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Forty years of research about the psychology of human memory has shown that our memories are far from perfect replicas of the events that they purport to describe. Eyewitness accounts, in particular, have been proved unreliable – with a profound impact on the value of courtroom testimony. Thousands of criminal convictions have been based on identifications and accounts later shown to be incorrect. Human memory is malleable -- it is affected by a number of factors that can modify it or distort it. It is well known that people can be induced to remember and to sincerely believe episodes from their past that never actually happened. This presents a difficult task for the trial lawyer. It’s not just criminal cases that turn on witnesses’ recollections of events. Most civil cases also rely on witnesses, and subjective assessments of witness credibility. Before a lawyer decides to put a fact witness on the stand, he or she needs to have some sense of how reliable that witness will be. Here are three suggestions, based on research by forensic psychologists, for the trial lawyer who wishes to assess the likely accuracy of a witness at trial. Ask the witness how confident he or she is about the planned testimony. There can be a significant relationship between how confident a witness is of his or her testimony and the likelihood that the testimony is accurate. The trial lawyer should ask the witness for a “confidence statement.” Is the witness 90 percent sure that this is what happened? Only 60 percent sure? The answer will help the trial lawyer decide how much weight to place on the witness’s testimony, or even whether to call him or her to the stand at all. Have the witness write down the key details of what he or she saw or heard. Details that are written down soon after the event are likely to be more accurate. The sooner a memory is recorded, the smaller the chance that it will be warped by hearing the accounts of others. In a civil case, it may have been months since the events in question occurred, but it still helps to ask the witness to write everything down, in his or her own words. Do not discuss the testimony with the witness too many times. Sometimes, if a witness is over-rehearsed, his or her testimony will harden to a point where it becomes rote and projects a confidence in details that is not really justified. It’s no surprise that sometimes witnesses say that they are “absolutely sure” of their testimony because they have been asked to repeat it on countless occasions before the trial. So keep to a minimum the number of times that the witness is asked to repeat his or her story. Other A2L free resources related to witness preparation, expert witnesses, and the science of persuasion include: Witness Preparation: Hit or Myth? The Top 14 Testimony Tips for Litigators and Expert Witnesses 3 Ways to Handle a Presentation-Challenged Expert Witness 7 Smart Ways for Expert Witnesses to Give Better Testimony Contact A2L about witness prep services performed by industry-leading consultants Free Download: Storytelling for Litigators How jurors evaluate expert witnesses vs. how lawyers do Witness preparation best practices - don't stay in the shallows! A2L Consulting Voted #1 Jury Consulting Firm by Readers of LegalTimes 7 Things You Never Want to Say in Court How NOT to Go to Court: Handling High Profile Clients No Advice is Better Than Bad Advice in Litigation Practice, Say Jury Consultants, is Why Movie Lawyers Perform So Well Webinar - Integrating Argument and Expert Evidence in Complex Cases Walking the Line: Don't Coach Your Experts (Re: Apple v. Samsung) 3 Articles Discussing What Jurors Really Think About You

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by Ken Lopez Founder/CEO A2L Consulting Imagine a world in which the best trial lawyers work in small boutique litigation firms and charge clients half of current rates. Many people have imagined such a world for a long time, and even though we're not there yet, we're closer than we used to be. Today, a few of these smaller firms do exist. They are being run by some of the world's best trial lawyers, and these lawyers do in fact charge a lot less than they used to. However, this does not represent a new type of law firm; this type of firm has always existed. After a while, these firms either become large law firms with a refreshed culture of entrepreneurialism (e.g. Boies Schiller) or they get absorbed into a big law firm (e.g. Bancroft LLP into Kirkland & Ellis). Only a small handful of firms have found something of a middle ground and are able to deliver large law firm results without a lawyer headcount in the thousands (e.g. Bartlit Beck and Williams & Connolly). Working closely with boutique law firms as we do, I see that large companies are getting much of what they hoped for. They get exceptional lawyering, better rates, and that big-firm swagger that unmistakably contributes to winning cases. There are some gaps, however, and the best of these firms acknowledge it and fill it with litigation consultants. It turns out that sometimes the resources and scale of a large law firm are precisely what is needed to overwhelm and overrun an opponent. A large enough army can always overrun even the most elite small special forces team. However, this is only true if the elite group does not have a means of bringing in more support on a moment's notice. The best in-house departments see this nimbleness as a strength.  Our litigation consulting firm is often called upon to serve in this role. So here are 12 ways that we can make a litigation boutique as powerful as a very large law firm. We help keep prices down. If you're a big law firm, built into every hour billed is a cost for marketing, all those offices, and all that support staff. That is not true for a small firm. The small firm does not need to keep full-time staff on hand for services that are more efficiently outsourced (e.g. litigation graphics, trial technician services, and other trial consulting services). See 17 Reasons Why Litigation Consultants Are Better at Graphics Than Law Firms. We amplify the skills of the best members of the trial team. Part of our role for many of the top trial lawyers is to help them hone their skill set. See Your Coach Is Not Better Than You – in the Courtroom or Elsewhere. We amplify the skills of other members of the trial team. In the new litigation boutiques, there are often a handful of superstars, but there are always some lawyers who can benefit from learning the best practices of the best trial lawyers. Firms like A2L are in a unique position to transfer skills from one top trial team to another. See How to Get Great Results From a Good Lawyer. We free up the busiest trial lawyers to do what they do best. When you're one of the elite, management of your time is essential. Saying "no" and letting go becomes the new "yes." See How Valuable is Your Time vs. Litigation Support's Time?

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How to Be a Great Expert Witness (Part 3)

by Tony Klapper Managing Director, Litigation Consulting A2L Consulting In our last post, we discussed why expert witnesses should rely on visual aids and litigation graphics in preparing their testimony. Another key point for expert witnesses is that no matter how well credentialed a witness is, if the jury thinks he is a jackass or if he acts in a way that is inconsistent with jurors’ perception of how an expert should act, his testimony will be useless. In every trial, the jury and the judge evaluate the credibility of every witness who testifies. If you have done something as a witness to lessen your credibility quotient, what you say will either be filtered through that lens or not even considered. For example, some experts make the mistake of engaging opposing counsel in a pitched battle during cross-examination. While a feisty expert who resists answering “yes” or “no” questions might be seen by her attorney as a hero, the jury more likely sees an expert who is being difficult -- particularly when the “yes” and “no” questions are intuitively answerable. Similarly, an expert who regularly resorts to “I don’t recall” and “I don’t know” responses to questions that objectively seem knowable and recallable also undercuts her credibility. The same is true of an expert who fights over the meaning of words that have common meanings, or starts asking questions of the questioner.

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by Katie Bagwill A2L Consulting Wouldn’t it be nice to be able to learn, just from hearing a witness utter a few phrases, that the witness is lying? Unfortunately, we can’t read minds, so we need to make do with second best: reading the tone of the witness’s voice and eye movements. The scientific community has been working hard to develop a way to gauge an individual’s truth telling based on the person’s behavioral, verbal, and physiological responses. In the meantime, you can use these ideas when questioning a witness, preparing your own witness to give testimony, and selecting potential jurors.

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by Tony B. Klapper, Managing Director, Litigation Consulting & GC, A2L Consulting and David H. Schwartz, Ph.D., Co-Founder, Innovative Science Solutions 

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50 Characteristics of Top Trial Teams

by 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. 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 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 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 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 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 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

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By Laurie R. Kuslansky, Ph.D. Managing Director, Jury & Trial Consulting A2L Consulting  It’s often said that the door to winning your case closes in your opening statement. Unless you are able to grab your audience, the jury, then and there, you may never be able to do so. So how do you maximize your chances of grabbing the attention of the jury at the time that it matters most? One way is through the use of mock trials. How? Mock trials can help you avoid losing jurors from the start, help you set the stage properly, and help mock jurors begin to use their selective attention in your favor in the following ways: Confusion. Mock trials readily reveal helpful and harmful sources of confusion.  Usually, but not always, simplicity is your friend. Either way, you will need to know how to make your points clearly during your opening. You can also determine whether your points needs graphics support from the start, how best to word them, and the context needed to place them properly in opening. Resistance. In addition to confusion as a barrier to accepting certain points in your case, jurors may bring other sources of resistance, such as personal experience, common sense, emotions, negative beliefs and the like. Unless you know what these are, you can’t get past them, no matter how hard you try. However, you can clear the way for jurors to be willing to listen to you by addressing these issues early in your opening, as by saying what the case is not about, or showing them that you are aware of their potential negativity and how you plan to overcome it. Otherwise, they will shut you out and shut down, right from the start. Cognitive Overload. You may have a lot to say, but jurors are limited in what they can hear, remember and use.  A mock trial will help identify where those two worlds optimally meet – the right amount of information needed to prove your case at the level the jury needs to find in your favor. Opening helps jurors map out what to expect and can show them that you will do as much as needed to provide them with proof, but you won’t scare them off by threatening them with too much information.

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  by Ken Lopez Founder/CEO A2L Consulting This is the fifth and final installment in a series of articles focused on how defense counsel can overcome the increasingly popular Reptile trial strategy. In parts one through four, I offered an introduction to the strategy, I shared ten ways to recognize when the strategy is being used against you, I explained why the strategy does not actually work in the way that its authors describe, and I explained that despite the bad science, the Reptile trial strategy still works. In this post, I summarize how to overcome the strategy in both the pretrial and trial phases of a case. I rely heavily on the work of Jill Bechtold of Marks Gray and Steve Quattlebaum of Quattlebaum, Grooms & Tull. They were my co-presenters at a recent defense attorney-focused conference devoted to repelling the Reptile strategy. One theme that clearly emerges from the 12 points below is that being a good defense lawyer is more important than ever. No longer is it enough simply to outlast your opponent. No longer is it enough to come up with a great theme and narrative just before trial. Because the Reptile strategy often begins with the complaint, a defense against it must start shortly thereafter -- or you will pay the price later. Spot the Reptile: It can appear as late as closing arguments, but more often than not, plaintiffs counsel will introduce the key themes as early as the complaint. See, 10 Ways to Spot the Reptile in Action. Read the Book: I hate to say this, but you probably should read it. It is Reptile: The 2009 Manual of the Plaintiff’s Revolution by David Ball and Don Keenan. Spot your Opponent on the Reptile Hall of Fame: http://www.reptilekeenanball.com/reptile-allstars/ Plaintiffs counsel with a record of using the Reptile strategy are listed here. Is one your opponent?

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