As the second quarter comes to a close, summer temps are headed into the triple digits on the East Coast, the Supreme Court heads into recess after releasing the big healthcare decision this morning (actual healthcare opinion here in PDF) and vacation season kicks into full swing (with August being the month with fewest trials in the Federal Courts). The end of a fiscal quarter also means we will soon be drawing for a free iPad for one of our lucky subscribers (we do it every quarter). As we look back over Q2, let's take a moment to review the most popular Litigation Consulting Report blog articles of the quarter. I hope that you didn't miss one of these, but just in case you did, here they are with the most popular one first. Also, if you missed the release of A2L's BIG Litigation E-Book yesterday, you'll want to download a copy of that valuable 75-page book packed with litigation tactics (complimentary for subscribers to this blog).
We have discussed many situations in which a large company faces a court challenge from a smaller company, from the government, or from a class of consumers or purchasers. Sometimes, those situations will be “David v. Goliath” cases, in which the large company, usually the defendant, must step carefully during the trial to avoid being cast as the “heavy” with all the legal and other resources. Jurors sometimes don’t look favorably on a big company.
In Part 1 of this article, we discussed how to use litigation consultants to win a case when there are no budget constraints. Here in Part 2, we tackle the opposite end of the budget spectrum: how to best use litigation consultants when budget is severely constrained. The good news is that in any case that has more than $1 million at stake or is a possible example of pattern litigation, there is a litigation consulting strategy that can fit the budget and deliver high value, regardless of budget. While every case has different needs, and there is a big difference between bench and jury trials, here is a prescription for utilizing litigation consultants in a tight budget. The primary cost difference between a small litigation budget and a large litigation budget will be the amount of time spent on testing and varying strategic approaches to the case. In a tight budget scenario, rather than relying on feedback from mock jurors and judges to help guide which themes to emphasize and the best ways to explain elements of the case, you will likely have to rely heavily on gut instinct. Of course, that is not always a bad thing.
After a year of providing expert commentary on trials, litigation graphics, jury research, courtroom hot seat best practices and similar topics, I think it’s time to take stock.
by Ken Lopez The task of a trial lawyer is to convince a judge or jury to believe in the truth of a client’s case. However, in many complex trials, the underlying facts are not as easily understood by the fact-finder as they would be in, say, a murder case or a traffic accident. A case, especially the type of litigation that we are involved in, often turns on complex issues of science, medicine, engineering, or some other subject that jurors and many judges are not well versed in.
We often hear from clients or prospective clients that it won’t help them if they look like a big company that is attempting to overwhelm or dazzle its opponents with technology. Jurors won’t buy that sort of stuff, we are told, even from a litigant that is actually a large company.
The choice of a trial graphics firm is one of the most important decisions that a trial lawyer can make. Since experts widely agree that about two-thirds of jurors and many judges prefer to learn visually, it can literally make the difference between winning and losing your case. However, many lawyers still use the wrong approach to the selection of a trial graphics consultant. For example, they may choose a provider based on familiarity (“I know someone who does graphics . . .”), price (“the client has a tight budget . . . “), or proximity (“they’re right around the corner . . . “). There are better ways to choose a consultant. Think of hiring a trial graphics provider as similar to the hiring of an expert witness. If you are hiring an expert witness, you are delegating a portion of the case to someone who has specialized knowledge and experience that you may not. You would hire an electrical engineering expert witness to discuss the workings of a patented device. Similarly, you should hire a trial graphics provider, who is an expert in the field of information design, to create effective trial graphics for your case.
Very often, trial lawyers face what feels like an impossible dilemma. The case that they want to present is extremely complex, intensely tedious or worse yet, both.
Learn why the work of the father of group psychology from 70 years ago is so important to the leadership of a modern trial team. Stories about a trial team breaking down at or just before trial are legendary. The breakdowns are typically triggered by some event that creates anxiety that then causes the team to engage in one of three progressively severe sets of behaviors:
This article is an excerpt from a longer article and e-book available for free download by clicking here
As litigation has become more complex and technology has advanced over the years, a new profession has emerged – that of trial technician. This profession is relatively new in the legal marketplace, so much so that the title still varies considerably: These individuals can be called trial consultant, courtroom technology specialist, hot seat operator or simply trial tech. By any name, trial technicians perform three key litigation tasks: Organizing and preparing documents, video and other evidence to be used at trial. Setting up the war room and courtroom electronics consistent with local court rules. Running the trial presentation software and equipment during trial so that trial counsel can see any document, video or exhibit on a momentʼs notice and so that the presentation runs so flawlessly that the fact-finder focuses only on the evidence, not the method of presentation. Excellent trial technicians are not easy to find and are rarely available on short notice. Animators at Law has offered trial technician services to litigation teams around the world since the mid-1990s. This article summarizes some of what we have learned in 16 years, but, for a more comprehensive 20-point pre-engagement checklist, I encourage you to download our free whitepaper: 20 Things You Must Know Before Engaging Your Next Trial Technician, Trial Consultant or Hot Seat Operator. There are several key considerations to appreciate when hiring a trial tech for your next litigation matter. First, quality varies widely, as does price. One should expect to pay between $125 and $400 per hour with an average rate of $200 per hour. Hours worked per day will usually be between 10 and 20 during trial. To help trial teams manage cost predictably, our firm recently pioneered flat rate pricing for trial technician services. In selecting a trial tech, there is no substitute for real courtroom experience. Experienced trial techs have survived technology failures, power failures and weather-related failures many times over. Great trial technicians have successfully run dozens or hundreds of trials and hearings and can provide the names of those cases and names of the attorneys involved. When interviewing, as you would for any vendor, check at least three references. Great trial technicians are often in the center of the court but are never the center of attention. Part of the trial tech’s skill set must be an ability to comfortably disappear into the background. When he or she is doing the job right, no one is looking at him or her. Outstanding trial technicians must be true Renaissance technology people. Not only must they be able to authoritatively run the latest versions of trial presentation software like Sanction or Trial Director, they must be able to sort out complex versioning issues with PowerPoint, diagnose hard drive problems, mass-rename files, handle unheard-of image formats and much more. Again, experience makes the difference. For more information about this emerging profession and a pre-engagement hiring discussion checklist, see our free downloadable article offering a 20 point trial technician skill set and trait guide. Trial technicians add an enormously disproportionate amount of value to a trial team with the budget to hire one. Instead of focusing on the availability of documents and evidence, the proper functioning of courtroom and war room technology and overcoming technological hiccups in real time, litigators can focus on careful strategic trial preparation of arguments, experts and witnesses. With some carefully planned discussions, litigation teams evaluating the addition of a trial technician to the courtroom support team can virtually guarantee success.
I have had the great pleasure of working closely with hundreds of world's best litigators since 1995. One common theme they communicate is that they see simplifying their case, prior to walking into the courtroom, as part of their job. Today, I am writing to share about a 'new' tool designed quite precisely for this purpose. The new tool is a modern software version of a decades-old technique modeled on centuries-old principles. In general this tool facilitates the visualization of complex and interrelated ideas. Specifically, I am talking about a process called mind mapping. Mind mapping is a 60s-era-sounding term for an activity that seems, at first glance, like it must have certainly been born on the left-coast. In a sense, both of those things are true. It was in fact developed in the era between the 50s and 70s, and it was born on a left coast of sorts. However, this 'left coast' is really the western suburbs of London. Regardless of mind mapping's nonconformist origins, I believe it has a place in the toolkit of the modern litigator. After all, many thought-leading litigation trends were born in California or places like it (e.g. demonstrative evidence, jury research, courtroom animation, etc.). A small version of a 30 inch x 90 inch litigation mind map is shown below. I encourage you to download a full-sized .pdf version of the actual chart to get a feel for how it is laid out. This sample mind map is based on a group of cases where we have used mind mapping as a system for quickly understanding a complex case in a short period of time, brainstorming a trial presentation approach and laying out specific exhibits. In this chart, green circles represent likely demonstrative exhibits, red boxes represent problems with our case that require additional strategic attention and the yellow boxes contain the background information on the case, trial team and strategy. The same approach we take for trial graphics development can easily be taken by a trial team organizing a complex case with many experts, theories and potential trial strategies. In addition to the obvious organizational benefits, the beauty of using this approach is just how easily one can pick up where one left off. I have gone a month or more between deeply complicated meetings and been able to start precisely where we left off without spending time trying to re-teach the team everything that was discussed weeks or months before. This is one of those benefits that I think one has to experience to believe. While litigation-specific tools do exist that offer a some of the features in today's mind mapping software, I prefer using a flexible tool that works very well. I have used two products: 1) Tony Buzan's iMindMap (he is considered the father of modern mind mapping); and 2) Mindjet's MindManager. I prefer the latter, as I find it to be a bit more business-oriented. When working with our firm on trial presentation strategy, we will likely be using mind mapping either internally or overtly. However, we are interested in testing this approach with a trial team at the front-end of a case rather than within the time period we are more typically consulting with the trial team (6 months prior to trial). If you would be interested in testing this technique with your trial team, we are willing to do so gratis for a limited number of trial teams working complicated cases with at least $10 million at stake. The output will be a wall chart for your team that you can refer to on an ongoing basis.
Daniel Pink's 2005 bestseller A Whole New Mind changed the way business leaders thought about the future. His futurist thinking of six years ago presciently describes the current economic transition the U.S. is facing. He also gave business strategists a vocabulary to discuss the emerging conceptual economy, and he inspired young business minds to focus less on traditional and easily outsourced MBA studies and focus more on deeper problem-solving business pursuits. Most importantly, he highlighted our firm, Animators at Law (now A2L Consulting), as an example of one of those companies already living in the conceptual economy.
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