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No matter where you stand on the border wall dispute that has captivated the nation, you have to admit that it is an important debate. After all, $5 billion is a lot of money and who knows if the wall will really make a difference. But allowing between 200,000 and 2,000,000 people to easily enter the United States every year via the border with Mexico is probably not a good thing either. You probably just automatically identified yourself with one of those two previous sentences and took it as your position, right? The other sentence may have even made you angry or at least started you thinking about counter-arguments. In other words, like most political discussions, minds are rarely changed by more facts. It's kind of like a jury trial, right? You hear one side. You attach to it emotionally and then proceed to ignore evidence that is contrary to your new belief. In jury consulting-speak, this phenomenon is called confirmation bias. As a jury consulting firm, we've written about confirmation bias many times. See, for example: I’m Right, Right? 5 Ways to Manage Juror Bias Jurors Will Believe Anything (That They Already Believe) When Smart Ain’t So Smart - Cognitive Bias, Experts and Jurors Font Matters - A Trial Graphics Consultant's Trick to Overcome Bias Could Surprise Be One of Your Best Visual Persuasion Tools? 7 Ways to Overcome Cognitive Bias and Persuade However, A2L is not just a jury consulting firm. We’re also a top-ranked litigation graphics firm (and litigation consulting and trial technology consulting firm). So I'm always baffled by big disputes where the participants fail to use pictures effectively. In this day and age, there is no excuse. The science of visual persuasion is well established. See, What is Visual Persuasion and What Do You Need to Know About It?

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The Top 10 Litigation Articles of 2018

It's my eighth year writing an end-of-year top-10 style article. That feels pretty great because in that time, we have published more than 600 articles and A2L's Litigation Consulting Report blog has been visited one million times. Wow, right?

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This weekend, television news is sure to be dominated by Hurricane Florence. Many of us will watch the all-too-familiar scenes of high waves hitting the coastline and reporters being blown about by powerful winds. It's almost routine from a TV-watching perspective. But one unusually persuasive graphic caught my attention this week. Did you happen to see the Weather Channel’s storm surge simulation? I think it’s brilliant, and it potentially offers some lessons for forward-thinking trial counsel. The simulation begins at the 55-second mark in the video below:

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I’ve been watching the baby powder/talc trials closely for the past several years. They feature some of the world’s best lawyers, and they are pushing the boundaries of scientific evidence. For anyone in the litigation business, the talc trials, as well as the trials involving the alleged cancer-causing properties of Monsanto’s herbicide Roundup, form a fascinating window into how big-ticket cases are being tried right now. In both lines of cases, plaintiffs are showing early dominance, and I think the defense accordingly needs to adjust both how it handles demonstrative evidence and how it deals with scientific evidence. Interestingly, both of these types of trials can be watched on the Courtroom View Network (CVN). I have long advocated that trial attorneys should be watching other trial attorneys on CVN because there’s almost no other way to see today’s great lawyers in action. In the most recent talc trial, famed plaintiffs lawyer Mark Lanier of Houston took on Johnson & Johnson, which makes talcum powder products. He asserted that his clients, 22 women who used the products, were exposed to asbestos found in talc and that this exposure caused them to contract ovarian cancer. The case is notable for many reasons. The result was certainly remarkable as this past July, plaintiffs were awarded nearly $4.7 billion in damages by a jury in a Missouri state court. The case is also one of the most high-profile cases to utilize genetic evidence. And that aspect was particularly interesting to me as this is an area that A2L and its partners at Innovative Science Solutions have been discussing for the last couple of years. We even held a conference on the topic of the use of genetic evidence in civil litigation. So let me discuss two aspects of this case. First, while I am not an expert in analyzing genetic evidence in civil cases, I do understand how to use it and how to present it. In this case, the defense was clearly reluctant to use genetic evidence, and it only lightly cross-examined plaintiffs’ genetics expert. I don’t know for sure, but I’ll speculate that like other defendants, Johnson & Johnson may have feared that by presenting genetic evidence as a defendant it would position the plaintiffs as a so-called eggshell plaintiffs, making liability easier for plaintiffs to prove. See takeaway #6 in this article where we discuss why this thinking is specious. Whether or not defendants were concerned about the role of genetics in conveying to the jury that these may be eggshell plaintiffs, Lanier appeared to adopt this approach anyway. He utilized genetics to affirmatively allege that the plaintiffs were especially vulnerable to the effects of talc. This highlights an apparent growing trend of the plaintiff utilizing genetics to demonstrate plaintiff susceptibility to alleged toxins and a need for the defense to effectively address and rebut this assertion. I haven’t seen that tactic before. and similarly situated defendants must get ready for this tactic in other cases. A good place to start would be talking to my friend and frequent collaborator Dr. David Schwartz at Innovative Science Solutions who is doing pioneering work with the group ToxicoGenomica. The second element of this trial that I found fascinating was Lanier’s use of demonstrative evidence. In most big-ticket litigation demonstrative evidence is exchanged a day or so before it is used, to allow for objections to be made. Clearly, Lanier has figured out a workaround by drawing (or having his colleague draw) a highly prejudicial demonstrative that for whatever reason the defense did get excluded. It's the featured picture in this article, but let me show you what I mean in this clickable video clip and transcript below from our friends at CVN. Here Mark Lanier perfectly combines the eggshell plaintiff approach with an objectionable piece of demonstrative evidence to powerfully drive a point home. His message is that some people are genetically more susceptible to cancer-causing agents like asbestos and that Johnson and Johnson and their baby powder products pushed plaintiffs over the cliff where cancer happens. Other free A2L Consulting resources related to genetics in civil litigation, litigation graphics, and demonstrative evidence include: With So Few Trials, Where Do You Find Trial Experience Now? 7 Key Takeaways from the Genetics in Civil Law Conference Free slide decks from the Genetics in Civil Law Conference Free E-Book: The Litigator's Guide to Combating Junk Science - 2nd Edition Repelling the Reptile Trial Strategy as Defense Counsel - Part 3 - Understanding the Bad Science The Importance of Litigation Graphics in Toxic Tort Litigation 10 Key Expert Witness Areas to Consider in Your Next Toxic Tort Case Free Download: Using Science to Prevail at Trial or As an Advocate 7 Reasons the Consulting Expert is Crucial in Science-Based Litigation Using Trial Graphics & Statistics to Win 12 Questions to Ask When Hiring a Trial Graphics Consultant Repelling the Reptile Trial Strategy as Defense Counsel - Part 1 Teaching Science to a Jury: A Trial Consulting Challenge 5 Valuable (and Free) Complex or Science-Focused Litigation Resources Winning BEFORE Trial - Part 3 - Storytelling for Lawyers

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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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Here at A2L, we are delighted to introduce John Moustakas, our new Managing Director of Litigation Consulting and General Counsel. John comes to us from the international law firm Goodwin Procter, where he was a partner in the firm’s Securities Litigation and White Collar Defense Practice.  John is a highly successful trial lawyer who has tried more than 45 cases to a jury.  John spent more than six years as a prosecutor in the U.S. Attorney’s Office for the District of Columbia, before returning to Shea & Gardner, where he had begun his legal career. In addition to trying numerous criminal cases for the United States, John has tried a variety of civil matters in a combined 20 years in private practice at Shea & Gardner and its successor, Goodwin Procter.  John laments the fact that, for many reasons, far fewer cases go to trial in the corporate world than even 20 years ago. “My approach to practicing law is pretty old school,” he says.  A generalist at heart, John “always loved the variety of litigation and never wanted to be pigeon-holed.”  He’s tried a wide variety of matters ranging from homicides and public corruption on the criminal side to civil disputes over contracts, torts, real estate, employment, securities, and civil rights, to name a few.  The unique focus of his new position attracted John.  “Above all else, I’ve most enjoyed the storytelling aspect of my work -- figuring out how to engage the jury and make them want us to win.”   Although he will no longer be a client’s advocate in court, he relishes the trade-off.  “Instead of trying my own case every four or five years, if I’m lucky, every matter I’ll be consulting on will be one bound for trial.  If I can leverage my experience to help others try their cases more persuasively, I will be one very happy guy,” he says. John says that one key to a trial lawyer’s success is to follow his or her own natural style and temperament.  “The jury, as a collective, is uncannily able to sniff out BS,” he says. “Pretend to be something or someone you’re not, and they will see right through you.”  Convinced that his authenticity was the greatest contributor to his success as a trial lawyer, John’s mission is to keep A2L’s clients true to their nature.  “So, while the goal is to help our clients strengthen their presentations with an emphasis on creating resonant themes and the engaging visuals that support them,” he says, “we help by pruning, not slashing -- by seasoning, not scrapping the recipe.  The lawyers it is our privilege to work with need nothing more.  While they cover the entire waterfront, sweating every detail, we have the luxury of focusing narrowly and with a bit of detachment.  And that is not only a rewarding role, but one that our clients feel makes a meaningful difference.”    John looks forward to bringing his insights and experiences to bear in this new chapter of his career in a way that makes that kind of difference. He can be reached at moustakas@A2LC.com or 703.548.1799. Related A2L resources about storytelling, litigation consulting, mock trials, and creating trial presentations that persuade: 9 Reasons Litigation Consultant is the Best Job Title in Litigation Who Is, and Who Isn’t, a Litigation Consultant? Free PDF: Why Work with A2L on Your Next Trial 3 Types of Litigation Graphics Consultants Top trial lawyers talk about working with A2L Top trial lawyers explain why storytelling is so critical for persuasion 10 Things Litigation Consultants Do That WOW Litigators Free E-Book: What is the Value of a Litigation Consultant? 21 Reasons a Litigator Is Your Best Litigation Graphics Consultant 3 Types of Litigation Graphics Consultants Free Webinar: Storytelling as a Persuasion Tool Free E-Book: Storytelling for Litigators Your Coach Is Not Better Than You – in the Courtroom or Elsewhere 10 Types of Value Added by Litigation Graphics Consultants Explaining the Value of Litigation Consulting to In-House Counsel 17 Reasons Why Litigation Consultants Are Better at Graphics Than Law Firms $300 Million of Litigation Consulting and Storytelling Validation Top 7 Things I've Observed as a Litigation Consultant

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Roughly half of our business involves the creation of PowerPoint presentations for opening statements, closing arguments and expert witnesses. To create these presentations, our litigation consultants, typically seasoned trial lawyers and communications experts, work with our creative staff to turn the trial strategy into presentations that will motivate decisionmakers to make the “right” decisions. In a trial with millions or billions at stake, our final draft for an opening is typically version 30 or higher — and I've seen version 80 in a very large trial. Why so many versions? This is the result of what great trial lawyers do: They work with our team and iterate until perfection is achieved. However, every presentation starts with a first draft, and after three decades in this industry, I can say that a first draft sets the tone for the entire engagement. Handle it well, and trust is formed and there is a nice creative arc free from anxiety. Handle the rollout of the first draft wrong, and trust never kicks in, micromanagement dominates, and the deck becomes a “horse designed by committee.” So what’s the magic to the rollout of a first draft?

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I've written about people who present well using PowerPoint many times before. Some of those articles include: President Obama: Presentation Graphics: Why The President Is Better Than You Law Professor Lawrence Lessig: Lawyer Delivers Excellent PowerPoint Presentation Dan Pink: Dan Pink, Pixar, and Storytelling for the Courtroom Nancy Duarte: Litigators Can Learn a Lot About Trial Presentation from Nancy Duarte Scott Harrison: Every Litigator Should Watch Scott Harrison Deliver This Presentation Me: 21 Steps I Took For Great Public Speaking Results Each of these articles offered some useful lessons both in designing good trial presentations and in the art of presentation. Yesterday, the world saw one of the great PowerPoint presentations of all time. If it were given in a courtroom, this presentation would be in the top one percent of courtroom presentations (not for beauty but for effectiveness). However, this presentation was not in a courtroom at all. Still, which famed trial lawyer do you imagine gave this presentation? As the title suggests, it wasn’t a trial lawyer at all. The presentation was delivered by Israel's Prime Minister Benjamin Netanyahu.  If you don't agree with the man or the content, put aside your politics and learn from the presentation. Every trial lawyer should do AT LEAST this well in the courtroom. There are few excuses not to, and every client should demand a performance at this level. If you have (or are) a client who understands the outsized value of investing in the most critical presentations of your case, our team can get you to this level. Every time. This is exactly the kind of work we do with the world's top trial lawyers every day. Watch all or some of Prime Minister Netanyahu's presentation and read my commentary on it below to understand why this presentation is so effective and how any trial lawyer can learn from it. The list of things done right in this presentation is very long. Let's look at a handful, and I will link back to an article where we made these recommendations. Each of these underlying teachings is a technique that our litigation consultants use to help coach trial lawyers and maximize their chance of winning.  He looks the part: 10 Things Litigators Can Learn From Newscasters He chose the right tie: Litigation Graphics, Psychology and Color Meaning He delivers on all five of these promises: 5 Things Every Jury Needs From You He establishes a clear narrative and drama early: Are You Smarter Than a Soap Opera Writer? He uses an immersive style: New Study: A Graphically Immersive Trial Presentation Works Best He uses surprise to engage and persuade: Could Surprise Be One of Your Best Visual Persuasion Tools? Persuasive images are used immediately: Persuasive Graphics: How Pictures Are Increasingly Influencing You The use of deposition-like video is brilliant for setting the stage: 6 Tips for Effectively Using Video Depositions at Trial He presents in a modern 16x9 format (like an HDTV not an old tube TV): Free Webinar: PowerPoint Litigation Graphics - Winning by Design™ He does not talk over the messages: 12 Ways to SUCCESSFULLY Combine Oral and Visual Presentations Captioning is well handled on videos: 6 Tips for Effectively Using Video Depositions at Trial He is very practiced: The Magic of a 30:1 Presentation Preparation Ratio The core opening introductory message is clear and compelling: How to Structure Your Next Speech, Opening Statement or Presentation Netanyahu used a hot seater: What a Great “Hot Seat Operator” Can Add to a Trial Team The theatrics in the form of the binders and the CDs are just brilliant: Using Scale Models as Demonstrative Evidence - a Winning Trial Tactic The level of preparation is clear and is what is expected of elite presenters - even by juries: Practice, Say Jury Consultants, is Why Movie Lawyers Perform So Well The hand gestures are well done: 5 Things TED Talks Can Teach Us About Opening Statements The call outs are simple and excellent: 3 Styles of Document Call-outs Used at Trial The translating of scale and size into terms people understand is clear and convincing: 6 Ways to Convey Size and Scale to a Jury You don't have to read Farsi to understand the nuclear materials, he says: Your Trial Presentation Must Answer: Why Are You Telling Me That? He makes limited use of bullet points: 12 Reasons Bullet Points Are Bad (in Trial Graphics or Anywhere) He organizes his message into five points and enumerates on the slides: Litigation Graphics: The Power of Checklist Trial Exhibits He uses limited text on slides throughout the presentation!: How Much Text on a PowerPoint Slide is Too Much? His slides are clean, uncluttered and generally have a single message: 12 Ways to Eliminate "But I Need Everything On That PowerPoint Slide" He includes animated graphics: 16 PowerPoint Litigation Graphics You Won't Believe Are PowerPoint He contrasts what the Iranians said vs. the reality and deploys other credibility attacks in one evidence-backed attack after another: Like It or Not: Likability Counts for Credibility in the Courtroom He tells you what to conclude: Your Trial Presentation Must Answer: Why Are You Telling Me That? He repeats (language and video) for effect and clarity: A Surprising New Reason to Repeat Yourself at Trial His use of storytelling throughout the presentation is excellent: 5 Ways to Maximize Persuasion During Opening Statements - Part 2 He makes NONE of the 12 mistakes in this article: The 12 Worst PowerPoint Mistakes Litigators Make He has been well coached by presentation consultants like us: Your Coach Is Not Better Than You – in the Courtroom or Elsewhere Nothing about this PowerPoint presentation is particularly sophisticated. In fact, there are many things that could be done to make it considerably better and more persuasive. However, above all else, it shows what a well-practiced presenter can do. VERY few trial lawyers prepare to the point where they can present at this level and if they would work more closely with elite litigation consultants, whether A2L's litigation consultants (pdf) or others, they could do even better than Benjamin Netanyahu. Here's the ultimate takeaway: it's not some innate gift that helps a presenter be world-class. Instead, it's the humility that allows someone to practice over and over getting these critical presentations just right that makes anyone appear to be world-class.

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