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The Litigation Consulting Report

Is Litigation Coming for Major Retailers of Herbal Supplements?

Posted by Ken Lopez on Fri, Feb 6, 2015 @ 10:04 AM

 

herbal-supplement-retailers-litigation-fraud-product-liabilityby Ken Lopez
Founder/CEO
A2L Consulting

In case you missed it, the New York Attorney General's Office dropped a bombshell this week. They have accused major retailers including Wal-Mart, Target, Walgreen's and GNC of knowingly selling supplements that contain either none of what is advertised (an incredible 80% of the time) or something else entirely.

The herbal supplement industry is estimated to have close to $100 billion in annual sales. That's about five times the revenue of all AmLaw 200 law firms combined.

Once I saw the New York Times piece reporting on this issue, I wanted to learn more about what this might mean for litigators. Fortunately, I knew exactly who to speak with.

Below is an interview with Dr. David Schwartz, head of scientific support to counsel at Innovative Science Solutions. He describes his role as something of a scientific detective, regularly helping ISS’s clients defend and support pharmaceuticals, industrial chemicals, medical devices, foods, and dietary supplements in the courts, the regulatory arena, and the market place.

In this six-minute interview, Dr. Schwartz shares his outlook for how this issue might unfold in the courts.

Dr. Schwartz and I have had the pleasure of collaborating on litigation issues ranging from tobacco, to fracking to cell phone caused brain cancer. If you've not read his Science & Law blog, I highly recommend it.

Other resources on A2L Consulting's site related to science, complex litigation and helping fact-finders work through difficult issues at trial include:

expert witnesses and complex cases webinar

Tags: Litigation Consulting, Litigation Support, Science, Expert Witness, Press, New York, Dietary Supplements, Fraud

21 Ways Trial Can Be Like a Blizzard - But It Never Has to Be

Posted by Ken Lopez on Mon, Jan 26, 2015 @ 01:17 PM

 

percentage-population-megalopolis-snow-trial-preparationby Ken Lopez
Founder/CEO
A2L Consulting

We East Coasters have a love-hate relationship with snow, and the snow moving into the Northeast today may be one for the record books - particularly around Boston. It will dominate the news for days - and it probably should.

An incredibly large number of people will be impacted by this particular storm. Under or next to that red line on the map where the storm is forecast to hit, you'll find roughly 20% of the U.S. population living on roughly 3% of the country's land, half of the hedge funds, one third of the headquarters of Fortune 500 firms and — in the states under the red line, about 35% of the country's and, hard as it may be to believe, about 25% of the world's lawyers!

A blizzard disrupts our lives. It can feel tedious, it creates confusion, and it generates a lot of hard work — sort of like a trial. Not all trials are blizzard-like, but some surely are. Here are 21 ways some trials are like a blizzard and how to avoid white-out conditions in your courtroom.

  1. The dialogue is often boring. Similar to the neighborhood small talk that surrounds a snow storm, many trials are boring for judges and juries. I know federal judges who frequently fall asleep, and I have seen plenty of jurors do the same. However, I have always asserted that trial counsel have a duty to entertain a jury. See, Lights! Camera! Action! Verdict! A Trial Team's Responsibility to Visually Entertain and 12 Things Every Mock Juror Ever Has Said - Watch Anytime

  2. Too much, too fast. Judges are pushing for faster and faster trials and many lawyers are failing to use presentation techniques that can speed up a trial dramatically and save time. You don't want your judge and jury to feel like they can't see where you and they are going together. See, 5 Ways to Apply Active Teaching Methods for Better Persuasion and  Will Being Folksy and Low-Tech Help You Win a Case?

  3. Poor planning is dangerous. If there is a lot at stake, one needs to test one's approach in advance. Governments spend years planning their responses to a blizzard, and if your case warrants it, you should spend a considerable amount of time testing themes, testing witnesses, testing litigation graphics and testing arguments in a mock trial setting. See, 12 Astute Tips for Meaningful Mock Trials and 10 Suggestions for Conducting Mock Bench Trial Consulting Exercises.

  4. There are bad drivers everywhere. Like the ubiquitous Toyota Camry inexplicably on the roads in a snow storm, you have to be careful to avoid those who pose a threat during trial preparation. See, No Advice is Better Than Bad Advice in Litigation

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  5. Travel and everything else require massive planning. I often quote one of my favorite trial lawyer clients who said, "I never sleep better than when I am at trial, as I know how well prepared I am." He had a habit of being successful. If you need to get to the trial site early, you should. Last minute is very last century. See, The 13 Biggest Reasons to Avoid Last-Minute Trial Preparation

  6. It's hard to see. If your projector and your trial technology are not well planned for, like in a blizzard, you end up with a washed out image on screen where colors are hard to make out. See, 24 Mistakes That Make For a DeMONSTERative Evidence Nightmare

  7. Practice is essential. You wouldn't want a snowplow driver to make their first run during a blizzard any more than you would want to articulate an opening statement for the first time during trial. See, 3 Ways to Force Yourself to Practice Your Trial Presentation and Practice, Say Jury Consultants, is Why Movie Lawyers Perform So Well

  8. Going it alone is a bad idea. We are in an era where litigators from top firms try very few cases. In-house counsel understand this dilemma. Now, more than ever, litigation consultants are mandatory for a trial with more than a few million dollars at stake. See, 9 Things In-House Counsel Say About Outside Litigation Counsel and Accepting Litigation Consulting is the New Hurdle for Litigators

  9. IT support is critical. I think many of us would sooner go without water at home during a blizzard than go without Internet. Trial is not dissimilar. You need your technology to work. Trial technicians can be an incredible asset to make sure things go smoothly in the warroom and at trial. It is an expensive and avoidable nightmare when something goes wrong during a mock, the night before trial, or, worst of all, during trial. See, 12 Ways to Avoid a Trial Technology Superbowl-style Courtroom Blackout

  10. Anticipate the worst and prepare for it. Whether it is a motion in limine going the wrong way, an expert being disqualified, an exhibit being excluded, good trial teams discuss the worst that can happen and prepare for it just as good governments do before blizzard conditions exist. See, The 14 Most Preventable Trial Preparation Mistakes

  11. Know your environment. If you fail to properly map out your courtroom well in advance of trial, you'll end up feeling as lost as a snowplow driver without a GPS. Your technology won't serve the very people you designed it for. See, 21 Ingenious Ways to Research Your Judge

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  12. Pick and prepare the right experts. There are experts who help pick expert witnesses. I find that a lot of litigators fail to rely on this resource and regret it later. Once you have an expert, they must be prepared. Just as you would not want to see an everyday weather geek opine sophomorically about storm conditions, you must work on your experts so they can work for you. Otherwise, you'll be shoveling more than snow. See, Witness Preparation: Hit or Myth? and 7 Smart Ways for Expert Witnesses to Give Better Testimony.

  13. Know how much science your audience can take. Many fact-finders will glaze over with the presentation of too much science, so a balance must be struck between good trial presentation and making a good record. Most of us want to hear Jim Cantore explain the story simply, not go into the detailed science. See, 5 Valuable (and Free) Complex or Science-Focused Litigation Resources and Teaching Science to Juries

  14. Tell a story. Everyone comes out of a blizzard with a good story, but a good story poorly told is not really that good. Trial is the same way. Stories engage people, but you have to do it right. See, Free Webinar - Watch Anytime - Storytelling as a Persuasion Tool and Storytelling for Litigators E-Book 3rd Ed.

  15. Make sure your story is compelling. Nobody likes someone who tells a long chronological story and bores everyone to death. There are good rules of thumb for telling a story that people care about. See, Don't Be Just Another Timeline Trial Lawyer and 5 Essential Elements of Storytelling and Persuasion and 14 Differences Between a Theme and a Story in Litigation

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  16. Don't under-budget. In-house counsel or your client want you to win, but you need to ask for the budget you need to win. Similarly, in-house counsel need to do a better job of arming trial teams for battle by making sure they feel confident in asking for budget. After all, what happens to a mayor who does not budget enough for the blizzard and a city breaks down? See, In-House Counsel Should Make Outside Litigation Counsel Feel Safe

  17. Use the right visuals. Just because you use a PowerPoint at trial does not mean you are more persuasive. In fact, you could hurt your persuasiviness if you use the wrong approach to visuals. Think about all the work that is going to go into reporting on this blizzard and watch the visuals that are used. The science behind what visuals people need to see to be entertained and persuaded is vastly more complex than most people know. See, 10 Things Litigators Can Learn From Newscasters and 6 Studies That Support Litigation Graphics in Courtroom Presentations and Good-Looking Graphic Design ≠ Good-Working Visual Persuasion

  18. Make sure your words compliment your visuals. Just as you can quickly tell the difference between a national newscast and one from a small town, good and well-prepared presenters are obvious to everyone. See, 12 Ways to SUCCESSFULLY Combine Oral and Visual Presentations and 10 Things Litigators Can Learn From Newscasters

  19. Don't overdo it. Knowing when the pressures of trial are too much is just as critical as knowing when not to shovel that large driveway. See, 10 Signs the Pressure is Getting to You and What to Do About It

  20. Make sure you have the right audience. If you are saying the wrong things to the wrong people, no one will get behind your message. Unlike an elected politician or a newscaster, litigators have some choice about who their audience is - make the most of that opportunity during voir dire. See, New and Free E-Book: The Voir Dire Handbook

  21. At the appropriate time, and if it's right for you, a cocktail will probably help.

Other articles and resources related to trial preparation, thoughtful mock trial testing, persuasive litigation graphics and trial technology considerations from A2L Consulting:

A2L Consulting Voir Dire Consultants Handbook

Tags: Trial Graphics, Litigation Graphics, Trial Technology, Jury Consultants, Trial Preparation, Opening, Newscasts, New York, Boston

5 Secrets for Trying Cases in SDNY

Posted by Laurie Kuslansky on Wed, Aug 21, 2013 @ 09:00 AM


sdny new york jury consultants trial graphics consultants courtroom technologyby Laurie R. Kuslansky
Expert Jury Consultant

One of the most common venues for federal jury trials is the Southern District of New York. This district includes Manhattan as well as the Bronx and Westchester, Putnam, Rockland, Orange, Dutchess, and Sullivan counties. The court sits in the Thurgood Marshall U.S. Courthouse and in the Daniel Patrick Moynihan U.S. Courthouse in downtown Manhattan, and in the Charles L. Brieant Federal Building and Courthouse in White Plains, in Westchester County.

The district includes urban areas (Manhattan, Bronx) as well as suburban and exurban areas (Westchester, Putnam, and Rockland counties) and basically small-town and rural areas (Orange, Dutchess and Sullivan counties). Clearly, a juror from Greenwich Village is often going to see things differently from a juror from New Rochelle. Here are some tips on trying cases in this district.

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1. Westchester/Putnam jurors are a different breed from the rest of the venire.

Jurors summoned to SDNY can be quite diverse, and sometimes, the pool is heavily weighted one way (e.g., doctors and lawyers), or the other (blue collar, poor minority).  Those coming from the suburbs are more likely to have higher socio-economic status, be better educated, more stable (homeowners, married), and better employed or stationed (think Stepford wives married to lawyers), whereas those from the Bronx are more likely to be the reverse.

In Manhattan, anything is possible and runs the gamut – from janitors to Wall Street traders. Depending on which side of the case you are on, the pool will likely sway for or against you, before voir dire even begins. Be aware of Westchester/Putnam folks who, as homeowners, tend to be financially conservative, whereas jurors from the Bronx are more inclined to throw the book at a perceived wrongdoer. In Manhattan, watch for what people say they do rather than what they aspire to be. For example, aspiring actors and other artists may well have a different job, such as the proverbial waiter/waitress or bartender.  Anyone whose job includes a “slash,” such as a writer/teacher, also signals the need for follow up, because either they need more than one job, don’t have a single full-time job (why?), or other reasons worth exploring.  Whether someone owns or rents their home is also worthwhile pursuing.  There’s a great difference in their perspectives and experience.  Someone can live in a penthouse or have roommates in the basement. 

One subtle way to aim for a better pool is to exercise whatever control you may have in the timing of the jury selection in trial.
 

2. Timing is everything: 

    • If you want accountants, avoid tax-season trials
    • If you don’t want teachers, avoid a summer trial
    • If you want psychologists or psychiatrists, avoid an August trial
       

3. You can ask more in voir dire than you may think.

Many SDNY judges accept at least proposed jury questions from counsel and, if the case is high profile, a written questionnaire. Many litigators assume – without asking the clerk – that they can have virtually no role in the voir dire

The only way to know is to ask.  Keep in mind that the proposed questions, other than those for cause, should be well-thought out, relevant to the issues and parties, and brief.  The more questions submitted, the more likely a judge will be to edit them down.  The problem is that your most cherished questions may end up on the cutting-room floor, so keep it lean and mean.  In addition, construct open-ended questions, or at least do so for follow-up questions.  For example, “Have you ever owned your own business?  If yes, please describe if it is still operating or, if not, what happened.”
 

4. If you want higher socio-economic status jurors, aim for jury selection as early in the week as possible and vice versa.

Toward the end of week is slim pickings as those deemed qualified have been put on juries and the pool is not replenished until the remains are picked over further.  Avoid August when those who can, go on vacation, including families, psychologists and other professionals. Those who can summer outside the city, in the Hamptons, Fire Island, or elsewhere.
 

5. “500 Pearl St.” is actually 200 Worth St.  Ask for the back entrance – the line is shorter to get through security



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

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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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