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The Litigation Consulting Report

Don't Be Just Another Timeline Trial Lawyer

Posted by Ken Lopez on Fri, Nov 15, 2013 @ 07:10 AM

 

trial timeline lawyersby Ken Lopez
Founder/CEO
A2L Consulting

In my 18 years in the litigation consulting business, I've noticed that there are two types of trial lawyers. The first one is what I call a timeline lawyer. Usually, his or her opening statement always starts at the beginning, in terms of time, and ends at the end.

The second type, and by far the more successful type of trial lawyer, is the storyteller. Storytellers don't start at the beginning unless it serves them, and normally it does not.

Instead, the storyteller will begin where the story ought to begin. Usually it takes a form similar to this: Things used to be this way, then something happened, and now they have changed. Sometimes the storytelling trial lawyer will also follow Joseph Campbell’s paradigm of the hero’s journey. We have prepared an infographic that places the hero’s journey in context for trial.

We have written often about storytelling. We've shared how storytelling is being used increasingly as a persuasion device in the courtroom.  We have offered five tips for effective storytelling in court. We have even produced an entire book, which is a free download, called Storytelling for Litigators.

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


That's not to say that timelines are a bad thing. Timelines are, in fact, key exhibits in most trials. They help orient the fact finder and serve as a memory stimulator for the trial lawyer and expert witness alike. They can also serve as a persuasion device if they are set up as a permanent exhibit at trial. Given the importance of timelines, you will not find it surprising that we've written an entire book about trial timelines too! And yes it's a free download.

I still advise you to rethink your strategy if your plan is to start at the beginning and end at the end. It's not a very effective strategy at all. You want your fact finders to care. You have to provide meaning and context for a judge or jury. As our senior jury consultant said in a related article, "[jurors] start at the end and work backward, forming a general theory into which they fit specific evidence from the top down. Once a juror’s theory is formed, new information is filtered through that theory and tested for how well it fits with the theory. Information confirming the theory is selectively attended to; ill-fitting information is missed, ignored, forgotten, or distorted to fit the theory, through cognitive dissonance."

We see this play out all the time. In a recent mock trial exercise, we watched as mock plaintiffs' counsel developed a story with meaning and emotional connection. Then we watched as our client, who was using the mock trial properly to figure out the best strategy for trial, stood up and told a chronological story that was so logical and syllogistic that a computer would certainly have found for the defendant.

However computers don't decide cases. In fact, here, all the mock jury panels came back vigorously against our client. When asked if they could articulate the story of each side during deliberations, the mock jury was able to spit out an elevator speech of the plaintiffs’ case in seconds complete with emotional meaning and impact. However not a single juror was able to articulate the defense story with any clarity.

Unless we tell stories and ask judges and juries what we want from them and give them an easy roadmap for giving us what we ask for, we're doing our clients a horrible disservice. Use your timelines in every case, but don't use them to organize your openings and closings, and you'll be a more successful trial lawyer for it.

Other related A2L consulting articles related to storytelling and timelines:

  storytelling for lawyers litigators and litigation support courtroom narrative

Tags: Trial Presentation, Jury Consulting, Trial Consulting, Jury Consultants, Storytelling, Persuasive Graphics, Timelines, Charity, Nancy Duarte

Litigators Can Learn a Lot About Trial Presentation from Nancy Duarte

Posted by Ken Lopez on Tue, Sep 3, 2013 @ 07:45 PM


nancy duarte trial presentation litigators al goreby Ken Lopez
Founder/CEO
A2L Consulting

Nancy Duarte is a well-known graphic designer, author and speaker who is probably best known for helping Al Gore put together his slide presentation for An Inconvenient Truth. The design philosophy and communication lessons she espouses are equally valuable to corporate presenters and litigators preparing trial presentations.

Last month, I was excited to learn that Nancy Duarte and I were speaking at the same conference, and I made it a priority to attend her session. For me, listening to Nancy is like being a cat and having catnip tossed in my direction.

My firm, A2L Consulting, and Nancy's firm, Duarte Design, are quite similar. Both are storytelling consultancies that emphasize good presentation design. However, we do focus on different markets. Duarte's market is a general corporate market whereas A2L Consulting's market is focused on litigation and influencing decision-makers involved in a variety of disputes.

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

If you have read A2L's blog over the last few years, you have surely noticed that storytelling is a frequent subject of our articles and ebooks. Some noteworthy titles include our ebook on Storytelling for Litigators and articles such as 5 Keys to Telling a Great Courtroom Story, Storytelling in Apple v. Samsung and 10 Videos to Help Litigators Become Better at Storytelling.

I think Nancy's approach to storytelling is quite compatible with the advice we give to litigators. Her recommendations for effective storytelling are included in this video below:

When I saw Nancy present last month, she offered a new and imaginative way of looking at storytelling and effective communications that I think can be helpful to litigators and those who prepare trial presentations.

A typical three-part story takes us through the journey of meeting a reluctant hero who overcomes obstacles and then triumphs as the hero is transformed in some way. Nancy looked at some famous speeches and found that they did necessarily follow a typical hero's journey structure. Instead, the speakers make the audience the hero and follow a juxtaposed pattern of "what is" and "what could be" (both repeated), followed by a colorful description of a new hopeful reality. The photo at the top of this article shows the general pattern. Valleys describe what is, and plateaus describe what could be.

Her analysis does not stop there, as she goes into considerable detail about elements of a great speech. Below is a chart she prepared analyzing Martin Luther King, Jr.'s I Have a Dream speech. Phrases with common traits are highlighted along the lines showing what is v. what could be.

nancy duarte trial presentation lawyer consulting trial graphics


Any communications junkie will enjoy this analysis and anyone involved in the trial presentation creation process will benefit from learning it. A video going into considerable detail about the speech and the charts shown above can be found here.

I think the takeaway from all of this analysis is that there is more than one way to present well, and there is more than one way to design a great trial presentation. You need not always portray the client as a hero, and you need not always follow classic storytelling patterns. In fact, very often, a presentation that follows a "what is" vs. "what could be" format may serve as a great opening or closing argument.

At the very least, one can thoughtfully include the elements found in great speeches into one's trial presentation when one understand them. Nancy's analysis is a helpful reminder that rarely does a great speech, a great opening statement or a great trial presentation simply include a chronological recitation of the facts. 

Materials related to storytelling and trial presentation on the A2L Consulting site:

complex civil litigation graphics free ebook guide download

Tags: Trial Presentation, Presentation Graphics, Storytelling, Nancy Duarte

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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.


tony-klapper-headshot-500x500.jpg 

Tony Klapper joined A2L Consulting after accumulating 20 years of litigation experience while a partner at both Reed Smith and Kirkland & Ellis. Today, he is the Managing Director of Litigation Consulting and General Counsel for A2L Consulting. Tony has significant litigation experience in products liability, toxic tort, employment, financial services, government contract, insurance, and other commercial disputes.  In those matters, he has almost always been the point person for demonstrative evidence and narrative development on his trial teams. Tony can be reached at klapper@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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