by Ken Lopez
Founder/CEO
A2L Consulting

In 20 years in the litigation consulting business, I've seen a lot of successful trial teams and some that are not so successful. A team that is successful needs good leadership. In fact, good leadership and good preparation are the best predictors of a trial team's success.

We've written before about effective trial team leadership and even released an e-book on good litigation leadership skills. Good leaders force timely preparation, they delegate effectively, and they put their egos aside in the interests of a successful outcome.

One important challenge for good trial team leaders is knowing when to make changes to the team. These changes can amount to anything from adding new lawyers to the team, removing lawyers and support staff, or even releasing vendors and hiring new ones. I have seen a fair number of litigation consulting firms removed at various stages of the litigation. Many times, we are the firm that is brought in to replace the removed firm.

An important part of the work of a good trial team leader is to ensure that a good litigation consultant is chosen. This is not an easy decision. Many companies that claim to be top litigation consulting firms are actually nothing more than trial technology firms or everyday graphic arts firms. The list of high-quality providers can be counted on one hand. So, unless you have first-hand knowledge about a firm and the people you'll be working with, there are plenty of ways to make mistakes. Fortunately, these can be corrected if you have a good reason and the courage to make the change.

By far the biggest reason I have seen firms removed from their roles in jury consulting or litigation graphics consulting is a lack of creativity. This is understandable because creativity is a hard thing to judge before you work with someone. Often these removals occur after one phase of the litigation and before the next. For example, in patent litigation, we are often brought in for the trial after another firm provided no meaningful suggestions or advice to counsel in the pretrial phases of the case.

I've also seen many examples where we are brought in after remand for the second bite at the trial apple. Sometimes a trial team says they just didn't get any value from their litigation consultants. 

There are many reasons a trial team would need to switch litigation consultants as they prepare for a mock trial or litigation graphics. It must not be forgotten that this type of switch is an extreme outcome that runs the risk of doing harm. It shouldn’t be undertaken lightly.

1. Yes people: I actually had the CEO of a competitor once ask me, “Why would I give litigators advice?” I indicated politely that his instincts were correct. HE shouldn’t do so. There are many like him in the industry. They can be a source of support if you’ve simply hired them to run your PowerPoint during an opening statement. Some just have no business taking the extra step and adding value, because bad advice is worse than no advice.
   
   
2. Missed deadlines: On my first day of law school, my criminal law professor stopped a student trying to enter class late. He said, “You are attempting to enter the only profession in the world for which you can go to jail for being late.” There is never an excuse for being late.
   
   
3. The creatively challenged: It’s common for technology people to masquerade as visual persuasion consultants. They should be pretty easy to detect. See Why Trial Tech ≠ Litigation Graphics, 16 PowerPoint Litigation Graphics You Won't Believe Are PowerPoint, and 21 Reasons a Litigator Is Your Best Litigation Graphics Consultant.
   
   
4. The jury hack: As a top jury consultant wrote, there is no license required to become a jury consultant. So there are many “consultants” who are simply not qualified to gather data in a sophisticated way. Some trial technicians try to offer advice on a jury during voir dire. This is litigation consulting malpractice in my view. See, 6 Secrets of the Jury Consulting Business You Should Know and No Advice is Better Than Bad Advice in Litigation.
   
   
5. Inappropriate behavior: I've seen trial technicians get drunk, I've seen affairs start in the war room, and I have seen some truly ethically depraved behavior behind the scenes at trial. Like the employee who attempts to steal clients, chances are that these behaviors will be repeated in other aspects of their lives, and you just have to avoid people like this. See, 5 Signs of a Dysfunctional Trial Team (and What to Do About It).
   
   
6. Blaming: Some people are expert in playing politics. Trial is too intense an environment to have these types of people around. If I saw this behavior in a litigation consultant (and I have), I’d get them out immediately.
   
   
7. Poor communications: One of the joys of working around Biglaw or at least big-ticket litigation is how well educated everyone is. As a result, most people write well, can work through issues quickly, and can understand people quickly. If your litigation consultant does not fit that profile, they are like a flaw in your perfectly aerodynamic trial vehicle.
   
   
8. Lack of confidence: I like someone who says, “I don't know.” It's the ones who don't know and don't say that make me nervous. If one of these folks is around the trial team they can suck energy away.
   
   
9. Can’t communicate differences well: Disagreement should be encouraged up to a point. Good litigators want their answers questioned (by the right people) after all.
   
   
10. Lack of resourcefulness: I solve projects under pressure very well, and so do the people who work with me. But not everyone is like that.

Other A2L Consulting articles related to trial preparation, getting value of litigation consultants, and litigation team management:

• 5 Signs of a Dysfunctional Trial Team (and What to Do About It)
• With So Few Trials, Where Do You Find Trial Experience Now?
• 10 Signs the Pressure is Getting to You and What to Do About It
• 15 Things Everyone Should Know About Jury Selection
• Why Trial Tech ≠ Litigation Graphics
• 12 Ways to SUCCESSFULLY Combine Oral and Visual Presentations
• 16 PowerPoint Litigation Graphics You Won't Believe Are PowerPoint
• The 14 Most Preventable Trial Preparation Mistakes 
• 3 Trial Preparation Red Flags That Suggest a Loss is Imminent
• 12 Reasons Litigation Graphics are More Complicated Than You Think
• 9 Things In-House Counsel Say About Outside Litigation Counsel