by Ken Lopez
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:
- 25 Things In-House Counsel Should Insist Outside Litigation Counsel Do
- 5 Signs of a Dysfunctional Trial Team (and What to Do About It)
- In-House Counsel Should Make Outside Litigation Counsel Feel Safe
- Explaining the Value of Litigation Consulting to In-House Counsel
- 7 Things In-House Misses When Litigation Consultants are Underutilized
- 9 Things In-House Counsel Say About Outside Litigation Counsel
- 9 Things Outside Litigation Counsel Say About In-house Counsel
- 5 Tips for Working Well As a Joint Defense Team
- $300 Million of Litigation Consulting and Storytelling Validation
- Font Matters - A Trial Graphics Consultant's Trick to Overcome Bias
- 12 Reasons Litigation Graphics are More Complicated Than You Think