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The Litigation Consulting Report

50 Characteristics of Top Trial Teams

Posted by Ken Lopez on Thu, Apr 21, 2016 @ 02:22 PM


trial team win litigation traits characteristicsby Ken Lopez
Founder/CEO
A2L Consulting

After the more than 20 years that we have spent in the litigation consulting business, we don't hear very many questions that we’ve never heard before. However, this week I did hear one, and the story is worth sharing because it goes to the heart of how a truly great litigator performs. The question I heard was, “What can we do better as a trial team on the next engagement?”

Consider how remarkable this is. Here was a litigator from a large law firm sincerely trying to improve the performance of his team and himself. I was deeply impressed, as this was the first time I've had someone ask that question after an engagement.

It's a very sensible question, of course. A2L's team has worked with thousands of litigation teams from the very best law firms in the world. I have watched many litigators perform near-magic in the courtroom, and I have seen teams fail miserably. There are patterns that lead to success and patterns that lead to failure.

In the spirit of the question that this litigator asked me, I started thinking about the traits of the world’s most effective trial teams. Here are 50 of them culled from my experience and that of my colleagues Dr. Laurie Kuslansky and Tony Klapper.

  1. Practice is by far the single most obvious indicator of a trial team's success. The great litigators draft their openings months or years in advance of trial and practice them dozens or hundreds of times. See, Practice, Say Jury Consultants, is Why Movie Lawyers Perform So Well

  2. Preparation. Great trial teams start preparing long before trial, and they don't ask the client’s permission to do so. Their attitude is, “If you work with a team like ours, it means you want to win and we know how to win and we're going to get that done, whatever it takes.” I think they are right. There are only a handful of law firms that I have observed that have this sense of preparation embedded in their litigation culture. See, The 13 Biggest Reasons to Avoid Last-Minute Trial Preparation

  3. Great litigation teams want their answers questioned. Great litigators are confident. They are so confident that they open themselves up to rigorous scrutiny in their approach to trial. Through a whole host of methods, they invite criticism, suggestions, fresh pairs of eyes, lay people’s opinions, experts’ opinions, and they use all of these voices to perform at their best. See, Accepting Litigation Consulting is the New Hurdle for Litigators

  4. They lead, but they can be led too. Great litigators avoid dominating all discussions. They intentionally let others lead them and be seen as leaders. Download the Leadership for Lawyers eBook

  5. They just look comfortable in front of a jury. Confidence equals persuasiviness and humans are born with an expert ability to detect it.  See, A Harvard Psychologist Writes About Presenting to Win

  6. They build narratives early. They know how important a narrative is to winning a case. They have also learned from experience that the earlier this is done, the better. A well-constructed narrative can inform everything from briefing to discovery to witness preparation. Download The Opening Statement Toolkit

  7. They understand the difference between a narrative and a theme. See, 14 Differences Between a Theme and a Story in Litigation

    storytelling for judge jury courtroom best method for trial persuasion and emotion
  8. They spend their time where they are most valuable and add the most value. How Valuable is Your Time vs. Litigation Support's Time?

  9. They begin developing their visual presentation months or years before trial. See, How Long Before Trial Should I Begin Preparing My Trial Graphics?

  10. They’re not afraid of technology in the courtroom or elsewhere. Skipping technology means losing credibility in most cases now. Jurors have come to expect it and no longer take kindly to simply being lectured to. See, Trial Presentation Too Slick? Here's Why You Can Stop Worrying

  11. They’re systematic in how they meet with their outside consultants. Great trial teams usually hold weekly calls or meetings and schedule the next event at the end of each meeting.

  12. They’re not frantic. There are so many reasons why one should not be frantic, and even when the facts are terrible, great lawyers work at a measured and even pace and don't go negative. See, 10 Signs the Pressure is Getting to You and What to Do About It

  13. They don't jockey for position with other lawyers and law firms. The worst and least effective trial teams that I have ever seen play politics to the detriment of the client in the run up to trial. See, 5 Tips for Working Well As a Joint Defense Team

  14. They exhibit a distinct lack of arrogance. I think some people confuse arrogance with ability. The best trial teams I have observed display tons of confidence, show mastery of the subject matter, demonstrate massive respect for one another and never allow arrogance to enter the picture. See, In-House Counsel's Role In Keeping Litigator Ego In Check

  15. They probably subscribe to our blog. Alright, not everyone subscribes to this blog, but 8,000 people do. Litigators who demonstrate that they hope to grow their own skill set are typical subscribers. See, 10 Surprising Facts About Litigation Consulting Report Blog Readers



    Complimentary Subscription to This Blog



  16. They realize there are too many parts in big-ticket litigation for the first chair to handle all of them alone. They know how to divide the work among attorneys, paralegals, experts, and others. The only way to build a simple case is to start with a complicated one and break it down. Truly complex cases require lots of team effort to achieve this result. See, Litigator & Litigation Consultant Value Added: A "Simple" Final Product

  17. They require their experts to work with communications and visual design consultants. Perhaps 1 in 500 experts is an expert in presenting information in a jury-friendly way, but most believe that they are. 7 Smart Ways for Expert Witnesses to Give Better Testimony

  18. They don't lose it; they keep their cool. There are plenty of stressors in the pre-trial environment. People not used to doing this kind of work would find it hard to maintain a positive attitude, but it is so critical to do so. See, 5 Signs of a Dysfunctional Trial Team (and What to Do About It)

  19. They conduct post-hearing, post-conference, and post-trial debriefings. Truly great trial teams do this, and all bad trial teams simply blame a bad judge, bad facts, and/or a bad jury. See, 9 Questions to Ask in Your Litigation Postmortem or Debrief

  20. They contemplate their thematic story right from the start and incorporate that into discovery. We're working with a number of clients now who are making sure a narrative is developed early in a case, not just on the ease of trial. This is a best-practice for highly effective trial teams. See, Planning For Courtroom Persuasion? Use a Two-Track Trial Strategy

  21. They tell you their strengths and weaknesses. When we meet with a trial team for the first time, they usually present to us as if we were potential jurors. That is, they advocate. Good trial teams do that, but then great trial teams say, "here's what our opponents will say and here's where we are vulnerable."

  22. They don’t answer their own questions, but let other people do that. Often, these answers are found in a mock trial setting. As we frequently advocate, let the data speak, don't guess or just use your gut instinct. See, 10 Things Every Mock Jury Ever Has Said

  23. Before dismissing new ideas, they consider how to apply them, no matter how new. See, How Creative Collaboration Can Help a Litigation Team

  24. They repeat back recommendations to make sure they understand them. This mirroring technique is used by many highly effective litigators and great listeners in all fields.

  25. They send drafts of their work with enough lead time for others to provide comments. Time management in litigation is a skill that must be developed and is a given with great trial teams. See, The 13 Biggest Reasons to Avoid Last-Minute Trial Preparation

  26. They communicate in an orderly, consistent manner so that the left and right hands know what the other is doing. 

  27. If they aren’t good organizers, they task someone who is to assure continuity and avoid panic. Download the Leadership for Lawyers eBook

  28. They don’t assume anything and seek to verify with facts, including mock testing that shows which themes are winners and which juror types are worst. See, 11 Problems with Mock Trials and How to Avoid Them

    mock jury webinar a2l kuslansky

  29. They don’t answer challenges by simply stating how long they’ve done this or where they went to school. See, 6 Studies That Support Litigation Graphics in Courtroom Presentations

  30. They lead, but don’t micromanage. We recently wrote about how some trial teams will agonize over fonts, colors, and PowerPoint templates while ignoring bad facts in their case during trial preparation. See, 3 Trial Preparation Red Flags That Suggest a Loss is Imminent

  31. They are respectful to junior staff and outside consultants. See, 13 Reasons Law Firm Litigation Graphics Departments Have Bad Luck

  32. They understand that their success is a team effort and approach it that way. See, When a Good Trial Team Goes Bad: The Psychology of Team Anxiety

  33. They give credit where credit is due, sincerely (not by patronizing).

  34. They lead by example. Download the Leadership for Lawyers eBook

  35. They pay their bills on time or early. I'm pretty sure most litigators don't understand how important timely payment is and how it contributes to winning cases. See, 10 Ways Timely Payment Helps You Save Money On Litigation Consulting

  36. They don't sugarcoat the possible effectiveness of the other side's narrative and thematic points and fall too quickly in love with their own narrative and themes. See, 12 Astute Tips for Meaningful Mock Trials

  37. Notwithstanding a keen awareness of what the other side will say, they don't simply respond to the other side; they build their own affirmative narrative. See, $300 Million of Litigation Consulting and Storytelling Validation opening statements toolkit ebook download a2l
  38. They pressure test throughout the course of their pre-trial development and during the course of trial itself by continuously empowering the entire litigation and trial teams to provide their own input. They eschew groupthink. See, How Creative Collaboration Can Help a Litigation Team

  39. All attorneys on the team have meaningful roles that sync with their individual strengths.

  40. They don't wait until the last minute to prepare fact and expert witnesses and instead dedicate sufficient resources to ensure those witnesses are prepared. See, Witness Preparation: Hit or Myth?

  41. Witness preparation includes, of course, careful development of an effective visual presentation that is rehearsed but doesn't sound rehearsed. See, The Top 14 Testimony Tips for Litigators and Expert Witnesses

  42. Effective litigation teams spend as much time preparing their witnesses for robust cross-examinations as they do for direct examinations. See, 
    Witness Preparation: The Most Important Part

  43. They look for opportunities to score significant points on redirect, a redirect that is thought through well in advance of trial and not simply reactive to cross.

  44. They seek candid feedback, not false praise, during trial.

  45. They get some sleep. One of my favorite, now retired, trial lawyers used to say that he never slept better than when we was at trial. He always knew he was fully prepared.

  46. They don't relegate preparation of important witnesses to junior lawyers who lack actual experience. See, Witness Preparation: Hit or Myth?

  47. They don't dismiss the level of intensive prep needed “just for deposition,” waiting for trial.  Most cases settle, and discovery can make or break a case. My favorite lawyers are just as "on" at a depo as they are at trial. See, 6 Tips for Effectively Using Video Depositions at Trial

  48. They think about details like tie color, suit color, and body language, and they work to improve their delivery at every event they participate in. See, Litigation Graphics, Psychology and Color Meaning

  49. They are grateful that they get to do the kind of work that they do. I watched a top trial lawyer and friend be interviewed recently. His attitude was one of sincere gratitude about being a litigator. That sincerity comes through in everything that he does, and it is part of the reason he is so successful in front of juries. It's something that is almost impossible to fake.

  50. Finally, they ask their litigation consultants what can they do better. So far, as mentioned in the introduction to this article, it has happened just this once. However, I have a feeling we'll get asked this question more and more. I hope this article provides a useful framework for these types of discussions.

litigation consulting graphics jury trial technology

Tags: Trial Graphics, Litigation Graphics, Trial Presentation, Jury Consulting, Courtroom Presentations, Mock Trial, Trial Consulting, Demonstrative Evidence, Litigation Management, Litigation Support, Juries, Jury Consultants, Trial Preparation, Storytelling, Management, Practice, Expert Witness, Leadership, Judges, Opening, Depositions, Witness Preparation, Persuasion

3 Trial Preparation Red Flags That Suggest a Loss is Imminent

Posted by Ken Lopez on Wed, Mar 2, 2016 @ 09:24 AM


trial preparation red flags litigator behavior loss associatedby Ken Lopez

Founder/CEO
A2L Consulting

In 20 years as a litigation consultant, I’ve personally seen hundreds of litigators try cases, and I have heard the observations of my colleagues on other cases, probably amounting to thousands of cases in all. So I’m in a pretty good position to evaluate what works and what doesn’t work, based on a non-scientific study of trials and trial teams.

One might think that a litigator who has been living and breathing a case for years is more likely to win a jury verdict than a litigator who has just been brought in for the trial. But I just don’t see that. Litigators do well in both situations. It is true, however, that trial teams that prepare longer and harder for trial are more likely to win.

There are, however, some trial preparation patterns that constitute “red flags” and indicate to me that a trial team may be headed for trouble. Here are three of them.

1) Extensive debates among the team about font, color, and PowerPoint templates. This often spells trouble. For example, if your litigation graphics shop (likely experts in visual persuasion) have produced more than 10 PowerPoint template/font/color combinations, and the merits of each are still being debated by the lawyers, the team is likely focusing on the wrong thing. Now a healthy debate about color, fonts, and templates can be OK. But don’t forget that there’s no real scientific agreement on what colors or fonts are persuasive, and also remember that some litigation graphics shops are experts in the nuances of color theory, font choice, and visual persuasion. So, when I see a litigator spending weeks on a template, I know we're in trouble.

2) Secretiveness about the case. Sometimes we see clients who are hesitant to talk about their case or who bristle when asked, "How could the opposition win?" The best litigators want to have their answers questioned. They are the furthest thing from yes-men or yes-women. See $300 Million of Litigation Consulting and Storytelling Validation to understand the kind of work some high-end litigators put in to generate a win.

3) Infighting between law firms. Once this breaks out, the real battle becomes which law firm will triumph rather than which side of the case will triumph. It almost always leads to a loss. If there is the slightest whiff of this behavior, in-house counsel must step in and eliminate it immediately. Allowing this sort of "drama" to persist simply increases the likelihood that the corporate budget for the arts is about to increase markedly (in the form of a losing verdict). See 5 Tips for Working Well As a Joint Defense Team.

However, all these behaviors, in my experience, can be reversed. Very often, they are simply tactics to avoid dealing with a real problem in the case. Good mock testing and good recognition of the behaviors as they are happening can often save a case in trouble. Sometimes, it is up to in-house counsel to assert their leadership and eliminate these behaviors.

Other A2L articles and resources about litigation leadership, in-house counsel, and trial preparation include:

in-house counsel litigation toolkit e-book free download

Tags: Trial Graphics, Litigation Graphics, Mock Trial, Demonstrative Evidence, Litigation Management, Trial Preparation, Leadership, PowerPoint, In-House Counsel

9 Things I’ve Noticed About Effective Litigation Graphics After 20 Years as a Litigator

Posted by Tony Klapper on Mon, Feb 22, 2016 @ 09:39 AM


tony-klapper-welcome-litigation-consultant-litigation-graphics.jpgby Tony B. Klapper

Managing Director, Litigation Consulting & General Counsel
A2L Consulting

I’ve recently joined the litigation consulting team at A2L as its Managing Director. This means that I will be working closely with top litigators to help them craft persuasive themes and stories, assist in the testing of a case during a mock trial exercise, and develop powerful demonstrative exhibits.

In my 20+ years working at Kirkland & Ellis and then Reed Smith, I have participated in many trials, arbitrations, evidentiary hearings, mediations, and board presentations. Almost without fail, I have been the attorney responsible for coordinating and developing the litigation graphics for these events. That did not mean putting mouse to screen in a graphics program or PowerPoint. Instead, I would put pencil to paper and sketch out a great idea that someone else transformed into a powerful litigation graphic. It is work that I have always been passionate about.

As I transition from working on graphics two or three times a year to developing them every week, I want to take a moment to reflect on what I’ve observed about trial graphics as a litigation partner at two major law firms.

  1. Janus-like slides. Janus is the Roman god of gates and doorways. He is depicted as having two faces and typically represents beginnings and endings or contrasting experiences, such as war and peace. Although not one of your sexier Roman gods – clearly no Jupiter or Venus – Janus does inspire some effective litigation graphics: A split-screen slide that reflects a cause on the left and an effect on the right, or a representation or claim on the left and visual proof that the representation or claim is false on the right. A single, simple split-screen slide can instantaneously convey a powerful message without resorting to a series of dull, ineffective bullet-point assertions. 
  1. The Timeline. Effective stories are not simply recitations of chronological events. But “when” something happens and how that something relates to “when” something else happens is almost always a central feature in litigation and part of a good story. Stories have beginnings, middles and endings. They transport us through a maze of actors and activities, all anchored in time. Instead of vertically listing from top to bottom a series of events -- as many fond of the easel and flip chart will do -- a well-crafted and visually appealing timeline allows you to elegantly develop your narrative in linear fashion. But it’s not just the narrative. A timeline that is chock full of entries may tell a completely different story than one with wide gaps of time, even without needing to read the fine print.
  1. The Hyperlinked Timeline. Of course, reading the fine print may also be important. I have designed interactive timelines that employ hyperlinks to document call-outs. This allows the audience to remain anchored chronologically while at the same time digging into the supporting details that prove up your case. I have even used parallel timelines, each with hyperlinked call-outs, to compare and contrast, provide context, or simply rebut unsupported claims with evidence-backed truths.
  1. The Timeline on Steroids. One of the more brilliant lawyers I ever worked with was David Bernick, now a partner at Dechert. David taught me a tremendous amount about story-telling and graphics development. Of the many things that David was skilled at, I was always particularly impressed by his ability to design timelines. But not just any timeline. David would weave together multiple, interrelated concepts into a single slide that employed timelines (sometimes in parallel), trend lines with vertical and horizontal axes, and icons that conveyed a wealth of information and brought focused simplicity to a sea of complexity.
  1. Photographs. Of course, a graphic does not need to have bells and whistles to be effective. Some of the most effective PowerPoint litigation graphics I ever created were simply pictures that conveyed an important point: a picture of an incredibly dusty asbestos manufacturing plant from the 1930s to contrast with the well-ventilated and controlled facility in the 1970s. Or photographs of filthy hotel rooms where an older manager was fired to contrast with sparkly clean hotel rooms where the younger manager was retained.
  1. Checklists. There is nothing simpler than a “yes” or “no” answer. Whether organized around the elements of your case, key scientific or medical observations, or even the verdict form, the simple “yes” or “no” checklist slide is often the best way to orient a jury around critical bottom-line conclusions.
  1. Process Charts. In the majority of cases I have worked on, I represented the defendant. In the majority of those cases, an underdog plaintiff claimed my deep-pocketed manufacturing client had cut corners; put profits over safety; said one thing, but did something else; and/or just stuck its proverbial head in the proverbial sand and ignored known risks. These can be tough cases to win. But one thing I have always found to be effective in crafting my client’s narrative in these types of cases was to spend time on process. I would detail graphically all the steps and controls, and people involved, in the cradle-to-grave design, manufacturing and post-sale monitoring of my client’s products. These process charts would not only help the judge and jury understand a complex series of events, they would provide their own implicit message. The greater the complexity of that process (depicted with an array of arrows connected to boxes connected to more arrows) the easier it was to believe that the company and its employees were not taking short cuts, but rather took pride in the products they made. This went a long towards de-demonizing Goliath in those cases brought by David
  1. THE Slide. It does not happen in every case, but one of the more rewarding aspects of demonstrative design is to be able to effectively convey your entire case and its central theme or themes in a single slide. I recently worked on a matter where the plaintiffs and their experts merely assumed that the defendant was the cause of the plaintiffs’ harm. Actual proof required a series of steps, each of which the plaintiffs ignored in favor of a deceptively facile two-step explanation. Armed with that theme early in the litigation, I secured “assumption” admissions from critical witnesses and wove into the opening and closing decks a single slide that clearly conveyed the plaintiffs’ short cuts.
  1. Color. As a young associate many moons ago, I learned that the color red can have a powerful effect on people. During a trial training program, a seasoned litigator stood up and demonstrated how to cross-examine a witness. When it came time to impeach the witness with prior testimony, the litigator prominently displayed a bound volume of that testimony -- supported with a bright red backing. Each time the witness strayed from his testimony, the litigator merely had to flash the red-backed volume, and the witness and the jury knew what was coming. Soon no impeachment was even necessary; once flashed, the red-backed volume, like an electric dog collar, served to keep the witness’s testimony in line. From that day forward, I understood the power of color. If you are trying to say something negative through a demonstrative exhibit, red is most certainly your color.

Other A2L Consulting articles related to the development of litigation graphics, the art and science of litigation consulting, and the development of a strong narrative for your case:

litigation consulting graphics jury trial technology

Tags: Trial Graphics, Trial Consultants, Litigation Graphics, Trial Presentation, Jury Consulting, Courtroom Presentations, Trial Consulting, Demonstrative Evidence, Trial Technology, Juries, Jury Consultants, Trial Preparation, Storytelling, Persuasive Graphics, Visual Persuasion, Persuasion

[Free and New E-Book] Patent Litigation Toolkit - 4th Edition

Posted by Ken Lopez on Wed, Feb 10, 2016 @ 03:51 PM

A2L PATENT LITIGATION TOOLKIT 4TH editionby Ken Lopez
Founder/CEO
A2L Consulting

Since our founding 20 years ago, nearly half of our consulting work has involved patent litigation. Patent cases are uniquely suited to our brand of consulting, which relies on storytelling, persuasive demonstratives, and the simplification of complex materials for communication at trial. So it is with great pleasure that we release the 4th edition of our Patent Litigation Toolkit (download here).

It seems obvious that our litigation consultants and litigation graphics consultants would routinely help patent litigators make their cases presentable and digestible for jurors. After all, these cases are often incredibly complex, involving issues of detailed mechanics, organic chemistry, and cutting-edge electronic technology.

Less obvious perhaps, is the need for good storytelling. In fact, a lack of good storytelling is the undoing of many a patent case and patent litigator. After all, jurors will develop a story about your case whether you give them one or not. If you've done your trial preparation correctly, you will have offered one to them that they can believe in.

This complimentary 270-page book is designed to help you with all of your patent litigation challenges - from storytelling to the simplification of complex material. I think you'll find articles like these very helpful: 

  • 5 Tips For Inter Partes Review Hearing Presentations at the PTO
  • 11 Tips for Winning at Your Markman Hearings
  • 16 PowerPoint Litigation Graphics You Won't Believe Are PowerPoint
  • Introducing Mock Markman Hearings to Patent Litigation
  • Trial Graphics in Patent Litigation - 11 Great Demonstrative Tips
  • Explaining a Complicated Process Using Trial Graphics
  • 10 Things Every Mock Jury Ever Has Said
  • 5 Questions to Ask in Voir Dire . . . Always
  • 5 Essential Elements of Storytelling and Persuasion
  • 12 Worst PowerPoint Mistakes Litigators Make

This book is completely free and one of 20 that we offer as a complimentary resource to the legal industry. Download The Patent Litigation Toolkit 4th Edition by clicking here or by clicking the image below.

free patent litigation toolkit 4th edition from a2l consulting - top litigation consulants

Tags: Patent Tutorial, Markman Hearings, Litigation Graphics, Litigation Consulting, Litigation Support, Patent Litigation, Storytelling, Claim Construction, ITC, Design Patents

9 Reasons Litigation Consultant is the Best Job Title in Litigation

Posted by Ken Lopez on Thu, Jan 28, 2016 @ 03:39 PM

litigation consultant trial consultantby Ken Lopez
Founder/CEO
A2L Consulting

I am very proud of A2L Consulting's role in the creation of the job title "litigation consultant." Over the years, this position has evolved somewhat, but it remains substantially similar to the way we designed it in the mid-1990s.

Back then, it was my full-time job. Today, I still get a chance to do parts of it now and then, and after 20 years, I believe it's the best job in litigation.

The role of a litigation consultant is to work with trial teams and help them develop the best visual and rhetorical strategies for persuading factfinders at trial, ADR, or in any dispute. In the 1990s, no one but the attorney-consultants at A2L called themselves litigation consultants and few if any firms offered a similar service.

Now, litigation consultants are generally litigators themselves often hailing from a large law firm. They spend most of their time directing the development of persuasive PowerPoint presentations, working with jury consultants in mock trials, and helping top litigators more effectively tell their stories at trial.

As we've written before, this role is becoming increasingly important in the litigation industry where even top litigators make it to trial only once every few years. By contrast, a litigation consultant may see the inside of a courtroom dozens of times or more per year.

If you love litigation like I do, this is the best job in the world. Here are nine reasons why I think this is so.

  1. Trial. Let's be honest, the best part of litigation is not the endless years of paper pushing in advance of trial, it's the theater of preparing for and performing at trial. A litigation consultant skips all of the pre-trial tedium and gets to engage in all the best parts of litigation. See, 11 Things Your Colleagues Pay Litigation Consultants to Do.

  2. Creativity. When we survey our clients about our litigation graphics consulting, they always tell us that the creativity we bring to the trial team, both visual and rhetorical, is what they value most. During law school, I taught myself computer animation as a hobby. Odd, I know, but clearly there was an artist who was trying to burst out. Whether you're a fine artist, an animator, or just have a strong creative bent, there are few things more satisfying than working hard to explain complicated materials to lay people using pictures and a few sound bites. SmartCEO Magazine quoted me saying, "We look like an ad agency — the classic view — everyone gathers. In the legal world, we call it a focus group, but it’s really a brainstorming session and the project group presents the case and gets feedback. Someone might say, ‘That doesn’t make sense, what are you talking about?’” Lopez makes it clear that team keeps working until no one asks that question." See, 21 Reasons a Litigator Is Your Best Litigation Graphics Consultant.

  3. Atmosphere. Some law firms are great to work at and many of those firms are our clients, but from what most Biglaw partners tell me, most law firms are lucrative places to work but are not necessarily fulfilling places to work. A litigation consulting firm, however, is typically a relaxed and creative atmosphere. It operates like a business rather than a quasi-partnership with a confusing leadership structure. While we work hard, we enjoy our time a great deal as well. See, Top 7 Things I've Observed as a Litigation Consultant.

  4. Appreciation. Our clients genuinely appreciate us, and their clients do as well. We regularly receive testimonials, gratitude, and even presents from our clients. See, 10 Things Litigation Consultants Do That WOW Litigators.

  5. Impact. We know how much impact we have because we see it all the time. Judges go on the record praising our work, and jurors often comment on the quality of work (or lack thereof exhibited by the opposition). I find this very rewarding. See, 10 Types of Value Added by Litigation Graphics Consultants.

  6. Thought-Leadership. This blog has been named among the best in litigation by the American Bar Association. It is the primary way we distribute our thought-leadership in the industry, and I think we are clearly in the top-tier of anyone doing so. I believe this is why several hundred people sign up for a free subscription to this litigation and persuasion blog every month (we're approaching 8,000 subscribers now). See, Why We Blog (and Maybe Your Firm Should Too).

  7. The people in the office. Working in an environment where Ph.D. psychologists, award-winning artists, technology experts, and litigators all collaborate is wonderful. I often joke that somehow we've managed to get all the people who didn't hang out together in high school to row in the same direction. See, 5 Surprises in Going from IP Litigator to Litigation Consultant.

  8. Winners and losers. If you love litigation, then you probably love competition. The wonderful thing about competition in the courtroom is that there is normally a clear victor. Our victories typically make up a signficant portion of the top victories of the year listed in various legal publications. See, $300 Million of Litigation Consulting and Storytelling Validation.

  9. Smart people. I believe that we are all the average of the 10 people we spend most of our time with. Working with litigation partners from Biglaw is an amazing privilege. These are some of the smartest people in the world, and many have made me a more effective person.

I think people who love their work usually do great work. Hopefully, you can tell that I love this role in our organization even if I spend most of my time in management, sales, and marketing these days. Both roles are jobs that I love.

If you think being a litigation consultant is something you might like to do, we happen to be expanding our litigation consulting team in our DC headquarters office. The right person is usually a litigator with Biglaw experience, a creative side, and someone who is looking for the lifestyle change that working outside of a law firm can provide. Follow any of these links on LinkedIn, Law360, or Craigslist to apply for the position.

We're hoping to fill the position during February 2016, so hurry.

Other articles related to being a litigation consultant, the value of litigation consulting and the business of litigation consulting generally include:

litigation consulting graphics jury trial technology

Tags: Trial Graphics, Litigation Graphics, Jury Consulting, Mock Trial, Litigation Consulting, Trial Consulting, Storytelling, Persuasive Graphics, Visual Persuasion, Persuasion

A Jury Consultant Is Called for Jury Duty

Posted by Laurie Kuslansky on Thu, Jan 21, 2016 @ 10:41 AM

jury consultant jury duty trial consultingLaurie R. Kuslansky, Ph.D.
Managing Director, Jury & Trial Consulting
A2L Consulting

Day 1 (feels like Day 10) at New York State Supreme Court

I showed up early to get a bird’s eye view of the jury experience from a rare perspective: the juror’s. New York County jurors are summoned from Manhattan, Roosevelt Island, and one zip code in the Bronx.

At nine a.m. sharp, the senior jury clerk opened the metal door and let in roughly 200 freshly minted prospective jurors, including me. On a frigid day, it was no surprise to hear a fair amount of coughing, so navigating to a disease-free seat was like skiing a slalom run.

In addition to the jury summons, the courts now request another form asking anonymously for one’s demographics (gender, age, ethnicity) to help the court gauge who is showing up. The information is not available to the public – I asked.

Some improvements (summoning jurors for only two to three days rather than three minimum; summoning jurors less frequently – only once each six years) have been implemented. Other “improvements” to the jury experience – such as providing work space, computers, lots of charging stations, etc. are, sadly, good on paper but a myth, not reality.

Of the approximately 10 desk spaces available in a side room, several were broken and the power strips filled up quickly or didn’t work at all. Of those that worked, oddly, my phone, like me, regained power only weakly after quite some time.

There are four potential reporting areas for New York County jurors. Here, at 111 Centre Street – Room 1121, it is possible to be sent to the same or other buildings for voir dire and/or to serve if chosen. Oddly, while many courthouses have a cafeteria, or at least some sort of hallway refreshment service, the one thing that almost all prospective jurors need, coffee, is nowhere to be found in the building. One must walk – within the 15 minutes typically allotted for a step-out break – two or three blocks to the closest Starbucks or Dunkin’ Donuts and hope that there isn’t too long a line there or at building security upon returning.

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Lunch is typically from one to two p.m. On a slow day, the merciful clerk cut the group loose at 12:30 to return at 2:15 p.m.

The clerks were a bright spot -- a far cry from the old days, when grumpy old men barked orders impatiently at newcomers who dared to ask any questions. The newer ones couldn’t have been more accommodating, amusing and thoughtful. They treated folks with respect and were unexpectedly humorous (advising us to “rough up” the snack machine if it didn’t work and admonishing us not to conduct research to fulfill our “inner CSI fantasies.”)

The clerks did an excellent job pre-screening jurors, explaining all the reasons that duty could be postponed. They were clear that the commitment would not permit any conference calls for work or meeting any other outside obligations during the hours of nine to five. Anyone with doubts was told to reschedule.

People were allowed to keep their cell phones on vibrate, but only to take calls in the hallway. Once one heads to a courtroom for voir dire, phones must be shut off completely (but, at least, unlike in federal courts, one can keep them handy). As a result, the entire area was like Amtrak’s quiet car on the Acela. Do you know what a really quiet, uneventful situation does to people? Yep, you guessed it – it puts them to sleep.

It was a slow day for jury trials (the first day back from Christmas and New Year’s). Only two small panels (about 20 each) were called for voir dire, leaving the bulk remaining to burn time in the jury duty waiting area. Over time, it looked like an airport lounge after many flights have been cancelled, with prospective jurors deteriorating in composure, from alert and coiffed, to taking off their shoes, dropping formalities and falling asleep in progressively awkward horizontal positions of repose.

For me, the day was more fieldwork and fascinating than one with potential to serve as a juror. No lawyer, seeing that I am a jury consultant or learning of my experience working with law enforcement or in litigation, has ever put me on a jury since I joined the profession. My snacks and amusements ran out before the day was done, so despite my fascination with the inside-out experience, after a few hours I too was rendered a slouching, snoring mutt just like everyone else.

I have always had empathy for jurors and have advised lawyers to understand the limits of jurors’ attention spans. Sitting alongside jurors today was a great lesson: the reality is worse than I thought.

So, if you as a litigator do get a juror to pass go and serve on your jury, your hurdle just got higher. They may have been in a stupor for hours or days, just waiting, before getting to your courtroom, so you are starting from behind at getting them to be alert and care. The “general anesthesia” of waiting in the jury area must wear off before they can actually pay attention. And in New York County, it’s an unimaginable horror: they may not even have coffee nearby to help.

Other articles by A2L trial and jury consultants about jury consulting, persuading jurors, and entertaining a jury:

A2L Consulting Voir Dire Consultants Handbook

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

The Top 15 Free Litigation and Persuasion Articles of 2015

Posted by Ken Lopez on Thu, Dec 31, 2015 @ 12:31 PM

litigation consulting jury consultants litigation graphics dc new york california texas chicago bostonby Ken Lopez
Founder/CEO
A2L Consulting

Nearly 200,000 visits were made to A2L Consulting's Litigation Consulting Report Blog in 2015. With every page view, our readers express their opinion of the value of each article. Those that are the most valuable get the most page views. Today, I'm happy to share the very best articles of 2015 as chosen by our readers' reading habits.

This year, we posted 90 new articles, and that brings our total blog library to nearly 500 articles. If you are involved in litigation or have to persuade a skeptical audience of anything, these articles are an incredibly valuable resource that are available at absolutely no charge.

As we approach our five-year anniversary of this blog, I am very proud of our accomplishments. I'm excited to report that we now have 7,800 subscribers, some articles have been viewed more than 30,000 times, and the ABA named ours one of the top blogs in the legal industry. Not bad for our first five years.

In 2015, these 15 articles below stood out as the very top articles of 2015. Articles focused on PowerPoint, litigation graphics, persuasion, and voir dire continue to dominate our readers' interest.

Each of these articles can be easily tweeted or shared on Linkedin using the buttons below the article title. All are free to enjoy.

I wish you the very best 2016, and here is a link to claim a free subscription so that you get notified when these articles are published.


15. How to Make PowerPoint Trial Timelines Feel More Like a Long Document

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14. A Surprising New Reason to Repeat Yourself at Trial

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13. Lawyer Delivers Excellent PowerPoint Presentation

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12. With So Few Trials, Where Do You Find Trial Experience Now?

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11. 5 Ways to Maximize Persuasion During Opening Statements - Part 1

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10. How to Apply Cialdini's 6 Principles of Persuasion in the Courtroom

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9. 9 Things In-House Counsel Say About Outside Litigation Counsel

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8. Repelling the Reptile Trial Strategy - Pt 4 - 7 Reasons the Tactic Still Works

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7. 10 Ways to Lose Voir Dire

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6. Repelling the Reptile Strategy - Part 3 - Understanding the Bad Science

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5. How Much Text on a PowerPoint Slide is Too Much?

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4. Repelling the Reptile Trial Strategy - Part 5 - 12 Ways to Kill the Reptile

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3. Repelling the Reptile Trial Strategy - Pt 2 - 10 Ways to Spot the Reptile

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2. Repelling the Reptile Trial Strategy as Defense Counsel - Part 1

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1. Why the Color of a Dress Matters to Litigators and Litigation Graphics

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a2l consulting top 75 articles of all time

Tags: Trial Graphics, Litigation Graphics, Demonstrative Evidence, Juries, Voir Dire, Psychology, PowerPoint, Visual Persuasion, Redundancy Effect, Opening, Persuasion

3 Observations by a Graphic Artist Turned Litigation Graphics Artist

Posted by Maureen Vogel on Tue, Dec 22, 2015 @ 10:30 AM

graphic design litigation artistby Maureen Vogel
Litigation Graphics Artist
A2L Consulting

Before becoming an artist here at A2L Consulting, I was what you might call a typical graphic designer. I specialized in creating visual art, primarily for nonprofit organizations in the Washington, DC area. My primary focus was usually to visually convey a single important message with each graphic. I’d never concerned myself personally or professionally with the world of litigation.

When I was a graphic designer, the software platforms Photoshop, Illustrator and InDesign were my standard canvas. However, as a litigation graphics artist, I usually stick to PowerPoint as the fundamental visual presentation tool. Although graphics may often incorporate visual concepts developed outside the PowerPoint platform, this is the foundation for presentation, and much of my artwork is now done in PowerPoint itself (and sometimes in Keynote for Apple devices). PowerPoint is a surprisingly powerful tool. In addition, I have noticed that there are quite a few differences between graphic design and litigation graphics art.

Here are some of the differences I have observed that I find most interesting.

1. Color psychology is very important in litigation-focused graphics.

litigation-graphics-pyschology-color-meaning.jpgYes, color psychology is important in the graphic design realm as well. But in litigation graphics, using the wrong colors in court could offend your audience or negatively affect their mood. That would be a catastrophe.

One example I’ve encountered at work was when the client asked me to change a list of people’s names on a PowerPoint slide from black to red. Red is a color we generally try to avoid in PowerPoint slides because it can increase aggressive feelings in audience members (jurors). Also, I had my own personal aversion to red; depending on the culture, the color red can also invoke very different emotions. For example, in Japan, my home country, writing a person’s name in red means that person will die soon. This would accordingly evoke a very specific emotion in the wrong audience. Because the client’s goal in changing the black font to red was simply to make it more visible and not necessarily to invoke feelings of alarm or aggression toward the people listed, we suggested a brighter blue font instead of red. Almost any color you can think of invokes a specific emotional response, so plan accordingly for your litigation graphics.

A2L is looking for talented graphic designers! Read more here.

2. Litigation design tends to have uncertain or very tight deadlines

deadlines-trial-graphics-litigation.gifWhen I was a graphic designer and did freelance graphic design work, I usually had a good idea of when the project needed to be done. This is not the case with litigation graphics. But perhaps it should be.

As a litigation graphic artist, I sometimes feel like a doctor on call. Trial dates can be changed at any time, and projects that were once due in a week can all of a sudden be due much sooner.

If you want your litigation graphic artist to create very persuasive demonstratives, make sure to devote enough time to brainstorm what graphics are needed to support your client’s story and also give the artist ample time to complete the work. This seems simple enough, but I see that that trial teams more often than not wait until what seems like the last minute to begin to develop the visual component of their trial presentation. From working with A2L, I know that this does not fit with the best practices. I suggest that trial teams begin thinking about how they’ll present their cases to a jury (or judge) many months in advance of actually needing to do so. This gives them enough time to plan for the arguments and to have a professional team craft winning graphics to go with those arguments.

3. Creativity is often influenced by the judge

demonstrative-evidence-consultant.jpgAs a graphic designer, my task was to portray information in the most creative way possible. Litigation design, on the other hand, usually isn’t a contest to see how artistic you can be (it helps, but that’s not the main focus). The judge often will determine the level of creativity required or allowed for courtroom graphics.

Before clients hire us, they typically need to get permission from the judge for the types of demonstratives allowed at trial (e.g., PowerPoint, posters, videos, etc.). Once the types of demonstratives are decided upon, we begin creating graphics accordingly. Sometimes a set of visually pleasing graphics that we’ve created need to be reduced to what one might call “bland” visuals because according to the client, “the judge is very conservative.

For those who believe they will be shot down for being too creative, consider that sometimes an element of surprise is a good thing. Creativity can be conservative, and higher style can be more engaging to even the most conservative of audiences. Words don’t persuade; arguments do. I suggest crafting visuals that convey ideas and emotions rather than pure language – asking an audience, be it a judge or juror, to remember words and more words is not engaging.

Overall, there are quite a few differences between graphic art and litigation-focused graphic art; however, in the end, they both require knowledge of the foundations of art and design – which are concepts appreciated by any audience.

A2L is looking for talented graphic designers! Read more here.

A2L Consulting articles focused on demonstrative evidence, trial graphics, and litigation graphics consulting:

using litigation graphics courtroom to persuade trial graphics a2l consulting

 

Tags: Trial Graphics, Litigation Graphics, Demonstrative Evidence, Presentation Graphics, Advocacy Graphics, PowerPoint, Persuasive Graphics, Infographics, Information Design

What Does A Case-Winning Trial Graphic Look Like?

Posted by Ryan Flax on Fri, Dec 18, 2015 @ 12:57 PM

itc-litigation-graphics-wiper-blades-patentby Ryan H. Flax
(Former) Managing Director, Litigation Consulting
A2L Consulting

Sometimes a trial graphic really does make the difference.

We can’t say that in each case we’re involved in, a trial graphic likely won the case or played a major role in the win. We support some of the best lawyers in the country and they use the tools we provide to do what they do at trial. Usually we’re there to make sure they do the best they can do, but sometimes we provide that key image or animation (and the associated consulting input) that really clicks with a judge or jury and enables the win. Here’s a recent example.

“Insert, Pivot, and Lock”

This was a patent infringement case before the U.S. International Trade Commission concerning the connection mechanism between automobile windshield wiper blades and wiper arms – that little piece of plastic that might as well be a Rubik’s cube for most of us almost every time we need to change our wiper blades. Our client held several patents covering a very special wiper blade connector that was being ripped off by a competitor. To win at trial (final hearing at the ITC), we had to get the judge to agree to our way of understanding the rather verbose patent claim language covering what was a simple, although elegant, invention.

patent-claim-language-trial-graphic.jpgHere’s an example of the claim language captured as an image from the patent:

I’d say that this is a challenging read, whether you’re a judge, a patent attorney, or a fast food restaurant cashier. It’s pretty technically complex and rather long. Definitely “lawyery.” No doubt that it satisfies the legal requirements for claim language, but it almost takes one’s breath away.

We needed to distill this language and the concepts behind it into something that was easily understandable, but we couldn’t be over-argumentative about it. Upon reading this claim language with the benefit of the rest of the patent’s disclosure and the reader’s own common sense, the invention had to seem simple (but elegant).

With that understanding, how do you do it?

After a good deal of brainstorming with the litigation team, we found that the core of the invention was the configuration of elements that allows a user to join a wiper blade to a wiper arm by simply inserting the end of the wiper arm into the connector and then pivoting the two parts together so that they securely lock with one another. Easy enough to say, but it wasn’t so easy to actually identify this concept and explain it with any level of simplicity and specificity and persuasiveness.

After a good deal more brainstorming and whiteboard drawing, we developed a graphic design that really explained it. It was much easier to grasp the inventive concept and more convincing to show it visually, as follows:

With the animation above, we boiled down the claim language into something understandable by anyone, tangible, and acceptable for the judge. We can SEE it; he could see it. It makes perfect sense. The invention (and the infringing products) must work this way – of course.

It may look exceedingly simple, but I assure you it is not. It was not so simple to conceive as a solution to the obstacles in the case. It was not so simple to design conceptually. And it was not so simple to develop the 2D animation (all in Microsoft PowerPoint, I might add). It all works and worked perfectly.

After we showed this animation to the judge during the claim construction hearing, and after the accompanying argument, he eventually began reciting the tag-line of “insert, pivot, and lock” himself in addressing questions to counsel. A pretty good result to that point.

The results of the case were even better.

In the public version of Judge Pender’s Initial Determination (at 32), when discussing the claim construction, he titles one section “The End Portion of the Wiper Arm and the Connecting Element Can Pivot with respect to Each Other About the First Location Until Said Securing Portion Secures the Second Part of the End Portion of the Wiper Arm.” This illustrates that he really gets it. He doesn’t mention the insertion part here, but this part of his final opinion is devoted to the concept that after that insertion the two wiper system components pivot together to lock securely, just as the demonstrative shows. It is clear that the accused devices do this and equally clear that the prior art does not, so the judge’s recognition of this concept is critical to both making the infringement case and overcoming the opposing invalidity case.

In the infringement part of his Initial Determination (at 36 et seq.), Judge Pender identifies that the accused devices are assembled via a “simple pivoting motion.” Thus, in his finding, they infringe the patent’s claims. The claims cover “insert, pivot, and lock.” The covered product works by “insert[ing], pivot[ing], and lock[ing].” And the accused devices infringe because they, too, “insert, pivot, and lock.”

Winner!

Moreover, the animation above does more than establish that the wiper blades are connected by inserting, pivoting, and locking. It shows that this motion of locking can be engaged from either side of the wiper blade, that is, in a “toe-to-heel” or in a “heel-to-toe” insertion and pivoting. This was also crucial to establishing infringement by the accused devices (see Initial Determination at 40 et seq.). Judge Pender found that the respondent’s arguments that they couldn’t infringe because their products connected in a backwards sort of way compared to the complainants’ devices were just plainly erroneous.

The result of all these favorable events was a complete victory for our client. The judge found a violation of Section 337 and recommended that the commission issue an exclusion order against the opposing party, which will stop importation of the accused, infringing wiper blade products.

It is not my intention to minimize in any way the wonderful advocacy by our client in this matter. It was truly outstanding. I believe that counsel’s trial strategy combined with the effective demonstrative evidence really sealed the deal here. Seeing, in this case, was believing.

Other articles on A2L Consulting's site related to patent litigation and the use of visuals in patent trials, in the ITC and in IPRs:

patent litigation demonstrative evidence

Tags: Patent Tutorial, Trial Graphics, Litigation Graphics, Demonstrative Evidence, Patent Litigation, Advocacy Graphics, PowerPoint, Persuasive Graphics, ITC

5 Trial Graphics That Work Every Time

Posted by Laurie Kuslansky on Wed, Dec 16, 2015 @ 02:14 PM

five-trial-graphics-that-always-work-at-trialby Laurie R. Kuslansky, Ph.D.
Managing Director, Jury Consulting
A2L Consulting

        and

Kenneth J. Lopez, J.D.
Founder/CEO
A2L Consulting

Having conducted hundreds of mock trials and observed and polled jurors in hundreds of actual trials, we see the jurors asking the same questions over and over again – questions that the trial presentation should have answered.

In view of that, here are five different subjects for trial graphics that are almost sure to answer some jurors' question in every case. They are so standard as scene-setters that they almost always have a place in a trial. Without them, triers of fact often feel as if they have come in after the movie started and that they can't rewind to get the answers. 

These five trial graphics fill in important blanks, prevent confusion, and create the foundation to tell your story, your way. Imagine the difference between being introduced to someone merely by name (“This is John Doe”), to whom you nod politely, but in whom you are unlikely to take interest -- and being introduced more fully (“This is Professor John Doe, who is in charge of research on meteors at M.I.T.”), whom you now likely have greater interest to get to know.

1.  An organizational trial graphic or players chart showing the major players, their relationships, and their role in the case as you see them.

players chart trial graphic

A players chart answers questions like:

Who initiated the relationship?

What did each need or bring to it? Why?

Who is in charge?

Who did what?

Who knows whom?

What are the coalitions and who are adversaries?

Who was a good or bad actor?

A2L is hiring! Know a talented presentation designer for our DC headquarters?


2.  A chronology and timeline of key events that shows what happened in what sequence, which leads to conclusions about cause and effect.

timeline trial graphic

A timeline or chronology answers questions like:

When did the relationship start?

What happened during the "courtship" and "honeymoon" periods?

When did things go wrong?

When did the deterioration start?

What happened just before or after it?

When did the relationship end?

How did each side react?

 

3.  What each gained or lost from the events in the case. This shows motive or the lack of it, equity, value and other important points.

elements of crime trial graphic


A gain/loss, events, or elements trial graphic answers questions like:

What did each put in or take out of the situation?

What was their value?

Does it seem fair and balanced or not?

 

4.  How the damages do or do not add up in a way that jurors can follow along by themselves, simply.

damages-trial-graphic.jpg

If lay jurors cannot “do the math” in their own terms, it’s hard to convince them to award or mitigate damages. They can't fight opposing views just by taking your word for it or decide the battle of the experts in the experts' terms.

 

5.  Who is...?

expert cv resume trial graphic

Charts that show the identity of the litigants or key players and play up or down their history, size, wealth or function can make or break how triers of fact view them, blame or credit them, determine who is the victim, apportion fault and damages, decide credibility and reach other important conclusions about liability and damages. Are they so rich that damages won't affect them?  Are they so experienced that they should have known better?  Are they so well credentialed, that you should believe them, even if you don't quite understand them?

Without answering these essential who/what/where/when/why questions that accompany any case, you may not be able to satisfy the triers of fact when it comes to the more challenging questions of the case at hand. Instead of depriving them of this important information, make it handy.

Other articles and resources related to using a trial graphic, litigation graphics, demonstrative evidence, and winning using these tools:

powerpoint litigation graphics consultants

Tags: Trial Graphics, Litigation Graphics, Litigation Consulting, Demonstrative Evidence, Presentation Graphics, Advocacy Graphics, Timelines

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Authors

KenLopez resized 152

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


tony-klapper-headshot-500x500.jpg 

Tony Klapper joined A2L Consulting after accumulating 20 years of litigation experience while a partner at both Reed Smith and Kirkland & Ellis. Today, he is the Managing Director of Litigation Consulting and General Counsel for A2L Consulting. Tony has significant litigation experience in products liability, toxic tort, employment, financial services, government contract, insurance, and other commercial disputes.  In those matters, he has almost always been the point person for demonstrative evidence and narrative development on his trial teams. Tony can be reached at klapper@a2lc.com.


dr laurie kuslansky jury consultant a2l consulting







Laurie R. Kuslansky, Ph.D., Managing Director, Trial & Jury Consulting, has conducted over 400 mock trials in more than 1,000 litigation engagements over the past 20 years. Dr. Kuslansky's goal is to provide the highest level of personalized client service possible whether one's need involves a mock trial, witness preparation, jury selection or a mock exercise not involving a jury. Dr. Kuslansky can be reached at kuslansky@A2LC.com.

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