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The Litigation Consulting Report

In-House Counsel's Role In Keeping Litigator Ego In Check

Posted by Ken Lopez on Fri, May 22, 2015 @ 02:57 PM

 

litigator-ego-id-inouse-counsel-winning-managementby Ken Lopez
Founder/CEO
A2L Consulting

I've seen litigator ego contribute to the winning of cases and the losing of cases. Unfortunately, however, I've seen more cases lost because of it than won because of it.

What do I mean by the ego of a litigator? If you've worked around litigators (or litigation consultants for that matter), you already know what I mean. For anyone else, I'm referring to all those first-chair litigators in trial-related situations who put themselves ahead of the client's best interests.

The best definition I have found of “ego” is "the idea or opinion that you have of yourself, esp. the level of your ability and intelligence, and your importance as a person." 

In litigation, we see how ego can play both good and bad roles. Sometimes the presence of ego leads to good outcomes, as it is at least in part ego that allows a litigator to ignore the advice of a client who may be too close to their problem. More often, however, we see ego show up in ways that are counterproductive for the client. For example, in situations where:

  • First-chair waits until the last minute to prepare the opening
  • First-chair prepares the opening alone
  • First-chair rules the trial team with an iron fist
  • First-chair berates fellow members of the trial team
  • First-chair refuses to practice opening and closing statements
  • First-chair won't do a mock exercise for fear of looking bad
  • First-chair does things the way they have been doing them for 30 years

What's wrong with all of these situations? Well, one way or another, they are all bad for the client. Worse, 90 percent of the time, the client has no idea that this is happening. So, what is a client to do?

For the past year, I've been encouraging Fortune 500 in-house clients to get more involved in trials than they have been over the past 30 years. While there are exceptions, most big companies simply hire their litigator buddies or those who have generated good results in the past and then just step out of the way.

I think that was the right approach for a long time, and most of the time, it's still a useful mindset. However, I prefer to see clients treat their outside litigators as a good manager would. That is, they should delegate effectively AND they should hold the client accountable.

I wrote about 25 Things In-House Counsel Should Insist Outside Litigators Do a number of months ago, and it has been a very popular article. The follow-up In-House Counsel Litigation Toolkit has been downloaded over 1,000 times since its December release. These and other resources speak to the concept of delegating effectively. That is, it is important to explain to outside counsel which decisions are, in corporate speak, root, branch and leaf level delegation decisions. It used to be the case that everything except settlement was delegated to outside counsel, but those days are long gone. The same is true for holding people accountable. You must follow up to make sure it gets done the way you want it done. 

There are several things I think in-house counsel must insist on to make sure that ego does not interfere with the outcome of the case.

  • Practice - either in the form of a mock trial or just an open practice session where in-house counsel participates.
  • Storytelling - in-house counsel must hear a compelling narrative from outside counsel as soon as possible, at least many months before trial.
  • The Company’s Story – in-house counsel should make sure the company’s story is being articulated in such a way that it does not cause harm in another case, in the press or with investors. 
  • Consultation – even the most brilliant trial lawyer should consult with his or her client about key strategic decisions in the trial.

It is true that these ideas don’t represent the way things were done 30 years ago. But juries and trials and companies are not the same as they were 30 years ago.

Other articles related to in-house counsel, trial teams and litigation management from A2L Consulting include:

in-house counsel litigation toolkit e-book free download

Tags: Jury Consulting, Mock Trial, Litigation Consulting, Jury Consultants, Psychology, Storytelling, Practice, Opening, In-House Counsel

7 Things In-House Misses When Litigation Consultants are Underutilized

Posted by Ken Lopez on Wed, May 20, 2015 @ 01:08 PM


litigation-consultants-for-in-house-counselby Ken Lopez
Founder/CEO
A2L Consulting

I think that a lot of in-house counsel don’t know that litigation consultants exist in the role that they play today. Trials are so rare these days that this is understandable. But high-quality litigation consultants are in business quite precisely because trial is so rare.

Top litigation consultants go to trial dozens of times per year, while even the best and highest-profile litigation attorneys go to trial once every several years at most.

Litigation consultants help inform litigators about new trends both in rhetoric and in visual presentation and help provide litigators with a knowledgeable sounding board. They are trusted advisors focused on winning. Yet many top litigators are resistant to using litigation consultants or, if they have them, they don't use them to their best advantage.

I'm pretty sure that any in-house counsel would see the value of hiring someone simply to offer opinions about the case, who either has been a litigator or is a jury consultant with tons of trial experience. Common sense tells you this is good for the client. Yet many litigators still resist.

Can you imagine an athlete who used to play a game many times a year who takes a multi-year break not using a coach of some sort to come back up to speed? It wouldn't make sense. Yet in-house counsel allow litigators to do this all the time.

Here are seven useful insights that the client misses out on when litigation consultants are underutilized.

1. The power of storytelling. We know that jurors learn and understand a case by viewing it as a story.

2. The structure of storytelling. A story needs to have a distinct beginning, middle and end.

3. The most persuasive order to present a case. An experienced consultant knows how to build a case in a persuasive way.

4. Practice. Simply by acting as a sounding board, a top consultant induces a trial lawyer to step up his or her game by constant practice.

5. A good visual strategy. Most litigators understand trial practice but they are not familiar with the latest research on how to present ideas visually.

6. Avoiding silly mistakes. Just one misconception, if it is not caught in advance by a consultant and shot down, can lose a case.

7. The insights of a person focused on winning not ego. Consultants have been in court hundreds of times. They know what wins.

in-house counsel litigation toolkit e-book free download

Tags: Litigation Consulting, Litigation Support, Storytelling, Practice, In-House Counsel, 3D Printing

10 AmLaw 100 Firms That Love to Learn

Posted by Ken Lopez on Mon, May 18, 2015 @ 11:08 AM

 

amlaw-100-best-love-to-learn-cleby Ken Lopez
Founder/CEO
A2L Consulting

There is a lot to learn from data, and these days data is everywhere. For better or worse, data can be available for everything from the number of steps you walked today to how long you took to read a particular Web page.

I recently took the time to assess how the AmLaw 100 law firms were interacting with our site, particularly with the articles on this blog. Some law firms are very active, and some hardly visit at all — and I think this information tells us a great deal about these law firms.

This data is interesting to me for many reasons. First, I’m interested in making sure that our articles appeal to the AmLaw 100 law firms, as just about every one of them has been a client of A2L Consulting at some point. However, I’m also interested in what the data says about the law firm itself. Is the firm interested in learning?  Is it serious about litigation? Is it set in its ways?

After more than 20 years of supporting top litigators, I find that there are litigators who like feedback from the courtroom experts on our staff, and there are litigators who simply want to do things their way. We work with both types, but our favorite is the former -- those litigators who say, “A2L, you're in court 50-100 times a year, and maybe I make it once a year, but it's not usually even that often any more. What advice do you have based on working with others like me, in similar cases and in this venue?”

In my experience, the litigators who present themselves and their cases this way are the ones who win most often. They have their own way of doing things, to be sure, but they are also open to taking a different approach when a high-quality idea is presented to them. Indeed, they solicit high-quality ideas and create an atmosphere where creativity happens.

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Our blog is written for people like that -- litigators who love to learn and want to improve their courtroom game. As an in-house lawyer said to me recently, “Many lawyers are trying cases the same way they did 30 years ago, but juries are deciding cases differently than they did 30 years ago.” Adapt or lose is the new mantra for high-end litigators.

If I were hiring litigators, this data would give me something to consider. After all, do you want the type of litigator who is flexible and staying up with the latest trends, or one who is set in his or her ways? Do you want one who is reading top litigation blogs with trial tips, or one who is satisfied with the old approach?

Below are two lists that rank the AmLaw 100 firms by the number of times that firm has watched one of our webinars or downloaded one of our litigation e-books. The second list shows how many verified and known visitors from that firm there have been.

Before telling you what the data reveals, I have some caveats. I’m only including data from verified visitors to our site whose identify we are sure of, based on their download history and other activity with our site. So the raw data is really a small sample of those who visit our site each month, since the vast majority of visitors have not left their name with us yet. Thus, the raw data understates the number of page views and visits considerably, probably by a factor of ten times or more. Since you have to provide your email, the number of downloads is quite precise and actually more telling except when someone has used Gmail. What is useful and interesting is how the law firms compare to each other. This data reflects about four years of visits.

These ten AmLaw 100 firms have downloaded more e-books and watched more webinars than the other 90 firms in that comparison group.

  1. Greenberg Traurig
  2. Jones Day
  3. K&L Gates
  4. Kirkland & Ellis
  5. Fish & Richardson
  6. Ogletree Deakins
  7. Kilpatrick Townsend
  8. Jackson Lewis
  9. Fox Rothschild
  10. Lewis Brisbois

These ten AmLaw 100 firms have viewed our site more than any other of their peer firms.

  1. Greenberg Traurig
  2. Fish & Richardson
  3. Haynes and Boone
  4. Kirkland & Ellis
  5. Jones Day
  6. Ogletree Deakins
  7. K&L Gates
  8. Pillsbury
  9. Latham & Watkins
  10. Bryan Cave

Interestingly, there was only one AmLaw 100 firm that showed no verified visitors, no downloads, and no one subscribing to our litigation blog (there are 6,600 subscribers). It's a big DC firm that we have a 100% win rate against in repeated cases over many years. Correlation? I sure think so.

Other articles related to best-practices, the role of in-house counsel guiding outside litigation counsel and continuous learning:

opening statements toolkit ebook download a2l

Tags: Litigation Graphics, Trial Presentation, Litigation Consulting, E-Book, Webinar, Articles, Trial Preparation, In-House Counsel, CLE

The Top 10 Litigation Articles From the Start of 2015

Posted by Ken Lopez on Tue, May 12, 2015 @ 10:50 AM

 

top-10-litigation-articles-early-2015by Ken Lopez
Founder/CEO
A2L Consulting

We publish a lot of articles on this blog here at A2L Consulting. Sometimes we publish so many that it’s not easy to decide which ones to read first.

That's why once a quarter we do a mini-retrospective of the best articles based on what our readers choose to look at. Our theory is that the more people that read an article, the more compelling and the better it is. All these articles relate in some way to persuasion: Why expensive-looking litigation graphics are better than inexpensive-looking ones, why you are less persuasive when you are using clichés, how people obtain trial experience these days when most cases don’t go to trial.

We think this also helps our readership sort through the very best of our content by relying on the votes of 6,600 fellow subscribers as indicated by their reading habits.

In the first quarter of 2015 we published 21 articles. The top article was read more than 4,000 times (so far).

Interestingly, the most-read article was about the famous “blue and black dress” that became an Internet meme, and what kind of trial evidence would be admissible to show what color the dress actually was. This tells us that people are fascinated not only by the dress and the optical illusions that it invoked, but also by the facts that the human mind and eye can easily be fooled and that evidence is necessary to solve the issue of the color of the dress. When you ask, what sort of evidence is necessary, you are already asking the question that a trial lawyer would ask.

The second most popular article described what in-house counsel often say about trial lawyers in major law firms. Again, the key was persuasion. Many in-house counsel said that what persuaded jurors 30 years ago is no longer what persuades them today. Many said that the details of the law were far less important than the need to tell a persuasive story at trial.

The third most-read article dealt with the well-known techniques of persuasion. Among them are the need to entertain the audience, connect with the audience, and respect the audience.

Here are the top trial and litigation consulting articles, in inverse order of how popular they were:

10. New and Free E-Book: The Voir Dire Handbook

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9. How PowerPoint Failures in Demonstrative Evidence Can Sink a Case

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8. How To Find Helpful Information Related to Your Practice Area

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7. Why Expensive-Looking Litigation Graphics Are Better

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6. How to Make PowerPoint Trial Timelines Feel More Like a Long Document

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5. Why The Use of Clichés Puts Your Persuasiveness at Risk

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4. With So Few Trials  Where Do You Find Trial Experience Now?

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3. How to Apply Cialdini's 6 Principles of Persuasion in the Courtroom

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2. 9 Things In-House Counsel Say About Outside Litigation Counsel

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1. Why the Color of a Dress Matters to Litigators and Litigation Graphics

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opening statements toolkit ebook download a2l

Tags: Trial Graphics, Trial Consultants, Litigation Graphics, Litigation Consulting, Articles, Voir Dire, In-House Counsel, Persuasion

How to Apply Cialdini's 6 Principles of Persuasion in the Courtroom (Part 2)

Posted by Alex Brown on Mon, May 4, 2015 @ 04:44 PM

 

commitment-persuasion-influence-cialdiniby Alex Brown
Director of Operations
A2L Consulting

Commitment (and Consistency) (see Part 1 about reciprocity here)

In 1971, Charles Kiesler wrote a book called The Psychology of Commitment. In it he describes various experiments designed to understand human motivations. Kiesler referred to one of his experimental results as “the boomerang effect.”  The idea is that if a person has committed to something and is then attacked for his position, he or she is likely to increase his or her commitment, even if the commitment was not at all strong in the first place.

This brings up related questions of how and why people become more extreme in their attitudes.  Is it simply to justify their past behavior, or is it because people really want to be right? In many circumstances, a person might seek out others as social support or find outward behaviors that justify his or her position.  Basically, if you get someone to commit to something, they will usually stick to that commitment while under attack and will look for allies to their cause or position. As Cialdini notes, when a commitment is made public, one is likely to stick to it.

In view of this, it should be obvious why this finding can make an important persuasion tool for litigators. We strongly believe that you can win or lose a case in opening statements. In an opening statement, it is your responsibility to:

  1. Show them the path: As a litigator, you are always playing the odds.  The majority of people prefer to have a framework or a path that they can follow. This allows them to be comfortable, and this is what you want. No one fully opens up unless he or she is comfortable. Your goal in opening is to show them the path – and that far from being scary, it is the most reasonable way to go, in fact, it is the only way to go.

  2. Plant the seed: Every juror, if forced to honestly answer, will tell you that even before anyone spoke at the trial, they were leaning toward a judgment. Most believe that if two people stand up, one will lie and the other will tell the truth. During the opening, you have the opportunity to occupy the high ground and lay the groundwork for the jurors to believe your opponent is lying.

  3. Quick judgment:  Research shows that as many as 80 percent of jurors make up their minds immediately after hearing the opening statement. We have shown that if you are in the 20 percent minority, you have set yourself a huge mountain to climb.

  4. Pique interest: A court case is not a TV show or movie. You will not be able to keep the jury’s undivided attention, and the jury’s mind will never be as open as it is during opening statements. Everyone loses interest. After all, these are people with lives, worries, and plans that are being disrupted. If you cannot set their interest right away, you are losing from the start.

  5. Allow empathy: Everyone wants to believe in something. Opening statements are when you can give a juror the opportunity to pick a side and the ability to fight for you when the time comes. The only time a jury does not stand up for their pick is when they have not been given a reason to make a choice.

  6. Walk the path: We have often said that people buy on emotion and justify on facts. These first five points are based on getting the jury emotionally connected to your side. This last point is the fact part. Once you get them thinking of your client as being right, it is your job to show them all the facts they need to stick with this position. Imagine having an advocate for you during deliberation.  If the opening is done correctly, you will have at least one champion in that room, with the commitment to follow through.

Other articles and resources from A2L Consulting related to opening statements and persuasion:

opening statements toolkit ebook download a2l

 

Tags: Psychology, Opening, Emotions, Persuasion

12 Reasons Litigation Graphics are More Complicated Than You Think

Posted by Ken Lopez on Fri, May 1, 2015 @ 08:30 AM

litigation-graphics-complicated-trial-graphicsby Ken Lopez
Founder/CEO
A2L Consulting
 
If the creation of litigation graphics were as simple as some people make it out to be, you would never need a litigation graphics consultant. Yet litigation graphics consultants of varying skill levels are everywhere these days. Clearly, there is a need for them. But why? What value do litigation graphics consultants add? It’s a fair question, and here are 12 good answers.
 
1. Contrary to what some think, litigation graphics are more than electronic versions of printed documents: Many litigators make the mistake of thinking they are fully utilizing litigation graphics when they hire a trial technician who does nothing more than show documents on screen. See Why Trial Tech ≠ Litigation Graphics
 
2. Real litigation graphics consultants are storytelling experts, not PowerPoint experts: The technology isn’t what matters. As with lawyers, there are wildly differing levels of talent and education among litigation graphics consultants. The very best, like those on the A2L team, are true experts in helping to craft a story using visuals. These experts add value, not just slides. See Patent Litigation Graphics + Storytelling Proven Effective: The Apple v. Samsung Jury Speaks and $300 Million of Litigation Consulting and Storytelling Validation
 
3. Litigation graphics consultants provide the creativity that your trial team may not have. When it comes to litigation graphics, our customer surveys tell us that it is our creativity that is valued most by our clients. See Working in Parallel vs. Series with Trial Presentation Consultants
 
4. Your time is too valuable. You need to focus on the “law track,” which is what lawyers are best at. You must consider the order of how you will present your case, how to develop an evidentiary record and how to prepare your witnesses. Allow litigation graphics experts to do the heavy lifting in the persuasion area. See Planning For Courtroom Persuasion? Use a Two-Track Trial Strategy and How Valuable is Your Time vs. Litigation Support's Time?
 
5. We have dozens of psychological tricks for influencing people with pictures. We have written about some of these: See Font Matters - A Trial Graphics Consultant's Trick to Overcome Bias and Could Surprise Be One of Your Best Visual Persuasion Tools?
 
6. We have a kind of magic that you don’t have in your law firm. Even if you have some graphics people in your firm, there is no one in your law firm who can do the kind of work illustrated here: 16 PowerPoint Litigation Graphics You Won't Believe Are PowerPoint. Although there are rare exceptions, artists within law firms are usually either not the best or are on their way to working somewhere else: 13 Reasons Law Firm Litigation Graphics Departments Have Bad Luck
 
7. We understand the psychology of a jury and how you can use psychology to your advantage. We also know how you can hurt your case when you use litigation graphics the wrong way. For us, this is second nature. For litigators, this is not common sense at all: See Why Reading Your Litigation PowerPoint Slides Hurts Jurors and 12 Ways to SUCCESSFULLY Combine Oral and Visual Presentations
 
8. We can help you spot dirty tricks by the opposition. There are many subterfuges in litigation graphics consulting, and you will mostly likely overlook them but you shouldn't. Many of the tricks are objectionable and offer an opportunity for you to score points with judge and jury by pointing them out, but you have to see them. See 5 Demonstrative Evidence Tricks and Cheats to Watch Out For
 
9. Your colleagues are doing litigation graphics all wrong. They're good people I'm sure, and we know they are smart too. However, the normal instinctive way to use PowerPoint (bullets, text, reading slides) is precisely the wrong way. Unfortunately, that's what we see most often. See 12 Reasons Bullet Points Are Bad (in Trial Graphics or Anywhere) and The 12 Worst PowerPoint Mistakes Litigators Make
 
10. We spend a lot more time in courtrooms than you do. The same trial lawyers who used to go to trial every year 10 or 20 years ago, now often go to trial only every three, five, or even seven years. In stark contrast, our team may go to trial 50 or even 100 times every year. Common sense should tell you to trust what we have to say about how visuals will land with a judge and jury. See With So Few Trials, Where Do You Find Trial Experience Now?
 
11. Whenever a well-educated fresh pair of eyes works on your case with you, you will find something incredibly valuable about it. See 21 Reasons a Litigator Is Your Best Litigation Graphics Consultant and How I Used Litigation Graphics as a Litigator and How You Could Too
 
12. Anyone can make a PowerPoint, but only an experienced trial consulting team like A2L can make a PowerPoint that is convincing.

Other articles and resources related to litigation graphics, trial graphics and demonstrative evidence consultants from A2L Consulting: 

opening statements toolkit ebook download a2l

Tags: Trial Graphics, Litigation Graphics, Trial Presentation, Demonstrative Evidence, Advocacy Graphics, PowerPoint, Persuasive Graphics, Visual Persuasion

NEW & FREE 219-Page Opening Statements Toolkit E-Book

Posted by Ken Lopez on Wed, Apr 29, 2015 @ 08:34 AM

 

opening-statement-toolkit-ebook-tipsby Ken Lopez
Founder/CEO
A2L Consulting

I'm absolutely thrilled to announce the release of A2L Consulting's latest free litigation e-book, The Opening Statement Toolkit. You may download this book with no strings attached right now by clicking here.
 
In this 219-page book, you will find 66 articles curated from A2L's massive collection of posts related to litigation and persuasion. Each article relates to opening statements in some way. From organizing the opening to the use of storytelling techniques to persuade, the book contains an amazing array of tips that will prove valuable to the novice litigator and the veteran alike.

At A2L, we firmly believe that the opening statement is the most important part of a trial. If you win the battle of opening statements, you stand a pretty good chance of winning the case. This is true since many jurors make up their minds during opening statements -- or they at least develop a view of the case through which they will perceive all of the subsequently presented evidence.
 
At A2L, we frequently have the opportunity to help trial teams develop their opening statements. Perhaps more importantly, we also have a chance to help test what works in opening statements. There are often surprises, and good science is still emerging about what works.
 
The articles in this book are intended to help you develop the best opening statement that you can. Often, the opening statement is when jurors form strong opinions about the ultimate winners and losers in a case — but it does not have to be that way  There are best practices for affecting judge and juror decision-making, and many of these are described in these articles.
 
Among the valuable articles in the book are: Five Ways to Maximize Persuasion During Opening Statements; How to Structure Your Next Speech, Opening Statement or Presentation; Five Essential Elements of Storytelling and Persuasion; Six Reasons the Opening Statement is the Most Important Part of a Case; and How to Emotionally Move Your Audience.
 
It is easy to download the book and have it at your fingertips, and it’s a free download. Your opening statements will never be the same.

opening statements toolkit ebook download a2l

 

Tags: Trial Graphics, Litigation Graphics, Jury Consulting, Litigation Consulting, E-Book, Trial Preparation, Storytelling, Opening, Persuasion

5 Ways to Maximize Persuasion During Opening Statements - Part 4

Posted by Ryan Flax on Wed, Apr 22, 2015 @ 03:25 PM

 

persuasion-opening-statements-words-graphicsby Ryan H. Flax, Esq.
Managing Director, Litigation Consulting
A2L Consulting

We have discussed four important tips for maximizing persuasion during your opening statement (See parts 1, 2, and 3). The last tip is the use of demonstrative evidence in connection with the statement.

You need to be aware that most people, other than lawyers, are visual preference learners. Most lawyers, in contrast, are auditory or kinesthetic preference learners.1 Most people teach the same way they prefer to learn – so lawyers typically teach by lecturing, since that is most comfortable for them. But this strategy does not help with the majority of jurors, who would prefer to be taught visually, at least in part. So bridge this courtroom gap with demonstrative evidence, including litigation graphics.

You cannot just relay information and be persuasive. A study has shown that lawyers who use PowerPoint in their opening statements enhance persuasion though jurors’ central and peripheral processing.2 In that study, the use of litigation graphics made the lawyers appear (in jurors’ eyes) more competent, more credible and more likable, helped jurors retain information better, and resulted in better verdicts.

Another study shows that you cannot just show some graphics once in a while during your opening statement, but you must immerse the jury in visuals throughout the entirety of your opening.3 Immersion means constantly providing visuals for an audience throughout a presentation.

powerpoint-litigation-persuasive-courtroomKen Broda-Bahm, Ph.D., tested this by presenting opening statements to jurors accompanied by no graphics, old-school-style flip chart graphics, sporadically shown professionally made graphics, and sporadically shown animated graphics. Surprisingly, he found that none of these techniques were persuasively distinguishable. Only when he used the immersion technique did he find that persuasion was significantly improved. With this technique, jurors were found to be more prepared on the evidence, they paid more attention, they felt the evidence was more important, they comprehended better, and they retained information longer.

However, you cannot just make some PowerPoint slides and run off to court and be persuasive. The easiest and most common way lawyers make their own trial presentations is by outlining or scripting an argument in Word and then copying and pasting that script into PowerPoint. This is worse than ineffective and all but promises to harm your case.

Interestingly, a recent study shows that the perceived cost of something matters.4 The study researched the effectiveness of placebos on patients with Parkinson’s disease and found that placebos were effective but that patients who believed they were getting more expensive drugs got significantly more effectiveness from their placebos. This translates to trial persuasiveness in that if your trial graphics seem expensive, jurors will believe that you and your case are better, all things being equal.

Never simultaneously say what you’re also showing in a graphic (this does not necessarily go for something you’re affirmatively quoting). A well-researched phenomenon called the redundancy effect happens when you do this and the result is your jurors’ brains are switched off and they stop taking in any information at all.5 You’ve subjected them to a cognitive load that their brains cannot handle and, so, they turn off. This is not desirable in an opening statement.

And never use bullet point lists as your graphics.6 No great presenter does this. This is often the result of the self-prepared graphics that I mentioned a minute ago where you transfer your script of outline to slides. Using bullets probably means your presentation is “text-heavy,” which is a barrier to effective communication. Also, people can read and understand faster than they can listen to you and understand: 275 words per minute vs. 150 words per minute. By using bullet lists you’ve challenged your audience to read your slides before you can explain their content, and your audience will win every time and stop listening.

opening-statements-mistakes-argument

The “Don’ts”

Finally, as an extra bit of info, here are some things to avoid in opening statements.

Don’t re-introduce yourself. Don’t waste your first 90 seconds of opening by re-explaining who you are. It’s likely that the judge has already done this or that the jury has heard it already. Even if that’s not the case, wait a few minutes to do it if it must be done.

Don’t pander. Don’t tell the jurors how important their job is or how great it is that they’re doing their civic duty or how thankful you are that they’re here. This is patronizing, and they’ll know it and resent you for it. If you must, simply say that you appreciate their time and are going to try and get them through the trial as efficiently as you can.

Don’t explain how an opening statement works. Don’t explain that your statement isn’t evidence. The judge might do that, but you sure as heck shouldn’t. Most likely, your jurors won’t distinguish between actual evidence, demonstrative evidence, and attorney argument. Why enlighten them?

Don’t tell jurors how proud you are to represent your client. I hear this so often and cringe every time. It’s not persuasive. It sounds insincere. It’s B.S. and jurors will know.

Don’t oversell your case. If you know you cannot prove something, don’t say you can. Promising more than you can deliver will hurt your case and, potentially, constitutes reversible error.

Other A2L Consulting articles and resources related to persuading with graphics, opening statements and using words and pictures in a complimentary way:

One-Question Survey  What Webinar Topic  Should A2L Cover Next?

 

[1] Attorney Communications Style Study (Jan 2, 2007) (available at http://www.a2lc.com/pressarticles/presslearningstudy.html).

[2] Jaihyun Park and Neal Feigenson, Effects of a Visual Technology on Mock Juror Decision Making, Appl. Cognit. Psychol. 27:235-46 (2013)

[3] Dr.Ken Broda-Bahm, Persuasive Litigator: Show, don’t Just Tell, http://www.persuasivelitigator.com/2011/07/show-dont-just-tell-continuity.html (2011).

[4] Espay et al., Placebo Effect of Medication Cost in Parkinson Disease, Neurology vol. 84, No. 8, 794-802 (Feb 24, 2015).

[5] See, e.g., Mayer et al., Cognitive Constraints on Multimedia Learning: When Presenting More Materials Results in Less Understanding, J. Edu. Psych. Vol. 93, No. 1, 187-98 (2001).

[6] See, generally, research by Dr. Chris Atherton (e.g., https://youtu.be/OwOuVc1Qrlg).

Tags: Trial Graphics, Litigation Graphics, Litigation Consulting, Bullet Points, PowerPoint, Redundancy Effect, Opening, Persuasion

[Survey] What Webinar Topic Would You Like Us to Cover Next?

Posted by Ken Lopez on Tue, Apr 21, 2015 @ 04:00 PM

 

free-litigation-webinar-a2l-consultingby Ken Lopez
Founder/CEO
A2L Consulting

A2L Consulting offered its first free litigation webinar just 18 months ago. Since then we've conducted six litigation focused webinars, all free, including:

These webinars may be viewed on our site anytime, and they have been viewed nearly 10,000 times already. I find that amazing.

Since each new webinar is a bit more popular than the one that came before it, it's a bit hard to tell which topics are really the most popular. So, I thought it would be helpful to ask our 6,500 blog readers what topic we should cover in our next webinar (likely May or June). Finding a good webinar presenter will not be difficult. On the A2L team, we have expert jury consultants, trial-tested litigators, experts in persuasion science, the top consultants in visual persuasion and many categories of litigation and persuasion experts. 

By looking at our web traffic and the searches used to find A2L Consulting or free information in the 400+ free articles we provide on our site, we can get a good idea of what is interesting to our audience. In the one-question survey below, I have included the top-ten topics our visitors look for plus a write-in option.

Please choose one of the ten topics below or write in a new topic, and we will develop our next webinar around the topic our audience favors most. When you answer the question, you'll be able to see the results tallied so far. Thank you for being a subscriber!

Tags: Litigation Graphics, Litigation Consulting, Litigation Technology, Jury Consultants, Animation, Jury Selection, Bullet Points

5 Ways to Maximize Persuasion During Opening Statements - Part 3

Posted by Ryan Flax on Mon, Apr 20, 2015 @ 03:15 PM

 

burst-bubble-wind-sails-opening-statementby Ryan H. Flax, Esq.
Managing Director, Litigation Consulting
A2L Consulting

In our two previous posts, we discussed two important roles that an opening statement can play: making you and your client appealing to the jurors, and telling a convincing story. Here are two other key functions for an opening statement.

Showing How the Facts Fit the Law

You cannot argue in an opening statement. That is objectionable. But you can accurately tell jurors what you need and intend to prove to win, thus giving the jurors in effect a list that they can check off during the trial. Don’t tell the jury what the law is; that’s for the judge to do. Instead, tell them what you’re going to prove and why it’s important. You’ll want to combine this with your storytelling. Most cases aren’t as complicated as lawyers think they are, and if jurors are to do their job, they simply can’t be too complicated. Boil down the things you need to prove into a simple list. Tell the jury that you’re going to show them all these things.

For example, in a basic breach of contract case the question is: Shouldn’t a deal be honored? To win the case, you need to first show that there was a valid contract, that it was reasonable, and that there was performance by your client.

Once you’ve established the framework of proof, give your jurors a taste of the evidence that will be presented at trial and explain that it’s enough to win without any more evidence (but of course there will be more). For example, there is already deposition testimony from the defendant that there was an agreement, a contract. The defendant has also already conceded in testimony that the amount in the contract was reasonable. Finally, there can be no doubt that our client performed under the contract. Now, if we can just get a stipulation from the defendant that he hasn’t paid our client, we’re there.

Now that the jury knows what to expect at trial, they’re primed and they have a working outline for the trial.

Deflating The Opponent’s Balloons

Every case has a weakness, even yours. How do you handle weaknesses in the opening statement? Beat your opponent to the punch — identify your opposition’s strongest points and explain why they don’t matter. Bringing out weak points in your case in as positive a way as possible takes the sting out of the issues, makes you appear honest, and lessens the negative impact of your opponent pointing them out.1

If you go first and identify for the jury what opposing counsel will say in their opening and discount it, you’re already winning. Lawyers who ignore their weaknesses lose credibility. Jurors will not believe a lawyer who is perceived to be hiding important facts.

The key to handling weaknesses is to make them part of the story and turn them around. Admit them as if they were “no big thing” or if they seem to be a big deal, explain why they’re not really that big. Reason and logic rule: You’ll need a reasonable and convincing but terse explanation for why your client waited three years to sue or why a couple of beers before heading home didn’t matter.

Deflating balloons doesn’t mean telling the jury about every single piece of conflicting evidence or argument the opposition may use. Deal with major problems that could really matter if left to your opponent to introduce.

Other A2L Consulting articles and resources for opening statements, trial presentation and litigation consulting support generally:

complex civil litigation ebook free

 

[1] J. Alexander Tanford, The Trial Process: Law, Tactics and Ethics 3d, at 169 (2002).

Tags: Litigation Consulting, Juries, Storytelling, Opening, Depositions, Closing Argument

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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.


ryanflax blog litigation consultant 

Ryan H. Flax, Esq., Managing Director, Litigation Consulting, joined A2L Consulting on the heels of practicing Intellectual Property (IP) law as part of the Intellectual Property team at Dickstein Shapiro LLP, a national law firm based in Washington, DC.  Over the course of his career, Ryan has obtained jury verdicts totaling well over $1 billion in damages on behalf of his clients and has helped clients navigate the turbulent waters of their competitors’ patents.  Ryan can be reached at flax@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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