by Tony Klapper Managing Director, Litigation Consulting A2L Consulting We have always emphasized how important it is for a trial lawyer to organize his or her case so as to tell a consistent and convincing story to the jury or judge. In making that recommendation, we draw on experience and common sense, as well as on science that indicates that human beings are wired to follow intriguing stories and to look forward to their ultimate resolution. “Storytelling is essential to winning trials – and that goes for mediations, arbitrations, and hearings, literally anywhere you must connect with an audience,” we have written. “Whether it’s your story or not, a story will inevitably emerge during a trial. Mock trials and focus groups have repeatedly shown that when a jury has two camps representing the two sides of the case, each camp will have a fairly consistent story that it endorses and clings to. Consistently, we find that those stories are short, that they fit with common sense, that they borrow some of the salient facts from the trial, and that they are complete tales, with a beginning, a middle and an end – including what happened and what should have happened.” A story removes a case from the realm of the strictly legal and makes it personal. It humanizes one’s client and helps a jury identify with the client. But can storytelling go too far as a technique of persuasion?
by Alex Brown Director of Operations A2L Consulting While I was working on a case with one of our clients, it came to light that the opposition was using a trial technician for trial. At first our client did not want to bear the expense and did not feel that the case lent itself to the use of a full-time “hot seat” operator. I asked the client a few questions: What percentage of potential jurors carry a smartphone? Of that group, how many have tablets? Of those people who are “connected,” how many will be impressed by the flash and professionalism of a skilled trial tech? As you would expect, the numbers were high. It was obvious to everyone that if you are on a case and one side is using trial software, you have to match the other side or be left in the dust. People expect to see technology in the courtroom, appreciate the effort if it is made, and do not understand if one side does not use it. If your opposition is using modern technology and you are using the overhead and drawing on flip charts, your message will be lost. In this instance, we helped our client find a solution that did not permit the opposition to make it look unprepared and unprofessional. Here are 10 good rules for using trial presentation software to the best effect. Provide training. Make sure if you are going to use it, know how to use it or find someone that does. The software is designed to make your presentation effective and seamless. If you are not getting that result, bring in someone who can. Use the right tool. Sanction, TrialPad, TrialDirector (laptop or iPad), and OnQue are the top platforms today. Use the one that’s best for you. Ninety percent of trial teams that use this type of software use TrialDirector, simply because it works. This should not take away from the other platforms. Sanction has improved, and OnQue is the new kid on the block and seems to handle video much better than the alternatives. But comfort is paramount, so use the platform that is most comfortable to the one presenting. Remember, you are not the one running the presentation. They are there to support you.
by Tony Klapper Managing Director, Litigation Consulting A2L Consulting When I was a practicing lawyer, trying high-stakes cases in the major law firm world, many of my colleagues would often cast doubt on the need for jury consultants and mock trials. They would say that as experienced trial lawyers, they already had a good feel for a jury and for the art of persuasion. In addition, lawyers would argue that very few reliable conclusions could be drawn from the attitudes and outlooks of a small number of mock jurors. Actually, this is a rather short-sighted way to approach the topic. A jury consultant can add immeasurable value to a trial team’s efforts in any number of ways. Here are five of them: Theme development. Working with a mock jury provides invaluable research into what themes will work with the actual jury and what themes will not work. The mock jury will get a chance to hear several proposed themes for your side, as well as the way in which the opposition can be expected to rebut those themes. Interviewing the mock jurors will shed considerable light on what works for them, emotionally, and what does not. Message clarity. Many lawyers on a trial team get lost in the weeds and develop countless lines of information without any concern for whether they contribute to their side’s main narrative. It is very easy to review documents for their own sake without any consideration of why they should care about the documents. A mock trial will force all those attorneys to focus on the facts that really matter to their case and will provide the needed discipline.
by Jeanne Cannarozzi (Former) Business Development Manager A2L Consulting Trial teams often struggle to find just the right analogy or metaphor to help convince a jury. As persuasion consultants, our role is very often that of finding options for analogies or metaphors for a trial team to consider. It's one of those times when our office looks a lot like an advertising agency with a group trying to brainstorm. I want to share some resources used by our team in coming up with good techniques for trial teams to use.
by Ken Lopez Founder/CEO A2L Consulting I’ve seen a great many lawyers read documents aloud at trials, and, not coincidentally, I’ve seen lawyers lose cases in part because they did so. Both experience and the science of persuasion tell us that reading documents to a jury is a persuasion killer. But of course there are times when you absolutely need to read a document out loud. This article will help you find the best ways to do so when it is necessary. There are at least five good reasons why reading documents out loud is harmful. I will go through them, then offer three guidelines for reading passages of text to a jury or judge when it is necessary. After all, it’s hard to imagine trying a contract case without reading the key provisions of the contract. The split-attention effect/redundancy effect is easy to recognize, and we've all experienced it. In summary, if you are presented with a written document and it is read to you at the same time, your brain will have a hard time sorting out whether to read or to listen. What you might not know is that you actually end up far worse off reading written materials while seeing an image of those materials than you would have if you had just done one or the other -- read the materials or listened to the words. See The Redundancy Effect, PowerPoint and Legal Graphics.
by Alex Brown Director of Operations A2L Consulting Nearly every person can recognize a successful and persuasive public speaker when he or she hears one. But it’s not always so easy to identify the specific traits that nearly all successful speakers share. As a longtime observer of oral advocacy and persuasion, I have compiled a list of the things that all speakers should do if they want their audiences to listen and care about what they are saying – especially if their audience happens to be a jury or judge. Start strong. As you know, your opening statement will win or lose the case. So it makes sense that the opening of your opening – the very first few sentences -- is vital. Use this as your chance to set the stage. The majority of people on the jury do not want to be there or see their jury service as a waste of time, so don’t waste their time. Catch them quickly and hold their attention. Know your audience. Make sure you are speaking to your audience, and not at them. Do you understand their background, their culture, their education level, and their socio-economic standing? Can you identify who the likely leaders will be, and can you get them on your side? Do you already know who your advocates on the jury will be? Sounds hard, but if you have a top-notch jury expert, they can give you the ammunition to know these answers before you open your mouth.
by Ken Lopez Founder/CEO A2L Consulting In the first quarter of 2016, A2L Consulting reported record amounts of business and web traffic. Well, those numbers have only continued to climb throughout the second and third quarters of this year. High stakes litigation is booming across the industry, although it's not heavily concentrated in any one law firm or in any one business sector. Every year, more than a quarter million visits are paid to A2L's blog, The Litigation Consulting Report. Each year we publish more than 100 articles focused on highly specialized areas of persuasion science, jury consulting, high-stakes litigation, and the use of litigation graphics at trial. To help our readership find the very best articles, we publish "best of" articles like this one throughout the year. Today, I'm highlighting the five articles that you, our readers, voted the very best of the past two quarters. I think each is a fascinating read. 5. 10 Criteria that Define Great Trial Teams: Our top trial experts at A2L seek to distill the essence of trial preparation and develop a numerical way to measure its quality and predict success. 4. 50 Characteristics of Top Trial Teams: We tell our readers what the unique characteristics of the top trial teams are. Some of them are quite surprising.
How many slides should a world-class trial lawyer or trial presentation consultant create for use in a typical trial? That’s an interesting question that I hadn’t thought of until recently, when I had a fascinating debate with some litigators about this topic. One took the view that a trial with twice as many issues should require twice as many slides, even if the two trials are of equal length. I disagreed, and I think these litigators found my position confusing at first. I told them that the presumption for any trial team should be to use as few slides as possible to make a point. More slides just create more complexity. And that inhibits persuasion. There's a famous quote that has been attributed to many people, but it is correctly attributed to French mathematician Blaise Pascal: “I would have written a shorter letter if I had more time.” I think this sums up in many ways the goals of effective trial presentation. If you find yourself going to trial with 500 slides that you plan to use in a five-day trial, you are probably overdoing it. But people do that all the time. I wrote about this topic in an article discussing how the PowerPoint slides that you do use are informed by the ones you don't. I think of it like a sculptor and Michelangelo’s famous saying how he could see the finished piece in the block of stone, he just needed to chip away the extraneous stones. I do think trial presentation should work something like that. That's why it takes a long time to make a good presentation and why you should not find yourself at the end of the trial apologizing for not having written that shorter letter. Here are a handful of best practices for any PowerPoint slide presentation with additional reading incorporated throughout:
by Ken Lopez Founder/CEO A2L Consulting
by Ken Lopez Founder/CEO A2L Consulting Today, we are publishing our latest free book -- A Trial Lawyer's Guide to Jury Consulting and Mock Trials. This free 328-page book is based on the idea that even after some decades in which jury consulting has grown and established itself as a business, many lawyers still don’t necessarily understand what jury consultants do and how valuable they can be. Many lawyers probably still harbor the old idea that a jury consultant is just someone who sits next to a lawyer and uses a “gut feeling” based on a potential juror’s occupation, body language or appearance to ask the lawyer to exclude the juror or keep the juror. If that stereotype were ever true, it’s certainly not true today. We’re about as far now from the O.J. Simpson days 20 years ago as we are from the Perry Mason days. This book is dedicated to bridging whatever conceptual gap may remain between trial lawyers and jury consultants. It pulls together many of the lessons that jury consultants have learned, so that any lawyer who reads the book can get up to speed quickly and save herself a good deal of money and time. We have been dismayed at times at the disconnection between long-held myths held even by seasoned litigators and what the data show. Excellent trial strategies are the product of balancing art and science, data and wisdom, confidence and humility. Among the topics in this book are: 14 Places Your Colleagues Are Using Persuasive Graphics That Maybe You’re Not, Is Hiring a Jury Consultant Really Worth It?, Why Do I Need a Mock Trial If There Is No Real Voir Dire, 21 Ingenious Ways to Research Your Judge, 7 Videos About Body Language Our Litigation Consultants Recommend, 15 Things Everyone Should Know About Jury Selection and 6 Good Reasons to Conduct a Mock Trial. A good lawyer knows the law. A great lawyer knows the jury and how it works. Read this book and reflect on its contents to know more than most trial lawyers do. This book is based on hundreds of trials and years of data, not mere theory or presumption. We hope you enjoy it and share it. Please send us your feedback and let us know if you have any questions or comments, any time. If you have any questions about a case, a witness, a jury pool, a venue, strategic options or dilemmas, or think your case is unwinnable, we’re only a phone call/email away and would love to hear from you.
by Ken Lopez Founder/CEO A2L Consulting I have always been deeply involved in and passionate about business development. It was this passion that made it possible for me to build A2L from the ground up in the early 1990s. Building a company from nothing is no easy task. I often share with young entrepreneurs one of my great secrets – the ways in which I found my first clients. I wrote down the name of every person I knew who I thought might know someone helpful to the business. Ultimately I ended up with a list of 400 people. They were my first set of prospects. In that group were college buddies, old bosses, and even my mom's high school boyfriend. I contacted all of them, and from that group, I landed clients at AOL, Dickstein Shapiro, and a variety of other well-known law firms. That was how I got started, and this process of relationship-based business development is essentially how I contribute to A2L's business development efforts today. As we're in the process of hiring a new member of our business development team, I started reflecting on how we do business development at A2L. I think it is pretty impressive, and most professional services firms could learn something from our process. It's rather complex and involves a mixture of repeat/referral work (the majority of our work), growing new relationships from old relationships, and using a rather sophisticated method of blogging to generate inbound interest in our firm that attracts clients who think the way we do. Indeed, blogging is one of the most important things that we do as an organization. Most of our new business is generated as a result of our blog. I love it especially because it is very authentically generated business. We share our experiences, we describe the things that we know and believe, and the world's best trial lawyers find their way to us. We give away a lot of our “secrets” about litigation, knowing full well that many people will read these blog posts and never hire us. We hope and expect that some people will read our blog and will be impressed by what we have to say and what we have learned from more than two decades of experience in trial consulting. Our business development team is thus truly in the business of helping, not selling. They help connect top-end trial lawyers with expert litigation consultants who improve opening statements, develop compelling narratives, conduct scientifically valid mock trials, and develop litigation graphics that teach and persuade judges and juries. If you or if you know someone who might like to work in this atmosphere in our DC office, consider sharing this article or one of the links below with them: Craigslist: http://washingtondc.craigslist.org/nva/sls/5702138073.html LinkedIn: https://www.linkedin.com/jobs/view/175456068 Career Builder: http://www.careerbuilder.com/job/JHQ6HH6PSW1XDYXJK41
by Ken Lopez Founder/CEO A2L Consulting As trials become more and more complex – just think of the intellectual property cases worth billions of dollars that have rooted the attention of Silicon Valley and the world – litigation consulting has become more and more important. There may be fewer jury trials now than there used to be, but many of the cases that go to trial can shake up an industry. “Litigation consulting” is a broad term that describes a broad variety of services that help lawyers try and win cases. They include jury and bench trial consulting, litigation graphics consulting, on-site courtroom technology support and similar services. In a given case, a trial team may need all the services that A2L provides, or just a subset of those services. In order to show how far the litigation consulting industry has come in a relatively short time, we are issuing a free --- page book, The Value of Litigation Consulting. The book explains why even the best trial lawyers can benefit from the services of top-notch litigation consultants. It’s a handbook that shows where the industry has been and where it’s heading. The book is full of useful, hard-hitting articles on these topics, including 11 Things Your Colleagues Pay Litigation Consultants to Do, 6 Secrets of the Jury Consulting Business You Should Know, 12 Reasons Litigation Graphics Are More Complicated Than You Think, How Long Before Trial Should I Begin Preparing My Trial Graphics?, 11 Traits of Great Courtroom Trial Technicians. You can download the book here - completely free - no strings attached.
by Alex Brown Director of Operations A2L Consulting As we have mentioned before in this blog, the art of storytelling is a crucial skill for a trial lawyer. From the very beginning of a trial, many jurors will envision the facts of the case in the form of a story. Our brains are wired to tell stories, to listen to stories, and to remember stories. Storytelling began with the caveman and the campfire and is still the best way to present information to an audience. Think of the difference between these two statements: I went to the market. I went to the 7-11 at midnight to buy a Diet Mountain Dew and to play Pokemon Go because I am addicted to that game. Statement 1 is just a flat statement. It has no specifics and does not draw the reader or listener in. Statement 2, on the other hand, intrigues the reader or listener. Why did you go that late at night? How did you fare in your session of Pokemon Go? What happened when you got home? And so on. It is potentially the beginning of a story. As a trial lawyer, you will be telling stories. You want your audience to be drawn in and involved. Here are some points to consider in developing a story: Have a purpose. Who wants to hear a story when you know that the storyteller has no destination or end in sight? You feel trapped. Or worse, you zone out and stop listening to save yourself the pain of the journey. Your audience, a judge or a jury, is human and will react similarly.
by Ken Lopez Founder/CEO A2L Consulting Several months ago, I wrote about the 50 Characteristics of Top Trial Teams. Based on those 50 characteristics, we have created a trial team assessment tool. Although we've only just begun to collect the data, my hypothesis is that the quality of trial preparation, which this tool attempts to measure, is highly correlated with success at trial. In my experience, only a small minority of trial teams rigorously prepare for trial in a way that would earn them a high score on this tool. In most cases, budgets and/or firm culture simply don’t permit the level of preparation that I see in the highest performing trial teams. In our first effort to quantify what makes a good trial team, our beta version trial team assessment tool offers 10 criteria to measure performance. We selected these 10 points from among the 50 criteria, based on the collective experience of A2L's top litigation graphics consultant, our top jury consultant and on my experience. That's more than 75 years of accumulated litigation experience from work in thousands of cases. We assign a maximum of 10 points to each criterion, and so far, we have observed trial teams ranging from a low of 33 to a high of 76. Losses tend to occur more often with low scoring teams, but the data are still quite fragmentary. Here are the 10 criteria that we use to define great trial teams: Communication: They communicate in an orderly, consistent manner so that everyone knows at all times what is going on. They’re systematic in how they work and communicate with their outside consultants. Timely Preparation: They’re not frantic. They don't wait until the last minute to prepare fact and expert witnesses. They construct their key trial narratives early.
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