The Litigation Consulting Report

14 Differences Between a Theme and a Story in Litigation

Posted by Ken Lopez on Thu, Oct 9, 2014 @ 09:16 AM

 

storytelling theme courtroom trial openingby Ken Lopez
Founder/CEO
A2L Consulting

Twenty years ago in my trial advocacy class, we talked a lot about developing a theme for a case. We learned to say things in an opening statement like, "this is a simple case about right and wrong" or "no good deed goes unpunished."

The goal of developing and communicating a theme is to give your fact-finder(s) an organizing principle that they can fit the evidence into neatly. However, for as much as we talked about themes, one thing I was not taught much about in law school was storytelling.

The two devices, themes and storytelling, are related, but they are not the same. A case theme can be thought of as a case's tag line, somewhat similar to corporate slogans like "when it absolutely, positively has to be there overnight" or "the ultimate driving machine." It's a shorthand version of the case designed to connect with the life experiences of the fact-finder(s).

I have seen cases where a story was told, but no theme was used. I have seen cases where a theme was used, but no story was told. The reality is you need both, particularly during opening statements, and appreciating the differences between themes and stories is critical for success at trial. With estimates running as high as 80 percent for the number of jurors who have made up their minds just after opening statements, getting your theme-story combo right is nothing short of essential - for BOTH plaintiff and defendant.

Here are fourteen key differences between themes and stories used in litigation:

  1. Themes are attention getters, stories are attention keepers. You're a clever lawyer, and you can rattle off a great case theme that gets people thinking. However, without a meaningful story to back up your opening line, fact-finders are just going to make up their own story or just tune you out.
     
  2. Themes provide a reason to be interested, stories provide the emotional connection required to care. If a jury does not care about your case, they are likely not going to get on your side and could very well just be daydreaming even while making eye contact.
     
  3. Themes explain, stories motivate. A well-told courtroom story will trigger a biological and an emotional response that leaves your fact-finder open to being persuaded.
     
  4. Themes sound like you are being a lawyer, stories sound like you are being human. It is very important to be likable at trial, and being likable generally means behaving like someone people can really relate to. If you are over-using lawyer-language, you create distance between you and a jury.


     
  5. Themes provide a smidgen of structure, stories provide a decision-making framework. You know that you've told a story well in the courtroom when the jury tells the same story to one another during deliberations. We see this occur during mock trials regularly. See 10 Things Every Mock Jury Ever Has Said.
     
  6. All lawyers know to use themes, many lawyers will fail to use stories. I recommend downloading our free Storytelling for Litigators book and watching our free Storytelling for Persuasion webinar to rapidly improve your storytelling skill set. I've watched good lawyers lose cases when they failed to articulate a good story.
     
  7. Themes are mostly tools for opening and closing statements, stories are incorporated throughout the trial. If you have set up your story well and worked with every member of your trial's cast including fact and expert witnesses, everyone will add clarity to a story throughout the trial.
     
  8. Juries will not usually talk about your themes, juries will talk about your stories and often adopt them as their own. See Your Trial Presentation Must Answer: Why Are You Telling Me That? and 10 Videos to Help Litigators Become Better at Storytelling.
     
  9. Stories have many characters with understandable motives, themes provide little in the way of character development. See Are You Smarter Than a Soap Opera Writer?
     
  10. Themes may offer the what or how, but stories offer the why. See Your Trial Presentation Must Answer: Why Are You Telling Me That? and 20 Great Courtroom Storytelling Articles from Trial Experts. 
     
  11. Themes offer something quickly relatable, stories offer something you can get lost in. See 5 Essential Elements of Storytelling and Persuasion
     
  12. Themes affect one part of the brain, stories affect another. See Storytelling Proven to be Scientifically More Persuasive
     
  13. Themes don't really persuade, stories will persuade. See Storytelling as a Persuasion Tool - A New & Complimentary Webinar
     
  14. Themes don't need litigation graphics to support them but stories sure do. See Why Trial Graphics are an Essential Persuasion Tool for Litigators

Other articles and resources related to courtroom storytelling, theme development and opening statements on A2L Consulting's site:

Tags: Litigation Graphics, Trial Presentation, Mock Trial, Juries, Storytelling, Opening, Closing Argument, Persuasion

19 Ways in Which the World Has Changed Since 1995

Posted by Ken Lopez on Wed, Oct 1, 2014 @ 09:00 AM

 

a2l consulting litigation consultants oldest 19 years old firstby Ken Lopez
Founder/CEO
A2L Consulting

Today marks A2L Consulting's 19th anniversary. Almost 20 years ago, I began planning to set up this company even while I was finishing law school. Now we are one of a small handful of top litigation consulting and visual persuasion consulting firms in the country.

In these past 19 years I have observed massive changes in the ways in which people communicate, both inside and outside the courtroom. In 1995, it was still fairly novel to have a website. Using the Internet Wayback Machine, you can still see what ours looked like at the time. Yikes, right?

Ours was not the only goofy-looking site at the time. Here’s what the websites of Kirkland & EllisWhite & Case, and Paul Hastings looked like. It's a simple visual reminder of how far we have all come. Remember, 19 years ago, O.J. was just getting in trouble, and neither Google nor Amazon existed yet. And many major law firms didn’t yet have a website.

Today, A2L is a closely integrated professional services firm offering jury consulting, litigation graphics consulting, on-site courtroom personnel, and visual persuasion services. Back then, we were primarily an animation company for lawyers. Things have certainly changed in our business, and in business in general.

Looking back over the last 19 years, here are 19 industry changes that are useful to reflect on, since they often point the direction to future change.

1. Storage of data is virtually free now. Nineteen years ago we used laser disks to play deposition clips inside the courtroom. Some firms still bring servers to war rooms, but most have adapted and realize that they can store pretty much everything they would ever need for trial in the palm of a hand.

2. Litigation graphics production was a lot more like Kinko's in 1995. After a meeting, a graphic artist would produce what the lawyer said to produce. Today's litigation graphics consultants are expert in storytelling and visual persuasion and often are in a position to help design the presentation strategy for trial.

3. More often than not, courtrooms are now wired for presentations. Nineteen years ago, we had to bring everything in the courtroom for every trial since no one had any technology set up.

4. I think practicing law was a lot more fun for a lot more people back then. Money wasn’t unlimited, but it could seem that way. But now as large law firms look a lot more like large corporations, the days of wild holiday parties and limitless expense accounts are now a thing of legend. Overhead is dropping everywhere.

5. With the rise of the Internet came a fast flow of information, and we all became a whole lot more knowledgeable. Remember Shepardizing with books? Today, we can research a judge online in no time.

6. We're now understanding what it really means to persuade someone and how best to do it. Science is teaching us that using techniques like storytelling and creating emotional connections with jurors will increase persuasiveness.

7. Dr. Phil was still running a jury consulting firm. Yes, we have our industry and Oprah to thank for Dr. Phil. It was as a result of his work for her in a defamation case related to the beef industry that he found his way to television.

8. Nineteen years ago, law firms did not really reflect the population in terms of race and gender. It's not perfect yet, but we're clearly on a path in that direction.

9. Social Media. From the way in which we conduct juror background research, to how law firm scandals spread, to how quickly one of our blog articles becomes a major hit, social media has accelerated everything. We released a book on social media last year, and some of the articles in it have been read tens of thousands of times.

10. Litigators practice their trial presentations more now. 19 years ago, I think lawyers were much more reticent to practice, and now, structured practice has become central to many of our engagements at A2L.

11. The New Normal. Nineteen years ago, large law firms did not have as much competitive price pressure for litigation as they do now. Competition has increased dramatically since 1995. Our book about the new normal legal economy has been downloaded thousands of times.

12. PowerPoint. Hard as it is to believe, the emergence of PowerPoint in the courtroom did not begin in earnest until the early 2000s. In 1995 it was mostly printed trial boards. I remember bringing more than 400 boards to one trial. Now, firms like A2L are doing amazing work with PowerPoint.

13. Courtroom Animation. Similarly, the need for 3-D animation has been reduced by the creative use of tools like PowerPoint to show jurors what they need to see.

14. Blogging has emerged as an information medium. Our litigation blog is probably the most widely read publication of its type, with 5,200 subscribers. It's free. Remember when we all paid hundreds of dollars for similar information?

15. Tablets have pretty much replaced laptops for many uses. In 1995, laptops were just emerging. Desktop computers were the standard. Now, we are seeing iPads in use regularly in the courtroom.

16. Email. Hard as it seems to believe, many people, certainly many large law firm partners, did not have email in 1995. Now we can’t live without it.

17.  Law firm marketing and business development have come of age. Most of the common techniques of branding, marketing communications, media relations, advertising, and others hardly existed in 1995. Marketing took hold in the early 2000s. Now, we're seeing real progress with some law firms running business development teams successfully.

18. Litigators helping litigators. Litigators on our team are helping other litigators improve their game. This service, a component of litigation consulting, simply did not exist 19 years ago.

19. Litigation Consulting. I think A2L was the first firm to widely use the term "litigation consulting" back in the 1990s. Now, in a case with $10 million or more at stake, it is routine to find a litigation consulting firm on both sides of a case. In a case with $100 million at stake, it would nearly qualify as malpractice not to have litigation consultants on both sides of the case.

 

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

$300 Million of Litigation Consulting and Storytelling Validation

Posted by Ken Lopez on Thu, Sep 25, 2014 @ 03:32 PM

 

litigation consultants power point vendorsby Ken Lopez
Founder/CEO
A2L Consulting

A2L supported a major win at trial last week, and the lessons from that win are extremely useful for any litigator.

The case involved two of the world's top litigation law firms and, respectively, two of their top litigators, both of whom have storied careers. A2L worked for the plaintiff, an inventor. The defendant was a multi-billion dollar technology company that had licensed the plaintiff's technology.

The dispute largely centered around the defendant's decision to stop paying licensing fees to the plaintiff. It was a complex case, and A2L's role was to help achieve a win through a combination of litigation consulting, litigation graphics and litigation technology.

Although we work on plenty of small cases, A2L Consulting may be best known for its work in cases with tens of millions, hundreds of millions, and frequently billions of dollars at stake. In these cases, simply making a clear and attractive PowerPoint slideshow is not what a litigation consulting firm gets hired for and certainly not all that a trial team needs. Instead, in big-ticket litigation, a litigation consulting firm's ability to deliver real value-add to the trial team will be the measured by its ability to:

  • support developing an opening statement;
  • run meaningful practice sessions with the 1st chair;
  • assist in the development of a story and theme;
  • ensure the story is one jurors will care about;
  • make sure the message (both spoken and visual) is clear;
  • incorporate lessons learned from any mock exercises into opening statements and litigation graphics;
  • develop the litigation graphics so that their design adheres to the latest psychological studies related to persuasion.

Yes, it may be surprising to some, but this is what great litigation consulting firms do (see 21 Reasons a Litigator Is Your Best Litigation Graphics Consultant and 11 Things Your Colleagues Pay Litigation Consultants to Do.) The complexity of this work explains why you can count on one hand the number of firms capable of doing it.

In my experience, most trial graphics firms are not aware of their own shortcomings, and, unfortunately, many litigators are not aware of the distinction between a simple trial graphics vendor (usually a group of artists, project managers and courtroom trial technicians) and a truly world-class litigation consulting firm (typically led by litigators and Ph.D jury consultants). For example, the CEO of a quasi-competitor to A2L, himself a former law firm hot-seater, said to me, "why would you give lawyers advice since they are paid to have the answers, right?" My answer to him was simple. You, shouldn't give advice.

 

 

And this is the line that separates litigation consultants from mere PowerPoint trial graphics vendors. It's a bright line, and once you understand it, there should be no confusing who fits into which category.

Leading up to trial, A2L provided all of the services listed in the bulleted list above and more. I had a chance to see the opening statements in this case. Our client humanized his client and told a clear story. He told a story that jurors couldn't help caring about. Told by him, it was simple to get behind the client. Moreover, his litigation graphics were well-refined and simple. They incorporated the latest persuasion science that cautions away from the use of bullet points and too much text. Frankly, his opening was delivered well enough that it would have been hard to beat him.

I believe that most cases are won and lost in the opening statements. It is during opening that the jury normally picks a side to root for and everything else is heard selectively to fit into this framework that each juror builds on his or her own (confirmation bias). Accordingly, enormous time and effort must be invested in preparing for opening statements. This includes many practice sessions, mock trials, a long iterative process of developing litigation graphics for opening and attention to all the other details like trial technology. In this case, opening statements were only about three hours long in total, however the trial lasted three weeks.

I'm proud to share the news that our side won after just a day of deliberations, and the jury awarded what is likely to be one of the top 10 verdicts of 2014, north of $300 million (A2L is normally on two or three of these top 10 cases each year). I am immensely proud of my colleague’s work on this case.

Other articles and resources related to litigation consulting and storytelling on A2L Consulting's site:

Tags: Trial Graphics, Trial Consultants, Litigation Graphics, Courtroom Presentations, Litigation Consulting, Trial Consulting, Demonstrative Evidence, Storytelling, Opening

The Top 5 Qualities of a Good Lawyer

Posted by Ken Lopez on Thu, Sep 25, 2014 @ 02:48 PM

 

traits of a good lawyer makesby Ken Lopez
Founder/CEO
A2L Consulting

I'm often asked for advice on hiring a lawyer. In fact, I refer about two dozen cases/clients out to trustworthy lawyers each year. Usually, they range in value from family law-types of cases to $100 million complex commercial disputes.

I am in a unique position. While trained as a lawyer, I don't practice. I spend the majority of my time running A2L, a litigation consulting firm, and I publish what is likely the most widely read litigation blog. However, I think what really qualifies me to make great referrals is the twenty years I've spent working with top litigators both as a consultant and as a client. In that time, I've had a chance to see how 1,000 lawyers or so perform, and I've learned a lot about who is good and who is average.

When someone calls and says to me, "I need a good lawyer," I need to know a lot more than that. In fact, I'm convinced that most people don't know what "a good lawyer" means exactly. I'm not even sure many lawyers know what makes a good lawyer.

From the outside of the industry, however, I think it's almost impossible to tell who is good. "Good" is almost entirely based on word-of-mouth, and world-of-mouth is usually affected by some form of confirmation bias. That is, people want to recommend a lawyer they've used before, since making that recommendation helps them reinforce the decision they made to hire that lawyer in the first place.

Knowing that someone is a SuperLawyer is good, being AV rated is good too, and even having a reasonable Avvo score is a plus. However, even among lawyers meeting these three criteria, I observe wide variations in talent. So, to give a good referral, I really have to both understand who is a good lawyer, and recommend the right lawyer for the situation.

Reflecting on 20 years of experience, here are five traits that define a good lawyer for me when I am making a referral:

  1. Negotiation talent. Far more important than any other trait, negotiation skill will get you the most value from a lawyer. Good lawyer-negotiators seek to leave all parties feeling like a reasonable outcome was achieved, rather than trying to run over the opposition. This does not mean they get you less than you seek. It means you get a fair outcome, and you feel good about your outcome. It means the outcome is also workable and has staying power. Good lawyers manage expectations on both sides of the "v." and are masters of selectively using leverage to help guide a dispute toward resolution. They have a warrior spirit that is fed by cleverly getting to the desired outcome. They play chess, not checkers. When a lawyer is not a good negotiator, disputes cost more and outcomes are less favorable. The problem is that this skill is very, very hard to evaluate unless you have seen someone conduct a negotiation. 

  2. Good Paper Talent. Good lawyers draft correspondence, motions and briefs that are well-cited and well-written. Typos are non-existent, and they maintain a sense of decorum unless it is truly helpful to do otherwise. Their emails are well-thought-through, and they avoid common grammar issues. They get things done on time, and they are familiar with using storytelling and persuasive graphics in pleadings to maximize persuasiveness. Of course, they get the law right, but that really should be a given. 

  3. Presentation Talent. Good lawyers present well when they are being spontaneous, and they present fantastically well when they have time to prepare a trial presentation. They are confident. They are familiar with the latest thinking about litigation graphics. They are comfortable relying on litigation consultants and others for good ideas.

  4. Specific Experience. Just like a job interview, you really want to hire someone who has handled a problem like yours many times before. This is not always possible when hiring a lawyer as many problems are unique. Furthermore, if I had to balance negotiation skills vs. experience with a particular subject, I'd still very heavily weight my decision in favor a lawyer with superior negotiation skills. 

  5. Reasonable Accessibility. Good lawyers make themselves available to you, and you should not have to beg them to talk with you. That does not mean you have a right to be high-maintenance, it means their availability should vary proportionally to the seriousness of what you are facing at that moment. Good lawyers are busy, but as they say, if you want something done, ask a busy person to do it.

Notice I did not mention fees or rates in my top-five list. As my favorite outside counsel says to me, perhaps in a self-serving way, "there's nothing more expensive than a cheap lawyer." Fortunately, I happen to agree with him.

You can probably tell that I enjoy making referrals, and, in fact, I happened to give three yesterday. My hope is always that I have made a good match for all involved, and so far, that's always been true. Please comment with other traits you think I overlooked.

Other A2L articles related to business development, pricing and litigation consulting:

 

 

Tags: Litigation Graphics, Trial Presentation, Litigation Consulting, Pricing, Storytelling, Leadership, Pleadings, Business Development

The Top 10 Tips for Selling Professional Services

Posted by Ken Lopez on Wed, Sep 17, 2014 @ 03:16 PM

 

professional service sales tips litigation supportby Ken Lopez
Founder/CEO
A2L Consulting

As the founder of A2L Consulting I've had the opportunity to do every job in the company at some point in the last 20 years. I enjoy technical work that requires deeply complex thinking. I'm great at conceptualizing litigation graphics for opening statements. Not surprisingly, as CEO, I also love leadership and strategy.

However, the job I love the most is helping people connect with the right people at A2L who can solve their challenges. Usually, these challenges are related to communicating to a judge or jury, persuading a skeptical public audience, or testing to find just the right oral and visual message for a particular audience. What do I call this job? Well, the title of this post is big clue. This job is sales. 

A lot of people conjure up images of gregarious backslapping fraternity types when they think of salespeople. If you're doing it well, nothing could be further from the truth.

Sales is simply helping people solve problems. It's pretty easy when they know they have a problem, but it is certainly much harder when they have yet to perceive the problem, when you want to help them prevent a problem, or even when they have no idea that the solutions you know about exist.

In 20 years I've talked to tens of thousands of people in a sales context. I think I do sales well, and the lessons I've learned selling litigation consulting services can be applied to any professional services sale including selling as a lawyer.

Here are the top 10 tips I have for any salesperson engaging in professional services sales or pretty much sales of any type.

10. Create accountability systems. Great sales people want to be held accountable for their metrics (i.e. calls, meetings, etc.) and their results. Bad sales people hide and obfuscate. If you want to be great, get yourself a coach, a mentor or a group that you will report to weekly. Simply by talking through your metrics with someone else on a regular basis you'll become much more effective.

9. Act like your prospects. People generally like themselves. They also usually like people like themselves. If you want to be liked and respected by your prospect, behave like them. While I believe in NLP principles related to mirroring and matching techniques, I'm not being that granular. If your prospect is an introvert, be one when you're with them. If they like to go out for drinks, join them in that atmosphere. Go where the prospects are, and act like the prospects do.

8. Tenacity is the best and most overlooked sales strategy. One study found that most sales people have given up after the fifth attempt to reach someone. However most deals are usually arrived at after at least eight contacts and attempts to get a deal done. As one blogger put it, 90% of salespeople have given up before 80% of sales are made. Very often, to be good at sales, all you have to do is stick with it. If you generally only try to reach someone a few times, you're almost guaranteed to fail as a salesperson.

7. "No's" are good news. It's probably going to take nine no's for every yes you hear in sales. Rather than seeing a "no" as an affront to your self-esteem, be grateful. You just got through one of the nine preventing you from getting to that next "yes."

6. Your existing clients have more business than you think they do. While A2L has worked with pretty much every major law firm in the country, there are really only a handful of firms where I believe we have more than 25% of the firm's annual litigation consulting spend. I've been at this 20 years, and I still have this problem. All of my serious competitors like DecisionQuest, FTI and TrialGraphix, are in the same boat. You can always dig deeper, and it is always easier, faster and cheaper to sell to current clients than it is to find new ones. Treat your current clients more like prospects and less like assets, and you'll uncover gold.

5. No one sales method works for the long-term. At A2L, our sales teams and I use a combination of four methods to generate sales. First, we do great work at A2L so we get repeat business and referrals. In professional services, results are gold, and without them, no amount of sales can help you. Second, we use this blog (here's a free subscription) to share valuable information with the kinds of people we hope to work with (5,000 subscribe already). People call us every day as a result of having read an article about jury consulting, litigation graphics, trial technology, or our visual persuasion services. Third, using a product called LawProspector, we use warm calling methods to reach out to people we know are likely to need litigation consulting services soon. Fourth, we use classic one-to-one relationship selling to build relationships for the long-term. These four methods work together like a symphony.

4. What gets measured gets done. Sorry for the cliché, but it's true. If you're not tracking every bit of sales activity you do, you shouldn't bother trying to sell, because you're just doing it wrong. You must use a CRM. Without metric tracking and accountability in some form, most people will just bounce from conversation to conversation without converting a meaningful number of deals. It feels like sales, but it's really just endless flirting.

3. You're going to sell your way no matter what, so don't try to sell like somebody else. A friend of mine who is a partner to major law firm is a very effective sales guy. He's worked at it, and he is rightfully proud of his accomplishments. He uses a sales coach, and he shared with me something that his coach told him. My friend didn't like big networking events (I can empathize), and he didn't like cold calling people. However, he knew he liked having dinner parties. So instead of uncomfortable selling methods, he has regular dinner parties with people who are prospects and people who are clients. It works for him, and his method is entirely consistent with the message I am advocating.

2. Sales is helping people. I said it earlier, but there's a lot of baggage around the word "sales." It is unwarranted. Sales is simply helping people you care about be relieved of or avoid pain. Who doesn't like to do that? Remember that the next time your confidence is down. Start helping someone.

1. C + M = $ales.  You'll make a certain number of contacts (i.e. calls, emails, handshakes) from which will you earn a certain number of meetings. From those meetings you get a certain amount of business. Anyone who tells you sales is something more than that is trying to sell you something. If you don't have enough sales, you're not going to enough meetings. If you're not getting enough meetings, you're not making enough contacts. You're probably going to need to make at least 25 contacts to generate a meeting (very cold calls can be more like 90:1). If you know your average transaction and you know your sales goal in dollars, you know exactly how many calls you need to make and how many meetings you will need to set up. Required Calls Per Week = (((Annual $ales goal / average transaction) / (10% meeting close rate)) * 25 calls to get a meeting) /48 weeks (because nobody sells 52 weeks a year).

I love hearing from other salespeople, particularly those in law firms, litigation support and other professional services. Drop me a note, and tell me what tips I missed.

Other articles related to sales, pricing methods and customer service at A2L Consulting's site:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Tags: Trial Graphics, Trial Technicians, Litigation Graphics, Jury Consulting, Litigation Consulting, Jury Consultants, Pricing, Customer Service, Business Development

Practice is a Crucial Piece of the Storytelling Puzzle

Posted by Ryan Flax on Thu, Sep 11, 2014 @ 04:47 PM

 

practice lawyer trial mock trialby Ryan H. Flax, Esq.
Managing Director, Litigation Consulting
A2L Consulting

This article is the last in a series of six articles about storytelling and trial preparation. Parts 1-5 are linked at the bottom of this article.

What is a trial attorney supposed to do after he or she has developed a theme and a story plus some graphics to support them visually?

The answer is, test them. I encourage you to use mock juries, not to predict the outcome of your trial, but to see what themes and facts resonate with the jurors. Doing so will help you decide which facts and story lines are worth building your case around. You can test what images and litigation graphics help make your case and which documents really make a difference when you show them to the jurors. Finally, testing with mock juries can help you figure out what type of juror you do and don’t want in your actual trial.

If using a mock jury is not in your budget, find some folks at your firm that are far removed from your case and test with them. Administrative assistants, receptionists, family members, paralegals, and junior associates are good for this testing. Enlist the services of local high school students to perform as mock jurors (they’ll gain experience and you’ll have about the right educational demographic for your jury, but consider how to deal with confidentiality).

A mock trial and testing on your peers are fancy forms of practice in litigation. Practice may not make perfect, but it will make "as good as possible." By the week of your opening statement, you should have tried out your presentation dozens of times. So many times that you can recite it without notes, without looking at your graphics and so that you are speaking and showing in perfect synchronicity. Practice it until you could sing it.

The bottom line is that to win in litigation you usually first need to win the trial. To do this you’ll need to convince jurors, who are biologically programmed to respond to stories and used to learning by watching TV and surfing the internet, that your position is the better one.  To persuade such an audience, you must communicate on their terms and in their language (to a degree). By framing your case in storylines and traditional themes and by using well-crafted visual support, you will be able to teach and argue from your comfort zone – by lecturing -- but you will provide the jurors what they need to really understand what you’re saying and give them a chance to agree with you.

Jurors who understand you are more likely to agree with you, because they feel that their emotionally based opinions are founded in logic and reason.

Although I’ve strenuously urged you to put a lot of effort into the persuasion track of trial preparation, I’m not suggesting that the other, the law track, should be abandoned or even diminished.  You must dot all your “i”s and cross all your “t”s and address every important fact that may become essential to a favorable appellate decision in your case.  But, you should split your litigation prep into these two tracks early in the case and rigorously develop both for a winning litigation strategy.

Other articles in this series and resources related to mock trials, storytelling and trial preparation on A2L Consulting's site:

Tags: Litigation Graphics, Jury Consulting, Mock Trial, Jury Consultants, Jury Selection, Storytelling

Why Trial Graphics are an Essential Persuasion Tool for Litigators

Posted by Ryan Flax on Mon, Sep 8, 2014 @ 10:45 AM

 

trial graphics oral visual lawyer litigator courtroomby Ryan H. Flax, Esq.
Managing Director, Litigation Consulting
A2L Consulting

As I pointed out in my last post, the oral telling of a story must be accompanied by visuals if it is to be fully effective. Studies show that most (reportedly as high as 61-65%) of the public prefers to learn by seeing and watching. The majority of attorneys, on the other hand, do not prefer to learn this way but are auditory and kinesthetic learners: They typically learn by hearing and/or experiencing something.

This makes sense, when you think about it: We all learn this way in law school in class lectures, and we continue to learn this way as practicing attorneys by experiencing litigation. However, most people (e.g., jurors) do most of their “learning” watching television or surfing the internet.

I believe that these learning preferences are solidly based in evolution. Humans evolved from animals that had to rely on visual learning because, socially, there was a lot more to see and less ability to orally explain things to one another. Our ancestors saw what foods to collect and eat, they saw their neighbors catch a fish, they saw their father hide from a carnivore, and they learned how to live and survive to reproduce, and this visual learning style was evolutionally reinforced. I think that, unless a human is forced into a situation where he or she must hone the ability to learn by hearing a lecture, he or she will more easily learn by seeing something and relying on a person’s much stronger visual capabilities.

No matter how intelligent a person is, he or she will typically teach the same way that he or she prefers to learn. Visual learners teach by illustrating. Auditory learners teach by explaining. So, left to our own devices, we attorneys will usually teach by giving a lecture. However, there is a big problem with this in a courtroom.

Chances are that most of our jurors are visual learners, and if we try to teach them in the way most comfortable us, by giving a lecture, we’re not being as persuasive as we could be. The jurors simply will not get our points or case as well as they could.

How do you bridge the communications gap? By storytelling, as discussed in this series of articles, and with effective trial graphics. This will enable you to teach and argue from your comfort zone - by lecturing - but the trial graphics will provide the jurors what they need to really understand (or feel they understand) what you’re saying and give them a chance to agree with you. 

Research shows that visual support is an essential persuasion tool in litigation. By conducting two different studies, each having four groups of jurors (totaling about 500 subjects), researchers tested the persuasiveness and impact of opening statements in an employment discrimination case. One group of jurors saw no graphics, one group saw graphics with plaintiff’s opening, one group saw graphics with defendant’s opening, and one group saw graphics with each opening. This was done twice, for four eight total groups.

The results of this testing established not only that graphics make an argument stronger; it 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 improved verdicts for the graphics users. When plaintiff used demonstrative graphics, the defendant was seen as more liable. When the defendant used graphics, it was seen as less liable in the jurors’ eyes.

Another study by a litigation and jury consultant, Dr. Ken Broda-Bahm, investigated the effectiveness of various communication techniques, specifically as they relate to jurors.

Interestingly, this study found that there really wasn’t much difference in effectiveness when comparing techniques using:

  • no trial graphics,
  • simple flipcharts,
  • static and sporadically shown trial graphics, and
  • animated and sporadically shown trial graphics. 

This result was surprising to Broda-Bahm, and to me reading his published work. However, his study went further and found that when the “jurors” were immersed in graphics, meaning that the attorney always gave them something to see while presenting his argument, the effectiveness and persuasiveness of the presentation dramatically increased.

The bottom line is that you must use visual support to accompany your trial argument and testimony. This can take many forms, such as trial graphics, scale models, poster boards, and electronic display of evidence. Furthermore, the presentation of visual support during litigation must be an immersive experience for the jurors. So unless there is a very good reason to turn off the visual display to have the jurors focus on your face, you should be giving them something to look at.

Other trial graphics related articles and resources on A2L Consulting's site:


Tags: Trial Graphics, Litigation Graphics, Trial Presentation, Courtroom Presentations, Demonstrative Evidence, Animation, Psychology, Storytelling, Visual Persuasion

Free Top-50 Articles E-Book! Help Us Celebrate 5000 Subscribers!

Posted by Ken Lopez on Fri, Sep 5, 2014 @ 08:34 AM


A2L Consulting Top 50 Articles cta vertby Ken Lopez
Founder/CEO
A2L Consulting

It may not feel as if it’s been that long, but we’ve been putting out this blog, The Litigation Consulting Report, for just about 3 ½ years. And in that time, we have written nearly 400 posts on dozens of trial and presentation-related subjects, on everything from TED talks to the George Zimmerman trial to voir dire techniques.

Our success, though, is entirely traceable to you, our readers. In these 3 ½ years, we’ve steadily accumulated regular readers, and we’re delighted to say that we just signed up our 5,000th blog subscriber! No one ever pays a dime to read A2L Consulting's blog, of course; we put it out there to educate the public and members of the legal community about trial techniques and the science of persuasion.

To celebrate reaching 5,000 blog subscribers, today we’re publishing this collection of our very best articles to date. 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 delighted 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 15,000 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. 

I hope that you enjoy these articles. There’s really nothing else like them. And we look forward to picking up another 5,000 subscribers. Click here or on the images below to download your Top 50 A2L Consulting Articles of All-Time Free E-Book!

 

Tags: Trial Graphics, Litigation Graphics, Jury Consulting, Mock Trial, Litigation Consulting, E-Book, Jury Consultants, Presentation Graphics, Persuasive Graphics

7 Reasons Litigation Graphics Consultants are Essential Even When Clients Have In-House Expertise

Posted by Ken Lopez on Wed, Aug 27, 2014 @ 05:00 PM

 

litigation graphics consultants understandable clear storytellingby Ken Lopez
Founder/CEO
A2L Consulting

I frequently encounter trial teams that say things like:

  • "My client has some graphics capabilities in-house."
  • "Our client is a top expert in the field, so they want to explain the technology to the jury in their own way."
  • "My client wants to stand up at trial and use a flip chart to explain the science."

I hear these and other similar statements most frequently in patent cases and other science or technology-focused cases. On their face, there's nothing wrong with these remarks. However, sometimes the client's desire to be helpful interferes with the trial team's ability to try the case effectively. I empathize with these litigators. Nobody likes to say "no" to a client, especially when the desire to be helpful is partially motivated by budget concerns.

When I founded A2L nearly twenty years ago, the only meaningful competition we had in the litigation graphics and courtroom animation industries came from engineering firms who also supported trial teams. A2L's offering was very different. We brought artistic lawyers and litigators in to serve as litigation graphics consultants rather than using engineers.

My rationale was simple. Engineers may be very good at illustrating a point, but they are not especially good at persuasively making a point. For that, lawyers were best suited, and they could also rely on engineering, scientific or technical support from the client and experts as needed. Our model became synonymous with what we now commonly refer to as "litigation consulting."

It didn't take too many years before our competition morphed to look at lot like A2L, and those engineering firms eventually faded away. I believe the same principles apply when evaluating how or whether to use litigation graphics consultants when the ultimate client has significant internal expertise, even artistic expertise, in-house.

Just like those engineering firms A2L used to compete with, when support is offered by in-house resources at the client's firm, it is typically highly expert, highly trained and is useful for facilitating the illustration of a point in the courtroom. However, such in-house expertise, mostly scientists, engineers and technology experts, is not normally persuasion-oriented, and this group is almost always unfamiliar with what a fact-finder needs to see in order to find for the client.

In these situations, instead of an ideal client>litigator>expert>litigation graphics consultants>fact-finder flow of information, you end up with a highly imperfect client>expert>litigator>client>fact-finder flow that results in higher costs and worse outcomes. Here are seven reasons I think a trial team needs help from outside litigation graphics consultants no matter what kind of expertise the client's in-house people can provide.

  1. Well-founded discovery fears: Anytime the client is involved in trial presentation preparations, there is a risk that they will inadvertently generate new evidence that is subject to discovery. Since litigation graphics consultants are working for the law firm, these communications are protected from discovery.

  2. Storytelling assistance: With storytelling recognized as a serious persuasion tool, it is very helpful to work with litigation graphics consultants like A2L and others who are expert in helping trial teams craft a story. See 21 Reasons a Litigator Is Your Best Litigation Graphics Consultant. No matter how expert a client is in the underlying subject matter of a case, they are not likely also presentation experts, persuasion experts or storytelling experts.

  3. Fresh set of eyes: This cliché is one of the primary reasons trial teams use litigation graphics consultants at all. When you've lived with something for a long time as a trial team does and as in-house personnel at the client do everyday, it helps to hear how experts like trained litigation graphics consultants approach the same information.

  4. A forest perspective: Closely related to the fresh pair of eyes concept, a litigation graphics consultant is not burdened with all the details when a case is presented to them. Accordingly, they are able to hear it in a way that is similar to the way a juror will. Usually, neither a trial team nor any one from the client is able to step back far enough to get out of the trees and really see the forest in the same way a jury will.

  5. Mock trial testing: Firms like A2L are not just litigation graphics consultants, but are instead full-service litigation consulting firms. One key component of a comprehensive litigation consulting firm is the ability to conduct mock trials and provide mock trial analysis of the effort by a Ph.d.-level expert. Obviously, this is not going to be an expertise offered by the client's in-house team. Testing of how a judge or jury will react to a case is critical in large cases as are testing the visuals that will be used. See 7 Reasons In-House Counsel Should Want a Mock Trial and 10 Things Every Mock Jury Ever Has Said.

  6. Persuasion science is moving fast: Great litigation graphics consultants are experts in the science of persuasion. I suspect this group of people numbers fewer than a couple of dozen people nationwide. Since your goal at trial is to persuade the fact-finders, you really want every persuasion advantage you can find. It is not realistic to expect that you will find this expertise at the client firm or even inside most law firms for that matter. See Could Surprise Be One of Your Best Visual Persuasion Tools?Font Matters - A Trial Graphics Consultant's Trick to Overcome Bias6 Studies That Support Litigation Graphics in Courtroom Presentations5 Ways to Apply Active Teaching Methods for Better Persuasion, and 8 Videos and 7 Articles About the Science of Courtroom Persuasion.

  7. Masters of PowerPoint: A litigation graphics consulting firm can run circles around mere PowerPoint users as one of our most popular articles, 16 PowerPoint Litigation Graphics You Won't Believe Are PowerPoint, and one of our most popular webinars, Using PowerPoint Litigation Graphics for the Win, demonstrate. This kind of work takes real time to develop. Just because a client can generate some imagery does not mean it can generate persuasive imagery or put it together in a way that is going to align with the decisions we're asking our fact-finders to make. At the end of the day, it is not about pictures, it is about presentation, and those two things are entirely different (if you're an expert).

Other articles and resources related to using litigation graphics consultants on A2L Consulting's site:

Tags: Trial Graphics, Trial Consultants, Litigation Graphics, Trial Presentation, Mock Trial, Litigation Consulting, Demonstrative Evidence, Animation, Storytelling

Storytelling Proven to be Scientifically More Persuasive

Posted by Ryan Flax on Tue, Aug 26, 2014 @ 12:30 PM


storytelling persuasion courtroom jurorsby Ryan H. Flax, Esq.
Managing Director, Litigation Consulting
A2L Consulting

In my last post, I discussed how important it is for every litigator to tell a story, because jurors will always frame the facts of a trial in the form of a story. As storytelling litigators, we need to relay to our audience: (1) what happened; (2) where it happened; and (3) why we care. We must set the scene: By the time you’re done with your opening statement, your audience should know “what the weather was like” (literally or figuratively) when liability arose. Finally, it’s necessary to provide a social tie-in – some reason why your jurors would wish to absorb and retell the story you’re telling. Otherwise, there’s no reason for them to pay attention.

That last bit is somewhat surprising, but is very important to remember. One of the first things that humans consider when taking in new information is its social value to them – whether it’s worth their remembering so that they can reap some value in its retelling (consider, by analogy, Facebook “status updates” and “sharing”). New information is filtered through a social network of the brain more than by our IQ centers.

When researchers studied human information uptake using MRI scanning, the areas of the brain expected to be most activated, i.e., those relating to memory, deep encoding, higher-level abstract reasoning, and executive function, were not activated. Instead, the brains’ regions central to thinking about other people’s goals, feelings, and interests (“theory of mind”) were those most highly activated. This was surprising, but is an important lesson to those of us who rely on persuasion for our livelihood.

What are the implications? Spreading ideas, norms, values, and culture depend less on IQ-type intelligence and more on the influencer’s social-cognitive abilities, use of emotions, and motivation.

We must understand two things about persuasion:

1. You cannot change jurors or their capacities; but

2. You can change your approach to them. You can tailor your approach by putting the facts into the context of a story, both verbally and visually.

An effective story provides relationships between the facts and the characters. It addresses the characters’ motives or intentions. It puts this information into a context, a physical and psychological environment – the setting. Doing these things will make you more persuasive. How do we know this? We can read the brains of storytellers and story-listeners.

Studies show that while listening to an effective story, listeners’ brains react more like participants than spectators. We say that people experiencing a deep connection are “on the same wavelength.” What’s amazing is that there is neurological truth to that.

storytelling brain mri jurorsScientists at Princeton University looked at brain scans (fMRI) of storytellers and listeners to the stories. They found that the most active areas of the brains of the speakers and listeners matched up; they were in sync, or coupled. However, this synchronized activity was found in the areas of the brain relevant to theory of mind, not in areas that drive memory or the prefrontal cortex associated with cognitive processing. The stronger the reported connection between speakers and listeners, the more neural synchronicity was observed in the test subjects (yellow color in the image above). The extent of brain activity synchronicity predicted the success of the communication – so connecting with your audience more makes you more persuasive.

Other research using brain scans reveals other important information relating to effective storytelling and will help us plan our course of action on the persuasion track. This research shows that our brains react differently based on the types of words used. Information (e.g., evidence) presented to test subjects without using sensory language stimulates only the brain’s language areas (Broca’s and Wernicke’s areas), and this is interpreted as “noise” (blah, blah, blah, blah). The task for the listener is seen as remembering words and more words – which is not fun and not interesting for the audience and makes keeping them engaged and persuading them much more difficult.

Research finds that use of sensory language actually stimulates the same areas of subjects’ brains as the original action would (e.g., the olfactory cortex when hearing descriptive words involving smell such as lavender and cinnamon, or the motor cortex when hearing about movement). Litigation is about persuasion, which can only happen, research shows, by literally changing the brain of your audience. This brain-changing requires accessing the correct neurotransmitters, which are especially present when a person is: curious, predicting, and/or emotionally engaged. These are your goals when planning your persuasive track strategy.

Oxcytocin is the neurotransmitter we most care about when attempting to persuade an audience. It’s the trust/empathy molecule. It is increased in audience members after they listen to stories eliciting empathy. Hearing inspirational stories causes more blood to flow to our brain stem. The brain stem is the part of our brain that makes our heart beat, regulates our breathing and keeps us alive. Thus, using effective storytelling to persuade means you’ve literally induced a reaction from the very substrate of your audiences’ foundation for biological survival.

Other A2L Consulting resources related to storytelling in litigation:


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

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    Authors

    KenLopez resized 152

    Ken Lopez founded A2L Consulting in 1995. The firm has since worked with litigators from all major law firms on more than 10,000 cases with over $2 trillion cumulatively at stake.  The A2L team is comprised of psychologists, jury consultants, trial consultants, litigation consultants, attorneys and information designers who provide jury consulting, litigation graphics and trial technology.  Ken Lopez can be reached at lopez@A2LC.com.


    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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