The Litigation Consulting Report

For any trial lawyer, writing an opening or closing statement is one of the best parts of a trial. It lets us use our writing skills, speaking skills, and persuasion skills like no other moment of trial. I happen to believe that the opening statement is the single most important part of a trial.

Usually, the vast majority of the time that a litigation consultant will spend with a trial team focuses on jury selection, mock trials, witness preparation, opening statement and expert testimony. A litigation consultant will usually spend less than ten percent of his or her time in supporting a trial team in its development of the closing argument. This is very curious, because closing arguments are a critical part of any trial. They are the last words jurors will hear out of your mouth, and they are the punctuation mark on your case and the story you have developed.

Bullet points, especially when they’re found in PowerPoint slides, have become the cliché of the trial graphics and presentation worlds. There’s no good reason to use them, and plenty of reasons not to. For many, bullet points signal a boring presentation is about to begin or one is about to hear a presenter who, like someone on a vintage cell phone, is detached from modern presentation style. Bullets are not just aesthetically bothersome. The A2L Consulting trial graphics team, trained in cutting-edge theories of conveying information, believes that text-heavy presentations riddled with bullet points also do harm to the persuasion process. Garr Reynolds, a leading writer on the art and science of presentation, says in Presentation Zen, “Bullet-point filled slides with reams of text become a barrier to good communication.” Chris Atherton, a cognitive psychologist who has scientifically studied bullet points, writes, “Bullets don't kill, bullet points do.”

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).

What are the absolute best practices in the trial support industry? What lessons can be learned from decades of experience? Recently, three of A2L Consulting's top courtroom experts were interviewed about their combined 50 years of work in the industry. Those interviewed were Ryan H. Flax, Esq., Managing Director, Litigation Consulting at A2L and patent litigator who has contributed to teams winning more than $1 billion of jury verdicts; Theresa D. Villanueva, Esq., Director, Litigation Consulting, who has experience consulting on more than 200 cases and worked in litigation at a major law firm; and Kenneth J. Lopez, Founder & CEO of A2L, who has worked as a consultant with every major law firm. From their interviews, we culled 10 helpful tips for litigators and those who support trial teams.

Have you ever seen the President of the United States give a PowerPoint presentation? Probably not. But he's actually quite good at it, as you will see below.

In a previous article I told you about five surprises I found in moving from my previous position as an IP litigator to my current position as a litigation consultant. After a few more weeks on the job and a bit more day-to-day experience as Managing Director, Litigation Consulting for A2L, I find that there is another big surprise: the amount of thought, time and work that goes into each and every trial graphic.

I want our readers to be among the first to hear some good news and download a free copy of a useful guidebook. A2L Consulting was voted a Best Demonstrative Evidence Provider by the readers of the National Law Journal. We are very proud. It's the second time in less than a year we have been honored with a similar distinction. At the end of 2011, the readers of LegalTimes also voted and named A2L the Best Demonstrative Evidence provider. I believe that this guide just published by the National Law Journal is a valuable one to keep. We all know one thing about litigation: you only get one shot to get it right, and thus it is critical to hire the right support team. The NLJ's best of guide is a good guidebook for anyone looking to hire a litigation support firm or other legal services firm. Frankly, it's a credible reader-driven survey that's been missing for a long time. I think the NLJ's work is especially reliable and useful since over 450 companies were nominated and votes were only tallied for known members of the legal industry. Below is a link to download the guidebook. I hope you'll take a moment to leave a comment below or ask a question. Thank you for your support of A2L Consulting and The Litigation Consulting Report.

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.

These days, only a very few cases can be said to have an unlimited litigation budget, but some still do. As the amount at stake in toxic tort, technology patent and product liability cases soars into the billions of dollars, we do hear from clients that they must win at all costs. Indeed, at A2L Consulting, it is common for us to work on multi-billion dollar disputes. Thus far in 2012, we have already consulted on cases with over $30 billion at stake. In this two-part series, we share the menu of options available to a law firm and its client in situations at the opposite ends of the litigation consulting budget spectrum. What is possible when budget is not an issue, and what is possible when budget is severely constrained? By far the biggest difference between unlimited budget cases and limited budget cases is the amount of time that can be devoted to the discussion and testing of alternative strategies. There are three key areas of trial and pre-trial work: trial consulting, litigation graphics and courtroom technology support. A high-budget case can involve several trial consultants, a dozen or more artists, hundreds of demonstrative exhibits, several mock trials, months of work and an overall onsite litigation consulting and trial technology team with between four and 12 people.

At A2L, we have the privilege of working with experts in many diverse and highly technical fields, such as software patents, polymer patents, semiconductor patents, medical device design, environmental remediation, construction, financial disclosure, economic damages, transportation safety, corporate management and many more.

by Ryan H. Flax, Esq. (Former) Managing Director, Litigation Consulting A2L Consulting Ryan Flax joins A2L Consulting on the heels of practicing Intellectual Property (IP) law as part of the Intellectual Property team at Dickstein Shapiro LLP, a national law firm based in Washington, DC. Over the course of his career, Ryan has obtained jury verdicts totaling well over $1 billion in damages on behalf of his clients and has helped clients navigate the turbulent waters of their competitors’ patents. He has leveraged his significant experience in cases related to a wide array of technologies, including medical devices and systems, semiconductors, biotechnology, chemical engineering, mechanical engineering, software, and more. Most recently, Ryan was part of the Dickstein Shapiro team that brought 2011’s largest patent verdict totaling (so far) close to $600 million, which is also the 6th largest patent verdict in history (Bruce Saffran, MD, Ph.D. v. Johnson & Johnson et al.). It was during this experience that Ryan realized the excellent fit between his considerable expertise and skill sets as a patent law specialist, and his penchant for designing highly effective trial presentation materials through his collaboration with A2L Consulting. Ryan made the move to A2L Consulting to become A2L’s Managing Director, Litigation Consulting. Ryan earned his Bachelor of Science degree in Biology from Wake Forest University and his Juris Doctor degree from Southern Methodist University Dedman School of Law. Between his undergraduate studies and law school, Ryan was a Laboratory Scientist conducting DNA research at the R.J. Reynolds Tobacco Company.