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The Litigation Consulting Report

How to Be a Great Expert Witness (Part 3)

Posted by Tony Klapper on Tue, Dec 13, 2016 @ 01:07 PM

expert-witness-testimony-guide-tips-free.jpgby 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 inc
onsistent 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.

When these things happen, the expert no longer is perceived as an expert; she is perceived as an advocate who is hiding some element of the truth. Even when the expert is not on the witness stand, how the expert interacts with court staff, opposing counsel, and even her own team can affect the expert’s perceived credibility. Being gracious and dignified can help; being cocky or surly can hurt.

For better or worse, jury trials can be show trials. While they certainly involve the search for truth, the way that truth is arrived at is often foreign and unnatural to the novice testifier. For example, unlike the laboratory or classroom, your evaluators at a jury trial are often less educated and less patient.

Additionally, unlike normal conversations, the questions asked and answered at a jury trial are orchestrated and controlled by arcane evidentiary and procedural rules. While being liked and respected is important in the “real world,” its impact is magnified dramatically in the courtroom, where snap decisions and judgments are made by people you have never met before and will likely never meet again. Not recognizing these facts can spell disaster.

Another key issue for the expert witness is to realize that she is going to be in very good company, intellectually, during the trial. She may see herself as the smartest person in the room on her subject matter. Is she? Perhaps. She needs to recognize that some of the best trial lawyers pride themselves in playing the game of one-upmanship and outmaneuvering and outworking the expert.

Those lawyers have some very real advantages. First, they are smart. They may not be as educated as you in the field of your expertise, but they are quick studies and careful readers. The best lawyers take great pride in securing the winning admission from the other side’s experts -- albeit with a smile on their face. Many a war story has been told of a cross-examination that brought a testifying expert to tears or so frazzled the expert that he caved on points that he did not need to cave on. Sometimes aggressive lawyering on cross-examination can backfire, and the expert is perceived as a victim and the lawyer as a bully. But sometimes the jury (like the throngs at a gladiator fight in ancient Rome) waits with anticipation for at least some blood to be drawn.

Second, in cases with significant economic exposure or opportunity, opposing counsel will likely be well-financed. They will have a team of associates, and possibly even science consultants, available to look for ways to outsmart you. They will have scoured all of your writings and the scientific literature you have relied upon. They might have better recall about footnote 29 or the limitations expressed by another author about the regression analysis in one of the studies upon which you rely. And they will be looking for statements and opinions that are flat-out inconsistent (or appear inconsistent) with the statements and positions you presented in your expert report and direct examination

Third, opposing counsel will know the case backwards and forwards. As an expert, you invariably must rely on your understanding of at least some of the facts in order to apply those facts to whatever scientific methodology you employ -- though sometimes you are simply asked to assume certain facts as true. Either way, opposing counsel will work hard to exploit any of your knowledge gaps with what they perceive to be the “real facts.”

The simple solution is to remember that you really are THE expert. If you believe in your opinions and have prepared properly for your testimony, you will do just fine.

expert witness trial testimony ebook a2l ims

Tags: Trial Consulting, Juries, Expert Witness, Witness Preparation, Cross Examination

Is the Witness a Big Fat Liar, and Can the Jury Tell?

Posted by Katie Bagwill on Mon, Dec 5, 2016 @ 03:40 PM

witness-how-to-tell-if-lying-liar-deposition-trial.jpgby 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.

Vocal Cues. Using questioning methods similar to that of a polygraph, voice stress analysis is used to pick up on changes in the frequency in a person’s tone of voice when speaking. The basic idea is that when you are lying, the muscles that contract when you are speaking will produce a slightly higher or lower frequency. By having someone speak into a microphone, you can use a vocal stress analyzer on your computer or, thanks to technology, on your phone.

Why it should matter to you: Even if those tools aren’t available to you or would be too time-consuming to use, the basic principle is something you should keep in mind: lying causes physiological stress and stress causes a person’s vocal pitch to change. While a seasoned liar may be good at keeping his or her voice steady when lying, the average person (i.e. someone called for jury duty) could let it waver.

Eyeball Movements. There’s this idea floating around that if someone is looking to the right they are lying and if they look to the left they are telling the truth. While this isn’t necessarily always true, there is a science behind it. Research has been done that links patterns of eye movements to different forms of cognitive processing. Each direction notes the characteristics of the thought process in question (visual, auditory, emotional). The difference in sides refers not to just “lying” but to the cognitive processes used in creating a realistic story, which requires a higher level of thinking than recalling. (see also http://www.a2lc.com/eyechart)

Why it should matter to you: Take note of the witness’s or potential juror’s normal eye movements while speaking. Deviance from their “normal” is a stronger indicator of “creative” thinking than utilizing the eye movement chart alone. In combination with other methods of detecting deception, it is a useful tool.

Other articles about psychology, cogitive bias, persuasion, and influencing juries from A2L Consulting include:

A2L Consulting Voir Dire Consultants Handbook

Tags: Trial Consultants, Jury Consulting, Trial Consulting, Juries, Voir Dire, Jury Selection, Psychology, Expert Witness, Witness Preparation

7 Reasons the Consulting Expert is Crucial in Science-Based Litigation

Posted by Tony Klapper on Fri, Jun 3, 2016 @ 11:49 AM

consulting-expert-managing-expert-science-litigation.jpgby Tony B. Klapper, Managing Director, Litigation Consulting & GC, A2L Consulting and David H. Schwartz, Ph.D., Co-Founder, Innovative Science Solutions 

The successful litigator knows that one of the first and most important steps to be taken when confronted with complex science-based litigation is to identify and engage a top-notch testifying expert. The ideal testifier is one who is highly qualified, able to credibly communicate to a jury, and can educate the legal team. These characteristics go for experts involved in patent disputes, product liability litigation, and consumer fraud cases involving allegations that a supplement, drug, or device is not effective.

Testifying experts are indeed critical for the success of a case, but as we have discussed in a previous post, many litigators fail to recognize that it is equally important to engage an experienced and litigation-savvy consulting expert. To understand why, consider the following seven points.

1. Availability

If you have recruited the ideal testifying expert, his or her time may be limited by the day-to-day obligations as an opinion leader in their field. I am sure that most of the litigators reading this post have experienced the challenges of working with a testifier who teaches, is conducting scholarly research, or has just simply overcommitted to too many legal clients. When this happens, getting the expert’s attention may prove just as difficult as understanding the science upon which the expert relies. And because understanding the science enough to cross-examine the other side’s expert is a critical component of effective advocacy, having a consulting expert available to take the time to educate you and help you prepare your case can be indispensable.

2. Context

Consulting experts tend to understand the litigation landscape better than an academic testifying expert. With the exception of the oft-used professional testifier, most testifying experts are not particularly litigation savvy and may not be familiar with the manner by which scientific evidence in their field may be twisted and turned by more experienced testifiers. A consulting expert who has studied not only the literature, but the positions espoused by the adversary’s experts—as articulated in expert reports, depositions and trials—can help litigators more effectively prepare their testifiers’ reports and direct examinations, as well as prepare for cross.

3. Cost-Containment

Third, consulting experts provide the litigator with a means of evaluating an adversary’s case, as well as his or her own, and understanding where the strengths and weaknesses lie. As we all know, we live in an age when early case assessments have become critically important to the business client. Those clients increasingly demand that their outside counsel find ways to resolve resolvable disputes well before hundreds of thousands (if not millions) of dollars are spent in motions practice, discovery and expert retention. Having a consulting expert help assess your case before retaining your testifier often proves to be one of the most cost-effective ways to satisfy the client’s cost-saving demands.

expert witness teach science complex subject courtroom webinar 4. Discoverability Concerns

Notwithstanding changes to Fed. R. Civ. P. 26(b)(4)(B)-(C), discoverability concerns remain with testifying experts (particularly in state courts) that are not as relevant with consulting experts. Know your jurisdiction. In addition to all the reasons mentioned above and below for retaining a consulting expert, if you litigate in a state court that does not provide full work product protection to communications with testifying experts, beware. The consulting expert might be your only safe harbor for open and candid discussion about the scientific evidence.

5. Find the Best Testifiers

Fifth, the right consulting expert can help you find and recruit the ideal testifying experts, especially when the issues are extremely complex and esoteric. This is particularly true when the litigator has not had the time to fully immerse him or herself into the science. Until that happens, finding the right testifier can be a complete crapshoot. Who are the real thought-leaders in the field? Among them, are there any candidates who have espoused views antithetical to my client’s? They may say they haven’t, but how do you know without fully understanding the literature and that expert’s writings? Can the candidate’s methodology expose him or her to a blistering Daubert attack? These and other questions are critical in the search process. But who has the time and the skills to make these judgment calls? A good consultant can help in the vetting and selection process in ways that busy litigators often cannot.

6. Help To Ensure Victory

Sixth, in the age of increasing Daubert (and other expert) challenges, having a consultant available to help assess the adversary experts’ methodologies and brainstorm areas of attack can be the difference between winning and losing a case. Yes, lawyers can be very skilled at identifying the logical flaws, errors of omission, and unfounded inferences that plague many an expert’s analysis. But having a consulting expert dig into the literature and/or serve as a sounding board for lawyer-based “scientific” musings helps ensure that potential arguments are carefully vetted and those selected are truly effective.

7. Some Examples

Where can these consultants and consulting services be most helpful? Consider their use in patent disputes, personal injury litigation, and consumer fraud matters.

For example, pharmaceutical and medical device patent disputes revolve around demonstrating issues of patent validity and infringement. If you represent an innovator, you will be focused on demonstrating that the patent is valid under intense scrutiny and that your adversary is infringing on the teaching present in your patent. If you are defending a generic manufacturer, your goals will most likely be reversed. Consulting experts can help you perform these tasks and identify the right testifying experts to make these assertions. These non-testifying experts can scrutinize the laboratory notebooks and meeting minutes to spot documents that both support and potentially refute your case. For these types of cases, you will be looking for consulting experts with credentials in medicinal chemistry, drug metabolism, as well as basic cell and molecular biology.

In personal injury product liability cases involving healthcare products—such as pharmaceutical and medical devices, dietary supplements, agra-chemicals, and foods—consulting experts are perfectly positioned to work closely with counsel. The knowledgeable consulting experts can be instrumental resource in matters that involve a complex regulatory landscape and equally complex science-based issues. Consulting experts can help clients develop strategies and approaches that are central to the defense, and they can help identify the difficult-to-find regulatory testifying experts.

Finally, as many of our readers know all too well, consumer fraud cases are becoming extremely common, especially for products such as dietary supplements, cosmetics, and other consumer healthcare products. These cases generally involve allegations that no competent and reliable scientific evidence supports the advertised benefits of the products at issue. Like personal injury litigation, consulting experts are critical to an in-depth understanding of the science relevant to the case. Because there is a specific regulatory standard at issue in these cases, it is sometimes less important to have experts who are experts in the medical area at issue and more important to have consultants who understand regulatory standards and the types of studies that would be considered competent and reliable scientific evidence. Consulting experts in these cases will be able to evaluate and assess the substantiation reports that the defendant may have generated and they will help you perform an up-to-date, comprehensive review of the scientific literature relevant to a substantiation of the advertising claims at issue.

Other articles from A2L Consulting related to science-focused litigation:

ISS A2L Combating Junk Science E-Book

Tags: Litigation Management, Science, Environmental Litigation, Expert Witness, Witness Preparation, Toxic Tort, Damages, Product Liability

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

    storytelling for judge jury courtroom best method for trial persuasion and emotion
  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



    Complimentary Subscription to This Blog



  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

    mock jury webinar a2l kuslansky

  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.

litigation consulting graphics jury trial technology

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

6 Ways to Use a Mock Trial to Develop Your Opening Statement

Posted by Laurie Kuslansky on Tue, Sep 29, 2015 @ 10:45 AM

mock  trial jury consulting opening statementBy 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:

  1. 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.
  1. 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.
  1. 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.
  1. Themes. One of the most important things a mock trial can reveal is the winning story, in which the key stepping stones are the case themes. These in turn should be the main takeaways, starting from the opening and running through the summation like paragraph headings to a well-constructed essay with no fluff.
  1. Witnesses. Often the “star” witness of the case for jurors is different from the star witness for counsel.  Mock trials reveal the nature of the most important testimony and its source from the decision-makers’ perspective and thus help you decide whom to feature in your case or which opposing witness to start discounting in opening.
  1. Outcomes. Mock trials teach us what result jurors seek, what it means to them, and what they hope to accomplish with their verdict.  As a result, counsel can incorporate the mock jurors’ motivations into the opening statement to align with how actual jurors may feel and start winning them over from the start. Often, why you care about the case result is different from why they may or may not care about it. Unless you know what drives them and tap into it, you lose critical momentum from the start.

In summary, mock trials are an indispensable step in the process of developing a winning opening statement.

Other free articles and free resources about mock trials, opening statements and storytelling for litigation from A2L Consulting:

opening statements toolkit ebook download a2l

Tags: Jury Consulting, Mock Trial, Psychology, Storytelling, Expert Witness, Opening, Closing Argument, Witness Preparation

Repelling the Reptile Trial Strategy as Defense Counsel - Part 5 - 12 Ways to Kill the Reptile

Posted by Ken Lopez on Tue, Aug 4, 2015 @ 01:40 PM

 

reptile-trial-strategy-defense-win-beat-overcome-jury-consultantsby 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.

  1. 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.

  2. 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.

  3. Spot your Opponent on the Reptile Hall of Famehttp://www.reptilekeenanball.com/reptile-allstars/ Plaintiffs counsel with a record of using the Reptile strategy are listed here. Is one your opponent?

  4. Storytelling Will Prevail: As you go through your case intake process, begin looking for the elements and start developing your own narrative. If you build the right narrative, you stand a higher chance of winning your case at trial. See, The Litigator's Guide to Storytelling for Persuasion 

  5. Understand Your Opponent's Narrative: Plaintiffs lawyers are often successful because they focus on narrative from the very beginning. You need to uncover that narrative and be ready to replace it with your own.

  6. Articulate Your Narrative from Day One. The sooner you build your own narrative, the better off you will be. Developing a narrative long before trial allows for testing of that narrative and it allows for it to be used throughout the discovery process. Keeping it a secret until trial is not a great tactic and is often an excuse for procrastination. See 25 Things In-House Counsel Should Insist Outside Litigation Counsel Do

  7. Prepare Your Witnesses: They will be badgered. Teach them how not to give in and to think of each answer they give as a potential video clip. Give them standard phrases that will play well – such as: I don't understand, it depends, or I don't have enough information. Use witness preparation techniques and consider outsourcing witness preparation to firms that understand the Reptile theory. See Witness Preparation: Hit or Myth?

  8. Use Motions in Limine to keep out evidence that is irrelevant and inflammatory. Also, use pre-trial motions to introduce and undermine the Reptile strategy.

  9. Object at Depositions: Use objections based on form, relevance, lack of foundation, mischaracterization of law, or seeking legal conclusions. Don't rely on standing objections as this will not be effective in fending off damaging testimony, nor do they help minimize the impact of video testimony.

  10. Help your Client Understand the Reptile Trial Strategy: Your client should understand the nature of the actual duties that are owed to the plaintiff and should be able to distinguish between those and the made-up community standards that are characteristic of the Reptile trial strategy. See The Top 14 Testimony Tips for Litigators and Expert Witnesses

  11. Test Plaintiffs’ Case in a Mock Trial, Using Reptile Techniques. See 12 Astute Tips for Meaningful Mock Trials

  12. Watch for Golden Rule Violations at Trial. The Reptile strategy gets close to crossing this line, and a less sophisticated plaintiffs lawyer may very well cross it --potentially resulting in a new trial.

Using these and other techniques, I am confident that a well-prepared defense attorney will be able to defeat the Reptile theory.

Parts 1, 2, 3, 4, & 5.

Other articles and resources related to Reptile trial strategy, jury persuasion and jury consulting from A2L Consulting:

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Tags: Jury Consulting, Mock Trial, Trial Consulting, Jury Consultants, Storytelling, Expert Witness, Depositions, Witness Preparation, Reptile Trial Strategy

The CEO in Litigation: Problems, Solutions and Witness Preparation

Posted by Laurie Kuslansky on Tue, Mar 24, 2015 @ 04:41 PM

 

ceo-deposition-tips-testimony-courtby Laurie R. Kuslansky, Ph.D.
Managing Director, Jury Research & Consulting
A2L Consulting

Beware: When a CEO takes the stand, he or she could prove to be an unexpected liability. Dr. Laurie R. Kuslansky, Trial Consultant, explains how to avoid this unfortunate — yet foreseeable situation.

The very qualities that make the CEO successful in business—the ability to take charge, to think in terms of the “big picture,” to avoid minutiae, and perhaps the possession of ample self-importance and confidence—may collectively manifest as a poor witness in the courtroom, which is not filled with "yes-men." These behaviors can handicap counsel and may prevent judges and juries from perceiving the executive favorably. Trial team members may overlook a CEO’s faults due to familiarity, resignation, because they wish to maintain a comfortable relationship, or because other facets of the case distract them. However, it is risky to ignore the negative impact the CEO’s behavior may have on an uninitiated audience (i.e., a judge and jurors) that has no incentive to tolerate it.

Pitfalls of the CEO as Client

The CEO is naturally hesitant to relinquish control. When faced with a threat, this leader seeks control. An excessively controlling executive is certainly not the person who should run the legal show, but often tries to do so. The trial team may not feel trusted and may be forced to “work around” the CEO to get its job done. It is essential that one member of the trial team—ideally, the best qualified—be designated to direct the effort.

When a CEO defers authority, it may be to someone who lacks the skills necessary to succeed in trial (e.g., a non-litigator who performs legal research, writes briefs, or who focuses on motions or post-trial appeals or to inside counsel who is paid to agree with "the boss"). In this situation, friction will undoubtedly arise between the non-litigator’s provision of detailed information and the litigator’s streamlined plan or between the politically driven in-house counsel and strategically thinking trial counsel. The CEO’s choice of one plan over the other may be a show of control, but may work against the strength of the team—and ultimately against the CEO.

Pitfalls of the CEO as Witness

The CEO is among the most visible of corporate witnesses. Jurors view the chief executive as uniquely qualified to answer for his or her company, both as the endorser/enforcer of corporate policy and as the parental role model for the corporate culture. Consequently, this leader is expected to be knowledgeable, powerful, and accountable. However, jurors often view the CEO cynically (i.e., as out of touch with the average person, as poised to advance the company’s agenda, and as being motivated by greed and a desire to protect him or herself and assets). We've heard CEOs make comments that set them apart from the jury, such as "It wasn't a lot of money . . . only maybe two or three million dollars."

In contrast, the juror typically has high regard for the judge and expects trial participants to be polite and deferential. The executive who seeks control—or who seems too casual—offends the jurors’ sense of who should be in charge and how one must conduct oneself in court. If the CEO resists direction from the Court, he or she is seen as difficult, evasive, or unlikable (and thus not credible). Worse, it sends the message that they are above the rules and are willing to break them.

Ironically, then, attempts by a CEO to advance an agenda or to show strength accomplish quite the opposite. Behaviors that succeed in the corporate environment only serve to antagonize jurors. Jurors do not live in the CEO’s world; jurors tend to be average wage earners with limited or no power in the workplace. Though they may admire the corporate leader who has an unusually positive story (e.g., a CEO who pulled himself or herself up by their bootstraps), jurors are inclined to feel distant from—even resentful of—a powerful individual, particularly one who displays an air of superiority and collects hefty salaries and bonuses which are seen as in the stratosphere and unwarranted. The jury trial provides a rare opportunity for jurors to turn the tables. Hence, the CEO who testifies as if he or she is holding court (rather than deferring to the Court) may provoke a backlash by confirming juror suspicions of corporate arrogance.

On direct examination, the self-assurance displayed by a CEO can make a cordial exchange with the questioner reminiscent of a well-rehearsed infomercial. This effect will likely be more pronounced than with other witnesses, since the executive (who is, after all, the client) will elicit only polite and respectful questioning. On cross-examination, however, the same executive often appears unprepared, uncooperative, impolite, manipulative, arrogant, and/or evasive. A CEO’s power struggle with a cross-examining attorney reveals the leader who was so pleasant and self-assured on direct examination as someone who can also be highly unlikable and inappropriately controlling.

Why does this happen? Negative Tendencies of the CEO

  • Believes that others see things from his or her perspective when most are simply paid to do so

  • Patronizes others or blames their limitations when others are not persuaded to see things as the CEO does

  • Finds it difficult to speak at the level of the jury, yet expects to be understood

  • Refuses to yield on the stand, opting for one-upmanship in a misguided show of strength rather than picking his or her battles

  • Bullies opponents: It is more important to the CEO to be right than to be likable or cooperative

  • Insists on always having an answer

  • Is prepared to give orders, but not to take them; and is willing to ask questions, but not to be the one “on the spot”

  • Refuses to spare his or her opinions

  • Fails to speak diplomatically

  • Appears to be a “suit” (i.e., appearance, body language, behavior, lifestyle, etc. serve to identify the executive as a privileged power broker).

  • Doesn't suffer fools well, so shows contempt for ill-prepared or disorganized questioners
  • Note: If you show this list to a CEO, he or she will deny it describes them!

Pitfalls of the CEO on Videotape: Seeing Is Believing

Video depositions are an additional CEO hazard. Opposing counsel may edit video testimony to create damaging sequences for replay to a jury; these sequences commonly exaggerate unattractive qualities of the executive that go unnoticed when only the written record is used. Such qualities include appearance, demeanor, facial expression, body language, mannerism, delays in responses, tone of voice, diction, accent, eye contact, gaze, posture, personality, and attitude . . . as well as attire, haircut, tan, jewelry and accessories.

Video is especially damaging when the judge and jury do not see what they expect. For example, the CEO’s attire may send the wrong message; an inappropriate background in the video can do the same.

Inconsistent behavior or appearance that would likely go unnoticed in written transcripts can be quite apparent on video and seeing is believing . . . or not.

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The executive’s energy level or appearance may improve from one taping to the next, or (more likely) may decline due to fatigue over time.

Poor positioning of the witness may also create a negative impression. If the CEO is sandwiched between deposing and defending attorneys, the resulting “pingpong” effect of his or her turning head is both a distraction and a red flag. Any fidgeting that creates a visible pattern (remember Oliver North at the Congressional hearings?) has a similar effect.

Likewise, the CEO who looks to the attorney after hearing a question reveals uncertainty and the need to defer to counsel.

In traditional depositions, attorneys tend to focus on substance more than form; CEOs tend to answer questions by saying as little as possible. This protects against later attacks on the executive’s credibility (given the developments of discovery and the opportunity to review additional materials, answers in court may vary from those given in deposition). On video, however, such reticence presents as unresponsive, detached, uncooperative, and even evasive.

The CEO who is tongue-tied in a video deposition but charismatic and forthcoming in court will witness the erosion of his or her credibility.

Conversely, the CEO who plays the “charmer” in a video deposition by volunteering information, war stories, etc. likewise forfeits credibility if he or she “gets religion” and clams up on the stand at trial.

Keep in mind that it is easier to lie with words than with behavior. Nonverbal messages may betray the CEO’s true mindset. Jurors know instinctively that body language can be revelatory. From their perspective, the CEO’s physical behavior is more significant than his or her words.

How to Avoid Video Pitfalls

Some solutions to these concerns are obvious: Pay close attention to appearance. In deposition, position the witness to allow a clear line of sight to both parties and the camera. Strive for consistent demeanor over time.

However, success requires time, practice and expertise. To improve the video performance of your executive witness, the following are essential:

  • Blunt reality checks: Offer honest feedback regarding the added risks of video deposition.

  • Pay attention to details: Form is as important as substance and more so for credibility.

  • Clear the table of distractions.

  • Warn the CEO to use his or her best manners: No interrupting, no bad attitude, and

    avoid controlling behavior.

  • Remind the CEO to respond only after the question has been fully asked and understood.

  • Avoid ploys to stall for time (such as asking a questioner to rephrase or repeat a question when unnecessary).

  • Vary the length and the language of responses; use this variety to attract attention to helpful testimony and to avoid sounding trapped or as if “taking the Fifth.”

  • Model and practice matter-of-fact answers to difficult questions.

  • Teach the witness to respond in contrasting style to the examining attorney. If the adversary becomes loud, fast, or aggressive, the CEO should accordingly strive to be quiet, deliberate, or polite.

  • When members of the trial team pass documents or approach the witness or exhibits, they must take care to remain off camera.

  • Educate the witness: Ask the CEO to observe as someone else plays the role of the CEO under questioning, and then evaluate the CEO to ascertain his or her level of self- awareness.

  • Employ behavior modification: Arrange for the executive to evaluate his or her level of self-awareness by reviewing details in videotaped practice sessions.

  • To identify negative body language, review the video without sound first.

  • Because the trial team’s relationship with the CEO makes it difficult to view the CEO as others will, arrange for an unknown attorney to conduct practice sessions and then to provide honest feedback.

  • Identify behavior that needs work, then change one behavior at a time. Practice, videotape, then review and evaluate the tape. Encourage positive change, and then move on to change another area.

  • Prepare visual exhibits (of adequate size to review on camera) to make strong points, organize the CEO’s testimony, and strategically distract viewers from the witness.

Why Does a CEO Act This Way?

Though it seems illogical for a CEO to behave counterproductively, there are reasons for such behavior. The chief executive is driven to succeed. He or she has every reason to believe that tactics rewarded by success in the past will continue to yield success. When in unfamiliar territory (e.g., the legal process), the CEO will misapply familiar behavior (borrowed from the business world) until he or she understands that doing so risks failure.

The CEO will resist the surrender of winning familiar formulas.

Unless he or she has learned through experience or atypically defers to counselors, a chief executive does not respond well when told to change or to back off.

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Once your CEO becomes aware of the dilemma and is receptive to new ways, keep in mind that old habits die hard. The CEO will be a poor witness if he or she views a lawsuit as an interruption of higher priorities. Jurors have a keen perception of such elitism. If the CEO perceives the necessary investment of time, energy, and money as unjustified or feels above the need to explain him or herself, the result will be a dismissive or contemptuous attitude, both on the stand and in the steps leading there, but he or she won't have the last say for a change — the judge or jury will.

Corporate politics may undermine a chief executive’s testimony. For example, imagine that the CEO was at odds with other executives regarding a policy change.
Cross-examiners would be thrilled to reveal this rift. They would take the opportunity to exploit tension between the CEO and dissenting witnesses. A CEO would resent the need to simultaneously defend and reconcile such differences of opinion. The trial team must not overlook the fact that stress hampers the CEO’s decision-making ability and performance. Expectations of the CEO run very high. As the corporate leader, this witness has far more to deal with than litigation. The implications of a given case extend beyond the courtroom, and the chief executive is highly exposed. He or she is accountable to employees, business plans, banks, investors, trustees, board members, shareholders (if the company is publicly traded), and the public. Each of these factors contributes to the CEO’s unique perspective of – and stress from – a lawsuit.

When a CEO is the client in a criminal case, the problem of stress is magnified. The CEO is likely to receive little outside support as former allies (including friends and family) distance themselves, adding to the CEO’s anxiety. Anxiety is the saboteur of CEO witness performance. As anxiety increases, a CEO typically becomes less able to accept advice. His or her desire to take control increases in direct proportion to the perceived threat (e.g., if the CEO’s liberty is at stake). Tension may also develop between a CEO’s advisors and the trial team. The leader of a corporation is commonly surrounded by “yes men” who tell the CEO what he or she wants to hear. In a criminal trial, the CEO may present as unlikable and not credible and yet receive positive feedback from insiders who misleadingly assure him or her that all is well. Many rule by fear, so stressful times are the least likely to elicit criticism, even if accurate.

In contrast, the trial team will wish to provide more balanced or even worst-case scenarios. However, when trial team members give realistic critical feedback, they may find the CEO unwilling to listen. Thus, attorneys hesitate to give frank advice because they fear being shot as the bearer of bad news, or because they naively wish to protect their client by shielding him or her from negative feedback (to no one’s long-term advantage). As a last resort, the trial team will sometimes forego calling the CEO as a witness. This can be a death knell – especially in criminal cases – because juries want to hear from the CEO. The trial team then faces a no-win choice: Either put a CEO on the stand who is a bad witness, or avoid calling the CEO altogether.

Too Much of a Good Thing Is Not Always Wonderful

The CEO witness can fail by over-compliance or under-compliance. Training any witness to act against their nature can backfire; an overly prepared executive may not present as genuine. For example, a stern CEO who smiles at the jury when speaking can look like a grinning fool or a windup doll, thus losing instead of gaining essential credibility.

A chief executive must behave naturally, must uphold the jury’s positive expectations, and must not reinforce negative stereotypes. The CEO’s lead attorney is charged with maintaining a balance between forthrightness, control, and remaining sensitive to the CEO’s concerns and anxieties.
 

How to Raise the CEO’s Awareness:

  • Be certain you understand each other. Review mutual goals and your plan to reach them. Take nothing for granted.

  • Control damage. Show the CEO (e.g., by videotaping cross-examination practice sessions) how and why misguided strategies, aggression, and over involvement will boomerang.

  • Consider the reaction of the audience. Orient the CEO to the perspective of the judge and jurors. Use blunt terms to describe how the CEO is likely to be perceived.

  • Get a reality check from the horse’s mouth. When possible, mock-try the CEO. Test recorded direct and cross examinations before surrogate jurors to allow the CEO to measure his or her expectations against real feedback.

storytelling for judge jury courtroom best method for trial persuasion and emotion
The attorney’s task includes showing that the CEO is a “people person,” not just someone who gives orders from on high. Demonstrate the CEO’s knowledge and understanding of the roles and contributions of others in the company. Even if the witness is reluctant to learn the details, it is important to encourage him or her to become familiar with the experience and input of lower level employees. This is essential for the CEO who must testify as both a fact witness and a corporate witness; keep in mind that his or her recall and performance will benefit to the degree that anxiety can be reduced. The CEO should also be encouraged to consider how outsiders view him or her as a person and as a decision maker, and to offer background and context to explain his or her actions.

What the Attorney Must Teach the CEO Witness:

  • Capitalize on your strongest asset: Charisma. Opportunities to employ charisma may be lost if ego gets in the way (appeal to the CEO’s ego with winning strategies).

  • Choose your battles carefully while under questioning.

  • Take control on the stand through both your behavior and your speech.

  • Practice the questions you dread most through role-play (the CEO plays the cross-examiner and the attorney plays the witness). By asking the most difficult questions, you can learn model responses that overcome anxiety.

  • Work with others on the case to avoid the “Hero or Zero” witness syndrome. No one makes or breaks a case without help from others.

  • Use analogies the judge and jurors appreciate but that opponents cannot turn against you.

  • Use a mock jury to pretest these analogies.

  • Pare down all excess in dress, accessories, and mannerisms.

  • Drive to court in your mother’s car, or use public transportation.

Spend time with the CEO to review what he or she can and cannot concede. Supply areas of concession and appropriate, matter-of-fact ways to make concessions. Thus armed, the CEO will have something to give without losing ground and a guide to assist his or her choice of battles.

It’s a Lousy Job, but Someone’s Gotta Do It

As difficult as it may be, it is imperative to tell the emperor that he has no clothes: Someone must inform the CEO witness when he or she has presentation problems. If you are ultimately to be successful in your litigation, this witness must understand the significance of the situation and must be enlisted to help you improve it. Though it may be tempting to avoid conflict with the CEO client, doing so would be a disservice. Embarrassing results would certainly hurt the relationship, and unwanted results can end it. The earlier these problems are addressed, the better.

This article originally appeared as the Cover Story of International Commercial Litigation Magazine.

Other articles about witness preparation, jury consulting and courtroom testimony from A2L Consulting:

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Tags: Trial Consultants, Mock Trial, Litigation Consulting, Juries, Jury Consultants, Expert Witness, Depositions, Witness Preparation

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:

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

5 Valuable (and Free) Complex or Science-Focused Litigation Resources

Posted by Ken Lopez on Mon, Jun 16, 2014 @ 11:00 AM


by Ken Lopez
Founder/CEO
A2L Consulting

Over the past 15 years, A2L Consulting has partnered with Innovative Science Solutions (ISS) on everything from tobacco litigation to hydraulic fracturing to alleged health effects of cell phones. Along the way, we have learned, often by overcoming enormous challenges, how to make science your ally.

Here are 5 completely free litigation resources based on that combined experience that I'd like to share with you:

floating-david-schwartz-issNew! This Wednesday!  Register: The Five Keys to Effective Scientific Information Management -  If you’re an attorney or someone who works with attorneys dealing with complex science-based litigation, you don’t want to miss this. All you have to do to register is click here for the 10am presentation or here for the 3pm presentation. If you have any questions you can contact Dr. David Schwartz directly at schwartz@innovativescience.net.

using-science-to-win-at-trial-200Read: Using Science to Prevail in Your Next Case or Controversy -  This book explores the unique relationship between science and the law. By looking at how your experts testify, how causation is established and how to explain science in an understandable way to jurors, this ebook breaks new ground for litigators.


experts-meld-evidence-with-argumentsNew!  Whitepaper: How Can Litigators Meld Expert Evidence with Winning Arguments - In this document, we have summarized many of the points we made in a webinar of the same name about how to identify, vet and prepare experts and how to develop winning demonstrative exhibits for expert testimony.

Watch: How Can Litigators Meld Expert Evidence with Winning Arguments - In this one-hour and fifteen minute webinar, Dr. David Schwartz shares how sophisticated litigation teams use both testifying and consulting experts to stay on message. Litigator turned litigation consultant Ryan Flax shares what he's learned about explaining complicated subject matter while trying complex cases for a dozen years. Ted Dunkelberger describes how to pick the best experts and how to make sure they are ready for trial. Watch now.

Read: What is the Value of Litigation Consulting? - We released it last month, and it has been one of our most popular litigation e-books to date already viewed by thousands of people. In it, we break down advice for litigators and ROI for clients into separate sections for litigation graphics, jury consulting and trial technology support. Download now.


Other articles and resources on A2L Consulting's site related to handing complex civil litigation, science-focused litigation and expert witnesses.

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Tags: Litigation Consulting, E-Book, Webinar, Science, Expert Witness, Witness Preparation

Walking the Line: Don't Coach Your Experts (Re: Apple v. Samsung)

Posted by Ryan Flax on Tue, Apr 29, 2014 @ 01:49 PM

 

bdo not coach expert witnesses apple samsungy Ryan H. Flax, Esq.
(Former) Managing Director, Litigation Consulting
A2L Consulting

Expert witnesses are a key component of almost every big-litigation. As litigators, we rely on the evidence developed by our expert witnesses, presented as their testimony opinions based on the facts, to show jurors or the court why our client should prevail. Well, it’s not as easy to do this as you think, because you can’t control your experts and you also can’t leave it up to them.

In federal court, experts are bound by Rule of Civil Procedure 26 to disclose the subject matter upon which they’ll testify in court. As litigators, it’s our job to make sure (1) the expert report is accurate and comprehensive to the needed expert testimony that serves the client’s litigation needs and (2) that the expert is well prepared to be deposed and then testify on the subject matter of that report. Even very experienced expert witnesses need intense help preparing for depositions and trial testimony.  Inexperienced expert witnesses require a ground-up education.

So what happens if that report, as it was served to opposing counsel when it was scheduled to be, doesn’t jive with what you need that expert to say in court? We have just received a free lesson in what not to do from Judge Lucy Koh in the current edition of the Apply v. Samsung patent litigation currently underway in the Northern District of California.

Just to lay a bit of foundation for this lesson – the case involves several patents of each company who accused each other of infringement relating to smartphone technology. One of the Apple patents covers the swipe-to-unlock feature of the iPhone, another covers a feature called “quick links” found in Apple’s devices. This later patent (No. 5,946,647 shown below) has just now been returned to the Samsung litigation based upon an order by the U.S. Court of Appeals for the Federal Circuit, which in an opinion last Friday (April 25, 2014) revived the patent by affirming a claim construction by Judge Richard A. Posner from a different case by Apple against Motorola – Judge Posner’s claim construction contrasted with that of Judge Luch Koh in the Samsung litigation. 

Confused? So was the judge and so were the parties and so were their experts.

quick links patent apple samsung“Quick links” refers to a software function that recognizes text and other things viewable on a smartphone, e.g., a phone number, an email address, a date, or a name, and provides an automatic link to other relevant functions in the phone, like dialing that phone number, drafting an email, adding a calendar event, or adding a contact. Earlier in the Samsung trial, Apple argued that the Motorola-related case information be excluded – Judge Koh agreed and, so, neither Apple nor Samsung presented evidence relating to the Judge Posner claim construction of the ’647 patent (a key to the divergent construction seems to be that a separate thing, called an “analyzer server,” is required as a go-between for the recognizable link and the related functionality).

With all the apparent confusion over the correct claim construction at this point, you could almost forgive Samsung’s expert for using an ultimately incorrect claim construction of the ’647 patent’s claims in his expert report (he followed the one Judge Koh made giving claim terms their plain and ordinary meaning, but he could have given alternate opinions based on the divergent constructions of Judge Posner).  What he cannot be allowed to do, and what Samsung’s counsel cannot be allowed to encourage, is to testify in the current case on an opinion not expressed in his expert report on the patent (and, apparently also not introduced in deposition testimony, which could have arguably opened the door to the issue).

expert witness apple samsung coached preparedAfter Samsung’s patent/technology expert, Kevin Jaffay, testified, “I have been using this [Posner’s] construction since the first day I worked on this case,” a “visibly angry” Judge Koh said, “[i]n his report, he does not adopt Posner’s construction and then he gets up on the stand and says he adopted it from day one.  I’m going to strike what he said.  I think he was primed to say that and that’s improper.”  (reported by Law360, B.Winegarner (subscription required)).

Not only did Judge Koh strike Samsung’s expert’s testimony on non-infringement of the ’647 patent, she didn’t refund Samsung’s time on the chess clock at trial, which may be a crippling one-two punch for an already-behind-the-8-ball-Samsung. Quite a sanction by an angry judge.

The take-home lesson from this series of events is multifold. First, experts are bound by their expert reports, but that doesn’t mean their expert reports must be limited in any specific way.  As counsel, when we work with our experts to outline the issues to be addressed in reports and then, potentially, testified to at trial, we should be strategic and tactical and keep our experts on track, but be open-minded, flexible, and do our best to plan for every trial contingency so we can include “outs” in the expert reports. Here, it appears that Samsung’s expert suggested that he had considered Judge Posner’s claim construction all along, but his expert’s report did not bear that out in any useful way and it made an enemy of the already-sensitive judge (about her claim construction).

Second, we all know that as counsel it’s our job to get our experts totally ready to competently and persuasively testify at trial. We need to spend hours and days and weeks doing this witness preparation and cover all bases of evidence and all contingencies for trial developments and cross examination. However, what we cannot do is put words in our expert’s mouth. This is the line we must walk. It is the expert’s job to present his own opinions on the facts under the law as we explain it to him. It is not the expert’s job to be our and/or our client’s mouthpiece.  The lines are clearer in other countries, such as the U.K., but the principle remains true that expert witnesses are akin to servants of the court and the legal system – they are not advocates, that’s our job as counsel. Make sure you stay on the right side of the line by preparing, not coaching your expert witnesses.

Other articles related to expert witnesses and the Apple v. Samsung litigation from A2L Consulting:

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Tags: Patent Litigation, Trial Preparation, Expert Witness, Judges, Claim Construction, Witness Preparation, Apple v. Samsung

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Authors

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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.


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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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