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The Litigation Consulting Report

Business Development – The A2L Way

Posted by Ken Lopez on Mon, Aug 22, 2016 @ 04:13 PM

a2l_professional_services_business_development.jpgby 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:

Here are some other business development for professional services firms articles and tips that you may find useful:

Tags: Litigation Management, Pricing, Management, Leadership, Business Development, Litigation Public Relations

Can State and Local Governments Afford Litigation Consultants?

Posted by Ken Lopez on Mon, Sep 21, 2015 @ 10:19 AM

state local government jury consultants graphics litigation consultants pricingby 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.More typically a government engagement, whether local, state or federal, would involve a subset of one of our service areas. Instead of a large multi-panel mock trial, a focus group study or micro-mock is often used. Instead of a deep and protracted engagement with the development of litigation graphics over months, incorporating storytelling and opening statement practice sessions, often our engagements will be limited to either the development of an opening statement, practice sessions, or a consulting engagement to help incorporate storytelling techniques.

After all, some of the cases in which state and local governments are involved are high-priority matters, such as environmental cleanup, zoning, eminent domain, and employment cases, where millions of dollars may be at stake. We know that we can help clients like this, even though they may have a limited budget.

We've written before about how to save money when engaging litigation consultants. Sometimes, this involves asking the right questions. Sometimes, it involves understanding the most cost-effective ways to proceed. Sometimes, it involves communicating your budget to your litigation consulting firm, even if it is only $5,000, and asking what is possible. Something is always possible.

The articles below will help make you an expert in using litigation consultants in a cost-effective manner.

Other articles related to trial presentation services and cost saving tips from A2L include:

a2l consulting top 75 articles of all time

Tags: Trial Graphics, Trial Technicians, Litigation Graphics, Jury Consulting, Litigation Consulting, Demonstrative Evidence, Hot Seat Operators, Trial Technology, Pricing, Advocacy Graphics

18 Ways in Which Trial Can Be Like a Family Beach Vacation

Posted by Ken Lopez on Mon, Aug 31, 2015 @ 11:52 AM

 

trial-like-beach-vacationby 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?

4) Busy is hard to predict. On vacation, you can plan a quiet day, but it doesn’t turn out that way. In our trial business, like many litigation-focused firms we are often less busy in August. That’s not true this year. We are quite busy.

5) People get bored quickly. Whether kids or jurors, it’s not just about surprise when keeping them engaged, it’s about intentional entertainment. Put that into your daily plan. These days, videogames are everywhere, they’re usually not expensive, and they’re fun. Video presentations for jurors are much more expensive, but they can be entertaining as well. See, Lights! Camera! Action! Verdict! A Trial Team's Responsibility to Visually Entertain and 12 Things Every Mock Juror Ever Has Said - Watch Anytime.

6) You need a backup plan. It can rain all day at the beach. A motion in limine can be rejected. You have to plan not just for tech failures but also for things not going the way you want. See, 24 Mistakes That Make For a DeMONSTERative Evidence Nightmare

7) Eat well. If you don’t eat well on vacation, you won’t have energy to do things you want to do. The same is true at trial. While you may think you just want comfort food, you have to eat like a warrior if you are going to be successful in battle.

8) Exercise. On vacation, you can start any day the right way with a run, a fast walk, or even some good stretching. At trial, don’t neglect your body. You are more focused, happier, and better equipped to face adversity if you’ve exercised that day. See, 10 Signs the Pressure is Getting to You and What to Do About It

9) Good movies work. My wife and I can’t keep the kids entertained the whole time. That’s where AppleTV comes in. A good movie captivates and buys mom and dad some down time. In trial, if you fail to create drama that follows the pattern of a good movie, you’ll probably lose. See, Are You Smarter Than a Soap Opera Writer?

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10) Stories trigger memories. I’ll remember the stories from this trip for a lifetime. Think about that. Many have already been reduced to family lore. Jurors are likely to remember your case only if it’s in the form of an easily understandable story. See, Storytelling Proven to be Scientifically More Persuasive

11) Learning really works only if it’s fun. It may be summer, but the kids have to keep learning right? Well, maybe. If you give them flashcards or force them to read books, they’ll probably say no thanks. What if you ask them to count how many different types of birds they can see in the park? Again, jurors will learn the technicalities of software engineering for a patent case – if it doesn’t seem like work. See, How I Used Litigation Graphics as a Litigator and How You Could Too

12) Know your environment. You probably wouldn’t plan a beach vacation without knowing in advance not only where the beaches were, but also the location of parks, restaurants, gas stations and other necessities. Similarly, you wouldn’t plan a trial without knowing the physical setup of the courtroom, the judge’s predilections and so on. See, 21 Ingenious Ways to Research Your Judge

13) Don’t under-budget. You don’t need to spend a fortune on a beach vacation, but you need to plan it in advance to meet everyone’s needs. In trial too, make sure you ask for the budget that you need in order to win. See, In-House Counsel Should Make Outside Litigation Counsel Feel Safe

14) Start strong. The first day of a vacation often sets the tone. First impressions remain vivid. A juror’s trial experience should be the same way. Jurors’ thoughts about a case often are fixed by the first good version of the facts that they hear. Download: The Opening Statement Toolkit — Complimentary Download

15) Emphasize multimedia experiences. We went to aquariums, rode on air boats, and spent time on the beach. It didn’t get boring. Jurors like to get information in many different ways – from live witnesses, from video and audio, and from carefully designed graphics. See, How to Handle a Boring Case

16) Give people room to make their own stories. Kids will draw the damnedest and most interesting conclusions from a vacation. Similarly, you don’t have to drag a story into jurors’ minds. You can suggest all the elements and let them fill in the rest. See, Storytelling at Trial - Will Your Story Be Used?

17) Push the boundaries. Sometimes it’s a great idea to challenge kids and to expose them to experiences they’ve never had. Jurors can react the same way. Sometimes a novel approach or an unusual presentation of data is just what they need. 

18) Don’t take yourself too seriously. Make sure the vacation is fun, not just a way to check off a box that you’ve had a vacation. Of course, trials are extremely important events, but if things aren’t perfect, just know that you’ve done your best. Here's a 30-second video of my kids' daily obsession  - the ice cream truck - that's sure to put a smile on your face.

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

opening statements toolkit ebook download a2l

Tags: Trial Presentation, Trial Technology, Juries, Trial Preparation, Pricing, Psychology, Storytelling, Opening

Winning BEFORE Trial - Part 1 - Consider Litigation Costs and Opportunities

Posted by Ryan Flax on Wed, Aug 5, 2015 @ 01:59 PM

 

pre-trial-graphics-litigation-consultantsby 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.

Let’s first look at how expensive this type of litigation can be. A piece of employment litigation that is in the top 25 percent of costs (but not in the top one percent or anything like that), costs close to $1 million by the end of discovery – and that’s before closing arguments. And the costs are mostly borne by the defendant.

Or consider a typical patent infringement case – say, one that involves possible damages of $1 million to $10 million. This kind of case usually ends up costing more than twice as much as that employment case. By the time discovery is over in the patent case, you’re well past the $1 million mark in costs. Other types of cases – antitrust, environmental, contract cases and the like – are not quite as expensive, but costs add up there too.

how-much-does-litigation-cost

But it doesn’t have to work out that way. There are quite a few ways of winning a case without a trial.

First, we all know about dispositive motions – motions to dismiss, summary judgment motions, motions related to venue and jurisdiction, and the like. These can end a case before trial, but after the filing of a brief and usually an oral argument.

Second, a Markman hearing is a special type of proceeding in a patent case in which the court hears argument (and sometimes some expert testimony) and decides what the patented invention actually is by interpreting the patent claims and resolving disputes over claim language.

Third, a pre-indictment meeting is one that takes place when your client is under investigation by the government and you would reasonably expect charges to be presented against it. This usually involves an attempt by counsel to persuade the government to drop a case before it begins.

Finally, we all know about mediation, arbitration and settlement.

All of these are out-of-court occasions in which lawyers have a chance to argue their clients’ cases before trial. They can happen in lieu of a trial or just before a possible trial.

What do all of these have in common? They are all opportunities, before trial, to begin winning your case by using the best practices of case framing and persuasion.  If you can raise your game in these situations, if you can persuade the court or opposing counsel or the opposing party or a mediator or the opposition’s star witness that you’re a winner, how much better off would you be?

In our next post, we will discuss more about these best practices and how they can help you win. To be notified when subsequent articles are published, click here.

Additional articles and resources focused on pre-trial strategy and trial preparation from A2L Consulting:

* Chart data is based on 2013 Court Statistics Project Caseload Highlights, RAND Institute for Civil Justice “Where the Money Goes, Understanding Litigant Expenditures for Producing Electronic Discovery” (2012) and 2013 AIPLA data.

pretrial trial graphics motions briefs hearings

Tags: Economics, Markman Hearings, Arbitration/Mediation, Trial Preparation, Pricing, White Collar, Settlement, Briefs

Why Expensive-Looking Litigation Graphics Are Better

Posted by Ryan Flax on Fri, Mar 13, 2015 @ 10:37 AM

by Ryan H. Flax
(Former) Managing Director, Litigation Consulting
A2L Consulting

placebo-effect-juries-litigation-graphics-expensive-price-costI 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.

Knowing this new and interesting bit of science, how can we use it to be more persuasive in litigation, ADR, or similar situations? An easy step is making it appear that your demonstrative evidence, e.g., trial graphics, were very expensive. This is easy – just make your graphics, boards, scale models, etc., look fantastic: creative, well designed, well composed, simple, beautiful, and well-targeted to their specific purpose.

cost-perception-persuasion-placebo-effect-juries-litigation-graphics-expensive-priceI became aware of the above-identified research while driving to the office and listening to NPR’s Morning Edition. The show very briefly discussed the research and it really struck a chord with me because just the day before I’d been in a client’s patent claim construction (Markman) hearing at the U.S. International Trade Commission (ITC) and had the opportunity to compare our supporting graphics to those of opposing counsel. I know ours satisfied the requirements for looking very expensive (see above). The opposition’s, on the other hand, while arguably supportive of their argument, and were rudimentary and just plain ugly.

cost-perception-persuasion-placebo-effect-juries-litigation-graphics-expensive-price-uglyWhat makes litigation graphics ugly? Not paying attention to style, lack of client and/or case branding (must be subtle though), inconsistency in color/font size/font type, lack of composition, use of improper font for electronic display, poor slide aspect ratio choice, too much text, too small text, use of bullet-point lists, use of PowerPoint effects for no good reason, and many other things. Basically, if slides look like anyone could make them, they’re not worth the effort or cost. Litigation graphics must look intentional, beautiful, and purposeful. They should look like they cost a lot (but they don’t, really).

I am confident that there was no significant difference in how much either set of Markman hearing PowerPoint slides cost, ours versus theirs. But I witnessed a huge difference in the way the Court received each side’s counsel at oral argument and the general momentum throughout the hearing. It all went our way. The arguments on our side were better, no doubt, but I believe the “high-priced-placebo” effect also played an important role. Our more appealing, more professional-looking, higher-design, more focused graphics enhanced the entire experience for the judge and resulted in better rapport and a lot more nodding at and softball questions for our attorney.

Don’t pay more. But, make sure you get more.

Other articles from A2L Consulting related to litigation graphics, pricing of litigation support services and getting good value from your litigation graphics provider:

Maximize Persuasion During Opening Statements

Tags: Trial Graphics, Litigation Graphics, Demonstrative Evidence, Animation, Pricing, Psychology, PowerPoint, Visual Persuasion, Trial Boards, Information Design

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

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

A Mixed Litigation Industry Outlook for 2015

Posted by Ken Lopez on Wed, Dec 10, 2014 @ 03:13 PM

 

2015-economic-outlook-litigation-industryby Ken Lopez
Founder/CEO
A2L Consulting

The tree is up, the 2015 strategic plan is done, holiday travel plans are all set, so it must be time for my annual litigation industry economic outlook for 2015. First though, a reminder of why I do this.

I believe that the litigation industry's performance is closely tied to broader economy's performance. This is especially true for big-ticket cases.

As I have done in 2012, 2013, and earlier this year, I create an economic forecast to both exercise my undergraduate degree in economics a bit and force myself to take a hard look at what the coming year will be like for those of us who focus on litigation for a living.

While I can't help paying attention to anecdotal indicators, each year I focus on one leading indicator of economic conditions, ECRI's U.S. Weekly Leading Index. It reliably forecasts economic growth about eight months out into the future.

Big-ticket litigation is largely dominated by large companies who are sophisticated in their monitoring of economic conditions on a day-to-day basis, and it appears that they adjust their litigation spend rather quickly based on changes in the economic climate. When economic conditions are good they file cases, they spend on cases and they tend not to settle cases. When economic conditions are bad or uncertain, they don't file cases with the same fervor, and they do settle cases more quickly.

Truthfully, it's a complicated correlation dollar-wise as it usually takes a couple of good years of economic growth for cases to start being filed in earnest. Since litigation spending increases toward trial, there is also a lag for an upswing on litigation spend.

Click Here for Litigation Webinars

Anecdotally, we're seeing cases go to trial that might not have made it to trial a couple of years ago and A2L Consulting continues to grow. However, in just the past month we have seen one of the industry's best-known brands, Trial Graphix, be picked apart and sold yet again (is this the fourth time in five years?). It's not easy going in litigation support, but there is growth for those that deliver great value.

Before turning to the forecast, it's worth addressing what gets reported in the popular press. After all, the press keeps saying jobs are growing at the best rate in decades, and all the jobs lost since the beginning of the 2008 recession have been recovered. Well as much as I'd like to get on a bandwagon of optimism, the facts just don't support it - at the very least, the press is cherry picking the good news.

In reality, labor market participation, the percentage of Americans working, is at the lowest number since 1978, the Jimmy Carter years. Furthermore the jobs that are being created tend to be low-wage part-time positions. Wages, the total amount paid to workers in the U.S., are actually down 23% since just 2008.

Now, here's what the forecast says. When looking at the charts below, in the general, up is good and down is bad. The green line is the forecast of economic growth. The blue is what happened in reality.

ecri-wlgi-litigation-industry-economy

Here's what this chart says. The blue line tells us that economic growth has been positive for all of 2014 (yes, we did see a GNP dip in Q1 as I discussed earlier this year). The green line, the forecast of the future, tells us something ominous. Up until about June, future economic growth looked slow and steady, but that's when that indicator started falling. It's now negative. That means, beginning in about June + 8 months or so, about February 2015, we can expect to see conditions worsen for the broader economy until at least fall 2015.

Might falling oil prices give the economy a boost? Maybe, but those effects lag at least six months.

Here's the good news. Not many people have spare cash in this economy yet. But you know who does? Big companies do. Corporate profits are at their highest levels since the mid-1960s!

So, while the overall outlook for workers and small and medium sized businesses may not be great, those who focus on servicing the needs of big companies will likely be successful in doing so - if they deliver great value. That is where most of A2L's attention will be in 2015, and that is true for most large law firms.

Articles related to the economics of the litigation market, law firm sales, pricing and more on A2L Consulting's site:

Tags: Economics, Litigation Graphics, Litigation Consulting, Litigation Management, Litigation Support, Pricing, Leadership, Midsize Law Firms

In-House Counsel Should Make Outside Litigation Counsel Feel Safe

Posted by Ken Lopez on Fri, Dec 5, 2014 @ 11:04 AM

 

in-house-counsel-penny-wise-pound-foolish-pleasing-affraid-to-ask-supportby Ken Lopez
Founder/CEO
A2L Consulting

Earlier this week I published, 25 Things In-House Counsel Should Insist Outside Litigation Counsel DoI realized something important while writing that article and while participating in follow-up discussions with readers and colleagues. It's an important realization as I think recognition of it might just lead to better litigation results and money savings for in-house counsel.

Here it is. Because of the current state of the relationship between most in-house counsel and outside litigation counsel, outside counsel are not asking for budget for everything they believe would help win a case. This is leading to short term savings and longer term major expenses.

You see, outside litigation counsel really want to please in-house counsel. And why shouldn't they? In-house counsel pays the bills, they ARE the client, and they represent the holy grail—the hope of a longer and broader legal relationship that pays dividends for the relationship/billing partner for years to come.

So, what's wrong with having a service provider try to please you? We could all use more of that, right? Isn't that just good customer service?

Here's the problem. Outside litigation counsel is, ideally, not acting as a mere service provider. Rather, they are acting as, and please forgive the cliche, a trusted advisor. Unfortunately, I think most outside litigation counsel feel like the balance between trusted advisor status and mere service provider status has tipped a bit too far toward service provider status in recent years.

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When you are a service provider, your motivations are a bit different than when you are a trusted advisor. As a service provider, your goal is to make the customer happy and preserve the business relationship. You wouldn't want your doctor to only tell you what you want to hear. You want them to tell you what you need to hear. The same is true for your outside litigation counsel. But how can we expect outside litigation counsel to tell us the truth if they don't feel safe doing so.

I think most outside litigation counsel are scared. They're scared of losing business. They're scared of RFPs. They're scared of asking for what they honestly believe they need. And I think it is negatively affecting litigation outcomes, and I think it is mostly up to in-house counsel to solve this.

My mentor recently said, if you're not getting what you want from a relationship, your partner is likely not experiencing you as safe. It's true in any relationship, of course. Translated for litigation, if you're not getting the litigation outcomes you seek, it may be because outside litigation counsel does not feel safe asking you for the tools they need.

So, if you are in an in-house counsel role, ask yourself, are my litigators truly comfortable telling me, let alone asking for, what they need? Are they talking to me about mock trials, litigation consultants, and litigation graphics created based on persuasion science rather than the mere gut instinct of an inexpensive twenty-something graphic artist?

If they are not telling you that they need these things, it's likely either because they are afraid to ask or because they don't know that they should be asking. Either way, it's probably going to be up to you as in-house counsel to solve this problem, and my article from earlier this week about the in-house/outside counsel relationship provides a good framework for discussion.

Other articles by A2L Consulting focusing on litigation consulting, in-house counsel and value:

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Tags: Litigation Graphics, Mock Trial, Litigation Consulting, Litigation Management, Pricing, Leadership, In-House Counsel, Alternative Fee Arrangements

In-House Counsel Hiring Methods for Litigation Counsel Are Surprising

Posted by Ken Lopez on Thu, Nov 20, 2014 @ 05:04 PM


by Ken Lopez
Founder/CEO
A2L Consulting

surprise-inhouse-counsel-hiring-decisions-outside-litigation-counsel-litigatorA little more than a month ago, I surveyed our readership and asked, "how does in-house counsel hire outside litigation counsel?" Six possible answers were presented in random order.

  1. In-house chooses the lowest priced firm from a group of approved firms.
  2. In-house hires the best litigator based on prior experience.
  3. In-house hires the best litigator based on their reputation.
  4. In-house hires their litigator friends and former (or future) colleagues.
  5. In-house hires the litigator most likely to generate a win.
  6. Finally, a write-in field for other responses answers

Having worked in the litigation industry for more than 20 years and seeing favoritism trump skill plenty of times, I expected some cynicism to show through in the answers provided. However, even with that expectation, I was still very surprised with the results.

A2L Consulting is quite precisely in the business of helping litigators improve their results at trial, primarily through mock trial testing, litigator coaching and the development of persuasive litigation graphics. Said another way, we are in the business of helping trial teams win. Accordingly, perhaps seeing the world a bit too much through my own lens, I really did expect that the number-one result would be "in-house hires the litigator most likely to generate a win." 

Boy, was I wrong. That answer didn't place in the top four. In fact, other than "Other," win-generation-likelihood was the factor ranked lowest for how in-house counsel hires outside litigation firms. I find that amazing. Isn't a win exactly what we seek when going to trial in the first place?

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Well, the results get even more surprising. Two answers stood out as the dominant rationale for making hiring decisions. They are essentially tied for first place and are together twice as popular as the next two highest ranked answers. Based on 168 responses thus far, in-house counsel hires outside litigation counsel by:

  • Hiring the best litigator based on prior experience, and;
  • Hiring their friends and former (or future) colleagues.

Those are pretty surprising answers if you think about it. In-house counsel are, by and large, hiring their buddies and litigators they've used before. They are not hyper-prioritizing winning, reputation and price, at least not over other factors. That's not to say that those factors are not considered. Rather, they are just factors not at the top of the list (albeit, by a wide margin).

There's nothing wrong with hiring a litigator who has generated good results before. Past performance is the best predictor of future performance. However, it is extraordinarily rare, if not impossible, to find a litigator that is the right fit for every case a business faces. Furthermore, most great litigators actually go to trial very rarely, so how can one reasonably predict great results based on one or two previous positive results? If favoritism is the dominant decision-making rationale, one can't really say they are deeply focused on winning. Trust may be important, but how much does it really contribute to getting great results at trial?

Putting on my CEO hat for a minute, I can't imagine our GC making a decision based on favoritism, and I wonder if CEOs and CFOs understand how the hiring of outside litigation counsel is being handled in their firms. How many dollars are being lost or left on the table (at trial or with outside counsel) because of this decision-making methodology? How would a CEO or Board of Directors even begin to evaluate whether the trial results they are getting are as good as they should be? I'm going to tackle this and many of these questions in future articles.

The write-in answers on this survey provide more clarity, confirmation of the dominant decision-making rationale and a few laughs. Here are a handful of answers that stood out to me when our readership was asked, how does in-house counsel hire outside litigation counsel, and chose "other":

  • "In-house hires the firm where a member of the board of directors is a senior partner."
  • "In-house hires the law firm least likely to cause in-house to be fired"
  • "In-house hires "IBM", which is the litigator or firm that they will not be questioned about if they lose"
  • "In-house hires the firm that presents the strongest strategic argument when interviewing the firms"
  • "In-house hires the team with whom they see themselves being able to spend the next five to seven years of the lives."
  • "In-house hires the litigator who best understands their business"
  • "Hire a big firm regardless of price or litigation history."
  • "Who they play golf with."

Other articles discussing litigation management, in-house counsel and working with litigation consultants like those at A2L Consulting:

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Tags: Trial Consultants, Litigation Consulting, Litigation Management, Trial Preparation, Pricing, Leadership, In-House Counsel, Alternative Fee Arrangements

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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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