by Ken Lopez
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.
- 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
- 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
- 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
- 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
- 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
- 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
- They understand the difference between a narrative and a theme. See, 14 Differences Between a Theme and a Story in Litigation
- They spend their time where they are most valuable and add the most value. How Valuable is Your Time vs. Litigation Support's Time?
- They begin developing their visual presentation months or years before trial. See, How Long Before Trial Should I Begin Preparing My Trial Graphics?
- 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
- 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.
- 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
- 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
- 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
- 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
- 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
- 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
- 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)
- 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
- 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
- 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."
- 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
- Before dismissing new ideas, they consider how to apply them, no matter how new. See, How Creative Collaboration Can Help a Litigation Team
- 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.
- 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
- They communicate in an orderly, consistent manner so that the left and right hands know what the other is doing.
- If they aren’t good organizers, they task someone who is to assure continuity and avoid panic. Download the Leadership for Lawyers eBook
- 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
- 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
- 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
- They are respectful to junior staff and outside consultants. See, 13 Reasons Law Firm Litigation Graphics Departments Have Bad Luck
- 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
- They give credit where credit is due, sincerely (not by patronizing).
- They lead by example. Download the Leadership for Lawyers eBook
- 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
- 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
- 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
- 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
- All attorneys on the team have meaningful roles that sync with their individual strengths.
- 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?
- 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
- 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
- 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.
- They seek candid feedback, not false praise, during trial.
- 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.
- They don't relegate preparation of important witnesses to junior lawyers who lack actual experience. See, Witness Preparation: Hit or Myth?
- 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
- 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
- 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.
- 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.