The Litigation Consulting Report

A Mixed Litigation Industry Outlook for 2015

Posted by Ken Lopez on Wed, Dec 10, 2014 @ 03:13 PM

 

2015-economic-outlook-litigation-industryby Ken Lopez
Founder/CEO
A2L Consulting

The tree is up, the 2015 strategic plan is done, holiday travel plans are all set, so it must be time for my annual litigation industry economic outlook for 2015. First though, a reminder of why I do this.

I believe that the litigation industry's performance is closely tied to broader economy's performance. This is especially true for big-ticket cases.

As I have done in 2012, 2013, and earlier this year, I create an economic forecast to both exercise my undergraduate degree in economics a bit and force myself to take a hard look at what the coming year will be like for those of us who focus on litigation for a living.

While I can't help paying attention to anecdotal indicators, each year I focus on one leading indicator of economic conditions, ECRI's U.S. Weekly Leading Index. It reliably forecasts economic growth about eight months out into the future.

Big-ticket litigation is largely dominated by large companies who are sophisticated in their monitoring of economic conditions on a day-to-day basis, and it appears that they adjust their litigation spend rather quickly based on changes in the economic climate. When economic conditions are good they file cases, they spend on cases and they tend not to settle cases. When economic conditions are bad or uncertain, they don't file cases with the same fervor, and they do settle cases more quickly.

Truthfully, it's a complicated correlation dollar-wise as it usually takes a couple of good years of economic growth for cases to start being filed in earnest. Since litigation spending increases toward trial, there is also a lag for an upswing on litigation spend.

Anecdotally, we're seeing cases go to trial that might not have made it to trial a couple of years ago and A2L Consulting continues to grow. However, in just the past month we have seen one of the industry's best-known brands, Trial Graphix, be picked apart and sold yet again (is this the fourth time in five years?). It's not easy going in litigation support, but there is growth for those that deliver great value.

Before turning to the forecast, it's worth addressing what gets reported in the popular press. After all, the press keeps saying jobs are growing at the best rate in decades, and all the jobs lost since the beginning of the 2008 recession have been recovered. Well as much as I'd like to get on a bandwagon of optimism, the facts just don't support it - at the very least, the press is cherry picking the good news.

In reality, labor market participation, the percentage of Americans working, is at the lowest number since 1978, the Jimmy Carter years. Furthermore the jobs that are being created tend to be low-wage part-time positions. Wages, the total amount paid to workers in the U.S., are actually down 23% since just 2008.

Now, here's what the forecast says. When looking at the charts below, in the general, up is good and down is bad. The green line is the forecast of economic growth. The blue is what happened in reality.

ecri-wlgi-litigation-industry-economy

Here's what this chart says. The blue line tells us that economic growth has been positive for all of 2014 (yes, we did see a GNP dip in Q1 as I discussed earlier this year). The green line, the forecast of the future, tells us something ominous. Up until about June, future economic growth looked slow and steady, but that's when that indicator started falling. It's now negative. That means, beginning in about June + 8 months or so, about February 2015, we can expect to see conditions worsen for the broader economy until at least fall 2015.

Might falling oil prices give the economy a boost? Maybe, but those effects lag at least six months.

Here's the good news. Not many people have spare cash in this economy yet. But you know who does? Big companies do. Corporate profits are at their highest levels since the mid-1960s!

So, while the overall outlook for workers and small and medium sized businesses may not be great, those who focus on servicing the needs of big companies will likely be successful in doing so - if they deliver great value. That is where most of A2L's attention will be in 2015, and that is true for most large law firms.

Articles related to the economics of the litigation market, law firm sales, pricing and more on A2L Consulting's site:

Tags: Economics, Litigation Graphics, Litigation Consulting, Litigation Management, Litigation Support, Pricing, Leadership, Midsize Law Firms

In-House Counsel Should Make Outside Litigation Counsel Feel Safe

Posted by Ken Lopez on Fri, Dec 5, 2014 @ 11:04 AM

 

in-house-counsel-penny-wise-pound-foolish-pleasing-affraid-to-ask-supportby Ken Lopez
Founder/CEO
A2L Consulting

Earlier this week I published, 25 Things In-House Counsel Should Insist Outside Litigation Counsel DoI realized something important while writing that article and while participating in follow-up discussions with readers and colleagues. It's an important realization as I think recognition of it might just lead to better litigation results and money savings for in-house counsel.

Here it is. Because of the current state of the relationship between most in-house counsel and outside litigation counsel, outside counsel are not asking for budget for everything they believe would help win a case. This is leading to short term savings and longer term major expenses.

You see, outside litigation counsel really want to please in-house counsel. And why shouldn't they? In-house counsel pays the bills, they ARE the client, and they represent the holy grail—the hope of a longer and broader legal relationship that pays dividends for the relationship/billing partner for years to come.

So, what's wrong with having a service provider try to please you? We could all use more of that, right? Isn't that just good customer service?

Here's the problem. Outside litigation counsel is, ideally, not acting as a mere service provider. Rather, they are acting as, and please forgive the cliche, a trusted advisor. Unfortunately, I think most outside litigation counsel feel like the balance between trusted advisor status and mere service provider status has tipped a bit too far toward service provider status in recent years.

When you are a service provider, your motivations are a bit different than when you are a trusted advisor. As a service provider, your goal is to make the customer happy and preserve the business relationship. You wouldn't want your doctor to only tell you what you want to hear. You want them to tell you what you need to hear. The same is true for your outside litigation counsel. But how can we expect outside litigation counsel to tell us the truth if they don't feel safe doing so.

I think most outside litigation counsel are scared. They're scared of losing business. They're scared of RFPs. They're scared of asking for what they honestly believe they need. And I think it is negatively affecting litigation outcomes, and I think it is mostly up to in-house counsel to solve this.

My mentor recently said, if you're not getting what you want from a relationship, your partner is likely not experiencing you as safe. It's true in any relationship, of course. Translated for litigation, if you're not getting the litigation outcomes you seek, it may be because outside litigation counsel does not feel safe asking you for the tools they need.

So, if you are in an in-house counsel role, ask yourself, are my litigators truly comfortable telling me, let alone asking for, what they need? Are they talking to me about mock trials, litigation consultants, and litigation graphics created based on persuasion science rather than the mere gut instinct of an inexpensive twenty-something graphic artist?

If they are not telling you that they need these things, it's likely either because they are afraid to ask or because they don't know that they should be asking. Either way, it's probably going to be up to you as in-house counsel to solve this problem, and my article from earlier this week about the in-house/outside counsel relationship provides a good framework for discussion.

Other articles by A2L Consulting focusing on litigation consulting, in-house counsel and value:

Tags: Litigation Graphics, Mock Trial, Litigation Consulting, Litigation Management, Pricing, Leadership, In-House Counsel, Alternative Fee Arrangements

25 Things In-House Counsel Should Insist Outside Litigation Counsel Do

Posted by Ken Lopez on Tue, Dec 2, 2014 @ 04:00 PM

 

in-house-counsel-outside-litigation-counsel-requirementsKen Lopez
Founder/CEO
A2L Consulting

The relationship between in-house counsel and outside litigation counsel has changed dramatically over the last 20 years. Technology and the Internet have been the driving forces for many of the changes. 

Technology growth has forced outside litigation counsel into a quasi-technology consultant role in the way they deal with e-discovery and case management. Technology has made litigation more complex as the underlying subject matter of cases has become more complex. The availability of information via the Internet has made in-house counsel a more savvy shopper and a better informed manager. Technology has surely changed the way outside litigation counsel tries cases and has forced trial counsel to be trial-technology savvy. There are many more examples of how the fast flow of information is altering the balance of power between in-house and outside counsel, but you get the idea. Reflecting these changing times, the 25-point list below offers useful best-practices that in-house counsel should be demanding from outside litigation counsel.

  1. Alternative fee arrangements. At A2L, we have all but left the billable hour behind as a measurement of delivering value—mostly because it does not measure value at all. In July of 2013, we wrote about the 12 different alternative fee arrangements we use at A2L as a guide for anyone selling professional services. Not all clients want AFAs but they probably should. There's no better way to align the value of services delivered to the size of the problem solved.

  2. Mock trials. As we wrote in 7 Reasons In-House Counsel Should Want a Mock Trial, there are so many good reasons to conduct a mock trial and almost no reason, except for budget, not to. Dollar for dollar, I think a mock trial is the single best investment in-house counsel can make in trying to win a case. Since outside counsel may be hesitant to request budget for it, it may very well be up to in-house counsel to recommend it.

  3. Story development. Although many great trial attorneys used the technique 20 years ago, the science of why storytelling helps persuade was not fully understood. Today, it is recognized as essential for trial. See, Storytelling Proven to be Scientifically More Persuasive. All trial counsel should be able to articulate a clear story well before trial that succinctly explains the case and why your side should win. See also, 14 Differences Between a Theme and a Story in Litigation and 5 Essential Elements of Storytelling and Persuasion.


  4. A story that people care about. Not just any story will do. Trial counsel must develop a compelling story that both judge and jury will care about. See:

    1. Free webinar: Storytelling for Litigators
    2. 5 Keys to Telling a Compelling Story in the Courtroom
    3. Every Litigator Should Watch Scott Harrison Deliver This Presentation
    4. Your Trial Presentation Must Answer: Why Are You Telling Me That?
    5. Free download: Storytelling for Litigators E-Book 3rd Ed.

  5. Open practice. In addition to a mock trial, good trial counsel will want to schedule structured practice sessions and invite in-house counsel to attend. See 3 Ways to Force Yourself to Practice Your Trial Presentation and Practice is a Crucial Piece of the Storytelling Puzzle.

  6. Accept coaching. In this era where the highest profile litigators only go to trial rarely, using a coach, usually in the form of a litigation consultant is a best-practice. These professionals spend most of their time preparing for trial and in the courtroom, perhaps working on dozens of trials per year. See, Accepting Litigation Consulting is the New Hurdle for Litigators and Working in Parallel vs. Series with Trial Presentation Consultants.

  7. Abandon the last-minute when it comes to trial. The era of the litigator who swoops in at the last minute and tries a case, occasionally needing to be reminded of the client's name, is largely over. In-house counsel must be prepared to communicate the expectation that a case should be trial ready well before trial. See, The 13 Biggest Reasons to Avoid Last-Minute Trial Preparation.

  8. Use technology well. Litigators should be so well-practiced in their use of trial technology that it should look seamless. Missteps in the use of technology destroy credibility, and they must be anticipated and avoided. See:

    1. 5 Tips for Displaying Documents Well at Trial [CVN Video]
    2. 24 Mistakes That Make For a DeMONSTERative Evidence Nightmare
    3. Will Being Folksy and Low-Tech Help You Win a Case?
    4. 6 Tips for Effectively Using Video Depositions at Trial
    5. 12 Ways to Avoid a Trial Technology Superbowl-style Courtroom Blackout

  9. Use trial technicians well. There may come a time when trial counsel controls their presentation just as on-air meteorologists do with a simple clicker, but we're not there yet. Courtroom presentations are dynamic and unpredictable. If trial counsel is to look like a professional, they must learn how to work with a trial technician well. See:

    1. Making Good Use of Trial Director & Demonstratives in an Arbitration
    2. Why Trial Tech ≠ Litigation Graphics
    3. 11 Traits of Great Courtroom Trial Technicians
    4. 5 Tips for Using TrialDirector and Trial Technicians Effectively
    5. Download: Finding and using the best trial technicians



  10. No more surprises. I used to have a competitor that would low-ball every bid, bill 3x at trial and then write down their invoice by 10% when a post-trial dispute arose over the invoice. Once one of the top brands in the industry, they now lay in shambles, not surprisingly. We have always lived by a no-surprises model when it comes to pricing and billing. It is reasonable to insist on the same from outside counsel and legal consultants like us. See, 17 Tips for Great Preferred Vendor Programs.

  11. Post-trial lessons-learned sessions. Elite organizations spend lots of time planning and lots of time debriefing after the mission. Litigation should be no different. See, 9 Questions to Ask in Your Litigation Postmortem or Debrief.

  12. Be upfront about trial costs. To be fair, I've said this more than one way already, but it is worth emphasizing. If your vendor or outside counsel can't tell you what it is going to cost, how much experience do they really have? Very often, it is the job of in-house counsel to make outside counsel comfortable spending what is needed to win. Trust me, they're often afraid to ask. See, Learn How to Get Value in The New Normal Legal Economy.

  13. Proof they are staying current. How do you know your outside counsel is staying current with modern best-practices? If they are trying cases just like they did 20 years ago, they are going to see diminishing returns. Insist on proof that they are improving their game outside of simple CLEs and the like. See, 19 Ways in Which the World Has Changed Since 1995.

  14. Research your judge. No longer do we have to rely on vague tips from local counsel. Outside counsel should understand what really makes a judge tick and exploit that knowledge. Ask them what they know and push them to learn more. See, 21 Ingenious Ways to Research Your Judge.

  15. Anticipate non-legal implications. For litigators to really be trusted advisers, they need to demonstrate that they understand that things said in a courtroom can have a profound implication for the company, from reputation to stock price. Some day, cameras will be allowed in all courtrooms, and this will only accelerate the need to take a more global view of the client. Make sure your outside litigators understand the big picture. See, 10 Web Videos Our Jury Consultants Say All Litigators Must See.



  16. Really prepare the witnesses. Whether expert or fact witnesses, all witnesses should be professionally prepared. There is simply too much riding on their testimony. Litigation consultants and jury consultants may be better positioned to do this than lawyers at the firm. See:

    1. Witness Preparation: Hit or Myth?
    2. The Top 14 Testimony Tips for Litigators and Expert Witnesses
    3. Witness Preparation: The Most Important Part
    4. 7 Things Expert Witnesses Should Never Say
    5. 7 Smart Ways for Expert Witnesses to Give Better Testimony

  17. Work well with others. Litigators must also be leaders, and they must set an example for how to behave. They are representatives of the company and must remember this whether in an elevator, at a restaurant or on a subway. See, 5 Tips for Working Well As a Joint Defense Team10 Signs the Pressure is Getting to You and What to Do About It, Download: Leadership for Lawyers.

  18. Don't push boundaries. Whether ethical, legal or business boundaries, ask your outside counsel not to get too close to any boundary. In recent years we have seen such decisions bring down major law firms, and you don't want a scandal to land on your doorstep.

  19. Don't say "my client." Modern litigators should know how to personalize the company and tell the company story in the best way possible. See, 7 Things You Never Want to Say in Court.

  20. Don't melt down. I've seen plenty of partners melt down at trial, and I have seen plenty of partners sleep soundly on the eve of trial. A meltdown is usually a sign of poor preparation, and it is most certainly the role of in-house counsel to ensure that preparation is done early and done well. See, When a Good Trial Team Goes Bad: The Psychology of Team Anxiety and 5 Signs of a Dysfunctional Trial Team (and What to Do About It).

  21. No condescension about what they know. Of course trial counsel knows more about trying a case than in-house counsel. If they didn't, you wouldn't need them. However, the best outside litigation counsel include in-house counsel in the process of trial preparation and never talk down to the client.

  22. Body language and appearance. Outside trial counsel should understand the impact of body language and how best to appear in the courtroom. Even tie color makes a difference. See, 7 Videos About Body Language Our Litigation Consultants Recommend and Litigation Graphics, Psychology and Color Meaning.

  23. Use litigation graphics well. Yes, we have written the book on this topic, and A2L was once again just voted #1 demonstrative evidence consultants. This litigator-authored article describes the state-of-the-art thinking surrounding litigation graphics: How I Used Litigation Graphics as a Litigator and How You Could Too.



  24. Likability. In the courtroom, it matters a great deal that people like you. Maker sure that your outside counsel knows how to appeal to judge and jury. See, Like It or Not: Likeability Counts for Credibility in the Courtroom and 5 Things Every Jury Needs From You.

  25. Subscribe to this blog. Really, it may be the easiest (and certainly the cheapest) way to know that your trial counsel is staying current with best practices. Here's a free subscription that you can share.

In-house counsel, I can tell you that based on hundreds of conversations I have had over the years, outside litigation counsel is scared to make you unhappy. This means they hesitate to ask for budget for things that will help win the case. Part of your role has to be to insist on supurb trial preparation as you have the most riding on the outcome. Help guide outside counsel, and make them comfortable asking for the tools they need to win. You'll win more cases if you do.

Tags: Trial Technicians, Litigation Graphics, Mock Trial, Litigation Consulting, Trial Technology, Trial Preparation, Storytelling, In-House Counsel

How Long Before Trial Should I Begin Preparing My Trial Graphics?

Posted by Ken Lopez on Wed, Nov 26, 2014 @ 02:18 PM

 

how-long-before-trial-prepare-trial-graphics-consultantsby Ken Lopez
Founder/CEO
A2L Consulting

"How long in advance of trial should I be working with my trial graphics firm?"

I hear this question in some form quite regularly. Often the person asking it has some idea of what they are planning to do, and they are looking for validation of their plan. However, for those who are genuinely looking for best-practices, I can offer meaningful guidance based on 20 years of advising top litigators and watching top trial teams prepare for trial.

Clearly, a balance must be struck between the likelihood of settlement and the value of preparing your trial presentation long in advance of trial. Prepare too late and you risk not helping your fact finders understand your case, and you surely won't be maximizing your persuasiveness. Prepare too early and you run the risk of doing work that won't be needed if settlement occurs, and you might be focusing too much on your trial presentation and not enough on developing a good record.

So what's the right amount of prep time for trial graphics?

For some cases that we work on at A2L, we will begin graphics preparation and mock trial testing years in advance of trial. Sometimes we start working a potential issue before a single lawsuit has been filed. For other cases, we begin our work only days ahead of trial. The right answer for your case depends on several factors.

  • How much is at stake? If the answer is billions of dollars, a minimum of six months of trial graphics preparation is required, and the best practice approach would be a year or more. If the answer is a few million dollars, a month should be sufficient. If the answer is in between (and most of the time it will be), follow a best-practice approach of nine months of lead time and never dip below three months of lead time.

  • Is this pattern litigation? For pattern litigation, apply the rules above, but measure what is at stake by looking at the overall value of the potential cases combined.

  • Is the subject matter challenging? Some cases are more complex than others. A patent case involving chemistry with twelve patents at issue is much harder for a judge and jury than a single-site environmental contamination case. An antitrust case requiring complex economic testimony about market power is more complicated than a employment discrimination case. If you can't explain your case and why you should win to your grandparent in less than 30 seconds, it's probably complicated. In these instances, follow best-practice schedules, not a minimum allowable time approach.

  • Is it a close call? Be honest. Can you see a way that your opponent can win this case? If the answer is yes, prepare at a best-practice level time frames, not on minimum schedules.
     
  • Do you plan to test your trial graphics with a mock jury or in a mock bench trial? Without the benefit of having tested your trial presentation, it's very hard to know how well you prepared. Testing a case once is helpful, but real value happens when a case is tested multiple times, thus allowing for course corrections from the first event to be tested in subsequent events. If you are planning for a mock trial add three to six months to the trial graphics prep schedule.

A great deal can be achieved at the 11th hour. The litigation consultants, the litigation graphics consultants and the jury consultants on our team can very quickly assess whether best practices are being applied to persuasive storytelling, courtroom communications and trial presentation. Quick changes are possible that yield big results even late in the game. So, in a sense, it is never too late to focus on trial graphics.

Of course, it is probably never too early either. Building a compelling and persuasive story that people care about takes time, and a lot is left on the cutting room floor. There are just some things that cannot be rushed no matter how much talent, experience or intelligence are involved in trial preparations.

You will know that you've prepared enough when you know your presentation is going to work. You know it's going to work because you've tested it in a mock trial, a micro mock event, or by some other method. Great law firms and great in-house counsel favor intense trial preparation early regardless of the possibility of settlement.

Other articles related to trial graphics, litigation graphics and demonstrative evidence from A2L Consulting:

Tags: Trial Graphics, Litigation Graphics, Trial Presentation, Courtroom Presentations, Mock Trial, Demonstrative Evidence, Trial Preparation, Storytelling, Persuasive Graphics

Useful Directory of Peer-Approved Legal Consultants and Vendors

Posted by Ken Lopez on Tue, Nov 25, 2014 @ 11:45 AM

 

best-of-the-legal-times-2014-reader-rankingsby Ken Lopez
Founder/CEO
A2L Consulting

Yesterday, Legal Times released its annual directory of top legal consultants and vendors, The Best of Legal Times Reader Rankings 2014. While this reader-generated list focuses on Washington, DC, most of the categories have national relevance. In fact, most winning firms, like ours, are national firms who win similar accolades from Legal Times' sister publication, The National Law Journal.

600 firms were in the running for the various categories that include everything from jury consultants to litigation financiers to law firm web design to expert witness providers and much more. I'm very pleased to share the news that A2L Consulting, was voted #1 or #2 in all three of our core service areas. Click the green button at the end of this article to download your free copy of this useful directory.

Legal Times readers voted A2L Consulting:

  • #1 Demonstrative Evidence (Litigation Graphics) Provider
  • #2 Trial Consultants (Courtroom Trial Technicians)
  • #2 Jury Consultants

Legal Times appears to go to great lengths to ensure that only lawyers, paralegals and other members of the legal community are allowed to cast a vote. Legal vendor votes are not counted and neither are votes coming from non-work addresses like Gmail and Hotmail. Thus, this directory is quite valuable since each highly ranked firm is genuinely peer-approved.

In January, the National Law Journal will open its annual survey for voting. I hope that you will vote in this and other similar polls. Doing so helps highlight firms who are best-of-breed and elevates the performance of the entire legal industry.

You might also find these other free A2L resources helpful:

 

Tags: Trial Graphics, Trial Technicians, Trial Consultants, Litigation Graphics, Trial Presentation, Demonstrative Evidence, Jury Consultants, Washington D.C.

7 PowerPoint Trial Presentation Secrets Revealed

Posted by Alex Brown on Tue, Nov 18, 2014 @ 09:50 AM

 

trial-presentation-powerpoint-tool-mistakesby Alex Brown
Director of Operations
A2L Consulting

My hobby is woodworking. Recently, I had to build a dog fence so that my wife could train one of our dogs. From photos I figured out the dimensions, type of wood to use, and the hardware needed. What I did not take into consideration were the tools I would need to complete the job easily and on schedule.

In the process of building the fence, I ended up at our local ACE Hardware store shopping for multiple tools including one I had never used before, a planer. Only after destroying a few key parts for the fence did I learned my lesson, and I decided to figure out how to use the tool that was supposed to make the job easier.

When preparing for a trial, most decisions are made prior to the actual trying of the case. Who will be the expert witnesses, what is the theme, how and when do we introduce our evidence, and how do we present it to the jury or judge in an engaging and persuasive way in the form of a trial presentation. PowerPoint is key to most trial presentations, and we all believe we know how to use this tool. But, we also know that at 3 AM, 48 hours prior to opening statements, is the time when Murphy's Law shows up to cause a little havoc. Below are seven ways to use PowerPoint effectively to reduce the strain that Mr. Murphy seems to always introduce.

  1. Outline. Before you even click on the PowerPoint icon, you need to have the content ready so you can create an appealing graphic for trial presentation. What is your goal, who is your audience, what are the key points that need to be shown, and what needs to be discussed? Only then can you create the visual representation to persuade the audience.

  2. Less is more. Upon what should your audience be focusing while you are talking? You (mostly). The best presenters in the world know this, and we are mesmerized when they give a presentation. Reduce your text and increase your visuals. If someone tells you that a picture is NOT worth a thousand words, it is because they could not figure out what the picture should be. We are a visual society (the majority of the population learn and remember this way) this is your audience.

  3. You are not your audience. Most litigators are NOT visual preference learners. You have to remember to present in the language of your audience. Use all of the learning styles, use your words, but make sure your visuals support these words. Use models or boards so those in your audience that are "hands on" get the chance to learn from their base. This combination will mean, at one point or another, you will speak directly to everyone; this is key when you are trying to make them understand and, more importantly, persuade them.

  4. Timing is everything. If you are following the best practice of having each trial presentation slide only contain one point at a time, understand that this is one of the reasons: IMPACT. Have you ever been telling a joke and someone blurts out the punchline before you're finished? As you are guiding the jury down the story line you use your visuals as support, and when the time is right (not too early, and definitely not too late), you reveal your "impact" image to support your theme with the "smoking gun" evidence or graphic. It is a sure fire way to hammer your point home.

  5. Style is important. As much as we believe we know how to create an awesome PowerPoint, there are things that we do not use often enough, like Style Sheets. These are important so your presentation does not look like 66 writers were used to create it. Style Sheets allow you to create a unified and intentional look that flows from start to finish and keeps jurors focused on content, not uneven boarders, odd colors, or worse case, "I can’t read that, what did it say?"

  6. Practice? Were talkin' about Practice. "Practice doesn't make perfect. Practice reduces the imperfection." The key to a great PowerPoint trial presentation is, when you are using it, make sure it's not the first time. You have to know it as well as you know your story so it can be integrated into a cohesive unit, not just appear to be an afterthought.

  7. Use a professional. Last month I hired a podiatrist to perform open heart surgery on my family dog, said no one EVER. You are a litigator, and I’ll assume a damn good one, why in the world would you take time off the clock to create a PowerPoint presentation? Using a professional can actually reduce the pressure and cost of trial preparation for you and your client. A professional should be able to comprehend your theme and integrate it into the presentation. They should do it faster than anyone in your firm possibly will, and better. They should be able to give YOU ideas and an outsider's perspective that you might not have considered, and they should have the experience to make you comfortable with the process, allowing you to stay focused. The best of the best litigation consultants have litigation experience that they draw from which gives you another expert in the room when strategies are developed and implemented.

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

Tags: Litigation Graphics, Trial Presentation, Courtroom Presentations, Demonstrative Evidence, Juries, Practice, PowerPoint, Visual Persuasion

How I Used Litigation Graphics as a Litigator and How You Could Too

Posted by Ryan Flax on Wed, Nov 12, 2014 @ 03:58 PM

 

litigation-graphics-trial-graphics-demonstrative-evidenceby Ryan H. Flax, Esq.
Managing Director, Litigation Consulting
A2L Consulting

It is well known and generally accepted by the top performers in the litigation community that you need to use demonstrative evidence, including litigation graphics, to be persuasive at trial. As a scientific certainty, using visual support to back up your key points and arguments is critical to maximizing persuasiveness. As a litigator, I’ve personally created and used graphics, and developed litigation graphics for others, to use at trial, at Markman (patent claim construction) hearings, and for other presentations. As a litigation consultant, I’ve seen countless terrific litigators both understand that they do need graphics and at the same time misunderstand how they should be using litigation graphics in these and similar settings.

My new friend, Alan Fisch of the DC-based, IP litigation powerhouse Fisch Sigler LLP, and I were just discussing this over lunch and agreed that it’s remarkable how true this is and how many great litigators lose at trial because they fail to master the basic principles of trial persuasion. Using trial graphics incorrectly can be as bad as or worse than not using them at all.

visual-learners-preference-jurorsBefore getting into the “how,” the question of “why” visual support is so critical to trial success must be touched-upon. Studies show that the majority of people are visual-preference learners, or at least combination visual and some-other-learning-style-learners. See, e.g., Felder and Spurlin, Applications, Reliability and Validity of the Index of Learning Styles, Int. J. Engng. Ed. Vol. 21, No. 1 at 103-112 (2005); Ayse Esmeray Yogun, Match or Mismatch Between Business Students’ and Business Academicians’ Learning Styles: A Research at Toros University, The Macrotheme Rev. 3(2), 38-46 (Spring 2014); see also, Animators at Law Communication Style Study. This means that people want to be taught and will better understand lawyer argument and witness testimony if it is not only spoken to them, but also shown to them visually.  The theory is that by presenting information and argument to jurors (and judges) in the way they likely prefer to receive it, they’ll enjoy and pay more attention to your presentation and remember what you say.

powerpoint-persuasion-litigationThere is actual scientific research to back this up, specifically in the litigation setting. A wonderful man named Dr. Jai Park and his research partner, attorney Neal Feigenson, studied the effects of using visual support (in the form of PowerPoint graphics) during opening statements of a basic employment discrimination lawsuit. Dr. Park and Mr. Feigenson found that using litigation graphics improved ultimate results (verdicts) by making jurors believe that the attorney using them was more capable, better prepared and probably more likable. Jurors were able to understand and remember the facts better when graphics were used.

broda-baum-immersive-trial-graphicsBeyond merely knowing that visual support must be used at trial, we know that you need to use an immersive technique when arguing and showing graphics.  Jury consultant Dr. Ken Broda-Bahm performed a study on mock jurors by using five different techniques for presenting oral argument (opening statements): (1) no graphics at all; (2) old-school flip charts; (3) professionally made, static graphics that were only sporadically shown; (4) fancier professionally made animated graphics still sporadically shown; and (5) a combination of 3 and 4 where the jurors were always given something to see during the presentation. Surprisingly, only the last technique, the immersive style, made any significant improvement in persuasiveness.

storytelling-litigation-courtroom-trialAnother important point is that we know that your argument needs to be structured as a story. People are hard wired to enjoy and expect stories. Storytelling literally gets the teller (you) and listener (juror) on the same mental wavelength. By this I mean that the very same areas of the brain are activated in synchronicity in the storyteller’s and listener’s brains – they share thinking patterns. Also, good storytelling causes release of oxytocin, called the trust molecule, in listener’s bodies. This physical reaction to a good story makes an audience more likely to be sympathetic and ready to “help,” which is what you want a jury feeling when your case is presented.

maya-angelou-made-them-feelAnd this word – feeling – is the key to victory at trial. As Dr. Maya Angelou famously said, “[p]eople will forget what you said, people will forget what you did, but people will never forget how you made them feel.” This is doubly true for jurors and litigators. Jurors will most remember how they felt about you and your case, and thus, about your client, and will decide your fate based on that feeling, sprinkled with some of the salient facts from the trial that fit with their conclusion on how the case should turn out.  Make them feel like you won.

All the above is essential knowledge to be persuasive at trial. You need to tell a compelling story, you need to support that story with litigation graphics, and you need to show those litigation graphics in an immersive way. But, how do we as litigators do this in real life? Here’s how:

When I explain these concepts to other litigators, and I do this all the time, I analogize trial presentation to the television news, where there are two kinds of presentation graphics. We are all well acquainted with the broadcast news and are comfortable with the style and format of its typical (really universal) presentation. The news is an informative presentation that always uses an immersive graphical style to tell story after story after story. The goal of the broadcast is usually to quickly inform you as a consumer of mass media, probably to evoke some emotion, and sometimes to persuade. What do we see news broadcasters doing and how can we adopt a similar style to be persuasive in presenting trial argument?

news-litigation-graphics-brian-williamsTake a good look at the photo here of anchor Brian Williams of the NBC Nightly News. Most news reports, like those presented by Williams, are dominated by the anchor speaking directly to us through the camera. Almost always, next to the anchor’s head is a large graphic, which is almost always static, but for (maybe) some sort of animated entrance for the graphic. This is what you see in this photo of Brian Williams reporting on an airline crash.

You obviously cannot hear anything of what Williams was saying because I’ve only provided you a picture, but you “know” what he’s saying nonetheless.  You’ve already created some “story” in your own mind explaining what you’re seeing in the picture – to explain the emotions evoked in you by seeing the image of the crashed plane and the look of concern on Williams’s face. Your concocted story may or may not be correct, but the mere fact that you’ve developed one for yourself is proof that everything I’ve said above is correct.

This is how you’ll use the lion share of your trial graphics during your immersive presentation.  You’ll make your points and tell your client’s story orally and show the jury graphics that support those point, storylines, and themes. However, this is not what most litigators think of when they think they need litigation graphics. What they typically think of is the weather man.

washington-dc-litigation-support-graphics-courtroomTo continue with my news report analogy, there is a wholly different kind of litigation graphic that will be interspersed within your larger visual courtroom presentation.  These second type of graphics are more complex, are directed to more complicated subject matter and issues, and are expressly spoken to by the presenter (you). These types of graphics are like those used by Washington, DC’s NBC4’s Doug Kammerer here in the photo of him doing a weather report and forecast. 

Kammerer is standing in front of his graphics (actually, they are superimposed over a green screen in production, but he can see what he’s doing) and discussing them in detail. You see that he is pointing to the jet stream pattern and the cold front it’s pulling down from Canada into the United States. You know what that weather pattern is doing – it is making us very cold – because the colors and graphics tell us that.

He’s looking us in the eye, but talking about the complicated weather patterns graphically displayed behind him – he’s explaining complex things to us in a way that we understand even though we are not meteorologists.  

Here’s America’s beloved weatherman, Al Roker of the Today Show explaining how to talk to a graphic like this:

What’s the benefit of following the “TV news” style of presenting? First, it allows you to use an immersive visual technique without it seeming over-done. Second, you’ll be presenting your case to the jury in a way that they expect and are very comfortable with. You’ll be able to connect with your jurors, you’ll make the trial more entertaining and enjoyable for them, and they’ll appreciate it. As Dr. Angelou said, they’ll remember how you made them feel, and it will have an impact when they decide the outcome of our case. If you choose not to follow the advice of this article you risk alienating, confusing, irritating, boring, or otherwise losing your jury-audience. This is disastrous for trial lawyers.

What’s the benefit of following the “TV news” style of presenting? First, it allows you to use an immersive visual technique without it seeming over-done. Second, you’ll be presenting your case to the jury in a way that they expect and are very comfortable with. You’ll be able to connect with your jurors, you’ll make the trial more entertaining and enjoyable for them, and they’ll appreciate it. As Dr. Angelou said, they’ll remember how you made them feel, and it will have an impact when they decide the outcome of our case. If you choose not to follow the advice of this article you risk alienating, confusing, irritating, boring, or otherwise losing your jury-audience. This is disastrous for trial lawyers.

When litigators come to us for the first time seeking litigation graphics for their trial, they usually say things like “I need a graphic that shows ________” (fill in this blank with any complex issue that’s hard to explain) rather than I need a visual presentation that supports this story, these themes, and tracks this opening statement. Once they get it, though, it’s the later they understand they really need and want. The complicated issues in any litigation present themselves more obviously to us and are, thus, the first things litigators realize they need to educate a jury about. It’s more difficult to unveil the heart of the case, develop and story around it (why are we really here in court?), and support that story visually and in conjunction with the important evidence of the case.  Following the path I’ve set out above, developing a story, committing to supporting that story with an immersive visual presentation, and presenting the story and visuals in the “TV news” technique will make you a better litigator.

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

Tags: Trial Graphics, Litigation Graphics, Trial Presentation, Jury Consulting, Courtroom Presentations, Litigation Consulting, Demonstrative Evidence, Storytelling, Information Design

A Tale of Two Patent Trial Presentation Styles [CVN Video]

Posted by Ryan Flax on Wed, Nov 5, 2014 @ 03:37 PM

 

patent-trial-presentation-style-cvnby Ryan H. Flax, Esq.
Managing Director, Litigation Consulting
A2L Consulting

A2L has a wonderful partnership with Courtroom View Network (cvn.com), which is a warehouse of video footage of courtroom presentations of all kinds and should be a valued resource for attorneys and law school students wishing to educate themselves on the “to-dos” and “not-to-dos” of litigation argument. I have been browsing the intellectual property video footage at cvn.com and wanted to provide you two examples of different presentation styles in patent litigations: one using no graphics and one using graphics.  I compare and contrast these presentations below.

First, here is a 5 minute video of attorney Joseph Zito introducing a patent at suit and discussing its technology, a bone screw. Watch it and then see my commentary after the jump.

patent-trial-presentation-style-courtroom

What did we just see?  This was a Markman hearing – the hearing before the court where counsel argues for a certain interpretation of the patent’s claims as a matter of law. The judge is the audience – there’s no jury at this point.

You see that Mr. Zito has elected not to use any litigation graphics to help him explain the technology or to argue his case. Instead, he’s chosen to use an ELMO overhead camera machine to show paper documents, including the patent and his claim charts. He explains the technology by flipping the patent’s pages to its drawings.  He explains the claims at issue by pointing to his claim charts that quote the patent’s claims. He’s also decided to showcase his fingers and pen.

Did you find what Mr. Zito had to say interesting? Did you particularly follow any of what he said? Did you find it easy to watch all 5 minutes of the argument?

I did not find Mr. Zito’s argument interesting, and I must admit that I found myself daydreaming just a little during the brief 5 minutes of video. The technology here is not super-complicated. It’s basically a screw with a threaded head and how it interacts with a bone plate. This is not too hard to understand, but I don’t feel I really get much of what Mr. Zito wants to argue and he sure hasn’t made bone screw technology interesting (it could have been to me as I’m quite partial to medical device technology).

Now let’s watch another courtroom video. Here is another 5 minutes of another attorney, John Adkisson, who, similar to Mr. Zito, introduces a patent in suit and its technology (completely different case).  Watch it and see my commentary after the jump.

patent-litigation-trial-presentation-style-courtroom

What did we see here?  Attorney Adkisson made, what I believe, a more interesting presentation – and, all things being equal, a better trial presentation.

First, we see Mr. Adkisson adhere to our first rule of persuasion: frame your case as a story. He introduces his client and the inventor and sets the scene for the judge. He asks and answers the all-important question of “why are we really here?” – we're here because of (Professor) Dr. Paul Blum’s invention in hyperthermophillic organisms (whatever that is).

Moreover, Mr. Adkisson uses litigation graphics to make his case. He hasn’t yet gotten to the real meat of his arguments yet, but we know what patent is at issue here, what the invention is about, which claims are being asserted, and how they might be infringed. Furthermore, Mr. Adkisson uses an immersive presentation style where he always shows the judge a graphic while he makes his argument – this is the only way to significantly improve your persuasiveness using visual support.

I’m not saying that Mr. Adkisson’s trial presentation/argument style was perfect – far from it.  He made some elementary mistakes that could wind up killing his presentation, e.g., using bullet points, not animating his graphics, simultaneously saying what’s written on his PowerPoint slide.  However, he did a far better job using litigation graphics than Mr. Zito did without litigation graphics.

What do you think?  Which style of trial presentation did you find more interesting? Which held your attention longer? Which presentation’s information did you feel you understood better and
which did you retain longer? I’d say the second one, but I’d love to hear from you.

Other A2L Consulting articles and resources related to storytelling, patent litigation, Markman hearings, trial presentation and litigation graphics:

Tags: Markman Hearings, Trial Graphics, Litigation Graphics, Trial Presentation, Courtroom Presentations, Patent Litigation, Storytelling

The 5 Very Best Reasons to Conduct a Mock Trial

Posted by Kaitlin Rothstein on Wed, Oct 29, 2014 @ 03:59 PM

 

mock-trial-jury-consultants-dc-va-ny-de-pa-nj-fl-tx-ca-ilby Kaitlin Rothstein 
A2L Consulting

Have you ever noticed that when you have someone else take a look at a problem or help edit a document, they find another way to address the issue or find additional areas that can be tweaked?  That is what mock trials serve as, a tool to put additional eyes and minds on a massive set of data and find out where it can be fine tuned and perfected. 

The purpose of the mock trial is to educate the lawyers and clients on the case’s strengths and weaknesses and find where it can be enhanced. If you are on the fence about using a mock trial, think about these important ways that one could enhance your case:

1. Mock trials are very helpful in assisting in the fine-tuning of story formatting and trial presentation

  • Storytelling and proper presentation style for the audience is key for persuasion
  • Learn how to tell the story to properly teach the jury or approach the topic with a judge
  • Allow you to test litigation graphics and themes on an audience to see reaction, level of understanding, and persuasion.
  • See Storytelling at Trial: Will Your Story be Used?

2. Mock trials help you see the case from the other side: in the weeds vs. fresh perspective

3. Mock trials cause you to find gaps in your case (that you didn’t even know were there)

  • You can get feedback from the mock jurors on what they did and didn’t understand, what did and didn’t work, or if there were issues missing in the presentation of the case.
  • See 10 Things Every Mock Jury Ever Has Said

4. Mock trials assist in evaluating case themes and stories

  • The mock jury will give feedback on the case and which themes worked and helped them along in their decisions and which ones were not helpful for your case.  While you may think that each theme is appropriate and key, you may learn that one should be left out or changed.
  • You may also find out which themes are sound but need more explanation, through support (visual or litigation graphic development)
  • This will also give you insight into how your jury will think, process, and determine the outcome of your case. This will help you to tailor how you respond, how you say it to hit home the hardest.
  • See Planning For Courtroom Persuasion? Use a Two-Track Trial Strategy

5. Mock trials allow you to hone your skills

  • There is no such thing as too much practice
  • Practicing to get comfortable with the materials, practicing to get comfortable with the venue, practicing to be well polished and confident but not slick, are all great benefits of mock trials
  • This focused preparation will come in handy during the heat of the day
  • See Practice is a Crucial Piece of the Storytelling Puzzle

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




Tags: Trial Graphics, Litigation Graphics, Jury Consulting, Mock Trial, Demonstrative Evidence, Jury Consultants, Storytelling, Practice, Persuasion

[New and Free E-Book] Litigation Storytelling and Persuasion - 3rd Ed.

Posted by Ken Lopez on Tue, Oct 28, 2014 @ 03:56 PM

 

storytelling-for-litigators-narrowby Ken Lopez
Founder/CEO
A2L Consulting

A successful trial lawyer is one who is able to persuade a jury or judge of the truth of his or her client’s case. In order to do that, a lawyer must connect with people on an emotional level. The only way to do that is to tell a compelling story. Stories are the way in which people learn and the way in which they organize reality.

Law school may prepare lawyers to build a case around the law, but it doesn’t teach the science or art of persuasion. Sitting in a jury and analyzing evidence is likely one of the most complex things a juror will ever do, so you need to make it easier for them and as entertaining as possible. You need to hook them early and keep them engaged.

No matter what you say during opening statements, a jury will try to fit the evidence into a story format. The question is, will they use your story, your opponent's story or one that they make up for themselves.

Great litigators understand the need to control the trial narrative. They understand that once a story takes hold, a jury will selectively hear evidence that tends to confirm the logic of the story they've adopted. This confirmation bias when combined with the knowledge that as many as 80 percent of jurors will make up their minds during opening statements, means that the story a litigator tells during opening is arguably the single most important thing done at trial.

At A2L Consulting, we have just put together the third edition of our very popular (and free) e-book on storytelling and persuasion. It’s entitled “Storytelling for Litigators: Building a Great Narrative for Judge & Jury.”  This e-book is based on the latest research, and it is designed to explain the theory behind the importance of storytelling, the basic concepts of building a persuasive story for jurors, and the specifics of how to use your story in the courtroom.

This e-book expands dramatically on the previous two editions by adding 65 additional pages of expert-authored articles on the topics of storytelling and persuasion. Now, at 144 pages and 44 articles, this is the most comprehensive and unique volume available at any price in the litigation and persuasion fields (and it's free).

The e-book is recommended for anyone whose job involves seeing the inside of a courtroom on a regular basis, but anyone charged with persuading a skeptical audience will find value in it. It features such topics as “How to Emotionally Move Your Audience,” “Ten Things Litigators Can Learn From Newscasters,” “20 Great Courtroom Storytelling Articles from Trial Experts,” “Portray Your Client As a Hero in 17 Easy Storytelling Steps,” “Planning for Courtroom Persuasion: Use a Two-Track Trial Strategy,” and “Five Essential Elements of Storytelling and Persuasion.”

I hope you enjoy this book, and I hope you will take a moment to share some feedback by contacting A2L. If you ever have a question about how to prepare the themes and story of your cases, please ask.

CLICK HERE TO DOWNLOAD YOUR FREE STORYTELLING FOR LITIGATORS E-BOOK

Tags: Trial Graphics, Litigation Graphics, Jury Consulting, E-Book, Advocacy Graphics, Storytelling, Visual Persuasion, Opening, Persuasion

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Authors

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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.


ryanflax blog litigation consultant 

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.


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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