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The Litigation Consulting Report

10 Fears That First-Time Users of Litigation Consultants Have

Posted by Ken Lopez on Mon, Feb 27, 2017 @ 05:14 PM

fear-use-litigation-consultants-jury-graphics-technology.jpgby Ken Lopez
Founder/CEO
A2L Consulting

At A2L, we have worked with thousands of clients over the last several decades. When we first started, almost no trial lawyers had experience with litigation consultants. However, as time went on, the majority of the people we work with have used either jury consultants, litigation graphics consultants, or trial technology in-court specialists at some point in their careers.

All these years later, perhaps 20 percent of our clients are first-time litigation consulting users. Not surprisingly, first-time users exhibit many of the same fears that newcomers have shown for decades.

Most of these fears are simply fears of the unknown, not actual problems with using litigation consultants. At the core of these fears is a fear of being out of control. But when is a client ever really out of control? Never. We service providers strive at all times to make our clients happy. 

Still, many fears persist about using litigation consultants the first time.

  1. Fear: Costs will spiral out of control. Reality: In my opinion, some of the firms who have failed in our industry helped create this fear. At our firm, we strive to be completely transparent about costs. To that end, we've developed alternative fee arrangements, we've developed loyalty programs, and we are deadly serious about telling our clients everything they need to know about costs.
  1. Fear: I'll be revealed for who I really am. Reality: Most good leaders struggle with imposter syndrome to a degree, myself included. In my experience the best litigation leaders not only question their approach regularly but they invite that type of questioning. See, 10 Criteria that Define Great Trial Teams.
  1. Fear: I don't want to be told what to do. Reality: Only a non-savvy litigation consultant would tell you what to do. Remember, you're the client. Yes, winning is a priority but so is building and maintaining a relationship with you.
  1. Fear: I might look bad to my client. Reality: Great litigation consultants pay as much attention to the relationship between you and your client as they do to the relationship they are building with you. 
  1. Fear: I'm supposed to have all the answers. Reality: No, you're not. You're no doubt an expert in many areas, but nobody is an expert in all of them and nobody has the time to prepare for everything leading up to a major trial. Delegation is as much a sign of good leadership as anything else. See, 50 Characteristics of Top Trial Teams.
  1. Fear: No really, I'm supposed to have more answers than I have. Reality: One of the most important reasons to work with litigation consultants is to get to the point where you can thrive in doing what you do well, and your litigation consultants can do what they are so well trained to do. See, Accepting Litigation Consulting is the New Hurdle for Litigators.
  1. Fear: I don't want to practice in front of others. Reality: What great athlete, politician, actor, or speaker does not practice in front of others. If you want to be great, practice is non-negotiable. See, The Very Best Use of Coaches in Trial Preparation.
  1. Fear: Technology makes me uncomfortable. Reality: A great litigation consulting firm will take technology off your hands as much as you like. While many jurisdictions demand technical competence from lawyers now, it is perfectly reasonable to delegate all or most of the tech needs at and leading up to trial. See, From the Hot Seat: To Use or Not to Use Trial Presentation Software.
  1. Fear: I don't have time. Reality: Using litigation consultants saves time. They take things off your hands that you probably should not be doing anyway. See #10 in 12 Reasons Using Trial Consultants (Like Us) Is Possibly Not Fair.
  1. Fear: I don't need help - that's for the weak. Reality: The best litigators I work with seek help - all of them. Even trial-challenged litigators I know seek help. In my experience, the only people who don't seek help are people who are afraid they are going to lose. See, 3 Trial Preparation Red Flags That Suggest a Loss is Imminent.

litigation consulting graphics jury trial technology

Tags: Trial Technicians, Litigation Consulting, Demonstrative Evidence, Hot Seat Operators, Trial Technology, Psychology, Alternative Fee Arrangements

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

NITA Experts Agree: Jurors Want Lawyers to Show, Not Tell

Posted by Tony Klapper on Thu, Feb 2, 2017 @ 04:43 PM

bored-jury-show-dont-tell-litigation-graphics.jpgby Tony Klapper
Managing Director, Litigation Consulting
A2L Consulting

We have written many times about the fact that scientific studies have shown that nonlawyers (who are the vast majority of jurors) tend to be visual learners, and tend not to be auditory learners or kinesthetic learners –people who learn by experiencing. Lawyers (who are the ones who present facts and tell stories to jurors) tend not to be visual learners and are often drawn from the ranks of auditory or kinesthetic learners.

Of course, this can present an intrinsic problem that we have discussed before. If most lawyers like to tell but not show, and our audience, the jury, prefers to be shown something and not to be told, we may completely fail to connect with our audience.

It’s not just psychologists and other students of human behavior who say so; it’s also people who devote full time to understanding trial advocacy. The National Institute of Trial Advocacy (NITA) is a fantastic organization that represents the “gold standard” of trial advocacy. In addition to putting on outstanding CLE programs for newbie and experienced litigators, NITA also publishes many great books from scholars who have thought long and hard about advocacy.

In a famous NITA publication, Modern Trial Advocacy, author Steven Lubet connects the obvious aspects of our daily lives with what we should be doing in the courtroom. He writes: “We are used to receiving our visual information from a screen . . . Why would any trial lawyer not want to provide jurors with the same graphic quality and medium that they experience in most other aspects of their lives?” Flip charts are fine, but carefully crafted litigation graphics might be better.

Another example comes from an ABA-published book recommended by NITA speakers and written by Steven Easton called, How to Win Jury Trials: Building Credibility with Judges and Jurors. Easton says something that may be obvious but still needs to be stated clearly. He writes, “We live in a picture-based society that is dominated not by words, but by television sets, video cameras, movie screens, computers and photo albums.” His implicit message? Don’t just tell, SHOW! It’s even more true now that so many people get their news from Facebook and turn to Instagram every day for photos. 

Finally, there is this NITA-recommended example from a well-regarded trial advocacy scholar, Thomas Mauet, and his classic book, Trial Techniques: “Studies show that learning and retention are significantly better if information is communicated visually.” No question about it.

So we need go no further than NITA publications or those recommended by NITA, which for 40 years have helped countless lawyers understand how to try a case simply by doing it in simulated fashion. NITA and its writers and thinkers, top trial lawyers all, agree that showing rather than telling is the way to go.

Other A2L Consulting free articles and free learning resources about litigation graphics, jury psychology, trial advocacy, storytelling and demonstrative evidence include:

persuasive storytelling for litigators trial webinar free

Tags: Trial Graphics, Litigation Graphics, Jury Consulting, Demonstrative Evidence, Juries, Psychology, Storytelling, Persuasion

Three Top Trial Lawyers Tell Us Why Storytelling Is So Important

Posted by Ken Lopez on Tue, Jan 17, 2017 @ 09:53 AM

storytelling-trial-lawyers-interviewsby Ken Lopez
Founder/CEO
A2L Consulting

We recently had the opportunity to interview three top trial lawyers. We asked them for their views about the practice of law and about what really works at trial.

Collectively, more than 100 years of wisdom are speaking in these interviews. I couldn't agree more with these trial lawyers’ positions, and over the coming weeks, we will share some of these interviews, edited for clear and quick messages and understanding.

These three lawyers, Patrick Coyne, Rob Cary, and Bobby Burchfield, are at the top of their field. Let's hear what they have to say about storytelling at trial.

Finnegan partner Patrick Coyne, an intellectual property litigator, said: “I think a lot of lawyers approach IP cases with the idea that all I have to do is convince them that I’m right. Wrong. People make their decisions based on their values and beliefs. What the story does is give the jurors a narrative that you can tie in to their values and beliefs, and they can then fill in the gaps themselves. It makes sense to them based on their perspective.”

Rob Cary, a litigation partner at Williams & Connolly, said, “Being a litigator is about storytelling, making a narrative that makes sense and that is credible and reasonable. So much of what is taught in law school is so complicated and so nuanced that it inhibits good storytelling. So I think all lawyers when they get out there, and especially if they practice before jurors, need to be good storytellers. It is crucial to stick to the truth, and of course you need to be able to show as well as to tell.”

Said Bobby Burchfield, a litigation partner at King & Spalding, “I think of a trial in terms of putting together a comprehensible and comprehensive story in terms of what I can get people to remember and what I can get people to believe. That’s when you really mature as a lawyer, when you understand it really that is the narrative that decides the case and not whether you think you’re right.”

As is clear from the interviews with these top trial lawyers, building a narrative is essential to the consulting work that A2L does, because developing a persuasive narrative is essential in the modern trial. All too often it's overlooked or only considered at the eleventh hour.

We've written about storytelling extensively in articles like 5 Essential Elements of Storytelling and PersuasionStorytelling Proven to be Scientifically More Persuasive, $300 Million of Litigation Consulting and Storytelling Validation, and Winning BEFORE Trial - Part 3 - Storytelling for Lawyers. And we've even created a compendium-style book of articles related to storytelling - it's a free download.

Finally, if you happen to miss last week’s A2L Consulting storytelling webinar delivered by A2L's Managing Director of Litigation Consulting, Tony Klapper, and attended by nearly 500 of your peers, you can now watch a recorded version here.

persuasive storytelling for litigators trial webinar free

Tags: Trial Graphics, Litigation Graphics, Trial Consulting, Juries, Psychology, Storytelling

Is the Witness a Big Fat Liar, and Can the Jury Tell?

Posted by Katie Bagwill on Mon, Dec 5, 2016 @ 03:40 PM

witness-how-to-tell-if-lying-liar-deposition-trial.jpgby Katie Bagwill
A2L Consulting

Wouldn’t it be nice to be able to learn, just from hearing a witness utter a few phrases, that the witness is lying? Unfortunately, we can’t read minds, so we need to make do with second best: reading the tone of the witness’s voice and eye movements.

The scientific community has been working hard to develop a way to gauge an individual’s truth telling based on the person’s behavioral, verbal, and physiological responses. In the meantime, you can use these ideas when questioning a witness, preparing your own witness to give testimony, and selecting potential jurors.

Vocal Cues. Using questioning methods similar to that of a polygraph, voice stress analysis is used to pick up on changes in the frequency in a person’s tone of voice when speaking. The basic idea is that when you are lying, the muscles that contract when you are speaking will produce a slightly higher or lower frequency. By having someone speak into a microphone, you can use a vocal stress analyzer on your computer or, thanks to technology, on your phone.

Why it should matter to you: Even if those tools aren’t available to you or would be too time-consuming to use, the basic principle is something you should keep in mind: lying causes physiological stress and stress causes a person’s vocal pitch to change. While a seasoned liar may be good at keeping his or her voice steady when lying, the average person (i.e. someone called for jury duty) could let it waver.

Eyeball Movements. There’s this idea floating around that if someone is looking to the right they are lying and if they look to the left they are telling the truth. While this isn’t necessarily always true, there is a science behind it. Research has been done that links patterns of eye movements to different forms of cognitive processing. Each direction notes the characteristics of the thought process in question (visual, auditory, emotional). The difference in sides refers not to just “lying” but to the cognitive processes used in creating a realistic story, which requires a higher level of thinking than recalling. (see also http://www.a2lc.com/eyechart)

Why it should matter to you: Take note of the witness’s or potential juror’s normal eye movements while speaking. Deviance from their “normal” is a stronger indicator of “creative” thinking than utilizing the eye movement chart alone. In combination with other methods of detecting deception, it is a useful tool.

Other articles about psychology, cogitive bias, persuasion, and influencing juries from A2L Consulting include:

A2L Consulting Voir Dire Consultants Handbook

Tags: Trial Consultants, Jury Consulting, Trial Consulting, Juries, Voir Dire, Jury Selection, Psychology, Expert Witness, Witness Preparation

5 Key Lessons You Can Learn From Mock Juries

Posted by Katie Bagwill on Wed, Nov 30, 2016 @ 01:32 PM

mock-jury-focus-group-mock-trial-jury-consultants.jpgby Katie Bagwill
A2L Consulting

Watching a mock jury deliberate is a lot like watching Dr. Phil; there is a lot of arguing, and most of the “facts” end up skewed. Nevertheless, a mock jury’s conclusions and how they reach them are essential to any lawyer who wants to understand the weaknesses of his or her case. Here are some of my takeaways from observing this fascinating exercise recently.

  1. Be clear. If a point or idea you want to instill in the jury isn’t clarified enough, you will see it warped and interpreted wildly during the deliberations. During each mock presentation that I saw, the amount of attention paid and the volume of notes taken varied, but one constant seemed to be apparent: jurors want to feel as if they have all the information. Even if they don’t, once they have a firm opinion, they will use any of the “facts” they have to defend it. Naturally you want these facts to be in your favor, but for the sake of this exercise it is actually more beneficial to you for the stacks to be weighted against you. In order to improve, you need to know how you could lose.
  1. Be passionate but humble. It is important for the jury to feel empathetic toward your client, and for that to happen they need to connect with you. While presenting your case, you want to appear confident and informed without coming off as arrogant. Persuasion is all about presentation. One of the most important notes that our mock jurors made about one of our presenters was that he seemed “smug,” which made him seem sneaky, and it spiraled from there.
  1. Honesty is the best policy for your mock juries – by far. An important factor for an experiment, the mock trial, to be generalizable to the greater population, the entire jury pool, is that participants be honest in their answers. In our exercise, we had remote devices that each participant used to answer our questions, and we received feedback in real time. To set the stage of how they should answer the questions, a test question was asked, “Have you ever driven over the speed limit?” The expected answer would be “yes” across the board, assuming that all participants drive. However, in our group we had one “no” and one “not applicable.” The former had been unsure of “how serious it was” and apologized for not answering completely honestly, while the latter seemed to just be completely in denial. The idea that, “it doesn’t count because everyone else was doing it, but I was the only one caught,” is a dangerous mindset in a child and even scarier in an adult. With this experience in mind, you should remember not to put too much weight on any individual’s answer to one question, but rather look at the patterns of decision-making in the group.
  1. Ignorance is not bliss. The people who paid the least amount of attention during the presentations seemed to be the biggest talkers in the deliberation room. This would confirm the idea of the Dunning-Kruger effect, a cognitive bias in which less competent people believe they are more competent, and more competent people doubt themselves. This is a scary idea in theory, and even scarier in practice. Imagine you are being tried by a jury full of people who don’t really understand any of the facts of the case, but their “instincts” tell them you’re guilty. Unfortunately, these people don’t wear a sign around their necks professing their ignorance, and you’re just going to have to gather as much other information about their decision-making during voir dire as you can. In the exercise I observed, it was sad to see that there were a handful of participants whose bloated confidence in their opinions kept all opposing mock jurors silent for fear of being yelled into submission.
  1. Be prepared in advance. Once you’re selecting your jury or presenting your case in court, it is too late to start thinking about how you will keep the jury on your side. Using a mock jury will separate the “good” evidence in your presentation from the “bad” while you still have time to reshape your narrative.
      

Other A2L Consulting articles about mock juries, mock trials and jury consulting:

Jury Consulting Mock Trial

Tags: Trial Consultants, Jury Consulting, Mock Trial, Trial Consulting, Juries, Jury Consultants, Trial Preparation, Psychology, Persuasion

Storytelling at Trial Works - But Whom Should the Story Be About?

Posted by Ken Lopez on Mon, Nov 21, 2016 @ 11:20 AM

storytelling-for-lawyers-trial-courtroom-a2l.jpgby Ken Lopez
Founder/CEO
A2L Consulting

I go to a marketing conference in Boston every year, and every year I see a handful of outstanding presentations about storytelling. One stood out for me this year that will have immediate applicability for our field.

The presenter, Amina Moreau, is a filmmaker and co-founder of Stillmotion. Her session, Scientific Secrets of Superpowerful Storytellers: Techniques to Spur Action, covered some topics that are particularly useful for trial lawyers looking to persuade audiences.

We are constantly discussing storytelling among ourselves at A2L and with our litigation-focused client base. We've published books about storytelling, conducted webinars about storytelling (a new one is going to be announced soon), and routinely conduct storytelling CLEs at top law litigation departments. Our articles about storytelling at trial are read and shared regularly. See Dan Pink, Pixar, and Storytelling for the Courtroom5 Essential Elements of Storytelling and Persuasion, and Storytelling at Trial Proven to be Scientifically More Persuasive.

Using neuroscience as a foundation, Ms. Moreau raised a question that we frequently wrestle with: Whom should we tell stories about to generate the most powerful call for action and to be as persuasive as possible? Should the story be about a team, should it be about the CEO, should it be about the victim's wife, should it be about the inventor? How do we make the story most meaningful to our audience?

After all, if the story is not meaningful, we can't connect with the audience, and if we can't connect, we can't persuade using emotions and the framework that a well-told story provides.

To illustrate her point, Ms. Moreau used an interesting example. She compared “baby Jessica” -- the child who fell in the well in 1987 and was rescued -- with 60 million undernourished and undereducated girls in Africa. She pointed out how baby Jessica generated massive donations for her college fund in just hours and how organizations around the world struggle to raise fractions of the dollars raised for baby Jessica for needy girls in Africa. This is an illustration of the identifiable victim effect, in which it is far easier for people to sympathize and to act for a specific, identifiable person rather than for vague groups of individuals.

It makes sense of course. There's a compelling narrative around baby Jessica that fits all the classic storytelling elements, whereas making a rational argument about needy children in Africa is too often emotionless talk that does not impel action.

Ms. Moreau offered several useful tips for deciding about whom a story should be told. In general, a story about an individual will outperform a story about a group. So when trying to find the right individual to use to tell a story, she says there are three crucial criteria to use. The same criteria can and should be used in selecting a person to focus on in a trial.

  1. Desire. People identify with a character who reaches a goal or conquers an obstacle. Passion to achieve the goal is what they start with, but it’s not enough. 
  1. Complexity. Complexity is what makes us believe in the character. Complexity is what sustains the connection between the viewer and the main character of your story. It's what keeps the viewer rooting for them to reach their desire.

  2. Uniqueness. People are attracted to characters who have a novel approach to tackling the challenges that the world presents.

Keep these three criteria in mind, and you will understand how to choose the character who is at the heart of your story.

Other storytelling at trial free resources, articles, books, and downloads from A2L Consulting:

A2L Consulting's Storytelling for Litigators 3rd Ed E-book

Tags: Juries, Psychology, Storytelling, Judges, Persuasion

How to Be a Great Expert Witness (Part 1)

Posted by Tony Klapper on Tue, Nov 15, 2016 @ 04:05 PM

iStock_92127667_SMALL.jpgby Tony Klapper
Managing Director, Litigation Consulting
A2L Consulting

You are a specialist in your field of study. You are about to take the stand as an expert witness in court. You have read hundreds, if not thousands, of articles in your field. You likely have an advanced degree that touches on the area about which you have been asked to testify. You may have taught classes on the subject at a university. You may have presented your thoughts and research at conferences attended by your peers. You are smart. You are well-credentialed.

But are you prepared to testify in a court of law? Do you know what you have to do to be just as effective on the witness stand as you are at the podium?

To help you answer these questions, here is a series of articles that chronicle the unique challenges that a testifying expert faces and lays out a road map for overcoming those challenges and becoming a truly effective expert witness.

“Supercalifragilisticexpialidocious.” Too often, that is what jurors hear when experts speak to them in court. The nonsense word made popular by the Disney musical, Mary Poppins, “supercalifragilisticexpialidocious” certainly sounds impressive. But, like many arcane polysyllabic terms used by experts in various specialized fields, it serves only to obfuscate, not clarify, concepts for a jury—a jury composed of people who are likely far less educated than the expert witness herself.

The fact is, experts in a particular field are most comfortable speaking to those who have a similar base of knowledge. They speak at conferences to peers who share a common language and experience. They speak to students who attend multiple lectures, read the course book, and presumably have a particular interest in the material. And even when they discuss their work in more social settings, their milieu is typically more sophisticated and educated than the milieu of your typical juror. When an expert speaks about her field of expertise, it is typically the kind of thing that only those in the field will regularly understand.

That does not mean that the expert must dumb down her words in order to be effective. It means that for an expert to be effective, she must deconstruct her presentation so that every element and every term in her opinion testimony is explained and not assumed to be understood. And it also means that if the process of explaining every element and every term leads to an unwieldy, complex and dense presentation, maybe the presentation itself needs to be simplified.

Learning to speak to a different audience in a different way is not easy. It requires patience and practice, and it requires visuals, given that the majority of people are visual learners. But it also requires a keen awareness of whether you are losing your audience. The attorney who is asking you questions on direct examination should be asking you to speak to the jury, not to the lawyer. You are there as a teacher. If your students’ eyes are glazed over or completely shut, you will see it, you will know it, and you will want to do something about it. Explaining information simply and without the jargon of your profession will go a long way towards keeping the jury engaged and helping your client achieve its goals. If you are too readily dismissed as the ivory-tower, detached, and inscrutable presenter, the one or two key points that your testimony is intended to convey will be lost in a sea of big words.

Our next topic will be about how and why an expert should use graphics in his presentation.

expert witness trial testimony ebook a2l ims

Tags: Juries, Psychology, Expert Witness

Should You Read Documents Out Loud at Trial?

Posted by Ken Lopez on Mon, Oct 10, 2016 @ 01:58 PM

reading-documents-call-out-trial-style.jpgby Ken Lopez
Founder/CEO
A2L Consulting

I’ve seen a great many lawyers read documents aloud at trials, and, not coincidentally, I’ve seen lawyers lose cases in part because they did so. Both experience and the science of persuasion tell us that reading documents to a jury is a persuasion killer. But of course there are times when you absolutely need to read a document out loud. This article will help you find the best ways to do so when it is necessary.

There are at least five good reasons why reading documents out loud is harmful. I will go through them, then offer three guidelines for reading passages of text to a jury or judge when it is necessary. After all, it’s hard to imagine trying a contract case without reading the key provisions of the contract.

  1. The split-attention effect/redundancy effect is easy to recognize, and we've all experienced it. In summary, if you are presented with a written document and it is read to you at the same time, your brain will have a hard time sorting out whether to read or to listen. What you might not know is that you actually end up far worse off reading written materials while seeing an image of those materials than you would have if you had just done one or the other -- read the materials or listened to the words. See The Redundancy Effect, PowerPoint and Legal Graphics.

  2. Related closely to the split attention the fact is the fact that people read faster than you speak. So if you present both formats, whether you know it or not, you have just started a little competition with your audience. They try to read faster than you. See 
    Why Reading Your Litigation PowerPoint Slides Hurts Jurors.
  1. People have written books about why this is a bad practice. Just read Cliff Atkinson’s Beyond Bullet Points, www.beyondbulletpoints.com.
  1. There's more science about this than you probably think. Chris Atherton's work is superb on this topic, and here's a video about it. https://www.youtube.com/watch?v=OwOuVc1Qrlg
  1. If you read out loud to people, you'll probably bore them. See Could Surprise Be One of Your Best Visual Persuasion Tools?

So, now that you have an idea about why reading documents is bad, how do we deal with the fact that some documents just need to be read? To deal with that, you will likely have to embrace new habits and learn new skills.

First, assuming that you are presenting from Trial Director or PowerPoint, you're going to need to learn when and how to turn off the projector. In PowerPoint you do this by pressing the bulb symbol, which toggles the screen to and from a black screen. In Trial Director, assuming that you are making appropriate use of a trial technician’s experience and professionalism by having a technician run the equipment in the courtroom, just say, “Dim the screen please.” When you do this, the jury should stare at you and pay close attention.

Second, you should choose passages of text to read that are as short as possible. I recommend never reading more than a sentence or two.

Third, try to become comfortable with pausing and giving people a chance to read. Look at the document yourself and read along quietly in your head. You'll get a feeling for how long people need, and you will keep the factfinders engaged. If you now want to highlight some key language, highlight it and ask the jury to focus on that piece again, then pause again. Then dim the screen, briefly reread it and then explain why it's important. Scientifically, this is your single best approach to maximize persuasion. I acknowledge it feels different and tedious, but so once did washing your hands before surgery.

Other articles from A2L Consulting discussing presenting orally and with documents, the redundancy effect, and using science to persuade:

complex civil litigation ebook free

Tags: Trial Graphics, Litigation Graphics, Trial Presentation, Demonstrative Evidence, Presentation Graphics, Psychology, Redundancy Effect, Document Call-Outs

[Free Download] Trial Lawyer’s Guide to Jury Consulting & Mock Trials

Posted by Ken Lopez on Wed, Sep 14, 2016 @ 03:19 PM

A2L-MOCK-TRIAL-JURY-CONSULTANTS-TALL.jpgby Ken Lopez
Founder/CEO
A2L Consulting

Today, we are publishing our latest free book -- A Trial Lawyer's Guide to Jury Consulting and Mock Trials.

This free 328-page book is based on the idea that even after some decades in which jury consulting has grown and established itself as a business, many lawyers still don’t necessarily understand what jury consultants do and how valuable they can be. Many lawyers probably still harbor the old idea that a jury consultant is just someone who sits next to a lawyer and uses a “gut feeling” based on a potential juror’s occupation, body language or appearance to ask the lawyer to exclude the juror or keep the juror. If that stereotype were ever true, it’s certainly not true today. We’re about as far now from the O.J. Simpson days 20 years ago as we are from the Perry Mason days.

This book is dedicated to bridging whatever conceptual gap may remain between trial lawyers and jury consultants. It pulls together many of the lessons that jury consultants have learned, so that any lawyer who reads the book can get up to speed quickly and save herself a good deal of money and time. We have been dismayed at times at the disconnection between long-held myths held even by seasoned litigators and what the data show.  Excellent trial strategies are the product of balancing art and science, data and wisdom, confidence and humility. 

Among the topics in this book are: 14 Places Your Colleagues Are Using Persuasive Graphics That Maybe You’re Not, Is Hiring a Jury Consultant Really Worth It?, Why Do I Need a Mock Trial If There Is No Real Voir Dire, 21 Ingenious Ways to Research Your Judge, 7 Videos About Body Language Our Litigation Consultants Recommend, 15 Things Everyone Should Know About Jury Selection and 6 Good Reasons to Conduct a Mock Trial.

A good lawyer knows the law. A great lawyer knows the jury and how it works. Read this book and reflect on its contents to know more than most trial lawyers do. This book is based on hundreds of trials and years of data, not mere theory or presumption. We hope you enjoy it and share it. Please send us your feedback and let us know if you have any questions or comments, any time. If you have any questions about a case, a witness, a jury pool, a venue, strategic options or dilemmas, or think your case is unwinnable, we’re only a phone call/email away and would love to hear from you. 

Jury Consulting Mock Trial

Tags: Jury Questionnaire, Trial Graphics, Trial Consultants, Jury Consulting, Courtroom Presentations, Mock Trial, Trial Consulting, Litigation Support, Juries, Jury Consultants, Trial Preparation, Jury Selection, Psychology, Body Language, Damages, Persuasion, Cognitive Bias

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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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