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The Litigation Consulting Report

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

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

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

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

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

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

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

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

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

litigation consulting graphics jury trial technology

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

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

How to Be a Great Expert Witness (Part 3)

Posted by Tony Klapper on Tue, Dec 13, 2016 @ 01:07 PM

expert-witness-testimony-guide-tips-free.jpgby Tony Klapper
Managing Director, Litigation Consulting
A2L Consulting

In our last post, we discussed why expert witnesses should rely on visual aids and litigation graphics in preparing their testimony.

Another key point for expert witnesses is that no matter how well credentialed a witness is, if the jury thinks he is a jackass or if he acts in a way that is inc
onsistent with jurors’ perception of how an expert should act, his testimony will be useless.

In every trial, the jury and the judge evaluate the credibility of every witness who testifies. If you have done something as a witness to lessen your credibility quotient, what you say will either be filtered through that lens or not even considered.

For example, some experts make the mistake of engaging opposing counsel in a pitched battle during cross-examination. While a feisty expert who resists answering “yes” or “no” questions might be seen by her attorney as a hero, the jury more likely sees an expert who is being difficult -- particularly when the “yes” and “no” questions are intuitively answerable. Similarly, an expert who regularly resorts to “I don’t recall” and “I don’t know” responses to questions that objectively seem knowable and recallable also undercuts her credibility. The same is true of an expert who fights over the meaning of words that have common meanings, or starts asking questions of the questioner.

When these things happen, the expert no longer is perceived as an expert; she is perceived as an advocate who is hiding some element of the truth. Even when the expert is not on the witness stand, how the expert interacts with court staff, opposing counsel, and even her own team can affect the expert’s perceived credibility. Being gracious and dignified can help; being cocky or surly can hurt.

For better or worse, jury trials can be show trials. While they certainly involve the search for truth, the way that truth is arrived at is often foreign and unnatural to the novice testifier. For example, unlike the laboratory or classroom, your evaluators at a jury trial are often less educated and less patient.

Additionally, unlike normal conversations, the questions asked and answered at a jury trial are orchestrated and controlled by arcane evidentiary and procedural rules. While being liked and respected is important in the “real world,” its impact is magnified dramatically in the courtroom, where snap decisions and judgments are made by people you have never met before and will likely never meet again. Not recognizing these facts can spell disaster.

Another key issue for the expert witness is to realize that she is going to be in very good company, intellectually, during the trial. She may see herself as the smartest person in the room on her subject matter. Is she? Perhaps. She needs to recognize that some of the best trial lawyers pride themselves in playing the game of one-upmanship and outmaneuvering and outworking the expert.

Those lawyers have some very real advantages. First, they are smart. They may not be as educated as you in the field of your expertise, but they are quick studies and careful readers. The best lawyers take great pride in securing the winning admission from the other side’s experts -- albeit with a smile on their face. Many a war story has been told of a cross-examination that brought a testifying expert to tears or so frazzled the expert that he caved on points that he did not need to cave on. Sometimes aggressive lawyering on cross-examination can backfire, and the expert is perceived as a victim and the lawyer as a bully. But sometimes the jury (like the throngs at a gladiator fight in ancient Rome) waits with anticipation for at least some blood to be drawn.

Second, in cases with significant economic exposure or opportunity, opposing counsel will likely be well-financed. They will have a team of associates, and possibly even science consultants, available to look for ways to outsmart you. They will have scoured all of your writings and the scientific literature you have relied upon. They might have better recall about footnote 29 or the limitations expressed by another author about the regression analysis in one of the studies upon which you rely. And they will be looking for statements and opinions that are flat-out inconsistent (or appear inconsistent) with the statements and positions you presented in your expert report and direct examination

Third, opposing counsel will know the case backwards and forwards. As an expert, you invariably must rely on your understanding of at least some of the facts in order to apply those facts to whatever scientific methodology you employ -- though sometimes you are simply asked to assume certain facts as true. Either way, opposing counsel will work hard to exploit any of your knowledge gaps with what they perceive to be the “real facts.”

The simple solution is to remember that you really are THE expert. If you believe in your opinions and have prepared properly for your testimony, you will do just fine.

expert witness trial testimony ebook a2l ims

Tags: Trial Consulting, Juries, Expert Witness, Witness Preparation, Cross Examination

The Results Are In for Best Trial Consultants

Posted by Ken Lopez on Wed, Dec 7, 2016 @ 01:17 PM

best-trial-consultants-best-of-the-legal-times-2016.jpgby Ken Lopez
Founder/CEO
A2L Consulting

I don't want this post to be purely self-congratulatory, but I do have some good news to share. I think it's relevant and useful news for litigators and litigation professionals.

A2L was just voted number one in the legal industry again. This time, it's in the category of trial consultants, in a poll conducted by the prestigious Legal Times newspaper. This accolade comes on the heels of being voted the number one jury consultant and number one litigation graphics provider in a variety of other national polls.

Here's why I think this information is helpful for our readers. Twenty years after founding A2L, when I look at our industry I see three or four firms capable of delivering truly top-class results in high-profile litigation. However, the view from the law firms seems entirely different.

If you Google any of our services like jury consulting, litigation graphics, or trial technician providers, we may very well come up first in many of these searches (for good reason), but there will be dozens if not hundreds of other providers listed for these services.

How is one expected to sort the wheat from the chaff? You can't tell from a Google search because it's obviously not a reliable indicator of who is a top services provider. You can't always tell from your colleagues either. Have they had have many excellent experiences with a provider, or just a one off -- or do they have a longstanding relationship with a provider without a reliable track record?

Well, it's exactly surveys like this one in Legal Times that provide an objective source from thousands of lawyers surveyed. And I'm proud to say that over the last five years, A2L has been consistently highly ranked in just about everywhere we've been nominated.

So if you're in the market for a litigation consulting firm like ours or if you're in the market for another service like discovery, court reporting, or even law firm and litigation financing, a guide like this one is a good source of information. These guides prepared by objective organizations like Legal Times provide a directory of high-quality providers and can save a stressed litigator or litigation paralegal considerable time identifying the very best jury consultants, the very best litigation graphics providers, the very best trial technicians, the very best trial consultants or any one of dozens of categories relevant to litigation.

Click here to download your copy of this 2016 guidebook. I hope it's helpful to you.

top jury consultants best litigation graphics firm hot seat trial techs

Tags: Trial Graphics, Trial Technicians, Trial Consultants, Litigation Graphics, Jury Consulting, Trial Consulting, Demonstrative Evidence, Hot Seat Operators, Litigation Support, Jury Consultants, Voir Dire, Jury Selection, Awards

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

How to Be a Great Expert Witness (Part 2)

Posted by Tony Klapper on Mon, Nov 28, 2016 @ 10:57 AM

expert-witness-visual-persuasion.jpgby Tony Klapper
Managing Director, Litigation Consulting
A2L Consulting

In my last post, I talked about the fact that an expert witness needs to express her expertise in a convincing way – but also in a way that the typical juror can understand and not in the language of a specialist.

The next step in becoming a truly effective expert witness is to understand the power and the importance of visual learning.

It’s a safe bet that your peer-reviewed articles contain tens of thousands of words. Your academic poster contains hundreds, maybe thousands, of words. Your PowerPoint presentations delivered to your peers contain bullet point after bullet point of words (and maybe a smattering of cartoons).  

Ask yourself: How many television commercials convey the importance of the advertised product through words? How many magazine advertisements do the same through words? How many movies convey their story through words? How many architects explain their designs through words? How many patents have no pictures and just words? And how many biology textbooks have no illustrations and just words? In all these instances, the visual is what matters.

Studies have shown that two-thirds of jurors learn primarily through visual means. And the need for visuals becomes even greater when the information being conveyed is highly complex. That does not mean that you should simply rely on Excel charts, images of equations, and chemical formulas to convey your points. It means that you should consider incorporating litigation graphics as demonstrative evidence for your opinion testimony.

Explaining with 2D animation in PowerPoint how the mucociliary escalator removes inhaled particles from the body is far more effective than just talking about it. Describing through an interactive timeline the complex series of steps that were employed to design and build a consumer product is far more effective than just talking about it. And demonstrating through high-quality photographs and well-placed arrows that the key component of your client’s widget looks nothing like the component claimed in the allegedly infringed patent is far more effective than just talking about it.

When working with counsel to prepare your direct examination, you should demand that time be spent not just on what you are going to say but also on how to present it visually. If possible, find opportunities to leave the witness stand and demonstrate your point with physical evidence, or draw a picture on the flip chart. The more you are the teacher and not the talking head, the more likely the jury will connect with you and find you credible.

In our next post, we will discuss the proper state of mind for the testifying expert.

Other articles from A2L Consulting discussing the importance of visual learning, PowerPoint, and expert witness testimony:

expert witness trial testimony ebook a2l ims

Tags: Trial Graphics, Trial Consultants, Litigation Graphics, Trial Consulting, Demonstrative Evidence, Juries, Advocacy Graphics, Expert Witness, Persuasive Graphics, Visual Persuasion, Judges, Persuasion

7 Ways to Overcome Cognitive Bias and Persuade

Posted by Alex Brown on Wed, Nov 23, 2016 @ 04:50 PM

cognitive-bias-persuasion-a2l-litigation-consultants.jpgby Alex Brown
Director of Operations
A2L Consulting

I read an article today that can be applied to our industry so well that I thought I should apply its lessons. The article was written by Eddie Shleyner and is titled: How to Defeat Your Most Dangerous Writing Habit: 7 Ways to Lift 'The Curse of Knowledge'

The article highlights the concept of being cursed due to knowing too much. The issue refers to someone who has studied a subject so thoroughly that it becomes difficult to explain it to people who don’t know as much about the subject.

As an example, he discusses the book, Made to Stick, where the Heath brothers provide an example: “Think of a lawyer who can’t give you a straight, comprehensible answer to a legal question. His vast knowledge and experience renders him unable to fathom how little you know. So when he talks to you, he talks in abstractions that you can’t follow. And we’re all like the lawyer in our own domain of expertise.”

Cognitive bias is what we are talking about. Shleyner notes that this is particularly dangerous to writers, since in conversation, a listener can ask questions to clarify the issue. But litigators, when giving an opening or closing statement, are in the same boat as writers since they are unable to ask or receive questions from their audience.

So, how can you defeat this curse? Ironically, more knowledge is the answer. The more you know about the curse, the less likely you will succumb to it and the more persuasive you will be. Let’s take a look at his seven best practices to combating this curse and apply them to our industry.

1. Know your audience’s base subject knowledge.

Jury Research. Focus Groups, Mock Exercises. Basically, you need to know your audience. Not only to know how they think, but why, what, who, where and the often forgotten wow. Learn how they think, learn the history to know why they think this way, but most importantly, figure out how to say it in a way that will wow them and be remembered.

Like It or Not: Likability Counts for Credibility in the Courtroom

5 Reasons Why Jury Consulting Is Very Important

Group Psychology, Voir Dire, Jury Selection and Jury Deliberations


2. Tone down your vocabulary.

cognitive-bias-synapse.jpgSpeak to the audience, not at the audience. A sure way to do this is to talk to them in a way that they will not only be able to understand, but also remember. Last night I was working on AP Psychology with my oldest (a junior in high school) and we were discussing the structure of the brain and the nervous system, specifically the identification of synapse gaps and the different interfaces.  I used the concept of roundabouts and how they connect roads. It fits but I did not consider the audience, since my daughter does not drive yet. My wife talked about soldering and it clicked since my daughter is doing that currently in her mechanical engineering class. Remember to speak “to” your audience, not “at” or “down” to them.

21 Steps I Took For Great Public Speaking Results

8 Habits of Successful and Persuasive Public Speakers

 

3. Tell a story.

At least 65% of your audience will be or consider himself or herself a visual learner. This means that they relate better and retain information at a higher rate through visuals or graphics. No matter how well you can paint a picture with words, the majority of your audience actually wants pictures. So that’s what you give them.

Litigators, Portray Your Client As a Hero In 17 Easy Storytelling Steps

6 Ways to Become a Better Storyteller

10 Videos to Help Litigators Becme Better at Storytelling

Storytelling Proven to be Scientifically More Persuasive

  

4. Ditch the abstractions.

Abstraction involves induction of ideas or the synthesis of facts into one general theory. It is the opposite of specification, which is the analysis or breaking-down of a general idea or abstraction into concrete facts. Basically, give examples that are concrete. Example:

ABSTRACT: Americans must be willing to protect our freedoms. 

CONCRETE: Voters must protect their Fourth Amendment right against illegal searches and seizures by calling or writing their representatives to protest the administration's warrantless wiretapping program. 

 

5. Provide examples.

Unlike abstractions, examples put concepts into perspective. In one of our cases involving alleged improper laddering transactions, the client was envisioning an abstract concept of showing a runner in a marathon jumping ahead and how in essence the opposition was intimating that this affected all the other racers in a way that was unfair or even illegal. We struggled with the concept because we could not guarantee that everyone who saw this would go down the same path and reach the same conclusion. Instead, we came up with the “dots” slide, which ended up appealing to the jurors’ sense of logic and was memorable.

ipo-class-action-dots-resized-600.jpg

As you can tell, this was done a few years ago, but it does not diminish the impact. Examples based on concrete concepts are usually more persuasive then abstract concepts.

 

6. Use visuals.

Bullet points are not visuals. Visuals reinforce the message and they are not meant to be redundant reiterations of what you are saying. Here are some good examples in these photos.

bullet-points-gates-jobs-bad-kill-bullets.jpg

12 Reasons Bullet Points Are Bad

The Redundancy Effect

Should You Read Documents Out Loud at Trial?

Could Surprise Be One of Your Best Visual Persuasion Tools?

7. Get an outside point of view.

When we are creating images/graphics for the matters we are supporting, we always discuss it amongst ourselves, the clients, strangers passing by… pretty much everyone. Not because we are worried or just want to show off, but because the input is invaluable to get the most persuasive graphic for our audience to connect with and understand. Why would it be different when considering your opening, closing or witness interviews or cross. Get people together to hear and see what you are planning on saying. Use peers and A2L in a MicroMock so we can review the message, and how you are delivering it.

Introducing a New Litigation Consulting Service: the Micro-Mock

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

3 Ways to Force Yourself to Practice Your Trial Presentation

Other A2L Consulting articles and free resources about cognitive bias and persuasion:

how to persuade visually arguments persuasive graphics

Tags: Jury Consulting, Mock Trial, Litigation Consulting, Trial Consulting, Storytelling, Persuasive Graphics, Visual Persuasion, Opening, Closing Argument, Persuasion, Cognitive Bias

5 Ways Change Can Be Good for Trial Lawyers

Posted by Tony Klapper on Thu, Nov 10, 2016 @ 12:31 PM

superlawyer-trial-lawyer-litigator-change-narrative-storytelling.jpg
by Tony Klapper

Managing Director, Litigation Consulting
A2L Consulting

Everyone, regardless of political persuasion, can agree that a significant portion of the U.S. electorate voted for change in this week’s presidential election. And the way the whole 18-month campaign went certainly represented a change from the way most campaigns have gone in our history.

But while we as a country – at least every four or eight years – seem to like change, lawyers not so much. Maybe that reflects what we learned in law school. Law is governed by precedent, and if there are changes to precedent, they are incremental at best. Or, maybe it reflects the role we assume as advisers and the tendency for many in our profession to be cautious and risk-averse.

Regardless of your attitude toward changes in the law, in your political leaders, or in what your clients do, we believe that in the arena of trial advocacy change is very often a good thing. Here are five examples.

  1. Literally, change the font you are using for exhibits and displays. Mix it up occasionally. Pick a less common font, but not one that calls too much attention to itself. Jurors will notice the unusual font, although they may not know just what they’re noticing, and they will stay awake and attentive. See, Could Surprise Be One of Your Best Visual Persuasion Tools? 
  1. Change your narrative. Don’t be wedded to telling your story a certain way, but be open to other people’s thoughts and perspectives. Aunt Sally’s apple pie wasn’t perfect the first time; it took years to fine tune that recipe. It could take many run-throughs to get an opening statement just right. See, 10 Types of Value Added by Litigation Graphics Consultants
  1. Change the perspective. Within a trial, tell the story from more than one viewpoint. If your opening statement is told from the perspective of your client, you might want to mix things up so that your closing argument features the thoughts of a particularly convincing witness. The opening and the closing don’t have to match. They can be different, based on a preconceived plan. This will also keep the jurors awake and interested, and it will provide depth to your narrative. See, Are You Smarter Than a Soap Opera Writer?
  1. Change your approach to working with your team. Ask yourself if there have been miscommunications or tensions. To get the most out of everyone on the team (lawyers, paralegals, vendors, and so on) think about the best way to motivate them. Be prepared to adjust. See, 50 Characteristics of Top Trial Teams
  1. Change yourself. Billy Joel said, “Don’t go changing to try and please me,” it’s true – but lawyers are in the business of trying to please jurors and others. Don’t resist the process of making yourself a more effective lawyer. Most lawyers who do trial advocacy think they are already at the top of their profession – and many are. But even the best can learn and grow. See, Accepting Litigation Consulting is the New Hurdle for Litigators

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Tags: Trial Graphics, Trial Consultants, Litigation Graphics, Trial Presentation, Litigation Consulting, Trial Consulting, Demonstrative Evidence, Litigation Management, Trial Preparation, Storytelling, Leadership

The 10 Top Free Trial Lawyer Resources of 2016

Posted by Ken Lopez on Wed, Nov 2, 2016 @ 03:57 PM

best litigation ebooks webinars cle for trial lawyers of 2016by Ken Lopez
Founder/CEO
A2L Consulting

As we approach the end of 2016, I'm reviewing the many free resources that have been viewed and downloaded from A2L Consulting's extensive litigation-focused website this year. From podcasts to blog articles to free downloadable e-books to free webinars, we have given back this year to the trial community more than ever.

Our blog has been accessed 250,000 times, our 20+ free e-books have been downloaded tens of thousands of times and more than 1,000 new subscribers have signed up for a free litigation and persuasion-focused blog subscription in the past year.

To help sort through all that data and information and focus on just the best content and resources, here are the 10 items, all completely complimentary and without additional obligation, that saw the most intense attention this year from the litigation industry's top players.

  1. free litigation ebooks for trial lawyersVisits to A2L's free resources (podcasts, e-books, webinars etc.): This central set of resources allows visitors to our site to direct themselves to the information they most need.




 

  1. ryan-flax-a2l-litigation-consultants-webinar-recorded.jpgStorytelling for Litigators Webinar: The science of using storytelling for persuasion is in its nascent stages. This webinar explains what is now known and how to best use storytelling techniques to influence other people’s thoughts and conclusions.

 



  1. a2l-patent-litigation-consulting-4th-toolkit.jpgThe Patent Litigation Handbook 4th Edition: During A2L's more than 20 years in business, intellectual property cases have represented nearly half of our total work. Therefore, it’s no surprise that when we want to update one of our handbooks, we often turn to our patent litigation handbook. It’s a perennial winner.

 



  1. a2l-consulting-voir-dire-consultants-handbook-cover-drop.jpgThe Voir Dire Handbook: I'm surprised by how popular this book is, but voir dire continues to be one of the most searched for terms on our site. We routinely help support trial teams during jury selection and conduct mock exercises that have a voir dire component.

 




  1. complex-civil-litigation-ebook-free.jpgComplex Civil Litigation Handbook: This book is a necessity for anyone who enters civil courtrooms, develops theories for civil cases, or works on complex civil litigation.










 

  1. trial-timeline-ebook.jpgTrial Timelines E-Book: Used in almost every case, timelines are an essential communication tool. If you think that a timeline is simply a date bar with topic flags, this book has a great deal to teach you about this valuable concept.






 

  1. storytelling-and-persuasion-for-litigators.jpgStorytelling for Litigators E-Book: This book and its prior edition has been downloaded thousands of times.

 







  1. expert-witnesses-how-to-answer-questions-deposition-cross-1.jpgThe Top 14 Testimony Tips for Litigators and Expert Witnesses: No matter how well prepared a witness is, he or she can face a tricky question or a trap planned by opposing counsel. This article identifies 14 of those common situations and the best strategies to foil these tactics.

 




  1. best-voir-dire-questions-to-ask-mock-trial-federal-court-1.jpgFive Questions to Ask in Voir Dire . . . Always: This blog article originally published in 2013, has been read nearly 20,000 times this year alone.




 

  1. litigation-consulting-report-blog.pngOur litigation blog, The Litigation Consulting Report. Now, every year, more than a quarter-million visits are paid to our blog. It's been named a top litigation blog by the American Bar Association, The Persuasive Litigator, Cogent Legal, Justia, LitigationWorld and many other organizations. Why not claim a free subscription here or share one with a friend?






Tags: Trial Graphics, Trial Consultants, Litigation Graphics, Jury Consulting, Litigation Consulting, Trial Consulting, E-Book, Demonstrative Evidence, Webinar, Litigation Support, Patent Litigation, Voir Dire, Storytelling, Timelines, Podcasts, blog

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Featured E-Book: The Patent Litigator's Guide to Trial Presentation & Trial Preparation

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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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