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When Preferred Vendor Programs Go Bad

It has become quite common for major corporations to institute preferred vendor programs for their legal representation, under which a limited number of law firms pre-qualify to do legal work for the corporations and the corporations turn exclusively to these law firms. As an article on the American Bar Association’s website noted in 2014: Companies create preferred counsel lists not only to cut costs but also to build relationships with subject-matter experts relevant to their industries in their most important geographical areas. By consolidating work across fewer firms, companies deepen their counsel’s familiarity with their issues and get more consistency in their representation. Corporations are also using preferred vendor programs to select other types of outside professionals – including, significantly for our purposes, litigation consultants, jury consultants, litigation graphics consultants, and trial technicians. A few years ago, in fact, we published an article here suggesting no fewer than 17 best practices that should apply to the implementation of a preferred vendor program for trial consultants. The third of these suggested best practices perhaps should have been listed as the first, since the way I see things in our industry, it is the most relevant to what is going on today. It was: Remember, litigation is generally a one-time thing: You never want to be so focused on price that you overlook this. For trial support, you generally only get one bite at the apple, and vendors, especially new ones, can be a risk. So, as you consider procurement, be mindful of quality. Trust me, all firms are not created equal in this industry.

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At A2L, we work on many disputes and trials of various types and sizes. Before starting work, we routinely provide our customers with estimates of what we think it will cost to engage us to conduct a mock trial, prepare trial presentations, assist in the development of the opening statement, and run the courtroom technology.   While it’s never easy to estimate the final costs of fast-moving complex litigation, it's something that firms like ours and large law firms do every day. We've been doing it for 24 years, and we've even pioneered some innovative pricing strategies for litigation graphics and trial tech work. However, I've noticed two schools of thought when it comes to estimating, and one of them seems to lead to better outcomes.   In shorthand, I'll call these two methods a top-down method and a bottom-up method. In my experience, the top-down method leads to more successful engagements, more wins, and much better and trusting relationships.  

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Any time it is feasible, I prefer to price our work using alternative fee arrangements (AFAs) of some sort. They give our customers, which are generally major law firms, predictability and a sense of control. In addition, they provide predictability and control to the ultimate client that is paying the bills, which is typically a large corporation. For A2L, alternative fee arrangements, such as fixed fees, fee structures with a floor or a ceiling, or bonuses for winning a case, offer enormous benefits as well. We achieve the same financial predictability that our clients seek, and AFAs allow us to create closer relationships with our clients. And for firms like ours, our clients, and their clients (the major corporations), alternative fee arrangements do something much more important than creating financial controls. They return the focus to winning.

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Business Development – The A2L Way

by Ken Lopez Founder/CEO A2L Consulting I have always been deeply involved in and passionate about business development. It was this passion that made it possible for me to build A2L from the ground up in the early 1990s. Building a company from nothing is no easy task. I often share with young entrepreneurs one of my great secrets – the ways in which I found my first clients. I wrote down the name of every person I knew who I thought might know someone helpful to the business. Ultimately I ended up with a list of 400 people. They were my first set of prospects. In that group were college buddies, old bosses, and even my mom's high school boyfriend. I contacted all of them, and from that group, I landed clients at AOL, Dickstein Shapiro, and a variety of other well-known law firms. That was how I got started, and this process of relationship-based business development is essentially how I contribute to A2L's business development efforts today. As we're in the process of hiring a new member of our business development team, I started reflecting on how we do business development at A2L. I think it is pretty impressive, and most professional services firms could learn something from our process. It's rather complex and involves a mixture of repeat/referral work (the majority of our work), growing new relationships from old relationships, and using a rather sophisticated method of blogging to generate inbound interest in our firm that attracts clients who think the way we do. Indeed, blogging is one of the most important things that we do as an organization. Most of our new business is generated as a result of our blog. I love it especially because it is very authentically generated business. We share our experiences, we describe the things that we know and believe, and the world's best trial lawyers find their way to us. We give away a lot of our “secrets” about litigation, knowing full well that many people will read these blog posts and never hire us. We hope and expect that some people will read our blog and will be impressed by what we have to say and what we have learned from more than two decades of experience in trial consulting. Our business development team is thus truly in the business of helping, not selling. They help connect top-end trial lawyers with expert litigation consultants who improve opening statements, develop compelling narratives, conduct scientifically valid mock trials, and develop litigation graphics that teach and persuade judges and juries. If you or if you know someone who might like to work in this atmosphere in our DC office, consider sharing this article or one of the links below with them: Craigslist: http://washingtondc.craigslist.org/nva/sls/5702138073.html LinkedIn: https://www.linkedin.com/jobs/view/175456068 Career Builder: http://www.careerbuilder.com/job/JHQ6HH6PSW1XDYXJK41

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by Ken Lopez Founder/CEO A2L Consulting Well, yes, of course they can. In fact, we are hired by them with some frequency. Let’s be specific. Our firm is just about 20 years old, and while our typical client is a medium-sized to mega-sized law firm, we work with a government entity every month of the year. Usually, our work is on behalf of some entity of the federal government, typically the U.S. Department of Justice or some other agency such as the Environmental Protection Agency. A typical large engagement for A2L Consulting would involve conducting several multi-panel mock trials that would help inform the development of litigation graphics, the jury selection, and the overall trial strategy. It would involve the development of litigation graphics for both sides of the case through the mock trial. It would also involve a full development of our side of the case, including the incorporation of storytelling techniques into the opening statement presentation. It would then involve a trial technician who would develop the database of video depositions and documentary evidence for instantaneous display. This is not what a government entity hires A2L for.

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  by Ken Lopez Founder/CEO A2L Consulting Well, no one ever said a trial was like a day at the beach. Except that there are a lot of similarities, if you look hard enough. I'm just back from an annual two-week family vacation at the Outer Banks of North Carolina. My wife and I have seven-year-old triplet girls. My friend says that doesn’t sound too much like a vacation, and his point is well taken in many ways. Although anyone who has done this type of trip with young kids will have some memories that seem as if they came from a Norman Rockwell painting, there are plenty of stressful or crazy moments. Fortunately, with time, the human brain can focus on the good memories. This type of vacation time is chaotic, stressful, and, yes, fulfilling. And that reminds me an awful lot of what I do every day — high-stakes litigation. Let’s consider how these two events are similar. 1) Other stuff comes up. I worked one 16-hour day at the beach. I had to. Two other managers were traveling, and one was slammed. I had to pitch in even if it was from 350 miles away. A long trial is no different. Often, you have to focus on other clients for a bit and you must plan for that possibility at trial. 2) Breakdowns happen. My clunky old Range Rover broke down at the beach. My wife was not pleased, but I’m always prepared for such an event. I have towing coverage that brought the car home, and I enjoyed driving on the beach in a four-door Jeep Wrangler instead. Things break down at trial too, often at the least opportune times. If you're not mentally prepared for that, if you haven’t planned for it, you're going to look bad at trial. See, 12 Ways to Avoid a Trial Technology Superbowl-style Courtroom Blackout. 3) Surprise is the key. My daughters are well behaved, but they need to see the unexpected from time to time, whether it’s an unusual shell on the beach or a funny kind of ketchup bottle. If they don’t have that, they become moody and distracted. Judges and jurors react similarly at trial. If you don't surprise them, they become bored and antsy. Learn the power of surprise. See, Could Surprise Be One of Your Best Visual Persuasion Tools?

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  by Ryan H. Flax (Former) Managing Director, Litigation Consulting and General Counsel A2L Consulting High-stakes litigation is hugely expensive these days. But what if there were a means of reducing litigation costs in a way that helps both the trial team and the client and doesn’t sacrifice the quality of legal representation? That would make in-house counsel very happy, since an important part of their job is to budget and control litigation costs. There are a number of ways to do this, such as using alternative fee arrangements, streamlining litigation teams and bringing e-discovery in house. But what about a more radical step – trying to win your case well before trial? That would indeed be a cost saver and would lead to an excellent result.

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by Ryan H. Flax (Former) Managing Director, Litigation Consulting A2L Consulting I am not advocating that you spend more to develop top-notch demonstrative evidence. What I want you to do is make sure that the litigation graphics that you do use look like you paid a million bucks for them. Make sure you’re getting what you’re paying for. Let me explain why. Recently published and widely reported research out of the University of Cincinnati relating to treating Parkinson’s disease shows that the placebo effect is a real thing and a powerful psychological phenomenon. Interestingly, what the study also shows is that it matters greatly to those experiencing a strong placebo effect how much they believed the pseudo-pharmaceutical cost. Amazingly, seemingly-more-expensive drugs turned out to be much better “drugs” in effect (even though they were not drugs at all). The more a patient believed a drug cost (here the artificial difference was $100 vs $1,500 per dose), the more effective it was at treating their symptoms of Parkinson’s. Perception of cost was capable of influencing physical and psychological behavior and responses on a subconscious level. Wow.

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