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The Litigation Consulting Report

[New & Free E-Book] The Litigation Support Trial Toolkit 3rd Edition

Posted by Ken Lopez on Fri, Jul 24, 2015 @ 12:08 PM


litigation-support-trial-toolkit-3rd-cta-tallby Ken Lopez
A2L Consulting

At A2L Consulting, we have just published our latest e-book – the third edition of the Litigation Support Professional's Trial Toolkit. It's 262 pages long, contains 88 articles and is completely complimentary to download.

This new e-book will be indispensable to any litigator or litigation support professional who wants a summary of the latest thinking in the fields of trial technology, trial graphics, and litigation support.

In this book, we try to demystify the craft of the trial technician, with nitty-gritty discussions of how trial consulting firms do what they do, especially on a tight budget. We present ideas for seamless trial presentations that can be built, if not on a shoestring, on a budget far smaller than one might anticipate. Since the art of trial presentation is often best described as a story-telling venture, we give you the latest on the best story-telling techniques, including 16 trial presentation tips from classic Hollywood movies. We also provide 13 reasons why it’s not a good idea to do your trial preparation at the last minute, 12 great ways to combine oral and visual presentations, and five questions you should always ask in voir dire.

The e-book is also a guide to the newest and most interesting software and the best presentation techniques. We show how e-briefs are used in courtrooms every day, how the iPad-friendly courtroom works, the best uses of PowerPoint, and Prezi, which does what PowerPoint does but differently and often more effectively. We even go into the best ways to use basic technology like wall charts and whiteboards, and why old-fashioned techniques such as bullet points don’t work. (We also show you the techniques that do work.)

We tell you about the six trial presentation errors that lawyers can easily avoid, seven ways to draft a better opening statement (and why the opening statement is the most important part of the case), and how to be prepared at all times for possible failure of your systems.

The e-book also explains, based on the latest psychological and sociological studies, why litigation graphics are crucial in the modern courtroom, why many jurors obtain their information from visuals rather than from written documents, and even why varying the font that one uses can help influence jurors. Courtroom persuasion is both an art and a science, and the successful trial technician can benefit from the latest research findings on persuasion.

Along those lines, we try to tear down some myths about courtroom presentation – like the idea that jurors shun presentations that are too slick, that jurors have an instinctive dislike for technology, that jurors usually prefer a “David” to a “Goliath” client in the courtroom, and that Hollywood movies about trials have nothing to teach the real-life litigator.

Finally, our e-book tackles some of the difficult problems that can occur in the preparation process itself. How do you overcome internal disagreements? Who calls the shots – the trial technician, the lawyer, or the ultimate client? How is anxiety subtly conveyed from one trial team member to another, and how does the cycle of anxiety stop?

No litigation support professional or high-stakes litigator can afford to be without this indispensable free book.

litigation support trial toolkit consultants a2l consulting  


Tags: Trial Graphics, Trial Technicians, Litigation Graphics, E-Book, Demonstrative Evidence, Trial Technology, Litigation Support, Trial Preparation

10 Types of Value Added by Litigation Graphics Consultants

Posted by Ken Lopez on Mon, Jul 20, 2015 @ 03:10 PM


value-added-litigation-graphics-consultants-trialby Ken Lopez
A2L Consulting

Over breakfast the other day, a partner in a major law firm was explaining to me that it can be challenging to explain the added value that litigation graphics consultants can provide in a case, especially given the challenging budget environment in which litigators operate today.  He was surprised when I said that the key here is not the fact that graphics consultants know how to prepare PowerPoints.

After all, the average law firm associate can prepare a pretty decent PowerPoint presentation. The problem is that perhaps one in 500 PowerPoints prepared by a smart and well-informed law firm associate does more good than harm. What litigation consultants can do for a trial team is more complex, more persuasive and more sophisticated.

So here are ten ways in which a litigation graphics consultant would add value where a litigation associate might cause harm or simply might not provide benefit.

1. Supporting the development of a narrative. We've written about this extensively, and great graphics consultants like those at our firm have enormous value here. One of the essences of trial presentation is telling a narrative. See, $300 Million of Litigation Consulting and Storytelling Validation.

2. Helping separate the theme from the narrative. Many of us who took trial advocacy were taught to start out our openings with "this is a case about . . . ." After that, we would usually state our theme. What many lawyers were not taught was how to develop a persuasive narrative. A few rare litigation graphics consultants can operate at the 1st chair level and offer this kind of support. See, 14 Differences Between a Theme and a Story in Litigation and 21 Reasons a Litigator Is Your Best Litigation Graphics Consultant.

3. Helping combat the now-fashionable “Reptile” trial strategy tactics that plaintiffs lawyers use. We have discussed this in several recent blog posts. See, Repelling the Reptile Trial Strategy as Defense Counsel.

4. Making sure that you don’t invoke the split attention or redundancy effect. This is the error of presenting information orally and in writing at the same time. See, Why Reading Your Litigation PowerPoint Slides Hurts Jurors.

5. Offering that fresh pair of eyes. See, 12 Reasons Litigation Graphics are More Complicated Than You Think.

6. Creating a high-end PowerPoint that makes a positive difference. See, 16 PowerPoint Litigation Graphics You Won't Believe Are PowerPoint.

7. Freeing up litigation counsel to be lawyers. My mentor likes to say that we should only do what we are best at. In the run-up to a trial or hearing, there is always more legal work that needs to be done. The role of litigators should be to review draft presentations and provide feedback to the consultants who have actually developed the presentation. See, Trial Graphics Dilemma: Why Can't I Make My Own Slides? (Says Lawyer).

8. Litigation consultants can use nearly unknown techniques for persuasion like surprise, chart tricks, statistical persuasion or methods to overcome cognitive bias

9. Asking tough questions. See, How I Used Litigation Graphics as a Litigator and How You Could Too.

10. Bringing to the fore their extensive trial experience. Top trial consultants such as those on our team may go to trial 50 to 100 times per year. By working with them, trial lawyers gain the benefit of hearing about the best practices of other trial teams. See, With So Few Trials, Where Do You Find Trial Experience Now?

Other articles and resources on A2L Consulting's site related to litigation graphics, storytelling for persuasion, trial graphics and demonstrative evidence:

pretrial trial graphics motions briefs hearings

Tags: Trial Graphics, Litigation Graphics, Trial Presentation, Courtroom Presentations, Litigation Consulting, Trial Consulting, Demonstrative Evidence, PowerPoint

Repelling the Reptile Trial Strategy as Defense Counsel - Part 4 - 7 Reasons the Tactic Still Works

Posted by Ken Lopez on Mon, Jul 13, 2015 @ 04:14 PM


repitile-litigation-tactics-strategyby Ken Lopez
A2L Consulting

In my previous three posts concerning the “Reptile” trial strategy, I provided an introduction to the strategy, I discussed how to spot it, and I discussed why the science that its authors claim supports the strategy is just plain wrong.

As I have mentioned in previous articles, this trial strategy has been largely absent from the types of cases that we work on at A2L. However, with high-stakes pattern litigation on the rise, and with the increase in sophistication on the plaintiffs side in big-ticket litigation, the “Reptile” is something that medium and large law firm defense firms must be able to spot and to cope with.

In this article, I will focus on the critical fact that, despite the bad science that its authors employ, the Reptile trial strategy still works. In other words, the “Reptile” advocates are tapping into authentic ways of persuading jurors. There are at least seven reasons for that.

  1. The “Reptile” advocates suggest using a strong theme that is constantly reinforced throughout the case from complaint to closing. That's just good lawyering, and a majority of lawyers still don't do this. See 14 Differences Between a Theme and a Story in Litigation.

  2. Similarly, they encourage focusing on a consistent strategy from the very beginning of the case. Few defense counsel do this throughout a case, and again, following this practice is just good lawyering. See Planning For Courtroom Persuasion? Use a Two-Track Trial Strategy.

  3. They encourage the use of narrative as a persuasion strategy. We've written about that many times, and they are right to encourage it, because it works very effectively. Our proposed narratives are based on real psychological science and theirs are not, but the use of narrative is a very good idea. See $300 Million of Litigation Consulting and Storytelling Validation.

  4. Plaintiffs are going to score some hits in video depositions because the strategy is just so relentless. The authors advocate a fanatical pursuit of admissions from the defendants. If one doesn’t know how to stop the badgering, it is easy to slip in a deposition, and it sometimes only takes one slip to win a case. See The Top 14 Testimony Tips for Litigators and Expert Witnesses.

  5. By redirecting the focus away from the plaintiff and on the defendants and the injury they might have caused, plaintiffs take the focus off the plaintiffs regardless of their contributory behavior. Again, this can be very effective. See Storytelling Proven to be Scientifically More Persuasive.

  6. Emotional appeals work. As a rule, whether you are buying a new suit, watching your kids tour a college campus or sitting in a jury box, people buy on emotion and justify on fact. The reptile trial strategy is a good method of making an emotional appeal. See Are You Smarter Than a Soap Opera Writer?

  7. Finally, the book reads like a manual -- and even a bad lawyer can follow a manual. Over and over again, good tactics are suggested, wrapped up in a palatable vocabulary. The strategy works because it's easy to follow, easy to remember and easy to implement. See The Top 5 Qualities of a Good Lawyer.

In my next post, I will discuss how to overcome the strategy as a defense lawyer. If you'd like to be notified of subsequent articles, please click here.

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

pretrial trial graphics motions briefs hearings

Tags: Jury Consulting, Juries, Trial Preparation, Storytelling, Depositions, Reptile Trial Strategy

[New Webinar] Winning Cases BEFORE Trial Using Persuasive Graphics

Posted by Ken Lopez on Tue, Jul 7, 2015 @ 04:41 PM


A2L-pre-trial-graphics-tallby Ken Lopez
A2L Consulting

We at A2L are sponsoring later this month a new and exciting webinar entitled “Winning Your Case BEFORE Trial Using Persuasive Litigation Graphics.” Whether you are in-house counsel, outside counsel, or a member of a litigation support team, this 60-minute webinar will prove invaluable and will reveal secrets of persuasion that will help you win cases before trial.

The key insight here is that graphics aren’t only for use at trial. They can also be used very effectively in motions and briefs presented to judges, even if jurors will never see them. If you are planning to use graphics to make your argument or tell your story at trial, why not use them at an earlier stage to make your argument convincingly in your brief or motion?

In addition, a lawyer who introduces graphics early in a proceeding can lay the groundwork for later use at trial or in another aspect of the case. This can also give the lawyer a sense of how receptive the judge is to the use of trial graphics in the case.

In fact, you’d be amazed at the different ways in which litigation graphics can be used. We have seen them deployed effectively in all of the following:

  •       Motions and briefs before judges
  •       Pretrial depositions
  •       Mock trials
  •       Alternative dispute resolution hearings
  •       Class certification hearings
  •       Lobbying presentations
  •       E-discovery disputes
  •       Settlement talks
  •       Pre-indictment meetings with prosecutors

Even if you can't make it to the live webinar later this month – it will take place July 29 at 1:30pm EST -- you'll receive access to the recorded version just for registering.  The presenter, A2L's Managing Director of Litigation Consulting, Ryan H. Flax, Esq., regularly works with top trial teams to help develop, refine and test storylines and persuasive graphics for briefs, hearings, depositions, ADR, tutorials, and pre-indictment presentations.

The topics of the webinar will include:

  • Why and how to frame your case as a story from the very beginning
  • Putting effective graphics in unexpected places: depositions, ADR and hearings
  • Techniques for persuading skeptical audiences with graphics
  • Using litigation graphics persuasively in briefs and motions

We hope to see you at the webinar later this month. Click here to reserve your free seat or be notified when the recorded version is available.

pretrial trial graphics motions briefs hearings

Tags: Markman Hearings, Trial Graphics, Litigation Graphics, Mock Trial, Arbitration/Mediation, Persuasive Graphics, Settlement, Briefs

Repelling the Reptile Trial Strategy as Defense Counsel - Part 3 - Understanding the Bad Science

Posted by Ken Lopez on Thu, Jul 2, 2015 @ 12:47 PM


reptile-trial-strategy-neuroscienceby Ken Lopez
A2L Consulting

In two recent posts, we discussed the “Reptile” theory of courtroom advocacy, a plaintiff lawyer’s strategy that essentially asserts that plaintiffs can win at trial if they successfully appeal to the “reptilian” portion of jurors’ brains. This portion, according to the theory, is the primitive part of the brain, the portion that humans supposedly share with reptiles. It is this portion that responds on an elemental level to fear, according to “Reptile” advocates, and jurors therefore simply need to be persuaded that they themselves are placed in danger by the defendant’s behavior and that they should return a plaintiffs’ verdict essentially to ensure their own continued safety.

As we said earlier, we believe that far from presenting the latest concepts from neuroscience, the “Reptile” theory presents a laughable and amateurish set of scientific theories. In two earlier posts, we explained how to identify the “Reptile” theory in court. Here are five articles that explain, in plain English, why the theory makes absolutely no sense scientifically. These responses to the “Reptile” advocates, while they will not in and of themselves get “Reptile” concepts out of a trial, will help defense lawyers understand the true roots of the strategy – and may help convince some judges that the “Reptile” strategy, although effective, is based on bogus science.

  1. This article from The Jury Expert, a publication of the American Society of Trial Consultants, argues that “To reduce the human being to a body organ, even the brain, disregards the value of the reflective mind – something no reptile possesses. From time immemorial we have used imagination and supporting evidence in narrative to persuade. A reptile hears no human story. It reacts as a coiling rattlesnake or a slithering lizard. To equate men and women serving on a jury with reactive sub-mammals is both offensive and objectionable.” It instead recommends the use of “persuasive narrative” – the invocation of compelling stories – to influence and persuade juries.
  1. In this interview, trial consultant Stephen Hnat concludes that advocates of the “Reptile” theory confuse brain structure with brain function.” He says that although there is in fact an area of the brain labeled the “reptile brain” that controls “flight or fight” and similar responses, current research in cognitive neurobiology has consistently shown that other areas of the brain that regulate emotion are far more influential in determining perceptions and behavioral responses.
  1. This article from Courtroom Sciences Inc. says that the “Reptile” theory involves a “misuse of neuropsychology” and contends that while “Reptile” advocates have succeeded with juries, it was not because of their knowledge of brain science. The authors say that “Reptile” lawyers succeed not because of their “ability to tap into jurors’ survival instincts” but because they use “successful techniques long used by great plaintiff’s attorneys: reduce a case to its essence and rhetorically focus a case on a critical issue for jurors (e.g. safety).

  2. This article, published earlier this year for an American Bar Association Litigation Section conference [pdf], asserts that human beings “are not just flight or fight responders, they in fact process information. And, the fear responses that humans experience are not predictable, in part because higher level functions often intervene in fear responses.” The article notes that fear can backfire against plaintiff lawyers if jurors believe they are being treated like “reptiles.” The author says that despite its use of bad science, the theory is “here to stay,” and that defense lawyers need to understand why the theory often works with jurors.
  1. In this article, Ken Broda-Bahm asserts that in view of contemporary scientific critiques, the reptile brain theory “stands out as illustrating scientific beliefs that persist more because they are useful than because they are valid. It persists and sticks not because there is strong evidence that it is true, but because it feels ‘complete’ and has, as Stephen Colbert would put it, ‘truthiness,’ independent of its truth.” Nonetheless, Broda-Bahm asserts, the theory needs to be taken seriously.

Experts agree that the science alleged to support the Reptile Trial Strategy is bogus. However, just because the reasoning behind the strategy is flawed, it does not mean that the approach doesn't work — because it does. We will discuss why the Reptile Trial Strategy works and how to counter it in upcoming parts of this series (click here to be notified of subsequent posts).

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

opening statements toolkit ebook download a2l

Tags: Trial Consultants, Jury Consulting, Litigation Consulting, Trial Consulting, Jury Consultants, Science, Psychology, Reptile Trial Strategy

Top 9 Litigation Consulting Articles from Q2-2015

Posted by Ken Lopez on Tue, Jun 30, 2015 @ 01:50 PM

top-9-litigation-consulting-articles-2015-1by Ken Lopez
A2L Consulting

It's been another great quarter of publishing blog articles on A2L's Litigation Consulting Report Blog. This quarter, there were more than 45,000 blog post views, and we are just about to cross the 7,000 subscriber mark. I find those metrics incredible.

Since we post 2-3 articles every week, I've heard from our readers that it is sometimes hard to keep up with the latest articles. To help remedy that and organize the information better, roughly six times a year we publish a mini-retrospective at the end of the quarter, at the end of a year and/or to celebrate blogging milestones.

This quarter, I'm listing the top nine articles from April, May and June of 2015 reverse sorted by the number of times each article was read. This way, this list serves as an excellent reader-curated guide to the very best articles we have published recently.

Voir dire and jury selection-focused articles continue to be very popular with our readers. Also, articles about persuasion, opening statements and a discussion of the Reptile Trial Strategy are getting a lot of views and shares. For the first time in memory, there are four different A2L authors represented on a best-of list.

Below is a list of the top nine articles from A2L's Litigation Consulting Report Blog as determined by your readership. Each article has both LinkedIn and Twitter share buttons that allow it to be shared with your network. Enjoy!

9. 5 Ways to Maximize Persuasion During Opening Statements - Part 2

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8. One Voir Dire Must Do and One Voir Dire Must Never Do

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7. 12 Reasons Litigation Graphics are More Complicated Than You Think

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6. How to Apply Cialdini's 6 Principles of Persuasion in the Courtroom - Part 2

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5. 15 Things Everyone Should Know About Jury Selection

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4. 5 Ways to Maximize Persuasion During Opening Statements - Part 1

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3. Repelling the Reptile - 10 Ways to Spot the Reptile in Action

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2. 10 Ways to Lose Voir Dire

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1. Repelling the Reptile Trial Strategy as Defense Counsel - Part 1

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Tags: Litigation Consulting, Juries, Articles, Voir Dire, Jury Selection, Psychology, Opening, Persuasion

Repelling the Reptile Trial Strategy as Defense Counsel - Part 2 - 10 Ways to Spot the Reptile in Action

Posted by Ken Lopez on Fri, Jun 26, 2015 @ 01:24 PM


spot-the-reptile-trial-strategyby Ken Lopez
A2L Consulting

As I discussed in Part 1 of this series, the “reptile” trial strategy is quickly spreading among plaintiffs counsel. Some plaintiffs counsel have, in fact, claimed that the strategy has resulted in verdicts totaling more than $6 billion in the past few years.

In a large room of defense attorneys to whom I made a presentation last week, more than half reported having seen the strategy used in one of their cases. I think that may just be the tip of the iceberg. It appears that many defense counsel are being subjected to the strategy and don't know it is happening to them until it is too late.

In light of this fact, below are 10 ways to spot the strategy. In subsequent articles, we will discuss what to do to counter it. From the very start of your case, look for any of the following 10 phenomena:

  1. You encounter themes suggesting that the community needs to be protected from the defendant; e.g. “Walking past stores on Main Street is part of what it means to be American.”

  2. The behavior of the plaintiff or other contributing or mitigating traits of the plaintiff are ignored, and instead the plaintiff works hard to keep the focus on the defendant or even an idealized defendant.

  3. Plaintiffs introduce a discussion of “safety rules” throughout all pre-trial phases of the case; e.g. “Do you agree that keeping the public safe is a key role of your train operators?”

  4. Plaintiffs use phrases during discovery like “No person has a right to needlessly endanger another person.”

  5. Plaintiffs make an effort to imagine what the defendants’ conduct could have been in a worst-case scenario. e.g. “What if your plane hit a school instead of a forest?”

  6. There is an almost bizarre avoidance of discussing the standard of liability.

  7. Plaintiffs emphasize the word “must” during depositions like, “You would agree that management must remove needless workplace dangers?”

  8. There is considerable emphasis on "responsibilities" and little emphasis on the actual standard of liability.

  9. Plaintiffs counsel try to ask your client to articulate worst case scenarios if safety rules are violated, as in, “How much harm could a chemical spill from your plant cause?”

  10. Plaintiffs try to substitute job duties for a standard of liability. e.g. “A pilot's job is to make sure the plane is flightworthy, right?”

Spotting any one of these indicators means there is a good chance that the reptile trial strategy is in play. Failing to pay close attention to the use of the strategy may very well create a strong advantage for the plaintiff at trial. It is now critical that every defense attorney know how to respond to this strategy. We will cover this and other topics in subsequent posts (click here to be notified of subsequent posts) in this Reptile trial strategy series.

Have you seen these tactics in your cases? I'm particularly interested in non-tort case examples. Please tell me, either publicly or by private email, what you have seen.

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

A2L Consulting Voir Dire Consultants Handbook

Tags: Trial Consultants, Trial Presentation, Jury Consulting, Trial Consulting, Juries, Jury Consultants, Trial Preparation, Psychology, Reptile Trial Strategy

Repelling the Reptile Trial Strategy as Defense Counsel - Part 1

Posted by Ken Lopez on Tue, Jun 23, 2015 @ 02:05 PM


repitile-trial-strategy-jury-consultantby Ken Lopez
A2L Consulting

Last week, I spoke at an annual gathering of defense attorneys whose subtitle was “Lawyers and Other Reptiles.”

What's going on? Who are these reptiles? It’s an interesting story. This conference was planned as a way to bring together defense attorneys around the nation who want to learn how to turn aside a frequently used set of trial tactics championed by David Ball and Don Keenan in their "Reptile" series of books and webinars. Ball is a North Carolina-based jury consultant, and Keenan is an Atlanta-based plaintiffs trial lawyer.

According to Ball and Keenan’s publicity materials, the “reptile” concept is “the most powerful tool in the fight against tort reform.” Ball and Keenan say that through their books, DVDs, seminars and workshops, “the Reptile is revolutionizing the way that trial attorneys approach and win their cases.” The proof, they say, is in the numbers, as more than $6 billion in verdicts and settlements have resulted from these tactics since they launched them in 2009.

William A. Ruskin of Epstein Becker & Green has summarized the concept well in a 2013 Lexis-Nexis article:

The Reptile theory asserts that you can prevail at trial by speaking to, and scaring, the primitive part of jurors' brains, the part of the brain they share with reptiles. The Reptile strategy purports to provide a blueprint to succeeding at trial by applying advanced neuroscientific techniques to pretrial discovery and trial. The fundamental concept is that the reptile brain is conditioned to favor safety and survival. Therefore, if plaintiff's' counsel can reach the reptilian portion of the jurors' brains, they can influence their decisions; the jurors will instinctively choose to protect their families and community from danger through their verdict.

While the “science” described by the authors is laughable and amateurish, the strategies they recommend are effective. As a result, defense attorneys nationwide are taking notice and developing strategies to combat these tactics.

The Reptile strategy is showing up mostly in single-plaintiff cases on the coastal areas, but it is spreading geographically and is now being used in larger cases. Looking at the Reptile trial strategy more as a comprehensive litigation tactic, I'd summarize the approach this way:

  • Beginning as soon as the complaint, articulate a set of common sense safety rules that people as good members of a community should follow.

  • Get experts and fact witnesses, in discovery, to agree that these common sense safety rules are reasonable for society. For example people shouldn't drive fast, pouring chemicals into rivers and streams is not ideal, a single company should not own too much of the market, doctors shouldn't hurt people.

  • Use fear as a persuasion device to frighten jurors into defending their communities by adopting what is effectively a new standard of liability.

When fully implemented, the strategy sees the defendant’s conduct as a secondary consideration to what might have occurred. For example, what if it had been a school bus in the accident? What if the contamination would have been of drinking water for a pregnant mom? These arguments substitute for the actual standard of liability and the actual conduct of the defendant.

The rationale for this approach is that fear will cause jurors to abandon rational thought and penalize the defendants. That's not how people think, that's not how juries reach decisions, and that’s not actual science. But just because the authors flub the science it doesn't mean their recommended trial strategies are bad. Ball and Keenan make some suggestions that defense lawyers must be aware of.

I believe it's possible to overcome these strategies, particularly at trial, by simply being a good lawyer and doing what you should be doing at trial anyway -- specifically by articulating a strong narrative that makes sense to people and that people care about.

If you have not seen the Reptile trial strategy in one of your cases yet, you probably will soon. A show of hands at my speaking engagement showed more than half of a large audience having seen it in one of their cases recently.

I will go more into detail about how to spot the Reptile trial strategy and how to respond to it in upcoming articles. Click here to be notified of subsequent articles.

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

opening statements toolkit ebook download a2l



Tags: Trial Consultants, Juries, Jury Consultants, Trial Preparation, Psychology, Storytelling, Opening, Persuasion, Reptile Trial Strategy

One Voir Dire Must Do and One Voir Dire Must Never Do

Posted by Laurie Kuslansky on Tue, Jun 16, 2015 @ 03:07 PM


voir-dire-must-do-dont-doby Laurie R. Kuslansky, Ph.D.
Managing Director, Jury Consulting
A2L Consulting

You’re defending an alleged polluter. You ask prospective jurors, “Who here thinks there is too much government regulation of business?”

You represent an individual hurt in a workplace accident. You ask, “Has anyone ever filed a worker’s compensation claim?”

Your client is an employer accused of gender discrimination. You ask, “Please raise your hand if you believe that workers sometimes claim wrongful treatment when they simply don’t get what they want.”

Why would you do that, if the only answers you can get to these questions are ones that reveal potential allies? That is your adversary’s job, not yours. Your job is to help your supporters fly under the radar so that they can remain on the jury. If your question is likely to reveal nothing useful to you -- or worse, will point out who your friends are -- don’t use that question.

In other words: What is the single most important “Never Do” in voir dire? Clearly, it is to never ask questions that reveal who your fans are.

Instead, here is a voir dire Must Do: Invite your enemies to show themselves and make it as easy as possible for them to do so. 

For example, defending the toxic tort, ask “Some people feel that there isn’t enough government regulation because companies cannot be trusted to mind the environment on their own. Can anyone here relate to that at all? Explain.”

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Or as the personal injury plaintiff’s counsel, you’d be better off asking: “Some people favor capping damages, meaning putting a limit on the amount of money to pay in lawsuits, even if the plaintiff – meaning the injured party, such as my client – proves their case. Can you raise your hand if that makes some sense to you or you feel that way even a little bit?

For the employment defense, you might ask: “Many people are unhappy with their jobs or have had bad experiences in the workplace. Some feel they’ve been treated badly or unfairly at their job in some way. Can you think of any examples of how that may apply to you or someone close to you?”

As the song says, “Don’t believe me – just watch!” When someone says they can be fair, it is meaningless. “Fair” means using their yardstick. Instead, watch and listen to what they actually believe by asking meaningful and cautiously phrased questions. Assume that what they believe cannot be put aside, certainly not based on the transient request of a stranger to whom they have no allegiance and from whom they reap no benefit. Their beliefs can only stay where they live ... on their minds and in their decisions in deliberations. Better to reveal what they are before it’s too late.

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

A2L Consulting Voir Dire Consultants Handbook

Tags: Jury Consulting, Juries, Jury Consultants, Environmental Litigation, Voir Dire, Jury Selection, Labor and Employment

15 Things Everyone Should Know About Jury Selection

Posted by Laurie Kuslansky on Fri, Jun 12, 2015 @ 09:58 AM

voir-dire-consultants-mock-jury-selectionby Laurie R. Kuslansky, Ph.D.
Managing Director, Jury Consulting
A2L Consulting

1.  What makes a “bad” juror depends on your presentation plan.

It is easier to change your plan than to change the jury. Say you’re in Delaware (the headquarters of DuPont) and you plan to say at trial that your product is fine, and that DuPont makes a similar product, but yours is better than theirs. In that case, you might want to strike people with DuPont ties. The problem is that there are so many of them and they might otherwise be fine for your case, so instead of bashing DuPont gratuitously, drop this line of argument. Instead, frame the point more neutrally, e.g., that your client and DuPont make similar, perfectly fine products.

2.  You are not there to make friends, but to spot enemies.

We often find stock questions among the list of favorites at law firms that are exactly ... wrong, because they ask questions that reveal who their good jurors are. If you’re defending an employer in a wrongful termination case, don’t ask if someone has ever fired someone. Ask if they’ve ever been fired.

3.  Making friends is the best way to help your opponent know whom to strike.

If you sense you have a good juror, stop talking. Stop eliciting favorable information, but not so quickly that it signals a “tell” to your opponent.

4.  How you ask questions makes all the difference.

Do you want the “PC” answer or the truth? If you ask a juror whether she can be fair, of course she will say yes.

Instead of asking if someone can be fair, perhaps ask:

“Can you think of a reason you might not be fair in this case?”

“Is there any reason my client should be uncomfortable with you as a juror in this case?”

“What haven’t we asked that we should know?”

“Is there even a little doubt that you could completely put that out of your mind when deciding this case?”

5.  Asking open-ended questions yields better information.

“Can you describe your educational path?”

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6.  Asking why and how is more valuable than if, what and when.

It is more important to understand the reasons people chose to shift positions in their career path and how they felt about those changes than merely what jobs they had and when. Exploring transitions, whether professional or social, tells much more. Are they happy being retired? How did that come about – voluntarily or not? Is it the best thing or worst thing that ever happened to them? Why?

7.  Making it easy to express bias takes more than just asking.

It requires setting the stage so that people are comfortable to admit to bias. For example, rather than saying,

“Does anyone here think that rich people like my client don’t deserve to get richer – even if they are right?”

Create comfort to admit it:

“Many people aren’t comfortable making decisions that result in awarding money, especially a lot of money, to people who are already rich, and we understand that. If you may be one of those people, that’s fine. Just raise your hand and let us know your thoughts (but don’t give them a chance to espouse their opinions in open court and risk polluting the panel).”

“If you’re even the slightest bit hesitant to award my client money because you may think he/she does not need it, you’d be doing us all a favor by letting us know now.”

8.  Assume nothing.

Say your client is accused of mismanagement of money. You think that business supervisors will be your best friends. Think again. We often find that people with related knowledge and experience live to one-up your client and their opinion counts double to other jurors who see them as experts in deliberations. If you don’t ask pointed questions of them during voir dire, you won’t know if they are friends or frenemies until it is too late -- after trial.

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9. Revisit stereotypes.

Assume your case involves the issue of whether a driver did the right thing or not. You hear that someone is a stay-at-home mom and dismiss their potential for leadership. Think again. If they are in charge of the family chauffeuring and car-pooling, they may spend more time on the road than anyone else with a “day job.” Ask questions that are specific about backgrounds and experience without making assumptions.

10.  Judges are more willing to accept suggested voir dire questions from counsel that many lawyers assume.

Unless you ask, you won’t know, and sometimes a judge will vary his or her approach based on the case, so don’t assume that because they don’t usually permit this, or didn’t permit it the last time, they won’t this time.

11.  Know the rules.

Many people assume they know the local rules for jury selection, but in fact, overlook a number of potential resources that can help, such as what constitutes improper rehabilitation, the impact of prior jury service in disqualifying a potential juror, affiliation with insurance companies, whether you are entitled to make a record, and so forth. Does the verdict have to be unanimous? If not, what is required? Review these in detail and have them available in court to cite as needed. Judges may not like it, but it’s your right to make a record and to enjoy your rights. You may be surprised to learn what they are. Here’s an example for New York State available on the state court website: https://www.nycourts.gov/publications/pdfs/ImplementingVoirDire2009.pdf.


12.  Know the procedures in advance, e.g.:

How many peremptory strikes will each side get?

How many people will be in the voir dire pool?

How does voir dire proceed in that courtroom?

How many jurors will the judge put on the jury?

How many other jury trials are slated that week to pick from the same pool?

Will you be getting a fresh group or one that was already “picked over”?

Will there be alternates? How many? How many extra strikes does each side get for alternates?

What is the judge’s approach to hardship requests and excusals?

Who will ask the questions?

Will the judge permit the lawyers to speak to the prospective jurors directly?

Will he or she let the attorneys ask any follow-up questions?

What are the standard questions the judge or clerk always asks, if any?

What method does the judge use for reporting strikes – blindly, alternating, other?

How does the judge handle requests for strikes for cause?

What has the judge historically considered as a bias? Does the judge employ White’s or the Struck method? Do you have a choice/preference?

Will alternates be designated or not? If you pass your turn, do you lose your strike(s)?

Is there back-striking?

Will everyone be voir dired before you report strikes or only some, in rounds?

What information – if any – does the Court provide counsel in advance?

How much time will the judge give counsel to review the information before reporting strikes?

Is there wi-fi in the courtroom so your team can access social media about prospective jurors?

Can counsel and staff bring their mobile devices to court as a backup for online searches?

13.  Don’t assume jurors are aware of all the information that the trial team knows.

We often find that when an opponent runs positive ads about itself or a litigant gets bad press, it is top-of-mind to our clients, while jurors are unaware of it or don’t care. While such information is at the center of the client’s world, it is not at the center of the jurors’ world. You don’t want to use voir dire to alert people who were not aware of this information, but you do want to find out if anyone is aware and if that biases them. One way to explore this is, rather than mentioning the press specifically, to ask generally whether anyone has heard, seen or read anything about the company and, if so, to explore their response -- but not in open court or, if the judge permits, in writing.

14.  Check when proposed voir dire questions are due (in the pretrial motion? Another time?), leave time to review and edit, and don’t assign the task to people with no jury-selection experience. 

15.  Sometimes getting no information is better than getting information.

Remember, whatever you reveal, your opponent reveals at the same time. Lawyers instinctively tend to want more information and believe that more is better. However, they may forget that someone invariably benefits more from the information. For example, say your client is a manufacturer accused of making a dangerous product or a chemical producer charged with polluting the local groundwater. How many prospective jurors are likely against you just walking into the courtroom? Is it 75%, 80% or 90%? That means that about 10-25% may be open to hearing your side. If you ask nothing and learn nothing about the pool, you have a 1 in 4 to 1 in 10 chance of keeping your good juror(s). If you ask questions, on the other hand, then your opponent is less likely to miss them and more likely to strike them based on information rather than chance alone. You’d be better off with your opponent striking in the dark. In that case, ignorance can be bliss.

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

A2L Consulting Voir Dire Consultants Handbook

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

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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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