Forty years of research about the psychology of human memory has shown that our memories are far from perfect replicas of the events that they purport to describe. Eyewitness accounts, in particular, have been proved unreliable – with a profound impact on the value of courtroom testimony. Thousands of criminal convictions have been based on identifications and accounts later shown to be incorrect. Human memory is malleable -- it is affected by a number of factors that can modify it or distort it. It is well known that people can be induced to remember and to sincerely believe episodes from their past that never actually happened. This presents a difficult task for the trial lawyer. It’s not just criminal cases that turn on witnesses’ recollections of events. Most civil cases also rely on witnesses, and subjective assessments of witness credibility. Before a lawyer decides to put a fact witness on the stand, he or she needs to have some sense of how reliable that witness will be. Here are three suggestions, based on research by forensic psychologists, for the trial lawyer who wishes to assess the likely accuracy of a witness at trial. Ask the witness how confident he or she is about the planned testimony. There can be a significant relationship between how confident a witness is of his or her testimony and the likelihood that the testimony is accurate. The trial lawyer should ask the witness for a “confidence statement.” Is the witness 90 percent sure that this is what happened? Only 60 percent sure? The answer will help the trial lawyer decide how much weight to place on the witness’s testimony, or even whether to call him or her to the stand at all. Have the witness write down the key details of what he or she saw or heard. Details that are written down soon after the event are likely to be more accurate. The sooner a memory is recorded, the smaller the chance that it will be warped by hearing the accounts of others. In a civil case, it may have been months since the events in question occurred, but it still helps to ask the witness to write everything down, in his or her own words. Do not discuss the testimony with the witness too many times. Sometimes, if a witness is over-rehearsed, his or her testimony will harden to a point where it becomes rote and projects a confidence in details that is not really justified. It’s no surprise that sometimes witnesses say that they are “absolutely sure” of their testimony because they have been asked to repeat it on countless occasions before the trial. So keep to a minimum the number of times that the witness is asked to repeat his or her story. Other A2L free resources related to witness preparation, expert witnesses, and the science of persuasion include: Witness Preparation: Hit or Myth? The Top 14 Testimony Tips for Litigators and Expert Witnesses 3 Ways to Handle a Presentation-Challenged Expert Witness 7 Smart Ways for Expert Witnesses to Give Better Testimony Contact A2L about witness prep services performed by industry-leading consultants Free Download: Storytelling for Litigators How jurors evaluate expert witnesses vs. how lawyers do Witness preparation best practices - don't stay in the shallows! A2L Consulting Voted #1 Jury Consulting Firm by Readers of LegalTimes 7 Things You Never Want to Say in Court How NOT to Go to Court: Handling High Profile Clients No Advice is Better Than Bad Advice in Litigation Practice, Say Jury Consultants, is Why Movie Lawyers Perform So Well Webinar - Integrating Argument and Expert Evidence in Complex Cases Walking the Line: Don't Coach Your Experts (Re: Apple v. Samsung) 3 Articles Discussing What Jurors Really Think About You
We write here frequently about the importance of using visual evidence in trials and indeed in all sorts of other legal forums. But technology is not the be-all and end-all of persuasion. It is a very useful tool, but the importance of technology does not lessen the need to tell a convincing story to a jury or another decisionmaker. In fact, if courtroom technology is not deployed correctly, presenting visuals to a judge or jury can detract from one’s message rather than enhance it. In other words, figuring out who will be victorious at trial is not simply a matter of determining who is using litigation graphics and who is not. Any trial is ultimately about how each side can use its graphics to support an effective story. Technology-based graphics, therefore, should not be used to make up for the trial skills a lawyer lacks, but rather to enhance the skills he or she already possesses. The type of technological visual is another variable to consider when presenting an argument. Some research has suggested that depending on the case, different types of technology-based graphics can have different persuasive effects on the jury. For example, researchers compared a computer simulation of an air crash, an audiotape with written transcript of a cockpit voice recorder, and a speaker reading the cockpit voice recorder, and asked people to decide whether they believed there was a pilot error based on the evidence to which they had been exposed. The researchers found that jurors who were shown the computer animation believed the flight crew to be significantly less negligent that the other jurors who did not. Animations are so powerful because they can take us to places human beings cannot go. But even without animations, simple PowerPoint slides can be quite effective in advancing your narrative if done right.
During one college summer, I used to engage in aikido, a martial art. In retrospect, it was all a bit goofy, but I learned some good lessons from it. In particular, I learned about a technique common to many of the martial arts and to conflict in general. This is the idea that you can use someone's momentum against them. If they are running at you, you can move to the side and trip them -- and they will fall. This requires far less energy from you. Similarly, in the courtroom, while there is no physical contact (hopefully), there is certainly a direction and a momentum in the way factfinders arrive at conclusions. We've written about the idea of confirmation bias before in articles like I’m Right, Right? 5 Ways to Manage Juror Bias and Font Matters - A Trial Graphics Consultant's Trick to Overcome Bias. It's a concept that I believe all trial lawyers must understand at least somewhat. In the courtroom, using the momentum of a juror’s beliefs to help further those beliefs is a master trial lawyer technique. A new study reveals just how important it is for high-level trial lawyers to understand this concept of persuasion. The study, reported in the open-access journal Computational Biology, confirms something that is a little sad. It turns out that most humans will continue believing something that they previously believed, even when presented with clear evidence to the contrary and even when it hurts us to continue believing it. It's a bit more nuanced than that, but this is the essence of it. In the courtroom, we regularly work with banks accused of fraud, companies that have allegedly polluted the environment, and tech companies accused of theft of trade secrets. Trial lawyers always have the temptation to simply try to straightforwardly show judges and juries evidence that clearly contradicts the beliefs that those factfinders arrived with. That only makes sense, right? After all, if someone says you put the pollution there and you didn't, you just tell them you didn't do it, bring evidence, and you're off the hook, right? Unfortunately, my experience and this study do not support that idea. All humans arrive with certain biases when they show up to trial – such as these: Bankers are greedy. Oil companies don't care about the environment. Tech companies will do anything to win. All too often, trial counsel puts a lot of effort into trying to disprove these beliefs. Instead, consider the aikido move, step to the side, agree with the momentum, and use it to your advantage as follows: Bankers are greedy, so why would they ever do something that risked their money? XYZ oil company has been more reckless with the environment than you or I, but given what they went through before, do you really think they are dumb enough to do it again? Sure, tech companies will do anything to get ahead, but can you imagine anything more humiliating to someone as competitive as 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. In other words, find a way to accept that either your factfinders walked in with a certain bias or that your opponent will help them form a bias during opening statements – and then run with it. There’s no better way to test this approach than in a mock trial setting. That’s where you can learn to anticipate the biases and get ahead of them. Common sense, that new study, and several decades of litigation experience bear this out. Other free A2L articles and resources related to confirmation bias, the overwhelming power of the opening statement, and the power of effective storytelling in the courtroom include: When Smart Ain’t So Smart - Cognitive Bias, Experts and Jurors 7 Ways to Overcome Cognitive Bias and Persuade Still Think Persuasion is About Talking While Showing Bullet Points? 5 Essential Elements of Storytelling and Persuasion How Much Text on a PowerPoint Slide is Too Much? 5 Ways to Maximize Persuasion During Opening Statements - Part 4 Free A2L Consulting Webinar: Persuasive Storytelling for Litigation Good-Looking Graphic Design ≠ Good-Working Visual Persuasion I’m Right, Right? 5 Ways to Manage Juror Bias Persuasive Graphics: How Pictures Are Increasingly Influencing You 14 Places Your Colleagues are Using Persuasive Graphics That Maybe You're Not Font Matters - A Trial Graphics Consultant's Trick to Overcome Bias Why the President is Better than You at Creating Persuasive Graphics Law360 Interviews A2L Consulting's Founder/CEO Ken Lopez Are Jurors on Your “Team”? Using Group Membership to Influence Subscribe to this blog for free
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
The other day, I noticed a New York Times obituary for Alan Peckolick, a graphic designer and illustrator known for his distinctive corporate logos and typeface designs. Peckolick championed “expressive typography.” He wrote a textbook called “Teaching Type to Talk.” He created General Motors’ “GM” logo, and letterforms for Mercedes-Benz, Pfizer and Revlon. In a 2015 interview, Peckolick explained that he conceived of “letterform as a piece of design. Cat is not ‘cat’ — it’s c-a-t. That’s what led to the beginning of the expressive topography.” Peckolick belonged to a pioneering generation of designers who reinvented typeface as a form of art. They believed that, just as words convey literal dictionary meaning, so do they express figurative value through typeface and letterform. In litigation graphics, imbuing words with depth of meaning and expression is mission-critical. Each letter counts. Each word must carry its own weight on the page. There simply is no space to waste. And in addition to practicing economy of language, we must elevate the appearance of words to convey essential meaning. As a design blogger wrote: Typography often provides that at-a-glance first impression that people gauge and judge the rest of the design by — so your font choices need to be purposeful and appropriate. Is your font saying “beach vacation” when it should be saying “job interview”? Do the elements of your font “outfit” clash, or do they complement each other? Are they effectively communicating the qualities you want to project? Ask yourself, does the chart you are devising use an easy-to-read, unobtrusive typeface? Does the timeline have enough white space to let a juror follow it with her eyes? Does the font say “major patent issue worth hundreds of millions” or does it say “routine commercial dispute”? By power-packing words with multi-layers of meaning, we communicate at the highest level, allowing words not simply to “speak” in unison with graphics, but to come alive and leap off the page at the reader. Other free A2L Consulting articles and resources related to graphic design, font usage, and persuasion tricks in litigation graphics include: Font Matters - A Trial Graphics Consultant's Trick to Overcome Bias Still Think Persuasion is About Talking While Showing Bullet Points? Free Download: A Guide to Making Great Trial Timelines 5 Demonstrative Evidence Tricks and Cheats to Watch Out For A Surprising New Reason to Repeat Yourself at Trial Watch Out for Subliminal Messages in Trial Graphics The Top 14 Testimony Tips for Litigators and Expert Witnesses Never Use Bullet Points - Here's Why Don't Use PowerPoint as a Crutch in Trial or Anywhere 6 Trial Presentation Errors Lawyers Can Easily Avoid 12 Reasons Bullet Points Are Bad (in Trial Graphics or Anywhere) 10 Criteria that Define Great Trial Teams How Much Text on a PowerPoint Slide is Too Much? 5 Ways to Maximize Persuasion During Opening Statements - Part 4 Free A2L Consulting Webinar: Persuasive Storytelling for Litigation The 12 Worst PowerPoint Mistakes Litigators Make 12 Ways to SUCCESSFULLY Combine Oral and Visual Presentations The Effective Use of PowerPoint Presentation During Opening Statement 16 PowerPoint Litigation Graphics You Won't Believe Are PowerPoint 12 Questions to Ask When Hiring a Trial Graphics Consultant
It is unquestioned that technology has had a profound impact on our environment in the last couple of decades. Our brains are constantly adapting at a physical level to our environment, and research has suggested that technology has changed the way we perceive, remember, and process information. Not much has yet been said, however, about how technology has changed the ways in which jurors process information and the appropriate new styles that trial lawyers ought to use in presenting information to a jury. The growth of the internet, 24-hour television, and mobile phones means that we now receive five times as much information every day as we did 30 years ago. With the appropriate internet connection, technology allows us to access any information in less than a second. According to Internet Live Stats (2014), 88.5 percent of people in the United States are internet users. In addition, the internet has also changed the way we as a society process information. For example, when we read a book we do so linearly, from one sentence to another, but when using multimedia devices, we scan for keywords and grab small bits of relevant information. The internet has influenced people’s cognition in a way which they will now typically forego complex analytic thinking to get information quickly and easily. In other words, people allow the internet or even their smartphones to think for them. As a result, it is much harder to sustain attention, to think about one thing for an extended period, and to think deeply when new stimuli have been pouring in all day long. This is not to say that technology has negatively impacted our brain. Instead, the excess amount of information at our fingertips has changed the way we process large amounts of information and specifically, what information engages our attention.
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?
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)
I noticed a recent article describing how judges react to PowerPoint and to the sometimes excessive number of demonstrative exhibits presented to them. It resonated with me. The article describes a panel discussion among judges from the Patent Trial and Appeal Board. Lead Administrative Patent Judge Thomas Giannetti noted, "I think people are using too many demonstratives and too many PowerPoints. If you’re going to use them, don’t give us 100. Give us 10.” Lead Administrative Patent Judge Brian Murphy said at the same conference that “less is more,” because attorneys can be sure that the judges know the record before them quite well. He said he would like to see demonstratives that just focus on the key points and include clear citations to the record in the case. “Some parties use so many slides that they confuse themselves or confuse us,” he said. These judges make an excellent point. Ten phenomenal pieces of demonstrative evidence that reflect rigorous thought and preparation are much better than 100 bullet-point-riddled PowerPoint slides. In a time when PowerPoint makes it easy for associates to generate draft opening decks containing hundreds of slides, it's no surprise that judges are pushing back. The problem with PowerPoint is that it makes it too easy to do lazy, dull, and uninspired work. I spoke at a conference recently and I made the point that every case has one exhibit that can tell the story of the case -- and we all just need to find it. The best tool for doing so is time, which is a precious commodity in most trial preparation situations. The more time you have, the more likely you are to have that epiphany about just the right demonstrative that brings the whole case together. I've often spoken and written about the fact that the demonstrative exhibits you don't use have a lot to do with finding the ideal demonstratives because of the iterative process of creativity. The great challenge is taking the time to go through 20 to 40 versions of a PowerPoint deck before arriving at your final opening or closing deck. It's the right way to do things. Without a doubt, it leads to the best results. But it does require the consumption of precious time. Every lawyer has to decide on his or her own whether this time is well spent. I believe it is. Other free articles and resources from A2L Consulting about trial preparation, the development of litigation graphics, and the preparation of persuasive visual aids for trial include: Lawyers: It’s Time to Make Time for Trial Preparation 10 Reasons The Litigation Graphics You DO NOT Use Are Important The 14 Most Preventable Trial Preparation Mistakes 12 Ways to SUCCESSFULLY Combine Oral and Visual Presentations The 13 Biggest Reasons to Avoid Last-Minute Trial Preparation Why Reading Bullet Points in Litigation Graphics Hurts You The 12 Worst PowerPoint Mistakes Litigators Make 16 PowerPoint Litigation Graphics You Won't Believe Are PowerPoint FREE DOWNLOAD: Storytelling for Litigators E-Book 3rd Ed. Law360 Interviews A2L Consulting's Founder/CEO Ken Lopez Three Top Trial Lawyers Tell Us Why Storytelling Is So Important 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 Using & Creating Litigation Graphics to Persuade - An E-Book for Litigators and Litigation Support Professionals 6 Studies That Support Litigation Graphics in Courtroom Presentations
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 Ken Lopez Founder/CEO A2L Consulting We recently had the opportunity to co-host a conference focused on the use of genetics in the courtroom. The conference was entitled Genetics in Civil Law: Litigation, Regulation, Business Opportunities, and Risks. A2L was joined in hosting by three science-focused expert firms that are pioneers in the law and genetics field. For me, the real pleasure of participating in the conference was how much I learned. That's kind of unusual for a conference, right? There are just a handful of valuable takeaways at most conferences I attend. Here, there were dozens of them, simply because of the nature of the material and the state of the art. The work being done by the speakers, the hosts, and many of the participants is genuinely pioneering -- both as it applies inside the courtroom and outside. Here are seven key takeaways that highlight some of the most valuable aspects of attending the conference. Please note that number 7 is your ability to download the slides for free from the key speakers without further obligation of any kind. The use of DNA evidence in the courtroom is relatively new. From watching TV, from the OJ case, and from our practices, we're all generally familiar with how DNA evidence is used in criminal cases. Many people are surprised to learn that its use as evidence in the courtroom dates only to the mid-1980s. That's right, in the courtroom, DNA evidence is just 25 years old. The use of genetic evidence in civil cases is just beginning. For trial lawyers involved in big-ticket litigation, the present is the equivalent of the mid-1980s for criminal lawyers. Genetics and DNA evidence are being used by plaintiffs and defendants in big cases. Genetics have been successfully used in many big cases. Not many cases of this sort have made it to trial, but some have. The cases thus far have been related to exposure to substances like benzene, asbestos, and tobacco. Companies have found a successful defense with the use of genetics. We can expect to see such a defense in talc litigation and other emerging pattern litigation soon. Genetics can be used to establish an alternative cause. Genetic profiling can not only be used to question or prove causation, but it can also be used to establish an alternative cause, because exposure to certain substances leaves a genetic trace and certain cancers have unique genetic profiles. The science is accepted. There is ample precedent for the use of genetic evidence at trial. Indeed, there is 25 years of precedent. The eggshell plaintiff worry is just a worry. Defense lawyers know that they have to accept plaintiffs as they find them. That is, if a plaintiff is extra-sensitive to a chemical exposure, that extra sensitivity might provide the plaintiff with extra ammunition. So, the worry I've heard expressed is that if we genetically profile a plaintiff and find that he or she is indeed extra sensitive, we help make the plaintiffs case. However, I learned at this conference that one can assess a case and make a decision about whether genetic analysis will be worthwhile without doing the work and potentially find valuable and powerful alternative cause defenses. Click here to download an e-book containing the slide decks from the conference for free.
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.
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