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The Litigation Consulting Report

9 Reasons Litigation Consultant is the Best Job Title in Litigation

Posted by Ken Lopez on Thu, Jan 28, 2016 @ 03:39 PM

litigation consultant trial consultantby Ken Lopez
Founder/CEO
A2L Consulting

I am very proud of A2L Consulting's role in the creation of the job title "litigation consultant." Over the years, this position has evolved somewhat, but it remains substantially similar to the way we designed it in the mid-1990s.

Back then, it was my full-time job. Today, I still get a chance to do parts of it now and then, and after 20 years, I believe it's the best job in litigation.

The role of a litigation consultant is to work with trial teams and help them develop the best visual and rhetorical strategies for persuading factfinders at trial, ADR, or in any dispute. In the 1990s, no one but the attorney-consultants at A2L called themselves litigation consultants and few if any firms offered a similar service.

Now, litigation consultants are generally litigators themselves often hailing from a large law firm. They spend most of their time directing the development of persuasive PowerPoint presentations, working with jury consultants in mock trials, and helping top litigators more effectively tell their stories at trial.

As we've written before, this role is becoming increasingly important in the litigation industry where even top litigators make it to trial only once every few years. By contrast, a litigation consultant may see the inside of a courtroom dozens of times or more per year.

If you love litigation like I do, this is the best job in the world. Here are nine reasons why I think this is so.

  1. Trial. Let's be honest, the best part of litigation is not the endless years of paper pushing in advance of trial, it's the theater of preparing for and performing at trial. A litigation consultant skips all of the pre-trial tedium and gets to engage in all the best parts of litigation. See, 11 Things Your Colleagues Pay Litigation Consultants to Do.

  2. Creativity. When we survey our clients about our litigation graphics consulting, they always tell us that the creativity we bring to the trial team, both visual and rhetorical, is what they value most. During law school, I taught myself computer animation as a hobby. Odd, I know, but clearly there was an artist who was trying to burst out. Whether you're a fine artist, an animator, or just have a strong creative bent, there are few things more satisfying than working hard to explain complicated materials to lay people using pictures and a few sound bites. SmartCEO Magazine quoted me saying, "We look like an ad agency — the classic view — everyone gathers. In the legal world, we call it a focus group, but it’s really a brainstorming session and the project group presents the case and gets feedback. Someone might say, ‘That doesn’t make sense, what are you talking about?’” Lopez makes it clear that team keeps working until no one asks that question." See, 21 Reasons a Litigator Is Your Best Litigation Graphics Consultant.

  3. Atmosphere. Some law firms are great to work at and many of those firms are our clients, but from what most Biglaw partners tell me, most law firms are lucrative places to work but are not necessarily fulfilling places to work. A litigation consulting firm, however, is typically a relaxed and creative atmosphere. It operates like a business rather than a quasi-partnership with a confusing leadership structure. While we work hard, we enjoy our time a great deal as well. See, Top 7 Things I've Observed as a Litigation Consultant.

  4. Appreciation. Our clients genuinely appreciate us, and their clients do as well. We regularly receive testimonials, gratitude, and even presents from our clients. See, 10 Things Litigation Consultants Do That WOW Litigators.

  5. Impact. We know how much impact we have because we see it all the time. Judges go on the record praising our work, and jurors often comment on the quality of work (or lack thereof exhibited by the opposition). I find this very rewarding. See, 10 Types of Value Added by Litigation Graphics Consultants.

  6. Thought-Leadership. This blog has been named among the best in litigation by the American Bar Association. It is the primary way we distribute our thought-leadership in the industry, and I think we are clearly in the top-tier of anyone doing so. I believe this is why several hundred people sign up for a free subscription to this litigation and persuasion blog every month (we're approaching 8,000 subscribers now). See, Why We Blog (and Maybe Your Firm Should Too).

  7. The people in the office. Working in an environment where Ph.D. psychologists, award-winning artists, technology experts, and litigators all collaborate is wonderful. I often joke that somehow we've managed to get all the people who didn't hang out together in high school to row in the same direction. See, 5 Surprises in Going from IP Litigator to Litigation Consultant.

  8. Winners and losers. If you love litigation, then you probably love competition. The wonderful thing about competition in the courtroom is that there is normally a clear victor. Our victories typically make up a signficant portion of the top victories of the year listed in various legal publications. See, $300 Million of Litigation Consulting and Storytelling Validation.

  9. Smart people. I believe that we are all the average of the 10 people we spend most of our time with. Working with litigation partners from Biglaw is an amazing privilege. These are some of the smartest people in the world, and many have made me a more effective person.

I think people who love their work usually do great work. Hopefully, you can tell that I love this role in our organization even if I spend most of my time in management, sales, and marketing these days. Both roles are jobs that I love.

If you think being a litigation consultant is something you might like to do, we happen to be expanding our litigation consulting team in our DC headquarters office. The right person is usually a litigator with Biglaw experience, a creative side, and someone who is looking for the lifestyle change that working outside of a law firm can provide. Follow any of these links on LinkedIn, Law360, or Craigslist to apply for the position.

We're hoping to fill the position during February 2016, so hurry.

Other articles related to being a litigation consultant, the value of litigation consulting and the business of litigation consulting generally include:

litigation consulting graphics jury trial technology

Tags: Trial Graphics, Litigation Graphics, Jury Consulting, Mock Trial, Litigation Consulting, Trial Consulting, Storytelling, Persuasive Graphics, Visual Persuasion, Persuasion

I’m Right, Right? 5 Ways to Manage Juror Bias

Posted by Laurie Kuslansky on Tue, Jan 19, 2016 @ 09:04 AM


juror bias confirmation bias availability bias cognitive biasby Laurie R. Kuslansky, Ph.D.

Managing Director, Jury & Trial Consulting
A2L Consulting

The most powerful thing that shapes how jurors end up deciding a case is not you but the jurors. The baggage they bring to court, not what happened once they got there, holds the most sway. Assuming otherwise is like trying to change the political persuasion of a diehard party-line voter ... in the voting booth. The odds are better that their minds will change the evidence than that the evidence will change their minds.

These preconceptions and biases are resistant to change. Understanding two powerful cognitive phenomena relating to their biases can help you assess jurors more astutely and use your precious few strikes more effectively during voir dire. It can also help you tailor your trial strategy based on who is left on the jury.

Cognitive biases such as the following can systematically impact people’s decision-making. The pairing of the following two cognitive biases can be powerful determinants of jurors’ reactions to a lawsuit: confirmation bias and availability bias.

1. Confirmation bias is the tendency to search for, gather, interpret, focus on and remember information in a way that confirms one's preconceptions [PDF]. It results in people favoring information that confirms their pre-existing beliefs or biases. When they encounter an example supporting their existing belief, they place greater importance on the “evidence” supporting their belief, while discounting examples that do not support their belief, such as evidence that is not useful to proving their predetermined conclusion. In deliberations, this is likely to show up as posing questions leading toward the conclusion they already believe. If they happen to be the foreperson, or a leader, they may even paraphrase the actual verdict questions into wording that leads toward the result they believe and seek. This bias goes beyond simple selective attention; it involves actively filtering and using information, finding a conclusion first and seeking helpful evidence second. It’s like saying, “I know the answer. What’s the question?” Hence, their belief is the gate and you must get past “Go.” It trumps your evidence because information incongruent to their already-existing belief won’t get past the gateway to their thinking, memory, recall or decision-making. Hence, while you may be talking and showing, they aren’t listening or watching – unless you understand their belief first, incorporate it into your thinking, and then figure out how to make your case sync with it. Otherwise, your words fall on deaf ears.

The real 1-2 punch is the combination of confirmation bias with availability bias:

2. Availability bias or heuristic (mental shortcut) refers to the fact that vivid events affect decision making that relies on memory more than other events do. People tend to rely on the most immediate examples of an event and overestimate their probability since memory is biased toward events that are more unusual, more emotionally charged [PDF], more recent, and observed personally. The media reinforces this bias by reporting on more extreme events, enhancing their prominence (availability) in memory. As a result, people overestimate the likelihood of such events, such as carjackings or shark attacks.

Ask people outside the legal profession of any cases they know or remember, and invariably, the “McDonald’s Hot Coffee” case comes to mind and is the basis for believing that lawsuits are frivolous and damages are outrageous (although most people do not know the evidence or law in that case).

Transport this phenomenon into the courtroom, alongside confirmation bias. Imagine that certain evidence is presented in a dramatic, vivid fashion and is emotionally laden, on the backdrop of a mostly ho-hum trial, and is referred to by various witnesses. It will stand out from the rest, be remembered better, and likely have more traction than the rest. It is not just the phenomenon of cumulative evidence pointing to the same thing. It goes further – leading some to believe that the event is more common than it is.

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

Depending on which side of the courtroom you sit, this can be good or bad news. What to do about these biases?

  1. Understand them.

  2. Explore and consider what likely jurors may believe and reverse-engineer your trial strategy and story so they are consistent with this.

  3. Make sure to explore these as best as you can in voir dire – i.e., their pre-existing beliefs and experiences that may relate to your case or client adversely.

  4. Understand their agenda. It is more potent than yours.

  5. Consider how to make your key points or events more or less memorable, depending on your case goal. If possible, consider how to make them more vivid, unusual, repeated – or not. Perhaps you need to find a way to “bury” such a negative event by neutralizing it among others, doing your best to make it ordinary.

By understanding your triers of fact better, you can make extraordinary use of ordinary facts.

Other articles by the trial, litigation, and jury consultants at A2L Consulting discussing juror bias and the persuasion of jurors generally:

jury consulting trial consulting jury research

Tags: Trial Consultants, Jury Consulting, Mock Trial, Trial Consulting, Juries, Jury Consultants, Trial Preparation, Jury Selection

Why Litigation Graphics at Mock Trials Make Sense

Posted by Laurie Kuslansky on Tue, Dec 8, 2015 @ 02:39 PM

litigation-graphics-mock-trial-focus-groups.jpgby Laurie R. Kuslansky, Ph.D.
Managing Director, Jury & Trial Consulting
A2L Consulting

Do movie trailers include the most boring part of a movie? 

Of course not. They include something to grab your attention quickly and show what the movie is about and why you should be interested in it in a few words and images. In that brief window, many viewers decide if it is worth seeing or not.

An opening statement is similar. A common mistake is to assume that more equals more. It does not. A great presenter brings forth a winning story, including why the audience (jury) should care, and thematically gets and keeps their attention without excess words. The idea is to assemble the information into eye-catching visuals that do the work for the jury, take the guesswork out of their conclusions and aren’t just a list of words in a PowerPoint being read aloud. There is no better way to summarize, simplify, organize, condense, and contextualize information than with good litigation graphics.  

That holds true at mock trials as well. A mock trial requires condensing presentation material to fit within strict time limits. Mock jurors are burdened with receiving, understanding and remembering a lot of information in a little time. Graphics help them do so, so that their interaction with the facts is not random – based on limited information, cognitive overload and an overtaxed memory – but based more closely on the key facts, issues, legal questions and the law that the sponsor of the mock trial is hoping to test.

what-is-a-patent-powerpoint-graphics-aid-litigation-graphicWinning a rigged contest isn't worth it.

A key consideration for conducting a worthwhile mock trial is to ensure balanced presentations for both sides or risk distorting the outcome because the deck was stacked in your favor. An unearned “win” is a false positive. It is better to do no jury research than to do bad jury research. Part of what is required to perform good mock jury research includes presenting good litigation graphics, for both sides, by as good a presenter for the opposing side as yours, taking equal presentation time for both sides, and showing unlikable evidence as a minimum starting point to pressure test your case.  

Being penny-wise, but pound foolish isn't worth it, either.

Anyone who rejects litigation graphics at a mock trial for budgetary or other reasons is probably litigation amateur. Top-tier litigators wouldn't dream of doing it that way at a mock trial. If money is the barrier, there are many ways to accomplish the goal cost-effectively, including a hybrid of in-house and outside professional support, re-allocating resources in a more productive manner, or providing the consultant with the total budget that can be apportioned for the mock trial and asking for their advice on how best to achieve the goals of the trial team and client within budget.

Don't get caught empty-handed.

The absence of litigation graphics at a mock trial creates easily avoidable problems. It is foolhardy to believe that no one will notice and it can wait “till the real trial.” On the contrary: patent-litigation-timeline-trial-inventiontypically during mock deliberations, foreseeable questions arise that would have been so easy to remedy with basic graphics that were missing.  “When did that happen?  Who did that first? Who was he?  What was the name of that agreement?  What did it say?”

A lot of time is often wasted trying to figure out a simple fact that was missed because it was said, not shown -- and thus, not remembered or unclear. Counsel ends up looking foolish for omitting them. As a result, the expense “saved” in not providing graphics for the mock trial is eclipsed by the unfavorable distortions that result. Their absence and the "savings" are not applauded in the end. Better to provide them from the beginning.

Other free articles and free resources about mock trials, opening statements and litigation graphics from A2L Consulting:

 

Tags: Trial Graphics, Litigation Graphics, Jury Consulting, Mock Trial, Trial Consulting, Litigation Support, Jury Consultants, Psychology, Storytelling, Practice

Who Are The Highest-Rated Jury Consultants?

Posted by Ken Lopez on Tue, Dec 1, 2015 @ 07:00 AM

top jury consulting firms top rated voted jury consultantsby Ken Lopez
Founder/CEO
A2L Consulting

Every year, our firm receives awards in a variety of litigation consulting and blogging categories. I don't often promote those achievements in this blog, as I regard the blog as primarily educational in nature.

However, I do believe that there is real value in knowing which firms your peers are rating highest in the industry. Not only does this help you save time and energy when you want to engage a litigation support firm, it helps you know the up-and-coming firms and what the market trends look like.

Recently, Legal Times, one of a few elite legal publications remaining, asked its readership to identify the best consultants in a variety of categories including e-discovery, legal banking, legal recruiting, and many more. I'm happy to announce that A2L Consulting was voted the number one jury consultant ahead of other industry giants FTI Consulting and DecisionQuest.

Screen_Shot_2015-11-30_at_8.00.34_AM.jpgI've always admired those firms and the work that they do. We are friendly competitors, and I congratulate them on their achievements.

The leader of our jury consulting practice is jury consulting industry veteran Dr. Laurie Kuslansky. Coincidentally, she has held leadership positions with both of the other two top-ranked firms. Her record and reputation in the industry are excellent, and her bio/CV/references can be viewed or downloaded here.

Dr. Kuslansky shares my view that jury consultants alone are not to be relied upon as gospel for advice on jury selection, theme development, and storytelling. This method of jury consulting is antiquated, but still practiced by many jury consultants.

The preferred method for assisting top trial teams is, rather, to listen to the data developed by conducting well-designed mock trials and focus groups. The data is in the form of feedback from mock jurors or mock judges. Any jury consultant can offer a gut instinct (no matter how suspect that instinct is). However, it takes a great jury consultant and jury consulting firm to show restraint and properly interpret the data and feedback from mock jurors and focus group members and know how to blend art and science. The magic comes when a jury consultant can properly obtain good data, interpret it, wisely season it with insightful judgment, and taking in the input of the trial team.

Blindly applying data or narrowly focusing on instinct each has its perils. Likewise, asserting oneself as the smartest person in the room is hardly the team approach clients prefer.

None of the user polls are perfect, but they do provide a useful guide by which to at least assemble a list of potential vendors to consider when potentially headed to trial. The complete Best of the Legal Times 2015 Guidebook may be downloaded by clicking here.

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

mock jury webinar a2l kuslansky

 

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

7 Bad Habits of Law Firm Litigators

Posted by Ken Lopez on Wed, Oct 28, 2015 @ 11:08 AM

attorney bad habits lawyer trial courtroomby Ken Lopez
Founder/CEO
A2L Consulting

In our role as trial consultants, we frequently work with some of the top law firm litigators in the nation, as well as with in-house counsel for some of the nation’s major companies. Ideally, we form a cohesive team that works seamlessly to provide outstanding trial representation and to win cases.

Occasionally, we find that law firm litigators are engaging in bad habits that can increase inefficiency, cost the client money, and decrease the chances of winning at trial. Here are seven of them.

1. Lawyers designing PowerPoint slides. Anyone who went to law school can of course use PowerPoint. Generating PowerPoint slides is not difficult, and lawyers are smart. Many lawyers can even make PowerPoint slides that look nice. But:

a. It's not about pretty slides, it's about effective slides, and the rules for how to create those take years to learn. See Litigation Graphics: It's Not a Beauty Contest

b. A lawyer doing slides costs the same or more per hour than a litigation graphics expert doing slides. Classically, you could cut your own hair, but why would you? See How Valuable is Your Time vs. Litigation Support's Time?

c. A lawyer creating slides does not know the tricks of the trade. See Trial Graphics Dilemma: Why Can't I Make My Own Slides? (Says Lawyer)

d. A lawyer creating slides will likely tell a chronological story instead of an effective story. See Don't Be Just Another Timeline Trial Lawyer

e. A law firm might claim to have in-house litigation graphics expertise (See 13 Reasons Law Firm Litigation Graphics Departments Have Bad Luck). But ask yourself: How many trials does that law firm do per year? For even the largest firms, that answer may be a couple dozen. How many cases does that lone artist work on? A small percentage of what is already a small number? Contrast that with a litigation consulting firm with graphics expertise that might do 50 or 100 trials per year concentrated among a handful of key staff. See With So Few Trials, Where Do You Find Trial Experience Now?

2. Paralegals running trial technology. This is pretty common, and I'm not as adamant about this as I am about content creation. Still, when something goes wrong, you want to have one or more people on the team who have been to hundreds of trials, not a few. You might save some money by keeping the service in-house, but the savings are small if any, and the trade-off is a lot of risk. Free Download: How To Find and Use Trial Technicians and Trial Technology 

3. Conducting in-house mock trials. I call this getting high on your own supply. You should pick mock jurors from a broad base of people that mirrors your likely jury. See 11 Problems with Mock Trials and How to Avoid Them

4. Lawyers running PowerPoint at trial. It often works, but it often does not work. Why would you allow your litigators to create risk with almost no benefit? See Making Good Use of Trial Director & Demonstratives in an Arbitration and 12 Ways to Avoid a Trial Technology Superbowl-style Courtroom Blackout

5. Outside litigators who are afraid to ask for help. Litigation is one of the few competitive areas in which people are afraid to rely on coaches, best practices, and experts, and that makes no sense. Even Michael Jordan had a coach. See Accepting Litigation Consulting is the New Hurdle for Litigators

6. Outside trial counsel who is afraid to ask for a needed budget item. They often see a pie of a set size, and asking for budget for a mock trial or other litigation consulting support, might take pie away. You should instead see a pie whose size can be changed when it makes sense. See In-House Counsel Should Make Outside Litigation Counsel Feel Safe

7. Outside litigators who conduct frighteningly last-minute preparation for trial. I really think the days of the cowboy litigator who rides in at the 11th hour and charismatically bends a jury to his will are largely over. The opposition is much more sophisticated now, and so are juries. See The 13 Biggest Reasons to Avoid Last-Minute Trial Preparation

Have you ever seen any of these habits play out?

Other articles and resources by A2L Consulting focusing on trial preparation, the relationship between in-house counsel and outside litigators and on winning cases generally include:

in-house counsel litigation toolkit e-book free download

 

 

Tags: Trial Graphics, Trial Technicians, Mock Trial, Litigation Consulting, Trial Technology, Litigation Support, PowerPoint, In-House Counsel

Top 7 Things I've Observed as a Litigation Consultant

Posted by Ryan Flax on Wed, Oct 7, 2015 @ 12:42 PM

litigation consultant best in the industry graphics storytellingby Ryan H. Flax, Esq.
Managing Director, Litigation Consulting & General Counsel
A2L Consulting

I’ve passed another anniversary at A2L Consulting and in my time as a litigation consultant I’ve been both surprised and reassured about the state of the litigation business and its players (I also wrote about my surprises upon beginning my career as a litigation consultant). I’ve seen both the very best and quite bad litigators in action and have consulted for both. Although some litigators don’t live up to my high standards, I’m impressed by many litigators as both professionals and people. Here are seven of my observations over these years that I think might help you in your practice.

  1. Many Lawyers Confuse Chronology With Storytelling

It is almost universally accepted that storytelling is important to engaging an audience (including a jury) and that framing a client’s case as a compelling story is key to doing your best at trial, particularly in opening statements. But more often than not, when I ask a litigation team what their client's story is, rather than explain “why we’re really here” as they would to a jury and illustrate some conflict and emotionally valuable moral that is critical to juror engagement, they rattle off some chronological series of events that led to a legal injury to their client or some misconstrued relationship by the opposing party. These are not stories and presenting a case framed this way, while possibly interesting to a legal scholar, is not compelling to a juror.

I’m surprised that so many smart litigators fall into the chronology trap and forsake emotional connection to engage jurors. I don’t advise pandering to a jury or excessive emoting by a litigator, but for a jury to care about you and your client and generate the stamina jurors need for a trial, litigators must tap into their emotional brains. This is not done by an information dump, a calendar, or using a lot of words.

A story answers the question posed above – why are we here today, in this courtroom? A story also has all the stuff you learned in grade school: a beginning, middle, climax, and end, characters, setting, theme, and moral.

  1. Some Lawyers Focus Too Much on Too Small Things

It’s easy for litigators (even more so for the associates doing the day-to-day stuff) to over-focus on every detail. The prospect of overlooking a potentially key piece of evidence or being surprised by an unknown fact exposed by opposing counsel is frightening for attorneys (it was for me), so we often wind up thinking way too much about every little thing in a case. This is called being “in the weeds,” and when you’re there it’s exceedingly difficult to escape without help. It happens with the selection of evidence, with witness prep, and even with the development of graphics, where sometimes counsel wants to very carefully think over every aspect, e.g., choosing what font style and color palette and slide aspect ratio will best work for their case.

On each of these things, I urge counsel to take a step back and delegate where possible so they can focus on the BIG PICTURE. The best first-chair litigators do this naturally, and the rest of us need to do it deliberately. Attorney time and brainpower should be spent on figuring out what it will take to win. Let litigation graphics consultants decide what font works best for your opening statement presentation. It will be a relief when you do.

  1. Many Litigators Don’t Know What Tools Are Available

Even though the litigation consulting industry has been around for decades, I still find a lot of lawyers really don’t know what we do (in total) and what persuasive tools are at their immediate disposal. Often, my first conversations with new clients include questions like, “What all do you do?” The concepts of litigation graphics, presentation and persuasion consulting, trial technology, and jury consulting are not concrete ideas in many litigators’ minds, and I often have to educate clients on what we have in our (their) toolbox.

Most often, such attorneys think of litigation graphics as discrete images created for specific points they want to make during trial. They don’t understand that, while that’s a part of our work, such graphics won’t alone provide the immersive visual experience necessary (particularly during opening statements) to persuade jurors.

Also, many litigators seriously consider doing their own graphics and/or in-court technology presentation. They have Microsoft PowerPoint and Word and can cut and paste and they’ve heard that iPad apps make evidence presentation easy. The former is never a good idea and, while the later might be true for some situations, e.g., a hearing or very small trial, it’s not going to work in any bigger trial that could have hundreds or thousands of exhibits. There is a lot to know about crafting persuasive trial visuals and there are professionals who do nothing but build trial databases, edit deposition videos, and run trial presentation software to create a seamless trial for you and your jurors. Litigators should understand this and use professionals (and let your paralegals focus on what they should be doing as well).

  1. Litigators Still Wait Too Long to Bring in a Litigation Consultant

Even though they know better, most of the time litigation teams wait until just weeks before trial to engage a litigation consultant / jury consultant / graphics team / trial tech. Even though they know waiting makes it a more difficult budget-sell to their client, leads to an uncomfortable rush to develop graphics, may make mock jury exercises impossible, and forecloses the possibility of building discovery around what they learn from a consultant, they wait. I urge early planning for trial (at the complaint/answer stage), which is the right time to develop that important two-track litigation strategy, and begin working on your case story and graphics as early as possible. Although we can certainly help you late in the game, we can do a lot more before halftime.

  1. A Lot of Litigation Graphics are Subpar

When I get the chance, I always go to my client’s opening statements and then to as much of the rest of their trials as possible. So I get to see the litigation graphics developed by/for opposing counsel. I’m consistently underwhelmed.  It's impossible to say whether these poor visuals directly led to the oppositions' losses at trial, but they didn't help.

More often than not I see a lot of text-heavy graphics – a severe barrier to juror engagement and communication. I see a severe lack of style, clarity, and intentional design - this screams lack of preparation and deliberateness in presentation. There are key visual presentation concepts that, if understood and followed, lead to persuasive graphics, e.g., font type, color choice, simplicity, complexity, branding, style, and others. There is no shortage of information about these concepts out there, but it seems most folks are not paying attention. We are.

  1. Lawyers Don’t Spend Money Where It Can Help Them

Litigation consulting, jury research, trial graphics, and trial technology cost your client money – very true. But the ROI on these services far outweighs their expense in bigger cases. The cost of a typical larger litigation, such as an employment case, hovers just around $1M. A typical bigger patent case costs about twice that amount. However, the services and tools that could be used to hone your persuasive game at any stage of such litigations turn out to be a very, very small fraction of these costs.

Take a big-time patent and breach of contract case where our client won over $300 million in damages. The costs for A2L’s services were well below $200,000, about 5% or less of the litigation budget and about 0.005% or less of the damages award. I know that our services played an important role in the victory, even though the trial team was beyond outstanding.

But, we still see litigation counsel struggling to decide whether $30,000 or $50,000 is the right spend for a mock jury focus group (a $20K difference that could be the difference between scientific data results and seat of the pants analysis) or whether to spend $12,000 to have a professional trial tech hot seat operator at trial (they should), or whether they can make their own graphics for opening statements in house (they cannot). In my view, saving a penny to lose a dollar makes no sense.

  1. Practice is as Important as Everyone Thinks

Finally, it’s been shown time and time again that practicing oral argument makes sense. The more you practice, the better you’ll do. It takes time, but again, the ROI on this time investment is tremendous. When litigators do several full speed run-throughs for opening statements or oral arguments, I see them do a fantastic job at the real thing. They don’t need notes, they know their subject matter, they are and appear more comfortable, they seem more reasonable, and they use their graphics perfectly in a compelling way.  Not practicing so that you can feel and seem more spontaneous at opening is a recipe for a poor performance.

Practice. And start early.

Other articles and resources about storytelling, litigation consulting and trial preparation from A2L Consulting:

a2l consulting top 75 articles of all time

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

6 Ways to Use a Mock Trial to Develop Your Opening Statement

Posted by Laurie Kuslansky on Tue, Sep 29, 2015 @ 10:45 AM

mock  trial jury consulting opening statementBy Laurie R. Kuslansky, Ph.D.
Managing Director, Jury & Trial Consulting
A2L Consulting 

It’s often said that the door to winning your case closes in your opening statement. Unless you are able to grab your audience, the jury, then and there, you may never be able to do so.

So how do you maximize your chances of grabbing the attention of the jury at the time that it matters most? One way is through the use of mock trials. How?

Mock trials can help you avoid losing jurors from the start, help you set the stage properly, and help mock jurors begin to use their selective attention in your favor in the following ways:

  1. Confusion. Mock trials readily reveal helpful and harmful sources of confusion.  Usually, but not always, simplicity is your friend. Either way, you will need to know how to make your points clearly during your opening. You can also determine whether your points needs graphics support from the start, how best to word them, and the context needed to place them properly in opening.
  1. Resistance. In addition to confusion as a barrier to accepting certain points in your case, jurors may bring other sources of resistance, such as personal experience, common sense, emotions, negative beliefs and the like. Unless you know what these are, you can’t get past them, no matter how hard you try. However, you can clear the way for jurors to be willing to listen to you by addressing these issues early in your opening, as by saying what the case is not about, or showing them that you are aware of their potential negativity and how you plan to overcome it. Otherwise, they will shut you out and shut down, right from the start.
  1. Cognitive Overload. You may have a lot to say, but jurors are limited in what they can hear, remember and use.  A mock trial will help identify where those two worlds optimally meet – the right amount of information needed to prove your case at the level the jury needs to find in your favor. Opening helps jurors map out what to expect and can show them that you will do as much as needed to provide them with proof, but you won’t scare them off by threatening them with too much information.
  1. Themes. One of the most important things a mock trial can reveal is the winning story, in which the key stepping stones are the case themes. These in turn should be the main takeaways, starting from the opening and running through the summation like paragraph headings to a well-constructed essay with no fluff.
  1. Witnesses. Often the “star” witness of the case for jurors is different from the star witness for counsel.  Mock trials reveal the nature of the most important testimony and its source from the decision-makers’ perspective and thus help you decide whom to feature in your case or which opposing witness to start discounting in opening.
  1. Outcomes. Mock trials teach us what result jurors seek, what it means to them, and what they hope to accomplish with their verdict.  As a result, counsel can incorporate the mock jurors’ motivations into the opening statement to align with how actual jurors may feel and start winning them over from the start. Often, why you care about the case result is different from why they may or may not care about it. Unless you know what drives them and tap into it, you lose critical momentum from the start.

In summary, mock trials are an indispensable step in the process of developing a winning opening statement.

Other free articles and free resources about mock trials, opening statements and storytelling for litigation from A2L Consulting:

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Tags: Jury Consulting, Mock Trial, Psychology, Storytelling, Expert Witness, Opening, Closing Argument, Witness Preparation

5 Ways That a Mock Trial Informs and Shapes Voir Dire Questions

Posted by Laurie Kuslansky on Mon, Sep 28, 2015 @ 09:31 AM

voir dire questionsBy Laurie R. Kuslansky, Ph.D.
Managing Director, Jury & Trial Consulting
A2L Consulting 

As we have discussed a few times, mock trials are one of the best tools that trial lawyers have at their disposal. Mock trials can have innumerable benefits in trial preparation. One benefit is that mock trials can help you to design and shape the questions you ask during voir dire in the real trial. Here are five ways in which mock trials can help you in this way.

  1. If you have a large enough sample size (minimum of 36; preferably more), you can do a statistical analysis of your supporters and your detractors to identify statistically significant differences between those two camps, if any exist. For example, an analysis of this type may show that people with related experience in your client’s industry are going to be bad jurors for your client. This can easily help you frame a voir dire question. For example, in a case involving a well-known sports entity, a mock trial showed that fans were likely to be less favorable jurors than strangers because fans had higher expectations for the sports entity than strangers.
  1. Mock trials show what resonates with mock jurors. Deliberations show which mock jurors identify with which party, evidence, witnesses and themes. These gems of knowledge should guide you to find out which types of personal experience are adverse to you and thus can form a basis for voir dire questions.
  1. Mock trials reveal trends of what turns off mock jurors. For instance, if the mock trial shows that jurors who are most like the plaintiff in taking risks are actually worst for the plaintiff because they want to distance themselves from the resulting injury (due to “defensive attribution”), questions can be asked along those lines during voir dire. For example, a young pilot was buzzing tree tops by flying too low, resulting in a fatal crash.  Similarly, two young men rode “double” on an ATV – against warnings – and were seriously hurt when it stalled and flipped over on them.  The best defense jurors in both instances turned out to be daredevils, so voir dire sought to reveal pro-plaintiffs’ jurors who were especially risk-averse, even though this was counter-intuitive. As one defense juror said, It's not the [manufacturer's] fault. We know we're not supposed to do it, but we do it any way!"
  1. ­­The goal is to try and win by shaping your best story for your worst jury. A mock trial lets you see and understand your worst issues and weaknesses.  During mock deliberations, you also learn the reasons – if any -- that cause mock jurors to stand by each side, abandon you, or move from being against you to finding for you. Voir dire can shape questions that identify people who may be unwilling to even consider facts that could cause them to change their views in your favor. 
  1. Mock trials not only show which outcomes are most appealing to mock jurors, but also the rationale that leads to them and the expected consequences from those verdicts, whether real or imagined. Knowing what these are in advance offers counsel an opportunity to disabuse prospective and actual jurors during voir dire and trial.  For example, in a case involving a dispute over an environmental cleanup, jurors may mistakenly believe that -- unless they find for the plaintiff(s) -- the cleanup won’t occur, or if they find for an insurer, premiums for everyone will be increased.

These are a few of the reasons that mock trials are crucial in setting the stage for voir dire and why it makes good sense to use a sample size large enough to enjoy this benefit when conducting mock trials.

Other articles and downloadable resources from A2L Consulting related to voir dire, voir dire questions, jury selection and mock trials:

A2L Consulting Voir Dire Consultants Handbook

 

Tags: Jury Questionnaire, Jury Consulting, Mock Trial, Juries, Jury Consultants, Voir Dire, Jury Selection

Repelling the Reptile Trial Strategy as Defense Counsel - Part 5 - 12 Ways to Kill the Reptile

Posted by Ken Lopez on Tue, Aug 4, 2015 @ 01:40 PM

 

reptile-trial-strategy-defense-win-beat-overcome-jury-consultantsby Ken Lopez
Founder/CEO
A2L Consulting

This is the fifth and final installment in a series of articles focused on how defense counsel can overcome the increasingly popular Reptile trial strategy. In parts one through four, I offered an introduction to the strategy, I shared ten ways to recognize when the strategy is being used against you, I explained why the strategy does not actually work in the way that its authors describe, and I explained that despite the bad science, the Reptile trial strategy still works.

In this post, I summarize how to overcome the strategy in both the pretrial and trial phases of a case. I rely heavily on the work of Jill Bechtold of Marks Gray and Steve Quattlebaum of Quattlebaum, Grooms & Tull. They were my co-presenters at a recent defense attorney-focused conference devoted to repelling the Reptile strategy.

One theme that clearly emerges from the 12 points below is that being a good defense lawyer is more important than ever. No longer is it enough simply to outlast your opponent. No longer is it enough to come up with a great theme and narrative just before trial. Because the Reptile strategy often begins with the complaint, a defense against it must start shortly thereafter -- or you will pay the price later.

  1. Spot the Reptile: It can appear as late as closing arguments, but more often than not, plaintiffs counsel will introduce the key themes as early as the complaint. See, 10 Ways to Spot the Reptile in Action.

  2. Read the Book: I hate to say this, but you probably should read it. It is Reptile: The 2009 Manual of the Plaintiff’s Revolution by David Ball and Don Keenan.

  3. Spot your Opponent on the Reptile Hall of Famehttp://www.reptilekeenanball.com/reptile-allstars/ Plaintiffs counsel with a record of suggest using the Reptile strategy are listed here. Is one your opponent?

  4. Storytelling Will Prevail: As you go through your case intake process, begin looking for the elements and start developing your own narrative. If you build the right narrative, you stand a higher chance of winning your case at trial. See, The Litigator's Guide to Storytelling for Persuasion 

  5. Understand Your Opponent's Narrative: Plaintiffs lawyers are often successful because they focus on narrative from the very beginning. You need to uncover that narrative and be ready to replace it with your own.

  6. Articulate Your Narrative from Day One. The sooner you build your own narrative, the better off you will be. Developing a narrative long before trial allows for testing of that narrative and it allows for it to be used throughout the discovery process. Keeping it a secret until trial is not a great tactic and is often an excuse for procrastination. See 25 Things In-House Counsel Should Insist Outside Litigation Counsel Do

  7. Prepare Your Witnesses: They will be badgered. Teach them how not to give in and to think of each answer they give as a potential video clip. Give them standard phrases that will play well – such as: I don't understand, it depends, or I don't have enough information. Use witness preparation techniques and consider outsourcing witness preparation to firms that understand the Reptile theory. See Witness Preparation: Hit or Myth?

  8. Use Motions in Limine to keep out evidence that is irrelevant and inflammatory. Also, use pre-trial motions to introduce and undermine the Reptile strategy.

  9. Object at Depositions: Use objections based on form, relevance, lack of foundation, mischaracterization of law, or seeking legal conclusions. Don't rely on standing objections as this will not be effective in fending off damaging testimony, nor do they help minimize the impact of video testimony.

  10. Help your Client Understand the Reptile Trial Strategy: Your client should understand the nature of the actual duties that are owed to the plaintiff and should be able to distinguish between those and the made-up community standards that are characteristic of the Reptile trial strategy. See The Top 14 Testimony Tips for Litigators and Expert Witnesses

  11. Test Plaintiffs’ Case in a Mock Trial, Using Reptile Techniques. See 12 Astute Tips for Meaningful Mock Trials

  12. Watch for Golden Rule Violations at Trial. The Reptile strategy gets close to crossing this line, and a less sophisticated plaintiffs lawyer may very well cross it --potentially resulting in a new trial.

Using these and other techniques, I am confident that a well-prepared defense attorney will be able to defeat the Reptile theory.

Other articles and resources related to Reptile trial strategy, jury persuasion and jury consulting from A2L Consulting:

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Tags: Jury Consulting, Mock Trial, Trial Consulting, Jury Consultants, Storytelling, Expert Witness, Depositions, Witness Preparation, Reptile Trial Strategy

[New Webinar] Winning Cases BEFORE Trial Using Persuasive Graphics

Posted by Ken Lopez on Tue, Jul 7, 2015 @ 04:41 PM

 

A2L-pre-trial-graphics-tallby Ken Lopez
Founder/CEO
A2L Consulting

We at A2L are sponsoring later this month a new and exciting webinar entitled “Winning Your Case BEFORE Trial Using Persuasive Litigation Graphics.” Whether you are in-house counsel, outside counsel, or a member of a litigation support team, this 60-minute webinar will prove invaluable and will reveal secrets of persuasion that will help you win cases before trial.

The key insight here is that graphics aren’t only for use at trial. They can also be used very effectively in motions and briefs presented to judges, even if jurors will never see them. If you are planning to use graphics to make your argument or tell your story at trial, why not use them at an earlier stage to make your argument convincingly in your brief or motion?

In addition, a lawyer who introduces graphics early in a proceeding can lay the groundwork for later use at trial or in another aspect of the case. This can also give the lawyer a sense of how receptive the judge is to the use of trial graphics in the case.

In fact, you’d be amazed at the different ways in which litigation graphics can be used. We have seen them deployed effectively in all of the following:

  •       Motions and briefs before judges
  •       Pretrial depositions
  •       Mock trials
  •       Alternative dispute resolution hearings
  •       Class certification hearings
  •       Lobbying presentations
  •       E-discovery disputes
  •       Settlement talks
  •       Pre-indictment meetings with prosecutors

Even if you can't make it to the live webinar later this month – it will take place July 29 at 1:30pm EST -- you'll receive access to the recorded version just for registering.  The presenter, A2L's Managing Director of Litigation Consulting, Ryan H. Flax, Esq., regularly works with top trial teams to help develop, refine and test storylines and persuasive graphics for briefs, hearings, depositions, ADR, tutorials, and pre-indictment presentations.

The topics of the webinar will include:

  • Why and how to frame your case as a story from the very beginning
  • Putting effective graphics in unexpected places: depositions, ADR and hearings
  • Techniques for persuading skeptical audiences with graphics
  • Using litigation graphics persuasively in briefs and motions

We hope to see you at the webinar later this month. Click here to reserve your free seat or be notified when the recorded version is available.

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Tags: Markman Hearings, Trial Graphics, Litigation Graphics, Mock Trial, Arbitration/Mediation, Persuasive Graphics, Settlement, Briefs

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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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