by Ken Lopez
Founder/CEO
A2L Consulting
When someone first works in the litigation consulting industry, the last-minute nature of trial preparation very often shocks them. In my experience, about half of all trial teams spend months or years preparing and testing themes, rhetorical strategies, and different approaches to their visual trial presentation. The other half of trial teams jam all trial preparation into the last month or two before trial.
No one approach is right for everyone, and I have certainly seen both approaches work well. After all if you are forced to prepare at the last minute, you're forced to simplify a case, and that's a good strategy for bench and jury trials. On the other hand, the ability to test and refine elements of the case is now a real science, and any case can benefit from a mock trial, the recommendations of litigation experts and other sophisticated testing.
While both strategies can work, when possible, I think slow and steady trial preparation wins the race more often. Still, we do great work in the last month before trial all the time, and sometimes there is just no other option. For those times when you have a choice, below are 12 reasons why last minute trial preparation might just set you back far enough to warrant starting now.
1. Last-minute costs more. I fear that some litigators believe that fewer hours available means lower cost for trial preparation. The opposite is usually true. Last-minute means your litigation consulting consultants have to use available staff rather than the ideal staff for a project. Often this leads to the use of more expensive staff and higher costs. Further, last minute trial preparation normally means using many more people to achieve the same result within a safe margin of error.
2. Building a good story takes time. We've written quite a bit about storytelling in the courtroom, we've published a book about storytelling in litigation, and we even have a webinar you can watch any time devoted to courtroom storytelling. The connection between storytelling and persuasion is a close one as scientific studies are increasingly proving. Unfortunately, like a fine wine, crafting a persuasive story is not something that should be rushed.
3. Maximizing persuasion in your litigation graphics takes time. Anyone can make a PowerPoint presentation quickly using a template and a few bullet points. However, as I wrote recently, Good-Looking Graphic Design ≠ Good-Working Visual Persuasion. If it's done well, it will be hard to do, require expertise and it will take time. I've written before about how the litigation graphics you don't use contribute enormously to your presentation, and an indicator of a good presentation is how full your trash can of unused litigation graphics is. To get to the point where you can reject some and keep others requires time for the creative process. See also, 16 PowerPoint Litigation Graphics You Won't Believe Are PowerPoint.
4. Getting your trial technology configured takes time. Rush or ignore your technology set up and months of preparation can be for naught. There's no winning back your credibility after a technology flub, a courtroom delay or an outright technological failure.
5. Mock trials really work. Mock trials are not about predicting precisely what will happen at trial as many lesser jury consultants might suggest. Rather, mock trials are useful for understanding how a judge or jury will react to the case, learning how an expert will perform, learning from practice what really works in your approach, learning your ideal juror profile, understanding your opposition's case and for helping to find those levers that will give you an edge at trial. See 7 Reasons In-House Counsel Should Want a Mock Trial, Why Do I Need A Mock Trial If There Is No Real Voir Dire?, 6 Good Reasons to Conduct a Mock Trial and 11 Problems with Mock Trials and How to Avoid Them. We have done a mock trial two-weeks before trial, but it is not an ideal approach. It is normally best to complete your final mock months before trial to give time for analysis and adjustment.
6. You wouldn't play a World Cup game without practicing (Congratulations to the U.S. team for advancing to the final 16 today!), why would you go to trial without some serious practice? See The Magic of a 30:1 Presentation Preparation Ratio, The Very Best Use of Coaches in Trial Preparation, 3 Ways to Force Yourself to Practice Your Trial Presentation, and Practice, Say Jury Consultants, is Why Movie Lawyers Perform So Well.
7. Failing to understand the courtroom layout is a problem. Every court is different. Some will not accommodate an electronic presentation. Some do not easily accommodate a printed trial board. Some judges won't allow either. If you don't know these things in advance, you're setting yourself up for trouble and this all takes time to sort out.
8. There's every chance you'll win or lose in opening, so it's critical to get it right. See 6 Reasons The Opening Statement is The Most Important Part of a Case. Taking time to prepare your opening using modern approaches for drafting an opening statement requires ample lead time. See 7 Ways to Draft a Better Opening Statement and How to Structure Your Next Speech, Opening Statement or Presentation.
9. Too much gut. When trial preparation time is limited, a litigation team has to rely too heavily on its gut instincts and not enough on a scientific analysis of what will work. The good news is that successful litigators have the best people-focused gut instincts I've ever seen. However, great instincts coupled with great analysis, science, an outside perspective and modern trial expertise are always better.
10. You'll never be as confident as when you're well-prepared. Many in the litigation industry are great actors when it comes to feigning belief, indignation, and passion. It's part of the job. However, people can read subtle clues. If you're truly prepared and you know you are, confidence will come through. There's just no substitute for it, and it's not something that can be downloaded Matrix-style.
12. Settlement is less likely. As my colleague Dr. Laurie Kuslansky wrote in Don't Be the 2% - 6 Ways to Encourage Settlement with Trial Prep, there are so many ways to prepare for a case that simultaneously encourage settlement. When you prep a witness and test them and when you run a mock trial and understand strengths and weaknesses of a case, you are necessarily in a strong position to consider settlement. These steps take time.
13. Fewer Choices: When a student skips college, there's no reason they can't be as or more successful than a college graduate, but their options for success are more limited. The same is true with trial preparation. A trial team who waits until the last minute to prepare has fewer choices for how to prepare. I always prefer more choices, and I think most litigators and clients feel similarly.
Other A2L Consulting articles relating to trial preparation, litigation graphics and mock trial work:
- 7 Reasons It's Okay to Procrastinate on Your Trial Preparation
- The 14 Most Preventable Trial Preparation Mistakes
- Sample One-Year Trial Prep Calendar for High Stakes Cases
- Litigation Consultant: Embrace a Two-Track Strategy & Win the War
- 17 Trial Consulting and Jury Consulting Tips for Midsized Law Firms
- The BIG List of All 337 Litigation Consulting Report Articles
- 7 Ways to Prepare Trial Graphics Early & Manage Your Budget
- 10 Reasons The Litigation Graphics You DO NOT Use Are Important
- What Does Using a Trial Technician or Hot-Seater Cost?
- 13 Revolutionary Changes in Jury Consulting & Trial Consulting
- Witness Preparation: Hit or Myth?
- 6 Good Reasons to Conduct a Mock Trial
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