Many of us find ourselves, from time to time, in the position of having to give advice to friends and acquaintances. In those circumstances, it’s simply human nature that the person who is seeking the advice is frequently more than a bit resistant to following it. So the person giving advice needs to figure out ways to overcome that resistance and to persuade the friend. I believe that the same principles that help us persuade our fellow human beings to follow our advice are also very helpful for trial lawyers who want to convince a jury of the rightness of their case. Here are some of them. To me, the essence of persuasion is trust. If that friend trusts you, she is much more likely to follow your advice. The same is true of a jury. Much of a trial team’s work can be seen as a concerted effort to build up trust with the jury. Trust has several components. Certainly, a key component is credibility. Do your background and experience indicate to the jury that you know what you’re talking about? Another component is comfort. Standing before the jury, do you appear comfortable and at ease with what you are advising the jurors? Yet another aspect is rapport. This is a matter of addressing the jury directly and being mindful and focused so as to develop a connection with the jurors. No distractions or multi-tasking can be appropriate. The jury is your only focus. Then of course there is empathy. This is very important in the context of advice-giving to friends, and even more so with a jury. If your client is, say, a large company accused of polluting a river, you need to empathize with the jurors’ possible bias against your client. You need to give them a narrative that will help them change their preconceptions. Then there is culture. That is hard to define, but it involves all of the life experiences that the jurors come to court with. You wouldn’t speak identically to a jury in a high-income New York suburb as you would to a jury in the West Texas plains or the Florida Keys. In addition to trust, a key element of persuasion is logical argument. You can have a great deal of credibility with a friend and share her cultural background, but if your advice doesn’t make sense, she won’t follow it. The same is true of a jury. Finally, one must not neglect the importance of time. Even your best friend wouldn’t want you to waste his time while giving advice in a drawn-out way, and juries too tend to tune out an argument that is too lengthy and complicated. As with the other components, a good deal of the art of persuasion amounts to common sense. Other free A2L articles related to persuasion techniques, connecting with jurors, and being likable in the courtroom include: Three Top Trial Lawyers Tell Us Why Storytelling Is So Important Like It or Not: Likability Counts for Credibility in the Courtroom Still Think Persuasion is About Talking While Showing Bullet Points? Free A2L Consulting Webinar: Persuasive Storytelling for Litigation SPICE Is the Key to Persuasion Free A2L Consulting Webinar: Winning Your Case BEFORE Trial Using Persuasive Litigation Graphics — Watch OnDemand Now Free A2L Consulting Webinar: 5 Ways to Maximize Persuasion During Opening Statements — Watch Anytime How Pictures Are Increasingly Influencing You 5 Ways to Apply Active Teaching Methods for Better Persuasion 12 Ways to SUCCESSFULLY Combine Oral and Visual Presentations 5 Chart Tricks and Cheats to Watch Out For 7 Ways to Avoid Making Your PowerPoint Slides Your Handout 14 Tips for Delivering a Great Board Meeting Presentation Presentation Graphics: Why The President Is Better Than You 12 Reasons Bullet Points Are Bad (in Trial Graphics or Anywhere) 8 Videos and 7 Articles About the Science of Persuasion Could Surprise Be One of Your Best Visual Persuasion Tools? How to Be a Great Expert Witness (Part 3)
Tony Klapper
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by Tony Klapper Managing Director, Litigation Consulting A2L Consulting Lately, I’ve been reading journalist Thomas Friedman’s current book, Thank You for Being Late: An Optimist’s Guide to Thriving in an Age of Accelerations, and I’ve been reflecting on some of the book’s messages. The book focuses on the new, fast-moving world that technology has created for all of us and how we should adapt to living in it. It’s not explicitly about lawyers or trial preparation. But I think there are three lessons that lawyers and trial consultants can learn from Friedman’s book. It’s important to set aside time to think and reflect, to look at the bigger picture. That’s what Friedman meant by “being late” and its virtues. For the trial lawyer and consultant, the message is straightforward: Get off the constantly turning hamster wheel of time. Don’t focus endlessly on the myriad documents, motions and combative correspondence with opposing counsel in the case. Think of what the broad narrative should be. Ask yourself what the case is really about, not what you were doing in the last 15 minutes.
by Tony Klapper (Foermer) Managing Director, Litigation Consulting A2L Consulting In these pages, we have discussed from time to time the role of the “hot seat operator” or “trial tech,” the person who is tasked at trial with ensuring that the visual presentations go off without a hitch, enabling the trial team to tell its story smoothly and effectively. The job requires almost supernatural calm under intense pressure, an understanding of the essence of a trial, superb computer skills, and the ability to improvise when needed. It’s one of those jobs that, if it is done perfectly, the tech’s presence is never noticed. People only notice the trial tech when something goes wrong.
by Tony Klapper Managing Director, Litigation Consulting A2L Consulting War rooms at trial are very intense, high-pressure places. Obviously, the lawyers in the trial team are going to make the war room their “office” for the duration of the trial, as will other team members such as paralegals and consultants. Here are five reasons why a trial team should always consider having a graphic artist on site, right beside the attorneys. If an artist is not there, side by side with the lawyers, the team will lose a certain amount of flexibility and responsiveness. If a lawyer wants a visual to be slightly modified, based on testimony that’s just now being heard, there’s nothing like having someone by her side to share thoughts with. The response can be immediate and in real time. Communication between the lawyer and the litigation graphics artist is much easier to achieve. If the artist is not there, miscommunications can creep in like a child’s game of “telephone.” A lawyer can show an artist on site exactly what she means because the artist is able to see and hear the lawyer, not just read an email or listen on the phone.
by Tony Klapper (Former) Managing Director, Litigation Consulting A2L Consulting For the purpose of telling a story or presenting data, experts have, over the years, suggested two different approaches. I will call them the “static” approach and the “build” approach. The static approach, in the hands of outstanding practitioners of data presentation, can have memorable results. Essentially, it conveys a great many types of information simultaneously, using graphic elements to show the relationship among the different varieties of data. Long before the advent of computers, French civil engineer Charles Joseph Minard, a pioneer in the presentation of data, created brilliant drawings depicting Napoleon’s Russian military campaign of 1812. These are a classic example of the static approach. The drawings, published in 1869, show the size of Napoleon’s army at each point of the campaign, the distance traveled, the latitude and longitude, and other key pieces of information. The acclaimed contemporary information scientist Edward Tufte says Minard’s work is “probably the best statistical graphic ever drawn,” high praise indeed. Trial lawyers also need to tell stories and present complex data sets to juries. That, in fact, is a good summary of what trial lawyers do. Lawyers and clients sometimes ask us at A2L to use this “static” approach and create a demonstrative that “says it all” in one large graph or chart. However, despite Tufte’s praise for Minard’s classic design, we think that judges and juries often learn better from a “build” approach, which starts with the basics of a story and builds it up incrementally. In our view, there is great benefit to not overwhelming a jury but in reaching a result in baby steps, especially when using a PowerPoint presentation for a jury trial. If a jury went into deliberations using a Minard-type document, we are not sure that all the jurors would fully see the ramifications of all the data, no matter how skillfully it was presented. In fact, the presentation itself during trial may take too much time and may be ineffective—as the lawyer (or the witness) is trying to orient the jury as to what to focus on and not focus on at any particular moment in the narrative. People tend to learn incrementally, not all at once. When many variables need to be presented – say, corporate earnings and profits, the number of market competitors, and prices over time – we often prefer to start with a PowerPoint with just one of those variables and build it up slowly. Trials are one area of endeavor in which we think the “build” approach may work better than the “static” approach. Other free and popular A2L Consulting articles related to legal infographics, PowerPoint litigation graphics, PowerPoint presentation for a jury trial, and demonstrative evidence generally: 16 PowerPoint Litigation Graphics You Won't Believe Are PowerPoint 15 Fascinating Legal and Litigation Infographics Information Design and Litigation Graphics Litigators, Portray Your Client As a Hero In 17 Easy Storytelling Steps Litigation Graphics, Psychology and Color Meaning 6 Studies That Support Litigation Graphics in Courtroom Presentations How Much Text on a PowerPoint Slide is Too Much? 9 Things I’ve Noticed About Effective Litigation Graphics After 20 Years as a Litigator 16 Litigation Graphics Lessons for Mid-Sized Law Firms 17 Reasons Why Litigation Consultants Are Better at Graphics Than Law Firms Why Trial Tech ≠ Litigation Graphics Good-Looking Graphic Design ≠ Good-Working Visual Persuasion 12 Reasons Litigation Graphics are More Complicated Than You Think
by Tony Klapper (Former) Managing Director, Litigation Consulting A2L Consulting I recently had the opportunity to make a presentation at a federal judges’ conference in New Jersey that brought together judges and lawyers from that state. About 300 lawyers attended, as did about two dozen federal judges. The subject of my presentation was storytelling and its role in trials. After my presentation was over, I informally polled the judges in the room on their views concerning the importance of visuals at trial and the role of storytelling. Every single one of the judges, with the possible exception of one bankruptcy judge, indicated that he or she thought that the use of demonstratives was a critical part of any trial presentation. This is a notable indication, if an unscientific one, that judges, who are key decisionmakers in any courtroom, understand the role of visual persuasion. I would add a caveat. They are judges, after all, and I have little doubt that they will sua sponte reject a trial lawyer’s effort to tell a story visually that in the judge’s view is inherently unfair to the other side. Judges will control what goes on in the courtroom when it comes to the use of demonstratives as part of your narrative, as they will in every other aspect of a trial. That means that, as we said in our most recent post, trial lawyers should always have a backup plan in mind, a “Plan B” in case the judge views their original approach as objectionable. But the results of my informal poll are consistent with what we at A2L have been saying for the past several years here. Jurors are human beings who learn best when they learn visually, and they understand a case the most instinctively if it comes to them in the form of a story. Other articles about bench trials, mock bench trials, using demonstrative evidence with judges, and visual storytelling from A2L Consulting include: 21 Ingenious Ways to Research Your Judge 7 Things You Never Want to Say in Court 10 Suggestions for Conducting Mock Bench Trial Consulting Exercises Using Litigation Graphics in Bench Trials: How Different Is It From Jury Trials? 11 Surprising Areas Where We Are Using Mock Exercises and Testing Storytelling at Trial Works - But Whom Should the Story Be About? Winning BEFORE Trial - Part 3 - Storytelling for Lawyers 12 Ways to SUCCESSFULLY Combine Oral and Visual Presentations 3 Articles Discussing What Jurors Really Think About You 11 Tips for Winning at Your Markman Hearings 5 Essential Elements of Storytelling and Persuasion 11 Tips for Preparing to Argue at the Federal Circuit 5 Keys to Telling a Compelling Story in the Courtroom Preparing for ITC Hearings Three Top Trial Lawyers Tell Us Why Storytelling Is So Important
by Tony Klapper Managing Director, Litigation Consulting A2L Consulting We spend a lot of time in this blog describing the best practices to use in persuading a jury or judge, explaining why they work, and encouraging lawyers to use them. But what if your best-laid plans go astray? Even the most exhaustive set of trial preparations can go unexpectedly wrong. Hardware can fail, judges can issue unpredictable rulings, courtroom technology can prove incompatible. Our advice is to always double check everything and always have a backup plan. Do you have a PowerPoint that you need to use at trial? Make sure that the video screen you’re going to use is sized correctly for your presentation. Did you bring the right cables? We once had a client who brought the wrong cables and, as the trial began, found that she couldn’t use her PowerPoint. Thankfully, she had a hard copy of her slides and the presentation went just fine. Is there enough RAM in the computer you’ll be using in court to show your exhibits? This may not be the same computer that you have used to prepare the exhibits. At the very least, have those exhibits printed out in case of disaster. And always keep the finalized slides on a flash drive with you. Also, make sure the PowerPoint version is the same or newer on the machine you are going to show it on, since conflicting versions of PowerPoint can sometimes cause issues with your slides.
Timelines are a frequently used, time-honored trial technique that we have discussed in these pages more than once. Since human beings like to focus on a story – what happened first, what happened next, and so on – timelines have the power to summarize, in a simple and straightforward way, the entire narrative of a case. But not all timeline graphics are created equal. Here are three ways to use what we call “top-bottom” timelines that most successfully take advantage of their power to persuade. In the first type of “top-bottom” timeline, the chronological portion of the line, in years, months, days, whatever is relevant, sits in the middle. At the top lie the actions of your client, tagged at the appropriate time when they occurred. Below the line are the actions, or inactions, of the other side in the litigation. Let’s say the case centers around a construction contract, and your point is that a subcontractor’s inaction caused a critical delay in the completion of the contract. Above the line are the actions of your client, the main contractor – the days when it began work, when it completed certain key steps of the project, when it contacted the subcontractor for progress reports. Below the line are the actions of the subcontractor, which diminish in number and in significance as the deadline approaches. The jury can look at the timeline and immediately draw a distinction between your client’s actions (good and appropriate) and the other company’s actions (few and showing evidence of foot-dragging).
by Tony Klapper Managing Director, Litigation Consulting A2L Consulting Here in these pages, we often talk about storytelling as a fundamental principle of successful trial work. But what are the elements of a good story? A good story is one that will be retold – it’s one that begs to be retold. Just as our ancestors told and retold the fundamental stories of their nations by the fireside, a great story is one that people today will repeat at the watercooler, in the bar, in the line at the grocery, or anywhere that there’s time for a narrative. A compelling movie (think of the Pixar films or a Steven Spielberg production) or a great epic (as far back as the Iliad or the Odyssey) or even an account of business success (think Steve Jobs, Bill Gates or Thomas Edison) will have the essential elements of a story. And as trial lawyers, we want jurors to pick up the story that we tell, and retell it in the jury room during deliberations. Each of these great stories has a few things in common: a distinct source of conflict or tension, compelling character development, and a message that is conveyed, either directly or subtly, that conforms with the values of the people who are hearing the story.
by Tony Klapper (former) Managing Director, Litigation Consulting A2L Consulting At A2L, we tend to work with the top litigators at some of the nation’s best-known firms. These men and women are obviously excellent lawyers, very good at what they do. They are also very busy. They always have another complaint to respond to, another discovery dispute to resolve, another brief to write or edit, another partners meeting to attend, another associate to evaluate, and another set of bills to review before a client sees them. So when it comes time to thinking about what trial presentation works best, some of these lawyers procrastinate and delay developing the story. This is a strategic error. As early as possible, you should be crafting your narrative and deciding what kind of jury research exercise you might want to do or what kind of graphics to show. These things can be the difference between winning and losing the case – and they deserve high priority. It’s not a matter of self-promotion for A2L; rather, it’s an understanding, which we hope all our team members share, that these aspects of trial are crucial and should not be deferred without a very good reason. That email to a client is important, and so is that meet and confer letter – but the essence of a trial presentation is even more important. And it has a time element that many lawyers may not be aware of. If they allow for a mock jury exercise months before the real trial, they can easily take what they have learned and apply it to their case. The sooner it is done, the better, because the lessons learned in a mock can help guide not only your ultimate trial narrative but also the evidence needed to support that narrative. If you wait too long, the admissible evidence may already be locked in because the discovery doors have closed. But working backwards to get the timing right requires careful planning and strategic thought — something that the over-stretched, busy partner might not make time for. But making time for the building blocks of your narrative is one of the most critical things you can do as a litigator—particularly when there is a very real risk of (or opportunity for) going to trial. If you are too busy, try to divide your team into those who handle the day-to-day “litigation” tasks and those who can allocate sufficient time to the big-picture trial thoughts. These, of course, cannot be completely placed in separate buckets, but if you start structuring your trial and litigation teams along these lines (with open and frequent communication between the two), you will end up making the time necessary to both properly litigate and properly try your case. One way of handling this that worked very well in matters that I was involved in during my 20 years of practice was to have the trial lead do the things that only he or she could (or should) do, and have his or her top lieutenant make sure that the day-to-day things get done. The lead trial attorney can review this work but need not be hands-on. That frees time to accomplish the essential task of trial preparation, well in advance. After all, a law firm is about client service, and that is certainly what the client in a high-stakes case would want. Other A2L Consulting articles discussing trial preparation, the timing of trial preparation, and best practices of leading trial teams include: 10 Criteria that Define Great Trial Teams The 14 Most Preventable Trial Preparation Mistakes The 13 Biggest Reasons to Avoid Last-Minute Trial Preparation 7 Habits of Great Trial Teams FREE DOWNLOAD: Storytelling for Litigators E-Book 3rd Ed. 16 Trial Presentation Tips You Can Learn from Hollywood Three Top Trial Lawyers Tell Us Why Storytelling Is So Important 3 Trial Preparation Red Flags That Suggest a Loss is Imminent How Long Before Trial Should I Begin Preparing My Trial Graphics? Top 7 Things I've Observed as a Litigation Consultant Sample One-Year Trial Prep Calendar for High Stakes Cases 7 Ways to Prepare Trial Graphics Early & Manage Your Budget Practice is a Crucial Piece of the Storytelling Puzzle 6 Triggers That Prompt a Call to Your Litigation Consultant Planning For Courtroom Persuasion? Use a Two-Track Trial Strategy 7 Reasons It's Okay to Procrastinate on Your Trial Preparation
by Tony Klapper Managing Director, Litigation Consulting A2L Consulting We’ve spoken here more than once about the fact that jurors, unlike most attorneys, tend to be visual learners who like to be shown, not told. The best way to show them what they need to know, as we have said, is through litigation graphics. Science has also taught us that the best way to keep a jury’s attention is by telling a story in the courtroom. These insights obviously have major implications for how trial lawyers should use the arts of persuasion in a jury trial. What about a bench trial or an arbitration? Here, the decisionmaker is trained as an attorney. Do we toss out all that we know about jury trials and proceed in an entirely different manner?
by Tony Klapper Managing Director, Litigation Consulting A2L Consulting We have written many times about the fact that scientific studies have shown that nonlawyers (who are the vast majority of jurors) tend to be visual learners, and tend not to be auditory learners or kinesthetic learners –people who learn by experiencing. Lawyers (who are the ones who present facts and tell stories to jurors) tend not to be visual learners and are often drawn from the ranks of auditory or kinesthetic learners. Of course, this can present an intrinsic problem that we have discussed before. If most lawyers like to tell but not show, and our audience, the jury, prefers to be shown something and not to be told, we may completely fail to connect with our audience. It’s not just psychologists and other students of human behavior who say so; it’s also people who devote full time to understanding trial advocacy. The National Institute of Trial Advocacy (NITA) is a fantastic organization that represents the “gold standard” of trial advocacy. In addition to putting on outstanding CLE programs for newbie and experienced litigators, NITA also publishes many great books from scholars who have thought long and hard about advocacy.
by Tony Klapper Managing Director, Litigation Consulting A2L Consulting At first glance, antitrust cases seem like unlikely venues for the successful use of litigation graphics. Antitrust law has the reputation for being arcane, abstract and statistical, and to some extent the reputation is justified. After all, this area of law deals with the workings of supply and demand and other economic questions, and the issue is often whether competition (or potential competition) in a market has been suppressed in some way. These matters aren’t remotely within the daily experience of jurors. How can a litigator use graphics in antitrust cases to make them make sense? It can be done. Earlier this year, a well-written article in Law360 (paywall) noted that “explaining the details of an antitrust case to a jury can be a daunting task, but lawyers who build a compelling narrative and communicate with a straightforward style stand a good chance of bringing the jury around to their client’s point of view, experts say.” The article suggested that “many jurors are visual learners, so economic evidence is most likely to stick when the spoken testimony is supplemented with visual aids.” We agree.
by Tony Klapper Managing Director, Litigation Consulting A2L Consulting Ken Lopez, the CEO of A2L Consulting, and I were talking the other day about some good books to read for the holiday season. I suggested a current best-seller, Thomas Friedman's Thank You for Being Late - strongly recommended to me by my dear friend and mentor, Jim Hostetler. But Ken guided me to another book, a best-seller written 15 years ago by Jim Collins, called Good to Great. It was a great read. Although the book is principally a heavily researched analysis on what differentiates a great company from just a good company, I believe that many of the same lessons that apply to the Fortune 500 apply with equal force to law firms, litigation consulting companies, and even trial teams. Borrowing heavily from Collins' conclusions, I offer the following New Year’s thoughts on how good trial teams can be great trial teams: Great trial teams have leaders who have the confidence to make important decisions but also the humility to call attention to the team, not themselves. Great trial teams are composed of the best and the brightest who, like their leader, put the team first. They are not necessarily subject matter experts (though subject matter expertise certainly doesn’t hurt), but they are innovative thinkers who roll up their sleeves and get to work.
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