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In a recent post here, I confessed my guilty pleasure: watching NBC’s hit reality singing competition, ‘The Voice.’ But I also acknowledged my frustration over the format: too much inconsequential fluff that’s got nothing to do with singing. For one thing, there’s the vapid bantering between the coaches and the inevitable and insincere implication that every pairing of performers compels a decision as agonizing as Sophie’s Choice. And then there’s the over-dramatization of many contestants’ personal stories that can feel a bit cringy when the judges purport to empathize with issues around, among other things, body image, bullying, sexual orientation, and loss. (In fact, watch for a future blog post about the importance of authenticity). These personal subplots help explain why, as I previously pointed out, the most exceptional voice rarely wins ‘The Voice.’ And in all of this is a lesson about jury trials. Who wins ‘The Voice’ depends on who decides who wins ‘The Voice.’ Succeeding in the early rounds depends upon winning over elites – judges who are experts in vocal performance. One would expect qualities like timbre, tone, pitch, range, resonance, phrasing, articulation, dynamics, as well as good taste, among others, to feature prominently in an assessment of the best voice by the music judges. By contrast, audience members are far less likely to be capable of similar discernment. While the public can authoritatively say what it likes, it is not sufficiently trained or experienced to identify the superlative voice the program promises. Yet, to win on ‘The Voice,’ a contestant must ultimately win over the less discerning voting public and not the elite judges. What it takes to succeed with subject matter experts is quite different from what it takes to win over an essentially unsophisticated TV audience. In fact, their very unsuitability for discerning technical vocal quality with sufficient granularity to distinguish among a field of talented singers may explain why audience members likely consider a broader (and more accessible) range of criteria, such as the performers’ feel-good back stories. Perhaps, in that sense, ‘The Voice’ imitates life, where it is as important to be lucky, and liked, as it is to be superlative. Just as a contestant on ‘The Voice’ must manage the transition from being judged by experts (musical superstars) to being judged by lay people (the viewing public), so too must the trial lawyer. Most of us have spent an overwhelmingly disproportionate share of our professional time and energy persuading the minds of other well-trained, elite legal professionals – in-house lawyers, opposing counsel, and, at the top of that heap, judges. We know precisely how to talk to them because we speak the same language.

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Part 1 of a multi-part series. I have a shameful secret: I watch NBC’s ‘The Voice.’ In fact, to come entirely clean, I guess I should say, “I faithfully watch ‘The Voice.’” The revelation of this guilty pleasure would come as a surprise to people who know me because of both my specific contempt for “reality TV” and my more general disdain of formulaic dreck. Ironically, ‘The Voice’ is both – in spades. Apart from the musical performances, there is a surfeit of contrived drama: the competition and bantering between the judges, and the often cloying back stories of the performers. Ugh. But there is no curious conundrum to resolve here: I like ‘The Voice’ despite the fact that it is unabashedly formulaic reality TV (a sin that technology helps me minimize). For those of you who don’t know it, ‘The Voice’ is a singing competition. And I happen to be captivated by musical talent. I get completely floored by a 14-year old girl with the vocal timbre of Billie Holiday or Amy Winehouse and am left slack-jawed by the burly former linebacker with the range and falsetto of Philip Bailey. But it’s not just the surprise of those incongruities. For me, it is almost exclusively about the quality of the performers’ pipes and, occasionally, the musical instincts and insights of the “superstar” musicians who first judge, then coach, the contestants. Now, I suspect that my television viewing habits hold your interest just about as much as my love of pudding, but there is a substantive point behind this confessional. Useful lessons about trial presentation and persuasion can be learned from ‘The Voice,’ which first aired in 2011.  First, some background. ‘The Voice’ is a complex, intensely dramatic version of the old-fashioned talent show. At the end of each season, one singer, drawn from the ranks of thousands of Americans who believe they have musical talent and have entered the competition, is crowned the winner and signed to a recording contract.

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We have written many times about what separates good trial teams from world-class trial teams. One article collectively written by many people inside and outside of A2L stands out to me as seminal. It can be found here: 10 Criteria that Define Great Trial Teams If I could have all trial lawyers read only one of our articles, it would be this one. It is one of more than 600 on our site, but it succinctly reflects our leadership's best thinking, and it best summarizes what most of the other 599+ articles say. This simple list of 10 criteria, especially when used as a trial team self-assessment tool, is a thing of magic. In arriving at this deceptively simple list, we captured hundreds of years of trial experience. At first, we identified 50 trial team traits that set the great ones apart from the ordinary (you can see these in this article). When we reduced these 50 traits to 10 key criteria, I think we revealed the secret ingredients of a successful trial team. And in the two years since that was published, I have not seen any reason to revise the criteria. In fact, I’ve seen this list turned assessment tool perform consistently: Trial teams with low scores lose cases; trial teams with high scores win cases. Nowhere on this list do we explicitly use the term groupthink, but our thoughts on the subject are certainly implied through our selection of these 10 traits. First, what is groupthink? Wikipedia says: “Groupthink is a psychological phenomenon that occurs within a group of people in which the desire for harmony or conformity in the group results in an irrational or dysfunctional decision-making outcome. Group members try to minimize conflict and reach a consensus decision without critical evaluation of alternative viewpoints by actively suppressing dissenting viewpoints, and by isolating themselves from outside influences.” During trial preparation, members of a trial team can easily put not wanting to be wrong or different ahead of challenging a group decision. We have written about trial teams becoming dysfunctional under severe stress several times before in articles like: 5 Signs of a Dysfunctional Trial Team (and What to Do About It) When a Good Trial Team Goes Bad: The Psychology of Team Anxiety Groupthink is a little different than the nearly complete group breakdowns described in these articles, however. It's a little more subtle and not quite as nightmarish. Still, groupthink can derail a case -- and it often does. Although groupthink can raise its head at any time, we often see it emerge when a trial team is evaluating an opening PowerPoint deck under development, particularly if there are more than five people doing the evaluating. Members of the team will avoid challenging everything, including the specific slides, the order the story is told in, and what not to say during opening. Instead, they will give the appearance of agreement by staying silent. This is groupthink and it does not help win cases. It does the opposite. Here are nine ideas for solving these problems in a trial team. Get the “buts” out of the room: This is an expression we use at A2L. When you are doing creative work, nothing shuts down the creative mind more than someone who jumps in to say why something won't work. These statements usually start with the word “but.” See, Dealing With That ‘Bad Apple’ on Your Trial Team. Establish rules for your trial team meetings: Here are two we often use: silence is acceptance, and no spectators allowed. Ask your litigation graphics team for variations to stimulate thinking. Looking at one litigation graphic may generate some discussion, but looking at two variations guarantees it. Ask for this from your provider. See, 10 Reasons The Litigation Graphics You DO NOT Use Are Important.

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Trial teams frequently wrestle with questions surrounding how simple a trial presentation should be. It’s a good thing to worry about. They worry about coming off as condescending. They worry about the story being impossible to simplify. They worry about what order to tell the story in. These are all understandable questions to wrestle with. Unfortunately, on the question of how simple a case should be made, I think most trial teams end up talking themselves out of the right answer. So here’s the answer in five parts.  A trial presentation should be so simple that: 

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If a director of a motion picture or a play loses his or her audience, the result will most likely be disastrous. The same is true for a trial lawyer. As a lawyer, if you lose your audience, you'll more than likely lose your case. And there are many ways to lose an audience. You might, for example: fail to use images to simplify a case sufficiently for a jury to understand it fail to engage the jury with effective teaching techniques alienate jurors by being unaware of local customs and lingo behave in an unlikable fashion read long passages to a jury, quickly losing the jury’s interest fail to develop a story that a jury can care about fail to use storytelling techniques at all fail to use or fail to defend against reptile trial strategies One other major way to lose an audience is to fail to develop characters that a jury will care about. If you don’t develop such characters, your jury will either not care about your side or will turn against your client from the start. Unfortunately, about half of all trial teams fail to properly develop the characters in their litigation story, and their cases suffer terribly for it. The excuses are numerous: from “We’re a big company, we don't have individual characters” to “Everyone on our side is perceived as bad.” These are just excuses. I can guarantee that 99.9 percent of the time, there will be characters that can be developed.

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If you're one of the nearly 10,000 long-time readers of this litigation consulting blog, you know that periodically, we list the recent articles that have proved the most popular. We measure popularity based on the number of times an article has been read, so these really are reader rankings. In today's article, I want to do something a little different. This time I'm listing not only the top three articles of the last quarter but also the current top three articles of all time (since 2011 when we started writing this blog). In a particular quarter, the top article may see a few thousands of individual readers reading it. However, an article on our blog for five or more years may see tens or hundreds of thousands of readers. Consistently, topics related to jury selection rank higher than those related to litigation graphics. I think this is because litigation graphics tend to be used primarily in large civil cases, whereas jury selection occurs in large and small cases and in both criminal and civil cases. These top articles should be interesting to many different types of readers. If you are interested in presenting at trial most effectively, the Netanyahu article should be studied carefully. If you participate in jury selection or hire people who do this kind of work, the voir dire article is a foundational piece. Top 3 Articles of Q2 2018:  Netanyahu Persuades and Presents Better Than Most Trial Lawyers     What Steve Jobs Can Teach Trial Lawyers About Trial Preparation     How Much do Jury Consultants, Litigation Graphics, and Hot-Seaters Cost -- Honestly?     Top 3 Articles Since 2011 (the life of our blog, The Litigation Consulting Report):   5 Questions to Ask in Voir Dire . . . Always   The Top 14 Testimony Tips for Litigators and Expert Witnesses   10 Ways to Spot Your Jury Foreman

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Because (apparently), if we only had 15 more minutes, we could all save 15% or more on car insurance, GEICO has run a series of amusing TV commercials that imagine surreal sources of wasted time, including a Pictionary-playing sloth, Emperor penguins betrayed by faulty GPS, and an interstellar commander who loses his spaceship’s keys in the midst of an alien attack.

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

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