The Litigation Consulting Report

How Long Before Trial Should I Begin Preparing My Trial Graphics?

Posted by Ken Lopez on Wed, Nov 26, 2014 @ 02:18 PM

 

how-long-before-trial-prepare-trial-graphics-consultantsby Ken Lopez
Founder/CEO
A2L Consulting

"How long in advance of trial should I be working with my trial graphics firm?"

I hear this question in some form quite regularly. Often the person asking it has some idea of what they are planning to do, and they are looking for validation of their plan. However, for those who are genuinely looking for best-practices, I can offer meaningful guidance based on 20 years of advising top litigators and watching top trial teams prepare for trial.

Clearly, a balance must be struck between the likelihood of settlement and the value of preparing your trial presentation long in advance of trial. Prepare too late and you risk not helping your fact finders understand your case, and you surely won't be maximizing your persuasiveness. Prepare too early and you run the risk of doing work that won't be needed if settlement occurs, and you might be focusing too much on your trial presentation and not enough on developing a good record.

So what's the right amount of prep time for trial graphics?

For some cases that we work on at A2L, we will begin graphics preparation and mock trial testing years in advance of trial. Sometimes we start working a potential issue before a single lawsuit has been filed. For other cases, we begin our work only days ahead of trial. The right answer for your case depends on several factors.

  • How much is at stake? If the answer is billions of dollars, a minimum of six months of trial graphics preparation is required, and the best practice approach would be a year or more. If the answer is a few million dollars, a month should be sufficient. If the answer is in between (and most of the time it will be), follow a best-practice approach of nine months of lead time and never dip below three months of lead time.

  • Is this pattern litigation? For pattern litigation, apply the rules above, but measure what is at stake by looking at the overall value of the potential cases combined.

  • Is the subject matter challenging? Some cases are more complex than others. A patent case involving chemistry with twelve patents at issue is much harder for a judge and jury than a single-site environmental contamination case. An antitrust case requiring complex economic testimony about market power is more complicated than a employment discrimination case. If you can't explain your case and why you should win to your grandparent in less than 30 seconds, it's probably complicated. In these instances, follow best-practice schedules, not a minimum allowable time approach.

  • Is it a close call? Be honest. Can you see a way that your opponent can win this case? If the answer is yes, prepare at a best-practice level time frames, not on minimum schedules.
     
  • Do you plan to test your trial graphics with a mock jury or in a mock bench trial? Without the benefit of having tested your trial presentation, it's very hard to know how well you prepared. Testing a case once is helpful, but real value happens when a case is tested multiple times, thus allowing for course corrections from the first event to be tested in subsequent events. If you are planning for a mock trial add three to six months to the trial graphics prep schedule.

A great deal can be achieved at the 11th hour. The litigation consultants, the litigation graphics consultants and the jury consultants on our team can very quickly assess whether best practices are being applied to persuasive storytelling, courtroom communications and trial presentation. Quick changes are possible that yield big results even late in the game. So, in a sense, it is never too late to focus on trial graphics.

Of course, it is probably never too early either. Building a compelling and persuasive story that people care about takes time, and a lot is left on the cutting room floor. There are just some things that cannot be rushed no matter how much talent, experience or intelligence are involved in trial preparations.

You will know that you've prepared enough when you know your presentation is going to work. You know it's going to work because you've tested it in a mock trial, a micro mock event, or by some other method. Great law firms and great in-house counsel favor intense trial preparation early regardless of the possibility of settlement.

Other articles related to trial graphics, litigation graphics and demonstrative evidence from A2L Consulting:

Tags: Trial Graphics, Litigation Graphics, Trial Presentation, Courtroom Presentations, Mock Trial, Demonstrative Evidence, Trial Preparation, Storytelling, Persuasive Graphics

Phone Surveys Aren't What They Used To Be

Posted by Laurie Kuslansky on Fri, Oct 31, 2014 @ 12:59 PM

 

phone-survey-mock-juror-jury-juriesby Laurie R. Kuslansky, Ph.D.
Managing Director, Jury Consulting
A2L Consulting

Research has shown that a variety of individuals are not fully represented in telephone surveys, especially Democrats,[1] the young, nonwhite, and urban voters who can be the hardest for pollsters to reach.[2]

In addition, the migration from landline phones associated with home addresses to portable cell phones unrelated to home addresses compounds the problem of reaching and surveying a representative sample using traditional approaches to phone surveys.

And, not all venues were created equally. Some have more hard-to-reach residents, while some have more cell phones replacing landlines. 

In general, “It has become increasingly difficult to contact potential respondents and to persuade them to participate,”[3] dropping from 36% in 1997 to 9% now willing to participate in phone surveys.

Consequences?

There are many.  To name a few:

Lower representativeness of people willing to respond to phone surveys requires taking additional measures to assure a representative sample, but the options aren’t ideal:

  • Even if you weight the sample, you may simply be giving undue weight to those you reach who may not actually match the ones you missed;
  • It may cost more money to buy additional samples to get a sufficient number of people who represent a particular category.

o    For example, if you are seeking to survey jury-eligible adults and voter registration is one of the requirements, you may have to spend extra money and buy a list of registered voters if not enough people in the normal random digit dialing (RDD) sample turn up eligible to be a juror, assuming they answer the phone and are willing to answer questions in the first place... and 91% on average are not.

  • You may have to spend more money and/or time to reach a reasonable representative sample because of the low incidence rate (i.e., people willing and able to complete the survey). This approach has improved the field rate of responses from the 9% average to 22%,[4] but added time means added cost.

Are people who answer telephone surveys different than people who don’t?

Yes. Among other things, people who engage significantly more in volunteerism and civic activity are more likely to agree to participate in telephone surveys than people who do not.”[5] Intuitively, this makes sense.

What does this mean for telephone surveys of mock jurors?

  • Anecdotally, the kinds of people unwilling to agree to participate in phone surveys are more similar to people unwilling to be on a jury than those who end up as jurors.  Hence, those who respond to surveys are perhaps a better representation of likely jurors than those who do not.
  • Financial information tends to be hard to gather in phone surveys in general.  If that information is pertinent to a jury study, it can perhaps be gleaned indirectly from other factors (education, employment, home ownership, marital status, etc.). Instead of the specific dollar amounts, one might be able to code someone who has more vs. fewer markers of likely affluence vs. poverty;
  • Many work to design the sample of a study by first referring to the latest (2010) Census data and the ACS (American Community Survey) estimates, but they are somewhat off, especially in terms of under-estimating the rise of Hispanics.  The problem is that such information is often the only or best available data. Other options that may be more current are real-estate websites that describe communities as well as anecdotal information from local counsel about a particular jury pool. Putting together the specifications for the polling sample is part of the art and science of polling.

Are There Any Solutions? 

Yes. “A new study by the Pew Research Center for the People & the Press finds that, despite declining response rates, telephone surveys that include landlines and cell phones and are weighted to match the demographic composition of the population continue to provide accurate data on most political, social and economic measures.”[6] 

In addition to the technical issues that depress response rates, one should also consider how easy or hard you make it for someone to reply to the questions. Shorter and easier are better than longer and more difficult.  Questions that require greater effort or too many questions are more likely to end up being asked, but not answered.

Ironically, the data that are missing is that which describe people who don't take surveys or end up making much difference on juries.

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

 

[1] Midterm Calculus - Why Polls Tend to Undercount Democrats by Nate Cohn, The Upshot, N.Y. Times 10/30/14 at http://www.nytimes.com/2014/10/30/upshot/why-polls-tend-to-undercount-democrats.html?_r=0&abt=0002&abg=1

[2] Assessing the Representativeness of Public Opinion Surveys, by Pew Research Center for the People and The Press, 5/15/12 at http://www.people-press.org/2012/05/15/assessing-the-representativeness-of-public-opinion-surveys/

[3] Op. Cit. at Pew

[4] Op. Cit. at Pew

[5] See Katherine G. Abraham, Sara Helms and Stanley Presser. 2009. “How Social Processes Distort Measurement: The Impact of Survey Nonresponse on Estimates of Volunteer Work in the United States.” Am. J. of Soc. 114: 1129-1165. Roger Tourangeau, Robert M. Groves and Cleo D. Redline. 2010. “Sensitive Topics and Reluctant Respondents: Demonstrating a Link between Nonresponse Bias and Measurement Error.” Public Opinion Quarterly 74: 413-432. 

[6] Post-election assessments of poll accuracy by the National Council of Public Polls at http://ncpp.org/files/NCPP%20Election%20Poll%20Analysis%202012%20-%20FINAL%20012413.pdf

 

Tags: Jury Questionnaire, Jury Consulting, Mock Trial, Litigation Consulting, Juries, Jury Consultants, Jury Selection, Phone Survey

The 5 Very Best Reasons to Conduct a Mock Trial

Posted by Kaitlin Rothstein on Wed, Oct 29, 2014 @ 03:59 PM

 

mock-trial-jury-consultants-dc-va-ny-de-pa-nj-fl-tx-ca-ilby Kaitlin Rothstein 
A2L Consulting

Have you ever noticed that when you have someone else take a look at a problem or help edit a document, they find another way to address the issue or find additional areas that can be tweaked?  That is what mock trials serve as, a tool to put additional eyes and minds on a massive set of data and find out where it can be fine tuned and perfected. 

The purpose of the mock trial is to educate the lawyers and clients on the case’s strengths and weaknesses and find where it can be enhanced. If you are on the fence about using a mock trial, think about these important ways that one could enhance your case:

1. Mock trials are very helpful in assisting in the fine-tuning of story formatting and trial presentation

  • Storytelling and proper presentation style for the audience is key for persuasion
  • Learn how to tell the story to properly teach the jury or approach the topic with a judge
  • Allow you to test litigation graphics and themes on an audience to see reaction, level of understanding, and persuasion.
  • See Storytelling at Trial: Will Your Story be Used?

2. Mock trials help you see the case from the other side: in the weeds vs. fresh perspective

3. Mock trials cause you to find gaps in your case (that you didn’t even know were there)

  • You can get feedback from the mock jurors on what they did and didn’t understand, what did and didn’t work, or if there were issues missing in the presentation of the case.
  • See 10 Things Every Mock Jury Ever Has Said

4. Mock trials assist in evaluating case themes and stories

  • The mock jury will give feedback on the case and which themes worked and helped them along in their decisions and which ones were not helpful for your case.  While you may think that each theme is appropriate and key, you may learn that one should be left out or changed.
  • You may also find out which themes are sound but need more explanation, through support (visual or litigation graphic development)
  • This will also give you insight into how your jury will think, process, and determine the outcome of your case. This will help you to tailor how you respond, how you say it to hit home the hardest.
  • See Planning For Courtroom Persuasion? Use a Two-Track Trial Strategy

5. Mock trials allow you to hone your skills

  • There is no such thing as too much practice
  • Practicing to get comfortable with the materials, practicing to get comfortable with the venue, practicing to be well polished and confident but not slick, are all great benefits of mock trials
  • This focused preparation will come in handy during the heat of the day
  • See Practice is a Crucial Piece of the Storytelling Puzzle

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




Tags: Trial Graphics, Litigation Graphics, Jury Consulting, Mock Trial, Demonstrative Evidence, Jury Consultants, Storytelling, Practice, Persuasion

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

Join 5,600 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.

Articles by Category

Follow A2L Consulting

Member Red Well Blog
ABA Blawg 100 2013 7th annual

Follow Us on Google+

A2L on Google+