by Ken Lopez Founder/CEO A2L Consulting
Kenneth J. Lopez, J.D.
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by Ken Lopez Founder/CEO A2L Consulting Welcome back from summer (to most), and welcome to the busy fall/winter litigation season. This blog, The Litigation Consulting Report, is now just about 4 ½ years old. In that time, we have written nearly 500 posts on dozens of trial and presentation-related subjects, including everything from TED talks to Reptile trial techniques to voir dire best-practices. We've earned accolades, won awards, won countless trials, and we have steadily grown our number of subscribers year after year, and I'm especially thrilled to say that we've just signed up our 7,500th blog subscriber! Every subscription is free, and perhaps that is part of the reason it took us less than a year to grow our community from 5,000 subscribers in September 2014 to 7,500 subscribers in September 2015 — a 50% increase. To celebrate reaching 7,500 blog subscribers, today we’re publishing (as a free download) this collection of our very best articles to date called, A2L Consulting's Top 75 Articles of All Time. By "very best," I mean that our readers have, by choosing which articles they read most, told us which articles they think are the best. On the Web, your clicks are your votes. We’re thrilled to receive this feedback from you.
By Jim Grandone Special Guest Author Grandone Media Strategies A lawyer I worked with recently summed up the love-hate relationship between lawyers and the news media as follows, “We spend 50 percent of the time trying to get publicity about our firm and the other 50 percent worrying about what the press is going to write about us.” It’s true that in some states, there are constraints on what a lawyer can say about a pending case. But in general, a lawyer is allowed to discuss the basics --such as the claim, the offense or defense involved, and (except where prohibited), the identity of the persons involved; any information on the public record; the fact that an investigation is in progress; and the scheduling or result of any step in litigation. Why then are lawyers so reluctant to speak to reporters? After all, these allowable types of comments – and many states permit lawyers to say even more about their cases – give lawyers considerable leeway to talk to reporters. So you can go ahead and promote whatever your firm is doing that is admirable, successful or high-profile. Reporters already have instant electronic access to what you have filed, so why not emphasize the most important messages? Do not expect the reporter to communicate your key message for you! You can reach your most important audience outside the courtroom by simply reiterating what you have already said in court documents, even if it is only a summary. Develop a message and clearly communicate the key points of the case.
by Ken Lopez Founder/CEO A2L Consulting Well, no one ever said a trial was like a day at the beach. Except that there are a lot of similarities, if you look hard enough. I'm just back from an annual two-week family vacation at the Outer Banks of North Carolina. My wife and I have seven-year-old triplet girls. My friend says that doesn’t sound too much like a vacation, and his point is well taken in many ways. Although anyone who has done this type of trip with young kids will have some memories that seem as if they came from a Norman Rockwell painting, there are plenty of stressful or crazy moments. Fortunately, with time, the human brain can focus on the good memories. This type of vacation time is chaotic, stressful, and, yes, fulfilling. And that reminds me an awful lot of what I do every day — high-stakes litigation. Let’s consider how these two events are similar. 1) Other stuff comes up. I worked one 16-hour day at the beach. I had to. Two other managers were traveling, and one was slammed. I had to pitch in even if it was from 350 miles away. A long trial is no different. Often, you have to focus on other clients for a bit and you must plan for that possibility at trial. 2) Breakdowns happen. My clunky old Range Rover broke down at the beach. My wife was not pleased, but I’m always prepared for such an event. I have towing coverage that brought the car home, and I enjoyed driving on the beach in a four-door Jeep Wrangler instead. Things break down at trial too, often at the least opportune times. If you're not mentally prepared for that, if you haven’t planned for it, you're going to look bad at trial. See, 12 Ways to Avoid a Trial Technology Superbowl-style Courtroom Blackout. 3) Surprise is the key. My daughters are well behaved, but they need to see the unexpected from time to time, whether it’s an unusual shell on the beach or a funny kind of ketchup bottle. If they don’t have that, they become moody and distracted. Judges and jurors react similarly at trial. If you don't surprise them, they become bored and antsy. Learn the power of surprise. See, Could Surprise Be One of Your Best Visual Persuasion Tools?
by Ken Lopez Founder/CEO A2L Consulting This is the fifth and final installment in a series of articles focused on how defense counsel can overcome the increasingly popular Reptile trial strategy. In parts one through four, I offered an introduction to the strategy, I shared ten ways to recognize when the strategy is being used against you, I explained why the strategy does not actually work in the way that its authors describe, and I explained that despite the bad science, the Reptile trial strategy still works. In this post, I summarize how to overcome the strategy in both the pretrial and trial phases of a case. I rely heavily on the work of Jill Bechtold of Marks Gray and Steve Quattlebaum of Quattlebaum, Grooms & Tull. They were my co-presenters at a recent defense attorney-focused conference devoted to repelling the Reptile strategy. One theme that clearly emerges from the 12 points below is that being a good defense lawyer is more important than ever. No longer is it enough simply to outlast your opponent. No longer is it enough to come up with a great theme and narrative just before trial. Because the Reptile strategy often begins with the complaint, a defense against it must start shortly thereafter -- or you will pay the price later. Spot the Reptile: It can appear as late as closing arguments, but more often than not, plaintiffs counsel will introduce the key themes as early as the complaint. See, 10 Ways to Spot the Reptile in Action. Read the Book: I hate to say this, but you probably should read it. It is Reptile: The 2009 Manual of the Plaintiff’s Revolution by David Ball and Don Keenan. Spot your Opponent on the Reptile Hall of Fame: https://edgeverdicts.com/ (paywall) Plaintiffs counsel with a record of using the Reptile strategy are listed here. Is one your opponent?
by Ken Lopez Founder/CEO A2L Consulting At A2L Consulting, we have just published our latest e-book – the third edition of the Litigation Support Professional's Trial Toolkit. It's 262 pages long, contains 88 articles and is completely complimentary to download. This new e-book will be indispensable to any litigator or litigation support professional who wants a summary of the latest thinking in the fields of trial technology, trial graphics, and litigation support. In this book, we try to demystify the craft of the trial technician, with nitty-gritty discussions of how trial consulting firms do what they do, especially on a tight budget. We present ideas for seamless trial presentations that can be built, if not on a shoestring, on a budget far smaller than one might anticipate. Since the art of trial presentation is often best described as a story-telling venture, we give you the latest on the best story-telling techniques, including 16 trial presentation tips from classic Hollywood movies. We also provide 13 reasons why it’s not a good idea to do your trial preparation at the last minute, 12 great ways to combine oral and visual presentations, and five questions you should always ask in voir dire.
by Ken Lopez Founder/CEO A2L Consulting Over breakfast the other day, a partner in a major law firm was explaining to me that it can be challenging to explain the added value that litigation graphics consultants can provide in a case, especially given the challenging budget environment in which litigators operate today. He was surprised when I said that the key here is not the fact that graphics consultants know how to prepare PowerPoints. After all, the average law firm associate can prepare a pretty decent PowerPoint presentation. The problem is that perhaps one in 500 PowerPoints prepared by a smart and well-informed law firm associate does more good than harm. What litigation consultants can do for a trial team is more complex, more persuasive and more sophisticated. So here are ten ways in which a litigation graphics consultant would add value where a litigation associate might cause harm or simply might not provide benefit. 1. Supporting the development of a narrative. We've written about this extensively, and great graphics consultants like those at our firm have enormous value here. One of the essences of trial presentation is telling a narrative. See, $300 Million of Litigation Consulting and Storytelling Validation. 2. Helping separate the theme from the narrative. Many of us who took trial advocacy were taught to start out our openings with "this is a case about . . . ." After that, we would usually state our theme. What many lawyers were not taught was how to develop a persuasive narrative. A few rare litigation graphics consultants can operate at the 1st chair level and offer this kind of support. See, 14 Differences Between a Theme and a Story in Litigation and 21 Reasons a Litigator Is Your Best Litigation Graphics Consultant. 3. Helping combat the now-fashionable “Reptile” trial strategy tactics that plaintiffs lawyers use. We have discussed this in several recent blog posts. See, Repelling the Reptile Trial Strategy as Defense Counsel.
by Ken Lopez Founder/CEO A2L Consulting In my previous three posts concerning the “Reptile” trial strategy, I provided an introduction to the strategy, I discussed how to spot it, and I discussed why the science that its authors claim supports the strategy is just plain wrong. As I have mentioned in previous articles, this trial strategy has been largely absent from the types of cases that we work on at A2L. However, with high-stakes pattern litigation on the rise, and with the increase in sophistication on the plaintiffs side in big-ticket litigation, the “Reptile” is something that medium and large law firm defense firms must be able to spot and to cope with. In this article, I will focus on the critical fact that, despite the bad science that its authors employ, the Reptile trial strategy still works. In other words, the “Reptile” advocates are tapping into authentic ways of persuading jurors. There are at least seven reasons for that. The “Reptile” advocates suggest using a strong theme that is constantly reinforced throughout the case from complaint to closing. That's just good lawyering, and a majority of lawyers still don't do this. See 14 Differences Between a Theme and a Story in Litigation. Similarly, they encourage focusing on a consistent strategy from the very beginning of the case. Few defense counsel do this throughout a case, and again, following this practice is just good lawyering. See Planning For Courtroom Persuasion? Use a Two-Track Trial Strategy. They encourage the use of narrative as a persuasion strategy. We've written about that many times, and they are right to encourage it, because it works very effectively. Our proposed narratives are based on real psychological science and theirs are not, but the use of narrative is a very good idea. See $300 Million of Litigation Consulting and Storytelling Validation.
by Ken Lopez Founder/CEO A2L Consulting We at A2L are sponsoring later this month a new and exciting webinar entitled “Winning Your Case BEFORE Trial Using Persuasive Litigation Graphics.” Whether you are in-house counsel, outside counsel, or a member of a litigation support team, this 60-minute webinar will prove invaluable and will reveal secrets of persuasion that will help you win cases before trial. The key insight here is that graphics aren’t only for use at trial. They can also be used very effectively in motions and briefs presented to judges, even if jurors will never see them. If you are planning to use graphics to make your argument or tell your story at trial, why not use them at an earlier stage to make your argument convincingly in your brief or motion?
by Ken Lopez Founder/CEO A2L Consulting It's been another great quarter of publishing blog articles on A2L's Litigation Consulting Report Blog. This quarter, there were more than 45,000 blog post views, and we are just about to cross the 7,000 subscriber mark. I find those metrics incredible. Since we post 2-3 articles every week, I've heard from our readers that it is sometimes hard to keep up with the latest articles. To help remedy that and organize the information better, roughly six times a year we publish a mini-retrospective at the end of the quarter, at the end of a year and/or to celebrate blogging milestones. This quarter, I'm listing the top nine articles from April, May and June of 2015 reverse sorted by the number of times each article was read. This way, this list serves as an excellent reader-curated guide to the very best articles we have published recently. Voir dire and jury selection-focused articles continue to be very popular with our readers. Also, articles about persuasion, opening statements and a discussion of the Reptile Trial Strategy are getting a lot of views and shares. For the first time in memory, there are four different A2L authors represented on a best-of list. Below is a list of the top nine articles from A2L's Litigation Consulting Report Blog as determined by your readership. Each article has both LinkedIn and Twitter share buttons that allow it to be shared with your network. Enjoy! 9. 5 Ways to Maximize Persuasion During Opening Statements - Part 2 8. One Voir Dire Must Do and One Voir Dire Must Never Do 7. 12 Reasons Litigation Graphics are More Complicated Than You Think
by Ken Lopez Founder/CEO A2L Consulting As I discussed in Part 1 of this series, the “reptile” trial strategy is quickly spreading among plaintiffs counsel. Some plaintiffs counsel have, in fact, claimed that the strategy has resulted in verdicts totaling more than $6 billion in the past few years. In a large room of defense attorneys to whom I made a presentation last week, more than half reported having seen the strategy used in one of their cases. I think that may just be the tip of the iceberg. It appears that many defense counsel are being subjected to the strategy and don't know it is happening to them until it is too late. In light of this fact, below are 10 ways to spot the strategy. In subsequent articles, we will discuss what to do to counter it. From the very start of your case, look for any of the following 10 phenomena: You encounter themes suggesting that the community needs to be protected from the defendant; e.g. “Walking past stores on Main Street is part of what it means to be American.” The behavior of the plaintiff or other contributing or mitigating traits of the plaintiff are ignored, and instead the plaintiff works hard to keep the focus on the defendant or even an idealized defendant. Plaintiffs introduce a discussion of “safety rules” throughout all pre-trial phases of the case; e.g. “Do you agree that keeping the public safe is a key role of your train operators?”
Last week, I spoke at an annual gathering of defense attorneys whose subtitle was “Lawyers and Other Reptiles.” What's going on? Who are these reptiles? It’s an interesting story. This conference was planned as a way to bring together defense attorneys around the nation who want to learn how to turn aside a frequently used set of trial tactics championed by David Ball and Don Keenan in their "Reptile" series of books and webinars. Ball is a North Carolina-based jury consultant, and Keenan is an Atlanta-based plaintiffs trial lawyer. According to Ball and Keenan’s publicity materials, the “reptile” concept is “the most powerful tool in the fight against tort reform.” Ball and Keenan say that through their books, DVDs, seminars and workshops, “the Reptile is revolutionizing the way that trial attorneys approach and win their cases.” The proof, they say, is in the numbers, as more than $6 billion in verdicts and settlements have resulted from these tactics since they launched them in 2009.
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