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The Litigation Consulting Report

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

How Creative Collaboration Can Help a Litigation Team

Posted by Tony Klapper on Mon, Apr 18, 2016 @ 11:32 AM


litigation_team_collaboration.jpgby Tony Klapper
Managing Director, Litigation Consulting
A2L Consulting

I was reading the Washington Post’s Business section on Sunday morning, and a front-page article about Sean Parker caught my eye. Parker, dubbed “Silicon Valley’s Bad-Boy Genius,” co-founded Napster and was the first president of Facebook. He was also played by Justin Timberlake in “The Social Network.” Far from a routine business profile, this article provides several fascinating lessons concerning the importance of creative collaboration.

Apparently tired of catering to the entertainment needs of millennials, Parker recently launched the Parker Institute for Cancer Immunotherapy. Although it was notable that Parker invested $250 million to support groundbreaking research into eradicating a disease that kills millions each year, even more important is his model of creating a “sandbox” for scientific research. At press time, six premier medical research institutions—Stanford, Hopkins, MD Anderson, UPenn, UCSF, and UCLA—had signed up to be part of the consortium that Parker is creating to fight cancer. The premise behind the effort is that working together in the sandbox is far more effective than working alone. That truism is not one that is always followed.

I have worked with some great litigation teams over the past 20 years—teams that constantly encourage fresh ideas and reassessment of the facts; that meet and openly share ideas; that reward free expression and discourage groupthink. But I have also worked with teams that do none of these, where the lead lawyers are either too egotistical or too insecure to foster the free exchange of ideas. It seems obvious that spending the time to brainstorm is a good thing, not a bad thing. But institutional factors and personality traits can often sabotage implementation of the obvious.

At A2L Consulting, we have a sandbox and we enjoy playing in it. When a new matter comes our way, we first individually get our arms around it, and then we meet. Whether at the table in a conference room, in front of one of our many whiteboards, or on a conference call, we work together, each of us bringing his or her own unique perspectives and experiences to bear. Our owner has been providing litigation consulting services since the mid-1990s; our lead Ph.D-educated jury consultant has been doing this work for over 30 years; I have been in the trenches on a diverse array of cases for 20 years; and our team of litigation graphic artists have collectively been at this for decades. Not only can collaboration be fun and rewarding; it brings a better product to the table.

That’s also the beauty of the consulting business itself. To be effective consultants, we always ask our clients to tell us the best and worst about their cases and to tell us the best and worst of our performance as consultants. Similarly, we are not afraid to offer our own perspective on the strengths and weaknesses of our client’s arguments and to offer constructive critiques on their presentations. We all become better when we share, openly work together, and move beyond the barriers of ego.

Having a sandbox and being able to play nice in it constitutes the beginnings of collaboration. Sharing ideas, pressure-testing them, and brainstorming about new ones is the hallmark of creativity.

Other A2L Consulting articles related to effective litigation team management, creative collaboration, and getting great litigation results:

litigation consulting graphics jury trial technology

Tags: Litigation Consulting, Litigation Management, Litigation Support, Management, Leadership

The Top 6 Litigation & Persuasion Focused Articles of Q1-2016

Posted by Ken Lopez on Tue, Apr 12, 2016 @ 03:48 PM


6_top_litigation_and_persuasion_articles.jpgby Ken Lopez
Founder/CEO
A2L Consulting

The first quarter of 2016 was one of A2L Consulting busiest in our 20+ year history. Not only was business up, visits to our web site increased 10% over the first quarter of 2015, and our Litigation Consulting Report Blog reached 8,000 subscribers. These metrics suggest that the litigation industry, particularly the big-ticket litigation segment, continues to perform well.

The growth in the number our blog subscribers is truly eyeopening. Just a little more than year ago we were celebrating reaching 5,000 subscribers. I still find it completely amazing that about 200 people sign up for our award-winning litigation and persuasion-focused blog every month.

Since we launched this publication that now sees more than 250,000 visits every year, hundreds of new clients have found their way to A2L and thousands more have benefited from the information we have shared here, from free articles to free e-books to free podcasts to free webinars. Five years ago, I thought the whole idea of blogging was misguided, and boy, was I wrong.

To enhance our reader's experience, each quarter we help surface those articles have been "voted" the very best in the most recent quarter. That is, if we publish 25 articles in a three-month period, some are going to be viewed more often than others, and these are effectively voted the very best.

These six articles below were voted the very best by our readers in the first quarter of 2016.

CBP1210903.jpg6.  Millennials and Jury Psychology: Why Don't They Follow the Rules?A jury consultant analyzes the jury psychology of Millennials (born between 1981 and 1996) and focuses on this generation's distrust for authority.











CBP1030985.jpg5.  A Jury Consultant Is Called for Jury Duty: A well-known jury consultant finds herself in a Manhattan courtroom as a prospective juror and describes her experiences.







CBP1104355.jpg4.  3 Trial Preparation Red Flags That Suggest a Loss is Imminent: Some trial team behaviors during trial preparation are leading indicators for a loss at trial. Here are three that are consistent red flags.











tony-klapper-welcome-litigation-consultant-litigation-graphics.jpg3.  9 Things I've Noticed About Effective Litigation Graphics After 20 Years as a Litigator: A top litigator with 20 years of trial experience shares his views on litigation graphics today: What are the best techniques?








cuddy-presenting-win-litigator-belief.jpg2.  A Harvard Psychologist Writes About Presenting to Win: Harvard psychologist Amy Cuddy released a new book called Presence, and it is filled with a wealth of useful information for litigators about persuasion.




Screen_Shot_2016-03-23_at_10.22.12_AM.png1.  5 Things TED Talks Can Teach Us About Opening Statements: A presentation expert analyzed what makes certain TED Talks successful. The same principles -- use hand gestures! -- apply to opening statements.

 

 



 

opening statements toolkit ebook download a2l

Tags: Trial Presentation, Jury Consulting, Litigation Consulting, Litigation Support, Jury Consultants, Articles, Jury Selection, Opening, Body Language

10 Times You Should Switch Litigation Consultants

Posted by Ken Lopez on Mon, Mar 28, 2016 @ 10:11 AM


fire litigation consultants highest ratedby Ken Lopez
Founder/CEO
A2L Consulting

In 20 years in the litigation consulting business, I've seen a lot of successful trial teams and some that are not so successful. A team that is successful needs good leadership. In fact, good leadership and good preparation are the best predictors of a trial team's success.

We've written before about effective trial team leadership and even released an e-book on good litigation leadership skills. Good leaders force timely preparation, they delegate effectively, and they put their egos aside in the interests of a successful outcome.

One important challenge for good trial team leaders is knowing when to make changes to the team. These changes can amount to anything from adding new lawyers to the team, removing lawyers and support staff, or even releasing vendors and hiring new ones. I have seen a fair number of litigation consulting firms removed at various stages of the litigation. Many times, we are the firm that is brought in to replace the removed firm.

An important part of the work of a good trial team leader is to ensure that a good litigation consultant is chosen. This is not an easy decision. Many companies that claim to be top litigation consulting firms are actually nothing more than trial technology firms or everyday graphic arts firms. The list of high-quality providers can be counted on one hand. So, unless you have first-hand knowledge about a firm and the people you'll be working with, there are plenty of ways to make mistakes. Fortunately, these can be corrected if you have a good reason and the courage to make the change.

By far the biggest reason I have seen firms removed from their roles in jury consulting or litigation graphics consulting is a lack of creativity. This is understandable because creativity is a hard thing to judge before you work with someone. Often these removals occur after one phase of the litigation and before the next. For example, in patent litigation, we are often brought in for the trial after another firm provided no meaningful suggestions or advice to counsel in the pretrial phases of the case.

I've also seen many examples where we are brought in after remand for the second bite at the trial apple. Sometimes a trial team says they just didn't get any value from their litigation consultants

There are many reasons a trial team would need to switch litigation consultants as they prepare for a mock trial or litigation graphics. It must not be forgotten that this type of switch is an extreme outcome that runs the risk of doing harm. It shouldn’t be undertaken lightly.

  1. Yes people: I actually had the CEO of a competitor once ask me, “Why would I give litigators advice?” I indicated politely that his instincts were correct. HE shouldn’t do so. There are many like him in the industry. They can be a source of support if you’ve simply hired them to run your PowerPoint during an opening statement. Some just have no business taking the extra step and adding value, because bad advice is worse than no advice.

  2. Missed deadlines: On my first day of law school, my criminal law professor stopped a student trying to enter class late. He said, “You are attempting to enter the only profession in the world for which you can go to jail for being late.” There is never an excuse for being late.

  3. The creatively challenged: It’s common for technology people to masquerade as visual persuasion consultants. They should be pretty easy to detect. See Why Trial Tech ≠ Litigation Graphics16 PowerPoint Litigation Graphics You Won't Believe Are PowerPoint, and 21 Reasons a Litigator Is Your Best Litigation Graphics Consultant.

  4. The jury hack: As a top jury consultant wrote, there is no license required to become a jury consultant. So there are many “consultants” who are simply not qualified to gather data in a sophisticated way. Some trial technicians try to offer advice on a jury during voir dire. This is litigation consulting malpractice in my view. See, 6 Secrets of the Jury Consulting Business You Should Know and No Advice is Better Than Bad Advice in Litigation.

  5. Inappropriate behavior: I've seen trial technicians get drunk, I've seen affairs start in the war room, and I have seen some truly ethically depraved behavior behind the scenes at trial. Like the employee who attempts to steal clients, chances are that these behaviors will be repeated in other aspects of their lives, and you just have to avoid people like this. See, 5 Signs of a Dysfunctional Trial Team (and What to Do About It).

  6. Blaming: Some people are expert in playing politics. Trial is too intense an environment to have these types of people around. If I saw this behavior in a litigation consultant (and I have), I’d get them out immediately.

  7. Poor communications: One of the joys of working around Biglaw or at least big-ticket litigation is how well educated everyone is. As a result, most people write well, can work through issues quickly, and can understand people quickly. If your litigation consultant does not fit that profile, they are like a flaw in your perfectly aerodynamic trial vehicle.

  8. Lack of confidence: I like someone who says, “I don't know.” It's the ones who don't know and don't say that make me nervous. If one of these folks is around the trial team they can suck energy away.

  9. Can’t communicate differences well: Disagreement should be encouraged up to a point. Good litigators want their answers questioned (by the right people) after all.

  10. Lack of resourcefulness: I solve projects under pressure very well, and so do the people who work with me. But not everyone is like that.

Other A2L Consulting articles related to trial preparation, getting value of litigation consultants, and litigation team management:

litigation consulting graphics jury trial technology

Tags: Trial Consultants, Jury Consulting, Litigation Consulting, Trial Consulting, Litigation Support, Jury Consultants, Awards

5 Things TED Talks Can Teach Us About Opening Statements

Posted by Ken Lopez on Wed, Mar 23, 2016 @ 11:20 AM


TED Talks lawyers opening statements persuasionby Ken Lopez
Founder/CEO
A2L Consulting

Last week, I wrote about a new book that proposes a variety of life, body, and brain hacks to make us more persuasive. That book is written by Amy Cuddy, one of the top TED speakers of all time. I think the lessons she teaches are incredibly valuable for litigators looking to maximize persuasiveness during their opening statements.

So, you might ask, what makes a good TED Talk a great one? After all, some TED Talks have tens of millions of views, while others on equally interesting topics have far fewer views. I am a big fan of TED Talks, and I have highlighted some aspects of them in previous articles such as The Top 10 TED Talks for Lawyers, Litigators and Litigation Support and The Top 14 TED Talks for Lawyers and Litigators 2014.

If you happen not to know what TED Talks are, they are simply short talks, generally combined with some visual support, that are sponsored by TED, a nonprofit foundation. TED Talks have become the gold standard for thoughtful, innovative presentations to lay people in many areas of endeavor.

Last year, Vanessa Van Edwards, an expert on presentations and on human behavior, studied what makes a great TED Talk, and the results are a mix of fascinating and frightening for most people. I say frightening since many of these results fly in the face of the conventional wisdom.

Of course, as someone who lives and breathes trial presentations, I have a bit of an agenda here. I think that each of the lessons that Van Edwards gleaned from the elements of a great TED Talk are perfectly analogous to great lessons for how lawyers should make an opening statement. So, here are her five key findings:

  1. The speakers’ nonverbal body language is as important as what the speakers said. This finding is quite consistent with what Amy Cuddy found in her studies. Here however, study participants ranked speakers exactly the same whether the audio was turned on or not. That's right, what people said, did not particularly influence how much a speaker was liked. Remember a key difference here between a TED Talk and an opening statement. Jurors are asked specifically to make a decision about the facts and law - not only about whose message, style, and charisma they like best.

  2. The more hand gestures used, the more the speaker was liked. Specifically, lower ranked TED Talks had an average of 124,000 views and those speakers used an average of 272 hand gestures during an 18-minute presentation. Top TED presenters had an average of 7,360,000 views and used an average of 465 hand gestures. These first two findings point to a clear need to gesture more – but as Amy Cuddy tells us, it has to be authentic. This is no easy task, and practice is the only way to train yourself to be truly authentic. See, Practice, Say Jury Consultants, is Why Movie Lawyers Perform So Well and 3 Ways to Force Yourself to Practice Your Trial Presentation

  3. Vocal variety generates higher charisma and credibility ratings. Speakers who appeared to speak from a script were disfavored, while those who changed pitch, altered pacing, and varied volume were rated much higher than those who did not.

  4. Smiling gets more likes. The more someone smiles in a TED context, the better they are received as a speaker. Does this translate to an opening statement? I’m not so sure. It would really depend on the subject matter I would think. After all, smiling during the recitation of a terrible fact pattern certainly will not be rewarded. However, on balance, where there is opportunity to do so, smiling will add to likeability. See also, Like It or Not: Likability Counts for Credibility in the Courtroom.

  5. Your first seven seconds determine how the rest of your message is received. Clearly, this is true during opening statement or even during voir dire. You will be judged by your opening line, how you deliver it, and your appearance. That snap judgment will likely color the impression of your message for the reminder of the case.

 Here's a great video from the study's author that adds color to this topic. 

Additional articles and resources from A2L Consulting about opening statements, persuasion, practice, and whether being liked by your jury really matters:

opening statements toolkit ebook download a2l

Tags: Trial Presentation, Courtroom Presentations, Presentation Graphics, Psychology, Persuasive Graphics, Visual Persuasion, Opening, Persuasion

Using Visual Persuasion to Emotionally Move Your Audience

Posted by Ken Lopez on Wed, Mar 16, 2016 @ 09:51 AM


visual persuasion flight safetyby Ken Lopez
Founder/CEO
A2L Consulting

The importance of developing a strong narrative in your case is well-established by science and by what we have all observed in the actions of jurors in real cases. In spite of the law that may be against you, in spite of the facts that may be against you, a high-quality narrative can win a case.

We've written about this extensively and articles like Storytelling Proven to be Scientifically More Persuasive, 5 Essential Elements of Storytelling and Persuasion, and $300 Million of Litigation Consulting and Storytelling Validation provide a good background on the power of story, whether in a case tried to a jury or to a judge.

Great litigators don't push back on the need for story anymore. Indeed, they arrive at our doors in quest of ways to fine-tune their narrative and make it more convincing. We help them by testing any number of possible approaches, by conducting practice opening statements, and by developing a persuasive visual presentation for the litigators.

One bit of pushback that we do continue to hear is about injecting emotion into a case. Particularly from defense-side clients, we hear that all that’s needed and appropriate is a narrative – but that in this particular case, the narrative need not be compelling and emotional.

The dispute is not over whether emotional appeals are helpful in general; most litigators agree with us that they are. The dispute relates to the question of whether there is any plausible emotion to squeeze out of a particular case. After all, many of our cases are seemingly dry patent cases, contract cases, or product liability cases. Just explaining the issues in a nontechnical way is time-consuming and difficult. How would one go about adding emotion?

Well, it’s not as difficult as you may think. I saw this video recently that can indisputably show litigators that even the driest material can have an emotional story attached to it.

Of all things, it is an air safety video, the type you’ve seen dozens of times on plane flights, and ignored dozens of times. It is the safety video you now see when you prepare for takeoff on Qantas Airlines. Even though I'm in the emotion-driven litigation consulting business and I am accustomed to finding emotional levers where others might not, I still think this simple video is a wonderful achievement. Take a look.

We're all familiar with the messages in this video and we've even probably seen other videos like it. And that's the point. Notice how this one makes you feel. It makes you pay attention and stay engaged.

If emotion can be used, appropriately, to remind you to fasten your seatbelt, it can also be used to convey strong feelings about a courtroom presentation. I invite you to ask us how we might do that for your trial team.

Other articles and resources related to litigation consulting and storytelling on A2L Consulting's site:

Tags: Litigation Consulting, Psychology, Storytelling, Persuasive Graphics, Visual Persuasion, Emotions, Persuasion

A Harvard Psychologist Writes About Presenting to Win

Posted by Ken Lopez on Mon, Mar 14, 2016 @ 04:59 PM


cuddy-presenting-win-litigator-belief.jpgby Ken Lopez
Founder/CEO
A2L Consulting

I wrote about Harvard psychologist Amy Cuddy's body language TED Talk in 2012. Her findings about how striking a power pose can measurably affect your persuasiveness are as relevant for litigators today as they were four years ago.

Professor Cuddy has released a new book called Presence, and it is filled with an even greater wealth of useful information for litigators. She goes into detail about what one can do to prepare for a high-pressure situation like a job interview, a competitive swim meet, or a venture capital pitch - all situations similar enough to an opening statement that we can safely assume the same advice applies.

When one is delivering as their best self, they are said to be exhibiting "presence." She says that presence is most clear to others when "we feel personally powerful, which allows us to be acutely attuned to our most sincere selves." In other words, when we believe in our message and believe in ourselves, we are in fact scientifically more believable to others - and there are ways to hack your own brain, like the power pose, to make these findings work for anyone.

Make no mistake, presence is not about feigning confidence or passion. Instead, exhibiting presence is more like being in sync with your true self. For these techniques to work and for you to maximize your persuasiveness in the courtroom, you really must authentically believe in yourself. But how?

Her suggestions for achieving presence are not conjecture. Cuddy roots her advice in solid science and rigorous study. For example, one study involved analyzing videos of 185 pitches to venture capitalists. In this setting, much like the courtroom, there is a clear winner and loser. Key behaviors (all sub-elements of presence) of all the presenters were assessed and compared with those who were successful in getting venture capital funding. 

The results are fascinating. Four factors clearly dominated all others in determining who got funding:

  1. Enthusiasm
  2. Confidence
  3. Passion
  4. Lack of Awkwardness

If you think about the great opening statements (and the worst) you have seen, don't these factors just make perfect sense? Doesn't that last point, in particular, resonate with some experiences you've seen (and hopefully not had) in the courtroom? For me, it certainly brings up memories of poor uses of PowerPoint, courtroom technology failures, and litigators who flubbed all sorts of things in front of a judge or jury.

Cuddy goes on to discuss a study involving mock job interviews where the candidates have to speak for 5 minutes to a group of judges who, by design, appear stoic during the entire interview. Some of the interviewees prepared by using a variety of mind and body power-enhancing techniques and some did not. Like the VC funding study and others discussed in the book, the findings of this study offer key lessons for litigators.

It turns out that you can cause others to see you as more persuasive by practicing a few key physical and mental exercises in advance of delivering your message (e.g. your opening statement). Of course, these findings apply to any high stress situation where you must be persuasive or "on."

If you want to increase your presence and thus your persuasiveness, practice some or all of these behaviors in a quiet place when no one else is watching you:

  1. Make Belief: Professor Cuddy encourages that, based on scientific studies, those going into stressful situations where persuasion will be critical, should first conduct this short three-part exercise. Step one is to identify several personal values that are important to you that you know are valued by others about you. Next, identify that value or trait that you rely on most (for me, I value my ability to deliver creative thoughts very quickly). Now, reflect on a time when you did that very well. This exercise tricks your brain into getting into a state of increased power and confidence so that you come across as more persuasive.

  2. Convey Confidence to Yourself: Before your next opening (or mock opening), assume a superhero-like power pose or a victory post for a couple of minutes. Just this act will significantly increase testosterone and decrease stress hormones.  Also, before walking into the courtroom, avoid working in a hunched position, as you would when looking at your phone. Doing so causes your brain to behave in a less powerful and confident way. If you are anxious, trick your brain into treating that anxiety as a positive by repeating, "I'm excited, I'm excited, I'm excited." 

  3. Act as if: Related to the above two concepts is the idea that we really can fake it until we make it. As Cuddy analogously explains throughout the book, if you act as though you have won your case before you walk into the courtroom, as you walk into the courtroom, and throughout the entire case, the natural swagger that this will cause you to exhibit will make you more persuasive.

At A2L, we're not usually hired to increase a litigator's presence, but we often end up delivering that result. You might ask how does a litigation consulting firm like ours help litigators achieve presence? Well, by helping litigators develop their presentations, making them highly persuasive, testing the presentations, practicing the presentations, and doing all the aforementioned work while being encouraging and not critical, we normally send a litigator into battle more confident than ever. It's exactly the kind of authentic from-the-inside kind of confidence that helps a litigator be more persuasive. 

One of our mottos at A2L is that "We Make Belief." I bet Amy Cuddy would approve of our approach.

Other articles from A2L Consulting about trial presentation, trial preparation, and courtroom presence include:

 

opening statements toolkit ebook download a2l

Tags: Trial Presentation, Courtroom Presentations, Mock Trial, Litigation Consulting, Trial Preparation, Psychology, Practice, Visual Persuasion, Opening, Persuasion

Jury Selection Psychology: Beware of Sleeping Jurors – They’re Like Sleeper Cells

Posted by Laurie Kuslansky on Fri, Mar 4, 2016 @ 09:25 AM

jury selection psychology;  jurors; mock jury; jury consulting; jury studies; juries; jury psychologyby Laurie R. Kuslansky, Ph.D.
Managing Director, Jury & Trial Consulting
A2L Consulting


Invariably, despite excellent presentations at mock trials, some observers serving as mock jurors fall asleep. The typical response by clients is to ask us to wake them up, which we often do, but with limited success, as they tend to fall back asleep. The myth, debunked time and again, is that these people aren’t taking it seriously, aren’t taking it in, aren’t paying attention, and will have nothing to contribute as feedback. In fact, we have found that this is almost always contradicted by what ensues.

Contrary to what one observes with the naked eye, sleepers have heard more than you think, and certainly have taken in enough in their minds to reach a conclusion. They have fallen asleep because they are “done” and don’t feel as if they need or want more information. Perhaps they find the information boring, repetitive or superfluous, but nonetheless, once deliberations start, clients are amazed to hear what these people say and do. They speak up! They voice well-formed opinions supported by some facts. They don’t ramble and don’t stay quiet in the shadows as one might expect.

The insights of jury psychology tell us that these jurors tend to be very verbal and on point, whether friendly or hostile. At some point in the presentations, one of the parties lost them for good. Funny enough, in over 30 years, we have never heard another juror mention as a counterattack – “What do you know? You were sleeping the whole time!”

Understanding this phenomenon means you should not overlook those jurors in jury selection who seem to sleep either, because they are a few strikes away from being on your jury. They may be susceptible to a variety of cognitive biases we have discussed in prior publications.

Instead of making assumptions about them, find out, if possible, if any prospective jurors work the day shift or have any medical condition that might prevent them from staying awake and alert at trial. If they do not, but still seem sleepy, pay extra attention to how the sleepers answer other voir dire questions. Assume they will have some say in deliberations, rather than dismiss them as low risk because they will sleep. That’s a falsehood. If you take these precautions, we hope you have sweeter dreams and a sweeter reality at trial.

 

Other A2L Consulting articles and resources related to jury selection, voir dire, mock trials and jury consulting:

jury consulting trial consulting jury research

 

 

Tags: Jury Questionnaire, Jury Consulting, Juries, Jury Consultants, Voir Dire, Jury Selection, Psychology

3 Trial Preparation Red Flags That Suggest a Loss is Imminent

Posted by Ken Lopez on Wed, Mar 2, 2016 @ 09:24 AM


trial preparation red flags litigator behavior loss associatedby Ken Lopez

Founder/CEO
A2L Consulting

In 20 years as a litigation consultant, I’ve personally seen hundreds of litigators try cases, and I have heard the observations of my colleagues on other cases, probably amounting to thousands of cases in all. So I’m in a pretty good position to evaluate what works and what doesn’t work, based on a non-scientific study of trials and trial teams.

One might think that a litigator who has been living and breathing a case for years is more likely to win a jury verdict than a litigator who has just been brought in for the trial. But I just don’t see that. Litigators do well in both situations. It is true, however, that trial teams that prepare longer and harder for trial are more likely to win.

There are, however, some trial preparation patterns that constitute “red flags” and indicate to me that a trial team may be headed for trouble. Here are three of them.

1) Extensive debates among the team about font, color, and PowerPoint templates. This often spells trouble. For example, if your litigation graphics shop (likely experts in visual persuasion) have produced more than 10 PowerPoint template/font/color combinations, and the merits of each are still being debated by the lawyers, the team is likely focusing on the wrong thing. Now a healthy debate about color, fonts, and templates can be OK. But don’t forget that there’s no real scientific agreement on what colors or fonts are persuasive, and also remember that some litigation graphics shops are experts in the nuances of color theory, font choice, and visual persuasion. So, when I see a litigator spending weeks on a template, I know we're in trouble.

2) Secretiveness about the case. Sometimes we see clients who are hesitant to talk about their case or who bristle when asked, "How could the opposition win?" The best litigators want to have their answers questioned. They are the furthest thing from yes-men or yes-women. See $300 Million of Litigation Consulting and Storytelling Validation to understand the kind of work some high-end litigators put in to generate a win.

3) Infighting between law firms. Once this breaks out, the real battle becomes which law firm will triumph rather than which side of the case will triumph. It almost always leads to a loss. If there is the slightest whiff of this behavior, in-house counsel must step in and eliminate it immediately. Allowing this sort of "drama" to persist simply increases the likelihood that the corporate budget for the arts is about to increase markedly (in the form of a losing verdict). See 5 Tips for Working Well As a Joint Defense Team.

However, all these behaviors, in my experience, can be reversed. Very often, they are simply tactics to avoid dealing with a real problem in the case. Good mock testing and good recognition of the behaviors as they are happening can often save a case in trouble. Sometimes, it is up to in-house counsel to assert their leadership and eliminate these behaviors.

Other A2L articles and resources about litigation leadership, in-house counsel, and trial preparation include:

in-house counsel litigation toolkit e-book free download

Tags: Trial Graphics, Litigation Graphics, Mock Trial, Demonstrative Evidence, Litigation Management, Trial Preparation, Leadership, PowerPoint, In-House Counsel

Jury Research and Mock Trials During Presidential Elections

Posted by Laurie Kuslansky on Fri, Feb 26, 2016 @ 11:32 AM

jury research mock trials
by Laurie R. Kuslanksy, Ph.D.

Managing Director, Jury & Trial Consulting
A2L Consulting

The litigation arena competes with the political arena in presidential election years. Everyone including large pollsters, such as Pew Research and Quinnipiac, major networks, each political party, each candidate, and myriads of social scientists and politically-interested entities are conducting research using the same resources - i.e., your potential mock jurors and facilities.

Many services for conducting mock trials and other forms of jury research, including focus groups, online surveys, telephone surveys, ballroom studies (large format live research involving potentially hundreds of live mock jurors) and “mall intercepts” (in-person interviews) are called upon by political campaigns, pollsters and other interested parties.

Both camps need:

  1. Recruiting of research subjects
  2. Eligible adults to serve as subjects
  3. Focus facilities for space to conduct live research
  4. Online and phone survey implementers

What is the impact on people interested in conducting jury research in a Presidential election year?

Due to a finite supply and increased demand:

  1. If you want a specific date to do jury research, don’t depend on short lead time or rushes to get it. Availability is more limited than normal as there are many others in line for the same services and space. Instead, plan and prepare better instead of waiting till the last minute;

  2. Recruiters are requesting longer lead time in which to solicit mock jurors, so allow extra time to do this, including preparing in advance a list of involved people and entities with whom any affiliation or knowledge should preclude a potential mock juror from participating (“Terminants”). This can be done leisurely while other details are being hammered out, contracts await being signed, and payment is being arranged;

  3. Comparison shopping is more difficult and less effective in price negotiating. If you plan and commit to doing jury research earlier, you can avoid this loss of leverage. The closer to the date that you seek options, the less you can optimize your choice and the more you are bound by simply what is available, if anything.

  4. Survey subjects are harder to come by, especially in areas laden with caucuses or anywhere highly politically engaged.

In short, avoid coming up short by understanding that you need to plan earlier and work more efficiently in the event you may or will conduct jury research. Doing so will put you at the head of the line and save money on the bottom line.

I vote for clients enjoying strategic planning, cost effectiveness and freedom of choice. You?


Other articles related to jury research, mock trials, and jury consulting from A2L Consulting include:

jury consulting trial consulting jury research

Tags: Jury Consulting, Mock Trial, Juries, Jury Consultants, Jury Selection

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Authors

KenLopez resized 152

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


tony-klapper-headshot-500x500.jpg 

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


dr laurie kuslansky jury consultant a2l consulting







Laurie R. Kuslansky, Ph.D., Managing Director, Trial & Jury Consulting, has conducted over 400 mock trials in more than 1,000 litigation engagements over the past 20 years. Dr. Kuslansky's goal is to provide the highest level of personalized client service possible whether one's need involves a mock trial, witness preparation, jury selection or a mock exercise not involving a jury. Dr. Kuslansky can be reached at kuslansky@A2LC.com.

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