As both a leading jury consulting firm and a leading litigation graphics consulting firm, we can offer a unique perspective about the intersection of these two fields. A mock trial is frequently a part of A2L's jury consulting work. One aspect of designing and executing a valuable mock trial that I take particular interest in is the development of litigation graphics for both sides of the case. This litigation graphics presentation is typically created in PowerPoint and is designed to support the "clopening" argument for each side's case. If it is not apparent, the industry term "clopening" is a portmanteau of the words opening and closing. During an actual trial, argument is prohibited during an opening statement and reserved only for the closing statement. During a mock trial, the opening and closing statements are combined into a single event where a case is introduced, explained, and argued. A typical clopening argument is 1-2 hours long, and an average of 30-60 real and demonstrative evidence slides will be used to support the clopening argument. Just a few years ago, many jury consulting firms neglected to use and test visual presentations during a mock trial. For decades, we have explained the obvious importance of this testing and made a case for it in articles like: Why Litigation Graphics at Mock Trials Make Sense, Why You Should Pressure-Test Your Trial Graphics Well Before Trial, 7 Questions You Must Ask Your Mock Jury About Litigation Graphics, and Mock Trial Testing of Litigation Graphics AND Arguments. In my experience, the visual presentation is as important as the oral presentation during a mock trial. It aides in juror understanding, it speeds up the case considerably, it provides lessons to the litigation graphics team, and it makes for a more realistic simulation of the actual trial. See, Insist Your Litigation Graphics Consultant Attend Your Mock Trial. As is often the case for a trial, preparation for a mock trial is typically focused on the development of the initial presentation for the mock jurors. It's a sensible place to concentrate trial prep efforts as designing this presentation forces timely preparation of the legal arguments, the development of a well-honed narrative, and often the discovery of the best way to visually explain a case. Preparing these presentations for a mock trial is quite different from preparing for a courtroom trial, however. Whether you are a veteran trial lawyer or you are considering your first mock trial. These three tips below are useful for anyone planning a mock trial and have proven to be critical in the very best mock trials I have observed:
For those of us in the persuasion business, the biggest stage in the world is currently on Capitol Hill. Last week, millions watched the start of this country’s fourth impeachment effort with interest and concern. Putting aside politics and the question of who is right and who is wrong, I'm professionally interested in how well the various involved parties are performing rhetorically, visually, and technically -- especially as it affects persuasion. In day one, I watched a classic mistake occur that offers lessons for trial lawyers and the teams who support them. Here, Rep. Eric Swalwell of California, a former prosecutor, questioned a witness and attempted to use video support his questioning. However, when he asked for the video to be played, probably in PowerPoint, there was no audio. He quickly adjusted and read the transcript, but it clearly flustered him. The relevant video is less than a minute long and should cue up to 5:09:45 if you hit play. The error is inexcusable in the modern era -- whether on Capitol Hill or in the courtroom. Like all errors of this sort, it was preventable through practice and preparation. Technical problems happen. Great trial teams and litigation support firms are best judged in these moments. The best teams always practiced enough to anticipate such issues and the response to them. The best teams practice together until first chair and his or her trial technician/hot-seater have formed a bond that allows both to quickly overcome a technical problem. We have written extensively about how to prepare with your hot-seater for the best results, how to practice and prepare properly for trial, and how to avoid a technical snafu in the first place: Why Rapport Between a Trial Lawyer and a Trial Technician is So Important 10 Timely Tips For Trial Preparation The #1 Reason Top Trial Teams Keep Winning What Does Using a Trial Technician or Hot-Seater Cost? Free E-Book Download: How to Find and Engage the Best Trial Technician Why Trial Tech ≠ Litigation Graphics Will using a trial technician make me look too slick and high-tech? Practice, Say Jury Consultants, is Why Movie Lawyers Perform So Well A video of George Zimmerman's lawyers taking a do-it-yourself approach 12 ways to avoid a Superbowl-style tech failure See a video of a trial technician in action 12 Tips to Hire the Right Trial Technician for Your Trial 5 Trial Director Tips for great presentations 6 ways to use video depositions Sample One-Year Trial Prep Calendar for High Stakes Cases In the modern courtroom, trial technicians/hot-seaters are outfitted with redundant technology and have practiced sufficiently with first-chair so that such issues have been anticipated and planned for. A Capitol Hill hearing is a lot like a courtroom -- you only get one try to get it right. Prepare sufficiently or you can damage your credibility and persuasive ability with a simple and avoidable technical problem.
The very best trial teams in the world have only one real secret for success. Like many of life's foundational principles, it's painfully simple to describe, but it’s painfully hard to execute. The winning secret of the very best trial teams is, simply, preparation. Of course, I'm not talking about the everyday kind of trial preparation that goes on a few weeks or a month before trial. I'm talking about a level of trial preparation that is so best-in-class that it separates America's extraordinary trial teams from merely great trial teams. Perhaps 1% of all trial teams function the way I'm about to describe. After three decades of supporting, coaching, and learning from the top 1%, I promise nothing else is more correlated with winning than preparation— not good facts, good law, a friendly judge, a smiling jury -- nothing. Just as a world record-holding athletes prepare at a level that far exceeds what professional athletes do, the same is true for world-class trial lawyers. In the last 30 years, I've seen behaviors like:
This month A2L Consulting celebrated its 24th anniversary! I'm proud to say that we are at the top of the jury consulting, litigation graphics, litigation consulting, and trial technology industry in most national polls. In honor of all those top trial lawyers who rely on us every day, I want to add value to your practice today with the unique content of this article.. These five mini-series-style articles are some of the best of our 600+ trial-focused articles, and there is just nothing else like them available anywhere. Each takes a deep dive into a specific trial-focused topic. Winning Before Trial focuses on actions one can take pre-trial to eliminate the need for a trial entirely. Throughout this series the importance of preparation is emphasized. In 24 years, there is no greater predictor of success at trial than the level of preparation for trial LONG in advance of trial. The article on persuasion during opening brings together some of our most important material. As an organization, we believe most cases are won or lost during the opening statement. This article is written with winning your opening in mind. The storytelling article builds on this concept as does the article focused on being a great expert witness. Finally, the article about the Reptile Trial Strategy is one of my favorites. This complex topic is tackled from the defense lawyer perspective. Without an understanding of this plaintiffs lawyer strategy, a defense lawyer experiencing a reptile attack for the first time will be overwhelmed by the strategy before they realize it's happening. Top 5 A2L Mini-Series-Style Litigation Articles 1. 5 Ways to Maximize Persuasion During Opening Statements (4 Parts) 2. Repelling the Reptile Trial Strategy as Defense Counsel (5 Parts)
The opening statement is, in most trials, the most important part of the case. Here, biases are formed and overcome, attention levels will be at their highest, and up to 80% of jurors will make up their minds about who will win. Over three decades, A2L Consulting has supported the development of thousands of opening statements. It's where our trial-lawyer clients and we invest the most time and energy. Our work has typically included: the creation of persuasive PowerPoint presentations to accompany well-developed opening statements to; practicing and refining an opening statement 100+ times until it is perfectly delivered; testing versions of opening statements in a mock trial setting to help best plan the trial strategy. Our team is made up of trial lawyers, psychologists, litigation graphics artists, and hot-seaters. We see many of the world's best trial lawyers practice their craft on a regular basis. As I have always said and written about, Great Trial Lawyers Behave Differently. I often write about how their preparation is altogether different from an average litigator. When I do write about this topic, my goal is to cross-pollinate great techniques and ideas. This article is no different. I want to share some of what A2L has learned along the way both by watching great trial lawyers prepare for trial and by helping them do so. These best practices expressed in these top 10 articles/books/webinars about opening statements are unique. I hope you can put this information to use as you prepare for your next trial. How to Structure Your Next Speech, Opening Statement or Presentation 6 Reasons The Opening Statement is The Most Important Part of a Case 5 Things TED Talks Can Teach Us About Opening Statements
There are many situations outside of trial where lawyers find themselves in a courtroom or courtroom-like environment. Some examples include a mock trial, a pretrial hearing, an arbitration, a mediation, or an administrative hearing. Some of these situations are a lot like trial, yet I find many litigators don’t treat them like a trial. I think they should. One such example whose lesson applies broadly to almost any trial attorney is a relatively new type of administrative hearing that occurs every day at the Patent & Trademark Office. It’s called an inter partes review hearing (IPR). And if you think this article applies only to patent litigators, you’re wrong. This type of hearing has lessons for all trial attorneys. The work that patent litigators do is almost always complex. Over the past 24 years at A2L, roughly 40 percent of our work has involved patent litigation. That makes sense because the work of A2L is perfectly suited to patent litigation. We have three primary services: conducting mock trials and jury research, simplifying complex information with litigation graphics and expert storytelling, and using trial technology to quickly convey information to the factfinder. Patent litigators, after all, need to convey complicated information in a jury-friendly way. It needs to be understandable and persuasive and needs to tell a story that people will care about, a story that must be delivered in a winning manner. That’s why as far back as the 1990s, it has been patent litigators whom A2L worked with most often. In 2009, the America Invents Act (AIA) fundamentally changed the way in which patent cases are tried. The act allows for, among other things, something of a shortcut method to challenge the validity of a patent via a hearing at the Patent and Trademark office. There are judges and there is vigorous opposition from opposing counsel. But what’s missing here compared with most patent trials -- professionally prepared litigation graphics, a clear and compelling story, and an effort to highlight only the important information in the oral presentation. See 5 Tips For Inter Partes Review Hearing Presentations at the PTO. I heard a quote from Judge Learned Hand recently that underscores this last point: With the courage which only comes of justified self-confidence, he dared to rest his case upon its strongest point, and so avoided that appearance of weakness and uncertainty which comes of a clutter of arguments. Few lawyers are willing to do this; it is the mark of the most distinguished talent. If you want to see 100+ bullet point-ridden slides with trial counsel reading from them (see How Many PowerPoint Slides Should You Use in a Typical Trial? and 12 Ways to SUCCESSFULLY Combine Oral and Visual Presentations), this venue is all too often the place to find them. Considering the material and what is at stake, this is pure self-sabotage on behalf of a legal team. Patent lawyers generally do well at trial working with A2L, but for some reason, many have reverted to the behaviors of the 1980s and 1990s in this venue. Of course, I notice this in all sorts of venues, unfortunately, and I want to raise awareness for both trial counsel and clients in all areas. The science is well settled on why litigation graphics are necessary - even in a bench trial environment. See 6 Studies That Support Litigation Graphics in Courtroom Presentations. The same is true for telling a compelling story and doing that efficiently. I have heard this sentiment from judges and practitioners alike. One veteran patent litigator, Rob Mattson of the Oblon law firm, spoke to me about IPRs, “These cases are similar to a summary judgment hearing, and the judges want to understand the technology and what is in dispute as efficiently as possible. Getting the litigation graphics right here is just as important as in trial, although there may only be 20 key slides instead of 80.” I believe that this is a broad lesson that goes well beyond the inter partes review hearing. Consider some of these articles on each of these areas and how they might apply to what you present to your fact-finder. Presenting in arbitration/mediation Presenting in international arbitration Presenting in inter partes review hearings 14 Places Your Colleagues Are Using Persuasive Graphics (That Maybe You're Not) Presenting in class certification hearings Presenting in Markman hearings Presenting at the ITC Presenting in mock trials
Our team has planned and conducted more than 500 mock trials over the past thirty years. In that time, we have noticed striking similarities in the way jurors behave. We have noticed that a trial team can radically increase the amount of valuable information they mine from a mock trial just by following a few best practices. We have seen over and over that a well-executed mock trial is the most valuable form of pre-trial preparation a trial team can do. In these ten articles listed below (our top ten all-time articles on the subject), we reveal many of A2L's best practices and insider observations. Whether you are planning a mock trial or just preparing for trial, the lessons from these articles are valuable and actionable. A mock trial is designed to mimic many aspects of an upcoming trial. The overall goal is to learn what motivates jurors, especially those similar to the likely jury, to view our side of the case in the best possible light. Many people mistakenly believe that a mock trial is designed to simulate an upcoming trial in order to predict the outcome. While there is certainly a predictive element, one cannot reliably simulate a two-month or even a two-week trial in two days. Instead, the highest value takeaways from a mock trial come from watching jurors deliberate, looking at the data behind the their decision making revealed by polling, preparing one's trial presentation earlier than one might naturally do so, getting into the mind of opposing counsel by arguing their case, and just getting some excellent practice in the run-up to trial. In a typical mock trial, 100 or more jurors may be recruited. Often a voir dire-like exercise is built into the mock and 36-48 jurors may be selected and broken into three or four juries who will deliberate separately. When a mock trial is deemed premature or the costs of conducting one do not match the dollars at stake in a case, we are often asked to conduct a smaller-scale exercise called a focus group (see How Early-Stage Focus Groups Can Help Your Trial Preparation) where a fewer jurors are used, and the format is more dialog oriented. I hope you enjoy these articles. Taken together, they offer an excellent primer on how and why to conduct a mock trial for the best possible result. 10 Things Every Mock Jury Ever Has Said 12 Astute Tips for Meaningful Mock Trials
Dr. David Schwartz is a founding partner of Innovative Science Solutions, LLC (ISS), a scientific consulting firm specializing in helping legal teams prevail in high-stakes litigation involving complex scientific principles. Dr. Schwartz has served as a consulting scientist to the legal industry for over 25 years and has provided support to cases involving environmental and occupational exposures, radiation, drugs, medical devices, dietary supplements, cosmetics, industrial chemicals. But over the course of the past several years, Dr. Schwartz has focused on the role of genetics as an alternative cause in toxic tort litigation. As part of a strategic alliance, ToxicoGenomica, Dr. Schwartz and other ISS consultants have been providing consulting support on asbestos and talc cases focusing on genetic evidence as an alternative cause of mesothelioma and ovarian cancer. In 2017, Dr. Schwartz (ISS), myself (A2L), and others co-hosted a pioneering conference on the subject of the role of genetics in civil litigation. Now two years later, I sat down with Dr. Schwartz to get a better understanding of how genetic science has evolved since then and how it is likely to change the way toxic tort cases will be litigated in the near future, specifically in talc and asbestos cases. Q: Give us a quick summary as to how genomic science will change toxic tort litigation. A: Modern medicine is advancing from broad-based treatment based on randomized controlled clinical trials to “precision medicine” where treatment is tailored to individual patients based on their genetic profile. Similarly, toxic tort litigation has been based on so-called black-box epidemiology studying large groups of people and trying to determine risk. We are bringing the field up to date by applying the tools of precision medicine to evaluate risk in toxic tort litigation. With genomics, we can directly ask if a person was born with genes that predispose them to develop a disease (like mesothelioma) instead of relying on statistical inferences from large populations. This is a watershed moment in toxic tort litigation. Q: Talc litigation is heating up. Last I read, there were 14,000 claims filed related to talc. Do you think genetic science has a role in talc litigation? A: Absolutely! Genetics provides a medically sound alternative cause argument no matter what the alleged injury: mesothelioma, lung cancer, ovarian cancer, lymphoma, autism. These conditions are all known to have well-established genetic underpinnings. If a defense lawyer can demonstrate that a plaintiff had a specific set of genetic factors, then it is legitimate to make the argument that the condition was caused by those factors. Q: What is a genetic mutation? A: A mutation, also referred to as a variant, is an error in the sequence of a gene that could drive specific types of cancer. A gene can have hundreds or thousands of different types of mutations. Some mutations have no known effect on a person’s life, while others will drive the onset of cancer. Q: If genomic testing is already being used in precision medicine, has that information ever been used for litigation purposes? A: Yes. Sometimes the genetic analysis at a hospital can be very informative. That’s especially true for cancer treatment at excellent cancer hospitals. Having the capability to review plaintiffs’ medical records for relevant genetic evidence will be a core skill set moving forward.
At some point in our lives, many of us, perhaps most of us, have assembled a piece of IKEA furniture. Whether it was for that first apartment, your vacation home, or your kid's dorm room, it's something of a right of passage. If you have done this assembly work with your significant other, it's often a test of the relationship too. IKEA furniture is inexpensive, in part, because of the way it is shipped and packaged. It is unassembled, it fits into a small package, and the purchaser must assemble it. The instructions that come with the products are notoriously complicated, although they are quite well designed. In recent years, IKEA has gone a step beyond the printed instructions of old. They now publish videos of how to assemble a product, and they are really quite good. Hearing someone complain recently about having to follow the printed instructions got me thinking about juror communications and best practices when it comes to preparing litigation graphics. Of course, right? Here are three ways IKEA assembly instructions and litigation graphics can be similar: The Worst: Having your significant other tell you what to do and how to assemble the product is a lot like a trial attorney lecturing a jury with no visuals at all. See, 6 Studies That Support Litigation Graphics in Courtroom Presentations. Okay: Following the printed IKEA instructions is a bit like watching PowerPoint slides prepared by a member of the trial team. They are well-intentioned but not nearly as helpful or persuasive as they could be. See, 12 Reasons Litigation Graphics are More Complicated Than You Think. Pretty helpful: Watching an IKEA-produced assembly video (see below) is a lot like watching a professionally prepared opening statement, closing statement or expert witness presentation created by a litigation graphics firm. See, Why You Need a Litigation Graphics Consultant.
I had a confounding call with a past client and litigator recently. He had worked with A2L nearly ten years ago early in his career on a related matter. He called to engage A2L and work with one of our graphic designers. On its face, it's a sensible ask. After all, in addition to our jury consulting work and our hot-seat/trial technology work, A2L is undoubtedly a, if not the premier litigation graphics consultancy. The reason I found this call surprising is that asking to work with an individual graphic designer on our team misses the entire value proposition of why a firm like ours exists in the first place. If all a trial lawyer had to do was hire a graphic designer to help prepare opening/closing powerpoint presentations and work with testifying experts to help simplify their message, law firms would be teeming with millennial-aged graphic designers ready to spring into action in advance of trial. Lawyers might even do the work themselves. But that's not how serious trial-focused firms work, and many have gone full circle to figure this out - from adding internal graphic designers to eliminating them entirely. Serious trial-focused law firms do not insource litigation graphics work because it simply doesn't work over the long term. Logically, it should, but it just doesn't, and I've spent 25 years in the industry learning why. The articles linked below offer dozens of reasons why this is true.
"Only do what only you can do." My mentor throughout the 1990s and 2000s used to say this to me, and it was one of the best lessons a CEO with a fast-growing company could hear. The message was, of course, to stop trying to do too much myself and let other people do their part. Don't micromanage. Don't rescue. Don't interfere. Don't hover. And do let people learn by doing - even if it means making (small) mistakes. The overall message was to delegate responsibly. Based on three decades of observing the world's best trial lawyers, I can confirm that the best trial lawyers are experts in delegation, whether they are first chair or fifth chair. However, many trial lawyers, particularly those with many members on a trial team, would benefit from better following the lead of the greats. The problems I've seen (and I bet you have too) are numerous. Because a trial lawyer can use PowerPoint, some insist on doing some or all of the litigation graphics. See, 12 Reasons Litigation Graphics are More Complicated Than You Think. Because they've lived with the case for years, many trial lawyers are anxious about conducting a mock trial or asking for feedback on their planned narrative. See, 50 Characteristics of Top Trial Teams and The First Version of Your Story Is NOT Your Best.
At A2L, we publish so many articles valuable to trial lawyers and litigation professionals that we like to share our very best periodically. Below are the top three articles (based on readership) published in the second quarter of 2019. Each has links that allow you to easily share the article on Twitter or LinkedIn. Top 3 A2L Litigation Articles Published in Q2 2019 1. 5 Valuable Lessons From Some Horrible Infographics 2. 10 Timely Tips For Trial Preparation 3. A Useful Directory of Federal Courtroom Technology
The traditional way for trial lawyers to prepare for a new case is pretty straightforward. The first step is to get one’s arms around the basic facts of the case – to understand the facts and the timeline of the case in depth. The second step is to ask oneself what the ideal resolution of these facts would be: What would the client want a fact finder to conclude? The third step is to begin to fit the facts into legal frameworks or algorithms that accord with the client’s view of the case. Often, however, lawyers take these steps, and then, when they are close to trial, probably too close to trial, they begin to ask themselves how a jury would likely view the case that they are putting together. This is the wrong time to ask that question. The right time is much earlier than most trial lawyers think. The story is told of a famous trial lawyer who is walking down the broad front steps of a courthouse. He encounters a younger lawyer walking up those same steps, laden down with piles of books in each arm and obviously feeling the weight. The older lawyer says to the younger one, “Son, what you need is a story.”
Working at A2L, I have the distinct pleasure of watching many of the world's best trial lawyers prepare for trial. Most start months or years in advance. Those lawyers engage A2L early to do theme testing with a focus group or to organize and run a mock trial. Each of these events requires the creation of litigation graphics and usually assistance in developing an opening statement. Having watched so many great trial lawyers prepare for 25 years, I have been able to observe patterns in how they prepare. Below I share ten chronologically ordered tips (plus accompanying resources) based on these observations. If you're less than one year from trial, I hope these tips are still helpful, and I hope you will get in touch with me. More than one year from trial: There is no better time to do theme testing then when discovery is still open. Read more in How Early-Stage Focus Groups Can Help Your Trial Preparation and as you start this journey, always remember that Great Trial Lawyers Behave Differently. One year before trial: Plan your first of two mock trials. There are dozens of good reasons to conduct a mock trial, but forcing yourself to prepare early may be the very best one. Read my one-year trial planning guide and read A2L's Opening Statement Toolkit. Also, it is a good time to read A2L's Jury Consulting and Mock Trial Handbook. Nine months before trial: Begin or continue development of your litigation graphics. If you conducted a mock trial, you already have a good start. Read How Long Before Trial Should I Begin Preparing My Trial Graphics?, 10 Reasons The Litigation Graphics You DO NOT Use Are Important and The 13 Biggest Reasons to Avoid Last-Minute Trial Preparation. Six months before trial: Refine your opening statement story and the visuals that will support it. Make sure your experts have their visuals being worked on by your litigation graphics team - not the in-house people at the expert's firm. Watch Persuasive Storytelling for Trial Lawyers and read Storytelling for Litigators. To help develop your experts, have them read this three-part series on How to Be a Great Expert Witness. Three months before trial: Conduct opening statement practice sessions with your trial team, litigation consultants, and your client. Read The First Version of Your Story Is NOT Your Best, 3 Ways to Force Yourself to Practice Your Trial Presentation, and Practice, Say Jury Consultants, is Why Movie Lawyers Perform So Well.
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