"Only do what only you can do." My mentor throughout the 1990s and 2000s used to say this to me, and it was one of the best lessons a CEO with a fast-growing company could hear. The message was, of course, to stop trying to do too much myself and let other people do their part. Don't micromanage. Don't rescue. Don't interfere. Don't hover. And do let people learn by doing - even if it means making (small) mistakes. The overall message was to delegate responsibly. Based on three decades of observing the world's best trial lawyers, I can confirm that the best trial lawyers are experts in delegation, whether they are first chair or fifth chair. However, many trial lawyers, particularly those with many members on a trial team, would benefit from better following the lead of the greats. The problems I've seen (and I bet you have too) are numerous. Because a trial lawyer can use PowerPoint, some insist on doing some or all of the litigation graphics. See, 12 Reasons Litigation Graphics are More Complicated Than You Think. Because they've lived with the case for years, many trial lawyers are anxious about conducting a mock trial or asking for feedback on their planned narrative. See, 50 Characteristics of Top Trial Teams and The First Version of Your Story Is NOT Your Best.
Working at A2L, I have the distinct pleasure of watching many of the world's best trial lawyers prepare for trial. Most start months or years in advance. Those lawyers engage A2L early to do theme testing with a focus group or to organize and run a mock trial. Each of these events requires the creation of litigation graphics and usually assistance in developing an opening statement. Having watched so many great trial lawyers prepare for 25 years, I have been able to observe patterns in how they prepare. Below I share ten chronologically ordered tips (plus accompanying resources) based on these observations. If you're less than one year from trial, I hope these tips are still helpful, and I hope you will get in touch with me. More than one year from trial: There is no better time to do theme testing then when discovery is still open. Read more in How Early-Stage Focus Groups Can Help Your Trial Preparation and as you start this journey, always remember that Great Trial Lawyers Behave Differently. One year before trial: Plan your first of two mock trials. There are dozens of good reasons to conduct a mock trial, but forcing yourself to prepare early may be the very best one. Read my one-year trial planning guide and read A2L's Opening Statement Toolkit. Also, it is a good time to read A2L's Jury Consulting and Mock Trial Handbook. Nine months before trial: Begin or continue development of your litigation graphics. If you conducted a mock trial, you already have a good start. Read How Long Before Trial Should I Begin Preparing My Trial Graphics?, 10 Reasons The Litigation Graphics You DO NOT Use Are Important and The 13 Biggest Reasons to Avoid Last-Minute Trial Preparation. Six months before trial: Refine your opening statement story and the visuals that will support it. Make sure your experts have their visuals being worked on by your litigation graphics team - not the in-house people at the expert's firm. Watch Persuasive Storytelling for Trial Lawyers and read Storytelling for Litigators. To help develop your experts, have them read this three-part series on How to Be a Great Expert Witness. Three months before trial: Conduct opening statement practice sessions with your trial team, litigation consultants, and your client. Read The First Version of Your Story Is NOT Your Best, 3 Ways to Force Yourself to Practice Your Trial Presentation, and Practice, Say Jury Consultants, is Why Movie Lawyers Perform So Well.
At A2L, we work on many disputes and trials of various types and sizes. Before starting work, we routinely provide our customers with estimates of what we think it will cost to engage us to conduct a mock trial, prepare trial presentations, assist in the development of the opening statement, and run the courtroom technology. While it’s never easy to estimate the final costs of fast-moving complex litigation, it's something that firms like ours and large law firms do every day. We've been doing it for 24 years, and we've even pioneered some innovative pricing strategies for litigation graphics and trial tech work. However, I've noticed two schools of thought when it comes to estimating, and one of them seems to lead to better outcomes. In shorthand, I'll call these two methods a top-down method and a bottom-up method. In my experience, the top-down method leads to more successful engagements, more wins, and much better and trusting relationships.
I’m far from alone in asserting that Steve Jobs was an inspiration to many entrepreneurs and CEOs of all ages. For many of us, his contrarian thought process, rigorous attention to detail, and spectacular showmanship formed a model for how to innovate, run a business, and find new customers. I tracked Jobs’ career during my college and law school days and went so far as to email him a couple of times to thank him for the inspiration that he provided to me. Over the years, his 2007 speech introducing the iPhone served as a model for me. It showed me how to make a presentation that is both informative and inviting. I’ve written about that here. Later, when I was preparing to deliver a commencement speech, I used his 2005 Stanford commencement talk as an example. Steve Jobs’ presentations were admired by many. But not as many people have looked behind his presentations to understand that level of preparation that was involved in each presentation. An article earlier this year from Inc. magazine said it very well: Every product launch was brilliantly performed. Every move, demo, image and slide was in sync and beautifully choreographed. If I sound like I'm describing a Broadway show, you're right. A Steve Jobs presentation had more in common with an award-winning theatrical performance than a typical product launch. Apple still uses the time-tested formula including the final secret ingredient: Jobs rehearsed relentlessly. Carmine Gallo, the author of this article, pointed out that Jobs’ presentations looked effortless precisely because he put so much effort into them. These ideas are totally in keeping with the conclusions that I have reached in three decades of observing trial lawyers. I’ve heard far too many first-chair trial lawyers claim that the reason they didn’t practice their opening statement relentlessly was because it wouldn’t appear spontaneous if they did. Quite the contrary; the openings that I have heard that appeared the most spontaneous were precisely the ones that were the most thoroughly rehearsed. Apparently, Steve Jobs shared that approach. His grueling hours of practice became legendary in the tech industry. The Inc. article, in analyzing the desirable amount of practice time, concluded that the ideal is the 20-20 rule, which means that for a 20-minute presentation, one should go through the whole thing at least 20 times. This is consistent with the conclusions that I’ve reached about trial practice. We like to use a rule that a 60-minute opening should be practiced for at least 30 hours. We all want to look relaxed, confident and conversational in making our presentations. That is a good instinct because that style is in fact persuasive, but the way to get there is not with last-minute cramming, an opening statement practiced privately in a hotel room with no one listening, or an off-the-cuff talk relying on a few bullet points. The best openings I’ve ever seen are the result of countless hours of practice — often done in one-to-one sessions with an A2L litigation consultant. As is the case with any presenter, practice is what separates good trial lawyers from great trial lawyers. You might say, great trial lawyers just “think different” when it comes to practice. Other free A2L articles about trial preparations, delivering great presentations, practice, and developing opening statements include: $300 Million of Litigation Consulting and Storytelling Validation Conflict check: Be the first to retain A2L 3 Ways to Force Yourself to Practice Your Trial Presentation Dan Pink, Pixar, and Storytelling for the Courtroom Practice is a Crucial Piece of the Storytelling Puzzle Three Top Trial Lawyers Tell Us Why Storytelling Is So Important Winning BEFORE Trial - Part 3 - Storytelling for Lawyers Free A2L Consulting Webinar: Persuasive Storytelling for Litigation Storytelling at Trial Works - But Whom Should the Story Be About? Free 144 page A2L E-book download: Storytelling for Litigators Free A2L webinar - Storytelling as a Persuasion tool The Magic of a 30:1 Presentation Preparation Ratio The Very Best Use of Coaches in Trial Preparation 12 Ways to SUCCESSFULLY Combine Oral and Visual Presentations 7 Ways to Draft a Better Opening Statement In Trial Presentation - A Camel is a Horse Designed by Committee The 12 Worst PowerPoint Mistakes Litigators Make 12 Reasons Bullet Points Are Bad (in Trial Graphics or Anywhere)
It’s a phenomenon that I’ve seen countless times – renowned first-chair trial lawyers seeking to maintain hands-on control of their trial presentation by literally holding on to the clicker. Unfortunately, despite these lawyers’ sometimes desperate efforts to keep control, something almost always goes wrong in these situations. For example, lawyers can lose track of their place and get ahead of their presentation in PowerPoint or another form of presentation software. They can try to go back a slide or two and find that they can’t get back. They can even click around so wildly that they crash the software during an opening statement. As one can imagine, these scenarios can lead to a cascading meltdown for the presenter, who can become increasingly flustered. I’ve seen trial lawyers stop using their presentation software just because of an unanticipated “clicker crisis.” This level of crisis can be highly destabilizing for the lawyer’s team, as the lawyer’s frustration can spill over to the judge and jury. It can cause an immediate lack of credibility. At the very least, it can create distance between the trial team and the judge or jury, just at the moment when the team should be building rapport. The solution is remarkably simple. In a recent article, I wrote about Israeli Prime Minister Benjamin Netanyahu’s presentation concerning Iran’s nuclear capabilities. If you watched Netanyahu for even a few seconds, you noticed that he wasn’t controlling a clicker. He looked prepared, confident and convincing – and one reason for that is that he used the political equivalent of a trial tech or hot-seat operator to take charge of the clicker.
Quite frequently, defendants in major cases will decide to form joint defense groups. Joint defense groups are intended to provide defendants with significant efficiencies that result from common effort in facing a common adversary, whether in a patent case against the same patent holder, tort litigation against the same set of injured people, white-collar criminal actions against the government, antitrust litigation against the same plaintiff, and so on. But joint defense groups, which by their nature bring together several high-powered lawyers at a single defense table in the courtroom, can present unique challenges. Sometimes, joint defense groups will work as planned and the defendants will reap the benefits of their cooperation, and sometimes they will break down. Here are some best practices for joint defense groups to follow at trial that will help them succeed rather than fall apart in the heat of trial. Clear Leadership. The group should pick a clear leader. Studies of organizational behavior and dynamics show that for “pop-up businesses” with limited durations and specific tasks to accomplish, like movie production crews or trial teams, success is associated with the early selection of a team leader. Many trial teams may be afraid to antagonize a lead attorney for one of the parties who is not chosen and may thus hesitate to make a choice, but it is best to pick a leader and move forward that way. Just Enough Consultants. The group should pick one consulting firm for each trial-related task – for example, one consultant to handle all graphics and litigation consulting. The “too many cooks” phenomenon is definitely present if the group decides to select multiple vendors for key consulting roles in the trial. The attorneys should be focusing on their case, not on resolving disputes between vendors.
The trial technician, sometimes called the hot-seater, is the person who runs the courtroom technology so that a trial team does not have to do so. A trial tech typically uses programs like Trial Director to manage thousands of exhibits and has each at the ready to be displayed and highlighted. During opening, closing, and expert testimony, the trial tech runs the PowerPoint system to ensure flawless and well-choreographed presentations. The benefit of using a trial technician is that the trial team can focus on the law and the facts and can concentrate on connecting with the judge and jury rather than having to worry about the technology. When the relationship between trial counsel and the trial tech is smooth and well-rehearsed, the presentation looks like a perfectly planned and executed professional live production. We have been deploying trial technicians around the country for trials long and short for the past three decades. We were even sending out trial techs before PowerPoint was being used in the courtroom and when the preferred format for electronic evidence handling was the laser disk. In this time, we have employed dozens of trial techs and have learned what makes a good one and what kind of preparation equals success. Here are 12 tips for finding just the right technician: 1. Experience is everything. Our techs usually have a dozen or more major trials under their belts. Some have been to trial hundreds of times. They also routinely run the technology at hearings and during arbitrations/mediations. See, With So Few Trials, Where Do You Find Trial Experience Now? 2. The first-chair attorney must be willing to practice with them. There is no substitute for practice and preparation in the courtroom. The great trial lawyers practice frequently so that the trial looks flawless. See Practice, Say Jury Consultants, is Why Movie Lawyers Perform So Well. 3. They have war stories galore - particularly in overcoming problems. Courtrooms are not usually state of the art, so much of the technology must be brought in or enhanced. Otherwise, jurors are left wondering why their own living rooms and work conference rooms are much more advanced than what your trial team is providing. Great trial techs have overcome hundreds of small issues in a trial. See 12 Ways to Avoid a Trial Technology Superbowl-style Courtroom Blackout.
Dr. Robert Cialdini has identified six basic principles of persuasion. One of them is liking. If people like you, they are more likely to say yes. Why is that important to a litigator? Quite simply, any litigator wants to persuade a jury, judge or other adjudicator to agree with her, and if the adjudicator likes her, she is more likely to win her case. The key to getting someone to like you is to remember that it’s not just a momentary feeling but a sum of everything that the person thinks about you – and that the feeling is not permanent, but you can at any time do something to improve or to detract from the person’s feeling about you. As a litigator, you are always one misstep from losing the audience. Here are ten things you can do as a litigator that will make you more likable: Focus on how you are perceived. In 2015 Jimmy Fallon put U2 in disguise and had them play at the 42nd subway stop in New York City. Even with cameras around, and the odd fact that the lead singer sounded just like Bono, they were largely ignored. Jimmy then framed the band (again in disguise) as a local band wanting support. Suddenly, once it was known they are U2, everyone went crazy. The most remarkable part was seeing an adolescent looking at them when in disguise as if he is waiting for a car crash, but the next time you see him, after the reveal, he is dancing and completely loving what he is hearing. They music did not change, just the framing. How you appear to your audience will set the stage for how they react and their willingness to give you the benefit of the doubt. See also, Like It or Not: Likability Counts for Credibility in the Courtroom. Ask questions. It is human nature to be helpful, and we all have the desire to share what we know. When someone appears to need our help, we tend to like them more because we are the ones providing answers. Just remember HOW you ask them is crucial.
On this day sixty years ago, a 34-foot-tall Soviet rocket lifted off the Earth from a Cosmodrome in present-day Kazakhstan. Its payload -- a shiny silver globe with four external antenna masts to broadcast a repeating radio chirp back to Earth. The Soviets called it Prosteyshiy Sputnik 1 -- “Simple Satellite 1.” The world’s first successful orbiting satellite was tiny, just 22 inches in diameter and weighing 184 pounds. But its “beep-beep -- beep-beep” signal was rebroadcast everywhere and easy to pick up directly by shortwave radio. Sputnik could also be seen in orbit by the naked eye, the sun glinting off its polished shell. In the moment a person first heard or saw Sputnik, they were catapulted into a new and different world. For 21 days Sputnik circled our planet, captured our imaginations, reshaped American national priorities, and changed the order of our lives. The Space Race began. NASA opened for business one year later. Within twelve years, Apollo 11 delivered two Americans to the Moon. Back to present-day Planet Earth. You are a lawyer on a jury trial. Opening statements begin tomorrow. How will you capture the attention of your audience of jurors? How will you get them to pay close attention, to focus on what matters most for your client? Even the best storyteller struggles with this. And to be honest, many trial presentations are, by their nature, not exactly heart-stopping. Plan for that. Find some element of the narrative that commands attention from the jurors, that challenges them to think deeply and to care genuinely about what is going on in that courtroom. Capture the jurors’ attention in that opening statement, and you can have it again later, coming back to that moment when the story struggles to engage the listener. Give jurors that moment they crave, that leaves them changed by something they just heard or saw. Make jurors feel that the trial will make a difference in someone’s life, even in their own lives. Mark the spot in the case that separates life “before” and life “after.” Ask yourself, what is going to be your trial’s “Sputnik” moment? Other free A2L articles A2L and free webinars related to opening statements, storytelling, and being memorable at trial include: 6 Ways to Use a Mock Trial to Develop Your Opening Statement Free Download: Storytelling for Litigators E-Book 3rd Ed. 14 Differences Between a Theme and a Story in Litigation 25 Things In-House Counsel Should Insist Outside Litigation Counsel Do 5 Things TED Talks Can Teach Us About Opening Statements 7 Ways to Draft a Better Opening Statement 5 Ways to Maximize Persuasion During Opening Statements - Part 1 Why a litigator is your best litigation graphics consultant 6 Reasons The Opening Statement is The Most Important Part of a Case How to Structure Your Next Speech, Opening Statement or Presentation The Effective Use of PowerPoint Presentation During Opening Statement 5 Things Every Jury Needs From You Is Hiring a Jury Consultant Really Worth It? Free A2L Consulting Webinar: 5 Ways to Maximize Persuasion During Opening Statements — Watch Anytime 12 Insider Tips for Choosing a Jury Consultant
by Ken Lopez Founder/CEO A2L Consulting Every month, 1,000-2,000 free e-books and webinars are downloaded and viewed on A2L Consulting's web site. These free resources are likely the single best place on the Internet to learn how the best trial lawyers prepare for and win at trial. It's an exchange of litigation's best practices like no other. Judging by the topics searched for and read during the 100,000+ visits to A2L's website and industry-leading litigation blog so far in 2017, the legal industry is especially eager to learn more about voir dire, storytelling for persuasion (including visual persuasion), and jury consulting generally. Below are the top 10 free litigation best practice resources that have been downloaded and viewed so far in 2017. Choose your favorite(s) now, share this list with friends, and improve your results. Really, everything below is complimentary. 10. The Opening Statement Toolkit: 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. 9. Why Work with A2L: This free guide details how we think as litigation consultants and the value that litigation consultants provide generally. It's a useful tool to hand to in-house counsel to explain how jury, graphics, and technology consultants can contribute to winning a case. 8. Top 75 Articles of All Time: Our litigation consultants have compiled 75 expert articles on topics related to litigation support and litigation generally. This free book compiled the top 75 articles written in the first five years of our litigation and persuasion blog. 7. The Voir Dire Handbook: This one-of-a-kind and brand-new book will be helpful to junior and veteran courtroom practitioners alike. Because the composition of a jury can dramatically affect the outcome of the case, it is vitally important to get voir dire right and use whatever tools are available for doing so. 6. Using Litigation Graphics at Trial: In our most comprehensive e-book about litigation graphics and courtroom persuasion, A2L's jury and graphics consultants have compiled 74 expert articles in what is a first-of-its-kind book. 5. Tactics for Complex Civil Litigation: Whether you are a veteran trial lawyer or support trial teams, you will find this book valuable. This guidebook includes 74 articles about how to best to prepare and try a complex civil case for bench and jury trials. 4. How to Use Storytelling in Litigation E-Book: In our biggest e-book yet on courtroom storytelling, our litigation consultants have compiled 75 expert articles on topics related to litigation support and litigation generally. 3. How to Design and Use a Great Trial Timeline: This book is a must-have for anyone who prepares informative or persuasive timelines designed to influence and change what people think. 2. Using Storytelling as a Persuasion Tool at Trial Webinar: Whether you are in-house counsel, outside counsel, or litigation support, this 60-minute webinar plus 20-minute Q&A will improve your understanding and use of storytelling techniques during litigation. Led by seasoned litigator, Tony Klapper. 1. The Litigation Consulting Report Blog: Every month, 200 or more people subscribe to our blog. Six years into its existence, there are nearly 10,000 subscribers. You or a friend can subscribe free here, and you can control how often you hear about new articles (published 1x-3x/week) here.
Law360 is a top legal industry publisher owned by Lexis-Nexis. Its daily newsletters are a must-read for trial lawyers involved in big-ticket litigation. This interview, Trial Consultants Q&A: A2L Consulting's Ken Lopez, was originally published on April 28, 2017, and is reprinted here with permission. Links to A2L articles and resources have been added by A2L in this reprint. Q: What aspect of trial consulting do you and your firm specialize in? What is unique about your firm, compared to other trial consulting firms? A: Founded in 1995, our firm is a leading national litigation consulting firm that helps trial lawyers and other advocates more reliably win complex and high-dollar disputes. We are typically in trial year-round and deliver world-class client-pleasing results in three key service areas: jury research and consulting, litigation graphics consulting, and trial technology consulting. We have recently been voted #1 in each of these categories by major legal publications. The composition of our leadership distinguishes it from other trial consulting and litigation consultant firms. Unlike firms whose origins are rooted in the trial technology business, the engineering business or the marketing/public relations fields, our team is composed of experts in the persuasion sciences. These include former litigators from top law firms, attorney-artists and social science Ph.Ds with decades of experience working with judges and juries. We primarily serve AmLaw 100 law firms and their clients. However, the firm regularly works with boutique law firms and in-house departments. It counts amongst its clients nearly all top law firms and a large portion of the Fortune 500. Most people find A2L through its litigation and persuasion-focused blog, The Litigation Consulting Report. It has nearly 10,000 subscribers and was named one of the top ten blogs in litigation by the American Bar Association. Q: What was the most interesting or memorable case that you worked on? A: The average case at A2L Consulting is a business dispute between global companies with $100 million at stake where we provide jury consulting, a mock trial, litigation graphics, and courtroom hot-seat trial technology support. One of our most memorable cases was entirely — not average. Through a top trial lawyer, we were hired to work on behalf of a surviving family member of the 1996 crash of ValuJet Flight 592 in the Everglades. This was not a plane that exploded or quickly crashed. Instead, oxygen containers in the cargo area helped fuel a fire that caused smoke to fill the plane. Then, the oxygen-fueled fire burned through the passenger cabin floor from below. After some time, controls on the plane were destroyed by the fire. Then, the plane flipped and dove into the Everglades below. No one survived. It took a long time for the tragedy to unfold and the passengers had awareness of what was happened. We know this because the plane was equipped with recording devices in both the cockpit and the passenger cabin. The recording is confidential, but none of us who worked on this case will ever forget what we heard on that recording. To help the jury visualize the experience the passengers had, we could have created a 3-D animation to show what the experience inside of the cabin was like. Instead, we synced that chilling audio with an animation we created that helped tell the tragic story. Once the animation was admitted into evidence, the case quickly settled. Q: Which stage of the trial process is the most challenging, and why? A: While we support all phases of litigation from prefiling to appeal, our firm most often focuses its consulting efforts on the opening statement. Indeed, we speak and write about opening statements often. Perhaps second only to jury selection, the opening statement can make or break an entire case. It provides the framework and narrative upon which the judge or jury will hear the evidence. For many, consciously or subconsciously, the decision about the outcome of the case will be made during opening statement. Because the opening statement is so critical, the best trial lawyers expend enormous amounts of effort preparing for openings. I’ve seen some trial lawyers practice their opening more than 100 times over the course of a year. Not surprisingly, these trial lawyers tend to win their cases. In every type of litigation consulting we provide, the opening statement is a central focus. When we conduct a mock trial, the attorneys present their openings to mock jurors or mock judges. When our senior litigation consultants work with top trial lawyers to refine their trial presentation, we ask them to present their openings as part of that process. When we design a PowerPoint presentation for opening, we ask our clients to do run-throughs of openings. When we introduce one of our trial technicians/hot-seat operators to a trial team, we ask the first chair to practice opening statements so they develop a rapport with the trial tech. Indeed, sometimes, we are asked to draft an opening statement as part of our litigation consulting effort. Opening statements are the most challenging part of the trial process because they should be. Cases are regularly won and lost because of them. Q: How has trial consulting evolved over time? What major differences are there between the industry when you started and the industry now? A: Our firm, now a national litigation consulting firm with jury consulting, litigation graphics consulting and trial technology consulting practices all voted #1 by the legal industry, was started as Animators at Law, an animation and litigation graphics firm for trial lawyers focused on persuasion. Back in the mid-1990s when we started our firm, the idea of using demonstrative evidence/litigation graphics during a trial was new. Today, no serious trial lawyer would go to trial in big-ticket litigation without litigation graphics and nearly all would hire a litigation graphics consulting firm like ours. When we started our firm, PowerPoint did not exist. Most litigation graphics were printed trial boards. Today, trial boards are used as unique emphasis tools that supplement a PowerPoint trial presentation. The practice of jury research has changed too. It has evolved from a guru-dominated practice where gut instinct drove many decisions. Today, there is more scientific rigor among top jury research firms. They let the data speak for itself and supplement that data with advice based on experience. Of course, the trial technology practice has radically changed. In the 1990s, it barely existed. Now, the complexity of cases demands that an experienced trial technician/hot-seat operator run the technology, show the trial presentation and be ready to pull up evidence on a moment’s notice. Q: What are some of the biggest challenges when working with attorneys and their clients? A: One of my colleagues likes to say, “they call it the practice of law, but nobody is practicing.” I agree wholeheartedly. If I could change one thing about the way trial lawyers prepare for trial, it would be the way they practice. The correlation between open practice in front of peers and winning cases is unmistakable. Half of the time, trial lawyers practice extensively and seek feedback from litigation consultants and colleagues. These lawyers tend to win their cases. When we see a trial lawyer who wants to privately prepare their trial presentation on the eve of trial, we worry. It’s not that this approach can’t work. It often does. Instead, we simply recognize that the more a trial team openly practices, the more often that trial team wins.
by Ken Lopez Founder/CEO A2L Consulting The best defense lawyers come to A2L with their toughest cases. This means that some of the cases that arrive on our doorstep are essentially unwinnable. Although the trial team won't often directly say so, they will say, “The client considers a plaintiff's verdict for anything between zero dollars and XYZ dollars a win." In these cases, typically, there is no good settlement position. Our company is highly focused on winning cases. We just love doing it, and it is central to our culture. So it can be a tough adjustment for our team and our clients when we have to accept that we're going to lose. Surprisingly, there is a real art to this. Here are the trial strategies we recommend when taking a case to trial and your goal is not to win, but to lose an acceptable amount of money. Test the case with a mock jury (to be sure you lose). All cases with sufficient dollars or issues at stake benefit from research in a mock trial process. This is true whether it’s a bench trial or a jury trial. Often, when you are listening to your mock panel deliberate, you hear a line of reasoning that may take your argument in a new and positive direction. See 7 Reasons In-House Counsel Should Want a Mock Trial and 12 Astute Tips for Meaningful Mock Trials and 6 Ways to Use a Mock Trial to Develop Your Opening Statement. Test the case with a mock jury (to know why you lose). It's often surprising to me how independent panels of mock jurors will reason through a case the same way. There are patterns common to almost all juries. However, it is actually helpful to hear multiple panels from a mock jury separately reason through a case and pick the same good guys and bad guys and apply the same set of values to decide the outcome. See 10 Things Every Mock Jury Ever Has Said and Webinar: 12 Things Every Mock Juror Ever Has Said.
by Ken Lopez Founder/CEO A2L Consulting
by Alex Brown Director of Operations A2L Consulting I read an article today that can be applied to our industry so well that I thought I should apply its lessons. The article was written by Eddie Shleyner and is titled: How to Defeat Your Most Dangerous Writing Habit: 7 Ways to Lift 'The Curse of Knowledge' The article highlights the concept of being cursed due to knowing too much. The issue refers to someone who has studied a subject so thoroughly that it becomes difficult to explain it to people who don’t know as much about the subject. As an example, he discusses the book, Made to Stick, where the Heath brothers provide an example: “Think of a lawyer who can’t give you a straight, comprehensible answer to a legal question. His vast knowledge and experience renders him unable to fathom how little you know. So when he talks to you, he talks in abstractions that you can’t follow. And we’re all like the lawyer in our own domain of expertise.” Cognitive bias is what we are talking about. Shleyner notes that this is particularly dangerous to writers, since in conversation, a listener can ask questions to clarify the issue. But litigators, when giving an opening or closing statement, are in the same boat as writers since they are unable to ask or receive questions from their audience. So, how can you defeat this curse? Ironically, more knowledge is the answer. The more you know about the curse, the less likely you will succumb to it and the more persuasive you will be. Let’s take a look at his seven best practices to combating this curse and apply them to our industry. 1. Know your audience’s base subject knowledge. Jury Research. Focus Groups, Mock Exercises. Basically, you need to know your audience. Not only to know how they think, but why, what, who, where and the often forgotten wow. Learn how they think, learn the history to know why they think this way, but most importantly, figure out how to say it in a way that will wow them and be remembered. Like It or Not: Likability Counts for Credibility in the Courtroom 5 Reasons Why Jury Consulting Is Very Important Group Psychology, Voir Dire, Jury Selection and Jury Deliberations
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