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The Litigation Consulting Report

7 Bad Habits of Law Firm Litigators

Posted by Ken Lopez on Wed, Oct 28, 2015 @ 11:08 AM

attorney bad habits lawyer trial courtroomby Ken Lopez
A2L Consulting

In our role as trial consultants, we frequently work with some of the top law firm litigators in the nation, as well as with in-house counsel for some of the nation’s major companies. Ideally, we form a cohesive team that works seamlessly to provide outstanding trial representation and to win cases.

Occasionally, we find that law firm litigators are engaging in bad habits that can increase inefficiency, cost the client money, and decrease the chances of winning at trial. Here are seven of them.

1. Lawyers designing PowerPoint slides. Anyone who went to law school can of course use PowerPoint. Generating PowerPoint slides is not difficult, and lawyers are smart. Many lawyers can even make PowerPoint slides that look nice. But:

a. It's not about pretty slides, it's about effective slides, and the rules for how to create those take years to learn. See Litigation Graphics: It's Not a Beauty Contest

b. A lawyer doing slides costs the same or more per hour than a litigation graphics expert doing slides. Classically, you could cut your own hair, but why would you? See How Valuable is Your Time vs. Litigation Support's Time?

c. A lawyer creating slides does not know the tricks of the trade. See Trial Graphics Dilemma: Why Can't I Make My Own Slides? (Says Lawyer)

d. A lawyer creating slides will likely tell a chronological story instead of an effective story. See Don't Be Just Another Timeline Trial Lawyer

e. A law firm might claim to have in-house litigation graphics expertise (See 13 Reasons Law Firm Litigation Graphics Departments Have Bad Luck). But ask yourself: How many trials does that law firm do per year? For even the largest firms, that answer may be a couple dozen. How many cases does that lone artist work on? A small percentage of what is already a small number? Contrast that with a litigation consulting firm with graphics expertise that might do 50 or 100 trials per year concentrated among a handful of key staff. See With So Few Trials, Where Do You Find Trial Experience Now?

2. Paralegals running trial technology. This is pretty common, and I'm not as adamant about this as I am about content creation. Still, when something goes wrong, you want to have one or more people on the team who have been to hundreds of trials, not a few. You might save some money by keeping the service in-house, but the savings are small if any, and the trade-off is a lot of risk. Free Download: How To Find and Use Trial Technicians and Trial Technology 

3. Conducting in-house mock trials. I call this getting high on your own supply. You should pick mock jurors from a broad base of people that mirrors your likely jury. See 11 Problems with Mock Trials and How to Avoid Them

4. Lawyers running PowerPoint at trial. It often works, but it often does not work. Why would you allow your litigators to create risk with almost no benefit? See Making Good Use of Trial Director & Demonstratives in an Arbitration and 12 Ways to Avoid a Trial Technology Superbowl-style Courtroom Blackout

5. Outside litigators who are afraid to ask for help. Litigation is one of the few competitive areas in which people are afraid to rely on coaches, best practices, and experts, and that makes no sense. Even Michael Jordan had a coach. See Accepting Litigation Consulting is the New Hurdle for Litigators

6. Outside trial counsel who is afraid to ask for a needed budget item. They often see a pie of a set size, and asking for budget for a mock trial or other litigation consulting support, might take pie away. You should instead see a pie whose size can be changed when it makes sense. See In-House Counsel Should Make Outside Litigation Counsel Feel Safe

7. Outside litigators who conduct frighteningly last-minute preparation for trial. I really think the days of the cowboy litigator who rides in at the 11th hour and charismatically bends a jury to his will are largely over. The opposition is much more sophisticated now, and so are juries. See The 13 Biggest Reasons to Avoid Last-Minute Trial Preparation

Have you ever seen any of these habits play out?

Other articles and resources by A2L Consulting focusing on trial preparation, the relationship between in-house counsel and outside litigators and on winning cases generally include:

in-house counsel litigation toolkit e-book free download



Tags: Trial Graphics, Trial Technicians, Mock Trial, Litigation Consulting, Trial Technology, Litigation Support, PowerPoint, In-House Counsel

Top 7 Things I've Observed as a Litigation Consultant

Posted by Ryan Flax on Wed, Oct 7, 2015 @ 12:42 PM

litigation consultant best in the industry graphics storytellingby Ryan H. Flax, Esq.
Managing Director, Litigation Consulting & General Counsel
A2L Consulting

I’ve passed another anniversary at A2L Consulting and in my time as a litigation consultant I’ve been both surprised and reassured about the state of the litigation business and its players (I also wrote about my surprises upon beginning my career as a litigation consultant). I’ve seen both the very best and quite bad litigators in action and have consulted for both. Although some litigators don’t live up to my high standards, I’m impressed by many litigators as both professionals and people. Here are seven of my observations over these years that I think might help you in your practice.

  1. Many Lawyers Confuse Chronology With Storytelling

It is almost universally accepted that storytelling is important to engaging an audience (including a jury) and that framing a client’s case as a compelling story is key to doing your best at trial, particularly in opening statements. But more often than not, when I ask a litigation team what their client's story is, rather than explain “why we’re really here” as they would to a jury and illustrate some conflict and emotionally valuable moral that is critical to juror engagement, they rattle off some chronological series of events that led to a legal injury to their client or some misconstrued relationship by the opposing party. These are not stories and presenting a case framed this way, while possibly interesting to a legal scholar, is not compelling to a juror.

I’m surprised that so many smart litigators fall into the chronology trap and forsake emotional connection to engage jurors. I don’t advise pandering to a jury or excessive emoting by a litigator, but for a jury to care about you and your client and generate the stamina jurors need for a trial, litigators must tap into their emotional brains. This is not done by an information dump, a calendar, or using a lot of words.

A story answers the question posed above – why are we here today, in this courtroom? A story also has all the stuff you learned in grade school: a beginning, middle, climax, and end, characters, setting, theme, and moral.

  1. Some Lawyers Focus Too Much on Too Small Things

It’s easy for litigators (even more so for the associates doing the day-to-day stuff) to over-focus on every detail. The prospect of overlooking a potentially key piece of evidence or being surprised by an unknown fact exposed by opposing counsel is frightening for attorneys (it was for me), so we often wind up thinking way too much about every little thing in a case. This is called being “in the weeds,” and when you’re there it’s exceedingly difficult to escape without help. It happens with the selection of evidence, with witness prep, and even with the development of graphics, where sometimes counsel wants to very carefully think over every aspect, e.g., choosing what font style and color palette and slide aspect ratio will best work for their case.

On each of these things, I urge counsel to take a step back and delegate where possible so they can focus on the BIG PICTURE. The best first-chair litigators do this naturally, and the rest of us need to do it deliberately. Attorney time and brainpower should be spent on figuring out what it will take to win. Let litigation graphics consultants decide what font works best for your opening statement presentation. It will be a relief when you do.

  1. Many Litigators Don’t Know What Tools Are Available

Even though the litigation consulting industry has been around for decades, I still find a lot of lawyers really don’t know what we do (in total) and what persuasive tools are at their immediate disposal. Often, my first conversations with new clients include questions like, “What all do you do?” The concepts of litigation graphics, presentation and persuasion consulting, trial technology, and jury consulting are not concrete ideas in many litigators’ minds, and I often have to educate clients on what we have in our (their) toolbox.

Most often, such attorneys think of litigation graphics as discrete images created for specific points they want to make during trial. They don’t understand that, while that’s a part of our work, such graphics won’t alone provide the immersive visual experience necessary (particularly during opening statements) to persuade jurors.

Also, many litigators seriously consider doing their own graphics and/or in-court technology presentation. They have Microsoft PowerPoint and Word and can cut and paste and they’ve heard that iPad apps make evidence presentation easy. The former is never a good idea and, while the later might be true for some situations, e.g., a hearing or very small trial, it’s not going to work in any bigger trial that could have hundreds or thousands of exhibits. There is a lot to know about crafting persuasive trial visuals and there are professionals who do nothing but build trial databases, edit deposition videos, and run trial presentation software to create a seamless trial for you and your jurors. Litigators should understand this and use professionals (and let your paralegals focus on what they should be doing as well).

  1. Litigators Still Wait Too Long to Bring in a Litigation Consultant

Even though they know better, most of the time litigation teams wait until just weeks before trial to engage a litigation consultant / jury consultant / graphics team / trial tech. Even though they know waiting makes it a more difficult budget-sell to their client, leads to an uncomfortable rush to develop graphics, may make mock jury exercises impossible, and forecloses the possibility of building discovery around what they learn from a consultant, they wait. I urge early planning for trial (at the complaint/answer stage), which is the right time to develop that important two-track litigation strategy, and begin working on your case story and graphics as early as possible. Although we can certainly help you late in the game, we can do a lot more before halftime.

  1. A Lot of Litigation Graphics are Subpar

When I get the chance, I always go to my client’s opening statements and then to as much of the rest of their trials as possible. So I get to see the litigation graphics developed by/for opposing counsel. I’m consistently underwhelmed.  It's impossible to say whether these poor visuals directly led to the oppositions' losses at trial, but they didn't help.

More often than not I see a lot of text-heavy graphics – a severe barrier to juror engagement and communication. I see a severe lack of style, clarity, and intentional design - this screams lack of preparation and deliberateness in presentation. There are key visual presentation concepts that, if understood and followed, lead to persuasive graphics, e.g., font type, color choice, simplicity, complexity, branding, style, and others. There is no shortage of information about these concepts out there, but it seems most folks are not paying attention. We are.

  1. Lawyers Don’t Spend Money Where It Can Help Them

Litigation consulting, jury research, trial graphics, and trial technology cost your client money – very true. But the ROI on these services far outweighs their expense in bigger cases. The cost of a typical larger litigation, such as an employment case, hovers just around $1M. A typical bigger patent case costs about twice that amount. However, the services and tools that could be used to hone your persuasive game at any stage of such litigations turn out to be a very, very small fraction of these costs.

Take a big-time patent and breach of contract case where our client won over $300 million in damages. The costs for A2L’s services were well below $200,000, about 5% or less of the litigation budget and about 0.005% or less of the damages award. I know that our services played an important role in the victory, even though the trial team was beyond outstanding.

But, we still see litigation counsel struggling to decide whether $30,000 or $50,000 is the right spend for a mock jury focus group (a $20K difference that could be the difference between scientific data results and seat of the pants analysis) or whether to spend $12,000 to have a professional trial tech hot seat operator at trial (they should), or whether they can make their own graphics for opening statements in house (they cannot). In my view, saving a penny to lose a dollar makes no sense.

  1. Practice is as Important as Everyone Thinks

Finally, it’s been shown time and time again that practicing oral argument makes sense. The more you practice, the better you’ll do. It takes time, but again, the ROI on this time investment is tremendous. When litigators do several full speed run-throughs for opening statements or oral arguments, I see them do a fantastic job at the real thing. They don’t need notes, they know their subject matter, they are and appear more comfortable, they seem more reasonable, and they use their graphics perfectly in a compelling way.  Not practicing so that you can feel and seem more spontaneous at opening is a recipe for a poor performance.

Practice. And start early.

Other articles and resources about storytelling, litigation consulting and trial preparation from A2L Consulting:

a2l consulting top 75 articles of all time

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

6 Ways to Use a Mock Trial to Develop Your Opening Statement

Posted by Laurie Kuslansky on Tue, Sep 29, 2015 @ 10:45 AM

mock  trial jury consulting opening statementBy Laurie R. Kuslansky, Ph.D.
Managing Director, Jury & Trial Consulting
A2L Consulting 

It’s often said that the door to winning your case closes in your opening statement. Unless you are able to grab your audience, the jury, then and there, you may never be able to do so.

So how do you maximize your chances of grabbing the attention of the jury at the time that it matters most? One way is through the use of mock trials. How?

Mock trials can help you avoid losing jurors from the start, help you set the stage properly, and help mock jurors begin to use their selective attention in your favor in the following ways:

  1. Confusion. Mock trials readily reveal helpful and harmful sources of confusion.  Usually, but not always, simplicity is your friend. Either way, you will need to know how to make your points clearly during your opening. You can also determine whether your points needs graphics support from the start, how best to word them, and the context needed to place them properly in opening.
  1. Resistance. In addition to confusion as a barrier to accepting certain points in your case, jurors may bring other sources of resistance, such as personal experience, common sense, emotions, negative beliefs and the like. Unless you know what these are, you can’t get past them, no matter how hard you try. However, you can clear the way for jurors to be willing to listen to you by addressing these issues early in your opening, as by saying what the case is not about, or showing them that you are aware of their potential negativity and how you plan to overcome it. Otherwise, they will shut you out and shut down, right from the start.
  1. Cognitive Overload. You may have a lot to say, but jurors are limited in what they can hear, remember and use.  A mock trial will help identify where those two worlds optimally meet – the right amount of information needed to prove your case at the level the jury needs to find in your favor. Opening helps jurors map out what to expect and can show them that you will do as much as needed to provide them with proof, but you won’t scare them off by threatening them with too much information.
  1. Themes. One of the most important things a mock trial can reveal is the winning story, in which the key stepping stones are the case themes. These in turn should be the main takeaways, starting from the opening and running through the summation like paragraph headings to a well-constructed essay with no fluff.
  1. Witnesses. Often the “star” witness of the case for jurors is different from the star witness for counsel.  Mock trials reveal the nature of the most important testimony and its source from the decision-makers’ perspective and thus help you decide whom to feature in your case or which opposing witness to start discounting in opening.
  1. Outcomes. Mock trials teach us what result jurors seek, what it means to them, and what they hope to accomplish with their verdict.  As a result, counsel can incorporate the mock jurors’ motivations into the opening statement to align with how actual jurors may feel and start winning them over from the start. Often, why you care about the case result is different from why they may or may not care about it. Unless you know what drives them and tap into it, you lose critical momentum from the start.

In summary, mock trials are an indispensable step in the process of developing a winning opening statement.

Other free articles and free resources about mock trials, opening statements and storytelling for litigation from A2L Consulting:

opening statements toolkit ebook download a2l

Tags: Jury Consulting, Mock Trial, Psychology, Storytelling, Expert Witness, Opening, Closing Argument, Witness Preparation

5 Ways That a Mock Trial Informs and Shapes Voir Dire Questions

Posted by Laurie Kuslansky on Mon, Sep 28, 2015 @ 09:31 AM

voir dire questionsBy Laurie R. Kuslansky, Ph.D.
Managing Director, Jury & Trial Consulting
A2L Consulting 

As we have discussed a few times, mock trials are one of the best tools that trial lawyers have at their disposal. Mock trials can have innumerable benefits in trial preparation. One benefit is that mock trials can help you to design and shape the questions you ask during voir dire in the real trial. Here are five ways in which mock trials can help you in this way.

  1. If you have a large enough sample size (minimum of 36; preferably more), you can do a statistical analysis of your supporters and your detractors to identify statistically significant differences between those two camps, if any exist. For example, an analysis of this type may show that people with related experience in your client’s industry are going to be bad jurors for your client. This can easily help you frame a voir dire question. For example, in a case involving a well-known sports entity, a mock trial showed that fans were likely to be less favorable jurors than strangers because fans had higher expectations for the sports entity than strangers.
  1. Mock trials show what resonates with mock jurors. Deliberations show which mock jurors identify with which party, evidence, witnesses and themes. These gems of knowledge should guide you to find out which types of personal experience are adverse to you and thus can form a basis for voir dire questions.
  1. Mock trials reveal trends of what turns off mock jurors. For instance, if the mock trial shows that jurors who are most like the plaintiff in taking risks are actually worst for the plaintiff because they want to distance themselves from the resulting injury (due to “defensive attribution”), questions can be asked along those lines during voir dire. For example, a young pilot was buzzing tree tops by flying too low, resulting in a fatal crash.  Similarly, two young men rode “double” on an ATV – against warnings – and were seriously hurt when it stalled and flipped over on them.  The best defense jurors in both instances turned out to be daredevils, so voir dire sought to reveal pro-plaintiffs’ jurors who were especially risk-averse, even though this was counter-intuitive. As one defense juror said, It's not the [manufacturer's] fault. We know we're not supposed to do it, but we do it any way!"
  1. ­­The goal is to try and win by shaping your best story for your worst jury. A mock trial lets you see and understand your worst issues and weaknesses.  During mock deliberations, you also learn the reasons – if any -- that cause mock jurors to stand by each side, abandon you, or move from being against you to finding for you. Voir dire can shape questions that identify people who may be unwilling to even consider facts that could cause them to change their views in your favor. 
  1. Mock trials not only show which outcomes are most appealing to mock jurors, but also the rationale that leads to them and the expected consequences from those verdicts, whether real or imagined. Knowing what these are in advance offers counsel an opportunity to disabuse prospective and actual jurors during voir dire and trial.  For example, in a case involving a dispute over an environmental cleanup, jurors may mistakenly believe that -- unless they find for the plaintiff(s) -- the cleanup won’t occur, or if they find for an insurer, premiums for everyone will be increased.

These are a few of the reasons that mock trials are crucial in setting the stage for voir dire and why it makes good sense to use a sample size large enough to enjoy this benefit when conducting mock trials.

Other articles and downloadable resources from A2L Consulting related to voir dire, voir dire questions, jury selection and mock trials:

A2L Consulting Voir Dire Consultants Handbook


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

Repelling the Reptile Trial Strategy as Defense Counsel - Part 5 - 12 Ways to Kill the Reptile

Posted by Ken Lopez on Tue, Aug 4, 2015 @ 01:40 PM


reptile-trial-strategy-defense-win-beat-overcome-jury-consultantsby Ken Lopez
A2L Consulting

This is the fifth and final installment in a series of articles focused on how defense counsel can overcome the increasingly popular Reptile trial strategy. In parts one through four, I offered an introduction to the strategy, I shared ten ways to recognize when the strategy is being used against you, I explained why the strategy does not actually work in the way that its authors describe, and I explained that despite the bad science, the Reptile trial strategy still works.

In this post, I summarize how to overcome the strategy in both the pretrial and trial phases of a case. I rely heavily on the work of Jill Bechtold of Marks Gray and Steve Quattlebaum of Quattlebaum, Grooms & Tull. They were my co-presenters at a recent defense attorney-focused conference devoted to repelling the Reptile strategy.

One theme that clearly emerges from the 12 points below is that being a good defense lawyer is more important than ever. No longer is it enough simply to outlast your opponent. No longer is it enough to come up with a great theme and narrative just before trial. Because the Reptile strategy often begins with the complaint, a defense against it must start shortly thereafter -- or you will pay the price later.

  1. Spot the Reptile: It can appear as late as closing arguments, but more often than not, plaintiffs counsel will introduce the key themes as early as the complaint. See, 10 Ways to Spot the Reptile in Action.

  2. Read the Book: I hate to say this, but you probably should read it. It is Reptile: The 2009 Manual of the Plaintiff’s Revolution by David Ball and Don Keenan.

  3. Spot your Opponent on the Reptile Hall of Famehttp://www.reptilekeenanball.com/reptile-allstars/ Plaintiffs counsel with a record of suggest using the Reptile strategy are listed here. Is one your opponent?

  4. Storytelling Will Prevail: As you go through your case intake process, begin looking for the elements and start developing your own narrative. If you build the right narrative, you stand a higher chance of winning your case at trial. See, The Litigator's Guide to Storytelling for Persuasion 

  5. Understand Your Opponent's Narrative: Plaintiffs lawyers are often successful because they focus on narrative from the very beginning. You need to uncover that narrative and be ready to replace it with your own.

  6. Articulate Your Narrative from Day One. The sooner you build your own narrative, the better off you will be. Developing a narrative long before trial allows for testing of that narrative and it allows for it to be used throughout the discovery process. Keeping it a secret until trial is not a great tactic and is often an excuse for procrastination. See 25 Things In-House Counsel Should Insist Outside Litigation Counsel Do

  7. Prepare Your Witnesses: They will be badgered. Teach them how not to give in and to think of each answer they give as a potential video clip. Give them standard phrases that will play well – such as: I don't understand, it depends, or I don't have enough information. Use witness preparation techniques and consider outsourcing witness preparation to firms that understand the Reptile theory. See Witness Preparation: Hit or Myth?

  8. Use Motions in Limine to keep out evidence that is irrelevant and inflammatory. Also, use pre-trial motions to introduce and undermine the Reptile strategy.

  9. Object at Depositions: Use objections based on form, relevance, lack of foundation, mischaracterization of law, or seeking legal conclusions. Don't rely on standing objections as this will not be effective in fending off damaging testimony, nor do they help minimize the impact of video testimony.

  10. Help your Client Understand the Reptile Trial Strategy: Your client should understand the nature of the actual duties that are owed to the plaintiff and should be able to distinguish between those and the made-up community standards that are characteristic of the Reptile trial strategy. See The Top 14 Testimony Tips for Litigators and Expert Witnesses

  11. Test Plaintiffs’ Case in a Mock Trial, Using Reptile Techniques. See 12 Astute Tips for Meaningful Mock Trials

  12. Watch for Golden Rule Violations at Trial. The Reptile strategy gets close to crossing this line, and a less sophisticated plaintiffs lawyer may very well cross it --potentially resulting in a new trial.

Using these and other techniques, I am confident that a well-prepared defense attorney will be able to defeat the Reptile theory.

Other articles and resources related to Reptile trial strategy, jury persuasion and jury consulting from A2L Consulting:

pretrial trial graphics motions briefs hearings




Tags: Jury Consulting, Mock Trial, Trial Consulting, Jury Consultants, Storytelling, Expert Witness, Depositions, Witness Preparation, Reptile Trial Strategy

[New Webinar] Winning Cases BEFORE Trial Using Persuasive Graphics

Posted by Ken Lopez on Tue, Jul 7, 2015 @ 04:41 PM


A2L-pre-trial-graphics-tallby Ken Lopez
A2L Consulting

We at A2L are sponsoring later this month a new and exciting webinar entitled “Winning Your Case BEFORE Trial Using Persuasive Litigation Graphics.” Whether you are in-house counsel, outside counsel, or a member of a litigation support team, this 60-minute webinar will prove invaluable and will reveal secrets of persuasion that will help you win cases before trial.

The key insight here is that graphics aren’t only for use at trial. They can also be used very effectively in motions and briefs presented to judges, even if jurors will never see them. If you are planning to use graphics to make your argument or tell your story at trial, why not use them at an earlier stage to make your argument convincingly in your brief or motion?

In addition, a lawyer who introduces graphics early in a proceeding can lay the groundwork for later use at trial or in another aspect of the case. This can also give the lawyer a sense of how receptive the judge is to the use of trial graphics in the case.

In fact, you’d be amazed at the different ways in which litigation graphics can be used. We have seen them deployed effectively in all of the following:

  •       Motions and briefs before judges
  •       Pretrial depositions
  •       Mock trials
  •       Alternative dispute resolution hearings
  •       Class certification hearings
  •       Lobbying presentations
  •       E-discovery disputes
  •       Settlement talks
  •       Pre-indictment meetings with prosecutors

Even if you can't make it to the live webinar later this month – it will take place July 29 at 1:30pm EST -- you'll receive access to the recorded version just for registering.  The presenter, A2L's Managing Director of Litigation Consulting, Ryan H. Flax, Esq., regularly works with top trial teams to help develop, refine and test storylines and persuasive graphics for briefs, hearings, depositions, ADR, tutorials, and pre-indictment presentations.

The topics of the webinar will include:

  • Why and how to frame your case as a story from the very beginning
  • Putting effective graphics in unexpected places: depositions, ADR and hearings
  • Techniques for persuading skeptical audiences with graphics
  • Using litigation graphics persuasively in briefs and motions

We hope to see you at the webinar later this month. Click here to reserve your free seat or be notified when the recorded version is available.

pretrial trial graphics motions briefs hearings

Tags: Markman Hearings, Trial Graphics, Litigation Graphics, Mock Trial, Arbitration/Mediation, Persuasive Graphics, Settlement, Briefs

How to Handle a Boring Case

Posted by Laurie Kuslansky on Fri, May 29, 2015 @ 11:32 AM


boring-case-litigation-trial-juryby Laurie R. Kuslansky, Ph.D.
Managing Director, Jury Consulting
A2L Consulting

I once asked an actuary why he chose that profession, and he replied, “Because I didn’t have enough personality to become an accountant.” The truth is, though, that nearly everything is interesting in some way. It’s the rare case, for example, that’s really dry as dust.

But many cases have aspects that are, at first glance, boring. As an advocate, what do you do when faced with one of them? Here are some suggestions.

1.  Use the boredom to your advantage. There may be facts that are not advantageous to your side. Don’t emphasize them, and they may not draw attention.

2.  For points that are advantageous, create excitement. Use verbal “drum rolls,” as in “Now THIS is really important.” Or, “If you remember just ONE thing about this case, it should be . . . ”

3.  Create visual distractions. Your graphics don’t have to be black and white blow-ups of Excel spreadsheets. There are many ways to put forth the same information, but making them interesting takes a professional and an artist/designer, not a paralegal or an associate with no training in information graphics.

Another approach is to create a memorable experience by evoking discomfort. For example, you could simply present a list of airline bankruptcies and say that no one wants to see one more, or you could develop an uncomfortably long scrolling list that presents the same information in a thought-provoking way.



4.  Work with the jury.  Acknowledge that there is information in the case that may be less than interesting, but add that you will do your best to keep it moving. Then keep your word. 

5.  If the stakes warrant it, pre-test the case through mock-jury research, searching for ways to streamline the case so that the trial is neither longer nor more tedious than it needs to be. Learn the themes that emerge, the ways that lay people express the issues in their own terms, what they find confusing, what matters to them, and what aspects of the case, if any, they don’t view as boring. Perhaps the most exciting point is damaging to your case. It’s better to know in advance.

6.  Bring out the significance of your expert instead of assuming that the jury knows it already. Here’s where name-dropping can be helpful.  “Our expert has a doctorate from Harvard and trained at the London School of Economics.” Or, “Our expert worked on these issues for the largest accounting firm in America.” Make sure that the expert exudes confidence, but not arrogance, looks the part, and speaks in language lay people understand. Bring out the expert’s accomplishments graphically and explain them in a way that the jury will understand.

7.  Use graphics to keep things moving. If you show jurors (and judges) something good to look at, it keeps them interested, reinforces memory, makes you appear more competent and organized, and cuts down on boredom.

8.  Use mixed media. Don’t present everything in a PowerPoint. Mix it up, switching at a comfortable pace between slides on screen to enlarged boards, from static images to animations, etc.

9.  If appropriate, use humor. Instead of being the egghead with the nerdy information that no one else can relate to or appreciate, bond with jurors by seeing it from their perspective.  If you can’t do that, add someone to the trial team who can.

10.  Now THIS is really important and if you remember just ONE thing, it is that nothing has to be boring.  It’s up to you. The moment you acknowledge that it is, and find a way to link it to other people’s experience, especially in ways that are potentially universal, teach people in a way that is painless and aesthetically pleasing, and find a way to tell a story about it, ta da! It isn’t boring any more.

Other articles about using litigation graphics, use of humor, being likable and more from A2L Consulting:

opening statements toolkit ebook download a2l

Tags: Trial Graphics, Litigation Graphics, Mock Trial, Juries, Jury Consultants, PowerPoint

In-House Counsel's Role In Keeping Litigator Ego In Check

Posted by Ken Lopez on Fri, May 22, 2015 @ 02:57 PM


litigator-ego-id-inouse-counsel-winning-managementby Ken Lopez
A2L Consulting

I've seen litigator ego contribute to the winning of cases and the losing of cases. Unfortunately, however, I've seen more cases lost because of it than won because of it.

What do I mean by the ego of a litigator? If you've worked around litigators (or litigation consultants for that matter), you already know what I mean. For anyone else, I'm referring to all those first-chair litigators in trial-related situations who put themselves ahead of the client's best interests.

The best definition I have found of “ego” is "the idea or opinion that you have of yourself, esp. the level of your ability and intelligence, and your importance as a person." 

In litigation, we see how ego can play both good and bad roles. Sometimes the presence of ego leads to good outcomes, as it is at least in part ego that allows a litigator to ignore the advice of a client who may be too close to their problem. More often, however, we see ego show up in ways that are counterproductive for the client. For example, in situations where:

  • First-chair waits until the last minute to prepare the opening
  • First-chair prepares the opening alone
  • First-chair rules the trial team with an iron fist
  • First-chair berates fellow members of the trial team
  • First-chair refuses to practice opening and closing statements
  • First-chair won't do a mock exercise for fear of looking bad
  • First-chair does things the way they have been doing them for 30 years

What's wrong with all of these situations? Well, one way or another, they are all bad for the client. Worse, 90 percent of the time, the client has no idea that this is happening. So, what is a client to do?

For the past year, I've been encouraging Fortune 500 in-house clients to get more involved in trials than they have been over the past 30 years. While there are exceptions, most big companies simply hire their litigator buddies or those who have generated good results in the past and then just step out of the way.

I think that was the right approach for a long time, and most of the time, it's still a useful mindset. However, I prefer to see clients treat their outside litigators as a good manager would. That is, they should delegate effectively AND they should hold the client accountable.

I wrote about 25 Things In-House Counsel Should Insist Outside Litigators Do a number of months ago, and it has been a very popular article. The follow-up In-House Counsel Litigation Toolkit has been downloaded over 1,000 times since its December release. These and other resources speak to the concept of delegating effectively. That is, it is important to explain to outside counsel which decisions are, in corporate speak, root, branch and leaf level delegation decisions. It used to be the case that everything except settlement was delegated to outside counsel, but those days are long gone. The same is true for holding people accountable. You must follow up to make sure it gets done the way you want it done. 

There are several things I think in-house counsel must insist on to make sure that ego does not interfere with the outcome of the case.

  • Practice - either in the form of a mock trial or just an open practice session where in-house counsel participates.
  • Storytelling - in-house counsel must hear a compelling narrative from outside counsel as soon as possible, at least many months before trial.
  • The Company’s Story – in-house counsel should make sure the company’s story is being articulated in such a way that it does not cause harm in another case, in the press or with investors. 
  • Consultation – even the most brilliant trial lawyer should consult with his or her client about key strategic decisions in the trial.

It is true that these ideas don’t represent the way things were done 30 years ago. But juries and trials and companies are not the same as they were 30 years ago.

Other articles related to in-house counsel, trial teams and litigation management from A2L Consulting include:

in-house counsel litigation toolkit e-book free download

Tags: Jury Consulting, Mock Trial, Litigation Consulting, Jury Consultants, Psychology, Storytelling, Practice, Opening, In-House Counsel

5 Ways to Maximize Persuasion During Opening Statements - Part 2

Posted by Ryan Flax on Tue, Apr 14, 2015 @ 11:28 AM


law-facts-storytellingby Ryan H. Flax, Esq.
A2L Consulting

In our most recent post, we discussed how important it is to use an opening statement to make jurors like you as a person and thus embrace your client’s case. Another key theme of opening statements is storytelling. Everyone is always advising lawyers to use storytelling to be more persuasive. So, why isn’t it happening more?

Maybe no one is reading these publications. Or perhaps when preparing for trial, we’re mired in details and chronology.

In law school, we’re taught how to deal with this Venn diagram involving the intersection of the law and the facts.

Never are we taught that the real intersection we care about involves human beings, how they think, how they learn, and how their influenced.

storytelling for judge jury courtroom best method for trial persuasion and emotion

Studies and countless mock jury exercises show us that deliberating jurors discuss the case as a story – a complete story with a beginning, middle and end and a whole set of characters. If this is so, whose story do we want the jury using: ours, opposing counsel’s, or some completely novel concoction of their own making?

Don’t be a slave to chronology. The natural tendency is to tell it exactly as it happened in chronological order. The problem is that this isn’t interesting, and, as we know, the theory of primacy means that the important stuff must be said first even if it didn’t happen first.

Your story must have structure. Give your story a logical beginning (where did your client start out?), middle (where did the relationship between your client and the opposing party begin?), climax (why are we really here?), and ending (“so here we are in the courtroom”), but don’t just place the events in the order in which they occurred. Which ones matter? Which ones convey the emotion and theme of your case? Sort out these questions to distill your case into a terse and interesting story.

Have a theme, tell a story. Give your jurors a reason to listen to you. Keep them interested.

Why use storytelling?  Let’s briefly go through the science.

FMRI scanning studies at Princeton University have shown that good storytelling causes the brains of the listeners and the storytellers to sync up in terms of the parts that are most active and when.1 So the saying “we’re on the same wavelength” can be literally true. In such cases, the listener’s brains act more like participants in the story than observers of the action – they become psychologically and emotionally invested, which is what we want.

When telling a story, it is essential to use sensory language. Paint a picture of the scene and the characters.2 Simply using words and argument without sensory language is interpreted by jurors as noise and is not interesting. Sensory language activates the whole brain and does so in the areas related to the senses (sight, taste, movement, etc.).3

Stories also do for jurors what they need to be good jurors. Stories interrupt daydreaming, organize information, and make the case more interesting.

When organizing your story, remember these five rules of thumb: The simpler the story, the better. The simpler the language you use, the better. Using metaphors and analogies is essential. You must distill your facts to make the story relatable. You must use sensory language and word pictures.

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Star Wars, The Godfather, Harry Potter are all movies with strong stories and strong themes. Can you represent either side of the controversies in these “cases” and craft an opening line for your opening statement story for each? Here's an example of how you might approach each. Can you tell which side is which?

Star Wars

Good men must meet evil with resistance. 

Against overwhelming odds and a seemingly insurmountable force, our band of rebels has bravely fought for freedom for all the citizens of the galaxy.

We have here a group of terrorists. 

Terrorists that want to see chaos reign across the galaxy and that will stop at nothing, not even the murder of hundreds of thousands of our brave military, to see the fall of our government.

The Godfather

Murder. Robbery. Extortion.

The Corleone crime syndicate has cost the people of this State billions of dollars and has cost countless lives. This is the story of these crimes.

This is the story of a man forced into dire circumstances. He has fought to keep his family together, to protect them against powerful enemies, to protect their lives.

Harry Potter

Orphaned and then mistreated for 11 years, Mr. Potter has risen above his upbringing to fight for the lives and the freedom of his friends and even those who call themselves his enemies.

His offer of friendship rejected, Mr. Malfoy was made to look the fool time and time again by Mr. Potter. In the end, Mr. Potter intentionally destroyed Mr. Malfoy’s entire way of life.

Don’t be a lawyer who chokes the humanity out of a story by reducing it to its legal essentials.4 Don’t turn a story about broken promises into a breach of contract lawsuit. Don’t turn a story about the tragic death of a loving wife into a survivor seeking damages for wrongful death. Don’t turn the defendant’s laying waste to acres of pristine woodlands into an environmental contamination and remediation case. Jurors live in the real world, so relate your case to that world.

Part 1 of this series may be found here.

Other articles and resources related to opening statements, storytelling and persuasion from A2L Consulting:

A2L Consulting's Storytelling for Litigators 3rd Ed E-book

[1] Stephens et al., Speaker-Listener Neural Coupling Underlies Successful Communication, PNAS vol. 107, No. 32 14425-30 (August 10, 2010). 

[2] Gerald R. Powell, Opening Statements: The Art of Storytelling, 31 Stetson L.Rev. 89, at 96-97 (2001).

[3] See, e.g., Gonzalez et al., Reading Cinnamon Activates Olfactory Brain Regions, NeuroImage 32 (2006) 906-12.

[4] Gerald R. Powell, Opening Statements: The Art of Storytelling, 31 Stetson L.Rev. 89, at 92 (2001).

Tags: Jury Consulting, Mock Trial, Litigation Consulting, Psychology, Storytelling, Opening, Timelines, Persuasion

The CEO in Litigation: Problems, Solutions and Witness Preparation

Posted by Laurie Kuslansky on Tue, Mar 24, 2015 @ 04:41 PM


ceo-deposition-tips-testimony-courtby Laurie R. Kuslansky, Ph.D.
Managing Director, Jury Research & Consulting
A2L Consulting

Beware: When a CEO takes the stand, he or she could prove to be an unexpected liability. Dr. Laurie R. Kuslansky, Trial Consultant, explains how to avoid this unfortunate — yet foreseeable situation.

The very qualities that make the CEO successful in business—the ability to take charge, to think in terms of the “big picture,” to avoid minutiae, and perhaps the possession of ample self-importance and confidence—may collectively manifest as a poor witness in the courtroom, which is not filled with "yes-men." These behaviors can handicap counsel and may prevent judges and juries from perceiving the executive favorably. Trial team members may overlook a CEO’s faults due to familiarity, resignation, because they wish to maintain a comfortable relationship, or because other facets of the case distract them. However, it is risky to ignore the negative impact the CEO’s behavior may have on an uninitiated audience (i.e., a judge and jurors) that has no incentive to tolerate it.

Pitfalls of the CEO as Client

The CEO is naturally hesitant to relinquish control. When faced with a threat, this leader seeks control. An excessively controlling executive is certainly not the person who should run the legal show, but often tries to do so. The trial team may not feel trusted and may be forced to “work around” the CEO to get its job done. It is essential that one member of the trial team—ideally, the best qualified—be designated to direct the effort.

When a CEO defers authority, it may be to someone who lacks the skills necessary to succeed in trial (e.g., a non-litigator who performs legal research, writes briefs, or who focuses on motions or post-trial appeals or to inside counsel who is paid to agree with "the boss"). In this situation, friction will undoubtedly arise between the non-litigator’s provision of detailed information and the litigator’s streamlined plan or between the politically driven in-house counsel and strategically thinking trial counsel. The CEO’s choice of one plan over the other may be a show of control, but may work against the strength of the team—and ultimately against the CEO.

Pitfalls of the CEO as Witness

The CEO is among the most visible of corporate witnesses. Jurors view the chief executive as uniquely qualified to answer for his or her company, both as the endorser/enforcer of corporate policy and as the parental role model for the corporate culture. Consequently, this leader is expected to be knowledgeable, powerful, and accountable. However, jurors often view the CEO cynically (i.e., as out of touch with the average person, as poised to advance the company’s agenda, and as being motivated by greed and a desire to protect him or herself and assets). We've heard CEOs make comments that set them apart from the jury, such as "It wasn't a lot of money . . . only maybe two or three million dollars."

In contrast, the juror typically has high regard for the judge and expects trial participants to be polite and deferential. The executive who seeks control—or who seems too casual—offends the jurors’ sense of who should be in charge and how one must conduct oneself in court. If the CEO resists direction from the Court, he or she is seen as difficult, evasive, or unlikable (and thus not credible). Worse, it sends the message that they are above the rules and are willing to break them.

Ironically, then, attempts by a CEO to advance an agenda or to show strength accomplish quite the opposite. Behaviors that succeed in the corporate environment only serve to antagonize jurors. Jurors do not live in the CEO’s world; jurors tend to be average wage earners with limited or no power in the workplace. Though they may admire the corporate leader who has an unusually positive story (e.g., a CEO who pulled himself or herself up by their bootstraps), jurors are inclined to feel distant from—even resentful of—a powerful individual, particularly one who displays an air of superiority and collects hefty salaries and bonuses which are seen as in the stratosphere and unwarranted. The jury trial provides a rare opportunity for jurors to turn the tables. Hence, the CEO who testifies as if he or she is holding court (rather than deferring to the Court) may provoke a backlash by confirming juror suspicions of corporate arrogance.

On direct examination, the self-assurance displayed by a CEO can make a cordial exchange with the questioner reminiscent of a well-rehearsed infomercial. This effect will likely be more pronounced than with other witnesses, since the executive (who is, after all, the client) will elicit only polite and respectful questioning. On cross-examination, however, the same executive often appears unprepared, uncooperative, impolite, manipulative, arrogant, and/or evasive. A CEO’s power struggle with a cross-examining attorney reveals the leader who was so pleasant and self-assured on direct examination as someone who can also be highly unlikable and inappropriately controlling.

Why does this happen? Negative Tendencies of the CEO

  • Believes that others see things from his or her perspective when most are simply paid to do so

  • Patronizes others or blames their limitations when others are not persuaded to see things as the CEO does

  • Finds it difficult to speak at the level of the jury, yet expects to be understood

  • Refuses to yield on the stand, opting for one-upmanship in a misguided show of strength rather than picking his or her battles

  • Bullies opponents: It is more important to the CEO to be right than to be likable or cooperative

  • Insists on always having an answer

  • Is prepared to give orders, but not to take them; and is willing to ask questions, but not to be the one “on the spot”

  • Refuses to spare his or her opinions

  • Fails to speak diplomatically

  • Appears to be a “suit” (i.e., appearance, body language, behavior, lifestyle, etc. serve to identify the executive as a privileged power broker).

  • Doesn't suffer fools well, so shows contempt for ill-prepared or disorganized questioners
  • Note: If you show this list to a CEO, he or she will deny it describes them!

Pitfalls of the CEO on Videotape: Seeing Is Believing

Video depositions are an additional CEO hazard. Opposing counsel may edit video testimony to create damaging sequences for replay to a jury; these sequences commonly exaggerate unattractive qualities of the executive that go unnoticed when only the written record is used. Such qualities include appearance, demeanor, facial expression, body language, mannerism, delays in responses, tone of voice, diction, accent, eye contact, gaze, posture, personality, and attitude . . . as well as attire, haircut, tan, jewelry and accessories.

Video is especially damaging when the judge and jury do not see what they expect. For example, the CEO’s attire may send the wrong message; an inappropriate background in the video can do the same.

Inconsistent behavior or appearance that would likely go unnoticed in written transcripts can be quite apparent on video and seeing is believing . . . or not.

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The executive’s energy level or appearance may improve from one taping to the next, or (more likely) may decline due to fatigue over time.

Poor positioning of the witness may also create a negative impression. If the CEO is sandwiched between deposing and defending attorneys, the resulting “pingpong” effect of his or her turning head is both a distraction and a red flag. Any fidgeting that creates a visible pattern (remember Oliver North at the Congressional hearings?) has a similar effect.

Likewise, the CEO who looks to the attorney after hearing a question reveals uncertainty and the need to defer to counsel.

In traditional depositions, attorneys tend to focus on substance more than form; CEOs tend to answer questions by saying as little as possible. This protects against later attacks on the executive’s credibility (given the developments of discovery and the opportunity to review additional materials, answers in court may vary from those given in deposition). On video, however, such reticence presents as unresponsive, detached, uncooperative, and even evasive.

The CEO who is tongue-tied in a video deposition but charismatic and forthcoming in court will witness the erosion of his or her credibility.

Conversely, the CEO who plays the “charmer” in a video deposition by volunteering information, war stories, etc. likewise forfeits credibility if he or she “gets religion” and clams up on the stand at trial.

Keep in mind that it is easier to lie with words than with behavior. Nonverbal messages may betray the CEO’s true mindset. Jurors know instinctively that body language can be revelatory. From their perspective, the CEO’s physical behavior is more significant than his or her words.

How to Avoid Video Pitfalls

Some solutions to these concerns are obvious: Pay close attention to appearance. In deposition, position the witness to allow a clear line of sight to both parties and the camera. Strive for consistent demeanor over time.

However, success requires time, practice and expertise. To improve the video performance of your executive witness, the following are essential:

  • Blunt reality checks: Offer honest feedback regarding the added risks of video deposition.

  • Pay attention to details: Form is as important as substance and more so for credibility.

  • Clear the table of distractions.

  • Warn the CEO to use his or her best manners: No interrupting, no bad attitude, and

    avoid controlling behavior.

  • Remind the CEO to respond only after the question has been fully asked and understood.

  • Avoid ploys to stall for time (such as asking a questioner to rephrase or repeat a question when unnecessary).

  • Vary the length and the language of responses; use this variety to attract attention to helpful testimony and to avoid sounding trapped or as if “taking the Fifth.”

  • Model and practice matter-of-fact answers to difficult questions.

  • Teach the witness to respond in contrasting style to the examining attorney. If the adversary becomes loud, fast, or aggressive, the CEO should accordingly strive to be quiet, deliberate, or polite.

  • When members of the trial team pass documents or approach the witness or exhibits, they must take care to remain off camera.

  • Educate the witness: Ask the CEO to observe as someone else plays the role of the CEO under questioning, and then evaluate the CEO to ascertain his or her level of self- awareness.

  • Employ behavior modification: Arrange for the executive to evaluate his or her level of self-awareness by reviewing details in videotaped practice sessions.

  • To identify negative body language, review the video without sound first.

  • Because the trial team’s relationship with the CEO makes it difficult to view the CEO as others will, arrange for an unknown attorney to conduct practice sessions and then to provide honest feedback.

  • Identify behavior that needs work, then change one behavior at a time. Practice, videotape, then review and evaluate the tape. Encourage positive change, and then move on to change another area.

  • Prepare visual exhibits (of adequate size to review on camera) to make strong points, organize the CEO’s testimony, and strategically distract viewers from the witness.

Why Does a CEO Act This Way?

Though it seems illogical for a CEO to behave counterproductively, there are reasons for such behavior. The chief executive is driven to succeed. He or she has every reason to believe that tactics rewarded by success in the past will continue to yield success. When in unfamiliar territory (e.g., the legal process), the CEO will misapply familiar behavior (borrowed from the business world) until he or she understands that doing so risks failure.

The CEO will resist the surrender of winning familiar formulas.

Unless he or she has learned through experience or atypically defers to counselors, a chief executive does not respond well when told to change or to back off.

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Once your CEO becomes aware of the dilemma and is receptive to new ways, keep in mind that old habits die hard. The CEO will be a poor witness if he or she views a lawsuit as an interruption of higher priorities. Jurors have a keen perception of such elitism. If the CEO perceives the necessary investment of time, energy, and money as unjustified or feels above the need to explain him or herself, the result will be a dismissive or contemptuous attitude, both on the stand and in the steps leading there, but he or she won't have the last say for a change — the judge or jury will.

Corporate politics may undermine a chief executive’s testimony. For example, imagine that the CEO was at odds with other executives regarding a policy change.
Cross-examiners would be thrilled to reveal this rift. They would take the opportunity to exploit tension between the CEO and dissenting witnesses. A CEO would resent the need to simultaneously defend and reconcile such differences of opinion. The trial team must not overlook the fact that stress hampers the CEO’s decision-making ability and performance. Expectations of the CEO run very high. As the corporate leader, this witness has far more to deal with than litigation. The implications of a given case extend beyond the courtroom, and the chief executive is highly exposed. He or she is accountable to employees, business plans, banks, investors, trustees, board members, shareholders (if the company is publicly traded), and the public. Each of these factors contributes to the CEO’s unique perspective of – and stress from – a lawsuit.

When a CEO is the client in a criminal case, the problem of stress is magnified. The CEO is likely to receive little outside support as former allies (including friends and family) distance themselves, adding to the CEO’s anxiety. Anxiety is the saboteur of CEO witness performance. As anxiety increases, a CEO typically becomes less able to accept advice. His or her desire to take control increases in direct proportion to the perceived threat (e.g., if the CEO’s liberty is at stake). Tension may also develop between a CEO’s advisors and the trial team. The leader of a corporation is commonly surrounded by “yes men” who tell the CEO what he or she wants to hear. In a criminal trial, the CEO may present as unlikable and not credible and yet receive positive feedback from insiders who misleadingly assure him or her that all is well. Many rule by fear, so stressful times are the least likely to elicit criticism, even if accurate.

In contrast, the trial team will wish to provide more balanced or even worst-case scenarios. However, when trial team members give realistic critical feedback, they may find the CEO unwilling to listen. Thus, attorneys hesitate to give frank advice because they fear being shot as the bearer of bad news, or because they naively wish to protect their client by shielding him or her from negative feedback (to no one’s long-term advantage). As a last resort, the trial team will sometimes forego calling the CEO as a witness. This can be a death knell – especially in criminal cases – because juries want to hear from the CEO. The trial team then faces a no-win choice: Either put a CEO on the stand who is a bad witness, or avoid calling the CEO altogether.

Too Much of a Good Thing Is Not Always Wonderful

The CEO witness can fail by over-compliance or under-compliance. Training any witness to act against their nature can backfire; an overly prepared executive may not present as genuine. For example, a stern CEO who smiles at the jury when speaking can look like a grinning fool or a windup doll, thus losing instead of gaining essential credibility.

A chief executive must behave naturally, must uphold the jury’s positive expectations, and must not reinforce negative stereotypes. The CEO’s lead attorney is charged with maintaining a balance between forthrightness, control, and remaining sensitive to the CEO’s concerns and anxieties.

How to Raise the CEO’s Awareness:

  • Be certain you understand each other. Review mutual goals and your plan to reach them. Take nothing for granted.

  • Control damage. Show the CEO (e.g., by videotaping cross-examination practice sessions) how and why misguided strategies, aggression, and over involvement will boomerang.

  • Consider the reaction of the audience. Orient the CEO to the perspective of the judge and jurors. Use blunt terms to describe how the CEO is likely to be perceived.

  • Get a reality check from the horse’s mouth. When possible, mock-try the CEO. Test recorded direct and cross examinations before surrogate jurors to allow the CEO to measure his or her expectations against real feedback.

storytelling for judge jury courtroom best method for trial persuasion and emotion
The attorney’s task includes showing that the CEO is a “people person,” not just someone who gives orders from on high. Demonstrate the CEO’s knowledge and understanding of the roles and contributions of others in the company. Even if the witness is reluctant to learn the details, it is important to encourage him or her to become familiar with the experience and input of lower level employees. This is essential for the CEO who must testify as both a fact witness and a corporate witness; keep in mind that his or her recall and performance will benefit to the degree that anxiety can be reduced. The CEO should also be encouraged to consider how outsiders view him or her as a person and as a decision maker, and to offer background and context to explain his or her actions.

What the Attorney Must Teach the CEO Witness:

  • Capitalize on your strongest asset: Charisma. Opportunities to employ charisma may be lost if ego gets in the way (appeal to the CEO’s ego with winning strategies).

  • Choose your battles carefully while under questioning.

  • Take control on the stand through both your behavior and your speech.

  • Practice the questions you dread most through role-play (the CEO plays the cross-examiner and the attorney plays the witness). By asking the most difficult questions, you can learn model responses that overcome anxiety.

  • Work with others on the case to avoid the “Hero or Zero” witness syndrome. No one makes or breaks a case without help from others.

  • Use analogies the judge and jurors appreciate but that opponents cannot turn against you.

  • Use a mock jury to pretest these analogies.

  • Pare down all excess in dress, accessories, and mannerisms.

  • Drive to court in your mother’s car, or use public transportation.

Spend time with the CEO to review what he or she can and cannot concede. Supply areas of concession and appropriate, matter-of-fact ways to make concessions. Thus armed, the CEO will have something to give without losing ground and a guide to assist his or her choice of battles.

It’s a Lousy Job, but Someone’s Gotta Do It

As difficult as it may be, it is imperative to tell the emperor that he has no clothes: Someone must inform the CEO witness when he or she has presentation problems. If you are ultimately to be successful in your litigation, this witness must understand the significance of the situation and must be enlisted to help you improve it. Though it may be tempting to avoid conflict with the CEO client, doing so would be a disservice. Embarrassing results would certainly hurt the relationship, and unwanted results can end it. The earlier these problems are addressed, the better.

This article originally appeared as the Cover Story of International Commercial Litigation Magazine.

Other articles about witness preparation, jury consulting and courtroom testimony from A2L Consulting:

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Tags: Trial Consultants, Mock Trial, Litigation Consulting, Juries, Jury Consultants, Expert Witness, Depositions, Witness Preparation

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

ryanflax blog litigation consultant 

Ryan H. Flax, Esq., Managing Director, Litigation Consulting, joined A2L Consulting on the heels of practicing Intellectual Property (IP) law as part of the Intellectual Property team at Dickstein Shapiro LLP, a national law firm based in Washington, DC.  Over the course of his career, Ryan has obtained jury verdicts totaling well over $1 billion in damages on behalf of his clients and has helped clients navigate the turbulent waters of their competitors’ patents.  Ryan can be reached at flax@a2lc.com.

dr laurie kuslansky jury consultant a2l consulting
Laurie R. Kuslansky, Ph.D, Managing Director, Trial & Jury Consulting, has conducted over 400 mock trials in more than 1,000 litigation engagements over the past 20 years. Dr. Kuslansky's goal is to provide the highest level of personalized client service possible whether one's need involves a mock trial, witness preparation, jury selection or a mock exercise not involving a jury. Dr. Kuslansky can be reached at kuslansky@A2LC.com.

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