The Litigation Consulting Report

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:

 

 

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.

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:

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.


  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



  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.



  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.



  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.

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

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

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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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