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The Litigation Consulting Report

12 Reasons Using Trial Consultants (Like Us) Is Possibly Not Fair

Posted by Ken Lopez on Thu, Feb 16, 2017 @ 11:03 AM

unfair-advantage-trial-consultants-jury-graphics-technology.jpgby Ken Lopez
Founder/CEO
A2L Consulting

When I speak to an audience about the work A2L does (other than trial lawyers from large law firms), I sometimes hear the question, “Is the kind of work A2L does fair?” That is, is it fair to have trial consultants support a trial team and use the latest in persuasion science to advocate only one side of a case? In a group setting, my lawyerly answer is usually something like, “What does ‘fair’ mean to you?” Then we litigate the nuances of fairness.

What I really think, however, is that the work we do definitely tips the scales of justice in our client’s favor. Is that fair? Probably. After all, ferociously advocating one’s position using all available tools is one of the hallmarks of our justice system. But what if, as is typical, one side has a larger litigation budget than the other. Is it fair to have a firm like ours on one side and not the other?

I've heard others reply to this question by comparing the vast differences in trial lawyer quality and arguing that the system is designed to smooth these talent gaps out. I don't have a specific answer right now, so I I'll simply say that I think it's a fair question. Trial consultants do influence outcomes of cases, sometimes to an enormous degree.

Indeed, a branding firm, after surveying our customers and staff, once recommended that we use “Unfair Advantage” as our firm motto. I never really fell in love with the motto, and we didn’t end up really using it, but I understand the sentiment completely.

In more than 20 years and thousands of cases, I’ve never seen one that was not improved by the input of a trial consultant. I've seen losing cases turned to winners and damages swing in the billions of dollars. Consider 12 advantages that trial consultants offer – ones that your opposition might say are just not fair.

  1. A Fresh Pair of Eyes: Trial lawyers who like to get their answers questioned outperform those who are not open to much input. Trial consultants offer a safe place to bounce theories, narratives, demonstratives, voir dire strategies, trial presentation strategies and more off smart people who are on your side. See 7 Reasons a Fresh Pair of Eyes Are Beneficial Before Trial.
  1. An Experienced Pair of Eyes: If you've been in the litigation industry for decades like me, you've watched as trial lawyers who used to go to trial every year now go to trial only every three, five or even eight years. Meanwhile, trial consultants have moved in the opposite direction and often see dozens of trials per year. So high-performing clients and high-performing trial lawyers very sensibly rely on trial consultants to enhance the trial experience of the team. See With So Few Trials, Where Do You Find Trial Experience Now?
  1. Practice: One of my former colleagues turned judge was so right about this: “They call it the practice of law but nobody is practicing.” Trial consultants help trial teams practice effectively. This is critical because so few trial teams are really practicing. Those who don't practice in front of peers underperform others. Those who do, outperform most trial lawyers. It's so obviously correlated with good outcomes, I believe that the quality of practice is a reasonable proxy for the outcome of a case. See 3 Ways to Force Yourself to Practice Your Trial Presentation.
  1. Even Michael Jordan Had a Coach: Name an athlete or anyone at the top of their game and you'll likely find a coach who helped them improve. That's what high-quality trial consultants do. They help bring out the very best in a trial lawyer. See Accepting Litigation Consulting is the New Hurdle for Litigators.
  1. Getting the Right Jury: Most jury research we engage in has a voir dire component. Conducting a mock trial with a voir dire component massively influences how juries are picked, and the makeup of a jury massively influences the outcome of a case. We've even released an entire book on this topic. See New and Free E-Book: The Voir Dire Handbook.
  1. Persuasion Science with Visuals: Understanding how visuals persuade people is a surprisingly new science, and many new discoveries are being made. Trial consultants bring a level of understanding regarding visuals that is not present in a law firm. There are visual persuasion tactics that knowledgeable trial consultants can use to influence juries. See Could Surprise Be One of Your Best Visual Persuasion Tools? and 6 Studies That Support Litigation Graphics in Courtroom Presentations.
  1. Persuasion Science with Rhetoric: Similarly, there are rhetorical techniques such as the use of repetition and surprise that are now known to persuade juries. Just the way you start your opening will influence what a jury thinks. It's not malpractice to not know these things, but it is certainly not a good practice. See A Surprising New Reason to Repeat Yourself at Trial.
  1. Persuasion Science with Storytelling: We so often write about how storytelling can be used to persuade. We even recently interviewed some top trial lawyers and asked them how they use storytelling. Rely on a talented trial consultant and they will make you a better storyteller. See Three Top Trial Lawyers Tell Us Why Storytelling Is So Important.
  1. Trial Consultants Save You Time: You can delegate certain persuasion-related tasks to a trial consultant that allow you to focus on other elements of the case. This gives you a real advantage over opposing counsel who cannot do thisSee Trial Consultants: Unfair Advantage?
  1. No Lost Opportunity Costs: My mentor likes to advise me in my CEO capacity by saying, “Only do what only you can do.” This advice works well for a trial team too. If you're editing PowerPoint slides, you're disobeying this good advice. See How Valuable is Your Time vs. Litigation Support's Time?
  1. More Poise = More Persuasion: The way you carry yourself influences your persuasiveness. Watch this video from Amy Cuddy and read my article about her new book. Trial consultants help give you real confidence by supporting you as a trial lawyer and they can also advise how to do this in those situations where you just need to fake it. See A Harvard Psychologist Writes About Presenting to Win.
  1. Using Trial Technology Well: Many lawyers think they can use technology effectively, but not many really have this skill. A good trial consultant will understand courtroom technology and will help you get a leg up on the other side. See 12 Ways to Avoid a Trial Technology Superbowl-style Courtroom Blackout.

litigation consulting graphics jury trial technology

Tags: Trial Graphics, Trial Consultants, Litigation Graphics, Litigation Consulting, Trial Consulting, Demonstrative Evidence, Trial Technology, Psychology, Storytelling, Practice, Body Language

50 Characteristics of Top Trial Teams

Posted by Ken Lopez on Thu, Apr 21, 2016 @ 02:22 PM


trial team win litigation traits characteristicsby Ken Lopez
Founder/CEO
A2L Consulting

After the more than 20 years that we have spent in the litigation consulting business, we don't hear very many questions that we’ve never heard before. However, this week I did hear one, and the story is worth sharing because it goes to the heart of how a truly great litigator performs. The question I heard was, “What can we do better as a trial team on the next engagement?”

Consider how remarkable this is. Here was a litigator from a large law firm sincerely trying to improve the performance of his team and himself. I was deeply impressed, as this was the first time I've had someone ask that question after an engagement.

It's a very sensible question, of course. A2L's team has worked with thousands of litigation teams from the very best law firms in the world. I have watched many litigators perform near-magic in the courtroom, and I have seen teams fail miserably. There are patterns that lead to success and patterns that lead to failure.

In the spirit of the question that this litigator asked me, I started thinking about the traits of the world’s most effective trial teams. Here are 50 of them culled from my experience and that of my colleagues Dr. Laurie Kuslansky and Tony Klapper.

  1. Practice is by far the single most obvious indicator of a trial team's success. The great litigators draft their openings months or years in advance of trial and practice them dozens or hundreds of times. See, Practice, Say Jury Consultants, is Why Movie Lawyers Perform So Well

  2. Preparation. Great trial teams start preparing long before trial, and they don't ask the client’s permission to do so. Their attitude is, “If you work with a team like ours, it means you want to win and we know how to win and we're going to get that done, whatever it takes.” I think they are right. There are only a handful of law firms that I have observed that have this sense of preparation embedded in their litigation culture. See, The 13 Biggest Reasons to Avoid Last-Minute Trial Preparation

  3. Great litigation teams want their answers questioned. Great litigators are confident. They are so confident that they open themselves up to rigorous scrutiny in their approach to trial. Through a whole host of methods, they invite criticism, suggestions, fresh pairs of eyes, lay people’s opinions, experts’ opinions, and they use all of these voices to perform at their best. See, Accepting Litigation Consulting is the New Hurdle for Litigators

  4. They lead, but they can be led too. Great litigators avoid dominating all discussions. They intentionally let others lead them and be seen as leaders. Download the Leadership for Lawyers eBook

  5. They just look comfortable in front of a jury. Confidence equals persuasiviness and humans are born with an expert ability to detect it.  See, A Harvard Psychologist Writes About Presenting to Win

  6. They build narratives early. They know how important a narrative is to winning a case. They have also learned from experience that the earlier this is done, the better. A well-constructed narrative can inform everything from briefing to discovery to witness preparation. Download The Opening Statement Toolkit

  7. They understand the difference between a narrative and a theme. See, 14 Differences Between a Theme and a Story in Litigation

    storytelling for judge jury courtroom best method for trial persuasion and emotion
  8. They spend their time where they are most valuable and add the most value. How Valuable is Your Time vs. Litigation Support's Time?

  9. They begin developing their visual presentation months or years before trial. See, How Long Before Trial Should I Begin Preparing My Trial Graphics?

  10. They’re not afraid of technology in the courtroom or elsewhere. Skipping technology means losing credibility in most cases now. Jurors have come to expect it and no longer take kindly to simply being lectured to. See, Trial Presentation Too Slick? Here's Why You Can Stop Worrying

  11. They’re systematic in how they meet with their outside consultants. Great trial teams usually hold weekly calls or meetings and schedule the next event at the end of each meeting.

  12. They’re not frantic. There are so many reasons why one should not be frantic, and even when the facts are terrible, great lawyers work at a measured and even pace and don't go negative. See, 10 Signs the Pressure is Getting to You and What to Do About It

  13. They don't jockey for position with other lawyers and law firms. The worst and least effective trial teams that I have ever seen play politics to the detriment of the client in the run up to trial. See, 5 Tips for Working Well As a Joint Defense Team

  14. They exhibit a distinct lack of arrogance. I think some people confuse arrogance with ability. The best trial teams I have observed display tons of confidence, show mastery of the subject matter, demonstrate massive respect for one another and never allow arrogance to enter the picture. See, In-House Counsel's Role In Keeping Litigator Ego In Check

  15. They probably subscribe to our blog. Alright, not everyone subscribes to this blog, but 8,000 people do. Litigators who demonstrate that they hope to grow their own skill set are typical subscribers. See, 10 Surprising Facts About Litigation Consulting Report Blog Readers



    Complimentary Subscription to This Blog



  16. They realize there are too many parts in big-ticket litigation for the first chair to handle all of them alone. They know how to divide the work among attorneys, paralegals, experts, and others. The only way to build a simple case is to start with a complicated one and break it down. Truly complex cases require lots of team effort to achieve this result. See, Litigator & Litigation Consultant Value Added: A "Simple" Final Product

  17. They require their experts to work with communications and visual design consultants. Perhaps 1 in 500 experts is an expert in presenting information in a jury-friendly way, but most believe that they are. 7 Smart Ways for Expert Witnesses to Give Better Testimony

  18. They don't lose it; they keep their cool. There are plenty of stressors in the pre-trial environment. People not used to doing this kind of work would find it hard to maintain a positive attitude, but it is so critical to do so. See, 5 Signs of a Dysfunctional Trial Team (and What to Do About It)

  19. They conduct post-hearing, post-conference, and post-trial debriefings. Truly great trial teams do this, and all bad trial teams simply blame a bad judge, bad facts, and/or a bad jury. See, 9 Questions to Ask in Your Litigation Postmortem or Debrief

  20. They contemplate their thematic story right from the start and incorporate that into discovery. We're working with a number of clients now who are making sure a narrative is developed early in a case, not just on the ease of trial. This is a best-practice for highly effective trial teams. See, Planning For Courtroom Persuasion? Use a Two-Track Trial Strategy

  21. They tell you their strengths and weaknesses. When we meet with a trial team for the first time, they usually present to us as if we were potential jurors. That is, they advocate. Good trial teams do that, but then great trial teams say, "here's what our opponents will say and here's where we are vulnerable."

  22. They don’t answer their own questions, but let other people do that. Often, these answers are found in a mock trial setting. As we frequently advocate, let the data speak, don't guess or just use your gut instinct. See, 10 Things Every Mock Jury Ever Has Said

  23. Before dismissing new ideas, they consider how to apply them, no matter how new. See, How Creative Collaboration Can Help a Litigation Team

  24. They repeat back recommendations to make sure they understand them. This mirroring technique is used by many highly effective litigators and great listeners in all fields.

  25. They send drafts of their work with enough lead time for others to provide comments. Time management in litigation is a skill that must be developed and is a given with great trial teams. See, The 13 Biggest Reasons to Avoid Last-Minute Trial Preparation

  26. They communicate in an orderly, consistent manner so that the left and right hands know what the other is doing. 

  27. If they aren’t good organizers, they task someone who is to assure continuity and avoid panic. Download the Leadership for Lawyers eBook

  28. They don’t assume anything and seek to verify with facts, including mock testing that shows which themes are winners and which juror types are worst. See, 11 Problems with Mock Trials and How to Avoid Them

    mock jury webinar a2l kuslansky

  29. They don’t answer challenges by simply stating how long they’ve done this or where they went to school. See, 6 Studies That Support Litigation Graphics in Courtroom Presentations

  30. They lead, but don’t micromanage. We recently wrote about how some trial teams will agonize over fonts, colors, and PowerPoint templates while ignoring bad facts in their case during trial preparation. See, 3 Trial Preparation Red Flags That Suggest a Loss is Imminent

  31. They are respectful to junior staff and outside consultants. See, 13 Reasons Law Firm Litigation Graphics Departments Have Bad Luck

  32. They understand that their success is a team effort and approach it that way. See, When a Good Trial Team Goes Bad: The Psychology of Team Anxiety

  33. They give credit where credit is due, sincerely (not by patronizing).

  34. They lead by example. Download the Leadership for Lawyers eBook

  35. They pay their bills on time or early. I'm pretty sure most litigators don't understand how important timely payment is and how it contributes to winning cases. See, 10 Ways Timely Payment Helps You Save Money On Litigation Consulting

  36. They don't sugarcoat the possible effectiveness of the other side's narrative and thematic points and fall too quickly in love with their own narrative and themes. See, 12 Astute Tips for Meaningful Mock Trials

  37. Notwithstanding a keen awareness of what the other side will say, they don't simply respond to the other side; they build their own affirmative narrative. See, $300 Million of Litigation Consulting and Storytelling Validation opening statements toolkit ebook download a2l
  38. They pressure test throughout the course of their pre-trial development and during the course of trial itself by continuously empowering the entire litigation and trial teams to provide their own input. They eschew groupthink. See, How Creative Collaboration Can Help a Litigation Team

  39. All attorneys on the team have meaningful roles that sync with their individual strengths.

  40. They don't wait until the last minute to prepare fact and expert witnesses and instead dedicate sufficient resources to ensure those witnesses are prepared. See, Witness Preparation: Hit or Myth?

  41. Witness preparation includes, of course, careful development of an effective visual presentation that is rehearsed but doesn't sound rehearsed. See, The Top 14 Testimony Tips for Litigators and Expert Witnesses

  42. Effective litigation teams spend as much time preparing their witnesses for robust cross-examinations as they do for direct examinations. See, 
    Witness Preparation: The Most Important Part

  43. They look for opportunities to score significant points on redirect, a redirect that is thought through well in advance of trial and not simply reactive to cross.

  44. They seek candid feedback, not false praise, during trial.

  45. They get some sleep. One of my favorite, now retired, trial lawyers used to say that he never slept better than when we was at trial. He always knew he was fully prepared.

  46. They don't relegate preparation of important witnesses to junior lawyers who lack actual experience. See, Witness Preparation: Hit or Myth?

  47. They don't dismiss the level of intensive prep needed “just for deposition,” waiting for trial.  Most cases settle, and discovery can make or break a case. My favorite lawyers are just as "on" at a depo as they are at trial. See, 6 Tips for Effectively Using Video Depositions at Trial

  48. They think about details like tie color, suit color, and body language, and they work to improve their delivery at every event they participate in. See, Litigation Graphics, Psychology and Color Meaning

  49. They are grateful that they get to do the kind of work that they do. I watched a top trial lawyer and friend be interviewed recently. His attitude was one of sincere gratitude about being a litigator. That sincerity comes through in everything that he does, and it is part of the reason he is so successful in front of juries. It's something that is almost impossible to fake.

  50. Finally, they ask their litigation consultants what can they do better. So far, as mentioned in the introduction to this article, it has happened just this once. However, I have a feeling we'll get asked this question more and more. I hope this article provides a useful framework for these types of discussions.

litigation consulting graphics jury trial technology

Tags: Trial Graphics, Litigation Graphics, Trial Presentation, Jury Consulting, Courtroom Presentations, Mock Trial, Trial Consulting, Demonstrative Evidence, Litigation Management, Litigation Support, Juries, Jury Consultants, Trial Preparation, Storytelling, Management, Practice, Expert Witness, Leadership, Judges, Opening, Depositions, Witness Preparation, Persuasion

A Harvard Psychologist Writes About Presenting to Win

Posted by Ken Lopez on Mon, Mar 14, 2016 @ 04:59 PM


cuddy-presenting-win-litigator-belief.jpgby Ken Lopez
Founder/CEO
A2L Consulting

I wrote about Harvard psychologist Amy Cuddy's body language TED Talk in 2012. Her findings about how striking a power pose can measurably affect your persuasiveness are as relevant for litigators today as they were four years ago.

Professor Cuddy has released a new book called Presence, and it is filled with an even greater wealth of useful information for litigators. She goes into detail about what one can do to prepare for a high-pressure situation like a job interview, a competitive swim meet, or a venture capital pitch - all situations similar enough to an opening statement that we can safely assume the same advice applies.

When one is delivering as their best self, they are said to be exhibiting "presence." She says that presence is most clear to others when "we feel personally powerful, which allows us to be acutely attuned to our most sincere selves." In other words, when we believe in our message and believe in ourselves, we are in fact scientifically more believable to others - and there are ways to hack your own brain, like the power pose, to make these findings work for anyone.

Make no mistake, presence is not about feigning confidence or passion. Instead, exhibiting presence is more like being in sync with your true self. For these techniques to work and for you to maximize your persuasiveness in the courtroom, you really must authentically believe in yourself. But how?

Her suggestions for achieving presence are not conjecture. Cuddy roots her advice in solid science and rigorous study. For example, one study involved analyzing videos of 185 pitches to venture capitalists. In this setting, much like the courtroom, there is a clear winner and loser. Key behaviors (all sub-elements of presence) of all the presenters were assessed and compared with those who were successful in getting venture capital funding. 

The results are fascinating. Four factors clearly dominated all others in determining who got funding:

  1. Enthusiasm
  2. Confidence
  3. Passion
  4. Lack of Awkwardness

If you think about the great opening statements (and the worst) you have seen, don't these factors just make perfect sense? Doesn't that last point, in particular, resonate with some experiences you've seen (and hopefully not had) in the courtroom? For me, it certainly brings up memories of poor uses of PowerPoint, courtroom technology failures, and litigators who flubbed all sorts of things in front of a judge or jury.

Cuddy goes on to discuss a study involving mock job interviews where the candidates have to speak for 5 minutes to a group of judges who, by design, appear stoic during the entire interview. Some of the interviewees prepared by using a variety of mind and body power-enhancing techniques and some did not. Like the VC funding study and others discussed in the book, the findings of this study offer key lessons for litigators.

It turns out that you can cause others to see you as more persuasive by practicing a few key physical and mental exercises in advance of delivering your message (e.g. your opening statement). Of course, these findings apply to any high stress situation where you must be persuasive or "on."

If you want to increase your presence and thus your persuasiveness, practice some or all of these behaviors in a quiet place when no one else is watching you:

  1. Make Belief: Professor Cuddy encourages that, based on scientific studies, those going into stressful situations where persuasion will be critical, should first conduct this short three-part exercise. Step one is to identify several personal values that are important to you that you know are valued by others about you. Next, identify that value or trait that you rely on most (for me, I value my ability to deliver creative thoughts very quickly). Now, reflect on a time when you did that very well. This exercise tricks your brain into getting into a state of increased power and confidence so that you come across as more persuasive.

  2. Convey Confidence to Yourself: Before your next opening (or mock opening), assume a superhero-like power pose or a victory post for a couple of minutes. Just this act will significantly increase testosterone and decrease stress hormones.  Also, before walking into the courtroom, avoid working in a hunched position, as you would when looking at your phone. Doing so causes your brain to behave in a less powerful and confident way. If you are anxious, trick your brain into treating that anxiety as a positive by repeating, "I'm excited, I'm excited, I'm excited." 

  3. Act as if: Related to the above two concepts is the idea that we really can fake it until we make it. As Cuddy analogously explains throughout the book, if you act as though you have won your case before you walk into the courtroom, as you walk into the courtroom, and throughout the entire case, the natural swagger that this will cause you to exhibit will make you more persuasive.

At A2L, we're not usually hired to increase a litigator's presence, but we often end up delivering that result. You might ask how does a litigation consulting firm like ours help litigators achieve presence? Well, by helping litigators develop their presentations, making them highly persuasive, testing the presentations, practicing the presentations, and doing all the aforementioned work while being encouraging and not critical, we normally send a litigator into battle more confident than ever. It's exactly the kind of authentic from-the-inside kind of confidence that helps a litigator be more persuasive. 

One of our mottos at A2L is that "We Make Belief." I bet Amy Cuddy would approve of our approach.

Other articles from A2L Consulting about trial presentation, trial preparation, and courtroom presence include:

 

opening statements toolkit ebook download a2l

Tags: Trial Presentation, Courtroom Presentations, Mock Trial, Litigation Consulting, Trial Preparation, Psychology, Practice, Visual Persuasion, Opening, Persuasion

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

In-House Counsel's Role In Keeping Litigator Ego In Check

Posted by Ken Lopez on Fri, May 22, 2015 @ 02:57 PM

 

litigator-ego-id-inouse-counsel-winning-managementby Ken Lopez
Founder/CEO
A2L Consulting

I've seen litigator ego contribute to the winning of cases and the losing of cases. Unfortunately, however, I've seen more cases lost because of it than won because of it.

What do I mean by the ego of a litigator? If you've worked around litigators (or litigation consultants for that matter), you already know what I mean. For anyone else, I'm referring to all those first-chair litigators in trial-related situations who put themselves ahead of the client's best interests.

The best definition I have found of “ego” is "the idea or opinion that you have of yourself, esp. the level of your ability and intelligence, and your importance as a person." 

In litigation, we see how ego can play both good and bad roles. Sometimes the presence of ego leads to good outcomes, as it is at least in part ego that allows a litigator to ignore the advice of a client who may be too close to their problem. More often, however, we see ego show up in ways that are counterproductive for the client. For example, in situations where:

  • First-chair waits until the last minute to prepare the opening
  • First-chair prepares the opening alone
  • First-chair rules the trial team with an iron fist
  • First-chair berates fellow members of the trial team
  • First-chair refuses to practice opening and closing statements
  • First-chair won't do a mock exercise for fear of looking bad
  • First-chair does things the way they have been doing them for 30 years

What's wrong with all of these situations? Well, one way or another, they are all bad for the client. Worse, 90 percent of the time, the client has no idea that this is happening. So, what is a client to do?

For the past year, I've been encouraging Fortune 500 in-house clients to get more involved in trials than they have been over the past 30 years. While there are exceptions, most big companies simply hire their litigator buddies or those who have generated good results in the past and then just step out of the way.

I think that was the right approach for a long time, and most of the time, it's still a useful mindset. However, I prefer to see clients treat their outside litigators as a good manager would. That is, they should delegate effectively AND they should hold the client accountable.

I wrote about 25 Things In-House Counsel Should Insist Outside Litigators Do a number of months ago, and it has been a very popular article. The follow-up In-House Counsel Litigation Toolkit has been downloaded over 1,000 times since its December release. These and other resources speak to the concept of delegating effectively. That is, it is important to explain to outside counsel which decisions are, in corporate speak, root, branch and leaf level delegation decisions. It used to be the case that everything except settlement was delegated to outside counsel, but those days are long gone. The same is true for holding people accountable. You must follow up to make sure it gets done the way you want it done. 

There are several things I think in-house counsel must insist on to make sure that ego does not interfere with the outcome of the case.

  • Practice - either in the form of a mock trial or just an open practice session where in-house counsel participates.
  • Storytelling - in-house counsel must hear a compelling narrative from outside counsel as soon as possible, at least many months before trial.
  • The Company’s Story – in-house counsel should make sure the company’s story is being articulated in such a way that it does not cause harm in another case, in the press or with investors. 
  • Consultation – even the most brilliant trial lawyer should consult with his or her client about key strategic decisions in the trial.

It is true that these ideas don’t represent the way things were done 30 years ago. But juries and trials and companies are not the same as they were 30 years ago.

Other articles related to in-house counsel, trial teams and litigation management from A2L Consulting include:

in-house counsel litigation toolkit e-book free download

Tags: Jury Consulting, Mock Trial, Litigation Consulting, Jury Consultants, Psychology, Storytelling, Practice, Opening, In-House Counsel

7 Things In-House Misses When Litigation Consultants are Underutilized

Posted by Ken Lopez on Wed, May 20, 2015 @ 01:08 PM


litigation-consultants-for-in-house-counselby Ken Lopez
Founder/CEO
A2L Consulting

I think that a lot of in-house counsel don’t know that litigation consultants exist in the role that they play today. Trials are so rare these days that this is understandable. But high-quality litigation consultants are in business quite precisely because trial is so rare.

Top litigation consultants go to trial dozens of times per year, while even the best and highest-profile litigation attorneys go to trial once every several years at most.

Litigation consultants help inform litigators about new trends both in rhetoric and in visual presentation and help provide litigators with a knowledgeable sounding board. They are trusted advisors focused on winning. Yet many top litigators are resistant to using litigation consultants or, if they have them, they don't use them to their best advantage.

I'm pretty sure that any in-house counsel would see the value of hiring someone simply to offer opinions about the case, who either has been a litigator or is a jury consultant with tons of trial experience. Common sense tells you this is good for the client. Yet many litigators still resist.

Can you imagine an athlete who used to play a game many times a year who takes a multi-year break not using a coach of some sort to come back up to speed? It wouldn't make sense. Yet in-house counsel allow litigators to do this all the time.

Here are seven useful insights that the client misses out on when litigation consultants are underutilized.

1. The power of storytelling. We know that jurors learn and understand a case by viewing it as a story.

2. The structure of storytelling. A story needs to have a distinct beginning, middle and end.

3. The most persuasive order to present a case. An experienced consultant knows how to build a case in a persuasive way.

4. Practice. Simply by acting as a sounding board, a top consultant induces a trial lawyer to step up his or her game by constant practice.

5. A good visual strategy. Most litigators understand trial practice but they are not familiar with the latest research on how to present ideas visually.

6. Avoiding silly mistakes. Just one misconception, if it is not caught in advance by a consultant and shot down, can lose a case.

7. The insights of a person focused on winning not ego. Consultants have been in court hundreds of times. They know what wins.

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Tags: Litigation Consulting, Litigation Support, Storytelling, Practice, In-House Counsel, 3D Printing

How Valuable is Your Time vs. Litigation Support's Time?

Posted by Alex Brown on Tue, Mar 10, 2015 @ 08:37 AM

litigation-support-value-time-money-qualityby Alex Brown
Director, Operations
A2L Consulting

How do you determine value?
 
This weekend, while my oldest child was in Boston at a gymnastics meet, we thought this would be the perfect time to “renovate” her room back home. My youngest daughter wanted to help but also wanted to negotiate her fee to do so. I came up with many reasons for her to find value in helping: the good of the family, experience, and enjoyment, but none of these provided the proper balance of cost and value to her. Finally I told her that she will be able to destroy something that belongs to her big sister, without any concern for retaliation. This brought her on board, and in the end she not only loved it but she also had the added benefit of being able to tell her sister how much fun it was to destroy her room and how destructive the work needed to be.
 
As litigators, you have a similar job of having to persuade your client about, say, the importance of using expert witnesses or the need to bring on a litigation support team. This is always a delicate conversation because there are so many factors in play; emotions, money constraints, and inexperience, to name a few. For years, the use of expert witnesses has been an easy sell for the most part. But the importance of litigation support (i.e. theming, visual presentations, trial technology/hot seat operators, and mock trial exercises) is not universally accepted, so it can be more of an uphill struggle to convince clients of the need for these things and even harder to persuade them of the value. But why? It’s clearly not the cost, since that normally runs anywhere between .5 percent and 5 percent of the legal fees in a big case. So the sticking point is the need for these services.

Here are a few of the things we hear when discussing our services.
  • It's just PowerPoint, I can do that myself?

  • Just give me a list of universal questions I can ask the jury.

  • We'll just run a mock trial at the office.

  • I think we can bring you in after we know what we want, so it will be cheaper.
As a litigator, do you enjoy having the client sit next to you every step of the way, having the client in meetings when you discuss your next steps, and having them question you on every decision? Of course not. The client doesn’t have the experience, and these questions will drive down productivity. The same is true for litigation support. Perhaps in the back of your mind you think you can do it yourself. But the difference between doing it and doing it right is vast. I would never ask my doctor to fix my electrical problem, I would never ask my babysitter to fix the brakes on my car, and I will never ask my mother to drive at night. Likewise, I would never ask my litigator to do what A2L can do for them. A2L's team is experienced and professional. They can develop more options because they understand the case and are there to support you. They see more court time in a month than most litigators see in a several years. Why wouldn’t you want that level of experience in your corner?
 
David Beldon of iExecuVision International and Vistage once gave me the most important mantra that you as a litigator should incorporate into your life: “I will only do today, what ONLY I can do.”

Other A2L articles and resources related to the role of litigation support, getting value from litigation support and making a case for litigation support services to in-house counsel:

litigation consulting graphics jury trial technology

Tags: Litigation Graphics, Mock Trial, Litigation Consulting, Litigation Support, Trial Preparation, Pricing, Voir Dire, Practice, PowerPoint, In-House Counsel

With So Few Trials, Where Do You Find Trial Experience Now?

Posted by Ken Lopez on Tue, Mar 3, 2015 @ 01:58 PM

 

experienced-trial-lawyers-litigation-consultantsby Ken Lopez
Founder/CEO
A2L Consulting

I have recently interviewed dozens of in-house counsel from large companies. One subject that continues to come up fascinates me and reflects the changing practice of litigation-focused law.

As my litigator turned litigation consultant colleague Ryan Flax says, "they call it the practice of law, but no one is practicing." That is, with so few trials occurring, the normal go-to litigators at big law firms are just not going to trial like they used to, and thus are not getting the practice that they used to get. Since that's true, where does one look for trial experience now, and will there be a shortage of experienced trial lawyers soon at large law firms? Let me offer some observations and five solutions.

The same trial lawyers I once saw go to trial at least once per year a decade or two ago, now go to trial every few years—at best. In their non-trial time, they are not watching trials since they are not being paid to go watch trials, and they do not usually participate in mock trial practice either. The difference between how often a large law firm goes to trial, let alone a single litigator, and a litigation consulting firm like A2L has never been greater than it is right now.

Whereas a major law firm may go to trial perhaps a dozen or two dozen times per year and a single litigator may go to trial every few years, a single litigation consultant at A2L will be involved in at least a dozen trials and often several dozen trials or more, every single year.

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If you think trial-loving partners at big law firms are unlucky, think of their associates, and ask yourself, how is anyone getting any trial experience any more? That is a question that in-house counsel are beginning to ask. As one noted, the people who now look truly comfortable in front of a jury are often plaintiff's counsel, since they are more frequently in court.

One in-house counsel at a large company poignantly noted about about the plaintiffs' counsel they face, "they have a swagger and body language that comes from experience, and that experience comes off as confidence, and confidence helps win cases." So, if in-house counsel recognizes that an experience gap is growing, what is the solution?

Here are five ideas for maximizing the amount of valuable trial experience on a trial team:

1) Litigation Consultants Add Experience to the Team: In-house counsel no longer expect a law firm to have all of the answers. They expect the involvement of litigation consultants early in a case. With litigation consultants in trial almost full-time, they are a logical add-on both from the trial team's and the client's perspective when considering early case assessment, mock exercises or trial. See, Litigator & Litigation Consultant Value Added: A "Simple" Final Product and 25 Things In-House Counsel Should Insist Outside Litigation Counsel Do and 21 Reasons a Litigator Is Your Best Litigation Graphics Consultant.

2) Learning by Doing Programs: Programs like those offered by NITA and others that allow for practice to occur should be a part of a litigators life-long-learning program every year. See NITA programs here.

3) Watch Trials on CVN: Until the Supreme Court figures out that televised trials will improve trial practice, there is an amazing resource trial lawyers can rely on. The Courtroom View Network captures video from trials and makes it available to watch online. In my view, every major law firm should be subscribing to this service to support the training of their litigators. See CVN discussed here

4) Take Every Opportunity to Run a Mock Trial: In-house counsel support the idea of a mock trial but are often afraid of the time and money investment. That's understandable, and while a multi-panel mock trial will always yield the best data, there are other solutions like a focus group or a Micro-Mock. Each offers a litigator the chance to practice his or her craft. See, In-House Counsel Should Make Outside Litigation Counsel Feel Safe and 7 Reasons In-House Counsel Should Want a Mock Trial and Introducing a New Litigation Consulting Service: the Micro-Mock™.

5) Read this Blog and Others Like it: There are several organizations who are publishing information that is far ahead of traditional CLE's when it comes to litigation. The ABA recognized our blog as one of the top ten litigation blogs, and I have highlighted other blogs helpful to litigators in the past. Subscribe free to this blog here. See, The Top 14 Blogs for Litigators & Litigation Support Professionals and Top 100 Legal Industry Blogs Named by the American Bar Association.

Other articles related to mock trials, getting trial practice and increasing your chances of winning at trial by A2L Consulting:

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Tags: Trial Consultants, Trial Presentation, Mock Trial, Litigation Consulting, Juries, Jury Consultants, Trial Preparation, Practice, In-House Counsel

9 Things In-House Counsel Say About Outside Litigation Counsel

Posted by Ken Lopez on Wed, Jan 21, 2015 @ 03:27 PM

 

what-inhouse-counsel-says-about-outside-counselby Ken Lopez
Founder/CEO
A2L Consulting

One month ago I wrote an article titled 9 Things Outside Litigation Counsel Say About In-house Counsel, and we recently included it in our free In-House Counsel Litigation Toolkit e-book. It is a popular piece read by several thousand people so far. Today's article looks at what is being said by in-house counsel about outside litigation counsel.

I've spent a lot of time talking with in-house counsel from large companies over the past two months. They have a lot to say about outside litigation counsel that I don't normally see reported in the popular press.

I expected to hear that outside counsel need to learn to manage budget and find ways to save money, since that's what I mostly read in legal publications. I heard some of that, but the feedback is more nuanced than simple price pressure, and the feedback speaks to a desire for more creativity from outside litigation counsel.

Of course, since I am most often talking to in-house counsel about jury consulting, litigation consulting and litigation graphics consulting, most of their comments relate to those subjects. With that in mind, here are nine things I've heard in-house counsel say about outside litigation counsel recently:

  1. "We have to stop deluding ourselves. At trial, the law is background noise." Big companies are frustrated with having the law on their side and still losing jury trials. As one in-house lawyer said to me, "it is clear that having a good story is important, as one can be right on the facts and the law and still lose." I agree completely, and we have made this point many times in our Storytelling for Litigators ebook and Storytelling for Litigators webinar. More and more, getting the story right is the focus of what A2L Consulting is hired to do as litigation consultants.

  2. Opposing counsel is often more trial-savvy than our outside litigation counsel. Defense-focused litigators from large law firms rarely go to trial, whereas their opposition in many types of cases like product liability, employment, securities and other case types, go to trial quite often. Plaintiff's counsel are quite comfortable relating to a jury, because they do it so often. Their experience comes across in their body language. Defense counsel must make up for this shortcoming with more frequent and repeated practice. Litigation consultants have an obvious role to play here in conducting structured practice, whether in front of a mock jury or more simply, in front of litigation consultants.
    mock jury webinar a2l kuslansky

  3. Gone are the days when one law firm would manage a relationship for the company, so some cost efficiencies get lost as a result. This includes how the company story is told from case to case and understanding the business well enough so that problems are avoided during litigation that might cause much bigger problems elsewhere (e.g. with investor relations or with marketing).

  4. In-house counsel want to hear outside counsel articulate a persuasive story for the case early, not only close to trial. You can add "the client is tired of it" to my list of The 13 Biggest Reasons to Avoid Last-Minute Trial Preparation, because they are. Last minute trial prep makes bills higher not lower, and in-house counsel gets it. See, In-House Counsel Should Make Outside Litigation Counsel Feel Safe

  5. In-house wants to understand how persuasive the opposition's story is. Too often it seems, the strength of the opposition's case is not well described, internalized or properly assessed early enough. See 7 Reasons In-House Counsel Should Want a Mock Trial.

  6. "If a trial team says it has all the answers, it's time to find new outside litigation counsel." Working with litigation consultants makes sense for many reasons but particularly because of the rarity of trial for most litigators vs. the incredible frequency of trials for litigation consultants. In-house understands this point much more so than I imagined before interviewing so many recently. See Accepting Litigation Consulting is the New Hurdle for Litigators.

  7. In-house counsel wants to offer input on the story told at trial. Too often, in-house counsel gives feedback but, as one said to me, "some words may change, but the book stays the same." The benefit of practice with in-house included early is something I've heard over and over.

  8. Most litigators get locked into their approach, and what won cases thirty years ago, may not work today. We like trusted advisors who help us win, but they must prove that they change with the times. See, 19 Ways in Which the World Has Changed Since 1995.

  9. Litigation budgets are often best addressed through early case assessment. By analyzing whether a case should advance toward trial early on, money can be saved by settling early. Creativity here is especially important and is often hard to find. I think the work of author Dan Pink describing the role of creativity in the modern workforce is especially relevant here. See, Daniel Pink, Conceptual Thinking and Trial Consulting.

Other articles and resources related to the work in-house counsel, outside litigation counsel and litigation consultants do together from A2L Consulting include:

in-house counsel litigation toolkit e-book free download

Tags: Litigation Graphics, Mock Trial, Litigation Consulting, Jury Consultants, Trial Preparation, Pricing, Storytelling, Practice, In-House Counsel

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:

mock jury webinar a2l kuslansky

 

 

Tags: Trial Consultants, Jury Consulting, Mock Trial, Litigation Consulting, Litigation Management, Trial Preparation, Practice, Survey

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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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