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.
I'm very fortunate to have a lot of friends, and I often end up telling the same story more than once in order to catch people up on what’s going on in my business and personal lives. Sometimes it’s just out of friendship. Sometimes I want to hear my friend’s opinion. Sometimes I want to persuade. Since I’m also in the business of professional storytelling -- or at least in the business of helping others tell their stories in the most professional and persuasive way possible -- I pay attention to how I tell a story. I especially notice how the story evolves as I tell it for the third, fifth, or 20th time. Because it ALWAYS evolves. Sometimes the story changes because I have new insights. Sometimes it changes because of how it seemed to affect the last person I told it to. Sometimes it changes because of direct feedback or insight from my friend or adviser. May 2019 was an unusual month, in which a variety of major things happened personally and professionally. In fact, so many things happened at once that I needed to lean hard on my various advisers for good advice and wisdom. After a month that involved a great many consultations, everything got better, and I noticed something about that process. With each new retelling of events, I noticed how I automatically refined my story to more easily inform my listeners. I automatically changed the order of how I presented facts so that they flowed better. I found that I had injected appropriate humor. My stories seemed to be effective. They even caused some people to take some action in parts of their personal and professional lives just because they heard them (aka persuasion). Hopefully, you see where I am going with this when it comes to our work with trial lawyers. It's NEVER your first story that sings. Refining your story requires constant interaction and dialogue with others. That's why I will never understand the trial lawyer who writes their opening statement the night before trial or the trial lawyer who refuses to do a mock trial. In 25 years of doing this work, I have learned without qualification that the very best trial lawyers want their answers questioned. They do the mock. They conduct practice sessions. They invite critiques. They are the best precisely because they do this. Practice and preparation are what separates the good from the great -- not the law school they went to, not the firm they work for, and not even the innate ability to connect with a jury. Other A2L articles about storytelling, visual storytelling, persuasion, trial prep, mock trials and practice include: Great Trial Lawyers Behave Differently 50 Characteristics of Top Trial Teams 3 Ways to Force Yourself to Practice Your Trial Presentation 9 Things In-House Counsel Say About Outside Litigation Counsel Dan Pink, Pixar, and Storytelling for the Courtroom Practice is a Crucial Piece of the Storytelling Puzzle Three Top Trial Lawyers Tell Us Why Storytelling Is So Important The 13 Biggest Reasons to Avoid Last-Minute Trial Preparation Your Coach Is Not Better Than You – in the Courtroom or Elsewhere What Steve Jobs Can Teach Trial Lawyers About Trial Preparation 6 Ways to Use a Mock Trial to Develop Your Opening Statement 21 Reasons a Litigator Is Your Best Litigation Graphics Consultant Practice, Say Jury Consultants, is Why Movie Lawyers Perform So Well 7 Things In-House Misses When Litigation Consultants are Underutilized The 5 Very Best Reasons to Conduct a Mock Trial FREE DOWNLOAD: Storytelling for Persuasion - 144-page complimentary book 10 Things Every Mock Jury Ever Has Said The Very Best Use of Coaches in Trial Preparation Why Do I Need A Mock Trial If There Is No Real Voir Dire? 3 Ways to Force Yourself to Practice Your Trial Presentation 7 Questions You Must Ask Your Mock Jury About Litigation Graphics 11 Problems with Mock Trials and How to Avoid Them 12 Astute Tips for Meaningful Mock Trials Trending: Mock Trial Testing of Litigation Graphics AND Arguments 10 Suggestions for Conducting Mock Bench Trial Consulting Exercises Mock Trials: Do They Work? Are They Valuable? 11 Surprising Areas Where We Are Using Mock Exercises and Testing $300 Million of Litigation Consulting and Storytelling Validation Conflict check: Be the first to retain A2L
Alan Rudlin is a retired litigation partner from Hunton & Williams [now Hunton Andrews Kurth] in Richmond, Va., and a senior litigation consultant at A2L who has worked with us for about two years. Here is a brief Q and A to introduce Alan to the readers of this blog. Q. What brought you to the world of trial litigation? A. I graduated from the University of Virginia School of Law and spent a couple of years working in Washington, D.C., for a Joint Presidential-Congressional committee in the Watergate era. Then I decided to move back to Richmond, where I grew up, and to undertake a career in civil litigation. Q. What kinds of cases did you try? A. I worked on a wide variety of cases around the nation, including mass torts, First Amendment cases, environmental cases, and business disputes of all sorts. I tried dozens of cases to juries. Q. How did you become interested in trial techniques and the science of persuasion? A. Many years ago, I had a case where we and our client didn’t know if it made sense for our client to apologize for something. We put together a panel of ordinary people and used two-way mirrors to communicate with them. The answer they gave, by the way, was: Don’t apologize. Anyway, at that time I became fascinated with the art and science of jury studies, and used them when it made sense. Just as valuable I found was to seek the post-trial opportunity to learn whatever I could from jury interviews. Q. What is the most important benefit of those interviews? A. It’s very simple. If you won a case, but you don’t know why you won it, you don’t know very much. It’s like what doctors do. When something goes wrong in a surgery, they do a post-surgery review to figure out what went wrong and to do better in the future. Q. What kinds of questions do you like to ask jurors after a trial? A. I would have a detailed set of questions, and my favorite was to ask: Was there a point during the trial that was crucial for your understanding of the facts, when something clicked for you? Another good question is: What was your perception of the lawyers, the witnesses and the litigation graphics? Q. What is your opinion of jurors and their conclusions in a trial? A. I learned that one can trust jurors in complex cases. They may not express their opinions and conclusions in a way that a lawyer might, but they have a great deal of practical wisdom, and learning how to tune in to their ways of reasoning about what was fair or right is a critical skill. Alan Rudlin can be reached at rudlin@A2LC.com. Other free articles about senior A2L leaders, litigation consulting, and jury consulting work include: Litigation Consulting News: Introducing John Moustakas Law360 Interviews A2L Consulting's Founder/CEO Ken Lopez 9 Reasons Litigation Consultant is the Best Job Title in Litigation Who Is, and Who Isn’t, a Litigation Consultant? Free PDF: Why Work with A2L on Your Next Trial 3 Types of Litigation Graphics Consultants Top trial lawyers talk about working with A2L Top trial lawyers explain why storytelling is so critical for persuasion 10 Things Litigation Consultants Do That WOW Litigators Free E-Book: What is the Value of a Litigation Consultant? 21 Reasons a Litigator Is Your Best Litigation Graphics Consultant 3 Types of Litigation Graphics Consultants Free Webinar: Storytelling as a Persuasion Tool Free E-Book: Storytelling for Litigators Your Coach Is Not Better Than You – in the Courtroom or Elsewhere 10 Types of Value Added by Litigation Graphics Consultants Explaining the Value of Litigation Consulting to In-House Counsel 17 Reasons Why Litigation Consultants Are Better at Graphics Than Law Firms $300 Million of Litigation Consulting and Storytelling Validation Top 7 Things I've Observed as a Litigation Consultant 6 Secrets of the Jury Consulting Business You Should Know Who Are The Highest-Rated Jury Consultants?
I speak and write often about the kind of mistakes that lawyers often make at trial in presenting graphics. Some of these critical errors include reading your PowerPoint slides, presenting overly dense and complex information, coupling low-contrast demonstratives with a low-quality projector, and even using fonts that are too small. All of these mistakes can radically reduce your persuasiveness. A2L articles like, The 12 Worst PowerPoint Mistakes Litigators Make, The 14 Most Preventable Trial Preparation Mistakes, and 24 Mistakes That Make For a DeMONSTERative Evidence Nightmare are valuable for any trial lawyer and will help you overcome many a pitfall. Most of our litigation graphics clients who hire A2L to help develop their opening, closing, and expert presentations, say during the creative process that “I'll know it when I see it.” Indeed, just as choosing from a number of demonstrative options is a helpful time and energy saver for most trial attorneys, there’s also no substitute for seeing a mistake to appreciate why it is bad. That's the spirit of this article. I recently found a small corner of the Internet that highlights terrible infographics, and there are many useful lessons here for trial lawyers. Let's review a few and hope they don't remind you of anything done by your team or litigation graphics provider. Use the Right Type of Chart Great design is not form over function. Instead, it is function first with beautiful form (see, Litigation Graphics: It's Not a Beauty Contest). While this chart above is interesting to look at, it's annoying from the perspective of quickly conveying information. As I wrote in a recent post, litigation graphics should be very clear AND very quickly understood. See, One Demonstrative Exhibit, One Concept. I think litigation graphics should generally be able to stand on their own without explanation and be understood in less than 30 seconds. This chart would be much clearer if presented as a column chart with the dates running chronologically from left to right along the bottom. One could emphasize the differences in ages by having the left side of the chart run from 50 - 75 instead of something like 0-100. We've discussed this chart “cheat” before in 5 Demonstrative Evidence Tricks and Cheats to Watch Out For.
In most years at A2L, we are in one or more courtroom-based trials every single day of the year. Increasingly, however, I’m seeing arbitration take the place of more and more trials. One recent article published by Law360 noted that the number of federal trials has dropped by nearly half and pointed to the increased use of alternative dispute resolution (ADR) as one of the reasons for that. While the lawyers who lead an ADR team are often the same lawyers who run trial teams, I have noticed that there is far less sophistication in the use of litigation graphics during an arbitration as opposed to a trial. In trial, whether a bench trial or a jury trial, most litigators find a way to use litigation graphics. They don’t always do it well and many hurt themselves by making what are obvious mistakes to experts like us -- but at least they are trying. In arbitrations, however, I see a lot of trial lawyers acting gun shy when it comes to the use of litigation graphics. In my experience, lawyers should be using litigation graphics at every single arbitration, and it doesn’t matter whether the arbitrator or the panel of arbitrators are expert on the topic.
At A2L Consulting, we have been providing trial technicians (also known as hot-seat operators) to help our clients display materials at trial since the 1990s. The role of a trial technician is a unique one. These men and women routinely work late nights during a trial to ensure that they are totally prepared for whatever can arise. As we have said elsewhere on this blog, the ideal hot-seat operator must have a very close working relationship with the lead trial attorney and with the other team members, must have a calm demeanor in case he or she is called upon with no notice to provide something critical for the trial, and must have an understanding of the thousands of documents that will inevitably be involved in any trial. Most importantly, he or she must be able to make the trial presentation appear to be seamless and flawless. We have seen instances in which opposing counsel, or their hot-seat operator, stumbled in one respect or another – and their credibility took a dive. We have written in articles like What a Great “Hot Seat Operator” Can Add to a Trial Team and 12 Tips to Hire the Right Trial Technician for Your Trial about the ideal qualities for a hot-seat operator. We've even released a free book on the topic called How To Find and Use Trial Technicians and Trial Technology. Click here to download it. One thing that we perhaps have not discussed as much as we should is that a great hot-seat operator must, from the beginning, become totally conversant with the technology available in the specific courtroom in which he or she will be working. And there are substantial differences: Some courtrooms have expensive, built-in technology that is state of the art. Some will have excellent technology – if this were the year 2003. Some have no technology at all. It is the responsibility of the trial team, and of the hot-seat operator above all, to design an appropriate, modern technology set-up for the courtroom that will serve the paramount goal of persuading the jury. Below we have prepared what should be a very useful directory of the technology available in the 90 federal district courts across the nation and we have linked to each of the courts’ websites.
At A2L, we publish so many articles about litigation and trial preparation that I like to share the best of the best periodically.
I was in New Orleans recently to speak at the DRI Toxic Torts and Environmental Law Seminar, and while I was in the city, I took some time to visit the National WW II Museum in the downtown area. At the museum, I was struck by a graphic exhibit that showed that in 1941, the United States had only 336,000 soldiers in uniform, compared with 850,000 for Japan and 3.1 million for Nazi Germany. There is a quick and easy lesson here for trial lawyers.
This article is the last in a series of four articles about courtroom storytelling. My goal in this series is to reveal some of the tricks of the persuasive storytelling trade in one place for the busy trial lawyer. I hope that these recommendations can serve as a pretrial checklist for anyone who wants to draft an opening statement. A2L’s litigation consultants have published dozens of articles about storytelling, and we’ve released books and webinars on the subject. These ten tips represent the essence of what we have learned and of what we have taught. If you apply these ten suggestions when developing your story for trial, your story will be more persuasive, and you will radically increase your chances of winning your case. Tip #6. Your audience MUST care about the story. The audience should be emotionally transported. It has been said, “People will forget what you said, people will forget what you did, but they will never forget how you made them feel.” Scientific studies show that when people listen to an effective story, their brains react more like participants than spectators. When we say that people experiencing a deep connection are “on the same wavelength,” there is neurological truth to that. Scientists at Princeton University looked at brain scans (fMRI) of storytellers and listeners to the stories. They found that the most active areas of the brains of the speakers and listeners matched up; they were in sync or coupled. However, this synchronized activity was found in the areas of the brain relevant to theory of mind, not in areas that drive memory or the prefrontal cortex associated with cognitive processing. The stronger the reported connection between speakers and listeners, the more neural synchronicity was observed in the test subjects. The extent of brain activity synchronicity predicted the success of the communication – so connecting with your audience more makes you more persuasive. Source: Storytelling Proven to be Scientifically More Persuasive. Tip #7. Force participation of your audience. Engage the audience in the journey. As Pixar film director Andrew Stanton says, don’t give them 4, give them 2+2 and make them work to find the answer. Nineteenth-century writer William Archer wrote, “Drama is anticipation mingled with uncertainty.” Make your audience members keenly aware of their uncertainties and holding on to their sense of anticipation. The goal of a presentation is always the same -- to engage the audience, to move them. This holds true regardless of the stage. It’s so in the courtroom, on the floor of the U.S. Congress, in the boardroom, and in the classroom. Litigators engage a jury to win their case for their client; professors engage their students so that they can best teach the subject matter. Engagement leads to better understanding, which then leads to better retention and enhanced persuasiveness. Retention and understanding are the keys to success.
This article is the third in a series of four articles about courtroom storytelling (links to part 1 and part 2). My goal in this series is to reveal some of the tricks of the persuasive storytelling trade in one place for the busy trial lawyer. I hope that these recommendations can serve as a pretrial checklist for anyone who wants to draft an opening statement. A2L’s litigation consultants have published dozens of articles about storytelling, and we’ve released books and webinars on the subject. These ten tips represent the essence of what we have learned and of what we have taught. If you apply these ten suggestions when developing your story for trial, your story will be more persuasive, and you will radically increase your chances of winning your case. Here is the fifth of these ten tips. 5. It is crucial to make your audience care about the characters in your story. It’s never just about a company. It’s never just about the CEO, and if Hollywood can make you care about a mute trash robot named WALL-E, you can make your factfinders care about the characters in your story. A major way to lose an audience is to fail to develop characters that a jury will care about. you don’t develop such characters, your jury will either not care about your side or will turn against your client from the start. Unfortunately, about half of all trial teams fail to properly develop the characters in their litigation story, and their cases suffer terribly for it. The excuses are numerous: from ‘We’re a big company, we don’t have individual characters” to “Everyone on our side is perceived as bad.” These are just excuses. I can guarantee that 99.9 percent of the time, there will be characters that can be developed. Here is a step-by-step guide to using Joseph Campbell’s model of the hero’s journey so as to turn your story’s main character into a hero. To make this useful pattern more accessible, I have attempted to use plain language to describe the steps. My plain language description is followed in parentheses by the name that Campbell gave to it. Also, to help bring the process alive, I have matched each step with an example from a hypothetical legal and technical fact pattern, typical of the cases we most often see at A2L. Here, our heroine is a lower-level employee at a stagnant remote-control manufacturing company, and she has an idea for a breakthrough product -- a remote control operated not with a handheld device but by wireless physical hand gestures. Something Interrupts the Ordinary (Campbell's Call to Adventure): Describe the status quo as it was at the time. Then describe that moment when someone sees an opportunity for change or a new threat emerges. In the hypothetical example, remote controls are functional uninspiring devices that get lost, wear out and have undergone little change for 25 years, in the same era that saw the mass deployment of handheld phones and personal computers. Inspired by watching her nieces play a TV-displayed game that uses hand gestures instead of controllers, our heroine imagines a world where hand gestures alone can manipulate her television and replace standard remote controls. At work the next day, she hears a speech by the firm’s CEO who is looking for new ideas. Obstacles Arise (Campbell's Refusal of the Call): Share how obstacles arose from the very beginning that prevented your client from taking the leap of faith required to pursue the opportunity. Example: After hearing the speech, our heroine brings the idea to the attention of management at the remote-control factory and was laughed out of the executive suite. She figured they were in management for a reason and went back to manufacturing remote controls as before. A Mentor or Helper Appears (Campbell's Supernatural Aid): Explain how your client gets some unexpected assistance that is a sensible next step in bringing the opportunity to reality. Example: Our heroine attends a consumer electronics conference that shows off some new gaming technology that reminds her of her idea. She talks with the reps at the trade show booth about applications they’ve considered for their wireless controllers. They suggest she show them what she has in mind.
This article is the second in a series of four articles about courtroom storytelling (here is a link to part 1). My goal in this series is to reveal some of the tricks of the persuasive storytelling trade in one place for the busy trial lawyer. I hope that these recommendations can serve as a pretrial checklist for anyone who wants to draft an opening statement. A2L’s litigation consultants have published dozens of articles about storytelling, and we’ve released books and webinars on the subject. These ten tips represent the essence of what we have learned and of what we have taught. If you apply these ten suggestions when developing your story for trial, your story will be more persuasive, and you will radically increase your chances of winning your case. Tip #2. Charisma and likability matter. The best set of facts may not save a trial lawyer who is unattractive and poorly dressed. This isn’t fair or right, but it is a reality that science proves out. For these reasons and more, it is imperative to put your best foot forward. "Your job as a persuasive litigator is to understand the factors that can be used properly and ethically to be more likable and thus more persuasive. As your case becomes more complicated, jurors are more likely to seek shortcuts and give more weight to easier factors to understand, such as which attorney they like and which they don’t. The less personally involved jurors are with evidence, such as information that is too dry or difficult, the more they tend to rely on peripheral cues rather than on an argument’s actual strength. Being liked is an important ingredient in the cocktail of peripheral cues jurors use to decide whom to believe." See, Like It or Not: Likability Counts for Credibility in the Courtroom
Please join me in wishing all the authors of A2L's Litigation Consulting Report blog a Happy 8 Year Blogging Anniversary!
Great trial lawyers are paid to tell stories for a living. Typically, one side’s recitation of a story is more persuasive than the other – even when both sides are drawing on the same set of facts. But why? Is it the charisma of the trial lawyer? Is it the way the story is told by both sides? Is it the deployment of superior litigation graphics by one side? Well, it’s all these things – and more. Our litigation consulting firm is often engaged to help top trial lawyers tell their stories in the most persuasive way possible. We do this by applying the latest findings of persuasion science and sharing the wisdom that we inherit by routinely observing the world’s very best trial lawyers. This article is the first in a series of four articles. My goal in this series is to reveal some of the tricks of the persuasive storytelling trade in one place for the busy trial lawyer. I hope that these recommendations can serve as a pretrial checklist for anyone who wants to draft an opening statement. A2L’s litigation consultants have published dozens of articles about storytelling, and we’ve released books and webinars on the subject. These ten tips represent the essence of what we have learned and of what we have taught. If you apply these ten suggestions when developing your story for trial, your story will be more persuasive, and you will radically increase your chances of winning your case. Tip #1. There must be a story. You should present a story, and it should follow the basic guidelines of storytelling. That is, there should be a beginning, middle, and end, and there should be storylines and human characters that your factfinders care about. Research tells us that human beings automatically make stories out of virtually all life events to gain a sense of control, even if it’s a false sense. It’s the difference between collecting bare facts and interpreting them in a coherent manner. Most people can’t resist making assumptions, drawing inferences, and imposing upon the facts what they “mean” rather than merely accepting information as is. Most of what people discuss in their social lives are stories and gossip – not random facts. Since we know that your jury will be using a story to sort out your litigation facts in order to reach its results, whose story do you want the jurors using -- one they’ve made up, one provided by opposing counsel, or yours? If we now think about how one might tell a story in an opening statement, below is a model for telling such a persuasive story. This example comes from a trial that ultimately derived from the financial crisis of the last half of the decade of the 2000s, where the issue was whether a bank could be held liable to its shareholders for bad real estate investments that the bank made. Introduction: I like to start with the statement of some fundamental truths and an introduction of the characters like, “Banks survive on greed - it's how they make money. When they make good loans, they make money. When they make bad loans, they lose money. These bankers are essentially being accused of making bad loans, which to be true would have to mean, they were not trying to make money. When is the last time you heard of bankers not trying to make money? It makes no sense.”
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