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The Litigation Consulting Report

7 Habits of Great Trial Teams

Posted by Tony Klapper on Tue, Jan 3, 2017 @ 02:17 PM

great-trial-teams-good-to-great-collins.jpgby Tony Klapper
Managing Director, Litigation Consulting
A2L Consulting

Ken Lopez, the CEO of A2L Consulting, and I were talking the other day about some good books to read for the holiday season.  I suggested a current best-seller, Thomas Friedman's Thank You for Being Late - strongly recommended to me by my dear friend and mentor, Jim Hostetler. But Ken guided me to another book, a best-seller written 15 years ago by Jim Collins, called Good to Great.  It was a great read.

Although the book is principally a heavily researched analysis on what differentiates a great company from just a good company, I believe that many of the same lessons that apply to the Fortune 500 apply with equal force to law firms, litigation consulting companies, and even trial teams.  Borrowing heavily from Collins' conclusions, I offer the following New Year’s thoughts on how good trial teams can be great trial teams:

  1. Great trial teams have leaders who have the confidence to make important decisions but also the humility to call attention to the team, not themselves.
  1. Great trial teams are composed of the best and the brightest who, like their leader, put the team first.  They are not necessarily subject matter experts (though subject matter expertise certainly doesn’t hurt), but they are innovative thinkers who roll up their sleeves and get to work.
  1. Great trial teams don’t simply follow the direction of their leader; instead, they participate in the development of the trial strategy from the beginning -- through open, sometimes animated, discussion and debate.  
  1. Great trial teams realize that presenting an effective narrative at trial is not something that happens overnight, but rather requires repeated reassessment and development.  The process is iterative and not necessarily linear.
  1. Great trial teams aren’t afraid of technology and think carefully about how they can use it in the courtroom.
  1. Great trial teams understand what makes them great as a team and as individuals.  They don’t try to become something they are not.  
  1. Great trial teams think hard about the core of their case and develop themes, theories and narratives that make the most sense of the law and the facts, fitting round pegs only into round holes.

Are these statements true of your trial team?

Other tools and resources for A2L to help your trial team improve and benchmark your trial team against other teams:

persuasive storytelling for litigators trial webinar free

Tags: Litigation Technology, Trial Technology, Litigation Management, Trial Preparation, Storytelling, Management, Leadership

5 Ways Change Can Be Good for Trial Lawyers

Posted by Tony Klapper on Thu, Nov 10, 2016 @ 12:31 PM

superlawyer-trial-lawyer-litigator-change-narrative-storytelling.jpg
by Tony Klapper

Managing Director, Litigation Consulting
A2L Consulting

Everyone, regardless of political persuasion, can agree that a significant portion of the U.S. electorate voted for change in this week’s presidential election. And the way the whole 18-month campaign went certainly represented a change from the way most campaigns have gone in our history.

But while we as a country – at least every four or eight years – seem to like change, lawyers not so much. Maybe that reflects what we learned in law school. Law is governed by precedent, and if there are changes to precedent, they are incremental at best. Or, maybe it reflects the role we assume as advisers and the tendency for many in our profession to be cautious and risk-averse.

Regardless of your attitude toward changes in the law, in your political leaders, or in what your clients do, we believe that in the arena of trial advocacy change is very often a good thing. Here are five examples.

  1. Literally, change the font you are using for exhibits and displays. Mix it up occasionally. Pick a less common font, but not one that calls too much attention to itself. Jurors will notice the unusual font, although they may not know just what they’re noticing, and they will stay awake and attentive. See, Could Surprise Be One of Your Best Visual Persuasion Tools? 
  1. Change your narrative. Don’t be wedded to telling your story a certain way, but be open to other people’s thoughts and perspectives. Aunt Sally’s apple pie wasn’t perfect the first time; it took years to fine tune that recipe. It could take many run-throughs to get an opening statement just right. See, 10 Types of Value Added by Litigation Graphics Consultants
  1. Change the perspective. Within a trial, tell the story from more than one viewpoint. If your opening statement is told from the perspective of your client, you might want to mix things up so that your closing argument features the thoughts of a particularly convincing witness. The opening and the closing don’t have to match. They can be different, based on a preconceived plan. This will also keep the jurors awake and interested, and it will provide depth to your narrative. See, Are You Smarter Than a Soap Opera Writer?
  1. Change your approach to working with your team. Ask yourself if there have been miscommunications or tensions. To get the most out of everyone on the team (lawyers, paralegals, vendors, and so on) think about the best way to motivate them. Be prepared to adjust. See, 50 Characteristics of Top Trial Teams
  1. Change yourself. Billy Joel said, “Don’t go changing to try and please me,” it’s true – but lawyers are in the business of trying to please jurors and others. Don’t resist the process of making yourself a more effective lawyer. Most lawyers who do trial advocacy think they are already at the top of their profession – and many are. But even the best can learn and grow. See, Accepting Litigation Consulting is the New Hurdle for Litigators

litigation leadership 4th edition

Tags: Trial Graphics, Trial Consultants, Litigation Graphics, Trial Presentation, Litigation Consulting, Trial Consulting, Demonstrative Evidence, Litigation Management, Trial Preparation, Storytelling, Leadership

Business Development – The A2L Way

Posted by Ken Lopez on Mon, Aug 22, 2016 @ 04:13 PM

a2l_professional_services_business_development.jpgby Ken Lopez
Founder/CEO
A2L Consulting

I have always been deeply involved in and passionate
about business development. It was this passion that made it possible for me to build A2L from the ground up in the early 1990s.

Building a company from nothing is no easy task. I often share with young entrepreneurs one of my great secrets – the ways in which I found my first clients. I wrote down the name of every person I knew who I thought might know someone helpful to the business. Ultimately I ended up with a list of 400 people. They were my first set of prospects.

In that group were college buddies, old bosses, and even my mom's high school boyfriend. I contacted all of them, and from that group, I landed clients at AOL, Dickstein Shapiro, and a variety of other well-known law firms. That was how I got started, and this process of relationship-based business development is essentially how I contribute to A2L's business development efforts today.

As we're in the process of hiring a new member of our business development team, I started reflecting on how we do business development at A2L. I think it is pretty impressive, and most professional services firms could learn something from our process. It's rather complex and involves a mixture of repeat/referral work (the majority of our work), growing new relationships from old relationships, and using a rather sophisticated method of blogging to generate inbound interest in our firm that attracts clients who think the way we do.

Indeed, blogging is one of the most important things that we do as an organization. Most of our new business is generated as a result of our blog.

I love it especially because it is very authentically generated business. We share our experiences, we describe the things that we know and believe, and the world's best trial lawyers find their way to us. We give away a lot of our “secrets” about litigation, knowing full well that many people will read these blog posts and never hire us. We hope and expect that some people will read our blog and will be impressed by what we have to say and what we have learned from more than two decades of experience in trial consulting.

Our business development team is thus truly in the business of helping, not selling. They help connect top-end trial lawyers with expert litigation consultants who improve opening statements, develop compelling narratives, conduct scientifically valid mock trials, and develop litigation graphics that teach and persuade judges and juries.

If you or if you know someone who might like to work in this atmosphere in our DC office, consider sharing this article or one of the links below with them:

Here are some other business development for professional services firms articles and tips that you may find useful:

Tags: Litigation Management, Pricing, Management, Leadership, Business Development, Litigation Public Relations

10 Criteria that Define Great Trial Teams

Posted by Ken Lopez on Thu, Jul 21, 2016 @ 01:27 PM

top-trial-teams-assessment-tool-win-cases.jpgby Ken Lopez
Founder/CEO
A2L Consulting

Several months ago, I wrote about the 50 Characteristics of Top Trial Teams. Based on those 50 characteristics, we have created a trial team assessment tool. Although we've only just begun to collect the data, my hypothesis is that the quality of trial preparation, which this tool attempts to measure, is highly correlated with success at trial.

In my experience, only a small minority of trial teams rigorously prepare for trial in a way that would earn them a high score on this tool. In most cases, budgets and/or firm culture simply don’t permit the level of preparation that I see in the highest performing trial teams.

In our first effort to quantify what makes a good trial team, our beta version trial team assessment tool offers 10 criteria to measure performance. We selected these 10 points from among the 50 criteria, based on the collective experience of A2L's top litigation graphics consultant, our top jury consultant and on my experience. That's more than 75 years of accumulated litigation experience from work in thousands of cases.

We assign a maximum of 10 points to each criterion, and so far, we have observed trial teams ranging from a low of 33 to a high of 76. Losses tend to occur more often with low scoring teams, but the data are still quite fragmentary.

Here are the 10 criteria that we use to define great trial teams:

  1. Communication: They communicate in an orderly, consistent manner so that everyone knows at all times what is going on. They’re systematic in how they work and communicate with their outside consultants.

  2. Timely Preparation: They’re not frantic. They don't wait until the last minute to prepare fact and expert witnesses. They construct their key trial narratives early.

  3. Rigorous Preparation: They don't dismiss the level of intensive prep needed “just for deposition.” They work through dozens of drafts of their demonstratives. They don't relegate preparation of important witnesses to junior lawyers who lack experience. They require their experts to work with communications and visual design consultants.

  4. Storytelling/Theme Development: They understand the difference between a narrative and a theme. They don’t simply respond to themes introduced by the other side; they build their own affirmative narrative. They develop their thematic story right from the start and incorporate that into discovery.

  5. Organization/Management: The team leaders realize that there are too many aspects of a big-ticket litigation for the first chair to handle all of them alone. The leaders spend their time where they add the most value. They get some sleep. If they aren’t good organizers, they task someone who is a good organizer in order to assure continuity and avoid panic.

  6. Humility: They exhibit a distinct lack of arrogance. They don’t answer challenges by simply stating how long they’ve done this or where they went to school. They don’t answer their own questions, but let other people do that. They conduct post-hearing, post-conference, and post-trial debriefings.

  7. Openness and Curiosity: Great litigation teams want their answers questioned. They tell you their strengths and weaknesses. They don't sugarcoat the possible effectiveness of the other side's narrative and thematic points or fall too quickly in love with their own narrative and themes. Finally, they ask their litigation consultants what can they do better.

  8. Leadership and Teamwork: They don't lose it; they keep their cool. They understand that their success is a team effort and approach it that way. They give credit where credit is due, sincerely (not by patronizing). 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.

  9. Technology Comfort and Courtroom Presence: They’re not afraid of technology in the courtroom or elsewhere. They think about details like the color of their outfits and their body language. They constantly work to improve their delivery. They just look comfortable in front of a jury.

  10. Practice: They don’t assume anything and seek to verify everything with facts, including mock testing that shows which themes are winners and which juror types are worst. Effective litigation teams spend as much time preparing their witnesses for robust cross-examinations as they do for direct examinations. Witness preparation includes careful development of an effective visual presentation that is rehearsed but doesn't sound rehearsed.

How would your trial team rate on these criteria? Hopefully, your team is on the 50 or higher scale. I have never seen a team with an under-50 score win a case.

Other A2L Consulting articles related to trial preparation, success at trial and the relationship between in-house and outside litigation counsel include:

in-house counsel litigation toolkit e-book free download

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

My Dear General . . . Lincoln’s Communication Skills in War

Posted by Alex Brown on Tue, Jun 28, 2016 @ 04:16 PM

lincoln-communication-persuasion.jpgby Alex Brown
Director of Operations
A2L Consulting

My oldest daughter is a volunteer for our local congressman. At dinner last night she heard some quotes from a current presidential candidate and proceeded to excoriate them. Usually I toss in the old adage “If you can’t say something nice, just don’t say anything.” This time I didn’t and instead talked to her about our 16th president.

Many of you might know the story of Lincoln’s Letter to General Meade. On July 4, 1863, Lincoln realized that Confederate General Robert E. Lee was trapped between the Potomac River and a fast-moving Union Army behind him, and sent an order to General George Meade to move in for the kill and end the war. Instead, Meade held a war council and got multiple points of view. While he was doing so, Lee was able to escape over the Potomac with his soldiers. Lincoln was furious. He wrote a letter calling out Meade for his stupidity and lack of fortitude and questioning his ability to command. We will never know Meade’s reaction because Lincoln never sent the message. Instead, he thought about things from Meade’s perspective, and the fact that they had just finished a bloody battle in Gettysburg and how that might have affected Meade’s willingness to engage at a random location with so many variables. Lincoln also realized that dressing down his general would do nothing to help morale and would not change what had already happened.

Lincoln gave us the perfect example of how to be a communicator. This is a lesson that we should reinforce in everything we do. We should be aware of these lessons when we are dealing with witnesses, experts, jury, judge and even support personnel and litigation consultants. You are always being watched, and people will always judge you on how you act with those you meet.

What are the keys to communication?

  1. Listening. We all know what proactive listening is. The key to active listening is not just hearing the words, but also visualizing the concepts of what is being said and seeing the non-verbal cues. Basically, it’s listening with all your senses. Stephen Covey wrote a great little book called The 7 Habits of Highly Effective People (you can read it in one sitting). His breakdown of listening fits in 5 buckets.

    1. Ignoring
    2. Pretending
    3. Selective Hearing
    4. Attentive Listening
    5. Empathic Listening

We all should aim for empathic listening. You need to use your senses when communicating so you know how to respond to keep people engaged. The litigation graphics you use, for example, go a long way to keep people engaged in court.

  1. Remember their name. I walk into my bank and when the teller remembers my name, I automatically feel more comfortable. I am sure everyone has had a similar experience. Communication is a two-way street; you can do everything right but the message will still not be received. Doing anything to reduce negativity increases positives. As Dale Carnegie wrote: “Remember that a person’s name is, to that person, the sweetest and most important sound in any language.”

  2. Make them feel important. I have talked about Robert Cialdini before, because his outline on communication is one of the purest examples of how to influence people. When they feel important and empowered, people will be more engaged. He suggests two things: give honest compliments, and ask for their advice. I am not suggesting empty platitudes but a compliment as simple as acknowledging a good point made.

  3. Focus on similarities. People gravitate toward others whom they perceive as similar to them. Going back to Cialdini’s 6 principles of persuasion, people want to connect with other people; it is how we are wired. Find similarities so others can feel connected and have a higher comfort level with you. They will be more engaged and receptive to your points.

  4. Let them talk. This is less about juries and more about everyone else, but according to a study done at Harvard, bragging affects the same pleasure center of your brain that is stimulated by money and food. So much so, that it can become addictive. Use your active listening skills and have them talk about themselves and their interests. It will engage them and make them open to your influence.

So when communication is key, and things are getting a bit stressful, ask yourself: “What would Lincoln do?”

Other articles about communication, persuasion, leadership, and influencing others from A2L Consulting:

litigation leadership 4th edition

Tags: Litigation Management, Psychology, Management, Leadership, Persuasion

7 Reasons the Consulting Expert is Crucial in Science-Based Litigation

Posted by Tony Klapper on Fri, Jun 3, 2016 @ 11:49 AM

consulting-expert-managing-expert-science-litigation.jpgby Tony B. Klapper, Managing Director, Litigation Consulting & GC, A2L Consulting and David H. Schwartz, Ph.D., Co-Founder, Innovative Science Solutions 

The successful litigator knows that one of the first and most important steps to be taken when confronted with complex science-based litigation is to identify and engage a top-notch testifying expert. The ideal testifier is one who is highly qualified, able to credibly communicate to a jury, and can educate the legal team. These characteristics go for experts involved in patent disputes, product liability litigation, and consumer fraud cases involving allegations that a supplement, drug, or device is not effective.

Testifying experts are indeed critical for the success of a case, but as we have discussed in a previous post, many litigators fail to recognize that it is equally important to engage an experienced and litigation-savvy consulting expert. To understand why, consider the following seven points.

1. Availability

If you have recruited the ideal testifying expert, his or her time may be limited by the day-to-day obligations as an opinion leader in their field. I am sure that most of the litigators reading this post have experienced the challenges of working with a testifier who teaches, is conducting scholarly research, or has just simply overcommitted to too many legal clients. When this happens, getting the expert’s attention may prove just as difficult as understanding the science upon which the expert relies. And because understanding the science enough to cross-examine the other side’s expert is a critical component of effective advocacy, having a consulting expert available to take the time to educate you and help you prepare your case can be indispensable.

2. Context

Consulting experts tend to understand the litigation landscape better than an academic testifying expert. With the exception of the oft-used professional testifier, most testifying experts are not particularly litigation savvy and may not be familiar with the manner by which scientific evidence in their field may be twisted and turned by more experienced testifiers. A consulting expert who has studied not only the literature, but the positions espoused by the adversary’s experts—as articulated in expert reports, depositions and trials—can help litigators more effectively prepare their testifiers’ reports and direct examinations, as well as prepare for cross.

3. Cost-Containment

Third, consulting experts provide the litigator with a means of evaluating an adversary’s case, as well as his or her own, and understanding where the strengths and weaknesses lie. As we all know, we live in an age when early case assessments have become critically important to the business client. Those clients increasingly demand that their outside counsel find ways to resolve resolvable disputes well before hundreds of thousands (if not millions) of dollars are spent in motions practice, discovery and expert retention. Having a consulting expert help assess your case before retaining your testifier often proves to be one of the most cost-effective ways to satisfy the client’s cost-saving demands.

expert witness teach science complex subject courtroom webinar 4. Discoverability Concerns

Notwithstanding changes to Fed. R. Civ. P. 26(b)(4)(B)-(C), discoverability concerns remain with testifying experts (particularly in state courts) that are not as relevant with consulting experts. Know your jurisdiction. In addition to all the reasons mentioned above and below for retaining a consulting expert, if you litigate in a state court that does not provide full work product protection to communications with testifying experts, beware. The consulting expert might be your only safe harbor for open and candid discussion about the scientific evidence.

5. Find the Best Testifiers

Fifth, the right consulting expert can help you find and recruit the ideal testifying experts, especially when the issues are extremely complex and esoteric. This is particularly true when the litigator has not had the time to fully immerse him or herself into the science. Until that happens, finding the right testifier can be a complete crapshoot. Who are the real thought-leaders in the field? Among them, are there any candidates who have espoused views antithetical to my client’s? They may say they haven’t, but how do you know without fully understanding the literature and that expert’s writings? Can the candidate’s methodology expose him or her to a blistering Daubert attack? These and other questions are critical in the search process. But who has the time and the skills to make these judgment calls? A good consultant can help in the vetting and selection process in ways that busy litigators often cannot.

6. Help To Ensure Victory

Sixth, in the age of increasing Daubert (and other expert) challenges, having a consultant available to help assess the adversary experts’ methodologies and brainstorm areas of attack can be the difference between winning and losing a case. Yes, lawyers can be very skilled at identifying the logical flaws, errors of omission, and unfounded inferences that plague many an expert’s analysis. But having a consulting expert dig into the literature and/or serve as a sounding board for lawyer-based “scientific” musings helps ensure that potential arguments are carefully vetted and those selected are truly effective.

7. Some Examples

Where can these consultants and consulting services be most helpful? Consider their use in patent disputes, personal injury litigation, and consumer fraud matters.

For example, pharmaceutical and medical device patent disputes revolve around demonstrating issues of patent validity and infringement. If you represent an innovator, you will be focused on demonstrating that the patent is valid under intense scrutiny and that your adversary is infringing on the teaching present in your patent. If you are defending a generic manufacturer, your goals will most likely be reversed. Consulting experts can help you perform these tasks and identify the right testifying experts to make these assertions. These non-testifying experts can scrutinize the laboratory notebooks and meeting minutes to spot documents that both support and potentially refute your case. For these types of cases, you will be looking for consulting experts with credentials in medicinal chemistry, drug metabolism, as well as basic cell and molecular biology.

In personal injury product liability cases involving healthcare products—such as pharmaceutical and medical devices, dietary supplements, agra-chemicals, and foods—consulting experts are perfectly positioned to work closely with counsel. The knowledgeable consulting experts can be instrumental resource in matters that involve a complex regulatory landscape and equally complex science-based issues. Consulting experts can help clients develop strategies and approaches that are central to the defense, and they can help identify the difficult-to-find regulatory testifying experts.

Finally, as many of our readers know all too well, consumer fraud cases are becoming extremely common, especially for products such as dietary supplements, cosmetics, and other consumer healthcare products. These cases generally involve allegations that no competent and reliable scientific evidence supports the advertised benefits of the products at issue. Like personal injury litigation, consulting experts are critical to an in-depth understanding of the science relevant to the case. Because there is a specific regulatory standard at issue in these cases, it is sometimes less important to have experts who are experts in the medical area at issue and more important to have consultants who understand regulatory standards and the types of studies that would be considered competent and reliable scientific evidence. Consulting experts in these cases will be able to evaluate and assess the substantiation reports that the defendant may have generated and they will help you perform an up-to-date, comprehensive review of the scientific literature relevant to a substantiation of the advertising claims at issue.

Other articles from A2L Consulting related to science-focused litigation:

ISS A2L Combating Junk Science E-Book

Tags: Litigation Management, Science, Environmental Litigation, Expert Witness, Witness Preparation, Toxic Tort, Damages, Product Liability

[New and Free E-Book] 50 Helpful Articles for Litigation Leaders

Posted by Ken Lopez on Thu, May 26, 2016 @ 02:02 PM

A2L Litigation Leadership Free E-Book Downloadby Ken Lopez
Founder/CEO
A2L Consulting

Anyone who puts together a team to represent a client in a high-stakes piece of litigation is engaging in an act of leadership. To be successful, such a litigation team needs to blend the skills of an outside set of trial lawyers from a law firm, large or small; in-house corporate counsel; the leadership of the client company, which will want to keep close tabs on high-stakes litigation; a wide variety of paralegals, assistants and other key nonlawyer personnel; and, in all probability, a trial consulting company such as A2L.

Today we are releasing the fourth edition of a new and free eBook on leadership for lawyers that can be downloaded here. I hope that it will be useful to legal industry leaders, whether running a trial team, a practice group, or an entire law firm.

Law firms and corporations both struggle to provide better leadership within their organizations. Comparatively, however, law firms are at a disadvantage because they don’t have a long and strong tradition of training their leaders. In law firms, leadership development is mostly trial and error. Most business schools don’t teach students how to run a law firm, whereas the science and art of being a corporate CEO have been studied endlessly.

For years, it seemed that law firms were lagging behind in business fundamentals. More often than not, their structure was loosely defined. Management was more of a suggestion than a dictate. And accountability was a new term for many. Conceptions of “power” within a firm, based on rainmaking or litigation successes, seemed to play the dominant role in who takes the lead in management responsibilities.

But now law firms are becoming more management-oriented as the economic landscape has changed.

Our leadership eBook is largely focused on litigation, as this is the focus of our own firm. The eBook includes interesting and timely articles such as “The CEO in Litigation: Problems, Solutions and Witness Preparation”; “When a Good Trial Team Goes Bad: The Psychology of Team Anxiety”; “In-House Counsel’s Hiring Methods for Litigation Counsel Are Surprising”; “How Valuable Is Your Time vs. Litigation Support’s Time?”; and “Nine Things That Outside Litigation Counsel Say About In-House Counsel.”

We, as a litigation consulting firm, struggle with issues quite similar to those of a law firm. Most of our leadership team, me included, are player-coaches. That is, none of us are full-time leaders. Instead, we must, like many in a law firm, balance our leadership responsibilities with the time we spend delivering for our clients. We hope that this eBook permits you to achieve a similar balance.

I hope this book is helpful to you. I would enjoy hearing from you and encourage you to leave a comment below (contact information is not published).

litigation leadership 4th edition

Tags: Litigation Consulting, Litigation Technology, E-Book, Litigation Management, Litigation Support, Psychology, Management, Leadership

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

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  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.

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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

How Creative Collaboration Can Help a Litigation Team

Posted by Tony Klapper on Mon, Apr 18, 2016 @ 11:32 AM


litigation_team_collaboration.jpgby Tony Klapper
Managing Director, Litigation Consulting
A2L Consulting

I was reading the Washington Post’s Business section on Sunday morning, and a front-page article about Sean Parker caught my eye. Parker, dubbed “Silicon Valley’s Bad-Boy Genius,” co-founded Napster and was the first president of Facebook. He was also played by Justin Timberlake in “The Social Network.” Far from a routine business profile, this article provides several fascinating lessons concerning the importance of creative collaboration.

Apparently tired of catering to the entertainment needs of millennials, Parker recently launched the Parker Institute for Cancer Immunotherapy. Although it was notable that Parker invested $250 million to support groundbreaking research into eradicating a disease that kills millions each year, even more important is his model of creating a “sandbox” for scientific research. At press time, six premier medical research institutions—Stanford, Hopkins, MD Anderson, UPenn, UCSF, and UCLA—had signed up to be part of the consortium that Parker is creating to fight cancer. The premise behind the effort is that working together in the sandbox is far more effective than working alone. That truism is not one that is always followed.

I have worked with some great litigation teams over the past 20 years—teams that constantly encourage fresh ideas and reassessment of the facts; that meet and openly share ideas; that reward free expression and discourage groupthink. But I have also worked with teams that do none of these, where the lead lawyers are either too egotistical or too insecure to foster the free exchange of ideas. It seems obvious that spending the time to brainstorm is a good thing, not a bad thing. But institutional factors and personality traits can often sabotage implementation of the obvious.

At A2L Consulting, we have a sandbox and we enjoy playing in it. When a new matter comes our way, we first individually get our arms around it, and then we meet. Whether at the table in a conference room, in front of one of our many whiteboards, or on a conference call, we work together, each of us bringing his or her own unique perspectives and experiences to bear. Our owner has been providing litigation consulting services since the mid-1990s; our lead Ph.D-educated jury consultant has been doing this work for over 30 years; I have been in the trenches on a diverse array of cases for 20 years; and our team of litigation graphic artists have collectively been at this for decades. Not only can collaboration be fun and rewarding; it brings a better product to the table.

That’s also the beauty of the consulting business itself. To be effective consultants, we always ask our clients to tell us the best and worst about their cases and to tell us the best and worst of our performance as consultants. Similarly, we are not afraid to offer our own perspective on the strengths and weaknesses of our client’s arguments and to offer constructive critiques on their presentations. We all become better when we share, openly work together, and move beyond the barriers of ego.

Having a sandbox and being able to play nice in it constitutes the beginnings of collaboration. Sharing ideas, pressure-testing them, and brainstorming about new ones is the hallmark of creativity.

Other A2L Consulting articles related to effective litigation team management, creative collaboration, and getting great litigation results:

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Tags: Litigation Consulting, Litigation Management, Litigation Support, Management, Leadership

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:

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

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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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