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The Litigation Consulting Report

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

in-house counsel litigation toolkit e-book free download

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

5 Ways to Maximize Persuasion During Opening Statements - Part 2

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Star Wars

Good men must meet evil with resistance. 

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

We have here a group of terrorists. 

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

The Godfather

Murder. Robbery. Extortion.

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

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

Harry Potter

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

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

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

Part 1 of this series may be found here.

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

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

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

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

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

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

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

The CEO in Litigation: Problems, Solutions and Witness Preparation

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

 

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

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

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

Pitfalls of the CEO as Client

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

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

Pitfalls of the CEO as Witness

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

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

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

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

Why does this happen? Negative Tendencies of the CEO

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

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

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

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

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

  • Insists on always having an answer

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

  • Refuses to spare his or her opinions

  • Fails to speak diplomatically

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

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

Pitfalls of the CEO on Videotape: Seeing Is Believing

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

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

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

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

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

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

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

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

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

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

How to Avoid Video Pitfalls

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

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

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

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

  • Clear the table of distractions.

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

    avoid controlling behavior.

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

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

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

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

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

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

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

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

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

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

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

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

Why Does a CEO Act This Way?

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

The CEO will resist the surrender of winning familiar formulas.

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

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

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

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

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

Too Much of a Good Thing Is Not Always Wonderful

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

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

How to Raise the CEO’s Awareness:

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

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

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

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

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

What the Attorney Must Teach the CEO Witness:

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

  • Choose your battles carefully while under questioning.

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

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

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

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

  • Use a mock jury to pretest these analogies.

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

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

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

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

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

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

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

litigation consulting graphics jury trial technology

 

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

How Valuable is Your Time vs. Litigation Support's Time?

Posted by Alex Brown on Tue, Mar 10, 2015 @ 08:37 AM

litigation-support-value-time-money-qualityby Alex Brown
Director, Operations
A2L Consulting

How do you determine value?
 
This weekend, while my oldest child was in Boston at a gymnastics meet, we thought this would be the perfect time to “renovate” her room back home. My youngest daughter wanted to help but also wanted to negotiate her fee to do so. I came up with many reasons for her to find value in helping: the good of the family, experience, and enjoyment, but none of these provided the proper balance of cost and value to her. Finally I told her that she will be able to destroy something that belongs to her big sister, without any concern for retaliation. This brought her on board, and in the end she not only loved it but she also had the added benefit of being able to tell her sister how much fun it was to destroy her room and how destructive the work needed to be.
 
As litigators, you have a similar job of having to persuade your client about, say, the importance of using expert witnesses or the need to bring on a litigation support team. This is always a delicate conversation because there are so many factors in play; emotions, money constraints, and inexperience, to name a few. For years, the use of expert witnesses has been an easy sell for the most part. But the importance of litigation support (i.e. theming, visual presentations, trial technology/hot seat operators, and mock trial exercises) is not universally accepted, so it can be more of an uphill struggle to convince clients of the need for these things and even harder to persuade them of the value. But why? It’s clearly not the cost, since that normally runs anywhere between .5 percent and 5 percent of the legal fees in a big case. So the sticking point is the need for these services.

Here are a few of the things we hear when discussing our services.
  • It's just PowerPoint, I can do that myself?

  • Just give me a list of universal questions I can ask the jury.

  • We'll just run a mock trial at the office.

  • I think we can bring you in after we know what we want, so it will be cheaper.
As a litigator, do you enjoy having the client sit next to you every step of the way, having the client in meetings when you discuss your next steps, and having them question you on every decision? Of course not. The client doesn’t have the experience, and these questions will drive down productivity. The same is true for litigation support. Perhaps in the back of your mind you think you can do it yourself. But the difference between doing it and doing it right is vast. I would never ask my doctor to fix my electrical problem, I would never ask my babysitter to fix the brakes on my car, and I will never ask my mother to drive at night. Likewise, I would never ask my litigator to do what A2L can do for them. A2L's team is experienced and professional. They can develop more options because they understand the case and are there to support you. They see more court time in a month than most litigators see in a several years. Why wouldn’t you want that level of experience in your corner?
 
David Beldon of iExecuVision International and Vistage once gave me the most important mantra that you as a litigator should incorporate into your life: “I will only do today, what ONLY I can do.”

Other A2L articles and resources related to the role of litigation support, getting value from litigation support and making a case for litigation support services to in-house counsel:

litigation consulting graphics jury trial technology

Tags: Litigation Graphics, Mock Trial, Litigation Consulting, Litigation Support, Trial Preparation, Pricing, Voir Dire, Practice, PowerPoint, In-House Counsel

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

Posted by Ken Lopez on Tue, Mar 3, 2015 @ 01:58 PM

 

experienced-trial-lawyers-litigation-consultantsby Ken Lopez
Founder/CEO
A2L Consulting

I have recently interviewed dozens of in-house counsel from large companies. One subject that continues to come up fascinates me and reflects the changing practice of litigation-focused law.

As my litigator turned litigation consultant colleague Ryan Flax says, "they call it the practice of law, but no one is practicing." That is, with so few trials occurring, the normal go-to litigators at big law firms are just not going to trial like they used to, and thus are not getting the practice that they used to get. Since that's true, where does one look for trial experience now, and will there be a shortage of experienced trial lawyers soon at large law firms? Let me offer some observations and five solutions.

The same trial lawyers I once saw go to trial at least once per year a decade or two ago, now go to trial every few years—at best. In their non-trial time, they are not watching trials since they are not being paid to go watch trials, and they do not usually participate in mock trial practice either. The difference between how often a large law firm goes to trial, let alone a single litigator, and a litigation consulting firm like A2L has never been greater than it is right now.

Whereas a major law firm may go to trial perhaps a dozen or two dozen times per year and a single litigator may go to trial every few years, a single litigation consultant at A2L will be involved in at least a dozen trials and often several dozen trials or more, every single year.

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If you think trial-loving partners at big law firms are unlucky, think of their associates, and ask yourself, how is anyone getting any trial experience any more? That is a question that in-house counsel are beginning to ask. As one noted, the people who now look truly comfortable in front of a jury are often plaintiff's counsel, since they are more frequently in court.

One in-house counsel at a large company poignantly noted about about the plaintiffs' counsel they face, "they have a swagger and body language that comes from experience, and that experience comes off as confidence, and confidence helps win cases." So, if in-house counsel recognizes that an experience gap is growing, what is the solution?

Here are five ideas for maximizing the amount of valuable trial experience on a trial team:

1) Litigation Consultants Add Experience to the Team: In-house counsel no longer expect a law firm to have all of the answers. They expect the involvement of litigation consultants early in a case. With litigation consultants in trial almost full-time, they are a logical add-on both from the trial team's and the client's perspective when considering early case assessment, mock exercises or trial. See, Litigator & Litigation Consultant Value Added: A "Simple" Final Product and 25 Things In-House Counsel Should Insist Outside Litigation Counsel Do and 21 Reasons a Litigator Is Your Best Litigation Graphics Consultant.

2) Learning by Doing Programs: Programs like those offered by NITA and others that allow for practice to occur should be a part of a litigators life-long-learning program every year. See NITA programs here.

3) Watch Trials on CVN: Until the Supreme Court figures out that televised trials will improve trial practice, there is an amazing resource trial lawyers can rely on. The Courtroom View Network captures video from trials and makes it available to watch online. In my view, every major law firm should be subscribing to this service to support the training of their litigators. See CVN discussed here

4) Take Every Opportunity to Run a Mock Trial: In-house counsel support the idea of a mock trial but are often afraid of the time and money investment. That's understandable, and while a multi-panel mock trial will always yield the best data, there are other solutions like a focus group or a Micro-Mock. Each offers a litigator the chance to practice his or her craft. See, In-House Counsel Should Make Outside Litigation Counsel Feel Safe and 7 Reasons In-House Counsel Should Want a Mock Trial and Introducing a New Litigation Consulting Service: the Micro-Mock™.

5) Read this Blog and Others Like it: There are several organizations who are publishing information that is far ahead of traditional CLE's when it comes to litigation. The ABA recognized our blog as one of the top ten litigation blogs, and I have highlighted other blogs helpful to litigators in the past. Subscribe free to this blog here. See, The Top 14 Blogs for Litigators & Litigation Support Professionals and Top 100 Legal Industry Blogs Named by the American Bar Association.

Other articles related to mock trials, getting trial practice and increasing your chances of winning at trial by A2L Consulting:

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Tags: Trial Consultants, Trial Presentation, Mock Trial, Litigation Consulting, Juries, Jury Consultants, Trial Preparation, Practice, In-House Counsel

9 Things In-House Counsel Say About Outside Litigation Counsel

Posted by Ken Lopez on Wed, Jan 21, 2015 @ 03:27 PM

 

what-inhouse-counsel-says-about-outside-counselby Ken Lopez
Founder/CEO
A2L Consulting

One month ago I wrote an article titled 9 Things Outside Litigation Counsel Say About In-house Counsel, and we recently included it in our free In-House Counsel Litigation Toolkit e-book. It is a popular piece read by several thousand people so far. Today's article looks at what is being said by in-house counsel about outside litigation counsel.

I've spent a lot of time talking with in-house counsel from large companies over the past two months. They have a lot to say about outside litigation counsel that I don't normally see reported in the popular press.

I expected to hear that outside counsel need to learn to manage budget and find ways to save money, since that's what I mostly read in legal publications. I heard some of that, but the feedback is more nuanced than simple price pressure, and the feedback speaks to a desire for more creativity from outside litigation counsel.

Of course, since I am most often talking to in-house counsel about jury consulting, litigation consulting and litigation graphics consulting, most of their comments relate to those subjects. With that in mind, here are nine things I've heard in-house counsel say about outside litigation counsel recently:

  1. "We have to stop deluding ourselves. At trial, the law is background noise." Big companies are frustrated with having the law on their side and still losing jury trials. As one in-house lawyer said to me, "it is clear that having a good story is important, as one can be right on the facts and the law and still lose." I agree completely, and we have made this point many times in our Storytelling for Litigators ebook and Storytelling for Litigators webinar. More and more, getting the story right is the focus of what A2L Consulting is hired to do as litigation consultants.

  2. Opposing counsel is often more trial-savvy than our outside litigation counsel. Defense-focused litigators from large law firms rarely go to trial, whereas their opposition in many types of cases like product liability, employment, securities and other case types, go to trial quite often. Plaintiff's counsel are quite comfortable relating to a jury, because they do it so often. Their experience comes across in their body language. Defense counsel must make up for this shortcoming with more frequent and repeated practice. Litigation consultants have an obvious role to play here in conducting structured practice, whether in front of a mock jury or more simply, in front of litigation consultants.
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  3. Gone are the days when one law firm would manage a relationship for the company, so some cost efficiencies get lost as a result. This includes how the company story is told from case to case and understanding the business well enough so that problems are avoided during litigation that might cause much bigger problems elsewhere (e.g. with investor relations or with marketing).

  4. In-house counsel want to hear outside counsel articulate a persuasive story for the case early, not only close to trial. You can add "the client is tired of it" to my list of The 13 Biggest Reasons to Avoid Last-Minute Trial Preparation, because they are. Last minute trial prep makes bills higher not lower, and in-house counsel gets it. See, In-House Counsel Should Make Outside Litigation Counsel Feel Safe

  5. In-house wants to understand how persuasive the opposition's story is. Too often it seems, the strength of the opposition's case is not well described, internalized or properly assessed early enough. See 7 Reasons In-House Counsel Should Want a Mock Trial.

  6. "If a trial team says it has all the answers, it's time to find new outside litigation counsel." Working with litigation consultants makes sense for many reasons but particularly because of the rarity of trial for most litigators vs. the incredible frequency of trials for litigation consultants. In-house understands this point much more so than I imagined before interviewing so many recently. See Accepting Litigation Consulting is the New Hurdle for Litigators.

  7. In-house counsel wants to offer input on the story told at trial. Too often, in-house counsel gives feedback but, as one said to me, "some words may change, but the book stays the same." The benefit of practice with in-house included early is something I've heard over and over.

  8. Most litigators get locked into their approach, and what won cases thirty years ago, may not work today. We like trusted advisors who help us win, but they must prove that they change with the times. See, 19 Ways in Which the World Has Changed Since 1995.

  9. Litigation budgets are often best addressed through early case assessment. By analyzing whether a case should advance toward trial early on, money can be saved by settling early. Creativity here is especially important and is often hard to find. I think the work of author Dan Pink describing the role of creativity in the modern workforce is especially relevant here. See, Daniel Pink, Conceptual Thinking and Trial Consulting.

Other articles and resources related to the work in-house counsel, outside litigation counsel and litigation consultants do together from A2L Consulting include:

in-house counsel litigation toolkit e-book free download

Tags: Litigation Graphics, Mock Trial, Litigation Consulting, Jury Consultants, Trial Preparation, Pricing, Storytelling, Practice, In-House Counsel

No Advice is Better Than Bad Advice in Litigation

Posted by Laurie Kuslansky on Fri, Dec 26, 2014 @ 11:27 AM

 

no-advice-better-than-bad-adviceby Laurie R. Kuslansky, Ph.D.
Managing Director, Jury & Trial Consulting
A2L Consulting

Often, celebrities and other litigants have entourages, a circle of advisors, and all kinds of ties with other people, so it is understandable that they will turn to them for advice when engaged in legal battles. The problem is that often those people have little to no experience or expertise dealing with this arena, but are chock full of advice, are motivated to jockey for attention and control, know which buttons to press with their friend/client to gain their consent for a course of action, but have trouble admitting they need help, may feel threatened to do so, and thus, misguide the litigant. We have seen this phenomenon many times with the same result . . . bad.

In an infamous criminal trial of a famous football star, the best and brightest jury consultants, armed by lots of good data, advised the prosecution and provided a solid and reliable trial strategy based on decades of experience plus case-specific mock-trial testing. Was it accepted? No. What was? The advice of a psychiatrist neighbor with no such expertise, prior (different) experience, and personal opinion. Result? Bad.

In a lesser known matter, a bookworm-style intellectual property attorney with no jury trial experience turned away mock-jury testing and the expertise of a jury consultant. He concluded they were outside his normal comfort zone of operating, and instead, replaced them with the advice of someone who saw things “his” way – i.e., ignored how real people decide these cases and what they cannot understand or use as evidence because they lack the cognitive ability, interest, or motivation to do so, and relied on dry, tedious, technical information and a deep understanding of the guiding legal principles to guide the jury’s decisions – which as warned and predicted all failed at trial. Result? Bad.

A well-known movie producer had a number of people hanging on to his coattails, enjoying the reflected glory of being in his inner circle. A new group of wannabes wanted to garner his attention and become his new entourage, replacing his old one. How? By claiming the others were mismanaging his business and that his best friend and financial supporter cheated him out of money. They knew that a great way to attract the attention of an artist is to alert them to the notion that they are being cheated out of money. And so, to no good avail, the producer sued his best friend. Result? You guessed it.

If your best friend was a dentist, and you had heart problems, you might ask your friend for a referral, but would you take their advice over a well-regarded cardiologist?! Of course not, but we see this pattern in litigation all the time. When heeding someone’s advice, make sure they are coaching you or your client based on more than your relationship, but on information, experience and expertise. If not, you may as well treat your heart with a dentist.

Other A2L Consulting articles related to high-profile clients, jury consultants and litigation consulting:

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Tags: Trial Consultants, Jury Consulting, Mock Trial, Litigation Consulting, Trial Consulting, Jury Consultants, White Collar, Witness Preparation

Why You Did Not Use a Mock Trial [One-Question Survey]

Posted by Ken Lopez on Wed, Dec 17, 2014 @ 01:35 PM

 

reasons-did-not-conduct-a-mock-trialby Ken Lopez
Founder/CEO
A2L Consulting

Most would agree that mock trials are not conducted as often as they should be. After all, why wouldn't you want to learn what kinds of jurors you will see on your jury, understand what works about your case and what doesn't, understand what works about your opponent's case and what doesn't, gauge your settlement position, provide outside counsel a chance to practice and gain many more benefits all for a tiny fraction of the cost of what is often at stake?

Is a mock trial mandatory? Of course not—and neither is having someone else cut your hair. Both are entirely optional expenses, but both are very good ideas.

So why might a mock trial not be conducted? In my 20 years of observing trials and trial preparation, I have heard many good reasons and many bad reasons. Sometimes the rationale for not conducting a mock originates in the in-house department, and sometimes it comes from outside counsel. However, there are plenty of situations where both inside and outside counsel knew they would benefit from a mock and both, for one reason or another, chose not to conduct one. For most, the question comes down to budget. A2L offers mock exercise solutions starting from as low as $10,000, however four-panel multi-day mock trials always cost six-figures but pale in cost in comparison to the potential upside or downside of the case.

Rather than speculate why people don't conduct mock trials, I thought I would ask. Below is a one question survey that asks, "For a recent case where a mock trial would have helped but no mock trial was conducted, what was the biggest reason you didn't conduct one?" 

Create your free online surveys with SurveyMonkey , the world's leading questionnaire tool.

 

Other information and resources about mock trials, jury consulting and litigation consulting on A2L Consulting's site:

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Tags: Trial Consultants, Jury Consulting, Mock Trial, Litigation Consulting, Litigation Management, Trial Preparation, Practice, Survey

In-House Counsel Should Make Outside Litigation Counsel Feel Safe

Posted by Ken Lopez on Fri, Dec 5, 2014 @ 11:04 AM

 

in-house-counsel-penny-wise-pound-foolish-pleasing-affraid-to-ask-supportby Ken Lopez
Founder/CEO
A2L Consulting

Earlier this week I published, 25 Things In-House Counsel Should Insist Outside Litigation Counsel DoI realized something important while writing that article and while participating in follow-up discussions with readers and colleagues. It's an important realization as I think recognition of it might just lead to better litigation results and money savings for in-house counsel.

Here it is. Because of the current state of the relationship between most in-house counsel and outside litigation counsel, outside counsel are not asking for budget for everything they believe would help win a case. This is leading to short term savings and longer term major expenses.

You see, outside litigation counsel really want to please in-house counsel. And why shouldn't they? In-house counsel pays the bills, they ARE the client, and they represent the holy grail—the hope of a longer and broader legal relationship that pays dividends for the relationship/billing partner for years to come.

So, what's wrong with having a service provider try to please you? We could all use more of that, right? Isn't that just good customer service?

Here's the problem. Outside litigation counsel is, ideally, not acting as a mere service provider. Rather, they are acting as, and please forgive the cliche, a trusted advisor. Unfortunately, I think most outside litigation counsel feel like the balance between trusted advisor status and mere service provider status has tipped a bit too far toward service provider status in recent years.

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When you are a service provider, your motivations are a bit different than when you are a trusted advisor. As a service provider, your goal is to make the customer happy and preserve the business relationship. You wouldn't want your doctor to only tell you what you want to hear. You want them to tell you what you need to hear. The same is true for your outside litigation counsel. But how can we expect outside litigation counsel to tell us the truth if they don't feel safe doing so.

I think most outside litigation counsel are scared. They're scared of losing business. They're scared of RFPs. They're scared of asking for what they honestly believe they need. And I think it is negatively affecting litigation outcomes, and I think it is mostly up to in-house counsel to solve this.

My mentor recently said, if you're not getting what you want from a relationship, your partner is likely not experiencing you as safe. It's true in any relationship, of course. Translated for litigation, if you're not getting the litigation outcomes you seek, it may be because outside litigation counsel does not feel safe asking you for the tools they need.

So, if you are in an in-house counsel role, ask yourself, are my litigators truly comfortable telling me, let alone asking for, what they need? Are they talking to me about mock trials, litigation consultants, and litigation graphics created based on persuasion science rather than the mere gut instinct of an inexpensive twenty-something graphic artist?

If they are not telling you that they need these things, it's likely either because they are afraid to ask or because they don't know that they should be asking. Either way, it's probably going to be up to you as in-house counsel to solve this problem, and my article from earlier this week about the in-house/outside counsel relationship provides a good framework for discussion.

Other articles by A2L Consulting focusing on litigation consulting, in-house counsel and value:

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Tags: Litigation Graphics, Mock Trial, Litigation Consulting, Litigation Management, Pricing, Leadership, In-House Counsel, Alternative Fee Arrangements

25 Things In-House Counsel Should Insist Outside Litigation Counsel Do

Posted by Ken Lopez on Tue, Dec 2, 2014 @ 04:00 PM

 

in-house-counsel-outside-litigation-counsel-requirementsKen Lopez
Founder/CEO
A2L Consulting

The relationship between in-house counsel and outside litigation counsel has changed dramatically over the last 20 years. Technology and the Internet have been the driving forces for many of the changes. 

Technology growth has forced outside litigation counsel into a quasi-technology consultant role in the way they deal with e-discovery and case management. Technology has made litigation more complex as the underlying subject matter of cases has become more complex. The availability of information via the Internet has made in-house counsel a more savvy shopper and a better informed manager. Technology has surely changed the way outside litigation counsel tries cases and has forced trial counsel to be trial-technology savvy. There are many more examples of how the fast flow of information is altering the balance of power between in-house and outside counsel, but you get the idea. Reflecting these changing times, the 25-point list below offers useful best-practices that in-house counsel should be demanding from outside litigation counsel.

  1. Alternative fee arrangements. At A2L, we have all but left the billable hour behind as a measurement of delivering value—mostly because it does not measure value at all. In July of 2013, we wrote about the 12 different alternative fee arrangements we use at A2L as a guide for anyone selling professional services. Not all clients want AFAs but they probably should. There's no better way to align the value of services delivered to the size of the problem solved.

  2. Mock trials. As we wrote in 7 Reasons In-House Counsel Should Want a Mock Trial, there are so many good reasons to conduct a mock trial and almost no reason, except for budget, not to. Dollar for dollar, I think a mock trial is the single best investment in-house counsel can make in trying to win a case. Since outside counsel may be hesitant to request budget for it, it may very well be up to in-house counsel to recommend it.

  3. Story development. Although many great trial attorneys used the technique 20 years ago, the science of why storytelling helps persuade was not fully understood. Today, it is recognized as essential for trial. See, Storytelling Proven to be Scientifically More Persuasive. All trial counsel should be able to articulate a clear story well before trial that succinctly explains the case and why your side should win. See also, 14 Differences Between a Theme and a Story in Litigation and 5 Essential Elements of Storytelling and Persuasion.
    A2L Consulting's Storytelling for Litigators 3rd Ed E-book


  4. A story that people care about. Not just any story will do. Trial counsel must develop a compelling story that both judge and jury will care about. See:

    1. Free webinar: Storytelling for Litigators
    2. 5 Keys to Telling a Compelling Story in the Courtroom
    3. Every Litigator Should Watch Scott Harrison Deliver This Presentation
    4. Your Trial Presentation Must Answer: Why Are You Telling Me That?
    5. Free download: Storytelling for Litigators E-Book 3rd Ed.

  5. Open practice. In addition to a mock trial, good trial counsel will want to schedule structured practice sessions and invite in-house counsel to attend. See 3 Ways to Force Yourself to Practice Your Trial Presentation and Practice is a Crucial Piece of the Storytelling Puzzle.

  6. Accept coaching. In this era where the highest profile litigators only go to trial rarely, using a coach, usually in the form of a litigation consultant is a best-practice. These professionals spend most of their time preparing for trial and in the courtroom, perhaps working on dozens of trials per year. See, Accepting Litigation Consulting is the New Hurdle for Litigators and Working in Parallel vs. Series with Trial Presentation Consultants.

  7. Abandon the last-minute when it comes to trial. The era of the litigator who swoops in at the last minute and tries a case, occasionally needing to be reminded of the client's name, is largely over. In-house counsel must be prepared to communicate the expectation that a case should be trial ready well before trial. See, The 13 Biggest Reasons to Avoid Last-Minute Trial Preparation.

  8. Use technology well. Litigators should be so well-practiced in their use of trial technology that it should look seamless. Missteps in the use of technology destroy credibility, and they must be anticipated and avoided. See:

    1. 5 Tips for Displaying Documents Well at Trial [CVN Video]
    2. 24 Mistakes That Make For a DeMONSTERative Evidence Nightmare
    3. Will Being Folksy and Low-Tech Help You Win a Case?
    4. 6 Tips for Effectively Using Video Depositions at Trial
    5. 12 Ways to Avoid a Trial Technology Superbowl-style Courtroom Blackout

  9. Use trial technicians well. There may come a time when trial counsel controls their presentation just as on-air meteorologists do with a simple clicker, but we're not there yet. Courtroom presentations are dynamic and unpredictable. If trial counsel is to look like a professional, they must learn how to work with a trial technician well. See:

    1. Making Good Use of Trial Director & Demonstratives in an Arbitration
    2. Why Trial Tech ≠ Litigation Graphics
    3. 11 Traits of Great Courtroom Trial Technicians
    4. 5 Tips for Using TrialDirector and Trial Technicians Effectively
    5. Download: Finding and using the best trial technicians

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  10. No more surprises. I used to have a competitor that would low-ball every bid, bill 3x at trial and then write down their invoice by 10% when a post-trial dispute arose over the invoice. Once one of the top brands in the industry, they now lay in shambles, not surprisingly. We have always lived by a no-surprises model when it comes to pricing and billing. It is reasonable to insist on the same from outside counsel and legal consultants like us. See, 17 Tips for Great Preferred Vendor Programs.

  11. Post-trial lessons-learned sessions. Elite organizations spend lots of time planning and lots of time debriefing after the mission. Litigation should be no different. See, 9 Questions to Ask in Your Litigation Postmortem or Debrief.

  12. Be upfront about trial costs. To be fair, I've said this more than one way already, but it is worth emphasizing. If your vendor or outside counsel can't tell you what it is going to cost, how much experience do they really have? Very often, it is the job of in-house counsel to make outside counsel comfortable spending what is needed to win. Trust me, they're often afraid to ask. See, Learn How to Get Value in The New Normal Legal Economy.

  13. Proof they are staying current. How do you know your outside counsel is staying current with modern best-practices? If they are trying cases just like they did 20 years ago, they are going to see diminishing returns. Insist on proof that they are improving their game outside of simple CLEs and the like. See, 19 Ways in Which the World Has Changed Since 1995.

  14. Research your judge. No longer do we have to rely on vague tips from local counsel. Outside counsel should understand what really makes a judge tick and exploit that knowledge. Ask them what they know and push them to learn more. See, 21 Ingenious Ways to Research Your Judge.

  15. Anticipate non-legal implications. For litigators to really be trusted advisers, they need to demonstrate that they understand that things said in a courtroom can have a profound implication for the company, from reputation to stock price. Some day, cameras will be allowed in all courtrooms, and this will only accelerate the need to take a more global view of the client. Make sure your outside litigators understand the big picture. See, 10 Web Videos Our Jury Consultants Say All Litigators Must See.

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  16. Really prepare the witnesses. Whether expert or fact witnesses, all witnesses should be professionally prepared. There is simply too much riding on their testimony. Litigation consultants and jury consultants may be better positioned to do this than lawyers at the firm. See:

    1. Witness Preparation: Hit or Myth?
    2. The Top 14 Testimony Tips for Litigators and Expert Witnesses
    3. Witness Preparation: The Most Important Part
    4. 7 Things Expert Witnesses Should Never Say
    5. 7 Smart Ways for Expert Witnesses to Give Better Testimony

  17. Work well with others. Litigators must also be leaders, and they must set an example for how to behave. They are representatives of the company and must remember this whether in an elevator, at a restaurant or on a subway. See, 5 Tips for Working Well As a Joint Defense Team10 Signs the Pressure is Getting to You and What to Do About It, Download: Leadership for Lawyers.

  18. Don't push boundaries. Whether ethical, legal or business boundaries, ask your outside counsel not to get too close to any boundary. In recent years we have seen such decisions bring down major law firms, and you don't want a scandal to land on your doorstep.

  19. Don't say "my client." Modern litigators should know how to personalize the company and tell the company story in the best way possible. See, 7 Things You Never Want to Say in Court.

  20. Don't melt down. I've seen plenty of partners melt down at trial, and I have seen plenty of partners sleep soundly on the eve of trial. A meltdown is usually a sign of poor preparation, and it is most certainly the role of in-house counsel to ensure that preparation is done early and done well. See, When a Good Trial Team Goes Bad: The Psychology of Team Anxiety and 5 Signs of a Dysfunctional Trial Team (and What to Do About It).

  21. No condescension about what they know. Of course trial counsel knows more about trying a case than in-house counsel. If they didn't, you wouldn't need them. However, the best outside litigation counsel include in-house counsel in the process of trial preparation and never talk down to the client.

  22. Body language and appearance. Outside trial counsel should understand the impact of body language and how best to appear in the courtroom. Even tie color makes a difference. See, 7 Videos About Body Language Our Litigation Consultants Recommend and Litigation Graphics, Psychology and Color Meaning.

  23. Use litigation graphics well. Yes, we have written the book on this topic, and A2L was once again just voted #1 demonstrative evidence consultants. This litigator-authored article describes the state-of-the-art thinking surrounding litigation graphics: How I Used Litigation Graphics as a Litigator and How You Could Too.

    using litigation graphics courtroom to persuade trial graphics a2l consulting

  24. Likability. In the courtroom, it matters a great deal that people like you. Maker sure that your outside counsel knows how to appeal to judge and jury. See, Like It or Not: Likeability Counts for Credibility in the Courtroom and 5 Things Every Jury Needs From You.

  25. Subscribe to this blog. Really, it may be the easiest (and certainly the cheapest) way to know that your trial counsel is staying current with best practices. Here's a free subscription that you can share.

In-house counsel, I can tell you that based on hundreds of conversations I have had over the years, outside litigation counsel is scared to make you unhappy. This means they hesitate to ask for budget for things that will help win the case. Part of your role has to be to insist on supurb trial preparation as you have the most riding on the outcome. Help guide outside counsel, and make them comfortable asking for the tools they need to win. You'll win more cases if you do.

 

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Tags: Trial Technicians, Litigation Graphics, Mock Trial, Litigation Consulting, Trial Technology, Trial Preparation, Storytelling, In-House Counsel

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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.


ryanflax blog litigation consultant 

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


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

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