If you’ve been following our blog for a while, you may have let some amazing posts slip under your radar. With over 12 years of blog posts and an impressive 850 entries, it’s easy to miss a few hidden gems. That’s why we’ve compiled this curated list of captivating blog posts that deserve recognition.
80% of jury trials are won or lost in the opening statement. 80%!!!!!! If you lose to your opponent in opening statements, your chances of winning the case become very slim. Over the past 25 years, I have participated in the drafting of hundreds of opening statements. Sometimes, it's 20% me (and others) and 80% first chair trial counsel; sometimes, it's the other way around. No matter what, it is always a collaborative process. And it's one of the things I enjoy most about my job. Reflecting on these 25 years, I offer twenty-one tips for writing and presenting a winning opening: Simplify, simplify, simplify. The opening statement can’t be too simple. Many people say ninth grade is your audience, but I would suggest sixth grade. Since those of us in the legal industry tend to hang around smart people all the time, writing or speaking at that level is hard. The only way to do it, unless you happen to have a very patient sixth grader on hand, is through practice in front of a trial consultant. See Litigator & Litigation Consultant Value Added: A "Simple" Final Product Tell a story. We have many storytelling resources, specifically Storytelling for Litigators and The Opening Statement Tool Kit. My colleagues and I have spent years putting these FREE guidebooks together, and there's nothing else like them. See also 5 Ways to Maximize Persuasion During Opening Statements - Part 2 I am often asked how long my opening statement should be. I think your opening statement should be less than 45 minutes. Nothing is magical about that number, but I feel it's about as long as people want to pay attention to something. It's no accident that many shows and college classes are offered in 50-minute segments. When was the last time you didn't fidget with your phone during a full-length movie? Sidebar: I feel like there should be a list of movies that are easy to watch while playing on your phone.
I often talk about what not to do, but sometimes, I must remember to mention what you should do to achieve success at trial. In honor of leap year 2024, I have written this article offering 29 tips for successful trial preparation and execution. You can use this list as a checklist to compare yourself to your peers. I did not develop these ideas alone. Instead, they come from my experience working with the best of you over the past 30 years. 1. Conduct a mock trial. The very best litigators always conduct a mock trial when at least $10 million is at stake. Mock trials are a critical part of the Persuadius service offerings. If you want to discuss one, I invite you to email me (ken@persuadius.com) or call me (1-800-847-9330) or, ideally, fill out a client conflict check form by clicking the purple button in the upper right corner of this page. Only three people, including me, see those. 2. Conduct more than one mock trial. The ideal number is three, and that's precisely what I have observed the best trial lawyers do. It's not always affordable, but more than one mock is mandatory for cases with $25 million or more at stake. The only thing that varies is the investment in each mock trial. If $100 million or more is at stake, every mock should have every investment possible (i.e., a proper mock facility, a two-day or three-day mock, live witnesses, opening and closing statements, etc.). 3. Collaborate with litigation consultants who bring experience and insights to trial preparation. With a track record of handling hundreds of trials, we have witnessed exceptional and lackluster attorney performances. We aim to share valuable knowledge and advice, not lecture or boast about expertise. Drawing on the collective wisdom of countless cases, we strive to support you in crafting a solid and effective trial strategy. Litigation consultants can be exceptionally helpful when developing your opening statement. 4. Build a solid opening statement. In 30 years, I haven't seen anything to convince me that the opening statement is not the most essential part of the case. Some studies say that 80% of jurors make a decision about who will win after hearing opening statements. When done correctly, it should take months to develop an opening. It should be tested many times in whatever way your client can afford. We've written extensively about this. This topic is wonderfully covered in our opening statement toolkit ebook. See The Opening Statement Toolkit.
As a trial attorney, you know that the opening statement is the most important part of any case. It sets the tone for the entire trial and can be the difference between winning and losing. Crafting a compelling opening statement takes skill and practice, and one way to develop that skill is through mock trials. Mock trials are simulations of real trials that allow legal professionals to practice their skills in a safe and controlled environment. They are a valuable tool for developing the opening statement because they allow you to test different approaches and see what works best. Here are some tips for using mock trials to develop your opening statement: 1. Practice different approaches One of the benefits of mock trials is that you can practice different approaches to see what works best. Try starting with a strong statement of the facts, or opening with a rhetorical question that grabs the jury's attention. Experiment with different styles and see which one resonates with your audience. For example, you could begin your opening statement with a powerful anecdote that relates to the case at hand. This can immediately engage the jury and make them emotionally invested in the trial.
Our blog has been thriving for nearly a decade, accumulating over a million visits during this remarkable period. As we approach the official 10-year blog anniversary next year, we also celebrate the impressive 28-year milestone of our entire company. To stay in tune with our readers' preferences, we meticulously monitor the traffic of each blog post, enabling us to identify the crème de la crème. Without further ado, here are the top 100 most engaging blog posts from the past ten extraordinary years. 5 Questions to Ask in Voir Dire The Top 14 Testimony Tips for Litigators and Expert Witnesses Ways to Identify the Jury Foreman: Insights on Leadership and Influence Lists of Analogies, Metaphors and Idioms for Lawyers 14 Tips for Delivering a Great Board Meeting Presentation 15 Tips for Great Customer Service from the Restaurant Industry
Over the past ten years, we have written about persuasive storytelling more than any other subject. There are dozens of A2L storytelling articles, e-books, and webinars on the topic. A2L's most popular CLE/presentation is called Storytelling for Trial Lawyers. I have presented it at dozens of major law firms, PLAC, DRI, and other conferences. The subject matter is always well received. The reason we publish and talk so much about storytelling is that trial lawyers increasingly understand that being a superb storyteller is essential for maximizing persuasion. More and more scientific studies confirm this each year, and I think most of us understand this instinctively. Storytelling is how humans have always shared information in a memorable and persuasive way. While many great trial lawyers are naturally great storytellers, I know from experience that anyone can learn to become a very good storyteller. It's a challenging thing to learn, but it is possible with practice. In my talk on Storytelling for Trial Lawyers, I provide one framework for telling a great story known as the Pixar method. Every Pixar movie follows this format, and it works fantastically well for building an opening statement. I've written about Dan Pink discussing this topic in the past. However, that method that both Dan Pink and I speak about is actually culled from a list of 22 storytelling tips that a former Pixar employee published almost ten years ago. The original list can be found here, but I have modified that list to be trial lawyer-friendly and focused on the opening statement. In this form, I think it can serve as a useful checklist and guide for any trial lawyer preparing an opening statement. As we help other trial lawyers enhance their opening statements and opening trial presentations/litigation graphics, it is a tool that we use, and it works. I'd recommend coupling this list with some of our other publications about storytelling, especially some of these articles: Storytelling at Trial - Will Your Story Be Used? Portray Your Client As a Hero in 17 Easy Storytelling Steps Poor Litigation Character Development Will Yield Poor Results Are You Smarter Than a Soap Opera Writer? Ten Ways to Maximize Persuasive Courtroom Storytelling (Part One) A2L's 22 Rules for Litigation Storytelling in the Opening Statement - Adapted from Emma Coats' 22 Pixar Storytelling Rules Explain how the client tried and failed over and over. Keep in mind what’s interesting to the judge and jury, not what’s interesting to counsel. They can be very different. If you have a narrative and theme from the beginning great, but if you discover those along the way, go back and rewrite your opening statement with those in mind.
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:
by Alex Brown Director of Operations A2L Consulting I read an article today that can be applied to our industry so well that I thought I should apply its lessons. The article was written by Eddie Shleyner and is titled: How to Defeat Your Most Dangerous Writing Habit: 7 Ways to Lift 'The Curse of Knowledge' The article highlights the concept of being cursed due to knowing too much. The issue refers to someone who has studied a subject so thoroughly that it becomes difficult to explain it to people who don’t know as much about the subject. As an example, he discusses the book, Made to Stick, where the Heath brothers provide an example: “Think of a lawyer who can’t give you a straight, comprehensible answer to a legal question. His vast knowledge and experience renders him unable to fathom how little you know. So when he talks to you, he talks in abstractions that you can’t follow. And we’re all like the lawyer in our own domain of expertise.” Cognitive bias is what we are talking about. Shleyner notes that this is particularly dangerous to writers, since in conversation, a listener can ask questions to clarify the issue. But litigators, when giving an opening or closing statement, are in the same boat as writers since they are unable to ask or receive questions from their audience. So, how can you defeat this curse? Ironically, more knowledge is the answer. The more you know about the curse, the less likely you will succumb to it and the more persuasive you will be. Let’s take a look at his seven best practices to combating this curse and apply them to our industry. 1. Know your audience’s base subject knowledge. Jury Research. Focus Groups, Mock Exercises. Basically, you need to know your audience. Not only to know how they think, but why, what, who, where and the often forgotten wow. Learn how they think, learn the history to know why they think this way, but most importantly, figure out how to say it in a way that will wow them and be remembered. Like It or Not: Likability Counts for Credibility in the Courtroom 5 Reasons Why Jury Consulting Is Very Important Group Psychology, Voir Dire, Jury Selection and Jury Deliberations
by Ryan H. Flax, Esq. (Former) Managing Director, Litigation Consulting A2L Consulting In our two previous posts, we discussed two important roles that an opening statement can play: making you and your client appealing to the jurors, and telling a convincing story. Here are two other key functions for an opening statement.
by Elise Jefferson, MA A2L Consulting An intriguing and complex aspect of civil litigation is the use of damage awards as a means of achieving justice. This remains an inexact science; no one can predict the amount of money that a jury is going to award the plaintiff if liability is found. However, a good deal that is worth knowing has been learned about what goes into that decision. For example, studies have examined damage awards when jurors are asked to award a specific amount, as well as how jurors’ perceptions of the plaintiff’s motives for suing can affect damage awards. Although it can be difficult to predict how much money a jury may award, it is still important to consider the various theories that attempt to explain what influences jurors when determining damages. Following are four theories that reflect the current state of the art.
Twenty years ago in my trial advocacy class, we talked a lot about developing a theme for a case. We learned to say things in an opening statement like, "this is a simple case about right and wrong" or "no good deed goes unpunished."
Mock juries serve as a crucial tool for legal practitioners in their trial preparations. These simulated juries provide valuable insights into how your arguments will be received and offer opportunities for improvement. When conducting a mock trial, it is important to anticipate the questions and comments that your mock jury may have. Here are 11 common inquiries to be prepared for:
As a seasoned trial consultant with years of experience in the courtroom, I have witnessed countless closing arguments that simply failed to connect the dots. The closing argument is a crucial part of the trial process, as it provides the opportunity to tie up all the loose ends and present your case in a compelling and concise manner. A well-crafted closing argument can truly be the difference between winning and losing a case. In this blog post, I will delve deeper into why it is essential to tie up loose ends throughout the trial, starting from the opening statement.
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