The Litigation Consulting Report

At A2L, we work on many disputes and trials of various types and sizes. Before starting work, we routinely provide our customers with estimates of what we think it will cost to engage us to conduct a mock trial, prepare trial presentations, assist in the development of the opening statement, and run the courtroom technology. While it’s never easy to estimate the final costs of fast-moving complex litigation, it's something that firms like ours and large law firms do every day. We've been doing it for 24 years, and we've even pioneered some innovative pricing strategies for litigation graphics and trial tech work. However, I've noticed two schools of thought when it comes to estimating, and one of them seems to lead to better outcomes. In shorthand, I'll call these two methods a top-down method and a bottom-up method. In my experience, the top-down method leads to more successful engagements, more wins, and much better and trusting relationships.

Here at A2L, we are delighted to introduce John Moustakas, our new Managing Director of Litigation Consulting and General Counsel. John comes to us from the international law firm Goodwin Procter, where he was a partner in the firm’s Securities Litigation and White Collar Defense Practice. John is a highly successful trial lawyer who has tried more than 45 cases to a jury. John spent more than six years as a prosecutor in the U.S. Attorney’s Office for the District of Columbia, before returning to Shea & Gardner, where he had begun his legal career. In addition to trying numerous criminal cases for the United States, John has tried a variety of civil matters in a combined 20 years in private practice at Shea & Gardner and its successor, Goodwin Procter. John laments the fact that, for many reasons, far fewer cases go to trial in the corporate world than even 20 years ago. “My approach to practicing law is pretty old school,” he says. A generalist at heart, John “always loved the variety of litigation and never wanted to be pigeon-holed.” He’s tried a wide variety of matters ranging from homicides and public corruption on the criminal side to civil disputes over contracts, torts, real estate, employment, securities, and civil rights, to name a few. The unique focus of his new position attracted John. “Above all else, I’ve most enjoyed the storytelling aspect of my work -- figuring out how to engage the jury and make them want us to win.” Although he will no longer be a client’s advocate in court, he relishes the trade-off. “Instead of trying my own case every four or five years, if I’m lucky, every matter I’ll be consulting on will be one bound for trial. If I can leverage my experience to help others try their cases more persuasively, I will be one very happy guy,” he says. John says that one key to a trial lawyer’s success is to follow his or her own natural style and temperament. “The jury, as a collective, is uncannily able to sniff out BS,” he says. “Pretend to be something or someone you’re not, and they will see right through you.” Convinced that his authenticity was the greatest contributor to his success as a trial lawyer, John’s mission is to keep A2L’s clients true to their nature. “So, while the goal is to help our clients strengthen their presentations with an emphasis on creating resonant themes and the engaging visuals that support them,” he says, “we help by pruning, not slashing -- by seasoning, not scrapping the recipe. The lawyers it is our privilege to work with need nothing more. While they cover the entire waterfront, sweating every detail, we have the luxury of focusing narrowly and with a bit of detachment. And that is not only a rewarding role, but one that our clients feel makes a meaningful difference.” John looks forward to bringing his insights and experiences to bear in this new chapter of his career in a way that makes that kind of difference. He can be reached at moustakas@A2LC.com or 703.548.1799. Related A2L resources about storytelling, litigation consulting, mock trials, and creating trial presentations that persuade: 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

Roughly half of our business involves the creation of PowerPoint presentations for opening statements, closing arguments and expert witnesses. To create these presentations, our litigation consultants, typically seasoned trial lawyers and communications experts, work with our creative staff to turn the trial strategy into presentations that will motivate decisionmakers to make the “right” decisions. In a trial with millions or billions at stake, our final draft for an opening is typically version 30 or higher — and I've seen version 80 in a very large trial. Why so many versions? This is the result of what great trial lawyers do: They work with our team and iterate until perfection is achieved. However, every presentation starts with a first draft, and after three decades in this industry, I can say that a first draft sets the tone for the entire engagement. Handle it well, and trust is formed and there is a nice creative arc free from anxiety. Handle the rollout of the first draft wrong, and trust never kicks in, micromanagement dominates, and the deck becomes a “horse designed by committee.” So what’s the magic to the rollout of a first draft?

I’m far from alone in asserting that Steve Jobs was an inspiration to many entrepreneurs and CEOs of all ages. For many of us, his contrarian thought process, rigorous attention to detail, and spectacular showmanship formed a model for how to innovate, run a business, and find new customers. I tracked Jobs’ career during my college and law school days and went so far as to email him a couple of times to thank him for the inspiration that he provided to me. Over the years, his 2007 speech introducing the iPhone served as a model for me. It showed me how to make a presentation that is both informative and inviting. I’ve written about that here. Later, when I was preparing to deliver a commencement speech, I used his 2005 Stanford commencement talk as an example. Steve Jobs’ presentations were admired by many. But not as many people have looked behind his presentations to understand that level of preparation that was involved in each presentation. An article earlier this year from Inc. magazine said it very well: Every product launch was brilliantly performed. Every move, demo, image and slide was in sync and beautifully choreographed. If I sound like I'm describing a Broadway show, you're right. A Steve Jobs presentation had more in common with an award-winning theatrical performance than a typical product launch. Apple still uses the time-tested formula including the final secret ingredient: Jobs rehearsed relentlessly. Carmine Gallo, the author of this article, pointed out that Jobs’ presentations looked effortless precisely because he put so much effort into them. These ideas are totally in keeping with the conclusions that I have reached in three decades of observing trial lawyers. I’ve heard far too many first-chair trial lawyers claim that the reason they didn’t practice their opening statement relentlessly was because it wouldn’t appear spontaneous if they did. Quite the contrary; the openings that I have heard that appeared the most spontaneous were precisely the ones that were the most thoroughly rehearsed. Apparently, Steve Jobs shared that approach. His grueling hours of practice became legendary in the tech industry. The Inc. article, in analyzing the desirable amount of practice time, concluded that the ideal is the 20-20 rule, which means that for a 20-minute presentation, one should go through the whole thing at least 20 times. This is consistent with the conclusions that I’ve reached about trial practice. We like to use a rule that a 60-minute opening should be practiced for at least 30 hours. We all want to look relaxed, confident and conversational in making our presentations. That is a good instinct because that style is in fact persuasive, but the way to get there is not with last-minute cramming, an opening statement practiced privately in a hotel room with no one listening, or an off-the-cuff talk relying on a few bullet points. The best openings I’ve ever seen are the result of countless hours of practice — often done in one-to-one sessions with an A2L litigation consultant. As is the case with any presenter, practice is what separates good trial lawyers from great trial lawyers. You might say, great trial lawyers just “think different” when it comes to practice. Other free A2L articles about trial preparations, delivering great presentations, practice, and developing opening statements include: $300 Million of Litigation Consulting and Storytelling Validation Conflict check: Be the first to retain A2L 3 Ways to Force Yourself to Practice Your Trial Presentation 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 Winning BEFORE Trial - Part 3 - Storytelling for Lawyers Free A2L Consulting Webinar: Persuasive Storytelling for Litigation Storytelling at Trial Works - But Whom Should the Story Be About? Free 144 page A2L E-book download: Storytelling for Litigators Free A2L webinar - Storytelling as a Persuasion tool The Magic of a 30:1 Presentation Preparation Ratio The Very Best Use of Coaches in Trial Preparation 12 Ways to SUCCESSFULLY Combine Oral and Visual Presentations 7 Ways to Draft a Better Opening Statement In Trial Presentation - A Camel is a Horse Designed by Committee The 12 Worst PowerPoint Mistakes Litigators Make 12 Reasons Bullet Points Are Bad (in Trial Graphics or Anywhere)

I've written about people who present well using PowerPoint many times before. Some of those articles include: President Obama: Presentation Graphics: Why The President Is Better Than You Law Professor Lawrence Lessig: Lawyer Delivers Excellent PowerPoint Presentation Dan Pink: Dan Pink, Pixar, and Storytelling for the Courtroom Nancy Duarte: Litigators Can Learn a Lot About Trial Presentation from Nancy Duarte Scott Harrison: Every Litigator Should Watch Scott Harrison Deliver This Presentation Me: 21 Steps I Took For Great Public Speaking Results Each of these articles offered some useful lessons both in designing good trial presentations and in the art of presentation. Yesterday, the world saw one of the great PowerPoint presentations of all time. If it were given in a courtroom, this presentation would be in the top one percent of courtroom presentations (not for beauty but for effectiveness). However, this presentation was not in a courtroom at all. Still, which famed trial lawyer do you imagine gave this presentation? As the title suggests, it wasn’t a trial lawyer at all. The presentation was delivered by Israel's Prime Minister Benjamin Netanyahu. If you don't agree with the man or the content, put aside your politics and learn from the presentation. Every trial lawyer should do AT LEAST this well in the courtroom. There are few excuses not to, and every client should demand a performance at this level. If you have (or are) a client who understands the outsized value of investing in the most critical presentations of your case, our team can get you to this level. Every time. This is exactly the kind of work we do with the world's top trial lawyers every day. Watch all or some of Prime Minister Netanyahu's presentation and read my commentary on it below to understand why this presentation is so effective and how any trial lawyer can learn from it. The list of things done right in this presentation is very long. Let's look at a handful, and I will link back to an article where we made these recommendations. Each of these underlying teachings is a technique that our litigation consultants use to help coach trial lawyers and maximize their chance of winning. He looks the part: 10 Things Litigators Can Learn From Newscasters He chose the right tie: Litigation Graphics, Psychology and Color Meaning He delivers on all five of these promises: 5 Things Every Jury Needs From You He establishes a clear narrative and drama early: Are You Smarter Than a Soap Opera Writer? He uses an immersive style: New Study: A Graphically Immersive Trial Presentation Works Best He uses surprise to engage and persuade: Could Surprise Be One of Your Best Visual Persuasion Tools? Persuasive images are used immediately: Persuasive Graphics: How Pictures Are Increasingly Influencing You The use of deposition-like video is brilliant for setting the stage: 6 Tips for Effectively Using Video Depositions at Trial He presents in a modern 16x9 format (like an HDTV not an old tube TV): Free Webinar: PowerPoint Litigation Graphics - Winning by Design™ He does not talk over the messages: 12 Ways to SUCCESSFULLY Combine Oral and Visual Presentations Captioning is well handled on videos: 6 Tips for Effectively Using Video Depositions at Trial He is very practiced: The Magic of a 30:1 Presentation Preparation Ratio The core opening introductory message is clear and compelling: How to Structure Your Next Speech, Opening Statement or Presentation Netanyahu used a hot seater: What a Great “Hot Seat Operator” Can Add to a Trial Team The theatrics in the form of the binders and the CDs are just brilliant: Using Scale Models as Demonstrative Evidence - a Winning Trial Tactic The level of preparation is clear and is what is expected of elite presenters - even by juries: Practice, Say Jury Consultants, is Why Movie Lawyers Perform So Well The hand gestures are well done: 5 Things TED Talks Can Teach Us About Opening Statements The call outs are simple and excellent: 3 Styles of Document Call-outs Used at Trial The translating of scale and size into terms people understand is clear and convincing: 6 Ways to Convey Size and Scale to a Jury You don't have to read Farsi to understand the nuclear materials, he says: Your Trial Presentation Must Answer: Why Are You Telling Me That? He makes limited use of bullet points: 12 Reasons Bullet Points Are Bad (in Trial Graphics or Anywhere) He organizes his message into five points and enumerates on the slides: Litigation Graphics: The Power of Checklist Trial Exhibits He uses limited text on slides throughout the presentation!: How Much Text on a PowerPoint Slide is Too Much? His slides are clean, uncluttered and generally have a single message: 12 Ways to Eliminate "But I Need Everything On That PowerPoint Slide" He includes animated graphics: 16 PowerPoint Litigation Graphics You Won't Believe Are PowerPoint He contrasts what the Iranians said vs. the reality and deploys other credibility attacks in one evidence-backed attack after another: Like It or Not: Likability Counts for Credibility in the Courtroom He tells you what to conclude: Your Trial Presentation Must Answer: Why Are You Telling Me That? He repeats (language and video) for effect and clarity: A Surprising New Reason to Repeat Yourself at Trial His use of storytelling throughout the presentation is excellent: 5 Ways to Maximize Persuasion During Opening Statements - Part 2 He makes NONE of the 12 mistakes in this article: The 12 Worst PowerPoint Mistakes Litigators Make He has been well coached by presentation consultants like us: Your Coach Is Not Better Than You – in the Courtroom or Elsewhere Nothing about this PowerPoint presentation is particularly sophisticated. In fact, there are many things that could be done to make it considerably better and more persuasive. However, above all else, it shows what a well-practiced presenter can do. VERY few trial lawyers prepare to the point where they can present at this level and if they would work more closely with elite litigation consultants, whether A2L's litigation consultants (pdf) or others, they could do even better than Benjamin Netanyahu. Here's the ultimate takeaway: it's not some innate gift that helps a presenter be world-class. Instead, it's the humility that allows someone to practice over and over getting these critical presentations just right that makes anyone appear to be world-class.

It seems to me that a good many sophisticated people, including a lot of lawyers, don’t fully understand the role of storyboards in developing an animation. A storyboard has been defined as a graphic organizer in the form of illustrations or images displayed in sequence for the purpose of pre-visualizing a motion picture, animation, motion graphic or interactive media sequence. The first story boards were used by the Walt Disney animation team in the early 1930s, and at A2L, we use storyboards in exactly the same way – to pre-visualize an animation that we are intending to use at a trial. As longtime readers of this blog may know, I came to this business about 25 years ago, just after my law school graduation. I knew a good deal about computer animation in the Toy Story era, and I originally envisioned A2L as a trial animation company for attorneys, focusing in the intellectual property area. A2L has grown to become a leading trial consulting firm and a top provider of litigation graphics and jury research, but I’ve always had a special fondness for litigation animation. Animation remains a very vibrant part of trial practice, especially now that common tools like PowerPoint provide a basic animation function as a standard offering. It’s no longer necessary to bring in a specialized designer to provide animation for trial. We’ve written about this in articles like Legal Animation: Learn About the Four Types Used in the Courtroom, What Does Litigation Animation Cost? (Includes Animation Examples), and Patent Comes Alive! Turning Patent Drawings into Trial Presentations.

One of my professional mentors had a saying: Let silence do the heavy lifting. This is good advice in many business and personal contexts. When you want to hear what another person really thinks, stop talking and wait for him to speak. Let him finish his statement, and don’t “rescue” him by interrupting him. Two thousand years ago, a rabbi in the Talmud said, “All my days have I grown up among the wise, and I have not found anything better for a man than silence.” This principle is still valid, and it applies well in the context of communications during trial between attorneys, juries and judges. I’ve noticed that many trial lawyers all too often believe they have too much to say in too little time and are obsessed with pressing a great deal of information into the hands of the fact-finder. But endless words are not always your friend if you want to be a successful persuader. Recently I observed an opening statement in which a trial lawyer applied these principles perfectly. Her client needed to make a point about the existence of ongoing communications between two parties over the course of a decade. This point was so important that it warranted special attention during the preparation of the opening statement. So we designed a litigation graphic that focused on these communications. We made sure that these timeline events rolled out slowly to the jury, slowly enough that the brief periods of silence between them caused some discomfort. This tactic noticeably changed the pace of the opening statement. It set a tone that forced the jurors to pay attention. And it wouldn’t have worked as well if the lawyer hadn’t presented her statement quietly and at a slow pace. As this masterful trial lawyer went on with her statement, the room audibly went silent and the jury paid attention. This was an emotional moment that focused the jurors’ minds on the fact of the regular ongoing communications – an essential part of the case for this lawyer’s client. This lawyer let silence do the heavy lifting. We have done this before, in other contexts. In an airline merger case, we scrolled a list of past airline bankruptcies before the jury in a way that was slower than usual – and noticeable. The message was that the airline industry had long been suffering through a dire financial situation and that the merger should be allowed to go through to reduce further bleeding. In all of these cases, the key element is that a skillful trial lawyer can plan her exhibits slowly and carefully and let silence speak loudly. Other A2L free resources about litigation graphics, timelines, and connecting with judge and jury include: 3 minute video: Three top trial lawyers discuss persuasion using litigation graphics A Must-Have Complimentary 50-page Guidebook for Those Who Use Timelines to Inform or Persuade 16 PowerPoint Litigation Graphics You Won't Believe Are PowerPoint Connecting With Jurors by Turning Off Your Screen 3 Excellent Ways to Use “Top-Bottom” Timelines in Trial 5 Trial Graphics That Work Every Time 5 Essential Elements of Storytelling and Persuasion How to Make PowerPoint Trial Timelines Feel More Like a Long Document 4 Types of Animation Used in the Courtroom Why a Graphically Immersive Trial Presentation Style Works Best Stop Using Bullet Points Why the former President is a Master PowerPointer The Redundancy Effect Search our site for just what you need 12 Ways to Eliminate "But I Need Everything On That PowerPoint Slide" 6 Trial Presentation Errors Lawyers Can Easily Avoid Trial Timelines and the Psychology of Demonstrative Evidence Don't Be Just Another Timeline Trial Lawyer The 12 Worst PowerPoint Mistakes Litigators Make

I have the privilege of working on a regular basis with many of the top trial lawyers in the nation, and they are an impressive bunch. In addition to their knowledge of the law, their capacity for hard work, and their practiced trial skills, they tend to carry an unquantifiable charisma. The great trial lawyer is a person who, when he or she enters a room, knows how to command the room. And although they are not arrogant, they do know that they have that ability and that they can turn it on or off. This means that the great trial lawyers can develop an ineffable rapport with jurors, a connection that is hard to explain and remarkable to see in action. Trial consultants are well advised to leave well enough alone, to “do no harm” when that connection is clearly operational; their job then is to simply sit back and observe this meeting of the minds and hope it will carry them on to victory. But these top trial lawyers, who have developed great sensitivity to issues of rapport and communication, often voice a concern to me. The concern is that they may be using some PowerPoint slides, say to highlight the themes of an opening statement, and then they wish to move on to a point that is not on the slides. But the jurors, they point out, are still staring at that screen, and the personal connection, instantly made, will instantly be lost. Should the jurors be looking at the screen or continuing their focus on the lawyer? It must be noted that the great trial lawyer knows not to make his or her case strictly via PowerPoint and knows how important it is to limit the use of this seductive trial technique. Still, there is a place for PowerPoint at trial and thus a corresponding concern. The trial lawyers’ concern is, fortunately, overblown and easily remedied. The remarkably simple solution is to press the “B” key on the computer keyboard. In PowerPoint, this instantly makes the screen go black, thus removing all competition for the jurors’ attention. Just learn to switch fluidly back and forth, using that key. This will not only preserve the crucial emotional connection between lawyer and jury; it will also lay the groundwork for the lawyer to assume the role in the jurors’ minds of trusted counselor and friend, someone who can make sense of all the evidence and tell a convincing story that puts it all together. I wish all trial lawyers’ dilemmas were so easily resolved. Other A2L Consulting free resources related to PowerPoint, connecting with jurors, and what makes a great trial lawyer include: 10 Criteria that Define Great Trial Teams 16 PowerPoint Litigation Graphics You Won't Believe Are PowerPoint The 12 Worst PowerPoint Mistakes Litigators Make Like It or Not: Likability Counts for Credibility in the Courtroom How Many PowerPoint Slides Should You Use in a Typical Trial? The Redundancy Effect, PowerPoint and Legal Graphics 12 Things About PowerPoint You Probably Never Knew How to Make PowerPoint Trial Timelines Feel More Like a Long Document New Webinar - PowerPoint Litigation Graphics - Winning by Design Lawyer Delivers Excellent PowerPoint Presentation Why Reading Your Litigation PowerPoint Slides Hurts Jurors How Much Text on a PowerPoint Slide is Too Much? 12 Ways to Eliminate "But I Need Everything On That PowerPoint Slide" Do Professionally Designed PowerPoint Slides Get Better Results? 12 Reasons Bullet Points Are Bad (in Trial Graphics or Anywhere) 14 Tips for Delivering a Great Board Meeting Presentation 5 Things Every Jury Needs From You Jury Selection and Voir Dire: Don't Ask, Don't Know 10 Things Every Mock Jury Ever Has Said Your Trial Presentation Must Answer: Why Are You Telling Me That?

Most of the work that a trial consulting firm like A2L does for its clients takes place in civil cases. However, criminal cases also present unique challenges for trial lawyers and for trial consultants, and some of our most fascinating cases over the years have been criminal cases.

I've always been a creative type. In fact, it was my creativity 25 years ago that caused me to learn 3-D animation during law school and ultimately go on to launch A2L Consulting. In the 25 years since then, I've worked on thousands of cases advising trial teams and leading a team of people who advise top trial lawyers on conducting voir dire, running mock trials, managing complex trial technology, and my personal favorite, developing litigation graphics to simplify, explain, and persuade in complex cases. Focusing in on this creative side of the business, litigation graphics development, I have seen two types of trial teams interact with creative teams -- those that have the knack and are successful working with creative people and those that are not. The impact of these interactions turns out to be very significant. Cases have been won and lost because of a trial team's ability to interact well with a creative team. Like anything, it is a skill that can (and should) be learned. Over the past several decades, I've received feedback from hundreds of trial teams and I've seen feedback delivered to others by thousands more. Below are fourteen things to know about delivering feedback to the creative team. When creative people create, they offer a piece of themselves up for criticism. Deliver your feedback with this in mind, and you'll be ahead of your peers. If you're a shouter, find someone else to work with the creative team. Say what you mean. It's incredibly important that you be honest about what you like and what you do not. Holding in your criticism in an effort to be kind is not the goal. The goal is to deliver feedback in a productive way. Find the good and talk about it first. This one is a classic and is what is taught in art school. Simply, find something positive to say and then talk about what you do not like. Early feedback is the most important. If something feels “off” or wrong for the situation, don’t hesitate to give your feedback speedily. If you find yourself reading this list muttering something about sensitive snowflakes, you're not the best person to be working with creative people. Ask a colleague to be the messenger.

I’ve written often about trial preparation -- and yet it seems like it’s never enough. I have a unique view of the litigation industry since I work with the absolute top-performing trial lawyers and with many other attorneys who aspire to be like them. What distinguishes the high performers from the mere aspirants is primarily their rigorous and intense preparation. Long-time readers of this blog might remember some of the articles we’ve written to try to help good trial attorneys become great trial lawyers. Here are some of them: 50 Characteristics of Top Trial Teams 7 Habits of Great Trial Teams The 13 Biggest Reasons to Avoid Last-Minute Trial Preparation How Early-Stage Focus Groups Can Help Your Trial Preparation 25 Things In-House Counsel Should Insist Outside Litigation Counsel Do Sample One-Year Trial Prep Calendar for High Stakes Cases How Long Before Trial Should I Begin Preparing My Trial Graphics? How to Get Great Results From a Good Lawyer and my absolute favorite in this trial preparation best-practices genre: 10 Criteria that Define Great Trial Teams If I had to summarize these articles, it would be simply that great trial attorneys prepare much earlier and much harder and with much more openness, communication and curiosity than merely good trial lawyers. They are comfortable with technology. They understand how to develop a courtroom presence. They practice relentlessly. I see it all the time.