I was in New Orleans recently to speak at the DRI Toxic Torts and Environmental Law Seminar, and while I was in the city, I took some time to visit the National WW II Museum in the downtown area. At the museum, I was struck by a graphic exhibit that showed that in 1941, the United States had only 336,000 soldiers in uniform, compared with 850,000 for Japan and 3.1 million for Nazi Germany. There is a quick and easy lesson here for trial lawyers.
Kenneth J. Lopez, J.D.
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This article is the last in a series of four articles about courtroom storytelling. My goal in this series is to reveal some of the tricks of the persuasive storytelling trade in one place for the busy trial lawyer. I hope that these recommendations can serve as a pretrial checklist for anyone who wants to draft an opening statement. A2L’s litigation consultants have published dozens of articles about storytelling, and we’ve released books and webinars on the subject. These ten tips represent the essence of what we have learned and of what we have taught. If you apply these ten suggestions when developing your story for trial, your story will be more persuasive, and you will radically increase your chances of winning your case. Tip #6. Your audience MUST care about the story. The audience should be emotionally transported. It has been said, “People will forget what you said, people will forget what you did, but they will never forget how you made them feel.” Scientific studies show that when people listen to an effective story, their brains react more like participants than spectators. When we say that people experiencing a deep connection are “on the same wavelength,” there is neurological truth to that. Scientists at Princeton University looked at brain scans (fMRI) of storytellers and listeners to the stories. They found that the most active areas of the brains of the speakers and listeners matched up; they were in sync or coupled. However, this synchronized activity was found in the areas of the brain relevant to theory of mind, not in areas that drive memory or the prefrontal cortex associated with cognitive processing. The stronger the reported connection between speakers and listeners, the more neural synchronicity was observed in the test subjects. The extent of brain activity synchronicity predicted the success of the communication – so connecting with your audience more makes you more persuasive. Source: Storytelling Proven to be Scientifically More Persuasive. Tip #7. Force participation of your audience. Engage the audience in the journey. As Pixar film director Andrew Stanton says, don’t give them 4, give them 2+2 and make them work to find the answer. Nineteenth-century writer William Archer wrote, “Drama is anticipation mingled with uncertainty.” Make your audience members keenly aware of their uncertainties and holding on to their sense of anticipation. The goal of a presentation is always the same -- to engage the audience, to move them. This holds true regardless of the stage. It’s so in the courtroom, on the floor of the U.S. Congress, in the boardroom, and in the classroom. Litigators engage a jury to win their case for their client; professors engage their students so that they can best teach the subject matter. Engagement leads to better understanding, which then leads to better retention and enhanced persuasiveness. Retention and understanding are the keys to success.
This article is the third in a series of four articles about courtroom storytelling (links to part 1 and part 2). My goal in this series is to reveal some of the tricks of the persuasive storytelling trade in one place for the busy trial lawyer. I hope that these recommendations can serve as a pretrial checklist for anyone who wants to draft an opening statement. A2L’s litigation consultants have published dozens of articles about storytelling, and we’ve released books and webinars on the subject. These ten tips represent the essence of what we have learned and of what we have taught. If you apply these ten suggestions when developing your story for trial, your story will be more persuasive, and you will radically increase your chances of winning your case. Here is the fifth of these ten tips. 5. It is crucial to make your audience care about the characters in your story. It’s never just about a company. It’s never just about the CEO, and if Hollywood can make you care about a mute trash robot named WALL-E, you can make your factfinders care about the characters in your story. A major way to lose an audience is to fail to develop characters that a jury will care about. you don’t develop such characters, your jury will either not care about your side or will turn against your client from the start. Unfortunately, about half of all trial teams fail to properly develop the characters in their litigation story, and their cases suffer terribly for it. The excuses are numerous: from ‘We’re a big company, we don’t have individual characters” to “Everyone on our side is perceived as bad.” These are just excuses. I can guarantee that 99.9 percent of the time, there will be characters that can be developed. Here is a step-by-step guide to using Joseph Campbell’s model of the hero’s journey so as to turn your story’s main character into a hero. To make this useful pattern more accessible, I have attempted to use plain language to describe the steps. My plain language description is followed in parentheses by the name that Campbell gave to it. Also, to help bring the process alive, I have matched each step with an example from a hypothetical legal and technical fact pattern, typical of the cases we most often see at A2L. Here, our heroine is a lower-level employee at a stagnant remote-control manufacturing company, and she has an idea for a breakthrough product -- a remote control operated not with a handheld device but by wireless physical hand gestures. Something Interrupts the Ordinary (Campbell's Call to Adventure): Describe the status quo as it was at the time. Then describe that moment when someone sees an opportunity for change or a new threat emerges. In the hypothetical example, remote controls are functional uninspiring devices that get lost, wear out and have undergone little change for 25 years, in the same era that saw the mass deployment of handheld phones and personal computers. Inspired by watching her nieces play a TV-displayed game that uses hand gestures instead of controllers, our heroine imagines a world where hand gestures alone can manipulate her television and replace standard remote controls. At work the next day, she hears a speech by the firm’s CEO who is looking for new ideas. Obstacles Arise (Campbell's Refusal of the Call): Share how obstacles arose from the very beginning that prevented your client from taking the leap of faith required to pursue the opportunity. Example: After hearing the speech, our heroine brings the idea to the attention of management at the remote-control factory and was laughed out of the executive suite. She figured they were in management for a reason and went back to manufacturing remote controls as before. A Mentor or Helper Appears (Campbell's Supernatural Aid): Explain how your client gets some unexpected assistance that is a sensible next step in bringing the opportunity to reality. Example: Our heroine attends a consumer electronics conference that shows off some new gaming technology that reminds her of her idea. She talks with the reps at the trade show booth about applications they’ve considered for their wireless controllers. They suggest she show them what she has in mind.
This article is the second in a series of four articles about courtroom storytelling (here is a link to part 1). My goal in this series is to reveal some of the tricks of the persuasive storytelling trade in one place for the busy trial lawyer. I hope that these recommendations can serve as a pretrial checklist for anyone who wants to draft an opening statement. A2L’s litigation consultants have published dozens of articles about storytelling, and we’ve released books and webinars on the subject. These ten tips represent the essence of what we have learned and of what we have taught. If you apply these ten suggestions when developing your story for trial, your story will be more persuasive, and you will radically increase your chances of winning your case. Tip #2. Charisma and likability matter. The best set of facts may not save a trial lawyer who is unattractive and poorly dressed. This isn’t fair or right, but it is a reality that science proves out. For these reasons and more, it is imperative to put your best foot forward. "Your job as a persuasive litigator is to understand the factors that can be used properly and ethically to be more likable and thus more persuasive. As your case becomes more complicated, jurors are more likely to seek shortcuts and give more weight to easier factors to understand, such as which attorney they like and which they don’t. The less personally involved jurors are with evidence, such as information that is too dry or difficult, the more they tend to rely on peripheral cues rather than on an argument’s actual strength. Being liked is an important ingredient in the cocktail of peripheral cues jurors use to decide whom to believe." See, Like It or Not: Likability Counts for Credibility in the Courtroom
Please join me in wishing all the authors of A2L's Litigation Consulting Report blog a Happy 8 Year Blogging Anniversary!
Great trial lawyers are paid to tell stories for a living. Typically, one side’s recitation of a story is more persuasive than the other – even when both sides are drawing on the same set of facts. But why? Is it the charisma of the trial lawyer? Is it the way the story is told by both sides? Is it the deployment of superior litigation graphics by one side? Well, it’s all these things – and more. Our litigation consulting firm is often engaged to help top trial lawyers tell their stories in the most persuasive way possible. We do this by applying the latest findings of persuasion science and sharing the wisdom that we inherit by routinely observing the world’s very best trial lawyers. This article is the first in a series of four articles. My goal in this series is to reveal some of the tricks of the persuasive storytelling trade in one place for the busy trial lawyer. I hope that these recommendations can serve as a pretrial checklist for anyone who wants to draft an opening statement. A2L’s litigation consultants have published dozens of articles about storytelling, and we’ve released books and webinars on the subject. These ten tips represent the essence of what we have learned and of what we have taught. If you apply these ten suggestions when developing your story for trial, your story will be more persuasive, and you will radically increase your chances of winning your case. Tip #1. There must be a story. You should present a story, and it should follow the basic guidelines of storytelling. That is, there should be a beginning, middle, and end, and there should be storylines and human characters that your factfinders care about. Research tells us that human beings automatically make stories out of virtually all life events to gain a sense of control, even if it’s a false sense. It’s the difference between collecting bare facts and interpreting them in a coherent manner. Most people can’t resist making assumptions, drawing inferences, and imposing upon the facts what they “mean” rather than merely accepting information as is. Most of what people discuss in their social lives are stories and gossip – not random facts. Since we know that your jury will be using a story to sort out your litigation facts in order to reach its results, whose story do you want the jurors using -- one they’ve made up, one provided by opposing counsel, or yours? If we now think about how one might tell a story in an opening statement, below is a model for telling such a persuasive story. This example comes from a trial that ultimately derived from the financial crisis of the last half of the decade of the 2000s, where the issue was whether a bank could be held liable to its shareholders for bad real estate investments that the bank made. Introduction: I like to start with the statement of some fundamental truths and an introduction of the characters like, “Banks survive on greed - it's how they make money. When they make good loans, they make money. When they make bad loans, they lose money. These bankers are essentially being accused of making bad loans, which to be true would have to mean, they were not trying to make money. When is the last time you heard of bankers not trying to make money? It makes no sense.”
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?
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?
A couple of years ago, I was involved in running a genetics conference focused on using genetics as a defense tactic in civil cases, much in the way that DNA evidence is used in criminal cases. I've been working with experts in this field ever since. A few months back, I wrote an article about the clever use by plaintiffs of litigation graphics and genetics in the baby powder (talc) cases (see Some Lessons for Defendants From the Talc Liability Trials), including a $4 billion verdict against a major talc manufacturer. When I write about various types of cases, I often hear from lawyers who handle the types of cases I write about. On my post on the use of genetics evidence in the talc litigation, how many talc defense lawyers do you think I heard from? If you guessed zero, you'd be exactly right. And that's a problem. Not ready to accept that this is a problem for defendants? Then I will ask whether the plaintiffs’ talc bar was similarly unresponsive. As you can probably guess from the way I posed the question, the answer is no. Out of discretion, I won't say exactly who or how many responded, but it was more than zero. Even though there is more to gain for the defense bar from understanding and leveraging these critical tools, it’s the plaintiffs’ lawyers who are most active in the field, striving to improve their approach. From the defense bar — crickets. And that's the problem I'm seeing in the way some of these talc cases are being defended. Defense counsel appear to be playing defense – and completely ignoring the key point that the best defense in litigation is a good offense. These verdicts are having an impact on the companies involved. Last Friday, on December 14, 2018, shares of Johnson & Johnson fell 10 percent and were set to have their largest percentage drop in more than 16 years, after Reuters reported that the company knew for decades that there was some asbestos in its baby powder. Yesterday, December 18, 2018, Johnson and Johnson ran the full page ad seen here in an attempt to manage this growing crisis. For trial lawyers and litigation consulting firms like ours, these asbestos allegations are not new or surprising. It's what plaintiff's have alleged recently and have used to prevail in these cases. The surprising thing in these cases is defense counsel's unnecessarily passive approach. When products are accused of causing harm, defense lawyers often choose one of the following defense strategies: Assert the harm was caused by something else but we don’t know what (the “idiopathic” defense) Assert the harm was caused by something else and we know exactly what. Typically, most defendants have chosen the ‘we don’t know what other thing caused it’ strategy because it avoids giving up the favorable allocation of the burden of proof and assuming the very specific (and often difficult) burden of proving an alternative cause – much as criminal defendants take advantage of the “beyond a reasonable doubt” standard. Not surprisingly, this argument generally falls flat. Recently, the plaintiffs’ bar won a multi-billion-dollar verdict by asserting that there is asbestos in talc and that it causes mesothelioma. This is highly improbable for several logical reasons — but jurors tend to follow emotion first and logic second when deliberating. If asbestos is present in baby powder at all, it would be in such small amounts that one could not reasonably connect mesothelioma to it. If defense counsel asserts (as they have been) that the mesothelioma was caused by some other identified source of asbestos, and not by talc, that leaves jurors without the necessary tools to argue for a defense verdict during deliberations. So, what if defense counsel could instead prove that the plaintiff’s mesothelioma was caused by something other than asbestos in baby powder? Something identifiable, measurable, and specific. Using modern genetics, this is now possible. And it is a major sea change.
There are so many legal industry "best of" surveys that I have a hard time keeping track of them. Just about every month in one of them A2L is voted the top firm in either jury consulting, litigation graphics consulting, litigation consulting, or for our trial tech/hot seat services. I am grateful for our clients and blog readers who take the time to help and vote for us. It is a very big deal for me to see the company I helped build these past 24 years be recognized. While I know our people are the best at what they do, it is still it's nice to hear other people say it too. In a sea of surveys, one rises above the rest — The annual Best of the National Law Journal. A2L has been named #1 in this NLJ survey before. Today, I'm asking a favor of our readers. Would you help us be voted #1 in the nation again? It takes 2 minutes to help us be (publicly) recognized as the nation's top litigation consulting firm. We are nominated in four categories. Here's how you vote: Go to https://www.surveymonkey.com/r/BestofNLJ2019 before November 1, 2018 Answer at least questions 11, 55, 58 & 59 Click through the next buttons until you click DONE.
It has become quite common for major corporations to institute preferred vendor programs for their legal representation, under which a limited number of law firms pre-qualify to do legal work for the corporations and the corporations turn exclusively to these law firms. As an article on the American Bar Association’s website noted in 2014: Companies create preferred counsel lists not only to cut costs but also to build relationships with subject-matter experts relevant to their industries in their most important geographical areas. By consolidating work across fewer firms, companies deepen their counsel’s familiarity with their issues and get more consistency in their representation. Corporations are also using preferred vendor programs to select other types of outside professionals – including, significantly for our purposes, litigation consultants, jury consultants, litigation graphics consultants, and trial technicians. A few years ago, in fact, we published an article here suggesting no fewer than 17 best practices that should apply to the implementation of a preferred vendor program for trial consultants. The third of these suggested best practices perhaps should have been listed as the first, since the way I see things in our industry, it is the most relevant to what is going on today. It was: Remember, litigation is generally a one-time thing: You never want to be so focused on price that you overlook this. For trial support, you generally only get one bite at the apple, and vendors, especially new ones, can be a risk. So, as you consider procurement, be mindful of quality. Trust me, all firms are not created equal in this industry.
We have written many times about what separates good trial teams from world-class trial teams. One article collectively written by many people inside and outside of A2L stands out to me as seminal. It can be found here: 10 Criteria that Define Great Trial Teams If I could have all trial lawyers read only one of our articles, it would be this one. It is one of more than 600 on our site, but it succinctly reflects our leadership's best thinking, and it best summarizes what most of the other 599+ articles say. This simple list of 10 criteria, especially when used as a trial team self-assessment tool, is a thing of magic. In arriving at this deceptively simple list, we captured hundreds of years of trial experience. At first, we identified 50 trial team traits that set the great ones apart from the ordinary (you can see these in this article). When we reduced these 50 traits to 10 key criteria, I think we revealed the secret ingredients of a successful trial team. And in the two years since that was published, I have not seen any reason to revise the criteria. In fact, I’ve seen this list turned assessment tool perform consistently: Trial teams with low scores lose cases; trial teams with high scores win cases. Nowhere on this list do we explicitly use the term groupthink, but our thoughts on the subject are certainly implied through our selection of these 10 traits. First, what is groupthink? Wikipedia says: “Groupthink is a psychological phenomenon that occurs within a group of people in which the desire for harmony or conformity in the group results in an irrational or dysfunctional decision-making outcome. Group members try to minimize conflict and reach a consensus decision without critical evaluation of alternative viewpoints by actively suppressing dissenting viewpoints, and by isolating themselves from outside influences.” During trial preparation, members of a trial team can easily put not wanting to be wrong or different ahead of challenging a group decision. We have written about trial teams becoming dysfunctional under severe stress several times before in articles like: 5 Signs of a Dysfunctional Trial Team (and What to Do About It) When a Good Trial Team Goes Bad: The Psychology of Team Anxiety Groupthink is a little different than the nearly complete group breakdowns described in these articles, however. It's a little more subtle and not quite as nightmarish. Still, groupthink can derail a case -- and it often does. Although groupthink can raise its head at any time, we often see it emerge when a trial team is evaluating an opening PowerPoint deck under development, particularly if there are more than five people doing the evaluating. Members of the team will avoid challenging everything, including the specific slides, the order the story is told in, and what not to say during opening. Instead, they will give the appearance of agreement by staying silent. This is groupthink and it does not help win cases. It does the opposite. Here are nine ideas for solving these problems in a trial team. Get the “buts” out of the room: This is an expression we use at A2L. When you are doing creative work, nothing shuts down the creative mind more than someone who jumps in to say why something won't work. These statements usually start with the word “but.” See, Dealing With That ‘Bad Apple’ on Your Trial Team. Establish rules for your trial team meetings: Here are two we often use: silence is acceptance, and no spectators allowed. Ask your litigation graphics team for variations to stimulate thinking. Looking at one litigation graphic may generate some discussion, but looking at two variations guarantees it. Ask for this from your provider. See, 10 Reasons The Litigation Graphics You DO NOT Use Are Important.
This weekend, television news is sure to be dominated by Hurricane Florence. Many of us will watch the all-too-familiar scenes of high waves hitting the coastline and reporters being blown about by powerful winds. It's almost routine from a TV-watching perspective. But one unusually persuasive graphic caught my attention this week. Did you happen to see the Weather Channel’s storm surge simulation? I think it’s brilliant, and it potentially offers some lessons for forward-thinking trial counsel. The simulation begins at the 55-second mark in the video below:
I’ve been watching the baby powder/talc trials closely for the past several years. They feature some of the world’s best lawyers, and they are pushing the boundaries of scientific evidence. For anyone in the litigation business, the talc trials, as well as the trials involving the alleged cancer-causing properties of Monsanto’s herbicide Roundup, form a fascinating window into how big-ticket cases are being tried right now. In both lines of cases, plaintiffs are showing early dominance, and I think the defense accordingly needs to adjust both how it handles demonstrative evidence and how it deals with scientific evidence. Interestingly, both of these types of trials can be watched on the Courtroom View Network (CVN). I have long advocated that trial attorneys should be watching other trial attorneys on CVN because there’s almost no other way to see today’s great lawyers in action. In the most recent talc trial, famed plaintiffs lawyer Mark Lanier of Houston took on Johnson & Johnson, which makes talcum powder products. He asserted that his clients, 22 women who used the products, were exposed to asbestos found in talc and that this exposure caused them to contract ovarian cancer. The case is notable for many reasons. The result was certainly remarkable as this past July, plaintiffs were awarded nearly $4.7 billion in damages by a jury in a Missouri state court. The case is also one of the most high-profile cases to utilize genetic evidence. And that aspect was particularly interesting to me as this is an area that A2L and its partners at Innovative Science Solutions have been discussing for the last couple of years. We even held a conference on the topic of the use of genetic evidence in civil litigation. So let me discuss two aspects of this case. First, while I am not an expert in analyzing genetic evidence in civil cases, I do understand how to use it and how to present it. In this case, the defense was clearly reluctant to use genetic evidence, and it only lightly cross-examined plaintiffs’ genetics expert. I don’t know for sure, but I’ll speculate that like other defendants, Johnson & Johnson may have feared that by presenting genetic evidence as a defendant it would position the plaintiffs as a so-called eggshell plaintiffs, making liability easier for plaintiffs to prove. See takeaway #6 in this article where we discuss why this thinking is specious. Whether or not defendants were concerned about the role of genetics in conveying to the jury that these may be eggshell plaintiffs, Lanier appeared to adopt this approach anyway. He utilized genetics to affirmatively allege that the plaintiffs were especially vulnerable to the effects of talc. This highlights an apparent growing trend of the plaintiff utilizing genetics to demonstrate plaintiff susceptibility to alleged toxins and a need for the defense to effectively address and rebut this assertion. I haven’t seen that tactic before. and similarly situated defendants must get ready for this tactic in other cases. A good place to start would be talking to my friend and frequent collaborator Dr. David Schwartz at Innovative Science Solutions who is doing pioneering work with the group ToxicoGenomica. The second element of this trial that I found fascinating was Lanier’s use of demonstrative evidence. In most big-ticket litigation demonstrative evidence is exchanged a day or so before it is used, to allow for objections to be made. Clearly, Lanier has figured out a workaround by drawing (or having his colleague draw) a highly prejudicial demonstrative that for whatever reason the defense did get excluded. It's the featured picture in this article, but let me show you what I mean in this clickable video clip and transcript below from our friends at CVN. Here Mark Lanier perfectly combines the eggshell plaintiff approach with an objectionable piece of demonstrative evidence to powerfully drive a point home. His message is that some people are genetically more susceptible to cancer-causing agents like asbestos and that Johnson and Johnson and their baby powder products pushed plaintiffs over the cliff where cancer happens. Other free A2L Consulting resources related to genetics in civil litigation, litigation graphics, and demonstrative evidence include: With So Few Trials, Where Do You Find Trial Experience Now? 7 Key Takeaways from the Genetics in Civil Law Conference Free slide decks from the Genetics in Civil Law Conference Free E-Book: The Litigator's Guide to Combating Junk Science - 2nd Edition Repelling the Reptile Trial Strategy as Defense Counsel - Part 3 - Understanding the Bad Science The Importance of Litigation Graphics in Toxic Tort Litigation 10 Key Expert Witness Areas to Consider in Your Next Toxic Tort Case Free Download: Using Science to Prevail at Trial or As an Advocate 7 Reasons the Consulting Expert is Crucial in Science-Based Litigation Using Trial Graphics & Statistics to Win 12 Questions to Ask When Hiring a Trial Graphics Consultant Repelling the Reptile Trial Strategy as Defense Counsel - Part 1 Teaching Science to a Jury: A Trial Consulting Challenge 5 Valuable (and Free) Complex or Science-Focused Litigation Resources Winning BEFORE Trial - Part 3 - Storytelling for Lawyers
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