The Litigation Consulting Report

It turns out that a large number of Russian ads on Facebook that viewers did not know were Russian ads influenced the way people thought about various issues last year. They may have even influenced the 2016 presidential election to some degree. Rather than delve deeply into the appropriateness of these ads (in my view, they were wholly inappropriate), who exactly directed their placement, and how exactly they affected behavior, let's instead look at these ads from a trial lawyer’s perspective. After all, if pictures and a few short phrases can be used to change the voting behavior of the electorate, it stands to reason that pictures and some well-chosen phrases can be used to change the voting behavior of jurors. In the courtroom, there's no ethical debate about this process, since jurors know exactly where the message originates from -- the mouths of lawyers, experts, and witnesses. So if an attorney can use proven persuasion techniques and it's ethical to do so, the attorney must do so to zealously represent his or her clients. This is precisely why high-end persuasion firms like A2L exist. We're here to help persuade, using all appropriate and ethical means, both visual and rhetorical. We're not Russian hackers. Instead, we're hackers of human psychology, since we help top trial lawyers use proven techniques to maximize their persuasiveness. We do this by bringing together a remarkable combination of trial lawyers, social scientists, and artists to do what we do, a process we call litigation consulting. Let’s look at the Russian ads in this light. Because of some good investigative journalism and investigative work in Congress, many of the ads, Facebook groups, Facebook pages, and messages have been identified and published -- and most of them are really disturbing. The ads used some of the same time-honored techniques that trial lawyers use – but because their source was disguised and because they were intended to disrupt, not to persuade, they were dangerous. For example, many of the ads targeted topics where there is a deep division or poked at issues in a way designed to inflame. In almost every case, they used a favored technique of marketers, trial lawyers, and politicians alike -- FEAR. And that makes sense. Fear is a ten times greater motivator than hope of gain. That’s why marketers tell us that the one-time low pricing will end Sunday night, not how happy we will be on a new mattress. That’s why politicians tell us that immigrants should fear deportation if their opponent is elected, not that the melting pot is a good thing. And finally, of course, that’s how a specious argument that an everyday product causes cancer can overwhelm a defense based on good science. Fear wins, and good trial lawyers on both sides of the courtroom must use it. I wrote a lot about this topic in my five-part series about the Reptile Trial Strategy. It's no surprise that ads traced back to Russia focused on hot-button topics like Black Lives Matter, Muslims supporting Hillary Clinton, gun rights, LGBT rights, and more. Let's look at the techniques used in three Russia-linked ads: 1. Heart of Texas: This Facebook group that advocated for Texas secession quickly gained more than 250,000 members. The ad below uses a fake Facebook event as part of its messaging. What made a quarter of a million Texans unwittingly sign up for a Russian-backed Texas secessionist movement? The ad works because it stokes existing biases while seemingly coming from a credible source. If we define bias broadly as any commonly held belief by a person that makes it harder for them to accept contrary evidence, you can see how this could work in the courtroom. Obviously, we’re not talking about using racial, ethnic, or sexual preference biases as part of advocacy. Instead, I’m referring to those beliefs that many jurors show up to trial with -- like bankers are all motivated by greed, big energy companies don’t really care about the environment, or tech companies will ruthlessly steal from one another. Just as the Russians used biases in a deplorable manner, trial lawyers can play to other biases by encouraging jurors to accept and double down on their beliefs. As I wrote in a recent post, when you combine a credible source such as an expert witness with a message that jurors are ready to hear, you are likely to come out ahead. Consider how I embraced these biases and re-messaged these in a recent blog post about bias below. As you read each think about how you might couple each with persuasive visuals to maximize persuasion. Bankers are greedy, so why would they ever do something that risked their money? (Possible visual storytelling aid to accompany: evidence of penny pinching at all levels of the organization summarized on a chart to demonstrate a culture of avarice) XYZ oil company has been more reckless with the environment than you or me, but given what they went through before, do you really think they are dumb enough to do it again? (Possible visual storytelling aid to accompany: list in a slowly scrolling chart the tangible consequences the organization faced as a result of the last disaster) Sure, tech companies will do anything to get ahead, but can you imagine anything more humiliating to someone as competitive as the CEO of ABC company as looking as if you’re not as smart as the other guy? Nothing is worth that when you are a competitive tech geek. (Possible visual storytelling aid to accompany: text callouts coupled with the CEO photo openly demeaning the intelligence of the opposition)

We don't have a Hippocratic oath (i.e. do no harm) in the legal field, but when it comes to using litigation graphics at trial, maybe we should. You see there are some times when using litigation graphics does real damage to your overall persuasiveness. It is incorrect to assume that when using visual aids such as demonstrative evidence, scale models, trial boards, computer animation, or the ever-present PowerPoint presentation you are always doing good and helping your audience. Here are seven times when you would be better off changing your approach or not using litigation graphics at all: You are reading from your slides: If you populate your trial presentation with bullet point filled slides and you read them, you are reducing the amount of information your audience will remember and understand. This is due to the redundancy effect or split-attention effect. See Should You Read Documents Out Loud at Trial? You are going to get caught cheating: Creating a chart that is persuasive is great. Creating one that is misleading can cost you your credibility. As one of our customers rightly says in the video below, "Finding ways to illustrate ideas but also to visually display the evidence in a way that's understandable to the jury is critical in order to earn their trust -- which is the most important asset you have." See 5 Demonstrative Evidence Tricks and Cheats to Watch Out For. You are not using storytelling in combination with your litigation graphics: All too often trial counsel moves chronologically through a case without considering whether there was a better approach to storytelling. I think timelines can lock us into this approach. Sometimes chronological is best but sometimes using more sophisticated storytelling techniques to persuade work best. In any case, if you fail to tell a story, a jury will make one up to fill the void. Therefore, be sure to combine your visuals with storytelling to win your case. See Storytelling at Trial - Will Your Story Be Used? and Don't Be Just Another Timeline Trial Lawyer and 12 Ways to SUCCESSFULLY Combine Oral and Visual Presentations

We are delighted to announce the publication of a new free e-book, the Trial Lawyer’s Guide to Environmental, Toxic Tort, and Product Liability Litigation, 3rd Edition. It is a guide to all the issues and all the possibilities that can come up in environmental, toxic tort, and product liability litigation – whether related to PowerPoint, scientific expert witnesses, competing scientific theories, body language, or any of a myriad of questions that can come up in this complex field. This is the third edition of a book that we first released in 2011. We have dramatically expanded the scope and the depth of the book to add dozens of new and relevant articles, including articles on the importance of litigation graphics in toxic tort litigation and on demonstrative evidence in product liability and failure-to-warn cases. The book is now 256 pages long and packed with valuable articles. Environmental, toxic tort, and product liability cases have similar challenges. Each typically involves disputes over science and often results in a battle of expert witnesses. As a result, these cases are some of the hardest cases to litigate. These cases can include technical issues similar to patent cases, scientific elements similar to pharmaceutical cases, and damages issues similar to construction cases. In addition, for many jurors, these cases are fraught with political ramifications in a way that many other cases are not. Jurors often harbor a basic belief that if a big company is on trial, it has probably harmed people or the environment in pursuit of profits and has caused long-term damage to people and the planet – either by directly causing human health effects, polluting the air, water, or ground, or by contributing to global warming. It is important for a lawyer representing such a company to overcome jurors’ biases and to do so while keeping the case from seeming dull and boring. If you are to be successful litigating these cases, you have to be among the best in the profession. The natural complexity of these cases means that demonstrative evidence must be used extensively, jury consulting is often appropriate, and the use of trial technicians allows you to focus on maintaining your connection with the jury – rather than staying connected to the technology. This e-book will help you better prepare to litigate environmental, toxic tort, and product liability cases. From making the most of your mock trial, to managing trial team psychology, to specific demonstrative examples, there is something in here for all trial lawyers. I hope you enjoy this book and will take a moment to share some feedback by contacting me. If you ever have a question about how to prepare an environmental, toxic tort, or product liability case anywhere in the world, please ask. You may download the book by clicking this link or by clicking the download button below.

Many times in a typical year, A2L is voted #1 in one of our service areas (jury consulting, litigation graphics consulting, and hot-seat/trial technology consulting) in reader-driven polls. Often these polls are conducted by major legal industry publications and sometimes by bar association publications. We don't announce all of our wins as honestly, I feel a little guilty writing about it. Yes, that sounds a bit like a #humblebrag, but I mean it. I, like all the other authors here at A2L’s Litigation Consulting Report Blog, work hard to create reader-focused articles -- not A2L-focused articles. We publish to engage with the world’s top trial lawyers in a way unlike anyone else. We publish to elevate the overall state of the industry. We publish because we authentically love what we do. Today, we're very proud to announce that the Massachusetts litigation community voted in the annual Massachusetts Lawyer Weekly reader survey and concluded that A2L was a top firm in both courtroom presentations and jury consulting. We are honored and grateful. With that announcement and explanation out of the way, let's make this article about you -- our 10,000 or so readers whom we value so much. Let's even do it in my favorite way possible -- using a list. The ABA said of our blog articles, “It’s hard to resist the infectious numbered-list headlines that keep us reading their chatty, first-person posts answering questions we hadn't yet thought to ask.” So here are the top five reasons why A2L being voted number one matters to you that are in no way about us: These votes are helpful for your client relationship. It’s easier for you if a company is vetted already. As they say, nobody gets fired for hiring IBM, and the same is true when it comes to your litigation clients. Because A2L is regularly voted a top litigation consulting firm, you can make a recommendation to your client with total peace of mind. There is so much to worry about at trial. It’s nice to take one worry off the table by hiring a trial consultant that has this level of approval. This saves your client money. Taking the time to find the litigation consulting firm that’s right for your case is expensive to do well. This effort could easily cost the client thousands of dollars. Instead, you can present these options to your client: we can interview all the regular players or we can believe in the wisdom of the legal community. This saves you time in vetting. Massachusetts Lawyers Weekly issued a helpful guide of top-rated firms like ours. It's a nice peer-reviewed guide that gives you insight into who the best people are. You can download that by clicking here. You know that your peers trust us. At the end of the day, most of us trust our peers to give us good recommendations for everything from doctors to lawyers to handymen. The same is true for litigation consultants. Other free articles and resources related to A2L's jury consulting and demonstrative evidence consulting practices: Three Top Trial Lawyers Tell Us Why Storytelling Is So Important A2L Voted Best Jury Consultants & Best Trial Graphics Firm 3 Types of Litigation Graphics Consultants 11 Ways to Start Right With Your Litigation Graphics Team 21 Reasons a Litigator Is Your Best Litigation Graphics Consultant 5 Settlement Scenarios Where Litigation Graphics Create Leverage 6 Triggers That Prompt a Call to Your Litigation Consultant VIDEO: Working with A2L Consulting - Customers Talk About A2L's Litigation Consulting Services 17 Reasons Why Litigation Consultants Are Better at Graphics Than Law Firms 10 Types of Value Added by Litigation Graphics Consultants The Real Value of Jury Consulting, Litigation Graphics & Trial Tech How Does a Trial Presentation Consulting Firm Do What It Does? With So Few Trials, Where Do You Find Trial Experience Now? 12 Ways in Which We Make a Boutique Litigation Firm Feel Like a Big Firm 16 PowerPoint Litigation Graphics You Won't Believe Are PowerPoint 10 Things Litigation Consultants Do That WOW Litigators 6 Studies That Support Litigation Graphics in Courtroom Presentations FREE Webinar: Persuading with PowerPoint Litigation Graphics FREE Webinar: Storytelling as a Persuasion Tool 10 Things Litigators Can Learn From Newscasters The 12 Worst PowerPoint Mistakes Litigators Make 6 Trial Presentation Errors Lawyers Can Easily Avoid Explaining the Value of Litigation Consulting to In-House Counsel The 14 Most Preventable Trial Preparation Mistakes Trial Graphics Dilemma: Why Can't I Make My Own Slides? (Says Lawyer) Law360 Interviews A2L Consulting's Founder/CEO Ken Lopez

As you might expect, I think about the litigation graphics industry a good deal. It’s a fairly new industry, and it is undergoing constant change. The way I think about it, the industry is actually fairly small. There are perhaps three other serious national players that I would be mildly comfortable recommending when A2L is conflicted out of a case. Still, though, these firms are quite different from A2L, so a trial lawyer should expect an entirely different experience as a customer than with A2L. Most of our competition now uses the term “litigation consultant” that we first started using in the mid-1990s. In fact, we may have been the first to use it the term. However, this term means vastly different things from firm to firm. At A2L, we use the term litigation consultant primarily to refer to attorneys on our staff with a creative expertise, trial experience, and an understanding of persuasion science who interface with trial teams to help: develop the visual presentation develop themes, narratives, and strategies for the opening statement work with our jury consultants to help test cases As one can readily discern, these people are truly trusted advisors. They add value as opposed to taking orders.

A trial team might reasonably start a meeting with their litigation graphics consultants by saying, “We’re looking to you to help us design the best litigation graphics possible for this case.” It's a reasonable sounding goal to be sure. But what does it mean really? I think this means a lot of things. Ultimately, it must mean those trial presentation graphics will help win the case. Nothing else matters more. So, when you are talking to your trial graphics consultants, consider what you really intend to communicate about your goals. Here are nine things that I think define the best litigation graphics and how to get to them for your case. Eliminate the Mediocre Litigation Graphics: In my last article, I wrote about how the team with the most litigation graphics will not necessarily emerge the winner. The winner will be the team that refines its PowerPoint deck sufficiently to only show the best litigation graphics. See also 10 Reasons The Litigation Graphics You DO NOT Use Are Important. Your Notes Are Not Your Trial Presentation: All too often, litigators start building their trial presentation by creating text slides in PowerPoint. Typically, many bullet point style slides are left over that hamper persuasion and recall. See Still Think Persuasion is About Talking While Showing Bullet Points? and Don't Use PowerPoint as a Crutch in Trial or Anywhere We're Not Talking About Just Documents: Some people believe that when they've hired a hot-seat operator, they've hired a litigation graphics consultant. Ninety-nine times out of one hundred, they have not. They've hired a technology expert with excellent courtroom experience. However, this person is almost certainly not trained in the persuasion sciences. See Why Trial Tech ≠ Litigation Graphics Beauty is Not the Goal: Most litigation graphics firms focus on form over function. I appreciate great design better than most people, but the best graphics are the ones that are the most persuasive, not the most beautiful. See Litigation Graphics: It's Not a Beauty Contest

Since litigation graphics are so crucial to winning a case, it’s a necessity to put your litigation graphic artist in a position where he or she is most likely to succeed. How should a litigation graphic artist begin his or her work? Here are some possibilities. The artist can listen to the attorneys and experts describe what kind of demonstrative exhibits they want; The artist can take direction from an intermediary like a litigation consultant or jury consultant; The artist can work from the pleadings; The artist can improve upon a deck that's already been produced in draft form; The artist can work from a trial outline; The artist can listen to the attorneys and experts confer with a litigation consultant and ask questions of his or her own, then agree on a plan based on this conversation. After 22 years of doing litigation graphics consulting, I believe the last method is the one that produces the best results. You might ask why. After all, wouldn't it be faster if the artist is simply told what to do, and wouldn’t it be cheaper of the artist is asked to work from a trial outline?

by Ken Lopez Founder/CEO A2L Consulting Trial teams routinely spend tens of thousands, even hundreds of thousands of dollars, developing litigation graphics for a big case. They do this because litigation graphics are among the top five things that can affect the outcome of a trial. Over three decades and after thousands of conversations with trial teams about litigation graphics, I've watched some cases start off on the right foot and some on the wrong foot. That turns out to be critical. Frequently, the way an engagement starts between a litigation graphics team and a trial team will define the success of the engagement. So, here are 11 best practices designed to help your trial team get the first meeting (we call these meetings intake meetings) with your litigation graphics team just right. Know your litigation graphics provider. There are two kinds. The first type is a true consulting or trusted adviser firm populated by litigators, jury consultants, and information artists. The second is really a group of order takers or trial technicians. How you behave toward each type of firm matters enormously. The latter type shouldn’t be considered for big-ticket litigation, so I won't further address how to handle them. Send the litigation graphics team the pleadings in advance. Great litigation graphics consultants can digest and synthesize enormous amounts of information. The sooner you send that information, the better. Time matters enormously. I don't think you can conduct a proper intake meeting in less than an hour. I've had some run eight hours. I think the right amount of time is probably about two hours. Advocate! This is a good chance for you to convince a group of people who don't know much about your case that you are right and you deserve to win. It's easy practice.

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.