The Litigation Consulting Report

A former A2L jury consultant and Kenneth J. Lopez, J.D. Founder/CEO A2L Consulting Having conducted hundreds of mock trials and observed and polled jurors in hundreds of actual trials, we see the jurors asking the same questions over and over again – questions that the trial presentation should have answered. In view of that, here are five different subjects for trial graphics that are almost sure to answer some jurors' question in every case. They are so standard as scene-setters that they almost always have a place in a trial. Without them, triers of fact often feel as if they have come in after the movie started and that they can't rewind to get the answers. These five trial graphics fill in important blanks, prevent confusion, and create the foundation to tell your story, your way. Imagine the difference between being introduced to someone merely by name (“This is John Doe”), to whom you nod politely, but in whom you are unlikely to take interest -- and being introduced more fully (“This is Professor John Doe, who is in charge of research on meteors at M.I.T.”), whom you now likely have greater interest to get to know. 1. An organizational trial graphic or players chart showing the major players, their relationships, and their role in the case as you see them. A players chart answers questions like: Who initiated the relationship? What did each need or bring to it? Why? Who is in charge? Who did what? Who knows whom? What are the coalitions and who are adversaries? Who was a good or bad actor? A2L is hiring! Know a talented presentation designer for our DC headquarters?

by Ken Lopez Founder/CEO A2L Consulting Well, yes, of course they can. In fact, we are hired by them with some frequency. Let’s be specific. Our firm is just about 20 years old, and while our typical client is a medium-sized to mega-sized law firm, we work with a government entity every month of the year. Usually, our work is on behalf of some entity of the federal government, typically the U.S. Department of Justice or some other agency such as the Environmental Protection Agency. A typical large engagement for A2L Consulting would involve conducting several multi-panel mock trials that would help inform the development of litigation graphics, the jury selection, and the overall trial strategy. It would involve the development of litigation graphics for both sides of the case through the mock trial. It would also involve a full development of our side of the case, including the incorporation of storytelling techniques into the opening statement presentation. It would then involve a trial technician who would develop the database of video depositions and documentary evidence for instantaneous display. This is not what a government entity hires A2L for.

by Ryan H. Flax (Former) Managing Director, Litigation Consulting & General Counsel A2L Consulting In our last post in this series, we explained why storytelling is the key to gaining and keeping the attention of any decision maker and thus the key to winning before trial. How does one develop an effective story? Here are the rules of thumb. First, the simpler the story, the better, and the simpler the language, the better. Use metaphors involving sensory descriptions. Reduce the facts to a relatable story, and use “word pictures.” The complete package of storytelling is not just an oral telling of a story; it also involves necessary visual persuasion. Studies show that at least 60 percent of people learn primarily by seeing. They are visual learners.

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 Persuadius I love great design. While it is becoming somewhat more common than it used to be, it’s still rare – and it’s even rarer in the courtroom. To be clear, my definition of great design includes everything from an interface like what one sees in a Tesla to the adaptive reuse of a historic structure to a well-crafted litigation graphic that tells a story clearly and without the need for further explanation. One place we don't expect to see great design is in parking signs, when we are parking the car and trying to figure out where to park and where not to park. I live in Washington, D.C., where they have some signage that would seem to violate every principle of great design. This one pictured here is a classic, and you probably have some just like it in your town. Does that look familiar? Well, one pilot program in Los Angeles is trying to change all that and make parking signs inspiring from a design perspective. Each sign contains a simple chart that is immediately clear to almost anyone. Green and red overlaid with symbols helps provide a clear message. Here’s an example below.

I spotted an interesting blog post over the weekend that criticized a New York Times article about the Israeli-Arab conflict for using charts and data in a misleading way. I've written about cheating with charts before in several articles, but my 2012 article, 5 Demonstrative Evidence Tricks and Cheats to Watch Out For, in particular, offers some good lessons and has been read by thousands of people. Although it is taken from a very different context than courtroom litigation, the blog post about the Middle East and the Times contains good lessons for both offense and defense when it comes to creating or refuting litigation graphics. The authors levy five key complaints against the New York Times article and its use of graphics to support a narrative.

by Ken Lopez Founder/CEO A2L Consulting I love a good trial timeline whether it's a printed large-format trial board or whether it's in PowerPoint form. This goes for my colleagues here at A2L, as well. In fact, we love timelines so much that we've even produced a book with more than 30 types of trial timelines illustrated. Timelines are used as demonstrative evidence in just about every trial. They serve an obvious purpose of orienting judge and/or jury to the order of events and how those events relate to one another. It's the one exhibit that helps make sense of it all, particularly in a complex case. As our trial timine book discusses, a timeline does not have to be limited to simple chronologies. In fact by incorporating graphs, photos, color schemes and more, a timeline can transmute from being simply informative to being quite persuasive.

by Ryan H. Flax (Former) Managing Director, Litigation Consulting A2L Consulting We strongly advocate that counsel must use a visual presentation to support his or her oral argument at trial (and anywhere they need to be persuasive). This most commonly happens during opening statements and closing arguments at trial and the dominant format for such presentations is PowerPoint – a very good tool. However, like cutting your own hair or doing your own dental work, we must again caution you that you must really know what you’re doing because your case may depend on it. On January 22, 2015, the Supreme Court of the State of Washington published its opinion in State v. Walker, overturning the State Prosecutor’s conviction of an accused murderer because the attorney went too far with his demonstrative evidence in closing. A murderer has potentially been freed because, in the Court’s view, counsel was inflammatory in his presentation and “appealed to passion and prejudice” of the jury. Certainly as zealous advocates we do want to appeal to the passion of jurors on some level. We need their emotions to be in sync with the law and evidence, but what might be too much so as to prejudice the proceedings? Let’s explore the Washington Supreme Court’s opinion to see.

by Ken Lopez Founder/CEO A2L Consulting A successful trial lawyer is one who is able to persuade a jury or judge of the truth of his or her client’s case. In order to do that, a lawyer must connect with people on an emotional level. The only way to do that is to tell a compelling story. Stories are the way in which people learn and the way in which they organize reality. Law school may prepare lawyers to build a case around the law, but it doesn’t teach the science or art of persuasion. Sitting in a jury and analyzing evidence is likely one of the most complex things a juror will ever do, so you need to make it easier for them and as entertaining as possible. You need to hook them early and keep them engaged.

by Ken Lopez Founder/CEO A2L Consulting

by Ken Lopez Founder & CEO A2L Consulting