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The Litigation Consulting Report

The Importance of Litigation Graphics in Toxic Tort Litigation

Posted by Tony Klapper on Wed, Dec 28, 2016 @ 01:23 PM

iStock-456090227.jpgby Tony Klapper
Managing Director, Litigation Consulting
A2L Consulting

If anyone thought the era of toxic tort litigation was coming to an end, they were wrong. The Environmental Protection Agency recently announced its priority list of 10 chemicals, including asbestos, that it is considering banning under the Frank R. Lautenberg Chemical Safety for the 21st Century Act. Although it remains an open question how aggressive the Trump administration will be with safety regulations, the reality is that regulatory lists like this, and the inevitable studies that follow, often become a treasure trove of “support” for a plaintiffs’ bar eager to add scientific credibility to their legal claims.

This presents challenges for defense lawyers – especially given the continued currency of quasi-scientific principles or principles that are fine for regulators to rely on, but have no place in today’s courtroom, such as the “precautionary principle.” This is most evident with the mantra of “no safe dose” that asbestos lawyers and some environmental groups trumpet as justifying liability for even the most meager and infrequent of chemical exposures. Of course, toxicology, epidemiology and other scientific disciplines have exposed the fallacy of principles like “no safe dose” (after all, Paracelsus teaches us that “dose makes the poison – more about this later). But the appeal of the seemingly aphoristic “no safe dose” is tough to counter in court when an effective advocate plays to a jury’s fears and is buttressed by governmental pronouncements that, albeit for different reasons, embrace the notion that there is some theoretical, modeled risk from exposure to virtually any chemical.

So the task for the defense bar is how to convince juries to reject these and other fallacious concepts that serve as easy, digestible substitutes for the more complex elements of true causation.

This task requires more than just the hiring of well-credentialed risk assessors, toxicologists, epidemiologists and pathologists, and the deployment of powerful rhetoric. It also requires careful thought on the best way to persuade jurors visually that many of the concepts proposed by plaintiffs in toxic tort cases are indeed spurious. With some creativity, defense lawyers and graphic artists working with them can come up with ways to explain complex scientific concepts, such as exposure pathways and epidemiology, so that jurors can understand them.

A good example is the basic principle of toxicology that “the dose makes the poison.” This doctrine states that the amount of exposure to a substance is what defines the impact that that substance has on the human body. A moderate amount of water is a good thing. Actually consuming too much can kill you (hyperhydration). This concept should be relatively easy for lawyers and graphic artists to explain to juries without becoming overly technical and resorting to scientific mumbo-jumbo that will only confuse. 3-D and 2-D animations can be useful in this type of case, as can the simple bar chart or creative illustrations that analogize concepts like thresholds and total dose. Sometimes the simplest approach is the best.

Too often, when lawyers think about litigation graphics in toxic tort cases, they rely excessively on callouts of phrases in long-forgotten documents or hopelessly complicated charts presenting arcane data. If the message from the plaintiff’s lawyer is very simple – as in “this case is as easy as A, B, and C—Asbestos in Brakes cause Cancer” – the defense needs to respond with a similarly basic approach that will remain in jurors’ minds.

Other articles and free resources related to toxic torts, litigation graphics, teaching science, and environmental litigation from A2L Consulting include:

persuasive storytelling for litigators trial webinar free

Tags: Trial Graphics, Litigation Graphics, Demonstrative Evidence, Science, Environmental Litigation, Toxic Tort, Persuasion

SPICE Is the Key to Persuasion

Posted by Alex Brown on Wed, Jun 22, 2016 @ 02:12 PM

SPICE persuasion of jurors judgeby Alex Brown
Director of Operations
A2L Consulting

My 11-year-old is addicted to cooking shows – so much so that my DVR is full of episodes of Triple D, Chopped, Good Eats, Cutthroat Kitchen, and Chopped Junior. Last night she was talking about how she loves the idea of spices, but is not a fan because she equates it to spicy food, which she does not enjoy. Then she throws her hands up and says, you know what they say, “Variety is the spice of life.”

This morning, that statement has been bouncing around in my head and made me think about a book I read in 2011. It was written by Kevin Dutton, Ph.D., and was called Split-Second Persuasion: The Ancient Art & New Science of Changing Minds. Dutton's message boiled down to just five elements, encompassed in the acronym SPICE. These five elements are the key to persuading people, including jurors.

SIMPLICITY: According to a report published by Microsoft in 2015, the average human attention span has dropped from 12 seconds in 2000, to eight seconds in 2013. By comparison, goldfish have an attention span of nine seconds. So keep demonstratives simple by breaking down the complex in bite-sized packets of information.

self-interest-persuasion.jpgPERCEIVED SELF-INTEREST: I saw this patch (pictured right) and thought it defines self-interest better than anything I could say.

INCONGRUITY: We are most comfortable when we surround ourselves with patterns or routines. When you break that pattern, it unexpectedly draws attention. Use this to make a point or to have someone see something in a different light.

CONFIDENCE: When faced with the word, “confidence,” we automatically think about self-assurance. But, when thinking about how to graphically show confidence, consider the definition of creating trust.

EMPATHY: When developing empathy with a jury, your goal is to put yourself in the shoes of another. Creating an attachment with them allows them to root for your client.

litigation leadership 4th edition

Tags: Science, Psychology, PowerPoint, Persuasion, Cognitive Bias

7 Reasons the Consulting Expert is Crucial in Science-Based Litigation

Posted by Tony Klapper on Fri, Jun 3, 2016 @ 11:49 AM

consulting-expert-managing-expert-science-litigation.jpgby Tony B. Klapper, Managing Director, Litigation Consulting & GC, A2L Consulting and David H. Schwartz, Ph.D., Co-Founder, Innovative Science Solutions 

The successful litigator knows that one of the first and most important steps to be taken when confronted with complex science-based litigation is to identify and engage a top-notch testifying expert. The ideal testifier is one who is highly qualified, able to credibly communicate to a jury, and can educate the legal team. These characteristics go for experts involved in patent disputes, product liability litigation, and consumer fraud cases involving allegations that a supplement, drug, or device is not effective.

Testifying experts are indeed critical for the success of a case, but as we have discussed in a previous post, many litigators fail to recognize that it is equally important to engage an experienced and litigation-savvy consulting expert. To understand why, consider the following seven points.

1. Availability

If you have recruited the ideal testifying expert, his or her time may be limited by the day-to-day obligations as an opinion leader in their field. I am sure that most of the litigators reading this post have experienced the challenges of working with a testifier who teaches, is conducting scholarly research, or has just simply overcommitted to too many legal clients. When this happens, getting the expert’s attention may prove just as difficult as understanding the science upon which the expert relies. And because understanding the science enough to cross-examine the other side’s expert is a critical component of effective advocacy, having a consulting expert available to take the time to educate you and help you prepare your case can be indispensable.

2. Context

Consulting experts tend to understand the litigation landscape better than an academic testifying expert. With the exception of the oft-used professional testifier, most testifying experts are not particularly litigation savvy and may not be familiar with the manner by which scientific evidence in their field may be twisted and turned by more experienced testifiers. A consulting expert who has studied not only the literature, but the positions espoused by the adversary’s experts—as articulated in expert reports, depositions and trials—can help litigators more effectively prepare their testifiers’ reports and direct examinations, as well as prepare for cross.

3. Cost-Containment

Third, consulting experts provide the litigator with a means of evaluating an adversary’s case, as well as his or her own, and understanding where the strengths and weaknesses lie. As we all know, we live in an age when early case assessments have become critically important to the business client. Those clients increasingly demand that their outside counsel find ways to resolve resolvable disputes well before hundreds of thousands (if not millions) of dollars are spent in motions practice, discovery and expert retention. Having a consulting expert help assess your case before retaining your testifier often proves to be one of the most cost-effective ways to satisfy the client’s cost-saving demands.

expert witness teach science complex subject courtroom webinar 4. Discoverability Concerns

Notwithstanding changes to Fed. R. Civ. P. 26(b)(4)(B)-(C), discoverability concerns remain with testifying experts (particularly in state courts) that are not as relevant with consulting experts. Know your jurisdiction. In addition to all the reasons mentioned above and below for retaining a consulting expert, if you litigate in a state court that does not provide full work product protection to communications with testifying experts, beware. The consulting expert might be your only safe harbor for open and candid discussion about the scientific evidence.

5. Find the Best Testifiers

Fifth, the right consulting expert can help you find and recruit the ideal testifying experts, especially when the issues are extremely complex and esoteric. This is particularly true when the litigator has not had the time to fully immerse him or herself into the science. Until that happens, finding the right testifier can be a complete crapshoot. Who are the real thought-leaders in the field? Among them, are there any candidates who have espoused views antithetical to my client’s? They may say they haven’t, but how do you know without fully understanding the literature and that expert’s writings? Can the candidate’s methodology expose him or her to a blistering Daubert attack? These and other questions are critical in the search process. But who has the time and the skills to make these judgment calls? A good consultant can help in the vetting and selection process in ways that busy litigators often cannot.

6. Help To Ensure Victory

Sixth, in the age of increasing Daubert (and other expert) challenges, having a consultant available to help assess the adversary experts’ methodologies and brainstorm areas of attack can be the difference between winning and losing a case. Yes, lawyers can be very skilled at identifying the logical flaws, errors of omission, and unfounded inferences that plague many an expert’s analysis. But having a consulting expert dig into the literature and/or serve as a sounding board for lawyer-based “scientific” musings helps ensure that potential arguments are carefully vetted and those selected are truly effective.

7. Some Examples

Where can these consultants and consulting services be most helpful? Consider their use in patent disputes, personal injury litigation, and consumer fraud matters.

For example, pharmaceutical and medical device patent disputes revolve around demonstrating issues of patent validity and infringement. If you represent an innovator, you will be focused on demonstrating that the patent is valid under intense scrutiny and that your adversary is infringing on the teaching present in your patent. If you are defending a generic manufacturer, your goals will most likely be reversed. Consulting experts can help you perform these tasks and identify the right testifying experts to make these assertions. These non-testifying experts can scrutinize the laboratory notebooks and meeting minutes to spot documents that both support and potentially refute your case. For these types of cases, you will be looking for consulting experts with credentials in medicinal chemistry, drug metabolism, as well as basic cell and molecular biology.

In personal injury product liability cases involving healthcare products—such as pharmaceutical and medical devices, dietary supplements, agra-chemicals, and foods—consulting experts are perfectly positioned to work closely with counsel. The knowledgeable consulting experts can be instrumental resource in matters that involve a complex regulatory landscape and equally complex science-based issues. Consulting experts can help clients develop strategies and approaches that are central to the defense, and they can help identify the difficult-to-find regulatory testifying experts.

Finally, as many of our readers know all too well, consumer fraud cases are becoming extremely common, especially for products such as dietary supplements, cosmetics, and other consumer healthcare products. These cases generally involve allegations that no competent and reliable scientific evidence supports the advertised benefits of the products at issue. Like personal injury litigation, consulting experts are critical to an in-depth understanding of the science relevant to the case. Because there is a specific regulatory standard at issue in these cases, it is sometimes less important to have experts who are experts in the medical area at issue and more important to have consultants who understand regulatory standards and the types of studies that would be considered competent and reliable scientific evidence. Consulting experts in these cases will be able to evaluate and assess the substantiation reports that the defendant may have generated and they will help you perform an up-to-date, comprehensive review of the scientific literature relevant to a substantiation of the advertising claims at issue.

Other articles from A2L Consulting related to science-focused litigation:

ISS A2L Combating Junk Science E-Book

Tags: Litigation Management, Science, Environmental Litigation, Expert Witness, Witness Preparation, Toxic Tort, Damages, Product Liability

Happy? New Year – 11 Top Trends That Will Impact Litigation in 2016

Posted by Laurie Kuslansky on Tue, Dec 29, 2015 @ 10:20 AM

CBP1118598.jpgby Laurie R. Kuslansky, Ph.D.
Managing Director, Jury & Trial Consulting
A2L Consulting

If you deal with the public, and you wish to influence them, it makes sense to know your audience, who they are and what they believe and don’t believe. A recent report by Pew Research highlights “striking findings” from the past year. Here, we cover those most relevant to litigation and take them a step further, by exploring the implications for trial.

1. Most people (81%) do not trust the federal government “most or all of the time,” the lowest rating in 50 years.

Do you represent a federal agency or quasi-governmental one?

While specific areas of government are viewed as competent, such as in protecting public safety, the federal government does not make the grade when it comes to immigration or helping the poor or senior citizens. Those in public office (a.k.a., politicians) are largely seen as self-serving, lacking the “public” aspect of public service. Hence, wrapping yourself in the American flag may not help your case if your issues overlap those in which the government is most distrusted and rated worst. For details, see: http://www.people-press.org/2015/11/23/beyond-distrust-how-americans-view-their-government

2. The middle class is no longer the economic majority in America. 

The biggest shift is that the rich got richer, while the middle class fell even further behind. In dollars, “middle class” now refers in 2014 dollars to a household income of $42,000 to $126,000 annually for a household of three.

Half the U.S. population is upper or lower class (21% and 29%, respectively); half is middle class (50%) (See http://www.pewresearch.org/fact-tank/2015/12/10/5-takeaways-about-the-american-middle-class/).

How will that impact jurors who missed that gravy train? Strife and resentment are likely to motivate jurors who, in 2016, are judging clients who have enjoyed privilege. Specifically, since 1971, some have done better than others financially:

Who’s doing better?

  • Older Americans (aged ≥65)
  • African Americans
  • Married
  • Women more than men

Who’s doing worse?

  • Lacking a college degree
  • Young adults (aged 18 to 29)
  • Hispanics (driven by the increasing number of Hispanic immigrants)

If your or your client’s household income exceeds $126,000 per year, consider whether you really understand the jury or they will understand you or your client. What are the differences in lifestyle, understanding of financial concepts, points of reference and experiences that may not overlap with about 80% of people on a jury, if not more (since affluent and educated jurors tend to be able to get off juries, especially on trials that last more than a few days).

If the income of your jurors is an important consideration, do whatever you can to shorten the trial (for affluent, white collar, educated jurors) or lengthen the trial (for less educated, impoverished or blue-collar jurors).

Also consider calendar issues when presented with options on scheduling the trial: what other events are popular during certain times and do they help or hurt you? For example, tax season, hurricane season for cruising, holiday season, summer vacation for teachers, etc., can all impact the makeup of a jury.

3. More Mexicans have left the U.S. than entered it!

A combination of family reunification, stricter enforcement of immigration laws and a challenging economy contributed to this shift. Most of the million people who left did so of their own volition. (See http://www.pewhispanic.org/2015/11/19/more-mexicans-leaving-than-coming-to-the-u-s/).

4. More Americans see racism as a big problem.

In a year of painful racial tensions and events, there has been a rise in the number of Americans -- regardless of race or ethnicity and across all regions of the country, with more Democrats than Republicans – saying that our country needs to make changes to achieve racial equality. (See http://www.people-press.org/2015/08/05/across-racial-lines-more-say-nation-needs-to-make-changes-to-achieve-racial-equality/)

5. Baby Boomers (aged 51-69 now)... step aside. Millenials (now aged 18-34) are becoming the largest living generation.

(See http://www.pewresearch.org/fact-tank/2015/01/16/this-year-millennials-will-overtake-baby-boomers/)

Consider the implications of what the jury pool will look like. As it fills with more millennials, revisit their frames of reference and consider weeding out ones that may be outdated or risk your points falling on deaf ears. For example, the oldest Millennials were born when the band Paul McCartney was in was Wings – not the Beatles.

Speaking of Millennials, they rely on social media (mostly Facebook) for news about politics and government, rather than on local TV as Baby Boomers do. (See http://www.journalism.org/2015/06/01/millennials-political-news/)

mock jury webinar a2l kuslansky

6. Of teens aged 13-17 years old now, 71% use Facebook (boys more than girls), 50% use Instagram (girls more than boys), and 40% use Snapchat. Most also use other social media applications

(See http://www.pewinternet.org/2015/04/09/teens-social-media-technology-2015/).

While most (92%) go online daily, about one-quarter go online “constantly.”

Race matters:

  • Smartphones are most prevalent among African American youth (85% have them);
  • “Almost constant” use is more prevalent among African American and Hispanic teens (34%, 32% respectively) than for Caucasian teens (19%).

Socioeconomic status matters:

  • Snapchat is used more by teens from higher household income families, while Facebook is used more by those from lower household income families.

In a few short months or years, these people will be eligible to serve on your jury. How quickly will you be able to provide them with facts? How compelling is the visual aspect you are feeding them to compete with their “norm”? What sources are you using to support your evidence that they will believe when they come of age to serve as jurors?

7. The religious landscape:

People in countries with a significant Muslim population hold negative views of ISIS.

Many people in the countries polled, including Lebanon, Jordan, the Palestinian territories, Indonesia and others, but not Pakistan, held a negative view of ISIS.

(See http://www.pewresearch.org/fact-tank/2015/11/17/in-nations-with-significant-muslim-populations-much-disdain-for-isis/)

In addition, people in those countries also bear increased concern over Muslim extremism. (See http://www.pewglobal.org/2015/07/16/extremism-concerns-growing-in-west-and-predominantly-muslim-countries/).

Islam will grow faster than any other religion in the next 40 years, nearly equaling Christians. (See http://www.pewforum.org/2015/04/02/religious-projections-2010-2050/) and http://www.pewforum.org/2015/05/12/americas-changing-religious-landscape/)

The religious profile of the U.S. will change: Muslims will outnumber Jews as the largest non-Christian minority. and more people are disavowing membership in any organized religion.

Consider today’s heavily Christian-based influence on politics and current events as “mainstream,” and how this may shift as the pulse of the nation shifts, including in the courtroom.


8. The United States’ near record immigrant population

The imigrant population (14%, largely Latin American and Asian) is expected to increase to almost 1/5 in the next forty years (18%). Until they achieve citizenship status, they cannot serve on juries, even though they will make up a significant portion of the population and impact local – if not national -- opinions.

Is your client or adversary foreign born? How will a growing foreign presence impact community views and will they be more positive and accepting or more separated and hostile? Time will tell, although the advent of a growing number of multiracial individuals in America has helped increase racial tolerance.


9. Almost 7% of Americans are multiracial, one of the fastest growing groups.

(See http://www.pewsocialtrends.org/2015/06/11/multiracial-in-america/).

Views about race and identifying with a single race are changing. These views also affect which group multiracial individuals believe they belong to and are, in turn, accepted by or not. Prior divides will become less distinct, so to the extent that race is an aspect relevant to your case, understand how the changing jury pool may have different views and don’t expect stereotypes to apply. Someone you think is one race may or may not see himself or herself that way and, in turn, may or may not identify with someone of the same race as you think.

10. The “truth” may be hard to sell: the public’s view of science and society differs from how scientists see them.

(See http://www.pewinternet.org/2015/07/23/an-elaboration-of-aaas-scientists-views/).

Some ways that scientists and the public are out of sync:


% Scientists Agree

% The public Agrees

GMO foods are safe to eat



Favor using animals in research



Foods grown with pesticides are safe to eat



Climate change is mostly due to human activity



A growing world population will be a major problem



Favor building more nuclear power plants



What will it take to close the gap if you are relying on science or other experts to win your case? Can you? Should you? Can facts outweigh jurors’ emotions, fears, concerns or beliefs? If not, should you revisit which experts to present and which facts are worth pursuing, or are they such uphill battles that, even if true, they cannot overcome public beliefs?

For example, although it is factually true that hypoxia caused by a loss of oxygen in the cabin of an aircraft may cause a slight sense of euphoria before unconsciousness sets in, no juror will receive this as good news or rely on this type of scientific testimony to mitigate the pain and suffering of doomed passengers falling to their imminent deaths.

Similarly, although reliable scientific data show that the wage gap between men and women in the workplace is caused significantly by women’s own life choices, socially evolved jurors resent and reject this data and find socially redeeming reasons to dismiss it (“Who else will have babies?”), rather than use it to mitigate liability or damages against employers accused of gender discrimination. On the contrary, many jurors believe the workplace should create a way to even the scale to compensate for those life choices as a form of affirmative action based on gender.


11. The scale has finally tipped globally to accept that climate change is a serious problem.

(See http://www.pewglobal.org/2015/11/05/global-concern-about-climate-change-broad-support-for-limiting-emissions/).

There are regional differences, so you must understand local beliefs and the role of climate in the venue before jumping into the jury pool if any issues in your case relate to issues of climate, climate change or global warming.

Other articles about understanding jurors and jury consulting by jury consultants at A2L Consulting:

A2L Consulting Voir Dire Consultants Handbook

Tags: Jury Questionnaire, Trial Consultants, Jury Consulting, Trial Consulting, Demonstrative Evidence, Juries, Jury Consultants, Science, Jury Selection, Psychology

Winning BEFORE Trial - Part 3 - Storytelling for Lawyers

Posted by Ryan Flax on Wed, Aug 12, 2015 @ 11:17 AM


storytelling-for-lawyers-1by Ryan H. Flax
(Former) Managing Director, Litigation Consulting and General Counsel
A2L Consulting

This may seem trite to a lot of lawyers, but storytelling is essential to winning trials – and that goes for mediations, arbitrations, and hearings, literally anywhere you must connect with an audience. That audience can be a jury, a judge or a mediator. Most lawyers leave law school with an understanding that to win a case, we need to identify the intersection of law and facts. We are never taught, however, about this very important final issue – the fact that we are always dealing with human beings and that the need to persuade people is paramount.

Whether it’s your story or not, a story will inevitably emerge during a trial. Mock trials and focus groups have repeatedly shown that when a jury has two camps representing the two sides of the case, each camp will have a fairly consistent story that it endorses and clings to. Consistently, we find that those stories are short, that they fit with “common sense,” that they borrow some of the salient facts from the trial, and that they are complete tales, with a beginning, a middle and an end – including what happened and what should have happened. They take only a few moments to tell, and they use plain language. Once embedded in a juror’s mind, these stories are difficult, if not impossible, to change.

Where do these stories come from? The answer is that people automatically make stories out of virtually everything they see, in order to gain a sense of control – even if it’s a false sense. Most people can’t resist making assumptions, drawing inferences, and imposing upon the facts their notions of what the facts “mean” rather than simply accepting information as is. Most of what people discuss with others is stories and gossip, not random facts.

Scientists at Princeton University looked at brain scans (fMRI) of storytellers and listeners to the stories. What they found was that the most active areas of the brains of the speakers and listeners matched up, i.e. they were in sync with each other. This synchronized activity was found in the areas of the brain that were relevant to social activity, not the areas that drive memory or the prefrontal cortex that is associated with cognitive processing. The stronger the reported connection between speakers and listeners, the more neural synchronicity was observed in the test subjects.

The extent of brain synchronicity predicted the success of the communication in this study. So connecting with your audience, in a literal sense, makes you more persuasive.

Other research using brain scans reveals other important information about effective storytelling and will help you understand better the art of persuasion. This research shows that our brains react differently based on the types of words that we hear. Information, or evidence, that was presented to the test subjects without using sensory language stimulates only the brain’s language areas (Broca’s and Wernicke’s areas), and is interpreted by jurors simply as noise. With this type of language, the task for the listener is to simply remember words and more words. That is not enjoyable and not interesting for the audience, which makes keeping them engaged and persuading them much more difficult.

By incorporating metaphors and sensory language, you engage your audience’s brain. By using sensory words such as “lavender” or “cinnamon,” or movement words like “running” or “swimming,” you activate the part of the listener’s brain that would be active were they actually having that experience. You can thus engage an audience – such as a judge, jury or mediator – by inducing their brains to operate more as a participant than as an observer.

What else do stories do for jurors? They interrupt daydreaming and help jurors organize information. They make the intake of information enjoyable. Jurors, and even judges, can get bored otherwise and can daydream during trial when they should remain engaged.

In our next post, we will look at the rules of thumb for developing an effective trial story.  Click here to be notified of subsequent articles.

Other articles and resources related to trial preparation, storytelling for lawyers and persuasion from A2L Consulting:

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

Tags: Litigation Consulting, Juries, Science, Psychology, Storytelling, Judges, Persuasion

Repelling the Reptile Trial Strategy as Defense Counsel - Part 3 - Understanding the Bad Science

Posted by Ken Lopez on Thu, Jul 2, 2015 @ 12:47 PM


reptile-trial-strategy-neuroscienceby Ken Lopez
A2L Consulting

In two recent posts, we discussed the “Reptile” theory of courtroom advocacy, a plaintiff lawyer’s strategy that essentially asserts that plaintiffs can win at trial if they successfully appeal to the “reptilian” portion of jurors’ brains. This portion, according to the theory, is the primitive part of the brain, the portion that humans supposedly share with reptiles. It is this portion that responds on an elemental level to fear, according to “Reptile” advocates, and jurors therefore simply need to be persuaded that they themselves are placed in danger by the defendant’s behavior and that they should return a plaintiffs’ verdict essentially to ensure their own continued safety.

As we said earlier, we believe that far from presenting the latest concepts from neuroscience, the “Reptile” theory presents a laughable and amateurish set of scientific theories. In two earlier posts, we explained how to identify the “Reptile” theory in court. Here are five articles that explain, in plain English, why the theory makes absolutely no sense scientifically. These responses to the “Reptile” advocates, while they will not in and of themselves get “Reptile” concepts out of a trial, will help defense lawyers understand the true roots of the strategy – and may help convince some judges that the “Reptile” strategy, although effective, is based on bogus science.

  1. This article from The Jury Expert, a publication of the American Society of Trial Consultants, argues that “To reduce the human being to a body organ, even the brain, disregards the value of the reflective mind – something no reptile possesses. From time immemorial we have used imagination and supporting evidence in narrative to persuade. A reptile hears no human story. It reacts as a coiling rattlesnake or a slithering lizard. To equate men and women serving on a jury with reactive sub-mammals is both offensive and objectionable.” It instead recommends the use of “persuasive narrative” – the invocation of compelling stories – to influence and persuade juries.
  1. In this interview, trial consultant Stephen Hnat concludes that advocates of the “Reptile” theory confuse brain structure with brain function.” He says that although there is in fact an area of the brain labeled the “reptile brain” that controls “flight or fight” and similar responses, current research in cognitive neurobiology has consistently shown that other areas of the brain that regulate emotion are far more influential in determining perceptions and behavioral responses.
  1. This article from Courtroom Sciences Inc. says that the “Reptile” theory involves a “misuse of neuropsychology” and contends that while “Reptile” advocates have succeeded with juries, it was not because of their knowledge of brain science. The authors say that “Reptile” lawyers succeed not because of their “ability to tap into jurors’ survival instincts” but because they use “successful techniques long used by great plaintiff’s attorneys: reduce a case to its essence and rhetorically focus a case on a critical issue for jurors (e.g. safety).

  2. This article, published earlier this year for an American Bar Association Litigation Section conference [pdf], asserts that human beings “are not just flight or fight responders, they in fact process information. And, the fear responses that humans experience are not predictable, in part because higher level functions often intervene in fear responses.” The article notes that fear can backfire against plaintiff lawyers if jurors believe they are being treated like “reptiles.” The author says that despite its use of bad science, the theory is “here to stay,” and that defense lawyers need to understand why the theory often works with jurors.
  1. In this article, Ken Broda-Bahm asserts that in view of contemporary scientific critiques, the reptile brain theory “stands out as illustrating scientific beliefs that persist more because they are useful than because they are valid. It persists and sticks not because there is strong evidence that it is true, but because it feels ‘complete’ and has, as Stephen Colbert would put it, ‘truthiness,’ independent of its truth.” Nonetheless, Broda-Bahm asserts, the theory needs to be taken seriously.

Experts agree that the science alleged to support the Reptile Trial Strategy is bogus. However, just because the reasoning behind the strategy is flawed, it does not mean that the approach doesn't work — because it does. We will discuss why the Reptile Trial Strategy works and how to counter it in upcoming parts of this series (click here to be notified of subsequent posts).

Parts 1, 2, 3, 4, & 5.

Other articles and resources related to trial strategy, jury persuasion and jury consulting from A2L Consulting:

opening statements toolkit ebook download a2l

Tags: Trial Consultants, Jury Consulting, Litigation Consulting, Trial Consulting, Jury Consultants, Science, Psychology, Reptile Trial Strategy

[New and Free E-Book] The Litigator's Guide to Combating Junk Science - 2nd Edition

Posted by Ken Lopez on Mon, Jun 8, 2015 @ 03:16 PM


junk-science-ebook-cta-tallby Ken Lopez
A2L Consulting

We have long participated in a joint publishing effort with Innovative Science Solutions (ISS), a company that provides strategic consulting services designed to ensure that you are prepared and knowledgeable about scientific and technical issues relevant to your case.

A2L has partnered with ISS for the benefit of many law firms and corporations. We have already had the pleasure of working together on everything from tobacco litigation to hydraulic fracturing to alleged health effects of cell phones. Along the way, we have learned, often by overcoming enormous challenges, how to make science your ally -- whether inside or outside the courtroom.

Today, A2L and ISS have just published the new and revised second edition of their e-book, The Litigator’s Guide to Combating Junk Science. The book is built on the following important concepts:

  1. Science plays a critical role in the courtroom. Access to scientific research and an understanding of scientific principles, as well as the ability to effectively convey this information, can enable the litigator to build a powerful case. This communication must effectively communicate complex technical concepts and show how they fit within the relevant law. But first and foremost the litigator must sort sound science from junk science.
  2. Many legal actions rely heavily on scientific information and testimony: personal injury, consumer protection, medical malpractice, securities law and patent law. Junk science can be present in any of them.
  3. Frequently, the case will amount to a battle of the experts, who will engage in a debate about the validity of the scientific evidence presented. Even the experts often disagree when interpreting sound scientific data.
  4. Dubious or biased scientific information is all too present in the courtroom. Judges and juries tend to accept any scientific information placed before them, for better or worse, and can decide a case incorrectly. That is one of the problems with junk science.
  1. However, when a case relies on misinformation, unsubstantiated claims, and misleading data, opposing counsel can successfully counterattack by using and providing access to the right resources.

This comprehensive, 2nd Edition e-book identifies examples of junk science; after all, how can you combat junk science if you cannot identify it?

The e-book also provides a checklist for identifying credible scientific sources online and rejecting those that are not credible. It notes that peer review is one of the foundations of good science, but that this concept is also abused to push junk science. It provides access to resources dedicated to exposing junk science. After all, the fight against junk science in the courtroom has raged for many years. This section identifies some terrific resources for continuing this fight. It gives access to government resources that will allow you to counter misinformation with scientifically sound principles.

Among the topics covered in the book are: “What Is Junk Science?” “Limitations of the Peer-Review Process,” “Teaching Science to Jurors,” “Explaining Complex Science/Statistics Using Trial Graphics,” and “Anti-Junk Science Websites.”

We are confident that by reading this e-book, you will become familiar with the hallmarks of junk science and that you will be able to recognize it and successfully argue in court against the use and admissibility of junk science.

ISS A2L Combating Junk Science E-Book

Tags: Statistics, Trial Consultants, Trial Presentation, Litigation Consulting, E-Book, Demonstrative Evidence, Juries, Jury Consultants, Science, Product Liability

Is Litigation Coming for Major Retailers of Herbal Supplements?

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


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

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

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

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

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

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

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

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

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

How To Find Helpful Information Related to Your Practice Area

Posted by Ken Lopez on Fri, Jan 2, 2015 @ 04:34 PM


practice-area-experience-a2lby Ken Lopez
A2L Consulting

Not every page, blog article, webinar or e-book on A2L Consulting's site is right for everyone. As the saying goes, what is everyone's favorite radio station? WII – FM, of course. Otherwise known as "what's in it for me?"

With hundreds of articles, dozens of e-books and hundreds of other pages, A2L's website has over 2,500 pages of valuable content. Sometimes, finding materials that are specific to your litigation practice area or need can be a challenge with all the available options.

You can search A2L's site or even browse by topic area using a topic list in the sidebar of every blog post. In spite of this, I still hear from a lot of people who wonder whether we have experience working in their specific practice area or where they can find useful information related to their practice.

I wrote this article to highlight some very useful information organized by practice area below. I've broken down the practice areas into 14 topics that cover most of the work we do. The alphabetical list with links under each topic should prove helpful when looking for the information most relevant to you.

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Antitrust: Our work in antitrust often involves making complicated economic principles make sense to judge and jury. Working with experts is essential in these cases to help them develop a coherent story.

Banking, Securities & Finance: Our banking litigation work has most often included allegations of banking fraud, disputes involving CDOs or some other financial industry-collapse related litigation.

Bankruptcy: Our bankruptcy work usually involves advisory disputes or the failure of a large company.

Complex Civil Litigation: Many disputes we are involved in are contract disputes between large corporations. Goliath vs. Goliath litigation requires special care given the stakes and resources available to both sides.

Construction & Architecture: Architecture one type or another construction disputes typically relate to defects in construction or leasing disputes or construction delays

Employment & Labor: Our labor work often involves allegations of discrimination or other large scale labor disputes. Increasingly wage and hour disputes are finding their way to trial.

Environmental & Energy: Environmental work often involves discussing human health risk from a particular chemical or the migration of a particular leak.
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 Our international work often involves arbitration work at ICSID at the World Bank, at the ICC in New York or at some other venue around the world.
Life Science-Related: Science-focused topics dominate many forms of litigation. This includes disputes around pharaceuticals, medical devices, biotech and many products. Our challenge as a litigation consulting firm is frequently to make the material understandable for judge and jury.
Medical Malpractice: Our medical malpractice work sometimes involves showing how a surgery occurred and sometimes involves handling allegations of errors.
Patent, Trademarks & Copyright: Our are patent work is wide ranging and frequent, covering all lines of marketplace. About half of the cases we consult on are complex patent cases.
Product Liability: We have spent the last several decades consulting on everything from tobacco litigation to cell phone litigation to fracking litigation.These cases always involve detailed interaction with consulting experts and testifying experts.
Transportation (Aviation, Space, Automobiles, Trains and Ships): Although trials are rare since most cases tend to settle that involve a crash of planes trains or automobiles. More often transportation cases involve product liability or some other cause of action.
White-Collar & Criminal: Our work in criminal cases used to be restricted to basic white collar criminal work. Increasingly though, we are being called upon to consult on everything from campus sexual assault cases to murder cases.

Other articles and resources on A2L Consulting's site that relate to our experience by type of case and by type of experience:

mock jury webinar a2l kuslansky

Tags: Patent Litigation, Science, Environmental Litigation, Banking Litigation, Construction Litigation, White Collar, Labor and Employment, Product Liability, Antitrust Litigation

And The Winner is . . . ?

Posted by Laurie Kuslansky on Mon, Oct 27, 2014 @ 01:27 PM


by Laurie R. Kuslansky, Ph.D.maine-seal-ebola-christie-rightsManaging Director, Jury Consulting
A2L Consulting

Nurse Kaci Hickox.  After she volunteered in Sierra Leone to treat Ebola patients, she headed to Newark airport to come home. Her timing was impeccable, because a mandatory quarantine was instituted on the ground while she was in the air. That day’s rule change was a reaction by New Jersey’s Gov. Christie to the frenzy caused by New York’s first Ebola patient, Dr. Craig Spencer, who visited numerous public places in two boroughs since his return from Guinea, before he developed fever and went to the hospital. Self-quarantine, evidently, would not satisfy a worried public.

The question we raised here the other day was who would be suing whom.  We got an answer one day later: the first mention of a lawsuit came a day after Nurse Hickox landed and was held and questioned at the airport for hours with no food and feeling like she was being treated like a criminal.  This caused her to become flush and upset, misinterpreted as having fever, and then jettisoned into a tent with folding chairs at a Jersey hospital with nothing to read, no cell phone, and no computer. Those came later.

A nasty media exchange ensued between Nurse Hickox and Gov. Christie over whether she had a fever. The irony was that an inaccurate forehead scanning thermometer picked up that she was flush . . . caused by her reception at the airport, but more accurate oral thermometers later showed she had no fever. 

Norman Siegel, civil liberties attorney, and her attorney Steven Hyman promptly threatened to sue to have her released, and presto . . . within 24 hours of that, she was. NJ soon after decided it was OK after all for her to leave and be monitored as a free person.  She chose to go to a state whose motto is “Dirigo,” meaning “I lead” or “I direct” – Maine.

The facts and her lawyers prevailed, at least for today.

live-free-or-die-ebola-nurseBut it is far from over yet.  Her lawyers plan to file a constitutional challenge to the state-imposed restrictions for health care workers returning to NY and NJ from West Africa after treating Ebola patients.  It will be interesting to see how one’s constitutional rights stand up against the public.

And the winner is... no one.  It is a vicious cycle.  By taking a strict stance with health care workers and anyone else who may have been in contact with Ebola, people willing to expose themselves to a pandemic are unwilling to expose themselves to mandatory quarantine, or as New Hampshire’s state motto says, Live free or die. It is ironic, but true.

If mandatory quarantines or travel bans are imposed, fewer will volunteer, West Africa will have less money with which to fight the outbreak, people can take indirect return flights to hide where they’ve been, and the outbreak won’t be contained as fast, so the rest of the world will be at higher risk ... until the rules change again, perhaps tomorrow.

Other articles from A2L Consulting focused on likability, trust and psychology:

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Tags: Science, Psychology, Medical Malpractice

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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 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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