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The Litigation Consulting Report

Using Litigation Graphics in Bench Trials: How Different Is It From Jury Trials?

Posted by Tony Klapper on Thu, Feb 9, 2017 @ 10:25 AM

judge-litigation-graphics-bench-trial.jpgby Tony Klapper
Managing Director, Litigation Consulting
A2L Consulting

We’ve spoken here more than once about the fact that jurors, unlike most attorneys, tend to be visual learners who like to be shown, not told. The best way to show them what they need to know, as we have said, is through litigation graphics. Science has also taught us that the best way to keep a jury’s attention is by telling a story in the courtroom. These insights obviously have major implications for how trial lawyers should use the arts of persuasion in a jury trial.

What about a bench trial or an arbitration? Here, the decisionmaker is trained as an attorney. Do we toss out all that we know about jury trials and proceed in an entirely different manner?

Not at all. First, narratives are just as important in a trial before a judge as they are in a jury trial. Judges are human beings, and like all human beings, they have minds that search constantly for an organizing principle, a way to tame the vast river of information that flows to them in a trial. A narrative is the best way for them to do that. Even a brilliant judge who happens to be an aural learner, not a visual learner, needs some way to organize data. That’s where your narrative comes in. (“First this happened, then this happened, then something else happened.”) Not only does story-telling make the trial lawyer’s job’s easier by making his or her case easy to understand; it also makes the case easier to remember.

After all, judges are not computers. They come to any case with their human values, perspectives and predispositions. A narrative will help them connect the case with these values and will help them build a story in their mind, based on those values and on the information they receive at the trial.

The same is true with litigation graphics. Even someone who learns predominantly through aural or kinesthetic means can still find a chart or a timeline interesting and helpful as a way of organizing information. For example, in Markman hearings, which occur exclusively before judges, patent lawyers almost invariably present diagrams of the patent figure or blow-ups of the patent language. In hearings like these and in bench trials, a trial lawyer may sometimes need fewer litigation graphics, but that doesn’t mean that the lawyer shouldn’t use any at all.

Just as top trial firms often use mock juries to test their case on before the actual trial, they can use “mock judges” in the case of a bench trial. If their budget permits, they could find a retired judge, possibly someone who knows the judge in the case, and present their evidence before him or her.

They can ask the judge what types of evidence and themes were most convincing, and which demonstratives did or did not work. It’s another good practice in presenting a case to a judge who is the decisionmaker.

Other articles about litigation graphics in bench trials, mock bench trials, and mock testing from A2L Consulting:

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Tags: Markman Hearings, Trial Graphics, Litigation Graphics, Trial Presentation, Courtroom Presentations, Mock Trial, Demonstrative Evidence, Storytelling, Judges

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

litigation leadership 4th edition

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

From the Hot Seat: To Use or Not to Use Trial Presentation Software

Posted by Alex Brown on Mon, Oct 24, 2016 @ 02:42 PM

david-goliath-trial-presentation-trial-director.jpgby Alex Brown
Director of Operations
A2L Consulting

While I was working on a case with one of our clients, it came to light that the opposition was using a trial technician for trial. At first our client did not want to bear the expense and did not feel that the case lent itself to the use of a full-time “hot seat” operator.

I asked the client a few questions:

  1. What percentage of potential jurors carry a smartphone?
  2. Of that group, how many have tablets?
  3. Of those people who are “connected,” how many will be impressed by the flash and professionalism of a skilled trial tech?

As you would expect, the numbers were high. It was obvious to everyone that if you are on a case and one side is using trial software, you have to match the other side or be left in the dust.

People expect to see technology in the courtroom, appreciate the effort if it is made, and do not understand if one side does not use it. If your opposition is using modern technology and you are using the overhead and drawing on flip charts, your message will be lost.

In this instance, we helped our client find a solution that did not permit the opposition to make it look unprepared and unprofessional.

Here are 10 good rules for using trial presentation software to the best effect. 

  1. Provide training. Make sure if you are going to use it, know how to use it or find someone that does. The software is designed to make your presentation effective and seamless. If you are not getting that result, bring in someone who can.
  1. Use the right tool. Sanction, TrialPad, TrialDirector (laptop or iPad), and OnQue are the top platforms today. Use the one that’s best for you. Ninety percent of trial teams that use this type of software use TrialDirector, simply because it works. This should not take away from the other platforms. Sanction has improved, and OnQue is the new kid on the block and seems to handle video much better than the alternatives. But comfort is paramount, so use the platform that is most comfortable to the one presenting. Remember, you are not the one running the presentation. They are there to support you.
  1. Know the court. Each court has its own rules. Sometimes a judge will not allow technology at all, and sometimes the technology built into a courtroom will not work because it is outdated, so know the court and their rules. For example, see 5 Secrets for Trying Cases in SDNY.
  1. Don’t procrastinate. Sometimes you have to make last-minute changes, but it’s always better to have your video clips, PowerPoint decks, and exhibits/demonstratives done early. Not just because you do not want your team putting these things together in the middle of the night just before trial but mainly because you need the time to practice. See, The 13 Biggest Reasons to Avoid Last-Minute Trial Preparation.
  1. Run everything through and video record yourself to see how it all looks and works. This also permits you to build a level of comfort with your trial tech and allows you to see how the software handles your clips, decks, and images. Remember, you don’t need to be worrying about anything more then you already do.
  1. Build in redundancy. Everything in twos. Two machines, two switches, two of every cable, and sometimes two techs. This depends on the scope of the case, but a backup operator can be a lifesaver when a case lasts longer than three weeks. Life happens. Have someone ready to pick up the ball if somehow it gets fumbled. Anything can happen to a person or a piece of technology if you give enough time, so be ready with a backup.
  1. Either/or is a great concept. Trial boards, handouts, and physical models are still useful. Use them along with your modern presentation software. In court is not where you need to learn how to use them or which one works better.
  1. Make a key. Make sure you create a set of naming criteria to name everything you are going to use, and do not deviate from those criteria. This will allow everyone on the team to know where things are and to know where to look for that unscripted document/clip. Do not make it a hard key where they need to look in a book to find the location. Make it easy because then it is faster and it will make you look more professional.
  1. Think of part-time help. If you simply cannot have a tech there every day, one option is to have someone do it on certain days. Opening, the testimony of experts, or closing – the days that may matter most.

  2. Set hot keys. Most programs will allow you to set up hot keys or short cuts. Figure them out and use them. Three seconds is a lifetime when you are waiting for someone to show a call-out or even just bring up an image. It makes you look unprofessional and gives strength to your opposition.

Other articles from A2L Consulting focused on trial technicians, hot seat operators, and trial presentation software include:

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Tags: Trial Technicians, Trial Consultants, Trial Presentation, Hot Seat Operators, Trial Technology, Trial Director

Should You Read Documents Out Loud at Trial?

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

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

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

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

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

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

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

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

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

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

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

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

8 Habits of Successful and Persuasive Public Speakers

Posted by Alex Brown on Fri, Oct 7, 2016 @ 11:13 AM

iStock_40536788_SMALL.jpgby Alex Brown
Director of Operations
A2L Consulting

Nearly every person can recognize a successful and persuasive public speaker when he or she hears one. But it’s not always so easy to identify the specific traits that nearly all successful speakers share. As a longtime observer of oral advocacy and persuasion, I have compiled a list of the things that all speakers should do if they want their audiences to listen and care about what they are saying – especially if their audience happens to be a jury or judge.

  1. Start strong. As you know, your opening statement will win or lose the case. So it makes sense that the opening of your opening – the very first few sentences -- is vital. Use this as your chance to set the stage. The majority of people on the jury do not want to be there or see their jury service as a waste of time, so don’t waste their time. Catch them quickly and hold their attention. 
  1. Know your audience. Make sure you are speaking to your audience, and not at them. Do you understand their background, their culture, their education level, and their socio-economic standing? Can you identify who the likely leaders will be, and can you get them on your side? Do you already know who your advocates on the jury will be? Sounds hard, but if you have a top-notch jury expert, they can give you the ammunition to know these answers before you open your mouth. 
  1. Maintain eye contact but don’t overdo it. Many people, beginners and experienced speakers alike, have an unconscious tendency to skip or jump about with their eyes when they have many people that they wish to connect with. The problem is that if you flit like a butterfly, you can unconsciously convey insincerity, detachment or insecurity. The best amount of eye contact is two to three seconds per person, or long enough to finish your phrase or sentence. Longer can be uncomfortable also, so practice maintaining eye contact appropriately.
  1. Limit distracting mannerisms or tics. Everyone has at least one: clenching, wringing or flailing your hands, pacing, playing with change or your keys in your pocket, twisting your ring, holding onto the lectern like a lifeline, licking or smacking your lips, adjusting your clothes or twisting your hair -- the list goes on. Everyone has these, but, everyone can control them. The simplest way is to see them and watch yourself, so video tape yourself and watch. You will become aware of what you are doing physically, and you will be able to focus what you say in the process.
  1. Show enthusiasm. This is what an audience wants a presenter to show. They expect to be bored and even to be talked down to, so give them what they want by not giving them what they expect. Change your tone and speed to keep them moving with you. Make sure your demeanor matches what you are saying.
  1. Avoid death by data. Yes, we all want to be credible, we all want to make sure the audience has everything it needs to agree with us. But avoid killing your audience with too much logic, analysis, reasoning and numbers. You will never inspire or connect with your audience if you are just reciting fact after fact.
  1. Sometimes, because of nervousness or excitement, we can rush through what we want to say. Fight this urge. Someone I greatly respect often says to me that I speak so fast I should charge double per hour. That sounds great, but most of us simply cannot keep up. Once you lose your audience, it is seven times harder to get it back. Also, well-placed pauses can successfully punctuate your speech. Use them to make a bigger impact.
  1. Finish stronger. You have guided them down the path toward enlightenment. They are yours now – so how do you end? Writers say there are at least four good ways to end a story: with a plot twist, with an “oh no” moment that leads to an “aha” moment, with a return to square one, and with a real ending. In a trial, you want that real ending. Close the book. People tend to lose interest once the story has reached the conclusion, so don’t waste their time. Guide them, direct them, show them the choice and end.

Other A2L Articles related to public speaking, persuasion, and appealing to a jury include:

deliver great presentations inside and outside of the courtroom

Tags: Trial Presentation, Courtroom Presentations, Juries, Persuasion

The Top 5 Litigation & Persuasion Focused Articles of Q2 & Q3 2016

Posted by Ken Lopez on Fri, Sep 30, 2016 @ 03:25 PM

iStock_79502561_SMALL.jpgby Ken Lopez
Founder/CEO
A2L Consulting

In the first quarter of 2016, A2L Consulting reported record amounts of business and web traffic. Well, those numbers have only continued to climb throughout the second and third quarters of this year. High stakes litigation is booming across the industry, although it's not heavily concentrated in any one law firm or in any one business sector. 

Every year, more than a quarter million visits are paid to A2L's blog, The Litigation Consulting Report. Each year we publish more than 100 articles focused on highly specialized areas of persuasion science, jury consulting, high-stakes litigation, and the use of litigation graphics at trial.

To help our readership find the very best articles, we publish "best of" articles like this one throughout the year. Today, I'm highlighting the five articles that you, our readers, voted the very best of the past two quarters. I think each is a fascinating read.


How top trial teams and top trial lawyers behave5. 10 Criteria that Define Great Trial Teams: Our top trial experts at A2L seek to distill the essence of trial preparation and develop a numerical way to measure its quality and predict success.








top trial team trial lawyer traits4. 50 Characteristics of Top Trial Teams: We tell our readers what the unique characteristics of the top trial teams are. Some of them are quite surprising.







Better storytelling for lawyers3.  6 Ways to Become a Better Storyteller: At A2L, we share the results of our best thinking on storytelling at trial. What are the best time-tested techniques?






SPICE persuasion tricks2.  SPICE Is the Key to Persuasion: An expert on the art of persuasion identifies the key aspects of persuading juries or anyone else, summed up in the acronym SPICE.




 

 

 

 


PowerPoint tips and tricks1. 12 Things About PowerPoint You Probably Never Knew: A litigation graphics expert shows how little-known aspects of PowerPoint, far from being dull, can help persuade when creating PowerPoint trial graphics.

 

 



 

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Tags: Trial Presentation, Jury Consulting, Mock Trial, Litigation Consulting, Litigation Support, Jury Consultants, Articles, Trial Preparation, Jury Selection, Opening

Last Day to Vote: Best of Legal Times 2016

Posted by Ken Lopez on Fri, Sep 23, 2016 @ 12:43 PM

bestofthelegaltimes2016-lastday.jpgby Ken Lopez
Founder/CEO
A2L Consulting

A2L was thrilled to be nominated in a number of categories again in the “Best of Legal Times” competition. We have won in these categories before, and I'd love your vote today in support of us.

I think these types of surveys are very useful for lawyers to participate in by identifying the very best service providers to the legal industry whom they are familiar with, in any number of categories. Once the results are in and published, lawyers and law firms can use the survey results, which can serve as a handy shortcut for finding the best providers. This includes, of course, trial consulting, jury consulting and all the other areas in which A2L competes.

These surveys don’t replace the old-fashioned method of seeking out good references and using providers that you’ve had good experiences with in the past. But they add very useful information – the “wisdom of crowds” in the form of the opinions of hundreds of lawyers who have looked to these providers in the past.

We believe that we stack up with the top providers in our industry. This year, we were nominated as Best Trial Consultants, Best Jury Consultants, and Best Demonstrative Evidence Provider.

If you'd like to participate, follow this link and scroll (you can skip the rest) to questions 45, 46, & 49 - don't forget to press the DONE button at the end.

best-trial-consultants.jpg

Thanks for helping to identify the best in the business. You've told us before that we are at the top of our industries, and I hope you'll do it again.

best of the legal times 2016

Previous related accolades:

Tags: Trial Graphics, Trial Technicians, Trial Consultants, Litigation Graphics, Trial Presentation, Trial Consulting, Demonstrative Evidence, Trial Technology, Trial Director, Awards, blog

[Free E-Book] The Value of Litigation Consulting 2nd Edition

Posted by Ken Lopez on Tue, Aug 16, 2016 @ 03:17 PM

value-litigation-consulting-400-tall.jpgby Ken Lopez
Founder/CEO
A2L Consulting

As trials become more and more complex – just think of the intellectual property cases worth billions of dollars that have rooted the attention of Silicon Valley and the world – litigation consulting has become more and more important. There may be fewer jury trials now than there used to be, but many of the cases that go to trial can shake up an industry.

“Litigation consulting” is a broad term that describes a broad variety of services that help lawyers try and win cases. They include jury and bench trial consulting, litigation graphics consulting, on-site courtroom technology support and similar services. In a given case, a trial team may need all the services that A2L provides, or just a subset of those services.

In order to show how far the litigation consulting industry has come in a relatively short time, we are issuing a free --- page book, The Value of Litigation Consulting. The book explains why even the best trial lawyers can benefit from the services of top-notch litigation consultants. It’s a handbook that shows where the industry has been and where it’s heading.

The book is full of useful, hard-hitting articles on these topics, including 11 Things Your Colleagues Pay Litigation Consultants to Do, 6 Secrets of the Jury Consulting Business You Should Know, 12 Reasons Litigation Graphics Are More Complicated Than You Think, How Long Before Trial Should I Begin Preparing My Trial Graphics?, 11 Traits of Great Courtroom Trial Technicians.

You can download the book here - completely free - no strings attached.

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Tags: Trial Graphics, Trial Consultants, Litigation Graphics, Trial Presentation, Jury Consulting, Litigation Consulting, Trial Consulting, Demonstrative Evidence, Trial Technology, Litigation Support, Jury Consultants, Trial Preparation

7 Reasons a Fresh Pair of Eyes Are Beneficial Before Trial

Posted by Ken Lopez on Wed, Jun 29, 2016 @ 02:53 PM

iStock_38166022_SMALL.jpgby Ken Lopez
Founder/CEO
A2L Consulting

When it comes to making a decision about hiring a litigation consulting firm like A2L to support a trial team, I notice that many factors are intuitively persuasive to the consumer of such services.

With litigation graphics, most trial lawyers understand they benefit from outside help since jurors are mostly visual learners, and visual persuasion experts help bridge the communications gap between the trial lawyer and the typical American.

With jury consulting, most trial teams respond to the notion that an experienced jury consultant has watched thousands of jurors deliberate and can thus offer insights based on that unique experience. Further, it just makes sense to most people that a jury consultant is in the best position, given her training, to create a proper forum for scientifically valid and actionable jury research.

However, more important than these considerations, there is one factor that seems to occur to almost everyone who is evaluating the use of a litigation consultant. It is the idea that a fresh pair of eyes is almost always helpful when preparing for trial.

By a fresh pair of eyes, I'm referring to a litigation consultant who has been engaged to support the trial team sometime in the year before trial. At this point, early theories have often been developed, perhaps a draft narrative is in place, and the evidence has largely been evaluated. However, all too often, scant attention gets paid to the presentation of the case until the final few months before trial.

It is in this period that people seem to recognize the value of the “extra pair of eyes” in giving the trial strategies and tactics their final form. Here are some specific reasons why these new eyes can help. 

  1. Trial lawyers are likely to be too close to their case. After their long hours wrapped up with the case, they have subconsciously developed a theory or theories about the case that will be hard to shake. If these theories can be improved, it will take an outsider to convince the trial lawyer of that. See, Accepting Litigation Consulting is the New Hurdle for Litigators and 5 Surprises in Going from IP Litigator to Litigation Consultant.

  2. Trial lawyers identify with the client. That is a natural and understandable thing to do, since trial lawyers are supposed to zealously represent their client and think the client’s views are correct. However, sometimes the client’s ideas, though they reflect its perspective and industry realities, may be too hard to sell to a jury. Enter the new pair of eyes. See, 7 Reasons Litigation Graphics Consultants are Essential Even When Clients Have In-House Expertise and 5 Ways Litigation Consultants Add Pizzazz to a Tedious Case

  3. It’s hard to imagine “simple” when you are very smart. Trial lawyers are accustomed to being the smartest man or woman in the room. Sometimes, though, they will adopt a theory that lacks the common touch and is hard to explain to the everyday, common-sense thinker in the jury box. The outsider can help with this as well. See,
    21 Reasons a Litigator Is Your Best Litigation Graphics Consultant,  When Smart Ain’t So Smart - Cognitive Bias, Experts and Jurors and 12 Ways to SUCCESSFULLY Combine Oral and Visual Presentations.
  1. Don't Eat Your Own Fundraiser Doughnuts. When a trial team becomes too insular or if the 1st chair litigator becomes dictatorial, a closed feedback loop can develop. In this situation, all ideas are simply confirmed as good ideas by the internal team. Never is a fresh pair of eyes more valuable. See, 7 Bad Habits of Law Firm Litigators.

  2. Simple is hard to get to. Often, the most straightforward way of presenting the facts is the best. A trial lawyer can sometimes become taken with, even obsessed with, a more comprehensive yet more complicated approach to the facts. An outsider can give him or her a new perspective on this. See, Litigator & Litigation Consultant Value Added: A "Simple" Final Product and Planning For Courtroom Persuasion? Use a Two-Track Trial Strategy

  3. Collaboration can be creative. From the clash of ideas, a trial lawyer and a litigation consultant can develop new approaches to a case. They need to treat each other as equals and not be afraid to be wrong, nor be afraid to criticize the other person’s approach. See, How Creative Collaboration Can Help a Litigation Team and 9 Things I’ve Noticed About Effective Litigation Graphics After 20 Years as a Litigator

  4. Trials are rare, but not for litigation consultants. The “extra pair of eyes” will be someone who has been there and seen it all in the courtroom. Many trial lawyers, however skillful, go to trial once a year at most. See, With So Few Trials, Where Do You Find Trial Experience Now? and 9 Things In-House Counsel Say About Outside Litigation Counsel

Other A2L Consulting articles related to the support top-end litigation consultants provide to top-tier trial lawyers include:

litigation consulting graphics jury trial technology

Tags: Trial Graphics, Litigation Graphics, Trial Presentation, Jury Consulting, Mock Trial, Litigation Consulting, Demonstrative Evidence, Juries, Jury Consultants, Trial Preparation, Visual Persuasion, Persuasion

50 Characteristics of Top Trial Teams

Posted by Ken Lopez on Thu, Apr 21, 2016 @ 02:22 PM


trial team win litigation traits characteristicsby Ken Lopez
Founder/CEO
A2L Consulting

After the more than 20 years that we have spent in the litigation consulting business, we don't hear very many questions that we’ve never heard before. However, this week I did hear one, and the story is worth sharing because it goes to the heart of how a truly great litigator performs. The question I heard was, “What can we do better as a trial team on the next engagement?”

Consider how remarkable this is. Here was a litigator from a large law firm sincerely trying to improve the performance of his team and himself. I was deeply impressed, as this was the first time I've had someone ask that question after an engagement.

It's a very sensible question, of course. A2L's team has worked with thousands of litigation teams from the very best law firms in the world. I have watched many litigators perform near-magic in the courtroom, and I have seen teams fail miserably. There are patterns that lead to success and patterns that lead to failure.

In the spirit of the question that this litigator asked me, I started thinking about the traits of the world’s most effective trial teams. Here are 50 of them culled from my experience and that of my colleagues Dr. Laurie Kuslansky and Tony Klapper.

  1. Practice is by far the single most obvious indicator of a trial team's success. The great litigators draft their openings months or years in advance of trial and practice them dozens or hundreds of times. See, Practice, Say Jury Consultants, is Why Movie Lawyers Perform So Well

  2. Preparation. Great trial teams start preparing long before trial, and they don't ask the client’s permission to do so. Their attitude is, “If you work with a team like ours, it means you want to win and we know how to win and we're going to get that done, whatever it takes.” I think they are right. There are only a handful of law firms that I have observed that have this sense of preparation embedded in their litigation culture. See, The 13 Biggest Reasons to Avoid Last-Minute Trial Preparation

  3. Great litigation teams want their answers questioned. Great litigators are confident. They are so confident that they open themselves up to rigorous scrutiny in their approach to trial. Through a whole host of methods, they invite criticism, suggestions, fresh pairs of eyes, lay people’s opinions, experts’ opinions, and they use all of these voices to perform at their best. See, Accepting Litigation Consulting is the New Hurdle for Litigators

  4. They lead, but they can be led too. Great litigators avoid dominating all discussions. They intentionally let others lead them and be seen as leaders. Download the Leadership for Lawyers eBook

  5. They just look comfortable in front of a jury. Confidence equals persuasiviness and humans are born with an expert ability to detect it.  See, A Harvard Psychologist Writes About Presenting to Win

  6. They build narratives early. They know how important a narrative is to winning a case. They have also learned from experience that the earlier this is done, the better. A well-constructed narrative can inform everything from briefing to discovery to witness preparation. Download The Opening Statement Toolkit

  7. They understand the difference between a narrative and a theme. See, 14 Differences Between a Theme and a Story in Litigation

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  8. They spend their time where they are most valuable and add the most value. How Valuable is Your Time vs. Litigation Support's Time?

  9. They begin developing their visual presentation months or years before trial. See, How Long Before Trial Should I Begin Preparing My Trial Graphics?

  10. They’re not afraid of technology in the courtroom or elsewhere. Skipping technology means losing credibility in most cases now. Jurors have come to expect it and no longer take kindly to simply being lectured to. See, Trial Presentation Too Slick? Here's Why You Can Stop Worrying

  11. They’re systematic in how they meet with their outside consultants. Great trial teams usually hold weekly calls or meetings and schedule the next event at the end of each meeting.

  12. They’re not frantic. There are so many reasons why one should not be frantic, and even when the facts are terrible, great lawyers work at a measured and even pace and don't go negative. See, 10 Signs the Pressure is Getting to You and What to Do About It

  13. They don't jockey for position with other lawyers and law firms. The worst and least effective trial teams that I have ever seen play politics to the detriment of the client in the run up to trial. See, 5 Tips for Working Well As a Joint Defense Team

  14. They exhibit a distinct lack of arrogance. I think some people confuse arrogance with ability. The best trial teams I have observed display tons of confidence, show mastery of the subject matter, demonstrate massive respect for one another and never allow arrogance to enter the picture. See, In-House Counsel's Role In Keeping Litigator Ego In Check

  15. They probably subscribe to our blog. Alright, not everyone subscribes to this blog, but 8,000 people do. Litigators who demonstrate that they hope to grow their own skill set are typical subscribers. See, 10 Surprising Facts About Litigation Consulting Report Blog Readers



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  16. They realize there are too many parts in big-ticket litigation for the first chair to handle all of them alone. They know how to divide the work among attorneys, paralegals, experts, and others. The only way to build a simple case is to start with a complicated one and break it down. Truly complex cases require lots of team effort to achieve this result. See, Litigator & Litigation Consultant Value Added: A "Simple" Final Product

  17. They require their experts to work with communications and visual design consultants. Perhaps 1 in 500 experts is an expert in presenting information in a jury-friendly way, but most believe that they are. 7 Smart Ways for Expert Witnesses to Give Better Testimony

  18. They don't lose it; they keep their cool. There are plenty of stressors in the pre-trial environment. People not used to doing this kind of work would find it hard to maintain a positive attitude, but it is so critical to do so. See, 5 Signs of a Dysfunctional Trial Team (and What to Do About It)

  19. They conduct post-hearing, post-conference, and post-trial debriefings. Truly great trial teams do this, and all bad trial teams simply blame a bad judge, bad facts, and/or a bad jury. See, 9 Questions to Ask in Your Litigation Postmortem or Debrief

  20. They contemplate their thematic story right from the start and incorporate that into discovery. We're working with a number of clients now who are making sure a narrative is developed early in a case, not just on the ease of trial. This is a best-practice for highly effective trial teams. See, Planning For Courtroom Persuasion? Use a Two-Track Trial Strategy

  21. They tell you their strengths and weaknesses. When we meet with a trial team for the first time, they usually present to us as if we were potential jurors. That is, they advocate. Good trial teams do that, but then great trial teams say, "here's what our opponents will say and here's where we are vulnerable."

  22. They don’t answer their own questions, but let other people do that. Often, these answers are found in a mock trial setting. As we frequently advocate, let the data speak, don't guess or just use your gut instinct. See, 10 Things Every Mock Jury Ever Has Said

  23. Before dismissing new ideas, they consider how to apply them, no matter how new. See, How Creative Collaboration Can Help a Litigation Team

  24. They repeat back recommendations to make sure they understand them. This mirroring technique is used by many highly effective litigators and great listeners in all fields.

  25. They send drafts of their work with enough lead time for others to provide comments. Time management in litigation is a skill that must be developed and is a given with great trial teams. See, The 13 Biggest Reasons to Avoid Last-Minute Trial Preparation

  26. They communicate in an orderly, consistent manner so that the left and right hands know what the other is doing. 

  27. If they aren’t good organizers, they task someone who is to assure continuity and avoid panic. Download the Leadership for Lawyers eBook

  28. They don’t assume anything and seek to verify with facts, including mock testing that shows which themes are winners and which juror types are worst. See, 11 Problems with Mock Trials and How to Avoid Them

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  29. They don’t answer challenges by simply stating how long they’ve done this or where they went to school. See, 6 Studies That Support Litigation Graphics in Courtroom Presentations

  30. They lead, but don’t micromanage. We recently wrote about how some trial teams will agonize over fonts, colors, and PowerPoint templates while ignoring bad facts in their case during trial preparation. See, 3 Trial Preparation Red Flags That Suggest a Loss is Imminent

  31. They are respectful to junior staff and outside consultants. See, 13 Reasons Law Firm Litigation Graphics Departments Have Bad Luck

  32. They understand that their success is a team effort and approach it that way. See, When a Good Trial Team Goes Bad: The Psychology of Team Anxiety

  33. They give credit where credit is due, sincerely (not by patronizing).

  34. They lead by example. Download the Leadership for Lawyers eBook

  35. They pay their bills on time or early. I'm pretty sure most litigators don't understand how important timely payment is and how it contributes to winning cases. See, 10 Ways Timely Payment Helps You Save Money On Litigation Consulting

  36. They don't sugarcoat the possible effectiveness of the other side's narrative and thematic points and fall too quickly in love with their own narrative and themes. See, 12 Astute Tips for Meaningful Mock Trials

  37. Notwithstanding a keen awareness of what the other side will say, they don't simply respond to the other side; they build their own affirmative narrative. See, $300 Million of Litigation Consulting and Storytelling Validation opening statements toolkit ebook download a2l
  38. They pressure test throughout the course of their pre-trial development and during the course of trial itself by continuously empowering the entire litigation and trial teams to provide their own input. They eschew groupthink. See, How Creative Collaboration Can Help a Litigation Team

  39. All attorneys on the team have meaningful roles that sync with their individual strengths.

  40. They don't wait until the last minute to prepare fact and expert witnesses and instead dedicate sufficient resources to ensure those witnesses are prepared. See, Witness Preparation: Hit or Myth?

  41. Witness preparation includes, of course, careful development of an effective visual presentation that is rehearsed but doesn't sound rehearsed. See, The Top 14 Testimony Tips for Litigators and Expert Witnesses

  42. Effective litigation teams spend as much time preparing their witnesses for robust cross-examinations as they do for direct examinations. See, 
    Witness Preparation: The Most Important Part

  43. They look for opportunities to score significant points on redirect, a redirect that is thought through well in advance of trial and not simply reactive to cross.

  44. They seek candid feedback, not false praise, during trial.

  45. They get some sleep. One of my favorite, now retired, trial lawyers used to say that he never slept better than when we was at trial. He always knew he was fully prepared.

  46. They don't relegate preparation of important witnesses to junior lawyers who lack actual experience. See, Witness Preparation: Hit or Myth?

  47. They don't dismiss the level of intensive prep needed “just for deposition,” waiting for trial.  Most cases settle, and discovery can make or break a case. My favorite lawyers are just as "on" at a depo as they are at trial. See, 6 Tips for Effectively Using Video Depositions at Trial

  48. They think about details like tie color, suit color, and body language, and they work to improve their delivery at every event they participate in. See, Litigation Graphics, Psychology and Color Meaning

  49. They are grateful that they get to do the kind of work that they do. I watched a top trial lawyer and friend be interviewed recently. His attitude was one of sincere gratitude about being a litigator. That sincerity comes through in everything that he does, and it is part of the reason he is so successful in front of juries. It's something that is almost impossible to fake.

  50. Finally, they ask their litigation consultants what can they do better. So far, as mentioned in the introduction to this article, it has happened just this once. However, I have a feeling we'll get asked this question more and more. I hope this article provides a useful framework for these types of discussions.

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Tags: Trial Graphics, Litigation Graphics, Trial Presentation, Jury Consulting, Courtroom Presentations, Mock Trial, Trial Consulting, Demonstrative Evidence, Litigation Management, Litigation Support, Juries, Jury Consultants, Trial Preparation, Storytelling, Management, Practice, Expert Witness, Leadership, Judges, Opening, Depositions, Witness Preparation, Persuasion

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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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