby Ken Lopez
Founder & CEO
A2L Consulting

Trial lawyers need to be aware of any viable source of information about law and about trial practice and exhibits. There’s no end to the resources available to trial lawyers and trial consultants on the Web these days. One of the great features of social media is that it is, by and large, free. With this in mind, let's take a look at YouTube, which is a very helpful social network with pages, channels, and subscribers. It has a great many free resources that can help trial lawyers advise their clients on an interesting topic – how social media can and does interact with the law.

  1. Is social media just marketing hype? Is everyone on social media essentially a liar? Here, two experts debate whether social media has anything to add to lawyers’ ability to market themselves and gain legal skills.




  2. Social media and litigation: Social media evidence is becoming increasingly more prevalent in corporate litigation. Here’s an interesting and sprightly account of what evidence can be found on Twitter, YouTube, and the like. Are young people these days less concerned about privacy than people were 30 or 40 years ago?


     
  3. Social media and the law: Here, an attorney provides a one hour lecture on social media and the law generally.  This is a great overview of the issues from intellectual property rights to online torts. When does citation and quotation become plagiarism, for example?



  4. An overview of the current generation’s use of social media: I like this presenter not only because he presents information succinctly, but because he has five-year-old triplet daughters like me. How does “Generation Z,” born after 1995, use social media? They will soon become a significant plurality of lawyers. 



  5. Labor and employment law and social media: There are five parts to this talk. You should be able to see all of them if you click through to the video on YouTube.  Often, the requirements of human resources law fly in the face of common sense, and that is true when it comes to social media.



  6. Ethics issues for lawyers:  Robert Ambrogi, a Massachusetts lawyer and consultant, answers the question, “Are you aware of any cautionary horror stories about the ethics problems caused by lawyers’ use of social media?”



  7. Ethical considerations for lawyers in social media:  Some tweets that have gotten lawyers and law students in trouble because they are, well, too honest, and can violate ethics rules or point to embarrassing facts or experiences.



  8. Social media and compliance with basic ethics rules: This 90-minute presentation does a nice job of explaining the various considerations, although the audio could be better.



  9. Divorce and social media: In this area in particular, lawyers and investigators may be mining your personal information to obtain evidence for a divorce case.  A lot of personal and highly relevant information can already be out there on Facebook. What are the ethical limitations on this type of activity, and what considerations should lawyers and clients be aware of?



  10. Serving legal documents through social media: Bloomberg covered this interesting topic recently.  Will social media change how we litigate? Can service be made via Twitter or Facebook?



  11. Law enforcement has found a new tool to monitor demonstrators and political protesters – social media.  Just as Twitter and Facebook are now essential tools for protest movements, law enforcement agencies are monitoring the social media giants and using what they find to make cases against demonstrators.


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Tags: Social Media, Marketing, Labor and Employment, Ethics

Courtroom Graphics in Labor and Employment Cases

Posted by Ken Lopez on Tue, Nov 1, 2011 @ 10:02 AM


Labor law is a highly diverse and complex area. It can involve everything from claims for overtime pay to computer fraud and abuse act cases (CFAA) involving swindling employees to trials involving the allegedly illegal firing of an employee to complicated pension benefits issues. As labor and employment cases get more complex, the use of computer graphics during trial is also on the rise.

A recent description of an academic program in labor and employment studies notes that “the field of labor and employment law has never been more dynamic and challenging than it is at the beginning of the 21st century. Over the past forty years, sweeping changes in the interplay between the American work place and the law have affected the everyday lives of nearly all members of society.”

Labor cases often go to trial these days, and especially in cases that involve large numbers of employees, lawyers on both sides of a labor law case will often find courtroom graphics extremely useful to show trends, patterns, events that took place over a long period of time, or the real-life impact of a company’s policy or practice.

For example, overtime cases involving hundreds or thousands of employees are finding their way to court. These usually involve summarizing lots of wage and hour data on just a few courtroom graphics. This is what happened in this PowerPoint set of scenarios (below) involving a company’s employees and the hours that they worked over a period of years.



In an unusual labor law case involving federal government lawyers as employees, we helped a law firm establish a class of U.S. Department of Justice employees who were unlawfully denied pay for millions of hours of overtime pay. A judge in the U.S. Court of Federal Claims found that the highest officials of DOJ knew that the employees were working overtime and maintained two sets of books – one to include the overtime and one to exclude it. This was the first-ever class action web site that facilitated online opting in, and we designed the website.



In another series of courtroom graphics (below), we showed graphically how a seemingly complex special-employer fund worked, with employers and employees making contributions and funds being withdrawn throughout the year. We used financial metaphors that any juror would understand, such as checkbooks and piggy banks, to illustrate the concepts. We used a funnel to show the number of employees who started out eligible for the retirement benefits and then the number who remained eligible after other qualifying criteria were used.

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Similar to securities cases, labor and employment litigation has lagged other types of litigation (e.g. patent litigation and antitrust litigation) in the adoption of courtroom graphics. Now that labor cases are no longer a simple battle of he said, she said and computer forensics are routinely revealing playing a larger role, it is essential to use courtroom graphics to help a jury understand and appreciate your client's position. 

Tags: Trial Graphics, Litigation Graphics, Trial Presentation, Courtroom Presentations, Trial Consulting, Labor and Employment, Class Action

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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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