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.
by Ken Lopez Founder/CEO A2L Consulting
by Alex Brown Director of Operations A2L Consulting My oldest daughter is a volunteer for our local congressman. At dinner last night she heard some quotes from a current presidential candidate and proceeded to excoriate them. Usually I toss in the old adage “If you can’t say something nice, just don’t say anything.” This time I didn’t and instead talked to her about our 16th president. Many of you might know the story of Lincoln’s Letter to General Meade. On July 4, 1863, Lincoln realized that Confederate General Robert E. Lee was trapped between the Potomac River and a fast-moving Union Army behind him, and sent an order to General George Meade to move in for the kill and end the war. Instead, Meade held a war council and got multiple points of view. While he was doing so, Lee was able to escape over the Potomac with his soldiers. Lincoln was furious. He wrote a letter calling out Meade for his stupidity and lack of fortitude and questioning his ability to command. We will never know Meade’s reaction because Lincoln never sent the message. Instead, he thought about things from Meade’s perspective, and the fact that they had just finished a bloody battle in Gettysburg and how that might have affected Meade’s willingness to engage at a random location with so many variables. Lincoln also realized that dressing down his general would do nothing to help morale and would not change what had already happened. Lincoln gave us the perfect example of how to be a communicator. This is a lesson that we should reinforce in everything we do. We should be aware of these lessons when we are dealing with witnesses, experts, jury, judge and even support personnel and litigation consultants. You are always being watched, and people will always judge you on how you act with those you meet. What are the keys to communication?
by Alex Brown Director of Operations A2L Consulting
by Alex Brown Director of Operations A2L Consulting
by Tony B. Klapper, (former) Managing Director, Litigation Consulting & GC, A2L Consulting and David H. Schwartz, Ph.D., Co-Founder, Innovative Science Solutions
by Ken Lopez Founder/CEO A2L Consulting Anyone who puts together a team to represent a client in a high-stakes piece of litigation is engaging in an act of leadership. To be successful, such a litigation team needs to blend the skills of an outside set of trial lawyers from a law firm, large or small; in-house corporate counsel; the leadership of the client company, which will want to keep close tabs on high-stakes litigation; a wide variety of paralegals, assistants and other key nonlawyer personnel; and, in all probability, a trial consulting company such as A2L. Today we are releasing the fourth edition of a new and free eBook on leadership for lawyers that can be downloaded here. I hope that it will be useful to legal industry leaders, whether running a trial team, a practice group, or an entire law firm.
by Ken Lopez Founder/CEO A2L Consulting After the more than 20 years that we have spent in the litigation consulting business, we don't hear very many questions that we’ve never heard before. However, this week I did hear one, and the story is worth sharing because it goes to the heart of how a truly great litigator performs. The question I heard was, “What can we do better as a trial team on the next engagement?” Consider how remarkable this is. Here was a litigator from a large law firm sincerely trying to improve the performance of his team and himself. I was deeply impressed, as this was the first time I've had someone ask that question after an engagement. It's a very sensible question, of course. A2L's team has worked with thousands of litigation teams from the very best law firms in the world. I have watched many litigators perform near-magic in the courtroom, and I have seen teams fail miserably. There are patterns that lead to success and patterns that lead to failure. In the spirit of the question that this litigator asked me, I started thinking about the traits of the world’s most effective trial teams. Here are 50 of them culled from my experience and that of my colleagues Dr. Laurie Kuslansky and Tony Klapper. Practice is by far the single most obvious indicator of a trial team's success. The great litigators draft their openings months or years in advance of trial and practice them dozens or hundreds of times. See, Practice, Say Jury Consultants, is Why Movie Lawyers Perform So Well Preparation. Great trial teams start preparing long before trial, and they don't ask the client’s permission to do so. Their attitude is, “If you work with a team like ours, it means you want to win and we know how to win and we're going to get that done, whatever it takes.” I think they are right. There are only a handful of law firms that I have observed that have this sense of preparation embedded in their litigation culture. See, The 13 Biggest Reasons to Avoid Last-Minute Trial Preparation Great litigation teams want their answers questioned. Great litigators are confident. They are so confident that they open themselves up to rigorous scrutiny in their approach to trial. Through a whole host of methods, they invite criticism, suggestions, fresh pairs of eyes, lay people’s opinions, experts’ opinions, and they use all of these voices to perform at their best. See, Accepting Litigation Consulting is the New Hurdle for Litigators They lead, but they can be led too. Great litigators avoid dominating all discussions. They intentionally let others lead them and be seen as leaders. Download the Leadership for Lawyers eBook They just look comfortable in front of a jury. Confidence equals persuasiviness and humans are born with an expert ability to detect it. See, A Harvard Psychologist Writes About Presenting to Win They build narratives early. They know how important a narrative is to winning a case. They have also learned from experience that the earlier this is done, the better. A well-constructed narrative can inform everything from briefing to discovery to witness preparation. Download The Opening Statement Toolkit
by Tony Klapper Managing Director, Litigation Consulting A2L Consulting I was reading the Washington Post’s Business section on Sunday morning, and a front-page article about Sean Parker caught my eye. Parker, dubbed “Silicon Valley’s Bad-Boy Genius,” co-founded Napster and was the first president of Facebook. He was also played by Justin Timberlake in “The Social Network.” Far from a routine business profile, this article provides several fascinating lessons concerning the importance of creative collaboration. Apparently tired of catering to the entertainment needs of millennials, Parker recently launched the Parker Institute for Cancer Immunotherapy. Although it was notable that Parker invested $250 million to support groundbreaking research into eradicating a disease that kills millions each year, even more important is his model of creating a “sandbox” for scientific research. At press time, six premier medical research institutions—Stanford, Hopkins, MD Anderson, UPenn, UCSF, and UCLA—had signed up to be part of the consortium that Parker is creating to fight cancer. The premise behind the effort is that working together in the sandbox is far more effective than working alone. That truism is not one that is always followed.
by Ken Lopez Founder/CEO A2L Consulting The first quarter of 2016 was one of A2L Consulting busiest in our 20+ year history. Not only was business up, visits to our web site increased 10% over the first quarter of 2015, and our Litigation Consulting Report Blog reached 8,000 subscribers. These metrics suggest that the litigation industry, particularly the big-ticket litigation segment, continues to perform well. The growth in the number our blog subscribers is truly eyeopening. Just a little more than year ago we were celebrating reaching 5,000 subscribers. I still find it completely amazing that about 200 people sign up for our award-winning litigation and persuasion-focused blog every month. Since we launched this publication that now sees more than 250,000 visits every year, hundreds of new clients have found their way to A2L and thousands more have benefited from the information we have shared here, from free articles to free e-books to free podcasts to free webinars. Five years ago, I thought the whole idea of blogging was misguided, and boy, was I wrong. To enhance our reader's experience, each quarter we help surface those articles have been "voted" the very best in the most recent quarter. That is, if we publish 25 articles in a three-month period, some are going to be viewed more often than others, and these are effectively voted the very best. These six articles below were voted the very best by our readers in the first quarter of 2016. 6. Millennials and Jury Psychology: Why Don't They Follow the Rules?: A jury consultant analyzes the jury psychology of Millennials (born between 1981 and 1996) and focuses on this generation's distrust for authority. 5. A Jury Consultant Is Called for Jury Duty: A well-known jury consultant finds herself in a Manhattan courtroom as a prospective juror and describes her experiences.
by Ken Lopez Founder/CEO A2L Consulting In 20 years in the litigation consulting business, I've seen a lot of successful trial teams and some that are not so successful. A team that is successful needs good leadership. In fact, good leadership and good preparation are the best predictors of a trial team's success. We've written before about effective trial team leadership and even released an e-book on good litigation leadership skills. Good leaders force timely preparation, they delegate effectively, and they put their egos aside in the interests of a successful outcome. One important challenge for good trial team leaders is knowing when to make changes to the team. These changes can amount to anything from adding new lawyers to the team, removing lawyers and support staff, or even releasing vendors and hiring new ones. I have seen a fair number of litigation consulting firms removed at various stages of the litigation. Many times, we are the firm that is brought in to replace the removed firm. An important part of the work of a good trial team leader is to ensure that a good litigation consultant is chosen. This is not an easy decision. Many companies that claim to be top litigation consulting firms are actually nothing more than trial technology firms or everyday graphic arts firms. The list of high-quality providers can be counted on one hand. So, unless you have first-hand knowledge about a firm and the people you'll be working with, there are plenty of ways to make mistakes. Fortunately, these can be corrected if you have a good reason and the courage to make the change. By far the biggest reason I have seen firms removed from their roles in jury consulting or litigation graphics consulting is a lack of creativity. This is understandable because creativity is a hard thing to judge before you work with someone. Often these removals occur after one phase of the litigation and before the next. For example, in patent litigation, we are often brought in for the trial after another firm provided no meaningful suggestions or advice to counsel in the pretrial phases of the case. I've also seen many examples where we are brought in after remand for the second bite at the trial apple. Sometimes a trial team says they just didn't get any value from their litigation consultants. There are many reasons a trial team would need to switch litigation consultants as they prepare for a mock trial or litigation graphics. It must not be forgotten that this type of switch is an extreme outcome that runs the risk of doing harm. It shouldn’t be undertaken lightly. Yes people: I actually had the CEO of a competitor once ask me, “Why would I give litigators advice?” I indicated politely that his instincts were correct. HE shouldn’t do so. There are many like him in the industry. They can be a source of support if you’ve simply hired them to run your PowerPoint during an opening statement. Some just have no business taking the extra step and adding value, because bad advice is worse than no advice. Missed deadlines: On my first day of law school, my criminal law professor stopped a student trying to enter class late. He said, “You are attempting to enter the only profession in the world for which you can go to jail for being late.” There is never an excuse for being late. The creatively challenged: It’s common for technology people to masquerade as visual persuasion consultants. They should be pretty easy to detect. See Why Trial Tech ≠ Litigation Graphics, 16 PowerPoint Litigation Graphics You Won't Believe Are PowerPoint, and 21 Reasons a Litigator Is Your Best Litigation Graphics Consultant. The jury hack: As a top jury consultant wrote, there is no license required to become a jury consultant. So there are many “consultants” who are simply not qualified to gather data in a sophisticated way. Some trial technicians try to offer advice on a jury during voir dire. This is litigation consulting malpractice in my view. See, 6 Secrets of the Jury Consulting Business You Should Know and No Advice is Better Than Bad Advice in Litigation.
by Ken Lopez Founder/CEO A2L Consulting Last week, I wrote about a new book that proposes a variety of life, body, and brain hacks to make us more persuasive. That book is written by Amy Cuddy, one of the top TED speakers of all time. I think the lessons she teaches are incredibly valuable for litigators looking to maximize persuasiveness during their opening statements. So, you might ask, what makes a good TED Talk a great one? After all, some TED Talks have tens of millions of views, while others on equally interesting topics have far fewer views. I am a big fan of TED Talks, and I have highlighted some aspects of them in previous articles such as The Top 10 TED Talks for Lawyers, Litigators and Litigation Support and The Top 14 TED Talks for Lawyers and Litigators 2014. If you happen not to know what TED Talks are, they are simply short talks, generally combined with some visual support, that are sponsored by TED, a nonprofit foundation. TED Talks have become the gold standard for thoughtful, innovative presentations to lay people in many areas of endeavor. Last year, Vanessa Van Edwards, an expert on presentations and on human behavior, studied what makes a great TED Talk, and the results are a mix of fascinating and frightening for most people. I say frightening since many of these results fly in the face of the conventional wisdom. Of course, as someone who lives and breathes trial presentations, I have a bit of an agenda here. I think that each of the lessons that Van Edwards gleaned from the elements of a great TED Talk are perfectly analogous to great lessons for how lawyers should make an opening statement. So, here are her five key findings:
by Ken Lopez Founder/CEO A2L Consulting The importance of developing a strong narrative in your case is well-established by science and by what we have all observed in the actions of jurors in real cases. In spite of the law that may be against you, in spite of the facts that may be against you, a high-quality narrative can win a case. We've written about this extensively and articles like Storytelling Proven to be Scientifically More Persuasive, 5 Essential Elements of Storytelling and Persuasion, and $300 Million of Litigation Consulting and Storytelling Validation provide a good background on the power of story, whether in a case tried to a jury or to a judge. Great litigators don't push back on the need for story anymore. Indeed, they arrive at our doors in quest of ways to fine-tune their narrative and make it more convincing. We help them by testing any number of possible approaches, by conducting practice opening statements, and by developing a persuasive visual presentation for the litigators. One bit of pushback that we do continue to hear is about injecting emotion into a case. Particularly from defense-side clients, we hear that all that’s needed and appropriate is a narrative – but that in this particular case, the narrative need not be compelling and emotional.
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