by Alex Brown Director of Operations A2L Consulting I read an article today that can be applied to our industry so well that I thought I should apply its lessons. The article was written by Eddie Shleyner and is titled: How to Defeat Your Most Dangerous Writing Habit: 7 Ways to Lift 'The Curse of Knowledge' The article highlights the concept of being cursed due to knowing too much. The issue refers to someone who has studied a subject so thoroughly that it becomes difficult to explain it to people who don’t know as much about the subject. As an example, he discusses the book, Made to Stick, where the Heath brothers provide an example: “Think of a lawyer who can’t give you a straight, comprehensible answer to a legal question. His vast knowledge and experience renders him unable to fathom how little you know. So when he talks to you, he talks in abstractions that you can’t follow. And we’re all like the lawyer in our own domain of expertise.” Cognitive bias is what we are talking about. Shleyner notes that this is particularly dangerous to writers, since in conversation, a listener can ask questions to clarify the issue. But litigators, when giving an opening or closing statement, are in the same boat as writers since they are unable to ask or receive questions from their audience. So, how can you defeat this curse? Ironically, more knowledge is the answer. The more you know about the curse, the less likely you will succumb to it and the more persuasive you will be. Let’s take a look at his seven best practices to combating this curse and apply them to our industry. 1. Know your audience’s base subject knowledge. Jury Research. Focus Groups, Mock Exercises. Basically, you need to know your audience. Not only to know how they think, but why, what, who, where and the often forgotten wow. Learn how they think, learn the history to know why they think this way, but most importantly, figure out how to say it in a way that will wow them and be remembered. Like It or Not: Likability Counts for Credibility in the Courtroom 5 Reasons Why Jury Consulting Is Very Important Group Psychology, Voir Dire, Jury Selection and Jury Deliberations
by Ken Lopez Founder/CEO A2L Consulting I go to a marketing conference in Boston every year, and every year I see a handful of outstanding presentations about storytelling. One stood out for me this year that will have immediate applicability for our field. The presenter, Amina Moreau, is a filmmaker and co-founder of Stillmotion. Her session, Scientific Secrets of Superpowerful Storytellers: Techniques to Spur Action, covered some topics that are particularly useful for trial lawyers looking to persuade audiences. We are constantly discussing storytelling among ourselves at A2L and with our litigation-focused client base. We've published books about storytelling, conducted webinars about storytelling (a new one is going to be announced soon), and routinely conduct storytelling CLEs at top law litigation departments. Our articles about storytelling at trial are read and shared regularly. See Dan Pink, Pixar, and Storytelling for the Courtroom, 5 Essential Elements of Storytelling and Persuasion, and Storytelling at Trial Proven to be Scientifically More Persuasive. Using neuroscience as a foundation, Ms. Moreau raised a question that we frequently wrestle with: Whom should we tell stories about to generate the most powerful call for action and to be as persuasive as possible? Should the story be about a team, should it be about the CEO, should it be about the victim's wife, should it be about the inventor? How do we make the story most meaningful to our audience? After all, if the story is not meaningful, we can't connect with the audience, and if we can't connect, we can't persuade using emotions and the framework that a well-told story provides.
by Tony Klapper (former) Managing Director, Litigation Consulting A2L Consulting You are a specialist in your field of study. You are about to take the stand as an expert witness in court. You have read hundreds, if not thousands, of articles in your field. You likely have an advanced degree that touches on the area about which you have been asked to testify. You may have taught classes on the subject at a university. You may have presented your thoughts and research at conferences attended by your peers. You are smart. You are well-credentialed. But are you prepared to testify in a court of law? Do you know what you have to do to be just as effective on the witness stand as you are at the podium? To help you answer these questions, here is a series of articles that chronicle the unique challenges that a testifying expert faces and lays out a road map for overcoming those challenges and becoming a truly effective expert witness.
by Tony Klapper Managing Director, Litigation Consulting A2L Consulting Everyone, regardless of political persuasion, can agree that a significant portion of the U.S. electorate voted for change in this week’s presidential election. And the way the whole 18-month campaign went certainly represented a change from the way most campaigns have gone in our history. But while we as a country – at least every four or eight years – seem to like change, lawyers not so much. Maybe that reflects what we learned in law school. Law is governed by precedent, and if there are changes to precedent, they are incremental at best. Or, maybe it reflects the role we assume as advisers and the tendency for many in our profession to be cautious and risk-averse. Regardless of your attitude toward changes in the law, in your political leaders, or in what your clients do, we believe that in the arena of trial advocacy change is very often a good thing. Here are five examples. Literally, change the font you are using for exhibits and displays. Mix it up occasionally. Pick a less common font, but not one that calls too much attention to itself. Jurors will notice the unusual font, although they may not know just what they’re noticing, and they will stay awake and attentive. See, Could Surprise Be One of Your Best Visual Persuasion Tools? Change your narrative. Don’t be wedded to telling your story a certain way, but be open to other people’s thoughts and perspectives. Aunt Sally’s apple pie wasn’t perfect the first time; it took years to fine tune that recipe. It could take many run-throughs to get an opening statement just right. See, 10 Types of Value Added by Litigation Graphics Consultants
by Ken Lopez Founder/CEO A2L Consulting We at A2L are launching a new e-book this month. This time, we are publishing the book jointly with IMS ExpertServices, one of the nation’s premier providers of experts and consultants for top law firms and Fortune 500 corporations. The title of the new book is Expert Trial Testimony: Direct and Cross-Examination. The book answers every question you might have thought of in connection with expert testimony at trial in U.S. courts, and it does so in a clear, conversational manner. Plus, it’s a free download. As more and more money is at stake in civil trials, and as the subject matter grows more and more complex and difficult for many jurors to understand without assistance, the value and importance of expert witnesses has grown dramatically. The difference between an effective, well-prepared, convincing expert witness and one who does not come across well to a jury can often be the difference between winning and losing a trial where hundreds of millions, or billions, of dollars are at stake. The book is directed at experts themselves and gives dozens of do’s and don’ts that will make any expert’s testimony effective and convincing at a trial. It’s not only experts who will benefit from reading this book but also trial attorneys, trial technicians, in-house counsel, and anyone who wants to understand the best ways to put on expert testimony. The book addresses the typical expert witness as follows:
by Ken Lopez Founder/CEO A2L Consulting As we approach the end of 2016, I'm reviewing the many free resources that have been viewed and downloaded from A2L Consulting's extensive litigation-focused website this year. From podcasts to blog articles to free downloadable e-books to free webinars, we have given back this year to the trial community more than ever. Our blog has been accessed 250,000 times, our 20+ free e-books have been downloaded tens of thousands of times and more than 1,000 new subscribers have signed up for a free litigation and persuasion-focused blog subscription in the past year. To help sort through all that data and information and focus on just the best content and resources, here are the 10 items, all completely complimentary and without additional obligation, that saw the most intense attention this year from the litigation industry's top players. Visits to A2L's free resources (podcasts, e-books, webinars etc.): This central set of resources allows visitors to our site to direct themselves to the information they most need. Storytelling for Litigators Webinar: The science of using storytelling for persuasion is in its nascent stages. This webinar explains what is now known and how to best use storytelling techniques to influence other people’s thoughts and conclusions. The Patent Litigation Handbook 4th Edition: During A2L's more than 20 years in business, intellectual property cases have represented nearly half of our total work. Therefore, it’s no surprise that when we want to update one of our handbooks, we often turn to our patent litigation handbook. It’s a perennial winner. The Voir Dire Handbook: I'm surprised by how popular this book is, but voir dire continues to be one of the most searched for terms on our site. We routinely help support trial teams during jury selection and conduct mock exercises that have a voir dire component. Complex Civil Litigation Handbook: This book is a necessity for anyone who enters civil courtrooms, develops theories for civil cases, or works on complex civil litigation.
by Tony Klapper Managing Director, Litigation Consulting A2L Consulting At A2L, we strongly believe that strong visual presentations are indispensable to courtroom success. But great visuals don’t just create themselves. Top-notch litigation graphic artists are the ones who make unforgettable visuals, and that means that graphic artists need to be a crucial part of any trial team. And good graphic artists aren’t easy to find. As a graphic design website explains, a great graphic designer should “love art in all its forms” and “should live to create and to be inventive.” A graphic artist needs to understand color, composition, typefaces and dozens of other design elements and to use the best digital tools available.
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.
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