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The Litigation Consulting Report

5 Key Lessons You Can Learn From Mock Juries

Posted by Katie Bagwill on Wed, Nov 30, 2016 @ 01:32 PM

mock-jury-focus-group-mock-trial-jury-consultants.jpgby Katie Bagwill
A2L Consulting

Watching a mock jury deliberate is a lot like watching Dr. Phil; there is a lot of arguing, and most of the “facts” end up skewed. Nevertheless, a mock jury’s conclusions and how they reach them are essential to any lawyer who wants to understand the weaknesses of his or her case. Here are some of my takeaways from observing this fascinating exercise recently.

  1. Be clear. If a point or idea you want to instill in the jury isn’t clarified enough, you will see it warped and interpreted wildly during the deliberations. During each mock presentation that I saw, the amount of attention paid and the volume of notes taken varied, but one constant seemed to be apparent: jurors want to feel as if they have all the information. Even if they don’t, once they have a firm opinion, they will use any of the “facts” they have to defend it. Naturally you want these facts to be in your favor, but for the sake of this exercise it is actually more beneficial to you for the stacks to be weighted against you. In order to improve, you need to know how you could lose.
  1. Be passionate but humble. It is important for the jury to feel empathetic toward your client, and for that to happen they need to connect with you. While presenting your case, you want to appear confident and informed without coming off as arrogant. Persuasion is all about presentation. One of the most important notes that our mock jurors made about one of our presenters was that he seemed “smug,” which made him seem sneaky, and it spiraled from there.
  1. Honesty is the best policy for your mock juries – by far. An important factor for an experiment, the mock trial, to be generalizable to the greater population, the entire jury pool, is that participants be honest in their answers. In our exercise, we had remote devices that each participant used to answer our questions, and we received feedback in real time. To set the stage of how they should answer the questions, a test question was asked, “Have you ever driven over the speed limit?” The expected answer would be “yes” across the board, assuming that all participants drive. However, in our group we had one “no” and one “not applicable.” The former had been unsure of “how serious it was” and apologized for not answering completely honestly, while the latter seemed to just be completely in denial. The idea that, “it doesn’t count because everyone else was doing it, but I was the only one caught,” is a dangerous mindset in a child and even scarier in an adult. With this experience in mind, you should remember not to put too much weight on any individual’s answer to one question, but rather look at the patterns of decision-making in the group.
  1. Ignorance is not bliss. The people who paid the least amount of attention during the presentations seemed to be the biggest talkers in the deliberation room. This would confirm the idea of the Dunning-Kruger effect, a cognitive bias in which less competent people believe they are more competent, and more competent people doubt themselves. This is a scary idea in theory, and even scarier in practice. Imagine you are being tried by a jury full of people who don’t really understand any of the facts of the case, but their “instincts” tell them you’re guilty. Unfortunately, these people don’t wear a sign around their necks professing their ignorance, and you’re just going to have to gather as much other information about their decision-making during voir dire as you can. In the exercise I observed, it was sad to see that there were a handful of participants whose bloated confidence in their opinions kept all opposing mock jurors silent for fear of being yelled into submission.
  1. Be prepared in advance. Once you’re selecting your jury or presenting your case in court, it is too late to start thinking about how you will keep the jury on your side. Using a mock jury will separate the “good” evidence in your presentation from the “bad” while you still have time to reshape your narrative.
      

Other A2L Consulting articles about mock juries, mock trials and jury consulting:

Jury Consulting Mock Trial

Tags: Trial Consultants, Jury Consulting, Mock Trial, Trial Consulting, Juries, Jury Consultants, Trial Preparation, Psychology, Persuasion

7 Ways to Overcome Cognitive Bias and Persuade

Posted by Alex Brown on Wed, Nov 23, 2016 @ 04:50 PM

cognitive-bias-persuasion-a2l-litigation-consultants.jpgby Alex Brown
Director of Operations
A2L Consulting

I read an article today that can be applied to our industry so well that I thought I should apply its lessons. The article was written by Eddie Shleyner and is titled: How to Defeat Your Most Dangerous Writing Habit: 7 Ways to Lift 'The Curse of Knowledge'

The article highlights the concept of being cursed due to knowing too much. The issue refers to someone who has studied a subject so thoroughly that it becomes difficult to explain it to people who don’t know as much about the subject.

As an example, he discusses the book, Made to Stick, where the Heath brothers provide an example: “Think of a lawyer who can’t give you a straight, comprehensible answer to a legal question. His vast knowledge and experience renders him unable to fathom how little you know. So when he talks to you, he talks in abstractions that you can’t follow. And we’re all like the lawyer in our own domain of expertise.”

Cognitive bias is what we are talking about. Shleyner notes that this is particularly dangerous to writers, since in conversation, a listener can ask questions to clarify the issue. But litigators, when giving an opening or closing statement, are in the same boat as writers since they are unable to ask or receive questions from their audience.

So, how can you defeat this curse? Ironically, more knowledge is the answer. The more you know about the curse, the less likely you will succumb to it and the more persuasive you will be. Let’s take a look at his seven best practices to combating this curse and apply them to our industry.

1. Know your audience’s base subject knowledge.

Jury Research. Focus Groups, Mock Exercises. Basically, you need to know your audience. Not only to know how they think, but why, what, who, where and the often forgotten wow. Learn how they think, learn the history to know why they think this way, but most importantly, figure out how to say it in a way that will wow them and be remembered.

Like It or Not: Likability Counts for Credibility in the Courtroom

5 Reasons Why Jury Consulting Is Very Important

Group Psychology, Voir Dire, Jury Selection and Jury Deliberations


2. Tone down your vocabulary.

cognitive-bias-synapse.jpgSpeak to the audience, not at the audience. A sure way to do this is to talk to them in a way that they will not only be able to understand, but also remember. Last night I was working on AP Psychology with my oldest (a junior in high school) and we were discussing the structure of the brain and the nervous system, specifically the identification of synapse gaps and the different interfaces.  I used the concept of roundabouts and how they connect roads. It fits but I did not consider the audience, since my daughter does not drive yet. My wife talked about soldering and it clicked since my daughter is doing that currently in her mechanical engineering class. Remember to speak “to” your audience, not “at” or “down” to them.

21 Steps I Took For Great Public Speaking Results

8 Habits of Successful and Persuasive Public Speakers

 

3. Tell a story.

At least 65% of your audience will be or consider himself or herself a visual learner. This means that they relate better and retain information at a higher rate through visuals or graphics. No matter how well you can paint a picture with words, the majority of your audience actually wants pictures. So that’s what you give them.

Litigators, Portray Your Client As a Hero In 17 Easy Storytelling Steps

6 Ways to Become a Better Storyteller

10 Videos to Help Litigators Becme Better at Storytelling

Storytelling Proven to be Scientifically More Persuasive

  

4. Ditch the abstractions.

Abstraction involves induction of ideas or the synthesis of facts into one general theory. It is the opposite of specification, which is the analysis or breaking-down of a general idea or abstraction into concrete facts. Basically, give examples that are concrete. Example:

ABSTRACT: Americans must be willing to protect our freedoms. 

CONCRETE: Voters must protect their Fourth Amendment right against illegal searches and seizures by calling or writing their representatives to protest the administration's warrantless wiretapping program. 

 

5. Provide examples.

Unlike abstractions, examples put concepts into perspective. In one of our cases involving alleged improper laddering transactions, the client was envisioning an abstract concept of showing a runner in a marathon jumping ahead and how in essence the opposition was intimating that this affected all the other racers in a way that was unfair or even illegal. We struggled with the concept because we could not guarantee that everyone who saw this would go down the same path and reach the same conclusion. Instead, we came up with the “dots” slide, which ended up appealing to the jurors’ sense of logic and was memorable.

ipo-class-action-dots-resized-600.jpg

As you can tell, this was done a few years ago, but it does not diminish the impact. Examples based on concrete concepts are usually more persuasive then abstract concepts.

 

6. Use visuals.

Bullet points are not visuals. Visuals reinforce the message and they are not meant to be redundant reiterations of what you are saying. Here are some good examples in these photos.

bullet-points-gates-jobs-bad-kill-bullets.jpg

12 Reasons Bullet Points Are Bad

The Redundancy Effect

Should You Read Documents Out Loud at Trial?

Could Surprise Be One of Your Best Visual Persuasion Tools?

7. Get an outside point of view.

When we are creating images/graphics for the matters we are supporting, we always discuss it amongst ourselves, the clients, strangers passing by… pretty much everyone. Not because we are worried or just want to show off, but because the input is invaluable to get the most persuasive graphic for our audience to connect with and understand. Why would it be different when considering your opening, closing or witness interviews or cross. Get people together to hear and see what you are planning on saying. Use peers and A2L in a MicroMock so we can review the message, and how you are delivering it.

Introducing a New Litigation Consulting Service: the Micro-Mock

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

3 Ways to Force Yourself to Practice Your Trial Presentation

Other A2L Consulting articles and free resources about cognitive bias and persuasion:

how to persuade visually arguments persuasive graphics

Tags: Jury Consulting, Mock Trial, Litigation Consulting, Trial Consulting, Storytelling, Persuasive Graphics, Visual Persuasion, Opening, Closing Argument, Persuasion, Cognitive Bias

[New and Free E-Book] Expert Witnesses - Direct and Cross Examination

Posted by Ken Lopez on Wed, Nov 9, 2016 @ 11:48 AM

A2L-IMS-EXPERT-WITNESS-TESTIMONY-TALL.jpgby Ken Lopez
Founder/CEO
A2L Consulting

We at A2L are launching a new e-book this month. This time, we are publishing the book jointly with IMS ExpertServices, one of the nation’s premier providers of experts and consultants for top law firms and Fortune 500 corporations.

The title of the new book is Expert Trial Testimony: Direct and Cross-Examination. The book answers every question you might have thought of in connection with expert testimony at trial in U.S. courts, and it does so in a clear, conversational manner. Plus, it’s a free download.

As more and more money is at stake in civil trials, and as the subject matter grows more and more complex and difficult for many jurors to understand without assistance, the value and importance of expert witnesses has grown dramatically.

The difference between an effective, well-prepared, convincing expert witness and one who does not come across well to a jury can often be the difference between winning and losing a trial where hundreds of millions, or billions, of dollars are at stake.

The book is directed at experts themselves and gives dozens of do’s and don’ts that will make any expert’s testimony effective and convincing at a trial. It’s not only experts who will benefit from reading this book but also trial attorneys, trial technicians, in-house counsel, and anyone who wants to understand the best ways to put on expert testimony.

The book addresses the typical expert witness as follows:

You have read hundreds, if not thousands, of articles in your field. You likely have an advanced degree that touches on the area about which you have been asked to testify. You may have taught classes on the relevant subject matter at a university. You may have presented your thoughts and research at conferences attended by your peers. You are smart. You are well-credentialed. But are you prepared to testify in a court of law? Do you know what you have to do to be just as effective on the witness stand as you are at the podium?

Among the key topics in the book are:

  • How an expert can explain complex scientific topics in language that a juror can understand without “dumbing down” her testimony
  • Why pictures, schematics and visuals of all sorts are as important to an expert witness’s testimony as the words he uses
  • How an expert should prepare for the toughest questions on cross-examination, including questions that the expert might view as unfair
  • How to deal with a “yes or no” question and avoid the pitfalls that such a question usually brings with it
  • How an expert should use body language to help, not detract from, the quality of her testimony

We think this book will be invaluable to expert witnesses, lawyers, trial techs, in-house counsel, and others. Please download it here.

 

Tags: Litigation Graphics, Jury Consulting, Mock Trial, Demonstrative Evidence, Juries, Jury Consultants, Expert Witness, Persuasive Graphics, Visual Persuasion, Judges, Cross Examination, Persuasion, ebook

One Possible Pitfall in Telling a Story at Trial

Posted by Tony Klapper on Wed, Oct 26, 2016 @ 02:56 PM

bad storytelling jury pandering talking downby Tony Klapper
Managing Director, Litigation Consulting
A2L Consulting

We have always emphasized how important it is for a trial lawyer to organize his or her case so as to tell a consistent and convincing story to the jury or judge. In making that recommendation, we draw on experience and common sense, as well as on science that indicates that human beings are wired to follow intriguing stories and to look forward to their ultimate resolution.

“Storytelling is essential to winning trials – and that goes for mediations, arbitrations, and hearings, literally anywhere you must connect with an audience,” we have written. “Whether it’s your story or not, a story will inevitably emerge during a trial. Mock trials and focus groups have repeatedly shown that when a jury has two camps representing the two sides of the case, each camp will have a fairly consistent story that it endorses and clings to. Consistently, we find that those stories are short, that they fit with common sense, that they borrow some of the salient facts from the trial, and that they are complete tales, with a beginning, a middle and an end – including what happened and what should have happened.”

A story removes a case from the realm of the strictly legal and makes it personal. It humanizes one’s client and helps a jury identify with the client. But can storytelling go too far as a technique of persuasion?

Not long ago, I had the opportunity to meet with several lawyers at an outstanding law firm that is known for its trial expertise. One of the partners raised an interesting issue with me: Can the process of storytelling at trial cross the line into pandering, a contrived appeal to a jury’s emotions that ultimately causes the lawyer to lose credibility? In discussing ways that a story can be told effectively, I had given the example of a case on which we had worked with a client with a remarkable personal story; the client, who was Jewish, had barely escaped Nazi Germany and had built a successful business. This bit of history was not directly relevant to the claims in the case. Did we go too far in focusing on it?

That’s a very valuable question, and there’s no clear answer. It’s a matter of human emotion, so the answer is that it depends. I recommend that when there’s any question of perceived pandering or manipulation, you should “pressure test” the story in advance with some thoughtful people. They could be members of a mock jury, or simply one’s spouse, friend or co-worker. How does the story sound? Does it make the complex legal dispute come to life, or does it talk down to the jury in a way that will turn the jury off or even cause them to resent the client or even me the lawyer?

You as a trial lawyer may fall in love with a story, but that’s not the last word. A jury may see it as manipulative even if that’s the furthest thing from your mind. So test your stories in advance. Your credibility may depend on it.

Other A2L Consulting articles and resources related to storytelling in the courtroom, what makes a great story, and persuading a judge or jury include:

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

Tags: Trial Consultants, Jury Consulting, Mock Trial, Trial Consulting, Jury Consultants, Storytelling, Persuasion

5 Reasons Why Jury Consulting Is Very Important

Posted by Tony Klapper on Tue, Oct 18, 2016 @ 03:45 PM

iStock_50484796_SMALL.jpgby Tony Klapper
Managing Director, Litigation Consulting
A2L Consulting

When I was a practicing lawyer, trying high-stakes cases in the major law firm world, many of my colleagues would often cast doubt on the need for jury consultants and mock trials. They would say that as experienced trial lawyers, they already had a good feel for a jury and for the art of persuasion. In addition, lawyers would argue that very few reliable conclusions could be drawn from the attitudes and outlooks of a small number of mock jurors. Actually, this is a rather short-sighted way to approach the topic. A jury consultant can add immeasurable value to a trial team’s efforts in any number of ways. Here are five of them: 

  1. Theme development. Working with a mock jury provides invaluable research into what themes will work with the actual jury and what themes will not work. The mock jury will get a chance to hear several proposed themes for your side, as well as the way in which the opposition can be expected to rebut those themes. Interviewing the mock jurors will shed considerable light on what works for them, emotionally, and what does not.
  1. Message clarity. Many lawyers on a trial team get lost in the weeds and develop countless lines of information without any concern for whether they contribute to their side’s main narrative. It is very easy to review documents for their own sake without any consideration of why they should care about the documents. A mock trial will force all those attorneys to focus on the facts that really matter to their case and will provide the needed discipline.
  1. Development of visuals. A mock trial is a trial run for your visuals as well as for your theme development. It’s a way of “pressure-testing” the litigation graphics that your side has planned to use and seeing if they work in the real world. Ask your mock jurors whether or not the proposed visuals did enough to make the complex ideas of the case easy to understand for a nonlawyer. If they jurors are still perplexed about your case, they will tell you that in no uncertain terms. Be prepared to ditch the graphics that you have been using and to develop different ones, or to add new ones.
  1. Juror attitudes. After a mock trial, you will have a much better idea of what kinds of people are not going to be good jurors for your side. By interviewing the jurors after the mock, you will get a sense of whose world view will fit in perfectly with your message and whose view is quite the opposite to your message. You will never have a real jury that’s 100 percent on your side, but a mock trial will help you increase that percentage. Those jurors who see the world the way you do can and will be your “advocates” on the jury during deliberations.
  1. Support for your recommendations. Sometimes you as a trial consultant will have some difficulty getting your client to accept your view of the case. A mock trial can provide the support that you may need. A mock jury is another set of eyes that will evaluate your case independently and may see things the way that you do. In any case, a mock trial is a good way for everyone on your team to park their egos and listen.

Articles from A2L Consulting about jury consulting, mock trials, litigation consulting, and trial consulting: 

Jury Consulting Mock Trial

 

Tags: Trial Graphics, Litigation Graphics, Jury Consulting, Mock Trial, Demonstrative Evidence, Juries, Jury Consultants

The Top 5 Litigation & Persuasion Focused Articles of Q2 & Q3 2016

Posted by Ken Lopez on Fri, Sep 30, 2016 @ 03:25 PM

iStock_79502561_SMALL.jpgby Ken Lopez
Founder/CEO
A2L Consulting

In the first quarter of 2016, A2L Consulting reported record amounts of business and web traffic. Well, those numbers have only continued to climb throughout the second and third quarters of this year. High stakes litigation is booming across the industry, although it's not heavily concentrated in any one law firm or in any one business sector. 

Every year, more than a quarter million visits are paid to A2L's blog, The Litigation Consulting Report. Each year we publish more than 100 articles focused on highly specialized areas of persuasion science, jury consulting, high-stakes litigation, and the use of litigation graphics at trial.

To help our readership find the very best articles, we publish "best of" articles like this one throughout the year. Today, I'm highlighting the five articles that you, our readers, voted the very best of the past two quarters. I think each is a fascinating read.


How top trial teams and top trial lawyers behave5. 10 Criteria that Define Great Trial Teams: Our top trial experts at A2L seek to distill the essence of trial preparation and develop a numerical way to measure its quality and predict success.








top trial team trial lawyer traits4. 50 Characteristics of Top Trial Teams: We tell our readers what the unique characteristics of the top trial teams are. Some of them are quite surprising.







Better storytelling for lawyers3.  6 Ways to Become a Better Storyteller: At A2L, we share the results of our best thinking on storytelling at trial. What are the best time-tested techniques?






SPICE persuasion tricks2.  SPICE Is the Key to Persuasion: An expert on the art of persuasion identifies the key aspects of persuading juries or anyone else, summed up in the acronym SPICE.




 

 

 

 


PowerPoint tips and tricks1. 12 Things About PowerPoint You Probably Never Knew: A litigation graphics expert shows how little-known aspects of PowerPoint, far from being dull, can help persuade when creating PowerPoint trial graphics.

 

 



 

opening statements toolkit ebook download a2l

Tags: Trial Presentation, Jury Consulting, Mock Trial, Litigation Consulting, Litigation Support, Jury Consultants, Articles, Trial Preparation, Jury Selection, Opening

How Many PowerPoint Slides Should You Use in a Typical Trial?

Posted by Ken Lopez on Mon, Sep 26, 2016 @ 01:45 PM

how-many-powerpoint-slides-too-many.jpgby Ken Lopez
Founder/CEO
A2L Consulting

How many slides should a world-class trial lawyer or trial presentation consultant create for use in a typical trial? That’s an interesting question that I hadn’t thought of until recently, when I had a fascinating debate with some litigators about this topic. One took the view that a trial with twice as many issues should require twice as many slides, even if the two trials are of equal length. I disagreed, and I think these litigators found my position confusing at first.

I told them that the presumption for any trial team should be to use as few slides as possible to make a point. More slides just create more complexity. And that inhibits persuasion.

There's a famous quote that has been attributed to many people, but it is correctly attributed to French mathematician Blaise Pascal: “I would have written a shorter letter if I had more time.” I think this sums up in many ways the goals of effective trial presentation. If you find yourself going to trial with 500 slides that you plan to use in a five-day trial, you are probably overdoing it. But people do that all the time.

I wrote about this topic in an article discussing how the PowerPoint slides that you do use are informed by the ones you don't. I think of it like a sculptor and Michelangelo’s famous saying how he could see the finished piece in the block of stone, he just needed to chip away the extraneous stones.

I do think trial presentation should work something like that. That's why it takes a long time to make a good presentation and why you should not find yourself at the end of the trial apologizing for not having written that shorter letter.

Here are a handful of best practices for any PowerPoint slide presentation with additional reading incorporated throughout:

  • Don't use bullet points. I've said this so many times that I'm nervous about over-repeating this stance. It's not the bullets that are bad, of course. It's that when you use them, you tend to commit all of of the PowerPoint slide sins that measurably and are scientifically known to diminish persuasion.

Other A2L articles related to using PowerPoint slides well in or out of the courtroom include:

Tags: Trial Graphics, Trial Consultants, Litigation Graphics, Mock Trial, Trial Consulting, Presentation Graphics, Advocacy Graphics, PowerPoint, Persuasive Graphics

[Free Download] Trial Lawyer’s Guide to Jury Consulting & Mock Trials

Posted by Ken Lopez on Wed, Sep 14, 2016 @ 03:19 PM

A2L-MOCK-TRIAL-JURY-CONSULTANTS-TALL.jpgby Ken Lopez
Founder/CEO
A2L Consulting

Today, we are publishing our latest free book -- A Trial Lawyer's Guide to Jury Consulting and Mock Trials.

This free 328-page book is based on the idea that even after some decades in which jury consulting has grown and established itself as a business, many lawyers still don’t necessarily understand what jury consultants do and how valuable they can be. Many lawyers probably still harbor the old idea that a jury consultant is just someone who sits next to a lawyer and uses a “gut feeling” based on a potential juror’s occupation, body language or appearance to ask the lawyer to exclude the juror or keep the juror. If that stereotype were ever true, it’s certainly not true today. We’re about as far now from the O.J. Simpson days 20 years ago as we are from the Perry Mason days.

This book is dedicated to bridging whatever conceptual gap may remain between trial lawyers and jury consultants. It pulls together many of the lessons that jury consultants have learned, so that any lawyer who reads the book can get up to speed quickly and save herself a good deal of money and time. We have been dismayed at times at the disconnection between long-held myths held even by seasoned litigators and what the data show.  Excellent trial strategies are the product of balancing art and science, data and wisdom, confidence and humility. 

Among the topics in this book are: 14 Places Your Colleagues Are Using Persuasive Graphics That Maybe You’re Not, Is Hiring a Jury Consultant Really Worth It?, Why Do I Need a Mock Trial If There Is No Real Voir Dire, 21 Ingenious Ways to Research Your Judge, 7 Videos About Body Language Our Litigation Consultants Recommend, 15 Things Everyone Should Know About Jury Selection and 6 Good Reasons to Conduct a Mock Trial.

A good lawyer knows the law. A great lawyer knows the jury and how it works. Read this book and reflect on its contents to know more than most trial lawyers do. This book is based on hundreds of trials and years of data, not mere theory or presumption. We hope you enjoy it and share it. Please send us your feedback and let us know if you have any questions or comments, any time. If you have any questions about a case, a witness, a jury pool, a venue, strategic options or dilemmas, or think your case is unwinnable, we’re only a phone call/email away and would love to hear from you. 

Jury Consulting Mock Trial

Tags: Jury Questionnaire, Trial Graphics, Trial Consultants, Jury Consulting, Courtroom Presentations, Mock Trial, Trial Consulting, Litigation Support, Juries, Jury Consultants, Trial Preparation, Jury Selection, Psychology, Body Language, Damages, Persuasion, Cognitive Bias

10 Criteria that Define Great Trial Teams

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

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

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

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

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

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

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

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

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

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

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

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

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

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

  8. Leadership and Teamwork: They don't lose it; they keep their cool. They understand that their success is a team effort and approach it that way. They give credit where credit is due, sincerely (not by patronizing). They pressure-test throughout the course of their pre-trial development and during the course of trial itself by continuously empowering the entire litigation and trial teams to provide their own input.

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

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

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

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

in-house counsel litigation toolkit e-book free download

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

7 Reasons a Fresh Pair of Eyes Are Beneficial Before Trial

Posted by Ken Lopez on Wed, Jun 29, 2016 @ 02:53 PM

iStock_38166022_SMALL.jpgby Ken Lopez
Founder/CEO
A2L Consulting

When it comes to making a decision about hiring a litigation consulting firm like A2L to support a trial team, I notice that many factors are intuitively persuasive to the consumer of such services.

With litigation graphics, most trial lawyers understand they benefit from outside help since jurors are mostly visual learners, and visual persuasion experts help bridge the communications gap between the trial lawyer and the typical American.

With jury consulting, most trial teams respond to the notion that an experienced jury consultant has watched thousands of jurors deliberate and can thus offer insights based on that unique experience. Further, it just makes sense to most people that a jury consultant is in the best position, given her training, to create a proper forum for scientifically valid and actionable jury research.

However, more important than these considerations, there is one factor that seems to occur to almost everyone who is evaluating the use of a litigation consultant. It is the idea that a fresh pair of eyes is almost always helpful when preparing for trial.

By a fresh pair of eyes, I'm referring to a litigation consultant who has been engaged to support the trial team sometime in the year before trial. At this point, early theories have often been developed, perhaps a draft narrative is in place, and the evidence has largely been evaluated. However, all too often, scant attention gets paid to the presentation of the case until the final few months before trial.

It is in this period that people seem to recognize the value of the “extra pair of eyes” in giving the trial strategies and tactics their final form. Here are some specific reasons why these new eyes can help. 

  1. Trial lawyers are likely to be too close to their case. After their long hours wrapped up with the case, they have subconsciously developed a theory or theories about the case that will be hard to shake. If these theories can be improved, it will take an outsider to convince the trial lawyer of that. See, Accepting Litigation Consulting is the New Hurdle for Litigators and 5 Surprises in Going from IP Litigator to Litigation Consultant.

  2. Trial lawyers identify with the client. That is a natural and understandable thing to do, since trial lawyers are supposed to zealously represent their client and think the client’s views are correct. However, sometimes the client’s ideas, though they reflect its perspective and industry realities, may be too hard to sell to a jury. Enter the new pair of eyes. See, 7 Reasons Litigation Graphics Consultants are Essential Even When Clients Have In-House Expertise and 5 Ways Litigation Consultants Add Pizzazz to a Tedious Case

  3. It’s hard to imagine “simple” when you are very smart. Trial lawyers are accustomed to being the smartest man or woman in the room. Sometimes, though, they will adopt a theory that lacks the common touch and is hard to explain to the everyday, common-sense thinker in the jury box. The outsider can help with this as well. See,
    21 Reasons a Litigator Is Your Best Litigation Graphics Consultant,  When Smart Ain’t So Smart - Cognitive Bias, Experts and Jurors and 12 Ways to SUCCESSFULLY Combine Oral and Visual Presentations.
  1. Don't Eat Your Own Fundraiser Doughnuts. When a trial team becomes too insular or if the 1st chair litigator becomes dictatorial, a closed feedback loop can develop. In this situation, all ideas are simply confirmed as good ideas by the internal team. Never is a fresh pair of eyes more valuable. See, 7 Bad Habits of Law Firm Litigators.

  2. Simple is hard to get to. Often, the most straightforward way of presenting the facts is the best. A trial lawyer can sometimes become taken with, even obsessed with, a more comprehensive yet more complicated approach to the facts. An outsider can give him or her a new perspective on this. See, Litigator & Litigation Consultant Value Added: A "Simple" Final Product and Planning For Courtroom Persuasion? Use a Two-Track Trial Strategy

  3. Collaboration can be creative. From the clash of ideas, a trial lawyer and a litigation consultant can develop new approaches to a case. They need to treat each other as equals and not be afraid to be wrong, nor be afraid to criticize the other person’s approach. See, How Creative Collaboration Can Help a Litigation Team and 9 Things I’ve Noticed About Effective Litigation Graphics After 20 Years as a Litigator

  4. Trials are rare, but not for litigation consultants. The “extra pair of eyes” will be someone who has been there and seen it all in the courtroom. Many trial lawyers, however skillful, go to trial once a year at most. See, With So Few Trials, Where Do You Find Trial Experience Now? and 9 Things In-House Counsel Say About Outside Litigation Counsel

Other A2L Consulting articles related to the support top-end litigation consultants provide to top-tier trial lawyers include:

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Tags: Trial Graphics, Litigation Graphics, Trial Presentation, Jury Consulting, Mock Trial, Litigation Consulting, Demonstrative Evidence, Juries, Jury Consultants, Trial Preparation, Visual Persuasion, Persuasion

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Authors

KenLopez resized 152

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


tony-klapper-headshot-500x500.jpg 

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


dr laurie kuslansky jury consultant a2l consulting







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

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