80% of jury trials are won or lost in the opening statement. 80%!!!!!!
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.
Dr. David Schwartz is a founding partner of Innovative Science Solutions, LLC (ISS), a scientific consulting firm specializing in helping legal teams prevail in high-stakes litigation involving complex scientific principles. Dr. Schwartz has served as a consulting scientist to the legal industry for over 25 years and has provided support to cases involving environmental and occupational exposures, radiation, drugs, medical devices, dietary supplements, cosmetics, industrial chemicals. But over the course of the past several years, Dr. Schwartz has focused on the role of genetics as an alternative cause in toxic tort litigation. As part of a strategic alliance, ToxicoGenomica, Dr. Schwartz and other ISS consultants have been providing consulting support on asbestos and talc cases focusing on genetic evidence as an alternative cause of mesothelioma and ovarian cancer. In 2017, Dr. Schwartz (ISS), myself (A2L), and others co-hosted a pioneering conference on the subject of the role of genetics in civil litigation. Now two years later, I sat down with Dr. Schwartz to get a better understanding of how genetic science has evolved since then and how it is likely to change the way toxic tort cases will be litigated in the near future, specifically in talc and asbestos cases. Q: Give us a quick summary as to how genomic science will change toxic tort litigation. A: Modern medicine is advancing from broad-based treatment based on randomized controlled clinical trials to “precision medicine” where treatment is tailored to individual patients based on their genetic profile. Similarly, toxic tort litigation has been based on so-called black-box epidemiology studying large groups of people and trying to determine risk. We are bringing the field up to date by applying the tools of precision medicine to evaluate risk in toxic tort litigation. With genomics, we can directly ask if a person was born with genes that predispose them to develop a disease (like mesothelioma) instead of relying on statistical inferences from large populations. This is a watershed moment in toxic tort litigation. Q: Talc litigation is heating up. Last I read, there were 14,000 claims filed related to talc. Do you think genetic science has a role in talc litigation? A: Absolutely! Genetics provides a medically sound alternative cause argument no matter what the alleged injury: mesothelioma, lung cancer, ovarian cancer, lymphoma, autism. These conditions are all known to have well-established genetic underpinnings. If a defense lawyer can demonstrate that a plaintiff had a specific set of genetic factors, then it is legitimate to make the argument that the condition was caused by those factors. Q: What is a genetic mutation? A: A mutation, also referred to as a variant, is an error in the sequence of a gene that could drive specific types of cancer. A gene can have hundreds or thousands of different types of mutations. Some mutations have no known effect on a person’s life, while others will drive the onset of cancer. Q: If genomic testing is already being used in precision medicine, has that information ever been used for litigation purposes? A: Yes. Sometimes the genetic analysis at a hospital can be very informative. That’s especially true for cancer treatment at excellent cancer hospitals. Having the capability to review plaintiffs’ medical records for relevant genetic evidence will be a core skill set moving forward.
by Ken Lopez Founder/CEO A2L Consulting The best defense lawyers come to A2L with their toughest cases. This means that some of the cases that arrive on our doorstep are essentially unwinnable. Although the trial team won't often directly say so, they will say, “The client considers a plaintiff's verdict for anything between zero dollars and XYZ dollars a win." In these cases, typically, there is no good settlement position. Our company is highly focused on winning cases. We just love doing it, and it is central to our culture. So it can be a tough adjustment for our team and our clients when we have to accept that we're going to lose. Surprisingly, there is a real art to this. Here are the trial strategies we recommend when taking a case to trial and your goal is not to win, but to lose an acceptable amount of money. Test the case with a mock jury (to be sure you lose). All cases with sufficient dollars or issues at stake benefit from research in a mock trial process. This is true whether it’s a bench trial or a jury trial. Often, when you are listening to your mock panel deliberate, you hear a line of reasoning that may take your argument in a new and positive direction. See 7 Reasons In-House Counsel Should Want a Mock Trial and 12 Astute Tips for Meaningful Mock Trials and 6 Ways to Use a Mock Trial to Develop Your Opening Statement. Test the case with a mock jury (to know why you lose). It's often surprising to me how independent panels of mock jurors will reason through a case the same way. There are patterns common to almost all juries. However, it is actually helpful to hear multiple panels from a mock jury separately reason through a case and pick the same good guys and bad guys and apply the same set of values to decide the outcome. See 10 Things Every Mock Jury Ever Has Said and Webinar: 12 Things Every Mock Juror Ever Has Said.
by Ken Lopez Founder/CEO A2L Consulting Today, we are publishing our latest free book -- A Trial Lawyer's Guide to Jury Consulting and Mock Trials. This free 328-page book is based on the idea that even after some decades in which jury consulting has grown and established itself as a business, many lawyers still don’t necessarily understand what jury consultants do and how valuable they can be. Many lawyers probably still harbor the old idea that a jury consultant is just someone who sits next to a lawyer and uses a “gut feeling” based on a potential juror’s occupation, body language or appearance to ask the lawyer to exclude the juror or keep the juror. If that stereotype were ever true, it’s certainly not true today. We’re about as far now from the O.J. Simpson days 20 years ago as we are from the Perry Mason days. This book is dedicated to bridging whatever conceptual gap may remain between trial lawyers and jury consultants. It pulls together many of the lessons that jury consultants have learned, so that any lawyer who reads the book can get up to speed quickly and save herself a good deal of money and time. We have been dismayed at times at the disconnection between long-held myths held even by seasoned litigators and what the data show. Excellent trial strategies are the product of balancing art and science, data and wisdom, confidence and humility. Among the topics in this book are: 14 Places Your Colleagues Are Using Persuasive Graphics That Maybe You’re Not, Is Hiring a Jury Consultant Really Worth It?, Why Do I Need a Mock Trial If There Is No Real Voir Dire, 21 Ingenious Ways to Research Your Judge, 7 Videos About Body Language Our Litigation Consultants Recommend, 15 Things Everyone Should Know About Jury Selection and 6 Good Reasons to Conduct a Mock Trial. A good lawyer knows the law. A great lawyer knows the jury and how it works. Read this book and reflect on its contents to know more than most trial lawyers do. This book is based on hundreds of trials and years of data, not mere theory or presumption. We hope you enjoy it and share it. Please send us your feedback and let us know if you have any questions or comments, any time. If you have any questions about a case, a witness, a jury pool, a venue, strategic options or dilemmas, or think your case is unwinnable, we’re only a phone call/email away and would love to hear from you.
by Tony B. Klapper, (former) Managing Director, Litigation Consulting & GC, A2L Consulting and David H. Schwartz, Ph.D., Co-Founder, Innovative Science Solutions
by Ken Lopez Founder/CEO A2L Consulting If you can learn the secrets of how mock jurors commonly behave during mock trial deliberations, you will be better positioned to win at trial. These behavior patterns are understandably foreign since most people see mock juries deliberate infrequently. However, when you are a jury consultant, mock trials are routine, and repeat behavior patterns become clear over a long career. Surprisingly, it turns out that no matter where you go in the country, mock jurors tend to act in similar ways. Although there are venue-specific idiosyncrasies, mock jurors act quite similarly from locale to locale. If you understand the questions they almost always ask, the order of deliberations they usually follow and how mock juries address damages almost every time, you will be far ahead of almost all of your peers. We at A2L have put together a free 75-minute webinar, 12 Things Every Mock Juror Ever Has Said. It will be conducted live on December 9, 2014 at 1:30pm ET and is designed to share A2L's accumulated knowledge about mock jurors. Click here to register for it for free.
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.
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