by Ken Lopez Founder/CEO A2L Consulting It's been another great quarter of publishing blog articles on A2L's Litigation Consulting Report Blog. This quarter, there were more than 45,000 blog post views, and we are just about to cross the 7,000 subscriber mark. I find those metrics incredible. Since we post 2-3 articles every week, I've heard from our readers that it is sometimes hard to keep up with the latest articles. To help remedy that and organize the information better, roughly six times a year we publish a mini-retrospective at the end of the quarter, at the end of a year and/or to celebrate blogging milestones. This quarter, I'm listing the top nine articles from April, May and June of 2015 reverse sorted by the number of times each article was read. This way, this list serves as an excellent reader-curated guide to the very best articles we have published recently. Voir dire and jury selection-focused articles continue to be very popular with our readers. Also, articles about persuasion, opening statements and a discussion of the Reptile Trial Strategy are getting a lot of views and shares. For the first time in memory, there are four different A2L authors represented on a best-of list. Below is a list of the top nine articles from A2L's Litigation Consulting Report Blog as determined by your readership. Each article has both LinkedIn and Twitter share buttons that allow it to be shared with your network. Enjoy! 9. 5 Ways to Maximize Persuasion During Opening Statements - Part 2 8. One Voir Dire Must Do and One Voir Dire Must Never Do 7. 12 Reasons Litigation Graphics are More Complicated Than You Think
by Ken Lopez Founder/CEO A2L Consulting As I discussed in Part 1 of this series, the “reptile” trial strategy is quickly spreading among plaintiffs counsel. Some plaintiffs counsel have, in fact, claimed that the strategy has resulted in verdicts totaling more than $6 billion in the past few years. In a large room of defense attorneys to whom I made a presentation last week, more than half reported having seen the strategy used in one of their cases. I think that may just be the tip of the iceberg. It appears that many defense counsel are being subjected to the strategy and don't know it is happening to them until it is too late. In light of this fact, below are 10 ways to spot the strategy. In subsequent articles, we will discuss what to do to counter it. From the very start of your case, look for any of the following 10 phenomena: You encounter themes suggesting that the community needs to be protected from the defendant; e.g. “Walking past stores on Main Street is part of what it means to be American.” The behavior of the plaintiff or other contributing or mitigating traits of the plaintiff are ignored, and instead the plaintiff works hard to keep the focus on the defendant or even an idealized defendant. Plaintiffs introduce a discussion of “safety rules” throughout all pre-trial phases of the case; e.g. “Do you agree that keeping the public safe is a key role of your train operators?”
Last week, I spoke at an annual gathering of defense attorneys whose subtitle was “Lawyers and Other Reptiles.” What's going on? Who are these reptiles? It’s an interesting story. This conference was planned as a way to bring together defense attorneys around the nation who want to learn how to turn aside a frequently used set of trial tactics championed by David Ball and Don Keenan in their "Reptile" series of books and webinars. Ball is a North Carolina-based jury consultant, and Keenan is an Atlanta-based plaintiffs trial lawyer. According to Ball and Keenan’s publicity materials, the “reptile” concept is “the most powerful tool in the fight against tort reform.” Ball and Keenan say that through their books, DVDs, seminars and workshops, “the Reptile is revolutionizing the way that trial attorneys approach and win their cases.” The proof, they say, is in the numbers, as more than $6 billion in verdicts and settlements have resulted from these tactics since they launched them in 2009.
by Ken Lopez Founder/CEO A2L Consulting We have long participated in a joint publishing effort with Innovative Science Solutions (ISS), a company that provides strategic consulting services designed to ensure that you are prepared and knowledgeable about scientific and technical issues relevant to your case. A2L has partnered with ISS for the benefit of many law firms and corporations. We have already had the pleasure of working together on everything from tobacco litigation to hydraulic fracturing to alleged health effects of cell phones. Along the way, we have learned, often by overcoming enormous challenges, how to make science your ally -- whether inside or outside the courtroom. Today, A2L and ISS have just published the new and revised second edition of their e-book, The Litigator’s Guide to Combating Junk Science. The book is built on the following important concepts:
When it comes to jury selection, many lawyers are eager to win voir dire. After all, this is their chance to shape the jury pool and hopefully secure a favorable verdict for their client. However, there are several reasons why trying to "win" voir dire may not be the best strategy. Here are five reasons why you might want to reconsider your approach:
by Ryan H. Flax, Esq. (Former) Managing Director, Litigation Consulting A2L Consulting On May 26, 2015, the U.S. Supreme Court released its opinion in Commil USA, LLC v. Cisco Systems, Inc. (575 U.S. ____ (2015)) and it will significantly change patent litigation in the U.S.1 In Commil USA, the Court clarified when indirect patent infringement known as “inducement” occurs and how [not] to escape liability. As a bit of background, a patent can be infringed directly and indirectly. The Patent Act, at 35 U.S.C. § 271, makes it unlawful to make, use, sell, or offer to sell (in the U.S.) a patented thing or process without the patent holder’s permission. Part (a) of this section provides liability for direct infringement, that is, outright doing the thing that infringes a patent. Part (b) governs the first of two indirect infringements, induced infringement, and states “whoever actively induces infringement of a patent shall be liable as an infringer.” This is the focus of the Commil USA case. Part (c) of section 271 deals with the second of the indirect infringements (and interestingly, the one that was first statutorily identified), which is contributory infringement, which makes it an infringement to supply a non-staple, component for use in a patented thing or process.
by Ken Lopez Founder/CEO A2L Consulting We just learned that a blog post that we wrote recently was named the “Pick of the Week” by LitigationWorld, a popular email newsletter for litigators, litigation support professionals, and corporate counsel who manage litigation. This is the seventh A2L Consulting post since 2011 to be so honored. For each issue of LitigationWorld, the editorial team there reviews hundreds of articles published during the previous week. From these articles, one is selected as LitigationWorld Pick of the Week. The article is selected because the editors there believe that it is a must-read for anyone interested in litigation. The article that won this honor was entitled “12 Reasons Litigation Graphics are More Complicated Than You Think.”
by Ken Lopez Founder/CEO A2L Consulting I've seen litigator ego contribute to the winning of cases and the losing of cases. Unfortunately, however, I've seen more cases lost because of it than won because of it. What do I mean by the ego of a litigator? If you've worked around litigators (or litigation consultants for that matter), you already know what I mean. For anyone else, I'm referring to all those first-chair litigators in trial-related situations who put themselves ahead of the client's best interests. The best definition I have found of “ego” is "the idea or opinion that you have of yourself, esp. the level of your ability and intelligence, and your importance as a person." In litigation, we see how ego can play both good and bad roles. Sometimes the presence of ego leads to good outcomes, as it is at least in part ego that allows a litigator to ignore the advice of a client who may be too close to their problem. More often, however, we see ego show up in ways that are counterproductive for the client. For example, in situations where:
by Ken Lopez Founder/CEO A2L Consulting
by Ken Lopez Founder/CEO A2L Consulting There is a lot to learn from data, and these days data is everywhere. For better or worse, data can be available for everything from the number of steps you walked today to how long you took to read a particular Web page. I recently took the time to assess how the AmLaw 100 law firms were interacting with our site, particularly with the articles on this blog. Some law firms are very active, and some hardly visit at all — and I think this information tells us a great deal about these law firms. This data is interesting to me for many reasons. First, I’m interested in making sure that our articles appeal to the AmLaw 100 law firms, as just about every one of them has been a client of A2L Consulting at some point. However, I’m also interested in what the data says about the law firm itself. Is the firm interested in learning? Is it serious about litigation? Is it set in its ways?
by Ken Lopez Founder/CEO A2L Consulting We publish a lot of articles on this blog here at A2L Consulting. Sometimes we publish so many that it’s not easy to decide which ones to read first. That's why once a quarter we do a mini-retrospective of the best articles based on what our readers choose to look at. Our theory is that the more people that read an article, the more compelling and the better it is. All these articles relate in some way to persuasion: Why expensive-looking litigation graphics are better than inexpensive-looking ones, why you are less persuasive when you are using clichés, how people obtain trial experience these days when most cases don’t go to trial. We think this also helps our readership sort through the very best of our content by relying on the votes of 6,600 fellow subscribers as indicated by their reading habits.
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