The Litigation Consulting Report

4 Ways That Juries Award Damages in Civil Cases

Posted by Ken Lopez on Wed, Oct 15, 2014 @ 09:13 AM

jury foreman damages award how calculate askby Elise Jefferson, MA
A2L Consulting

An intriguing and complex aspect of civil litigation is the use of damage awards as a means of achieving justice. This remains an inexact science; no one can predict the amount of money that a jury is going to award the plaintiff if liability is found. However, a good deal that is worth knowing has been learned about what goes into that decision. For example, studies have examined damage awards when jurors are asked to award a specific amount, as well as how jurors’ perceptions of the plaintiff’s motives for suing can affect damage awards. Although it can be difficult to predict how much money a jury may award, it is still important to consider the various theories that attempt to explain what influences jurors when determining damages.

Following are four theories that reflect the current state of the art.

1. Horizontal Inequity   


Horizontal inequity theory attempts to explain why there is a significant amount of variability among similar injury types. For example, if two plaintiffs lose their ring fingers, their damage awards may be significantly different if one of them is a professional guitar player and one is a triathlete. This can make it difficult for attorneys or consultants to make an educated prediction. One way plaintiff’s attorneys can counteract this issue is by giving jurors examples of previous award amounts as reference points insofar as this is admissible; plaintiff’s attorneys can suggest an appropriate amount during opening statements and justify that amount throughout the course of the trial via witness testimony. In a bifurcated trial in which the defendant has already been found liable, defense attorneys can use this theory to counteract the amount suggested by the plaintiff, by giving examples of lower amounts awarded in similar trials.

2. Anchoring and Adjustment Heuristic

Another theory that addresses juries’ determination of damage awards is known as the anchoring and adjustment heuristic. This theory holds that, in making quantitative judgments, jurors are influenced by a numerical starting value, regardless of how arbitrary the starting value is. This supports previous psychological research and anecdotal evidence that the more money that plaintiffs attorneys seek in damages, the more money they typically receive. For plaintiffs attorneys, this does not necessarily mean that they should suggest damage award amounts beyond what would be considered reasonable by the average juror. However, they should suggest awards that may be higher than the average amounts awarded for that injury type. For defense attorneys, this information would be helpful in making settlement offers, in order to counteract the plaintiff’s initial offer and ultimately lower the amount.

3. Fusion Theory

A third theory on how jurors award damages concerns the concept of fusion. While jurors are usually given instructions to select a damage award amount based on the defense’s conduct as opposed to the plaintiff’s injury, studies have shown that jurors are essentially unable to differentiate between the two. Under the fusion theory, jurors use relevant information from one legal decision to influence how they make other legal decisions. One study surmised that, because jurors hear evidence about the defendant’s conduct and the plaintiff’s injuries simultaneously, the information from both is often fused together to help juries make a decision on the award. Both plaintiff and defense attorneys can use this concept to their advantage by lumping together or separating both components during opening and closing statements.

4. LEL and Distinct Award Conditions 

A significant amount of research has been conducted to examine how instructions given to jurors affect damage awards in personal injury cases. A study conducted in 2011 examined lost enjoyment of life (LEL) and how jurors awarded damages when this factor was considered separately from pain and suffering (a common requirement in personal injury cases). LEL is defined as damages that are awarded in order to compensate the plaintiff for the ways in which the plaintiff’s life is limited because of an injury caused by the defendant. These limitations typically focus on the inability to enjoy activities that the person once enjoyed. In some jurisdictions, jurors are able to consider LEL separately from pain and suffering in personal injury cases.

In this study, jurors were asked to render non-economic damage awards in one of three conditions: 1) overall pain and suffering only, 2) two separate awards: mental pain and suffering and physical pain and suffering, or 3) four separate awards: mental anguish, LEL, physical disability/impairment, and disfigurement.

In keeping with previous research, the psychologists hypothesized that the more injury types the jurors were asked to consider, the higher the overall damage amount awarded. The researchers found that jurors did in fact tend to provide higher damage awards when considering the four-element condition, as opposed to the one-element condition. They also found that LEL played the most significant role in influencing award decisions..

Attorneys should consider these study results when requesting a specific amount of damages from the jury. In order to encourage jurors to award a larger sum of money, it may be beneficial for plaintiffs attorneys to isolate various types of potential damages. Instead of a lump sum only, breaking it into components may provide additional opportunities for jurors to fill in more blanks. However, it would be advantageous for defense attorneys to encourage jurors to consider a lump sum, in order to decrease the award amount.

In conclusion, damage award research has the potential to help litigators understand how to better achieve award amounts that will be most beneficial to their clients as plaintiffs and/or ways to defeat them when representing defendants.

Other A2L Consulting articles and resources discussing damages, mock trials and how juries make decisions:

 

 

Tags: Jury Consulting, Mock Trial, Juries, Jury Consultants, Jury Selection, Psychology, Opening, Closing Argument, Damages

14 Differences Between a Theme and a Story in Litigation

Posted by Ken Lopez on Thu, Oct 9, 2014 @ 09:16 AM

 

storytelling theme courtroom trial openingby Ken Lopez
Founder/CEO
A2L Consulting

Twenty years ago in my trial advocacy class, we talked a lot about developing a theme for a case. We learned to say things in an opening statement like, "this is a simple case about right and wrong" or "no good deed goes unpunished."

The goal of developing and communicating a theme is to give your fact-finder(s) an organizing principle that they can fit the evidence into neatly. However, for as much as we talked about themes, one thing I was not taught much about in law school was storytelling.

The two devices, themes and storytelling, are related, but they are not the same. A case theme can be thought of as a case's tag line, somewhat similar to corporate slogans like "when it absolutely, positively has to be there overnight" or "the ultimate driving machine." It's a shorthand version of the case designed to connect with the life experiences of the fact-finder(s).

I have seen cases where a story was told, but no theme was used. I have seen cases where a theme was used, but no story was told. The reality is you need both, particularly during opening statements, and appreciating the differences between themes and stories is critical for success at trial. With estimates running as high as 80 percent for the number of jurors who have made up their minds just after opening statements, getting your theme-story combo right is nothing short of essential - for BOTH plaintiff and defendant.

Here are fourteen key differences between themes and stories used in litigation:

  1. Themes are attention getters, stories are attention keepers. You're a clever lawyer, and you can rattle off a great case theme that gets people thinking. However, without a meaningful story to back up your opening line, fact-finders are just going to make up their own story or just tune you out.
     
  2. Themes provide a reason to be interested, stories provide the emotional connection required to care. If a jury does not care about your case, they are likely not going to get on your side and could very well just be daydreaming even while making eye contact.
     
  3. Themes explain, stories motivate. A well-told courtroom story will trigger a biological and an emotional response that leaves your fact-finder open to being persuaded.
     
  4. Themes sound like you are being a lawyer, stories sound like you are being human. It is very important to be likable at trial, and being likable generally means behaving like someone people can really relate to. If you are over-using lawyer-language, you create distance between you and a jury.


     
  5. Themes provide a smidgen of structure, stories provide a decision-making framework. You know that you've told a story well in the courtroom when the jury tells the same story to one another during deliberations. We see this occur during mock trials regularly. See 10 Things Every Mock Jury Ever Has Said.
     
  6. All lawyers know to use themes, many lawyers will fail to use stories. I recommend downloading our free Storytelling for Litigators book and watching our free Storytelling for Persuasion webinar to rapidly improve your storytelling skill set. I've watched good lawyers lose cases when they failed to articulate a good story.
     
  7. Themes are mostly tools for opening and closing statements, stories are incorporated throughout the trial. If you have set up your story well and worked with every member of your trial's cast including fact and expert witnesses, everyone will add clarity to a story throughout the trial.
     
  8. Juries will not usually talk about your themes, juries will talk about your stories and often adopt them as their own. See Your Trial Presentation Must Answer: Why Are You Telling Me That? and 10 Videos to Help Litigators Become Better at Storytelling.
     
  9. Stories have many characters with understandable motives, themes provide little in the way of character development. See Are You Smarter Than a Soap Opera Writer?
     
  10. Themes may offer the what or how, but stories offer the why. See Your Trial Presentation Must Answer: Why Are You Telling Me That? and 20 Great Courtroom Storytelling Articles from Trial Experts. 
     
  11. Themes offer something quickly relatable, stories offer something you can get lost in. See 5 Essential Elements of Storytelling and Persuasion
     
  12. Themes affect one part of the brain, stories affect another. See Storytelling Proven to be Scientifically More Persuasive
     
  13. Themes don't really persuade, stories will persuade. See Storytelling as a Persuasion Tool - A New & Complimentary Webinar
     
  14. Themes don't need litigation graphics to support them but stories sure do. See Why Trial Graphics are an Essential Persuasion Tool for Litigators

Other articles and resources related to courtroom storytelling, theme development and opening statements on A2L Consulting's site:

Tags: Litigation Graphics, Trial Presentation, Mock Trial, Juries, Storytelling, Opening, Closing Argument, Persuasion

Practice is a Crucial Piece of the Storytelling Puzzle

Posted by Ryan Flax on Thu, Sep 11, 2014 @ 04:47 PM

 

practice lawyer trial mock trialby Ryan H. Flax, Esq.
Managing Director, Litigation Consulting
A2L Consulting

This article is the last in a series of six articles about storytelling and trial preparation. Parts 1-5 are linked at the bottom of this article.

What is a trial attorney supposed to do after he or she has developed a theme and a story plus some graphics to support them visually?

The answer is, test them. I encourage you to use mock juries, not to predict the outcome of your trial, but to see what themes and facts resonate with the jurors. Doing so will help you decide which facts and story lines are worth building your case around. You can test what images and litigation graphics help make your case and which documents really make a difference when you show them to the jurors. Finally, testing with mock juries can help you figure out what type of juror you do and don’t want in your actual trial.

If using a mock jury is not in your budget, find some folks at your firm that are far removed from your case and test with them. Administrative assistants, receptionists, family members, paralegals, and junior associates are good for this testing. Enlist the services of local high school students to perform as mock jurors (they’ll gain experience and you’ll have about the right educational demographic for your jury, but consider how to deal with confidentiality).

A mock trial and testing on your peers are fancy forms of practice in litigation. Practice may not make perfect, but it will make "as good as possible." By the week of your opening statement, you should have tried out your presentation dozens of times. So many times that you can recite it without notes, without looking at your graphics and so that you are speaking and showing in perfect synchronicity. Practice it until you could sing it.

The bottom line is that to win in litigation you usually first need to win the trial. To do this you’ll need to convince jurors, who are biologically programmed to respond to stories and used to learning by watching TV and surfing the internet, that your position is the better one.  To persuade such an audience, you must communicate on their terms and in their language (to a degree). By framing your case in storylines and traditional themes and by using well-crafted visual support, you will be able to teach and argue from your comfort zone – by lecturing -- but you will provide the jurors what they need to really understand what you’re saying and give them a chance to agree with you.

Jurors who understand you are more likely to agree with you, because they feel that their emotionally based opinions are founded in logic and reason.

Although I’ve strenuously urged you to put a lot of effort into the persuasion track of trial preparation, I’m not suggesting that the other, the law track, should be abandoned or even diminished.  You must dot all your “i”s and cross all your “t”s and address every important fact that may become essential to a favorable appellate decision in your case.  But, you should split your litigation prep into these two tracks early in the case and rigorously develop both for a winning litigation strategy.

Other articles in this series and resources related to mock trials, storytelling and trial preparation on A2L Consulting's site:

Tags: Litigation Graphics, Jury Consulting, Mock Trial, Jury Consultants, Jury Selection, Storytelling

Free Top-50 Articles E-Book! Help Us Celebrate 5000 Subscribers!

Posted by Ken Lopez on Fri, Sep 5, 2014 @ 08:34 AM


A2L Consulting Top 50 Articles cta vertby Ken Lopez
Founder/CEO
A2L Consulting

It may not feel as if it’s been that long, but we’ve been putting out this blog, The Litigation Consulting Report, for just about 3 ½ years. And in that time, we have written nearly 400 posts on dozens of trial and presentation-related subjects, on everything from TED talks to the George Zimmerman trial to voir dire techniques.

Our success, though, is entirely traceable to you, our readers. In these 3 ½ years, we’ve steadily accumulated regular readers, and we’re delighted to say that we just signed up our 5,000th blog subscriber! No one ever pays a dime to read A2L Consulting's blog, of course; we put it out there to educate the public and members of the legal community about trial techniques and the science of persuasion.

To celebrate reaching 5,000 blog subscribers, today we’re publishing this collection of our very best articles to date. By "very best," I mean that our readers have, by choosing which articles they read most, told us which articles they think are the best. On the Web, your clicks are your votes. We’re delighted to receive this feedback from you.

Many of these articles are geared toward lawyers going to trial, while others are more generally focused on how to give a great speech or presentation. For lawyers and others in the legal industry, we generally write about litigation consulting, litigation graphics, trial strategy and trial technology. For those outside the legal arena, we write about visual persuasion, delivering a great speech and how best to prepare for a PowerPoint presentation.

Some of these articles have been read more than 15,000 times, and we credit this readership with having helped The Litigation Consulting Report be named one of the top 100 blogs in the legal industry and one of the top 10 litigation blogs by the American Bar Association. 

I hope that you enjoy these articles. There’s really nothing else like them. And we look forward to picking up another 5,000 subscribers. Click here or on the images below to download your Top 50 A2L Consulting Articles of All-Time Free E-Book!

 

Tags: Trial Graphics, Litigation Graphics, Jury Consulting, Mock Trial, Litigation Consulting, E-Book, Jury Consultants, Presentation Graphics, Persuasive Graphics

7 Reasons Litigation Graphics Consultants are Essential Even When Clients Have In-House Expertise

Posted by Ken Lopez on Wed, Aug 27, 2014 @ 05:00 PM

 

litigation graphics consultants understandable clear storytellingby Ken Lopez
Founder/CEO
A2L Consulting

I frequently encounter trial teams that say things like:

  • "My client has some graphics capabilities in-house."
  • "Our client is a top expert in the field, so they want to explain the technology to the jury in their own way."
  • "My client wants to stand up at trial and use a flip chart to explain the science."

I hear these and other similar statements most frequently in patent cases and other science or technology-focused cases. On their face, there's nothing wrong with these remarks. However, sometimes the client's desire to be helpful interferes with the trial team's ability to try the case effectively. I empathize with these litigators. Nobody likes to say "no" to a client, especially when the desire to be helpful is partially motivated by budget concerns.

When I founded A2L nearly twenty years ago, the only meaningful competition we had in the litigation graphics and courtroom animation industries came from engineering firms who also supported trial teams. A2L's offering was very different. We brought artistic lawyers and litigators in to serve as litigation graphics consultants rather than using engineers.

My rationale was simple. Engineers may be very good at illustrating a point, but they are not especially good at persuasively making a point. For that, lawyers were best suited, and they could also rely on engineering, scientific or technical support from the client and experts as needed. Our model became synonymous with what we now commonly refer to as "litigation consulting."

It didn't take too many years before our competition morphed to look at lot like A2L, and those engineering firms eventually faded away. I believe the same principles apply when evaluating how or whether to use litigation graphics consultants when the ultimate client has significant internal expertise, even artistic expertise, in-house.

Just like those engineering firms A2L used to compete with, when support is offered by in-house resources at the client's firm, it is typically highly expert, highly trained and is useful for facilitating the illustration of a point in the courtroom. However, such in-house expertise, mostly scientists, engineers and technology experts, is not normally persuasion-oriented, and this group is almost always unfamiliar with what a fact-finder needs to see in order to find for the client.

In these situations, instead of an ideal client>litigator>expert>litigation graphics consultants>fact-finder flow of information, you end up with a highly imperfect client>expert>litigator>client>fact-finder flow that results in higher costs and worse outcomes. Here are seven reasons I think a trial team needs help from outside litigation graphics consultants no matter what kind of expertise the client's in-house people can provide.

  1. Well-founded discovery fears: Anytime the client is involved in trial presentation preparations, there is a risk that they will inadvertently generate new evidence that is subject to discovery. Since litigation graphics consultants are working for the law firm, these communications are protected from discovery.

  2. Storytelling assistance: With storytelling recognized as a serious persuasion tool, it is very helpful to work with litigation graphics consultants like A2L and others who are expert in helping trial teams craft a story. See 21 Reasons a Litigator Is Your Best Litigation Graphics Consultant. No matter how expert a client is in the underlying subject matter of a case, they are not likely also presentation experts, persuasion experts or storytelling experts.

  3. Fresh set of eyes: This cliché is one of the primary reasons trial teams use litigation graphics consultants at all. When you've lived with something for a long time as a trial team does and as in-house personnel at the client do everyday, it helps to hear how experts like trained litigation graphics consultants approach the same information.

  4. A forest perspective: Closely related to the fresh pair of eyes concept, a litigation graphics consultant is not burdened with all the details when a case is presented to them. Accordingly, they are able to hear it in a way that is similar to the way a juror will. Usually, neither a trial team nor any one from the client is able to step back far enough to get out of the trees and really see the forest in the same way a jury will.

  5. Mock trial testing: Firms like A2L are not just litigation graphics consultants, but are instead full-service litigation consulting firms. One key component of a comprehensive litigation consulting firm is the ability to conduct mock trials and provide mock trial analysis of the effort by a Ph.d.-level expert. Obviously, this is not going to be an expertise offered by the client's in-house team. Testing of how a judge or jury will react to a case is critical in large cases as are testing the visuals that will be used. See 7 Reasons In-House Counsel Should Want a Mock Trial and 10 Things Every Mock Jury Ever Has Said.

  6. Persuasion science is moving fast: Great litigation graphics consultants are experts in the science of persuasion. I suspect this group of people numbers fewer than a couple of dozen people nationwide. Since your goal at trial is to persuade the fact-finders, you really want every persuasion advantage you can find. It is not realistic to expect that you will find this expertise at the client firm or even inside most law firms for that matter. See Could Surprise Be One of Your Best Visual Persuasion Tools?Font Matters - A Trial Graphics Consultant's Trick to Overcome Bias6 Studies That Support Litigation Graphics in Courtroom Presentations5 Ways to Apply Active Teaching Methods for Better Persuasion, and 8 Videos and 7 Articles About the Science of Courtroom Persuasion.

  7. Masters of PowerPoint: A litigation graphics consulting firm can run circles around mere PowerPoint users as one of our most popular articles, 16 PowerPoint Litigation Graphics You Won't Believe Are PowerPoint, and one of our most popular webinars, Using PowerPoint Litigation Graphics for the Win, demonstrate. This kind of work takes real time to develop. Just because a client can generate some imagery does not mean it can generate persuasive imagery or put it together in a way that is going to align with the decisions we're asking our fact-finders to make. At the end of the day, it is not about pictures, it is about presentation, and those two things are entirely different (if you're an expert).

Other articles and resources related to using litigation graphics consultants on A2L Consulting's site:

Tags: Trial Graphics, Trial Consultants, Litigation Graphics, Trial Presentation, Mock Trial, Litigation Consulting, Demonstrative Evidence, Animation, Storytelling

Planning For Courtroom Persuasion? Use a Two-Track Trial Strategy

Posted by Ryan Flax on Wed, Aug 20, 2014 @ 01:27 PM

 

two track litigation strategyby Ryan H. Flax, Esq.
Managing Director, Litigation Consulting
A2L Consulting

How early in the litigation process should you think about how a jury will react to your case, your client, or you? When should you begin to develop your case themes and storylines? Which is more important to your chances of winning a trial – having a compelling story to tell, or bringing in solid evidence under the law? Here’s an easy one: When you get to the appeal, would you rather be writing the red or blue brief (hint: it’s the red one for respondents)?

What I encourage in this article will seem elementary to the best litigators, but I’m writing from experience when I say that many trial attorneys fail to properly develop the necessary two-track strategy for their case – and lose because of it.

The Two-Track Strategy

What begins at the early stages of case preparation as a single track, which includes general case building, wrapping one’s mind around the full scope of the relevant law, filling in the useful facts where they are needed and identifying the harmful facts, must quickly change to a two-track strategy directed towards both a jury presentation and a solid evidentiary record. (Although this article is focused on courtroom persuasion in jury trials, it also applies well to a bench trial to a judge, an arbitration to a panel, or a mediation before a mediator, which are all forums with an audience of human beings.)

These two tracks clearly do not occupy the same route, but both are essential to winning.

The “Law Track”

Most attorneys, especially those closer to their law school graduation than to retirement, are more familiar with one of these two tracks than the other -- the creation of a solid evidentiary record that is focused on a winning defense on appeal. We’ll call this track the “law track.” That’s because it’s the track that is most heavily burdened with law and facts, which is what we are taught in law school: we were tasked daily with reading and briefing cases and statutes and being prepared to recite legal requirements when called upon by our professors.

Most attorneys approach their cases in this same way – by identifying what the court of last resort has to say about the relevant law, i.e., what must be proved for them to win in the eyes of the court, ordinarily by fulfilling all the “prongs” of the case law. Then these attorneys slowly build up their “garden of weeds” around the case, based on these issues.

These same attorneys focus on every fact they can soak up to decide where it fits into their legal position, they build preemptive defenses relating to any “bad” facts, and they search for hidden facts to support alternative theories of their case. This is very important because it’s the foundation of any case. But it’s not the only or even most important part of building a case for trial.  Moreover, as the “garden of weeds” grows and grows as discovery develops, it’s often very difficult for even the sharpest attorneys to extricate themselves from the weeds and see the bigger picture of the case they’re about to try.

So, in addition to the “law track,” what else should a trial lawyer consider?

The Persuasion Track

The other of the two tracks, and the one that many litigators tend to overlook, is building a case to satisfy a jury (or judge in the event of a bench trial) in a “real life,” non-legal sense. I call this the “persuasion track.”

After all, trying a case in court is something like making an extended elevator pitch for your client, and you need to make sure that the jury wants to hear it and that the jurors will be affected by your pitch in the way you intend.

Often, a litigator will spend too little time, or none at all, on this courtroom persuasion track. Most litigation teams tend to wait until the last minute before trial (often in the war room outside the courthouse) to really put their story together in a way that will be persuasive to jurors.

I have found that during trials (and mock trials), juries tend to find relatively few facts very interesting and “important” and that they then base the entirety of their decisions in the jury room on those few facts. There is a well-known psychological phenomenon called confirmation bias, which is the tendency to interpret new evidence as confirmation of one’s existing beliefs or theories.  After observing many mock trial exercises and seeing the results of dozens of jury trials, I have concluded that most juries tend to decide the outcome of a case in the first few minutes of opening statements and then use facts that fit their version of the case as reasoning in deliberations (the strongest or loudest or pushiest jurors typically triumphing in these deliberations).  Attorneys need to recognize this and to develop their trial story around the key facts onto which jurors will tend to latch.

If you don’t win at trial, you’ve got the short end of the stick when you head to post-trial arguments/motions and appeal. You must carefully develop your case along the persuasion track to plan to be successful on the second, law track.  The question now is, how is this done? That will be the subject of my next article.

*This article updates a 2012 article and lays the groundwork for a more detailed explanation of the two-track strategy in subsequent articles.

Tags: Trial Consultants, Litigation Graphics, Trial Presentation, Mock Trial, Litigation Consulting, Trial Consulting, Juries, Jury Consultants, Trial Preparation

Mock Trials: Do They Work? Are They Valuable?

Posted by Ken Lopez on Tue, Jul 29, 2014 @ 11:31 AM


do mock trials work value juryby Elise Jefferson, M.A.
A2L Consulting

One might think it would be easy to run an experiment that could definitively conclude that mock trials are effective at predicting the outcome of a trial. If one could, it would solidify the value of mock trials in the eyes of litigators and consultants, and it would make mock trials a nearly mandatory part of the trial preparation process.

However, like many areas of trial preparation, mock jury trials are complex and involve an almost infinite number of variables. Because of this, it can be difficult to isolate a single dependent variable for study, while controlling for all of the other factors that may affect an experimenter’s ability to conclude that there is a causal link between the variable that was manipulated and the outcome of the trial.

Therefore, the question remains as to whether or not mock trials are at all effective. After all, if there cannot be a direct causal link drawn between a variable and the outcome, then how can one say that mock trials are worthwhile?

Historically, instead of attempting to address the overall question of the effectiveness of mock trial simulations, psychologists have focused their study of mock trials on what information can be gleaned from the mock trial process. Studies of the process have illuminated the many valuable aspects of mock trial simulations.

The strength of the evidence presented in a trial has been shown to be one of the highest predictors of jury outcomes. Studies have found, not surprisingly, a positive correlation between evidence strength and liability or determinations of guilt (Devine et. al., 2001; Winter & Robicheaux).  As such, it is prudent for attorneys to use the mock trial process to evaluate how a jury or judge receives their evidence, in comparison to the opposing side’s evidence. In psychological research, the definition of “strength of the evidence” varies based on the study, with some studies using the quantity of evidence as the independent variable and others using the quality of evidence (Devine et. al., 2001; Winter & Robicheaux).

A study conducted by Taylor and Hosch (2004) found that the strength of prosecutorial evidence in criminal cases was strongly correlated to the defendant’s likelihood of facing conviction. This finding can be applied to civil trials, because when a jury is determining whether the preponderance of evidence requirement has been met, they will consider the quantity of evidence in order to come to their conclusion. Therefore, litigators can reliably use mock trial simulations to determine whether or not their evidence is strong enough to warrant going to trial in civil cases.

As mentioned in several articles on the A2L website, mock trials can assist in the fine-tuning of story formatting and presentation. There are multiple theories surrounding juror decision making, including both mathematical and explanation-based approaches. The most relevant explanation-based approach focuses on the use of a story model to explain the facts of a case to jurors. The story model states that jurors typically assimilate trial evidence into a story format (Winter & Robicheaux). As such, attorney presentation style should be geared toward making it easier for jurors to put the evidence into the story format. Litigators can test the effectiveness of various story formats through the use of a mock trial simulation. A study conducted by Pennington and Hastie (1988) found that jurors were more prone to decide in favor of the side that used a story format, as opposed to requiring jurors to construct their own story from those told by witnesses presented in a random fashion. Therefore, it is important for attorneys to consider what story best fits the evidence they will be presenting. Mock trials can be used to determine which story jurors are more likely to believe and determine how that story lines up with their knowledge of how the world works. A2L offers a storytelling webinar and an e-book focusing on storytelling in litigation.

The ability to definitively label mock trial simulations as completely accurate in predicting trial outcomes would require extensive research and controlled experimentation. Until such research is undertaken, studies show that mock trials can be extremely helpful in helping attorneys develop a strong case. These simulations can be especially effective in determining the strength of the evidence and selecting the appropriate story format.

Other useful articles related to mock trials, jury consulting and litigation consulting on A2L Consulting's site:

Tags: Trial Consultants, Trial Presentation, Jury Consulting, Mock Trial, Litigation Consulting, Trial Consulting, Trial Preparation, Jury Selection, Psychology, Storytelling

The 13 Biggest Reasons to Avoid Last-Minute Trial Preparation

Posted by Ken Lopez on Thu, Jun 26, 2014 @ 03:00 PM

 

trial preparation litigation consultantsby Ken Lopez
Founder/CEO
A2L Consulting

When someone first works in the litigation consulting industry, the last-minute nature of trial preparation very often shocks them. In my experience, about half of all trial teams spend months or years preparing and testing themes, rhetorical strategies, and different approaches to their visual trial presentation. The other half of trial teams jam all trial preparation into the last month or two before trial.

No one approach is right for everyone, and I have certainly seen both approaches work well. After all if you are forced to prepare at the last minute, you're forced to simplify a case, and that's a good strategy for bench and jury trials. On the other hand, the ability to test and refine elements of the case is now a real science, and any case can benefit from a mock trial, the recommendations of litigation experts and other sophisticated testing.

While both strategies can work, when possible, I think slow and steady trial preparation wins the race more often. Still, we do great work in the last month before trial all the time, and sometimes there is just no other option. For those times when you have a choice, below are 12 reasons why last minute trial preparation might just set you back far enough to warrant starting now.

1. Last-minute costs more. I fear that some litigators believe that fewer hours available means lower cost for trial preparation. The opposite is usually true. Last-minute means your litigation consulting consultants have to use available staff rather than the ideal staff for a project. Often this leads to the use of more expensive staff and higher costs. Further, last minute trial preparation normally means using many more people to achieve the same result within a safe margin of error.

2. Building a good story takes time. We've written quite a bit about storytelling in the courtroom, we've published a book about storytelling in litigation, and we even have a webinar you can watch any time devoted to courtroom storytelling. The connection between storytelling and persuasion is a close one as scientific studies are increasingly proving. Unfortunately, like a fine wine, crafting a persuasive story is not something that should be rushed.

3. Maximizing persuasion in your litigation graphics takes time. Anyone can make a PowerPoint presentation quickly using a template and a few bullet points. However, as I wrote recently, Good-Looking Graphic Design ≠ Good-Working Visual Persuasion. If it's done well, it will be hard to do, require expertise and it will take time. I've written before about how the litigation graphics you don't use contribute enormously to your presentation, and an indicator of a good presentation is how full your trash can of unused litigation graphics is. To get to the point where you can reject some and keep others requires time for the creative process. See also, 16 PowerPoint Litigation Graphics You Won't Believe Are PowerPoint.

4. Getting your trial technology configured takes time. Rush or ignore your technology set up and months of preparation can be for naught. There's no winning back your credibility after a technology flub, a courtroom delay or an outright technological failure.

5. Mock trials really work. Mock trials are not about predicting precisely what will happen at trial as many lesser jury consultants might suggest. Rather, mock trials are useful for understanding how a judge or jury will react to the case, learning how an expert will perform, learning from practice what really works in your approach, learning your ideal juror profile, understanding your opposition's case and for helping to find those levers that will give you an edge at trial. See 7 Reasons In-House Counsel Should Want a Mock TrialWhy Do I Need A Mock Trial If There Is No Real Voir Dire?, 6 Good Reasons to Conduct a Mock Trial and 11 Problems with Mock Trials and How to Avoid Them. We have done a mock trial two-weeks before trial, but it is not an ideal approach. It is normally best to complete your final mock months before trial to give time for analysis and adjustment.

6. You wouldn't play a World Cup game without practicing (Congratulations to the U.S. team for advancing to the final 16 today!), why would you go to trial without some serious practice? See The Magic of a 30:1 Presentation Preparation RatioThe Very Best Use of Coaches in Trial Preparation3 Ways to Force Yourself to Practice Your Trial Presentation, and Practice, Say Jury Consultants, is Why Movie Lawyers Perform So Well.

7. Failing to understand the courtroom layout is a problem. Every court is different. Some will not accommodate an electronic presentation. Some do not easily accommodate a printed trial board. Some judges won't allow either. If you don't know these things in advance, you're setting yourself up for trouble and this all takes time to sort out.

8. There's every chance you'll win or lose in opening, so it's critical to get it right. See 6 Reasons The Opening Statement is The Most Important Part of a Case. Taking time to prepare your opening using modern approaches for drafting an opening statement requires ample lead time. See 7 Ways to Draft a Better Opening Statement and How to Structure Your Next Speech, Opening Statement or Presentation.

9. Too much gut. When trial preparation time is limited, a litigation team has to rely too heavily on its gut instincts and not enough on a scientific analysis of what will work. The good news is that successful litigators have the best people-focused gut instincts I've ever seen. However, great instincts coupled with great analysis, science, an outside perspective and modern trial expertise are always better.

10. You'll never be as confident as when you're well-prepared. Many in the litigation industry are great actors when it comes to feigning belief, indignation, and passion. It's part of the job. However, people can read subtle clues. If you're truly prepared and you know you are, confidence will come through. There's just no substitute for it, and it's not something that can be downloaded Matrix-style.

12. Settlement is less likely. As my colleague Dr. Laurie Kuslansky wrote in Don't Be the 2% - 6 Ways to Encourage Settlement with Trial Prep, there are so many ways to prepare for a case that simultaneously encourage settlement. When you prep a witness and test them and when you run a mock trial and understand strengths and weaknesses of a case, you are necessarily in a strong position to consider settlement. These steps take time.

13. Fewer Choices: When a student skips college, there's no reason they can't be as or more successful than a college graduate, but their options for success are more limited. The same is true with trial preparation. A trial team who waits until the last minute to prepare has fewer choices for how to prepare. I always prefer more choices, and I think most litigators and clients feel similarly.
 

Other A2L Consulting articles relating to trial preparation, litigation graphics and mock trial work:

 

Tags: Trial Graphics, Litigation Graphics, Mock Trial, Demonstrative Evidence, Practice

Mid-2014 Economic Outlook for the Litigation Industry

Posted by Ken Lopez on Wed, Jun 25, 2014 @ 05:05 PM

 

legal industry economics litigation consultingby Ken Lopez
Founder/CEO
A2L Consulting

Over the past couple of Decembers I've written articles offering an economic forecast for the coming year with a focus on litigation. These writings serve both to spread useful information to the legal industry and to help me to plan A2L's budget for the coming year. I thought a mid-year update might be valuable in these challenging economic times.

One might reasonably ask, if the focus is litigation, why would one look at the economy as a whole? First, there is no reliable litigation spending index that I am aware of, and second, my observation is that big-ticket civil litigation largely tracks the economy. When the economy is growing, litigation spending goes up. When the economy is shrinking or there is economic uncertainty (e.g. terrorist threats, massive changes to entitlement programs, election years etc.), cases settle and litigation spending shrinks.

While there are plenty of exceptions, many of A2L clients are large law firms with large corporations as customers. Large corporations are especially reactive to economic shifts. Indeed, for the most part, they are the economy, with Fortune 500 revenues now roughly equal to 78% of U.S. Gross Domestic Product (important note: not all of these revenues count toward U.S. GDP, such as overseas sales, so the actual percentage of GDP is much lower).

For the past 10 years, I've been watching one composite leading indicator from ECRI that does an excellent job of predicting the economy 6-9 months in the future. Last December, I observed that the U.S. economy was generally in a downtrend and that 2014 would look a lot like 2013 for litigation. That's largely held true unfortunately, and the economic news out today showing a massive Q1 contraction (revised way downward) is simply shocking. Perhaps though, there is a bit to be optimistic about.

Looking first at the bad news, in the first quarter (last quarter), we all saw the economy shrink by a historic 2.9%. To put that into perspective, look at the chart below to see the last few points in time we saw a contraction at or worse than today's level.

gdp contraction chart q1

That's right. The first quarter of 2014 is similar to points in 2009, 1991, 1983 and 1981. Yikes. That's pretty bad. To make matters worse, both the Federal Reserve and the Congressional Budget Office are forecasting painfully lackluster growth in the 2% range for the foreseeable future.

The only bright spots I am seeing are a meaningful uptick in the leading indicators and anecdotal evidence that our litigation practice is busy and looks to be setting up for an even busier 2015. We already have quite a number of mock trials being scheduled in 2014 for 2015 trials. Looking at the charts below, you can begin to see the difference between December's outlook and today's outlook. To quickly understand the charts, know that the green line represents a forecast about 8 months in the future from the date below any point. The blue line represents what actually happened at a given point in time in the economy. Even more simply, up is good, down is bad.

Last December 2013:

litigation market forecast 2014 ecri

Now (June 2014)

June 2014 economic outlook

The takeaway from the leading indicators here is this: In December of 2013, a downturn was forecast to continue (green line, upper chart). That downturn is reflected in the blue line in the lower chart stretching from October 2013 to March 2014. A modest uptick is forecast (green line, lower chart) that appears to run from roughly May 2014 through at least the end of the year. Let's hope that picks up steam.

For litigation, I would say things look slightly better than a year ago and much better than they did six months ago. The Q2 GDP number will be one to watch after it is revised a couple of times. I'm sure it will come out positive initially (they always seem to lately). The question will be whether it is revised to be negative later this year. If so, we would have two consecutive quarters of negative growth - an official recession. If that happens, you can bet Fortune 500s will cut back. They'll likely cut back on litigation modestly based on the Q1 number and wait for good news. If Q2 comes in negative, litigation spending cuts will likely get even deeper.

Articles related to the economics of the litigation market, law firm sales, pricing and more on A2L Consulting's site:

Tags: Economics, Trial Graphics, Litigation Graphics, Jury Consulting, Mock Trial, Litigation Consulting, Trial Consulting, Pricing

9 Ways Prepping for Trial is Like Being a Dad of Triplets

Posted by Ken Lopez on Fri, Jun 13, 2014 @ 01:45 PM

 

triplet dad trial prepby Ken Lopez
Founder/CEO
A2L Consulting

Happy Father's Day to all the dads out there.

As a dad of triplets, I have a unique perspective on fatherhood.

Sure, there are many dads with many more kids, but until you've had to learn how to feed three infants simultaneously, how to keep track of three similar-looking people in a crowd, or how to negotiate a quick settlement in a heated dispute over who will wear that special dress over the coming week, you just have not lived the life of a triplet dad.

As I head into Father's Day weekend, I'm thinking about all of the questions I regularly get asked by friends and strangers alike. Are they triplets? Are they all yours? How do you do it?

The 'how do you do it' question in particular reminds me of the work we do as lawyers or as litigation consultants engaging in trial preparation. So, it is with a blend of tongue firmly planted in cheek and with some real-life lessons that I share the 9 ways that trial preparation and trial itself are similar to being a triplet dad.

  1. Storytelling is essential: Just as my six-year-old girls are mesmerized by my nightly reading of Harry Potter, your jury will best be persuaded if you incorporate storytelling into your trial presentation. Here's a free book we've written about storytelling and here is a free webinar on litigation storytelling you can watch anytime.
     
  2. Outsource to experts: Similar to the way my wife and I relied on a triplet baby nurse to help our premature infants get a healthy start in life and to learn to sleep through the night, it is best to rely on outside trial experts who go to trial dozens or even hundreds of times per year for jury consulting, litigation graphics, persuasion consulting and trial technology consulting.

  3. If it's working, don't change it: One thing I learned early on in fatherhood was that if three kids are happy, don't change anything. I often see many parents interrupt a perfectly content child to get them to do something else, and I don't get that unless you disapprove of what they are doing. The same is true for trial preparation. If you are consistently successful using a particular approach, why change it? If you think times are changing and you need to adapt, then do so before you get a bad result. Claiming a free subscription to this litigation blog is a good way to stay one step ahead.

  4. Don't lose your cool: Whether you are parenting or whether you are working with your trial team on the eve of trial, you just can't lose your cool with so much at stake. Here are some good resources that can help: 10 Signs the Pressure is Getting to You and What to Do About It and When a Good Trial Team Goes Bad: The Psychology of Team Anxiety.

  5. Prepare for the unexpected: Just as one must prepare for the unexpected on a family outing, your trial preparation is only good to the degree that you've tested it's weak points. This is why we advocate for highly-structured mock trials. There is no better preparation tool available for a serious litigator. Here are five great resources related to mock trials:
     
    1. 6 Good Reasons to Conduct a Mock Trial
    2. 7 Reasons In-House Counsel Should Want a Mock Trial
    3. 12 Astute Tips for Meaningful Mock Trials
    4. 11 Problems with Mock Trials and How to Avoid Them
    5. 10 Things Every Mock Jury Ever Has Said
       
  6. Scheduled events make for smooth sailing: Sometimes I think both trial preparation and parenting are conducted on too much of an ad hoc basis. My wife works in real estate which can take up large chunks of some weekends. As she does when I am working, I plan activities in the outdoors or at any one of thousands of interesting places to go in the DC-area. The kids have fun, they usually learn something, and I have fun. Contrast this with an ad hoc approach of waking up and waiting until the last minute to decide what to do. It rarely generates good results. The same is true for trial. Perfect planning prevents poor performance. Use our one-year from trial calendar to plan your mock trial schedule and other trial preparation to take an organized approach to trial prep.
     
  7. Use compelling and persuasive visuals: Whether kids, a jury, your colleagues or the general public, learning how to teach and persuade with visuals is critical since more than two-thirds of the people prefer to learn this way. Here are five great resources related to litigation graphics:
     
    1. 16 PowerPoint Litigation Graphics You Won't Believe Are PowerPoint
    2. [Download New E-Book] Using Litigation Graphics to Persuade
    3. Persuasive Graphics: How Pictures Are Increasingly Influencing You
    4. Good-Looking Graphic Design ≠ Good-Working Visual Persuasion
    5. 16 Litigation Graphics Lessons for Mid-Sized Law Firms
       
  8. Don't be afraid to go outside: The picture above is of my kids when my wife and I were headed out for date night recently. The kids are sad to see us go, but as any parent knows, spending time as a couple is critical for parental happiness. For those preparing for trial, the lesson here is to remember to get outside of your daily routine and daily circles when preparing for trial. Talk to litigation consultants, talk to your colleagues and talk to your family about the case. It's amazing how commonsense insights can go overlooked when one is too in their own head.
     
  9. Celebrate success and remember time flies: In the context of trial, my favorite trial teams are those that schedule a thank you lunch, take our people out for drinks or even give us post-trial mementos to remember the great work we did together. The litigators who lead these teams are the best in the business. They know that recognition and a kind gesture creates loyalty for life. In the parenting context, I'll highlight something one of my friends did recently. Seeing his daughter growing up fast, he wrote her a song. Then, in an effort to connect more deeply with her, they flew to Nashville, they rented a studio, they hired a band and they recorded the song. They did something similar for a video. For all the dads out there, but especially those with daughters, the video below is heartwarming and a good reminder to cherish the time you have, celebrate the people around you and make the everyday moments count.

I hope this article provided some useful reminders. Happy Father's Day.

 

Tags: Trial Graphics, Litigation Graphics, Mock Trial, Litigation Consulting, Trial Preparation

    Search

    Loading

    Join 5,200 Subscribers and Get Notified of New Articles Every Week

    Watch Now: Using PowerPoint Litigation Graphics to Win - Webinar

    using powerpoint litigation graphics

    Free Litigation Webinars - Watch Now

    ryan flax a2l litigation consultants webinar recorded


    patent litigation webinar free litigation graphics demonstrative

    Featured E-Book: The Patent Litigator's Guide to Trial Presentation & Trial Preparation

    patent litigation ebook 3rd edition

    Featured Free Download: The Complex Civil Litigation Trial Guide

    a2l consultants complex civil litigation trial guide download

    Free Webinar - Integrating Expert Evidence & Winning Arguments - Watch Anytime.

    expert witness teach science complex subject courtroom webinar

    Nationally Acclaimed - Voted #1 Jury Research Firm and #1 Demonstrative Evidence Firm in the U.S.

    voted best demonstrative evidence consultants

    A2L best demonstrative trial graphics consultants
    best demonstrative evidence litigation graphics consultants

    Download the (Free) Storytelling for Litigators E-Book

    describe the image

    Considering Using a Trial Technician at Your Next Trial? Download this first.

    trial technicians trial technology atlanta houston new york boston virginia

    Featured Free Download: Using Science to Prevail in Your Next Case or Controversy

    using science to win at trial litigation jury

    Featured FREE A2L E-Book: Using Litigation Graphics Persuasively

    using litigation graphics trial graphics trial presentation consultants

    Free Jury Consulting & Trial Consulting Guidebook for Litigators

    jury consulting trial consultants guide

    Timelines Appear In Most Trials - Learn how to get the most out of using trial timelines in this ebook

    trial timelines graphics consultants litigators

    Featured Complimentary eBook - The 100-page Antitrust Litigation Guide

    antitrust ebook a2l litigation consultants

    Featured Complimentary eBook - Leadership Lessons for Litigators and Litigation Support

    leadership lessons litigation law firms litigation support

    Featured E-Book: The Environmental Litigator's Guide to Trial Presentation & Prep

    environmental litigation trial presentation trial prep ebook a2l

    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.


    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.

    Follow A2L Consulting

    Member Red Well Blog
    ABA Blawg 100 2013 7th annual

    • Letter from major law firm re: trial technician/hot-seat services.
      Letter from major law firm re: trial technician/hot-seat services.

    Follow Us on Google+

    A2L on Google+