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The Litigation Consulting Report

Top 7 Things I've Observed as a Litigation Consultant

Posted by Ryan Flax on Wed, Oct 7, 2015 @ 12:42 PM

litigation consultant best in the industry graphics storytellingby Ryan H. Flax, Esq.
Managing Director, Litigation Consulting & General Counsel
A2L Consulting

I’ve passed another anniversary at A2L Consulting and in my time as a litigation consultant I’ve been both surprised and reassured about the state of the litigation business and its players (I also wrote about my surprises upon beginning my career as a litigation consultant). I’ve seen both the very best and quite bad litigators in action and have consulted for both. Although some litigators don’t live up to my high standards, I’m impressed by many litigators as both professionals and people. Here are seven of my observations over these years that I think might help you in your practice.

  1. Many Lawyers Confuse Chronology With Storytelling

It is almost universally accepted that storytelling is important to engaging an audience (including a jury) and that framing a client’s case as a compelling story is key to doing your best at trial, particularly in opening statements. But more often than not, when I ask a litigation team what their client's story is, rather than explain “why we’re really here” as they would to a jury and illustrate some conflict and emotionally valuable moral that is critical to juror engagement, they rattle off some chronological series of events that led to a legal injury to their client or some misconstrued relationship by the opposing party. These are not stories and presenting a case framed this way, while possibly interesting to a legal scholar, is not compelling to a juror.

I’m surprised that so many smart litigators fall into the chronology trap and forsake emotional connection to engage jurors. I don’t advise pandering to a jury or excessive emoting by a litigator, but for a jury to care about you and your client and generate the stamina jurors need for a trial, litigators must tap into their emotional brains. This is not done by an information dump, a calendar, or using a lot of words.

A story answers the question posed above – why are we here today, in this courtroom? A story also has all the stuff you learned in grade school: a beginning, middle, climax, and end, characters, setting, theme, and moral.

  1. Some Lawyers Focus Too Much on Too Small Things

It’s easy for litigators (even more so for the associates doing the day-to-day stuff) to over-focus on every detail. The prospect of overlooking a potentially key piece of evidence or being surprised by an unknown fact exposed by opposing counsel is frightening for attorneys (it was for me), so we often wind up thinking way too much about every little thing in a case. This is called being “in the weeds,” and when you’re there it’s exceedingly difficult to escape without help. It happens with the selection of evidence, with witness prep, and even with the development of graphics, where sometimes counsel wants to very carefully think over every aspect, e.g., choosing what font style and color palette and slide aspect ratio will best work for their case.

On each of these things, I urge counsel to take a step back and delegate where possible so they can focus on the BIG PICTURE. The best first-chair litigators do this naturally, and the rest of us need to do it deliberately. Attorney time and brainpower should be spent on figuring out what it will take to win. Let litigation graphics consultants decide what font works best for your opening statement presentation. It will be a relief when you do.

  1. Many Litigators Don’t Know What Tools Are Available

Even though the litigation consulting industry has been around for decades, I still find a lot of lawyers really don’t know what we do (in total) and what persuasive tools are at their immediate disposal. Often, my first conversations with new clients include questions like, “What all do you do?” The concepts of litigation graphics, presentation and persuasion consulting, trial technology, and jury consulting are not concrete ideas in many litigators’ minds, and I often have to educate clients on what we have in our (their) toolbox.

Most often, such attorneys think of litigation graphics as discrete images created for specific points they want to make during trial. They don’t understand that, while that’s a part of our work, such graphics won’t alone provide the immersive visual experience necessary (particularly during opening statements) to persuade jurors.

Also, many litigators seriously consider doing their own graphics and/or in-court technology presentation. They have Microsoft PowerPoint and Word and can cut and paste and they’ve heard that iPad apps make evidence presentation easy. The former is never a good idea and, while the later might be true for some situations, e.g., a hearing or very small trial, it’s not going to work in any bigger trial that could have hundreds or thousands of exhibits. There is a lot to know about crafting persuasive trial visuals and there are professionals who do nothing but build trial databases, edit deposition videos, and run trial presentation software to create a seamless trial for you and your jurors. Litigators should understand this and use professionals (and let your paralegals focus on what they should be doing as well).

  1. Litigators Still Wait Too Long to Bring in a Litigation Consultant

Even though they know better, most of the time litigation teams wait until just weeks before trial to engage a litigation consultant / jury consultant / graphics team / trial tech. Even though they know waiting makes it a more difficult budget-sell to their client, leads to an uncomfortable rush to develop graphics, may make mock jury exercises impossible, and forecloses the possibility of building discovery around what they learn from a consultant, they wait. I urge early planning for trial (at the complaint/answer stage), which is the right time to develop that important two-track litigation strategy, and begin working on your case story and graphics as early as possible. Although we can certainly help you late in the game, we can do a lot more before halftime.

  1. A Lot of Litigation Graphics are Subpar

When I get the chance, I always go to my client’s opening statements and then to as much of the rest of their trials as possible. So I get to see the litigation graphics developed by/for opposing counsel. I’m consistently underwhelmed.  It's impossible to say whether these poor visuals directly led to the oppositions' losses at trial, but they didn't help.

More often than not I see a lot of text-heavy graphics – a severe barrier to juror engagement and communication. I see a severe lack of style, clarity, and intentional design - this screams lack of preparation and deliberateness in presentation. There are key visual presentation concepts that, if understood and followed, lead to persuasive graphics, e.g., font type, color choice, simplicity, complexity, branding, style, and others. There is no shortage of information about these concepts out there, but it seems most folks are not paying attention. We are.

  1. Lawyers Don’t Spend Money Where It Can Help Them

Litigation consulting, jury research, trial graphics, and trial technology cost your client money – very true. But the ROI on these services far outweighs their expense in bigger cases. The cost of a typical larger litigation, such as an employment case, hovers just around $1M. A typical bigger patent case costs about twice that amount. However, the services and tools that could be used to hone your persuasive game at any stage of such litigations turn out to be a very, very small fraction of these costs.

Take a big-time patent and breach of contract case where our client won over $300 million in damages. The costs for A2L’s services were well below $200,000, about 5% or less of the litigation budget and about 0.005% or less of the damages award. I know that our services played an important role in the victory, even though the trial team was beyond outstanding.

But, we still see litigation counsel struggling to decide whether $30,000 or $50,000 is the right spend for a mock jury focus group (a $20K difference that could be the difference between scientific data results and seat of the pants analysis) or whether to spend $12,000 to have a professional trial tech hot seat operator at trial (they should), or whether they can make their own graphics for opening statements in house (they cannot). In my view, saving a penny to lose a dollar makes no sense.

  1. Practice is as Important as Everyone Thinks

Finally, it’s been shown time and time again that practicing oral argument makes sense. The more you practice, the better you’ll do. It takes time, but again, the ROI on this time investment is tremendous. When litigators do several full speed run-throughs for opening statements or oral arguments, I see them do a fantastic job at the real thing. They don’t need notes, they know their subject matter, they are and appear more comfortable, they seem more reasonable, and they use their graphics perfectly in a compelling way.  Not practicing so that you can feel and seem more spontaneous at opening is a recipe for a poor performance.

Practice. And start early.

Other articles and resources about storytelling, litigation consulting and trial preparation from A2L Consulting:

a2l consulting top 75 articles of all time

Tags: Trial Technicians, Litigation Graphics, Jury Consulting, Mock Trial, Litigation Consulting, Demonstrative Evidence, Trial Preparation, Storytelling

20 New Litigation Realities (to Celebrate Our 20th)

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

litigation consulting litigation consultantsby Ken Lopez
A2L Consulting

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

a2l consulting top 75 articles of all time

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

Can State and Local Governments Afford Litigation Consultants?

Posted by Ken Lopez on Mon, Sep 21, 2015 @ 10:19 AM

state local government jury consultants graphics litigation consultants pricingby Ken Lopez
A2L Consulting

Well, yes, of course they can. In fact, we are hired by them with some frequency. Let’s be specific.

Our firm is just about 20 years old, and while our typical client is a medium-sized to mega-sized law firm, we work with a government entity every month of the year. Usually, our work is on behalf of some entity of the federal government, typically the U.S. Department of Justice or some other agency such as the Environmental Protection Agency.

A typical large engagement for A2L Consulting would involve conducting several multi-panel mock trials that would help inform the development of litigation graphics, the jury selection, and the overall trial strategy. It would involve the development of litigation graphics for both sides of the case through the mock trial. It would also involve a full development of our side of the case, including the incorporation of storytelling techniques into the opening statement presentation. It would then involve a trial technician who would develop the database of video depositions and documentary evidence for instantaneous display.

This is not what a government entity hires A2L for.More typically a government engagement, whether local, state or federal, would involve a subset of one of our service areas. Instead of a large multi-panel mock trial, a focus group study or micro-mock is often used. Instead of a deep and protracted engagement with the development of litigation graphics over months, incorporating storytelling and opening statement practice sessions, often our engagements will be limited to either the development of an opening statement, practice sessions, or a consulting engagement to help incorporate storytelling techniques.

After all, some of the cases in which state and local governments are involved are high-priority matters, such as environmental cleanup, zoning, eminent domain, and employment cases, where millions of dollars may be at stake. We know that we can help clients like this, even though they may have a limited budget.

We've written before about how to save money when engaging litigation consultants. Sometimes, this involves asking the right questions. Sometimes, it involves understanding the most cost-effective ways to proceed. Sometimes, it involves communicating your budget to your litigation consulting firm, even if it is only $5,000, and asking what is possible. Something is always possible.

The articles below will help make you an expert in using litigation consultants in a cost-effective manner.

Other articles related to trial presentation services and cost saving tips from A2L include:

a2l consulting top 75 articles of all time

Tags: Trial Graphics, Trial Technicians, Litigation Graphics, Jury Consulting, Litigation Consulting, Demonstrative Evidence, Hot Seat Operators, Trial Technology, Pricing, Advocacy Graphics

How Much Text on a PowerPoint Slide is Too Much?

Posted by Ken Lopez on Fri, Sep 18, 2015 @ 07:15 AM

by Kenneth J. Lopez, J.D.
A2L Consulting

too many words powerpoint slides litigation graphicsLawyers love words. Lawyers love words on slides - tons of words on slides. Some lawyers think that the more words they use on a PowerPoint litigation graphic, the better.

They are wrong. Actually, using too many words on a slide will dramatically damage your effectiveness.

This damage is not aesthetic in nature. This is not about your look and feel. It is scientifically proven damage that affects how well you inform and persuade your audience. Indeed, it can be said the higher your slide's word count, the lower your persuasiveness.

At A2L, we see this every day. Sometimes the trial team prepares their slides in draft form and they have paragraphs of text. Sometimes a trial team just converts their Microsoft Word outline into Microsoft PowerPoint. Sometimes a trial team edits the PowerPoint slides that we create by adding more words.

There are many reasons this occurs. Some lawyers mistakenly believe they are creating a record by including the text. That’s not true. The trial record is something entirely different. Some lawyers want the text on screen so that they have notes to follow and can remember what to say. Some lawyers want to quote relevant text from documents in evidence.

In just about every case, they are making a mistake.

In a nutshell, here's why too much text is a bad idea. There is hard science behind each point:

In fact, probably the only time it makes sense to have lots of text on a slide is when you are specifically trying to obfuscate and confuse. That's a legitimate tactic, but you don't want to employ it unintentionally.

Below are a number of articles and resources discussing the use of PowerPoint litigation graphics that help you think about this text problem in more detail.

powerpoint litigation graphics consultants

Tags: Trial Graphics, Litigation Graphics, Demonstrative Evidence, Bullet Points, PowerPoint, Visual Persuasion, Information Design, Persuasion

Winning BEFORE Trial - Part 5 - Proper Use of Litigation Graphics

Posted by Ken Lopez on Wed, Sep 16, 2015 @ 09:33 AM

immersive-trial-graphics-broda-bahm-studyby Ryan H. Flax, Esq.
Managing Director, Litigation Consulting & Gen. Counsel
A2L Consulting

In our last post in this “Winning Before Trial” series, we showed that demonstrative graphics are a mandatory component of any litigation. If you’re not using them and your opposing counsel is using them, you’re in serious trouble. But what kind of graphics work? The answer to that question is not very intuitive.

A study by Dr. Ken Broda-Bahm, a litigation and jury consultant, investigated the effectiveness of various communication techniques in the eyes of jurors. Interestingly, this study found that there really wasn’t much difference in effectiveness when comparing the effect on jurors of (1) no graphics at all; (2) simple flip charts; (3) static and sporadic graphics; and (4) animated and sporadic graphics. However, when the “jurors” were immersed in litigation graphics, meaning that the attorney always gave them something to see while presenting his argument, the effectiveness of the litigation graphics dramatically increased. 

Jurors who were immersed in graphics were better prepared on the subject matter, felt it was more important, paid more attention, comprehended it better, and retained more information. Immersion is your goal as a litigator whether in the courtroom or in pre-trial filings.

Please note as well that you can’t just make some PowerPoint slides and bring them to trial or a pre-trial hearing. Putting everything you say, word for word, on a slide will actually decrease your fact-finder's understanding and retention of the point you are trying to make. This is called the redundancy effect. It is a result of people’s limited working memory. It’s a well-known psychological phenomenon that has been the focus of significant research. Basically, the result of making a graphic showing exactly what you’re simultaneously saying is worse than ineffective. It has the effect of shutting down your audience’s brain. You are subjecting your audience to a “cognitive load” that their brains can’t handle, so they stop taking in any information.

Another key lesson in developing trial graphics for an electronic presentation: Don’t use bullet points. They are unprofessional and will kill your presentation. None of the most effective presenters use them. Using bullets probably means that your presentation is text-heavy, which is a barrier to effective communication.

People read faster than they hear – 150 words per minute spoken versus 275 words per minute reading. People will read your bullets before you can say them, and they will stop listening. If jurors are spending time and brainpower reading your trial graphics presentation, they are not listening. Just using that little bullet dot makes your presentation boring.

However, the use of bullet points and other visual cues in your pre-trial filings is strongly encouraged. Here, bullets help highlight important information and the reader is not both hearing and seeing the information simultaneously.

Next, we will take a look at the views of the top experts on the visual presentation of information.

Other articles and resources on A2L Consulting's site related to litigation graphics, storytelling for persuasion, trial graphics and demonstrative evidence:

pretrial trial graphics motions briefs hearings

Tags: Trial Graphics, Litigation Graphics, Demonstrative Evidence, Persuasive Graphics

Join the Jury & Vote in the LegalTimes Best of the Legal Industry

Posted by Ken Lopez on Mon, Sep 14, 2015 @ 12:39 PM

LegalTimes best of 2015by Ken Lopez
A2L Consulting

As the Internet has become a pervasive part of daily life, we have all become familiar with various online surveys and crowd-sourced review sites. Many restaurants, hotels, resorts and other businesses benefit tremendously from excellent ratings from consumers on Yelp, Google and other sites.

In the legal industry, there are annual surveys that ask about vendors of all sorts that provide services to the industry. One of the best-known is the annual Best of Legal Times survey. And the litigation support services that we provide always form an important and well-regarded portion of this survey.

Since voting is restricted to members of the legal community, the surveys and the voting results offer an excellent guide for those seeking pretrial support, trial support and other litigation support services. Legal Times was founded in 1978. In 2009, Legal Times was merged into the National Law Journal, another American Lawyer Media publication. The company kept the separate branding for the Best of Legal Times survey.

In the last several years, A2L Consulting has won a great many accolades in this and other publications, and we are happy to say we are a past winner in the categories of Best Jury Consultant and Best Demonstrative Evidence Consultant. I deeply appreciate the thousands of votes we have received to date from the legal industry.

We want to keep our position of pre-eminence in the industry. I would be very grateful if you voted for A2L Consulting again this year in the categories of Best Jury Consultant (Question #46) and Best Demonstrative Evidence Consultant (Question #49).

best demonstrative evidence best jury consultant

While this survey may focus on the DC legal community, I think it is valuable to cast a vote, no matter where you are located. After all, firms like ours in the litigation consulting and demonstrative evidence industry usually serve a national audience. Since you need not answer every question to complete the survey properly, only answer those that matter to you and be sure to make it to the last page to hit the "done" button.

Thank you for your support! Click here to vote — deadline soon.

Other recent accolades and surveys that featured A2L as a top firm include:

Tags: Trial Graphics, Litigation Graphics, Jury Consulting, Trial Consulting, Demonstrative Evidence, Litigation Support, Jury Consultants

Free Top-75 Articles E-Book! Help Us Celebrate 7,500 Subscribers!

Posted by Ken Lopez on Tue, Sep 8, 2015 @ 08:30 AM

by Ken Lopez
A2L Consulting

Welcome back from summer (to most), and welcome to the busy fall/winter litigation season.

This blog, The Litigation Consulting Report, is now just about 4 ½ years old. In that time, we have written nearly 500 posts on dozens of trial and presentation-related subjects, including everything from TED talks to Reptile trial techniques to voir dire best-practices.

We've earned accolades, won awards, won countless trials, and we have steadily grown our number of subscribers year after year, and I'm especially thrilled to say that we've just signed up our 7,500th blog subscriber! Every subscription is free, and perhaps that is part of the reason it took us less than a year to grow our community from 5,000 subscribers in September 2014 to 7,500 subscribers in September 2015 — a 50% increase.

To celebrate reaching 7,500 blog subscribers, today we’re publishing (as a free download) this collection of our very best articles to date called, A2L Consulting's Top 75 Articles of All Time. By "very best," I mean that our readers have, by choosing which articles they read most, told us which articles they think are the best. On the Web, your clicks are your votes. We’re thrilled to receive this feedback from you.Many of these articles are geared toward lawyers going to trial, while others are more generally focused on how to give a great speech or presentation. For lawyers and others in the legal industry, we generally write about litigation consulting, litigation graphics, trial strategy and trial technology. For those outside the legal arena, we write about visual persuasion, delivering a great speech and how best to prepare for a PowerPoint presentation.

Some of these articles have been read more than 30,000 times, and we credit this readership with having helped The Litigation Consulting Report be named one of the top 100 blogs in the legal industry and one of the top 10 litigation blogs by the American Bar Association. As a result, our A2L's blog reader demographics isarefascinating, and we continue to make improvements to our blog each and every month. 

I hope that you enjoy these articles. There’s really nothing else like them, and we look forward surpassing 10,000 subscribers soon. Click here or on the images below to download your Top 75 A2L Consulting Articles of All Time Free E-Book!

a2l consulting top 75 articles of all time

Tags: Trial Technicians, Litigation Graphics, Trial Presentation, Jury Consulting, Litigation Consulting, E-Book, Trial Technology, Litigation Support, Jury Consultants, Trial Preparation, Voir Dire, Reptile Trial Strategy

Winning BEFORE Trial - Part 4 - Don't Overlook Visual Persuasion

Posted by Ryan Flax on Tue, Aug 25, 2015 @ 10:20 AM


visual-persuasion-storytelling-for-lawyersby Ryan H. Flax
Managing Director, Litigation Consulting & General Counsel
A2L Consulting

In our last post in this series, we explained why storytelling is the key to gaining and keeping the attention of any decision maker and thus the key to winning before trial.

How does one develop an effective story? Here are the rules of thumb.  

First, the simpler the story, the better, and the simpler the language, the better. Use metaphors involving sensory descriptions. Reduce the facts to a relatable story, and use “word pictures.”

The complete package of storytelling is not just an oral telling of a story; it also involves necessary visual persuasion.

Studies show that at least 60 percent of people learn primarily by seeing. They are visual learners. 

The majority of attorneys, however, are auditory and kinesthetic learners, which means that attorneys typically learn by hearing and/or experiencing something.  When you think about it, this makes sense because lawyers learn this way in law school lectures, and they continue to do so as practicing attorneys by experiencing litigation. However, most people do most of their “learning” watching television or surfing the Internet.

The problem is that most people usually feel more comfortable teaching the way that they prefer to learn. So most lawyers will teach and argue to the decision-makers and will attempt to persuade them by giving a lecture. That is not what most jurors want and is not suitable to most jurors’ style. While judges are even less likely to be visual learners than jurors, many still are visual or kinesthetic learners.

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You can’t just dump information on your jury or judge audience. You have to connect with them. You have to present information in an effective way. How do you bridge that communications gap? The way to do that is by using effective demonstrative exhibits. This way, you will be able to teach and argue, using your comfort zone, but the graphics will provide the judge or jurors with what they need to understand what you’re saying. This gives them a chance to agree with you. This effort should begin in your earliest filings and hearings.

Two researchers recently tested the effect of graphics on jurors. In two different studies, each with four groups of jurors, the researchers looked at the persuasiveness and impact of opening statements in an employment discrimination case. One group of jurors saw no graphics, one group saw graphics with the plaintiff’s opening statement, and one group saw graphics with both opening statements. This was done twice, making a total of eight groups and more than 500 jurors.

The results showed that not only did the use of graphics make an argument stronger, but it actually made jurors feel that the attorney using them was more competent, more credible, and probably more likable. The jurors retained the information better – and the result was better verdicts for the graphics users. When the plaintiff used demonstrative graphics, for example, the defendant was seen as more liable for damages. When the defendant used graphics, the defendant was considered less liable.

So what is the lesson of this study? It is that demonstrative graphics are essentially a mandatory component of any litigation - both during trial and before trial . If you’re not using them and your opposing counsel is using them, you’re in a heap of trouble.

In our next post, we will look at what kind of graphics work – and what kind of graphics don’t work.   Click here to be notified of subsequent articles.

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

A2L Consulting Voir Dire Consultants Handbook

Tags: Trial Graphics, Litigation Graphics, Trial Presentation, Demonstrative Evidence, Advocacy Graphics, Storytelling, Persuasive Graphics, Visual Persuasion

[New & Free E-Book] The Litigation Support Trial Toolkit 3rd Edition

Posted by Ken Lopez on Fri, Jul 24, 2015 @ 12:08 PM


litigation-support-trial-toolkit-3rd-cta-tallby Ken Lopez
A2L Consulting

At A2L Consulting, we have just published our latest e-book – the third edition of the Litigation Support Professional's Trial Toolkit. It's 262 pages long, contains 88 articles and is completely complimentary to download.

This new e-book will be indispensable to any litigator or litigation support professional who wants a summary of the latest thinking in the fields of trial technology, trial graphics, and litigation support.

In this book, we try to demystify the craft of the trial technician, with nitty-gritty discussions of how trial consulting firms do what they do, especially on a tight budget. We present ideas for seamless trial presentations that can be built, if not on a shoestring, on a budget far smaller than one might anticipate. Since the art of trial presentation is often best described as a story-telling venture, we give you the latest on the best story-telling techniques, including 16 trial presentation tips from classic Hollywood movies. We also provide 13 reasons why it’s not a good idea to do your trial preparation at the last minute, 12 great ways to combine oral and visual presentations, and five questions you should always ask in voir dire.

The e-book is also a guide to the newest and most interesting software and the best presentation techniques. We show how e-briefs are used in courtrooms every day, how the iPad-friendly courtroom works, the best uses of PowerPoint, and Prezi, which does what PowerPoint does but differently and often more effectively. We even go into the best ways to use basic technology like wall charts and whiteboards, and why old-fashioned techniques such as bullet points don’t work. (We also show you the techniques that do work.)

We tell you about the six trial presentation errors that lawyers can easily avoid, seven ways to draft a better opening statement (and why the opening statement is the most important part of the case), and how to be prepared at all times for possible failure of your systems.

The e-book also explains, based on the latest psychological and sociological studies, why litigation graphics are crucial in the modern courtroom, why many jurors obtain their information from visuals rather than from written documents, and even why varying the font that one uses can help influence jurors. Courtroom persuasion is both an art and a science, and the successful trial technician can benefit from the latest research findings on persuasion.

Along those lines, we try to tear down some myths about courtroom presentation – like the idea that jurors shun presentations that are too slick, that jurors have an instinctive dislike for technology, that jurors usually prefer a “David” to a “Goliath” client in the courtroom, and that Hollywood movies about trials have nothing to teach the real-life litigator.

Finally, our e-book tackles some of the difficult problems that can occur in the preparation process itself. How do you overcome internal disagreements? Who calls the shots – the trial technician, the lawyer, or the ultimate client? How is anxiety subtly conveyed from one trial team member to another, and how does the cycle of anxiety stop?

No litigation support professional or high-stakes litigator can afford to be without this indispensable free book.

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Tags: Trial Graphics, Trial Technicians, Litigation Graphics, E-Book, Demonstrative Evidence, Trial Technology, Litigation Support, Trial Preparation

10 Types of Value Added by Litigation Graphics Consultants

Posted by Ken Lopez on Mon, Jul 20, 2015 @ 03:10 PM


value-added-litigation-graphics-consultants-trialby Ken Lopez
A2L Consulting

Over breakfast the other day, a partner in a major law firm was explaining to me that it can be challenging to explain the added value that litigation graphics consultants can provide in a case, especially given the challenging budget environment in which litigators operate today.  He was surprised when I said that the key here is not the fact that graphics consultants know how to prepare PowerPoints.

After all, the average law firm associate can prepare a pretty decent PowerPoint presentation. The problem is that perhaps one in 500 PowerPoints prepared by a smart and well-informed law firm associate does more good than harm. What litigation consultants can do for a trial team is more complex, more persuasive and more sophisticated.

So here are ten ways in which a litigation graphics consultant would add value where a litigation associate might cause harm or simply might not provide benefit.

1. Supporting the development of a narrative. We've written about this extensively, and great graphics consultants like those at our firm have enormous value here. One of the essences of trial presentation is telling a narrative. See, $300 Million of Litigation Consulting and Storytelling Validation.

2. Helping separate the theme from the narrative. Many of us who took trial advocacy were taught to start out our openings with "this is a case about . . . ." After that, we would usually state our theme. What many lawyers were not taught was how to develop a persuasive narrative. A few rare litigation graphics consultants can operate at the 1st chair level and offer this kind of support. See, 14 Differences Between a Theme and a Story in Litigation and 21 Reasons a Litigator Is Your Best Litigation Graphics Consultant.

3. Helping combat the now-fashionable “Reptile” trial strategy tactics that plaintiffs lawyers use. We have discussed this in several recent blog posts. See, Repelling the Reptile Trial Strategy as Defense Counsel.

4. Making sure that you don’t invoke the split attention or redundancy effect. This is the error of presenting information orally and in writing at the same time. See, Why Reading Your Litigation PowerPoint Slides Hurts Jurors.

5. Offering that fresh pair of eyes. See, 12 Reasons Litigation Graphics are More Complicated Than You Think.

6. Creating a high-end PowerPoint that makes a positive difference. See, 16 PowerPoint Litigation Graphics You Won't Believe Are PowerPoint.

7. Freeing up litigation counsel to be lawyers. My mentor likes to say that we should only do what we are best at. In the run-up to a trial or hearing, there is always more legal work that needs to be done. The role of litigators should be to review draft presentations and provide feedback to the consultants who have actually developed the presentation. See, Trial Graphics Dilemma: Why Can't I Make My Own Slides? (Says Lawyer).

8. Litigation consultants can use nearly unknown techniques for persuasion like surprise, chart tricks, statistical persuasion or methods to overcome cognitive bias

9. Asking tough questions. See, How I Used Litigation Graphics as a Litigator and How You Could Too.

10. Bringing to the fore their extensive trial experience. Top trial consultants such as those on our team may go to trial 50 to 100 times per year. By working with them, trial lawyers gain the benefit of hearing about the best practices of other trial teams. See, With So Few Trials, Where Do You Find Trial Experience Now?

Other articles and resources on A2L Consulting's site related to litigation graphics, storytelling for persuasion, trial graphics and demonstrative evidence:

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Tags: Trial Graphics, Litigation Graphics, Trial Presentation, Courtroom Presentations, Litigation Consulting, Trial Consulting, Demonstrative Evidence, PowerPoint

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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.

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Ryan H. Flax, Esq., Managing Director, Litigation Consulting, joined A2L Consulting on the heels of practicing Intellectual Property (IP) law as part of the Intellectual Property team at Dickstein Shapiro LLP, a national law firm based in Washington, DC.  Over the course of his career, Ryan has obtained jury verdicts totaling well over $1 billion in damages on behalf of his clients and has helped clients navigate the turbulent waters of their competitors’ patents.  Ryan can be reached at flax@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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