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The Litigation Consulting Report

Winning BEFORE Trial - Part 2 - Parallel Trial Preparation Tactics

Posted by Ryan Flax on Mon, Aug 10, 2015 @ 03:01 PM


trial-presentation-trial-preparation-trial-prepby Ryan H. Flax
(Former) Managing Director, Litigation Consulting & General Counsel
A2L Consulting

In our last post, we discussed why it is important to win a case before trial and we went over some excellent ways of doing so.

 In a patent case, for example, let’s say we could end litigation by winning a landslide victory in claim construction at a Markman hearing. Granted, this doesn’t necessarily cut off all the post-trial costs because the U.S. Court of Appeals for the Federal Circuit will ordinarily be involved. But a claim construction that forecloses or ensures infringement or invalidity is a very powerful result.

Similarly, in a criminal case, a convincing pre-indictment meeting with assistant U.S. attorneys, or similar state prosecutors, and their staffs can save a good amount of time and money.

 But what if the opportunity to argue a case before trial isn’t necessarily going to end the litigation? Is it still worthwhile to follow best practices early on in that case? Well, if you and your client are committed to spending hundreds of thousands or even millions of dollars taking a case to trial, shouldn’t all that expense and effort be worth it in the end? Depositions, settlement negotiations, mock jury exercises, and similar proceedings provide you with real opportunities to focus your case and sharpen the way in which you will present it to a jury or judge so as to maximize your persuasiveness. This early work will put you in a position to win at trial and on appeal.

But how do we do this? What is meant by “best practices”?

The best practices in litigation are based on the idea that the road to success at trial is forked. You need to approach litigation in a specific way. Many attorneys fail to develop the necessary two-track strategy.

Litigators know that during a trial, a jury tends to find relatively few facts to be interesting and important. They usually decide the case on the basis of those few facts. Jurors are always looking for the “smoking gun,” and attorneys need to recognize this and to build their case around those key facts.

What begins at the early stages of case preparation as a single track of general case-building now needs to change to a two-track strategy directed both toward a persuasive presentation and to the formation of a solid record. These two tracks clearly do not have the same path or destination, but both are essential to winning. Often in litigation, too little time is spent on the track of developing a sympathetic story and theme that will be presented to the jury. Instead, litigation teams tend to focus very heavily on the minutiae of a case until the last minute before trial and not enough time putting their story together in a way that will be persuasive to jurors.

In our next post, we will discuss why storytelling is so crucial to winning at trial. Click here to be notified of subsequent articles.

Additional articles and resources focused on pre-trial strategy and trial preparation from A2L Consulting:

litigation support trial toolkit consultants a2l consulting

Tags: Markman Hearings, Trial Presentation, Litigation Management, Juries, Trial Preparation, Storytelling, White Collar, Federal Circuit

Winning BEFORE Trial - Part 1 - Consider Litigation Costs and Opportunities

Posted by Ryan Flax on Wed, Aug 5, 2015 @ 01:59 PM


pre-trial-graphics-litigation-consultantsby Ryan H. Flax
(Former) Managing Director, Litigation Consulting and General Counsel
A2L Consulting

High-stakes litigation is hugely expensive these days. But what if there were a means of reducing litigation costs in a way that helps both the trial team and the client and doesn’t sacrifice the quality of legal representation? That would make in-house counsel very happy, since an important part of their job is to budget and control litigation costs. There are a number of ways to do this, such as using alternative fee arrangements, streamlining litigation teams and bringing e-discovery in house.

But what about a more radical step – trying to win your case well before trial? That would indeed be a cost saver and would lead to an excellent result.

Let’s first look at how expensive this type of litigation can be. A piece of employment litigation that is in the top 25 percent of costs (but not in the top one percent or anything like that), costs close to $1 million by the end of discovery – and that’s before closing arguments. And the costs are mostly borne by the defendant.

Or consider a typical patent infringement case – say, one that involves possible damages of $1 million to $10 million. This kind of case usually ends up costing more than twice as much as that employment case. By the time discovery is over in the patent case, you’re well past the $1 million mark in costs. Other types of cases – antitrust, environmental, contract cases and the like – are not quite as expensive, but costs add up there too.


But it doesn’t have to work out that way. There are quite a few ways of winning a case without a trial.

First, we all know about dispositive motions – motions to dismiss, summary judgment motions, motions related to venue and jurisdiction, and the like. These can end a case before trial, but after the filing of a brief and usually an oral argument.

Second, a Markman hearing is a special type of proceeding in a patent case in which the court hears argument (and sometimes some expert testimony) and decides what the patented invention actually is by interpreting the patent claims and resolving disputes over claim language.

Third, a pre-indictment meeting is one that takes place when your client is under investigation by the government and you would reasonably expect charges to be presented against it. This usually involves an attempt by counsel to persuade the government to drop a case before it begins.

Finally, we all know about mediation, arbitration and settlement.

All of these are out-of-court occasions in which lawyers have a chance to argue their clients’ cases before trial. They can happen in lieu of a trial or just before a possible trial.

What do all of these have in common? They are all opportunities, before trial, to begin winning your case by using the best practices of case framing and persuasion.  If you can raise your game in these situations, if you can persuade the court or opposing counsel or the opposing party or a mediator or the opposition’s star witness that you’re a winner, how much better off would you be?

In our next post, we will discuss more about these best practices and how they can help you win. To be notified when subsequent articles are published, click here.

Additional articles and resources focused on pre-trial strategy and trial preparation from A2L Consulting:

* Chart data is based on 2013 Court Statistics Project Caseload Highlights, RAND Institute for Civil Justice “Where the Money Goes, Understanding Litigant Expenditures for Producing Electronic Discovery” (2012) and 2013 AIPLA data.

pretrial trial graphics motions briefs hearings

Tags: Economics, Markman Hearings, Arbitration/Mediation, Trial Preparation, Pricing, White Collar, Settlement, Briefs

Boston Bomber Death Penalty - Mitigating vs. Aggravating Factors

Posted by Laurie Kuslansky on Wed, Apr 8, 2015 @ 04:46 PM


Dzhokhar-Tsarnaev-mitigating-aggravating-death-penalty-jury-consultant-sandwhichby Laurie R. Kuslansky, Ph.D.
Managing Director, Jury & Trial Consulting
A2L Consulting

It must be so hard to defend someone as unpopular as Dzhokhar Tsarnaev and plead for his life, while he does everything to make it harder.  How does one lessen his involvement when he carried out so many explicit and intentional acts and has been so consistent: remorseless.

He shed no tears for the 3 civilians and 1 M.I.T. police officer killed, the 264 people injured, or the countless others traumatized.  Instead, he went and got a sandwich. 

When his brother was killed, did he turn himself in and say, “I didn’t want to do it; I’m so sorry; my brother made me.”? No.

He is now 22, but at the time, Dzhokhar was a 19 year-old American college student at U. Mass, Dartmouth with the right to drive and be judged as an adult.  The “My-brother-made-me-do-it” defense went nowhere.  His counsel wanted him to be perceived as an impressionable adolescent misled by his older brother, but has he done anything to reinforce anything his defenders tried to assert?  No.

The defense conceded his actions, but tried to pass the buck to the alleged influence of the defendant’s deceased older brother. One problem:  Dzhokhar never blinked while he was involved or since.

In the sentencing phase, what could possibly matter? It is hard enough to overcome one count that carries the death penalty, let alone 17.

Although the assessment of mitigating factors v. aggravating circumstances is not simply a quantitative matter, but a qualitative one, no doubt the jurors will take an inventory, likely to result in something along these lines:


Is a contemptuous defendant with 5 aggravators per mitigating factor enough to convince even one juror to withhold the death penalty? Is the mother of two – not one – terrorists sympathetic? Unlikely, but time will tell.   

The jurors are de facto death-penalty qualified, lest it be discovered later that this was a falsehood.  What may save the defendant isn’t the defense, but other factors (e.g., not giving him the satisfaction of becoming a martyr by dying for his so-called cause, latent rejection of the death penalty in the largely Catholic jury pool, or jurors holding themselves above his conduct).  If he is spared, it will be because of who the jurors are and what they believe, not because of anything the defense does or fails to do.

He certainly can’t complain about the quality of his public defender, Judy Clare Clarke, who defended other notorious defendants and overcame the death penalty for child-killer, Susan Smith. 

His public defender may deserve sympathy.  Dzhokhar Tsarnaev?

Other articles related to high-profile defendants, criminal trials and jury consultants from A2L Consulting include:

A2L Consulting Voir Dire Consultants Handbook

Tags: Jury Questionnaire, Juries, Voir Dire, Jury Selection, Criminal, White Collar, Boston

Boston, a Bomb of a Trial

Posted by Laurie Kuslansky on Thu, Jan 15, 2015 @ 11:46 AM


boston-bomber-dzhokhar-tsarnaev-trialby Laurie R. Kuslansky, Ph.D.
Managing Director, Jury & Trial Consulting
A2L Consulting

Want a change of venue? Think again. Judge O’Toole and the U.S. Court of Appeals for the First Circuit turned down the defense’s attempts to change the venue. Even though Boston is where the horrifying Boston Marathon Bombing happened, that is where the jury pool will come from to judge the surviving Tsarnaev brother, Dzhokhar.

Will there be enough jurors? Here, 1200 prospective jurors will complete a jury questionnaire of 100 questions to seat a jury of 12 jurors plus 6 alternates who, if left, deliberate as full jurors in federal court.

It is disconcerting that there are only 6 alternates for such a long trial, in flu season and the Boston winter, when jurors often get sick and/or drop out for other reasons in lengthy trials. It will likely take weeks to review the questionnaire responses and voir dire the pool. Then there’s the matter of how long the trial is expected to take (months), which is likely to take many out of consideration as they simply cannot afford that much time away from their lives. Those who are willing to serve that long are not likely pro-defense, but rather, folks who want to send a message. And last, but not least, they must be willing to consider the death penalty, if (read “when”) the defendant loses. It will be interesting to learn what, if any reason, prospective jurors give to show that they are neutral and have not pre-judged the case, especially since the community was on lockdown and glued to the news at the time for their own safety. It would seem that the better part of the U.S. – and certainly New England – has nothing but contempt for the defendant.

boston-bomber-dzhokhar-tsarnaev-trial-jury-trialDefense blunder #1:  It is presumed that the defense will try to assert that the younger Tsarnaev brother was misled by his older brother, Tamerlan, but one does not sport a goatee to appear young and powerless, nor show up in court with the hair of a madman to garner sympathy to defeat the death penalty. What a difference 21 months make.

With the stakes so high, the venue so personally affected, emotions so deep, eyewitness and video evidence so strongly favoring the prosecution, there is no room for the defense to lose an inch, but an inch is already lost. Add to that the apparent limit in control the defense counsel seems to have over its client.  

This is not a case of winning, but of who will lose the most.

Other articles related to jury selection, voir dire and jury questionaires on A2L Consulting's site:

A2L Consulting Voir Dire Consultants Handbook

Tags: Jury Questionnaire, Trial Consultants, Jury Consultants, Voir Dire, Jury Selection, Criminal, White Collar, Boston

How To Find Helpful Information Related to Your Practice Area

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


practice-area-experience-a2lby Ken Lopez
A2L Consulting

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

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

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

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

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

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

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

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

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

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

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

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

mock jury webinar a2l kuslansky

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

No Advice is Better Than Bad Advice in Litigation

Posted by Laurie Kuslansky on Fri, Dec 26, 2014 @ 11:27 AM


no-advice-better-than-bad-adviceby Laurie R. Kuslansky, Ph.D.
Managing Director, Jury & Trial Consulting
A2L Consulting

Often, celebrities and other litigants have entourages, a circle of advisors, and all kinds of ties with other people, so it is understandable that they will turn to them for advice when engaged in legal battles. The problem is that often those people have little to no experience or expertise dealing with this arena, but are chock full of advice, are motivated to jockey for attention and control, know which buttons to press with their friend/client to gain their consent for a course of action, but have trouble admitting they need help, may feel threatened to do so, and thus, misguide the litigant. We have seen this phenomenon many times with the same result . . . bad.

In an infamous criminal trial of a famous football star, the best and brightest jury consultants, armed by lots of good data, advised the prosecution and provided a solid and reliable trial strategy based on decades of experience plus case-specific mock-trial testing. Was it accepted? No. What was? The advice of a psychiatrist neighbor with no such expertise, prior (different) experience, and personal opinion. Result? Bad.

In a lesser known matter, a bookworm-style intellectual property attorney with no jury trial experience turned away mock-jury testing and the expertise of a jury consultant. He concluded they were outside his normal comfort zone of operating, and instead, replaced them with the advice of someone who saw things “his” way – i.e., ignored how real people decide these cases and what they cannot understand or use as evidence because they lack the cognitive ability, interest, or motivation to do so, and relied on dry, tedious, technical information and a deep understanding of the guiding legal principles to guide the jury’s decisions – which as warned and predicted all failed at trial. Result? Bad.

A well-known movie producer had a number of people hanging on to his coattails, enjoying the reflected glory of being in his inner circle. A new group of wannabes wanted to garner his attention and become his new entourage, replacing his old one. How? By claiming the others were mismanaging his business and that his best friend and financial supporter cheated him out of money. They knew that a great way to attract the attention of an artist is to alert them to the notion that they are being cheated out of money. And so, to no good avail, the producer sued his best friend. Result? You guessed it.

If your best friend was a dentist, and you had heart problems, you might ask your friend for a referral, but would you take their advice over a well-regarded cardiologist?! Of course not, but we see this pattern in litigation all the time. When heeding someone’s advice, make sure they are coaching you or your client based on more than your relationship, but on information, experience and expertise. If not, you may as well treat your heart with a dentist.

Other A2L Consulting articles related to high-profile clients, jury consultants and litigation consulting:

in-house counsel litigation toolkit e-book free download

Tags: Trial Consultants, Jury Consulting, Mock Trial, Litigation Consulting, Trial Consulting, Jury Consultants, White Collar, Witness Preparation

How NOT to Go to Court: Handling High Profile Clients

Posted by Laurie Kuslansky on Wed, Jul 10, 2013 @ 08:20 AM

amanda bynes courtroom attireby Laurie Kuslansky, Ph.D.
Expert Jury Consultant

On July 9th, 2013, Manhattan Criminal Court was graced with the presence of Amanda Bynes, dressed for a costume party at the gym, but not for court (photo on right).

Recently, a television celebrity showed up for her videotaped deposition in a tight black top, complete with finger loops – all caught on tape.

In yet another example of bad behavior, a high-powered foreign bank owner did not own a white button-down shirt and never wore ties, so he had none for court.

It is not uncommon for high-profile clients to make up their own rules, or better yet – break them, at their own peril.  They are typically difficult to control because they are used to expecting special treatment. 

The problem is that judges don’t view them the same way as starry-eyed fans or star-struck followers.  Instead, such demeanor sends the wrong message to the wrong audience, one of disrespect, bordering on contempt.

What to do?

If you have a celebrity client, you know how challenging it can be to be the agent of “bad news,” i.e., telling them they can’t do whatever they please when it comes to court and litigation.

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What may seem obvious to you is not necessarily obvious to them, so it is worth considering the following:

  1. Ask in advance what they intend to wear to a deposition, hearing or trial.  Assume nothing and don’t rely on vague descriptions (“Something appropriate.”)  You may have something very different in mind as to what is appropriate.
  2. If there will be media, consider how they will arrive to court.  Will it help or hurt their case to show up in a flashy limo with an entourage?
  3. What impression are you and they trying to make?  What steps will you both take to achieve that? 

Unless you are trying to establish that your client is, in fact, in the circus, avoid creating one when it comes to litigation settings.

Have a look at these articles related to criminal cases, courtroom decorum and celebrity clients.

complex civil litigation graphics free ebook guide download

Tags: Trial Consultants, Jury Consulting, Trial Consulting, Jury Consultants, Judges, Criminal, White Collar, Witness Preparation

4 Reasons Televised Criminal Trials Get So Much Attention

Posted by Laurie Kuslansky on Thu, May 16, 2013 @ 07:00 AM

jodi arias choke hold travis alexanderby Laurie Kuslansky, Ph.D.

Although pop culture cases that capture the nation’s attention are hardly typical of trials today, many viewers believe they are and they tend to set unrealistic expectations for those who may be called for jury duty or to serve on a jury. They may expect more experts, more drama, and more interest than the reality at most trials. This underscores the need for clear presentations, litigation graphics, and experts who are aware of the added burden publicized trials may place on them.

There are various high-profile cases in the public’s awareness. One such current case is the Jodi Arias case in Phoenix, in which a young woman was just convicted of the murder of her ex-boyfriend and found to be eligible for the death penalty.

Why is there so much interest in such cases? Why the national obsession? There are several reasons. Here are some of them.

1. Because we expect evil to really look evil

jodi arias pretty charles manson mugshot what evil looks like a2l consulting

2. They strike fear in our hearts and often have an odd fascination, since – but for the outcome – the situation was so normal. 

As in the Arias case: Man meets woman. Man dates woman. Man and woman have sex. Woman becomes possessive and jealous, so man wants out, but likes the sex. Man and woman break up, make up, break up, but still have sex. Woman becomes a booty call until man reaches breaking point and wants out for good. If every man who had a booty call were slaughtered for it not being true love, how many would be left?

What should have happened next? Nothing. They go their separate ways. 

What happened here, however, was a train off the tracks: Woman stalked man, repeatedly slashed his tires, hacked his Facebook, hacked his emails, checked his messages, spied on him from outside his home hiding in the bushes, sneaked into his home and stayed there, slept under his Christmas tree, recorded their phone calls, stole an engagement ring from his home, sent threatening emails to him and his ex-girlfriend, had sex with him, then, when her last-ditch effort to manipulate him back through sex didn’t work anymore, she slaughtered him.

This case raises questions that could affect almost anyone because it is terrifying to the core to know that someone who appears normal could be so crazy and violent. The same held true in the cases of the Menendez brothers and O.J. Simpson. 

3. Often, we believe the tragic outcome could and should have been prevented, but it wasn’t.

The only way this tragedy could have happened was for every red flag to be ignored and unheeded, and it was. It is unfathomable that such extreme events went unchecked, and it is hard to believe that it could only have been stopped with the benefit of hindsight:

Jodi’s parents observed extreme and abnormal behaviors first-hand for years (extreme, unexplained mood swings, hitting her mother, moving out as a minor, claiming things that never happened), so they felt they needed to get her psychological help – but they didn’t.

They got multiple calls in the middle of the night from her friends urging them to get her psychological help because she was acting abnormally – but they didn’t.

Her father assumed she had bipolar disorder and told her to get help – but she didn’t. 

Friends of Travis Alexander, the murdered man, were alarmed that Jodi was stalking him. Her eyes were creepy. She was distant. Her soul was empty. She was eavesdropping. He made excuses for her. He was emotionally blackmailed that she’d kill herself if he left her. They warned him that she was trouble and to get out – but he didn’t.

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4. We are often dumbfounded by the conviction, frequency and speed with which someone can lie and with the narcissism that they exhibit.

Jodi’s behavior defies our wildest expectations of human behavior. It does not fit with anything in our own normal experience, conscience, or imagination. Simply put, how and how much she lied is unbelievable itself. 

Instead of showing remorse, she reveled in herself and enjoyed all the attention, utterly detached from reality. She was often cocky and pleased with herself, with an answer for everything. She sought media attention before trial. When asked to explain why she smiled for her mug shot, she replied, “There`s no reason to be upset over this in my mind. Everything -- I have faith and in the end everything will be made known, everything will come out and in the meantime, smile and say ‘cheese.’ ”

She wrote a manifesto, sold sketches from the courtroom, tweeted during trial through others, planned to be free and famous, sniped on the stand and displayed delight with herself when sparring on cross examination, always couched herself as the victim or hero, gave an interview within an hour of being convicted, but apologized to no one and shed tears for no one but herself.

What is the impact of these cases?

It is important to know whether prospective jurors have viewed them, how consistently, and what impressions they formed from them. If you don’t have many experts in your case, will they think you didn’t make your case? If they ignored a lot of evidence, will they need summary graphics or tutorial graphics to track the evidence better? Do they tend to watch courtroom or police dramas? Do they think that is how it actually works?

In these days of televised courtroom dramas playing out publicly, it is important to know what’s in prospective jurors’ minds when you face them at trial and to do what is needed to satisfy them if they end up on your jury.

Other articles and resources related jury consulting, experts and courtroom presentations on A2L Consulting's site:

using litigation graphics courtroom to persuade trial graphics a2l consulting



Tags: Jury Consulting, Courtroom Presentations, Juries, Jury Consultants, Psychology, Expert Witness, Criminal, White Collar

[Free E-Book] The Complex Civil Litigation Trial Guide

Posted by Ken Lopez on Tue, Jan 15, 2013 @ 06:00 AM

a2l consultants complex civil litigation trial guideby Ken Lopez
Founder & CEO
A2L Consulting

Here at A2L Consulting, we have just published our latest e-book – the Complex Civil Litigation Trial Guide. At 174-pages and 50-articles long, it is our biggest and best yet. We think it will be useful to any attorney or litigation support professional who is engaged, or who may soon be engaged, in a complex civil case.

We don’t have a set definition for “complex civil litigation,” and really no one does. However, we think a piece of litigation can be called complex when several of these criteria are met: 

  • the case requires the near full-time attention of five or more lawyers for at least a month;
  • the case involves more than two law firms on either side of the case;
  • the case involves more than a dozen witnesses;
  • the case has at least $10 million at stake plus complicated subject matter;
  • the case potentially involves pattern litigation.

Most of the cases that A2L Consulting works on satisfy at least four of the above criteria. These cases are complex because of what is at stake, how many people are involved, and the sheer amount of time required to litigate them. More experts mean more documents. More patents mean longer explanations to juries. More documents mean more data to be analyzed. More deponents mean more video depositions to be edited. All these factors and many others help make a case complex. Nearly any civil case that you read about in a major newspaper or see on the national news is going to be a complex case. Think about the patent dispute between Apple and Samsung or the litigation growing out of Hurricane Sandy.

In another sense, however, complexity is the enemy of the trial lawyer. A case positioned for a win abhors complexity. Indeed, in our view a case that goes to trial while still too complex to explain to your parents while riding an elevator is a case that’s dangerously on the wrong track.

After all, a judge or jury needs to understand your case if you are going to win. Any case, even the most complex, has a story at its heart, and a good trial team, assisted by an excellent trial consulting company, will tell that story well.

In fact, I think the most important thing that a litigation consultant can do to help a trial team is to help develop that story. A litigation consultant brings not only the common sense that a fresh pair of eyes offers but also the experience of having seen, in hundreds of trials, what works and what does not work.

This e-book is designed to help trial teams and those who support them develop a case and win at trial. We want you to master the complexities of your case, yet still remain able to explain them to a judge or jury as if the case were a straightforward auto accident or real estate dispute.

Among the topics in the e-book are: Seven Ways to Draft a Better Opening Statement, How to Embrace a Two-Track Strategy and Win the War, Six Reasons the Opening Statement is the Most Important Part of a Case, How Timelines Can Persuade Judges and Juries, and Ten Videos to Help Litigators Become Better at Storytelling.

We also show you how to pick a trial graphics consultant to support your work, what to do when your trial team goes bad as a result of the anxiety that understandably can accompany any piece of complex litigation, and how trial graphics can explain even the most complicated scientific and engineering concepts to a jury.

If you work in a courtroom, there is something valuable here for you. Click here to download.

complex civil litigation guidebook a2l consulting

Tags: Trial Graphics, Litigation Graphics, Trial Presentation, Jury Consulting, Litigation Consulting, E-Book, Trial Technology, Jury Consultants, White Collar

Litigator & Litigation Consultant Value Added: A "Simple" Final Product

Posted by Ryan Flax on Fri, Nov 16, 2012 @ 10:00 AM

foley lardner tom carlucci a2l litigation consultants Thomas F. Carlucci
Foley & Lardner LLP
 foley lardner john turlais a2l litigation consultants John E. Turlais
Senior Counsel
Foley & Lardner LLP
 a2l consulting ryan flax litigation consultant Ryan H. Flax
(Former) Managing Director, Litigation Consulting
A2L Consulting 

There is a certain irony in providing high-level litigation and litigation consulting services. Namely, if we, as litigators and litigation consultants, do our jobs correctly, the end product – whether it be a presentation to a jury or to the government – should be simple. 
not easy button simplify complex litigation consultantsFor this reason, it can be difficult for some clients to appreciate the value of the process required to create that end product, even when that end product serves the ultimate goal of a trial win or a favorable settlement. A simple end product, however, most often signifies a deliberate, detailed, and thoughtful process.

Foley & Lardner LLP and A2L Consulting recently collaborated on a project relating to an elaborate fraud carried out through numerous, complex transactions. The fraud was executed over many years and related to dozens of contracts and hundreds of thousands of pages of documents. Complicating matters further, the case proceeded on parallel litigation tracks, with civil claims being pursued by numerous sophisticated entities, while the U.S. Government investigated criminal charges. From all this, a presentation had to be prepared boiling down the complexities and complications to a simple, straight-forward, and persuasive position.

Crafting a winning litigation presentation, including the accompanying litigation graphics, can be analogized to writing a song. Take most anything the Beatles ever wrote, for example. Once you have heard the song, it seems simple – so simple, in fact, that you might proclaim: “I could do that, I could write a song.” Until you actually try doing it.

The Beatles created world-changing art, and they made it look easy. What winning litigation teams and litigation consultants strive to do is similar in that, to achieve their goals, they must take complex fact patterns and legal positions and make them both easy to understand and persuasive. They must make the case look easy.

Simplify the complex is the first rule in developing both a litigation narrative and the litigation graphics that elucidate it. Unlike the trial attorneys or line prosecutors, a jury has not “lived” with a case for many years. Nor, for that matter, do government attorneys high in the chain-of-command necessarily have the same deep understanding of the facts and intricacies of a case as do their investigators or line prosecutors. Dumping all of the facts on the table in the hope that the audience will latch on to a winning argument almost invariably leads to another result – confusion and, ultimately, failure. The key is to present the evidence and information in a manner that can be easily digested by those who, based on limited time and/or limited exposure to the case, want and need to see the big picture.

Making the complex simple, however, takes time, creativity, and hard work. As Blaise Pascal (French mathematician, physicist, inventor, writer, and philosopher) famously said, “I would have written a shorter letter, but I ran out of time.” (often also-attributed to Mark Twain and Abraham Lincoln). But it is through this process that value is generated.

making complex simple trial presentation consultants litigationIdeally, and when a litigation team employs a litigation consulting and litigation graphics firm, the process involves a bit of a witches’ brew. A lot of facts, ideas, theories, and storylines get thrown into the pot, and the attorneys, litigation consultants, and litigation artists must work together to explore and decide what facts fit and which story lines are most persuasive.  The process is rarely straightforward and smooth, and it involves occasionally wandering down dead ends to find the right path. But this process is necessary to chip away at marginal, unnecessary, and/or potentially distracting and detracting portions of the case.

The team of litigators must deal with thousands of discrete and related facts, sometimes millions of pages of documents, and, often, multiple interested parties forwarding their own versions of the case to the same target audiences. The litigators must figure out how to refine the mountains of information into a neat and compact outline of evidence that tells a compelling narrative. The litigation consultants and graphics firm must then take the evidence that the attorneys believe most important, understand the narrative forwarded by the trial team, and push the attorneys to further hone and sharpen the presentation of their case. The graphics must be developed with equal precision so that a narrative emerges from the slides that not only emphasizes the key evidence, but also provides simple and persuasive themes.

simplicity is power a2l litigation consultantsAt the end of the process, the team is left with a streamlined and seemingly simple presentation that the audience can readily understand and, more importantly, be compelled to agree with on some level.This streamlined and simple end-product, however, is often all the client sees as well. The work that goes on behind the scenes – the effort and expense needed to develop the themes, to frame the evidence, and to refine the message to its basic core – constitutes the majority of the work that goes into the case. When done correctly, it should look easy, as if anyone could have done it. Most importantly, clients should recognize that this is precisely the value added by their litigators and litigation consultants.

In simplicity, there is power. Give the right people the power to create simplicity, and you, as client, will get astonishing results (that look easy).

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Tags: Trial Consultants, Trial Presentation, Jury Consulting, Litigation Consulting, Demonstrative Evidence, Litigation Management, Litigation Support, Articles, Storytelling, Management, Criminal, White Collar, In-House Counsel

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Ken Lopez founded A2L Consulting in 1995. The firm has since worked with litigators from all major law firms on more than 10,000 cases with over $2 trillion cumulatively at stake.  The A2L team is comprised of psychologists, jury consultants, trial consultants, litigation consultants, attorneys and information designers who provide jury consulting, litigation graphics and trial technology.  Ken Lopez can be reached at lopez@A2LC.com.


Tony Klapper joined A2L Consulting after accumulating 20 years of litigation experience while a partner at both Reed Smith and Kirkland & Ellis. Today, he is the Managing Director of Litigation Consulting and General Counsel for A2L Consulting. Tony has significant litigation experience in products liability, toxic tort, employment, financial services, government contract, insurance, and other commercial disputes.  In those matters, he has almost always been the point person for demonstrative evidence and narrative development on his trial teams. Tony can be reached at klapper@a2lc.com.

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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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