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I love what we can do with data at A2L, particularly when we couple well-chosen words with well-designed litigation graphics. I think this area of our litigation consulting work is one place we add tremendous value. We can overplay a threat, or we can make something seem harmless. The latter is MUCH harder to do. Today, I'll focus on how one can use language and data to either inflame or calm your audience selectively. Why would you want to do this? Frankly, it's one thing trial lawyers and trial consultants do every day. Litigants on both sides of a case work with highly creative people who find ways to message the truth in a way that favors the client. Virtually every type of case benefits from this kind of statistical messaging. Fear is the best lever we have to motivate decision-making. We've written about this sort of thing before in articles like: 6 Ways to Convey Size and Scale to a Jury 5 Demonstrative Evidence Tricks and Cheats to Watch Out For What Trial Lawyers Can Learn From Russian Facebook Ads Trial Presentation Graphics: Questioning Climate Change in Litigation Using Trial Graphics & Statistics to Win or Defend Your Case Numbers in Litigation Graphics Do Not Lie, People Do The coronavirus is no joke, and I don't intend to be lighthearted or flippant about it. But, most of us are talking about every day now, right? And, the cacophony of those discussions will only get louder over the next month. It's an accessible and relevant example to use to make a point, and this article might even give you a talking point or two. As you read this article, remember, the point of this post is to point out how easy it is to use (arguably) accurate data to influence decision-making, not to use false data to make your point. Anyone can do that. So, should you be scared of the coronavirus? Presented below are two sets of five talking points, and all of them are true. As you read through them all, ask yourself, which side won out? Fear or peace. 5 Reasons to Be Terrified of the Coronavirus It's everywhere, and there is no cure. COVID-19 is probably very widespread already, and more frighteningly, we just don't know how widespread. We've all heard that testing in the U.S. was flubbed very badly. Source. So, given that we've only seen 135 cases in the United States, why might we worry that it is everywhere? Well, the old lily pad adage explains why worrying about the spread is well-founded. If you know a pond will be fully covered by lily pads after 48 days, and that lily pads will double in coverage every day (as the coronavirus does), how many days will it take before the pond is half covered? Our readers are some of the smartest, most educated people in the world, so I bet you figured that one out. It's day, forty-seven. But, the point of this example is the troubling follow-up question: at what point would you really notice the lily pad coverage? The answer is somewhat scarily, maybe, day forty-three, forty-four, or day forty-five when coverage is around 5-10%. So, we only may be at day five or so in this metaphor, which is why we don't really notice the virus close to us yet. The incubation time before symptoms show up may be weeks, and many never show symptoms. Maybe we will understand how widespread it is once actual testing starts in a week. One expert believes there may already be 100,000 cases in the U.S. Source. Brain damage. Announced yesterday, it can cause brain damage. Source.

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Happy Super Tuesday in a presidential election year. Conventional wisdom tells us that America is more divided than ever. I think that is overstating things, but people certainly do seem dug into their belief systems these days. No amount of facts, data, or education will cause some people to change their minds about certain topics. And this is a great thing -- IF you're involved in jury selection. The entirety of human knowledge acquired over the last 100,000 years can be accessed in seconds using a device you always have with you. But if you  believe something about carrying handguns, nuclear power, vaccines, or climate change, the chances are that no amount of data, study, or expert opinion will change your mind about that topic. If you're a potential juror and that bias happens to be in favor of the client we support, this is fantastic news. Such a juror will (subconsciously) selectively choose evidence that favors our client using confirmation bias or motivated reasoning. This is where being polarized into one camp or another gets interesting. When it comes to A2L's jury consulting work involving voir dire and jury selection, one of our primary goals is to discover a potential juror's bias. We also want to understand how a particular bias might affect our client. We want to, of course, deselect those jurors who would be biased against our client, and, just as importantly, not do anything to expose those jurors biased in our favor. In this era of polarization and in an election year, there is a useful shortcut -- one's political beliefs. So, ask about them, at least indirectly. For the most part, if I know you mostly watch MSNBC or Fox News or whether you love or loathe Rachel Maddow or Sean Hannity, I can make some reasonably reliable inferences about your biases. We have discussed these and other approaches to voir dire and handling bias in the free A2L Consulting articles and publications like those listed below.  5 Questions to Ask in Voir Dire . . . Always 5 Voir Dire Questions to Avoid Jury Research and Mock Trials During Presidential Elections Font Matters - A Trial Graphics Consultant's Trick to Overcome Bias 7 Tips to Take “Dire” out of Voir Dire 10 Things Every Mock Jury Ever Has Said A Surprising Lesson From Voir Dire 10 Ways to Lose Voir Dire 5 Ways That a Mock Trial Informs and Shapes Voir Dire Questions Like It or Not: Likability Counts for Credibility in the Courtroom 10 Things Every Mock Jury Ever Has Said A Jury Consultant Is Called for Jury Duty One Voir Dire Must Do and One Voir Dire Must Never Do The Voir Dire Handbook | Free Download | A2L Consulting Jury Selection and Voir Dire: Don't Ask, Don't Know 15 Things Everyone Should Know About Jury Selection Why Do I Need A Mock Trial If There Is No Real Voir Dire? Jury Questionnaire by the Numbers 10 Ways to Spot Your Jury Foreman 5 Things Every Jury Needs From You Jury Selection & Jury Consultants: Three Strikes, You're Out! 10 Signs of a Good Jury Questionnaire 13 Revolutionary Changes in Jury Consulting & Trial Consulting Is Hiring a Jury Consultant Really Worth It? 12 Insider Tips for Choosing a Jury Consultant Do I Need a Local Jury Consultant? Maybe. Here are 7 Considerations. I’m Right, Right? 5 Ways to Manage Juror Bias Jury Selection Experts . . . True or False? Who Are The Highest-Rated Jury Consultants? Webinar: 12 Things Every Mock Juror Ever Has Said

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I recently read two studies by Professor Jeffrey Loewenstein of the University of Illinois that offer extremely valuable persuasion tools for trial lawyers. They were not written with trial lawyers in mind, but the lessons they teach are universal when it comes to persuasion. Together they provide an important toolset for those of us who craft or hone opening statements for a living. The first of these studies, The Repetition-Break Plot Structure Makes Effective Television Advertisements [paywall], helps answer the question of why some advertising campaigns outperform others. It turns out there exists an ages-old and highly persuasive storytelling structure often seen in folktales around the world.  Advertisers who use it tend to win more awards, generate more purchases, and see their advertisements shared virally -- much like a folktale. It is my experience that techniques that sell products sell arguments just as well. We've written about this before in articles like Could Surprise Be One of Your Best Visual Persuasion Tools? and Repeat a Simple Message Repeatedly to Maximize Courtroom Persuasion. It is exactly these types of inherently persuasive language tools that arouse core human instincts that we must deploy in the courtroom for our clients benefit. After all, if we can give our jurors an easily memorable story, we give them a potent weapon to argue in favor of our position with other jurors.

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The science around repetition is well settled, and I've always found it a little disturbing. For all the advanced degrees, experience with thousands of cases, and the wisdom litigation consultants like us have to share about maximizing persuasion at trial; the truth is one of the easiest ways to increase persuasion at trial is simply to repeat yourself - a lot. It is a technique used by politicians and trial lawyers alike. However, I think the political climate of the last few years has shown us that there are few upward limits on the number of times one can repeat themselves before it feels uncomfortable. And it works. Politicians on all sides and people of all political beliefs make false assertions, these assertions are repeated and amplified by social media, and over time, people come to believe them. This has happened for thousands of years. It's just much more accelerated now, so it feels new. The last ten years brought us this social media multiplier effect. Now, repetition comes fast and from seemingly independent sources - both factors that increase persuasion. Furthermore, assertions are often presented in a meme-like format, and the easier an assertion is to process, the more likely someone is to be persuaded by it. That's why short and simple quips frequently repeated are far more persuasive than a well-reasoned lecture delivered once.

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Dr. David Schwartz is a founding partner of Innovative Science Solutions, LLC (ISS), a scientific consulting firm specializing in helping legal teams prevail in high-stakes litigation involving complex scientific principles. Dr. Schwartz has served as a consulting scientist to the legal industry for over 25 years and has provided support to cases involving environmental and occupational exposures, radiation, drugs, medical devices, dietary supplements, cosmetics, industrial chemicals. But over the course of the past several years, Dr. Schwartz has focused on the role of genetics as an alternative cause in toxic tort litigation. As part of a strategic alliance, ToxicoGenomica, Dr. Schwartz and other ISS consultants have been providing consulting support on asbestos and talc cases focusing on genetic evidence as an alternative cause of mesothelioma and ovarian cancer. In 2017, Dr. Schwartz (ISS), myself (A2L), and others co-hosted a pioneering conference on the subject of the role of genetics in civil litigation. Now two years later, I sat down with Dr. Schwartz to get a better understanding of how genetic science has evolved since then and how it is likely to change the way toxic tort cases will be litigated in the near future, specifically in talc and asbestos cases. Q: Give us a quick summary as to how genomic science will change toxic tort litigation. A: Modern medicine is advancing from broad-based treatment based on randomized controlled clinical trials to “precision medicine” where treatment is tailored to individual patients based on their genetic profile. Similarly, toxic tort litigation has been based on so-called black-box epidemiology studying large groups of people and trying to determine risk. We are bringing the field up to date by applying the tools of precision medicine to evaluate risk in toxic tort litigation. With genomics, we can directly ask if a person was born with genes that predispose them to develop a disease (like mesothelioma) instead of relying on statistical inferences from large populations. This is a watershed moment in toxic tort litigation. Q: Talc litigation is heating up. Last I read, there were 14,000 claims filed related to talc. Do you think genetic science has a role in talc litigation? A: Absolutely! Genetics provides a medically sound alternative cause argument no matter what the alleged injury: mesothelioma, lung cancer, ovarian cancer, lymphoma, autism. These conditions are all known to have well-established genetic underpinnings. If a defense lawyer can demonstrate that a plaintiff had a specific set of genetic factors, then it is legitimate to make the argument that the condition was caused by those factors. Q: What is a genetic mutation? A: A mutation, also referred to as a variant, is an error in the sequence of a gene that could drive specific types of cancer. A gene can have hundreds or thousands of different types of mutations. Some mutations have no known effect on a person’s life, while others will drive the onset of cancer. Q: If genomic testing is already being used in precision medicine, has that information ever been used for litigation purposes? A: Yes. Sometimes the genetic analysis at a hospital can be very informative. That’s especially true for cancer treatment at excellent cancer hospitals. Having the capability to review plaintiffs’ medical records for relevant genetic evidence will be a core skill set moving forward.

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10 Timely Tips For Trial Preparation

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.

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No matter where you stand on the border wall dispute that has captivated the nation, you have to admit that it is an important debate. After all, $5 billion is a lot of money and who knows if the wall will really make a difference. But allowing between 200,000 and 2,000,000 people to easily enter the United States every year via the border with Mexico is probably not a good thing either. You probably just automatically identified yourself with one of those two previous sentences and took it as your position, right? The other sentence may have even made you angry or at least started you thinking about counter-arguments. In other words, like most political discussions, minds are rarely changed by more facts. It's kind of like a jury trial, right? You hear one side. You attach to it emotionally and then proceed to ignore evidence that is contrary to your new belief. In jury consulting-speak, this phenomenon is called confirmation bias. As a jury consulting firm, we've written about confirmation bias many times. See, for example: I’m Right, Right? 5 Ways to Manage Juror Bias Jurors Will Believe Anything (That They Already Believe) When Smart Ain’t So Smart - Cognitive Bias, Experts and Jurors Font Matters - A Trial Graphics Consultant's Trick to Overcome Bias Could Surprise Be One of Your Best Visual Persuasion Tools? 7 Ways to Overcome Cognitive Bias and Persuade However, A2L is not just a jury consulting firm. We’re also a top-ranked litigation graphics firm (and litigation consulting and trial technology consulting firm). So I'm always baffled by big disputes where the participants fail to use pictures effectively. In this day and age, there is no excuse. The science of visual persuasion is well established. See, What is Visual Persuasion and What Do You Need to Know About It?

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The Top 10 Litigation Articles of 2018

It's my eighth year writing an end-of-year top-10 style article. That feels pretty great because in that time, we have published more than 600 articles and A2L's Litigation Consulting Report blog has been visited one million times. Wow, right?

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