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.
by Alex Brown Director of Operations A2L Consulting Commitment (and Consistency) (see Part 1 about reciprocity here) In 1971, Charles Kiesler wrote a book called The Psychology of Commitment. In it he describes various experiments designed to understand human motivations. Kiesler referred to one of his experimental results as “the boomerang effect.” The idea is that if a person has committed to something and is then attacked for his position, he or she is likely to increase his or her commitment, even if the commitment was not at all strong in the first place. This brings up related questions of how and why people become more extreme in their attitudes. Is it simply to justify their past behavior, or is it because people really want to be right? In many circumstances, a person might seek out others as social support or find outward behaviors that justify his or her position. Basically, if you get someone to commit to something, they will usually stick to that commitment while under attack and will look for allies to their cause or position. As Cialdini notes, when a commitment is made public, one is likely to stick to it. In view of this, it should be obvious why this finding can make an important persuasion tool for litigators. We strongly believe that you can win or lose a case in opening statements. In an opening statement, it is your responsibility to:
by Ken Lopez Founder/CEO A2L Consulting If the creation of litigation graphics were as simple as some people make it out to be, you would never need a litigation graphics consultant. Yet litigation graphics consultants of varying skill levels are everywhere these days. Clearly, there is a need for them. But why? What value do litigation graphics consultants add? It’s a fair question, and here are 12 good answers. 1. Contrary to what some think, litigation graphics are more than electronic versions of printed documents: Many litigators make the mistake of thinking they are fully utilizing litigation graphics when they hire a trial technician who does nothing more than show documents on screen. See Why Trial Tech ≠ Litigation Graphics 2. Real litigation graphics consultants are storytelling experts, not PowerPoint experts: The technology isn’t what matters. As with lawyers, there are wildly differing levels of talent and education among litigation graphics consultants. The very best, like those on the A2L team, are true experts in helping to craft a story using visuals. These experts add value, not just slides. See Patent Litigation Graphics + Storytelling Proven Effective: The Apple v. Samsung Jury Speaks and $300 Million of Litigation Consulting and Storytelling Validation
by Ken Lopez Founder/CEO A2L Consulting I'm absolutely thrilled to announce the release of A2L Consulting's latest free litigation e-book, The Opening Statement Toolkit. You may download this book with no strings attached right now by clicking here. In this 219-page book, you will find 66 articles curated from A2L's massive collection of posts related to litigation and persuasion. Each article relates to opening statements in some way. From organizing the opening to the use of storytelling techniques to persuade, the book contains an amazing array of tips that will prove valuable to the novice litigator and the veteran alike.
by Ryan H. Flax, Esq. (Former) Managing Director, Litigation Consulting A2L Consulting We have discussed four important tips for maximizing persuasion during your opening statement (See parts 1, 2, and 3). The last tip is the use of demonstrative evidence in connection with the statement. You need to be aware that most people, other than lawyers, are visual preference learners. Most lawyers, in contrast, are auditory or kinesthetic preference learners.1 Most people teach the same way they prefer to learn – so lawyers typically teach by lecturing, since that is most comfortable for them. But this strategy does not help with the majority of jurors, who would prefer to be taught visually, at least in part. So bridge this courtroom gap with demonstrative evidence, including litigation graphics.
by Ken Lopez Founder/CEO A2L Consulting A2L Consulting offered its first free litigation webinar just 18 months ago. Since then we've conducted six litigation focused webinars, all free, including: Storytelling for Litigators, Patent Litigation Graphics for Litigators, Making Expert Evidence Persuasive, Persuasion & Opening Statements, Using PowerPoint Litigation Graphics and What Mock Jurors Always Say. These webinars may be viewed on our site anytime, and they have been viewed nearly 10,000 times already. I find that amazing. Since each new webinar is a bit more popular than the one that came before it, it's a bit hard to tell which topics are really the most popular. So, I thought it would be helpful to ask our 6,500 blog readers what topic we should cover in our next webinar (likely May or June). Finding a good webinar presenter will not be difficult. On the A2L team, we have expert jury consultants, trial-tested litigators, experts in persuasion science, the top consultants in visual persuasion and many categories of litigation and persuasion experts.
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