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When Preferred Vendor Programs Go Bad

It has become quite common for major corporations to institute preferred vendor programs for their legal representation, under which a limited number of law firms pre-qualify to do legal work for the corporations and the corporations turn exclusively to these law firms. As an article on the American Bar Association’s website noted in 2014: Companies create preferred counsel lists not only to cut costs but also to build relationships with subject-matter experts relevant to their industries in their most important geographical areas. By consolidating work across fewer firms, companies deepen their counsel’s familiarity with their issues and get more consistency in their representation. Corporations are also using preferred vendor programs to select other types of outside professionals – including, significantly for our purposes, litigation consultants, jury consultants, litigation graphics consultants, and trial technicians. A few years ago, in fact, we published an article here suggesting no fewer than 17 best practices that should apply to the implementation of a preferred vendor program for trial consultants. The third of these suggested best practices perhaps should have been listed as the first, since the way I see things in our industry, it is the most relevant to what is going on today. It was: Remember, litigation is generally a one-time thing: You never want to be so focused on price that you overlook this. For trial support, you generally only get one bite at the apple, and vendors, especially new ones, can be a risk. So, as you consider procurement, be mindful of quality. Trust me, all firms are not created equal in this industry.

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We have written many times about what separates good trial teams from world-class trial teams. One article collectively written by many people inside and outside of A2L stands out to me as seminal. It can be found here: 10 Criteria that Define Great Trial Teams If I could have all trial lawyers read only one of our articles, it would be this one. It is one of more than 600 on our site, but it succinctly reflects our leadership's best thinking, and it best summarizes what most of the other 599+ articles say. This simple list of 10 criteria, especially when used as a trial team self-assessment tool, is a thing of magic. In arriving at this deceptively simple list, we captured hundreds of years of trial experience. At first, we identified 50 trial team traits that set the great ones apart from the ordinary (you can see these in this article). When we reduced these 50 traits to 10 key criteria, I think we revealed the secret ingredients of a successful trial team. And in the two years since that was published, I have not seen any reason to revise the criteria. In fact, I’ve seen this list turned assessment tool perform consistently: Trial teams with low scores lose cases; trial teams with high scores win cases. Nowhere on this list do we explicitly use the term groupthink, but our thoughts on the subject are certainly implied through our selection of these 10 traits. First, what is groupthink? Wikipedia says: “Groupthink is a psychological phenomenon that occurs within a group of people in which the desire for harmony or conformity in the group results in an irrational or dysfunctional decision-making outcome. Group members try to minimize conflict and reach a consensus decision without critical evaluation of alternative viewpoints by actively suppressing dissenting viewpoints, and by isolating themselves from outside influences.” During trial preparation, members of a trial team can easily put not wanting to be wrong or different ahead of challenging a group decision. We have written about trial teams becoming dysfunctional under severe stress several times before in articles like: 5 Signs of a Dysfunctional Trial Team (and What to Do About It) When a Good Trial Team Goes Bad: The Psychology of Team Anxiety Groupthink is a little different than the nearly complete group breakdowns described in these articles, however. It's a little more subtle and not quite as nightmarish. Still, groupthink can derail a case -- and it often does. Although groupthink can raise its head at any time, we often see it emerge when a trial team is evaluating an opening PowerPoint deck under development, particularly if there are more than five people doing the evaluating. Members of the team will avoid challenging everything, including the specific slides, the order the story is told in, and what not to say during opening. Instead, they will give the appearance of agreement by staying silent. This is groupthink and it does not help win cases. It does the opposite. Here are nine ideas for solving these problems in a trial team. Get the “buts” out of the room: This is an expression we use at A2L. When you are doing creative work, nothing shuts down the creative mind more than someone who jumps in to say why something won't work. These statements usually start with the word “but.” See, Dealing With That ‘Bad Apple’ on Your Trial Team. Establish rules for your trial team meetings: Here are two we often use: silence is acceptance, and no spectators allowed. Ask your litigation graphics team for variations to stimulate thinking. Looking at one litigation graphic may generate some discussion, but looking at two variations guarantees it. Ask for this from your provider. See, 10 Reasons The Litigation Graphics You DO NOT Use Are Important.

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Here at A2L, we are delighted to introduce John Moustakas, our new Managing Director of Litigation Consulting and General Counsel. John comes to us from the international law firm Goodwin Procter, where he was a partner in the firm’s Securities Litigation and White Collar Defense Practice.  John is a highly successful trial lawyer who has tried more than 45 cases to a jury.  John spent more than six years as a prosecutor in the U.S. Attorney’s Office for the District of Columbia, before returning to Shea & Gardner, where he had begun his legal career. In addition to trying numerous criminal cases for the United States, John has tried a variety of civil matters in a combined 20 years in private practice at Shea & Gardner and its successor, Goodwin Procter.  John laments the fact that, for many reasons, far fewer cases go to trial in the corporate world than even 20 years ago. “My approach to practicing law is pretty old school,” he says.  A generalist at heart, John “always loved the variety of litigation and never wanted to be pigeon-holed.”  He’s tried a wide variety of matters ranging from homicides and public corruption on the criminal side to civil disputes over contracts, torts, real estate, employment, securities, and civil rights, to name a few.  The unique focus of his new position attracted John.  “Above all else, I’ve most enjoyed the storytelling aspect of my work -- figuring out how to engage the jury and make them want us to win.”   Although he will no longer be a client’s advocate in court, he relishes the trade-off.  “Instead of trying my own case every four or five years, if I’m lucky, every matter I’ll be consulting on will be one bound for trial.  If I can leverage my experience to help others try their cases more persuasively, I will be one very happy guy,” he says. John says that one key to a trial lawyer’s success is to follow his or her own natural style and temperament.  “The jury, as a collective, is uncannily able to sniff out BS,” he says. “Pretend to be something or someone you’re not, and they will see right through you.”  Convinced that his authenticity was the greatest contributor to his success as a trial lawyer, John’s mission is to keep A2L’s clients true to their nature.  “So, while the goal is to help our clients strengthen their presentations with an emphasis on creating resonant themes and the engaging visuals that support them,” he says, “we help by pruning, not slashing -- by seasoning, not scrapping the recipe.  The lawyers it is our privilege to work with need nothing more.  While they cover the entire waterfront, sweating every detail, we have the luxury of focusing narrowly and with a bit of detachment.  And that is not only a rewarding role, but one that our clients feel makes a meaningful difference.”    John looks forward to bringing his insights and experiences to bear in this new chapter of his career in a way that makes that kind of difference. He can be reached at moustakas@A2LC.com or 703.548.1799. Related A2L resources about storytelling, litigation consulting, mock trials, and creating trial presentations that persuade: 9 Reasons Litigation Consultant is the Best Job Title in Litigation Who Is, and Who Isn’t, a Litigation Consultant? Free PDF: Why Work with A2L on Your Next Trial 3 Types of Litigation Graphics Consultants Top trial lawyers talk about working with A2L Top trial lawyers explain why storytelling is so critical for persuasion 10 Things Litigation Consultants Do That WOW Litigators Free E-Book: What is the Value of a Litigation Consultant? 21 Reasons a Litigator Is Your Best Litigation Graphics Consultant 3 Types of Litigation Graphics Consultants Free Webinar: Storytelling as a Persuasion Tool Free E-Book: Storytelling for Litigators Your Coach Is Not Better Than You – in the Courtroom or Elsewhere 10 Types of Value Added by Litigation Graphics Consultants Explaining the Value of Litigation Consulting to In-House Counsel 17 Reasons Why Litigation Consultants Are Better at Graphics Than Law Firms $300 Million of Litigation Consulting and Storytelling Validation Top 7 Things I've Observed as a Litigation Consultant

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We at A2L constantly have the pleasure of working with trial teams composed of some of the nation’s best trial attorneys. The teams we work with can be composed of dozens of attorneys, but ordinarily there are three to 12 members. And sometimes, as can be true of any group that is assembled for a particular purpose, there is one member of the group who, without good reason, makes everyone’s life harder. The very presence of this person can have a dulling effect on the trial team’s morale and effectiveness. Any trial team can be seen as an elite unit, like an army platoon, that has a well-defined mission that everyone shares. That common goal of winning the case is usually enough to unite the trial team in a single-minded purpose and to enable everyone to do their best work possible in pursuit of that goal. This type of team unity correlates very well with ultimate success at trial. But when one team member has a difficult personality – for example, proves to be more interested in his or her personal achievements than in the success of the team as a whole – all bets are off. In our article, 10 Criteria that Define Great Trial Teams, we outlined traits necessary for trial team success. A single difficult personality on a trial team can obstruct success in any of the key areas.  

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I've always been a creative type. In fact, it was my creativity 25 years ago that caused me to learn 3-D animation during law school and ultimately go on to launch A2L Consulting. In the 25 years since then, I've worked on thousands of cases advising trial teams and leading a team of people who advise top trial lawyers on conducting voir dire, running mock trials, managing complex trial technology, and my personal favorite, developing litigation graphics to simplify, explain, and persuade in complex cases. Focusing in on this creative side of the business, litigation graphics development, I have seen two types of trial teams interact with creative teams -- those that have the knack and are successful working with creative people and those that are not. The impact of these interactions turns out to be very significant. Cases have been won and lost because of a trial team's ability to interact well with a creative team. Like anything, it is a skill that can (and should) be learned. Over the past several decades, I've received feedback from hundreds of trial teams and I've seen feedback delivered to others by thousands more. Below are fourteen things to know about delivering feedback to the creative team.  When creative people create, they offer a piece of themselves up for criticism. Deliver your feedback with this in mind, and you'll be ahead of your peers. If you're a shouter, find someone else to work with the creative team. Say what you mean. It's incredibly important that you be honest about what you like and what you do not. Holding in your criticism in an effort to be kind is not the goal. The goal is to deliver feedback in a productive way.  Find the good and talk about it first. This one is a classic and is what is taught in art school. Simply, find something positive to say and then talk about what you do not like. Early feedback is the most important. If something feels “off” or wrong for the situation, don’t hesitate to give your feedback speedily. If you find yourself reading this list muttering something about sensitive snowflakes, you're not the best person to be working with creative people. Ask a colleague to be the messenger.

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Any time it is feasible, I prefer to price our work using alternative fee arrangements (AFAs) of some sort. They give our customers, which are generally major law firms, predictability and a sense of control. In addition, they provide predictability and control to the ultimate client that is paying the bills, which is typically a large corporation. For A2L, alternative fee arrangements, such as fixed fees, fee structures with a floor or a ceiling, or bonuses for winning a case, offer enormous benefits as well. We achieve the same financial predictability that our clients seek, and AFAs allow us to create closer relationships with our clients. And for firms like ours, our clients, and their clients (the major corporations), alternative fee arrangements do something much more important than creating financial controls. They return the focus to winning.

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During the past three decades, I've heard many clichés about the legal industry. One of them is that companies hire the lawyer and not the law firm. I think this one is often still true, but, for the first time in my career, I am noticing that this cliché is no longer as applicable as it used to be. This change is happening both at law firms and at litigation consulting firms like ours. It's true there are some special lawyers out there, particularly trial lawyers. Many of them can be recognized by their first names only, like Beth, David, and Brendan. To be sure, these trial lawyers are extraordinary. They are the go-to lawyers for in-house counsel when the stakes are highest – among other things, because they win cases reliably, even when the facts are not on their side.

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7 Habits of Great Trial Teams

by 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: 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. 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.

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