The Litigation Consulting Report

Last month I wrote about trial technology lessons trial lawyers could learn from the impeachment hearings. In that article, I highlighted a (common) technology mistake one congressman made using PowerPoint as part of their effort to question a witness. As the impeachment hearings moved into the next phase in front of the Judiciary Committee,even more PowerPoint presentations were being used to help question witnesses. Unfortunately, since most of the members of congress are not routinely presenting and persuading with PowerPoint, they made many of the same litigation graphics mistakes that a novice trial lawyer might. PowerPoint is a funny thing. Anyone can use it (even trial lawyers, paralegals, and associates), but almost no one can use it well when persuasion is the goal. Since anyone can make a slide that looks pretty good, they often don't know they are damaging their persuasiveness in the process of creating a slide. In many trial presentations I see, lawyers who do their own work would have been far better off not using trial graphics at all. If you are an expert in the field (like the team at A2L), you know there are simply too many rules of psychology, technical challenges, and skill sets to keep track of it all -- unless you do this kind of work every day. We have written about this many times in articles like: 12 Reasons Litigation Graphics are More Complicated Than You Think 17 Reasons Why Litigation Consultants Are Better at Graphics Than Law Firms Trial Lawyers: Only Do What Only You Can Do In the judiciary phase of the impeachment hearings, I noticed the same kinds of mistakes were made over and over. Many relate to the most common type of litigation graphic -- the call-out. A call-out litigation graphic is one where a portion of a document is highlighted or magnified in someway to draw attention to some aspect of the document, often just some key phrases. We’ve written about best practices involving call-outs many times before: Should You Read Documents Out Loud at Trial? Font Matters - A Trial Graphics Consultant's Trick to Overcome Bias 3 Styles of Document Call-outs Used at Trial During a single day of hearings, I noticed at least five key problems that were repeated over and over. 1. Font size. The font size used throughout most of the hearings was generally not large enough. I try to encourage people not to let their font size dip below 28 points in PowerPoint. It’s a common rule that gets broken, but when you see your witnesses or jurors squinting, you know you’ve got an issue (as seen in the photo below). 2. Font Clarity. I think many call-outs are better when they are re-typed. Re-typing just makes the text more clear in most cases. I understand that many trial lawyers want a jury to feel that they are seeing the real document, but I believe this is best achieved by showing an image of the complete document and coupling that with a re-typed call-out in a font that matches the document. No one can read the tiny, fuzzy, and low-contrast text in the document call-out below when it is projected onto a screen. The designer would have been much better off showing the slide below, then highlighting, then doing a re-typed version of the text in a call-out that filled the screen.

Last week I shared A2L's top 10 articles of the year based on the visits of our 10,000+ subscribers. In those articles, there are many valuable best practices, useful war stories, and litigation consultant expert tips for trial lawyers and the professionals who support trial lawyers — particularly if you are interested in storytelling, jury consultants, litigation graphics, or trial technology/using hot-seaters. However, for as valuable as I know these articles are, I think other articles were published over the last year or two that may have been overlooked for one reason or another — and they should not have been. Sometimes the title doesn’t capture the attention of our audience. Sometimes the timing of the release of a particular article is terrible. Sometimes the news of the day simply competes with our publication, The Litigation Consulting Report. So in that light, here are six articles that I think are really exceptional and useful for every trial lawyer. I believe that when read together, they will improve the performance of both veteran and new trial lawyers alike. Here are six recent articles that every trial lawyer should read: Develop Your Trial Story – Sooner, Not Later: This article by veteran trial lawyer and senior litigation consultant, Alan Rudlin, explains clearly when one should develop their trial narrative. Obviously, the answer is suggested by the title, but hearing the rationale from such an experienced expert will help any trial lawyer prepare for trial more effectively. Great Trial Lawyers Behave Differently: Simply put, if the other 99% of trial lawyers really knew how the top 1% of trial lawyers prepare for trial, I believe the 99% would improve their trial prep. This article gets to the heart of the stark difference in trial preparation strategies. Netanyahu Persuades and Presents Better Than Most Trial Lawyers: While Netanyahu's fall from grace is noted, it takes nothing away from the fact that the PowerPoint presentation shown here was incredibly well executed. Every trial lawyer could learn something from it.

In recent months we have published lists of A2L Consulting's top articles related to various trial-focused topics. These articles include our very best insider tips plus 30 years of observed best practices pertaining to opening statements, mock trials, litigation graphics, and trial preparation generally. One additional topic that deserves special attention is the use of trial technology and how best to use a trial technician or hot-seater. As experienced trial professionals know (or even long-time readers of this publication), if you fail to use the right trial technology set-up or trial technician/hot-seater, you can inadvertently damage your credibility. In most cases, the benefits of using trial technology far outweigh any (easily mitigated) risks of doing so. Done well, the use of trial technology will create a deeper connection with the factfinder(s), it will speed up a trial, and you will be perceived as more credible and thus more persuasive. Below are 10 of our top articles focused on how to engage the right trial technician for you and how to work with that hot-seater to maximize persuasion at trial: 12 Tips to Hire the Right Trial Technician for Your Trial 11 Traits of Great Courtroom Trial Technicians E-Book: How To Find and Use Trial Technicians and Trial Technology

I’ve been in the litigation graphics consulting business for 30 years. In that time, I’ve witnessed technology transitions from printed trial boards to laser disks to PowerPoint and much more. However, the most important transition I’ve seen involves a shift in belief. Top-tier trial lawyers who once viewed litigation graphics as optional now understand they are essential. Note that I say “understand” rather than “belief.” That’s because the need for high-quality and well-designed litigation graphics is rooted in science, not in a belief system. Study after study in the last 50 years authoritatively prove that litigation graphics are a requirement -- not a luxury -- for effective persuasion. Even after 30 years and thousands of cases, I genuinely love trying to figure out how to make a complex or boring case interesting and understandable while using the latest in persuasion science to convince the factfinder(s) that our position is correct. I’m passionate about this work, and I enjoy writing about it. Below are the fifteen articles that I think are a must-read for every trial lawyer (and the trial team members who support them) who is serious about persuading judges and juries. I’ve added a few bonus webinars and books after the list. Read these and the articles linked to from these articles, and you’ll be a near-expert in litigation graphics theory and visual persuasion. 12 Reasons Litigation Graphics are More Complicated Than You Think 16 PowerPoint Litigation Graphics You Won't Believe Are PowerPoint 12 Ways to SUCCESSFULLY Combine Oral and Visual Presentations

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:

The opening statement is, in most trials, the most important part of the case. Here, biases are formed and overcome, attention levels will be at their highest, and up to 80% of jurors will make up their minds about who will win. Over three decades, A2L Consulting has supported the development of thousands of opening statements. It's where our trial-lawyer clients and we invest the most time and energy. Our work has typically included: the creation of persuasive PowerPoint presentations to accompany well-developed opening statements to; practicing and refining an opening statement 100+ times until it is perfectly delivered; testing versions of opening statements in a mock trial setting to help best plan the trial strategy. Our team is made up of trial lawyers, psychologists, litigation graphics artists, and hot-seaters. We see many of the world's best trial lawyers practice their craft on a regular basis. As I have always said and written about, Great Trial Lawyers Behave Differently. I often write about how their preparation is altogether different from an average litigator. When I do write about this topic, my goal is to cross-pollinate great techniques and ideas. This article is no different. I want to share some of what A2L has learned along the way both by watching great trial lawyers prepare for trial and by helping them do so. These best practices expressed in these top 10 articles/books/webinars about opening statements are unique. I hope you can put this information to use as you prepare for your next trial. How to Structure Your Next Speech, Opening Statement or Presentation 6 Reasons The Opening Statement is The Most Important Part of a Case 5 Things TED Talks Can Teach Us About Opening Statements

At some point in our lives, many of us, perhaps most of us, have assembled a piece of IKEA furniture. Whether it was for that first apartment, your vacation home, or your kid's dorm room, it's something of a right of passage. If you have done this assembly work with your significant other, it's often a test of the relationship too. IKEA furniture is inexpensive, in part, because of the way it is shipped and packaged. It is unassembled, it fits into a small package, and the purchaser must assemble it. The instructions that come with the products are notoriously complicated, although they are quite well designed. In recent years, IKEA has gone a step beyond the printed instructions of old. They now publish videos of how to assemble a product, and they are really quite good. Hearing someone complain recently about having to follow the printed instructions got me thinking about juror communications and best practices when it comes to preparing litigation graphics. Of course, right? Here are three ways IKEA assembly instructions and litigation graphics can be similar: The Worst: Having your significant other tell you what to do and how to assemble the product is a lot like a trial attorney lecturing a jury with no visuals at all. See, 6 Studies That Support Litigation Graphics in Courtroom Presentations. Okay: Following the printed IKEA instructions is a bit like watching PowerPoint slides prepared by a member of the trial team. They are well-intentioned but not nearly as helpful or persuasive as they could be. See, 12 Reasons Litigation Graphics are More Complicated Than You Think. Pretty helpful: Watching an IKEA-produced assembly video (see below) is a lot like watching a professionally prepared opening statement, closing statement or expert witness presentation created by a litigation graphics firm. See, Why You Need a Litigation Graphics Consultant.

I had a confounding call with a past client and litigator recently. He had worked with A2L nearly ten years ago early in his career on a related matter. He called to engage A2L and work with one of our graphic designers. On its face, it's a sensible ask. After all, in addition to our jury consulting work and our hot-seat/trial technology work, A2L is undoubtedly a, if not the premier litigation graphics consultancy. The reason I found this call surprising is that asking to work with an individual graphic designer on our team misses the entire value proposition of why a firm like ours exists in the first place. If all a trial lawyer had to do was hire a graphic designer to help prepare opening/closing powerpoint presentations and work with testifying experts to help simplify their message, law firms would be teeming with millennial-aged graphic designers ready to spring into action in advance of trial. Lawyers might even do the work themselves. But that's not how serious trial-focused firms work, and many have gone full circle to figure this out - from adding internal graphic designers to eliminating them entirely. Serious trial-focused law firms do not insource litigation graphics work because it simply doesn't work over the long term. Logically, it should, but it just doesn't, and I've spent 25 years in the industry learning why. The articles linked below offer dozens of reasons why this is true.

At A2L, we publish so many articles valuable to trial lawyers and litigation professionals that we like to share our very best periodically. Below are the top three articles (based on readership) published in the second quarter of 2019. Each has links that allow you to easily share the article on Twitter or LinkedIn. Top 3 A2L Litigation Articles Published in Q2 2019 1. 5 Valuable Lessons From Some Horrible Infographics 2. 10 Timely Tips For Trial Preparation 3. A Useful Directory of Federal Courtroom Technology

Working at A2L, I have the distinct pleasure of watching many of the world's best trial lawyers prepare for trial. Most start months or years in advance. Those lawyers engage A2L early to do theme testing with a focus group or to organize and run a mock trial. Each of these events requires the creation of litigation graphics and usually assistance in developing an opening statement. Having watched so many great trial lawyers prepare for 25 years, I have been able to observe patterns in how they prepare. Below I share ten chronologically ordered tips (plus accompanying resources) based on these observations. If you're less than one year from trial, I hope these tips are still helpful, and I hope you will get in touch with me. More than one year from trial: There is no better time to do theme testing then when discovery is still open. Read more in How Early-Stage Focus Groups Can Help Your Trial Preparation and as you start this journey, always remember that Great Trial Lawyers Behave Differently. One year before trial: Plan your first of two mock trials. There are dozens of good reasons to conduct a mock trial, but forcing yourself to prepare early may be the very best one. Read my one-year trial planning guide and read A2L's Opening Statement Toolkit. Also, it is a good time to read A2L's Jury Consulting and Mock Trial Handbook. Nine months before trial: Begin or continue development of your litigation graphics. If you conducted a mock trial, you already have a good start. Read How Long Before Trial Should I Begin Preparing My Trial Graphics?, 10 Reasons The Litigation Graphics You DO NOT Use Are Important and The 13 Biggest Reasons to Avoid Last-Minute Trial Preparation. Six months before trial: Refine your opening statement story and the visuals that will support it. Make sure your experts have their visuals being worked on by your litigation graphics team - not the in-house people at the expert's firm. Watch Persuasive Storytelling for Trial Lawyers and read Storytelling for Litigators. To help develop your experts, have them read this three-part series on How to Be a Great Expert Witness. Three months before trial: Conduct opening statement practice sessions with your trial team, litigation consultants, and your client. Read The First Version of Your Story Is NOT Your Best, 3 Ways to Force Yourself to Practice Your Trial Presentation, and Practice, Say Jury Consultants, is Why Movie Lawyers Perform So Well.

I speak and write often about the kind of mistakes that lawyers often make at trial in presenting graphics. Some of these critical errors include reading your PowerPoint slides, presenting overly dense and complex information, coupling low-contrast demonstratives with a low-quality projector, and even using fonts that are too small. All of these mistakes can radically reduce your persuasiveness. A2L articles like, The 12 Worst PowerPoint Mistakes Litigators Make, The 14 Most Preventable Trial Preparation Mistakes, and 24 Mistakes That Make For a DeMONSTERative Evidence Nightmare are valuable for any trial lawyer and will help you overcome many a pitfall. Most of our litigation graphics clients who hire A2L to help develop their opening, closing, and expert presentations, say during the creative process that “I'll know it when I see it.” Indeed, just as choosing from a number of demonstrative options is a helpful time and energy saver for most trial attorneys, there’s also no substitute for seeing a mistake to appreciate why it is bad. That's the spirit of this article. I recently found a small corner of the Internet that highlights terrible infographics, and there are many useful lessons here for trial lawyers. Let's review a few and hope they don't remind you of anything done by your team or litigation graphics provider. Use the Right Type of Chart Great design is not form over function. Instead, it is function first with beautiful form (see, Litigation Graphics: It's Not a Beauty Contest). While this chart above is interesting to look at, it's annoying from the perspective of quickly conveying information. As I wrote in a recent post, litigation graphics should be very clear AND very quickly understood. See, One Demonstrative Exhibit, One Concept. I think litigation graphics should generally be able to stand on their own without explanation and be understood in less than 30 seconds. This chart would be much clearer if presented as a column chart with the dates running chronologically from left to right along the bottom. One could emphasize the differences in ages by having the left side of the chart run from 50 - 75 instead of something like 0-100. We've discussed this chart “cheat” before in 5 Demonstrative Evidence Tricks and Cheats to Watch Out For.

In most years at A2L, we are in one or more courtroom-based trials every single day of the year. Increasingly, however, I’m seeing arbitration take the place of more and more trials. One recent article published by Law360 noted that the number of federal trials has dropped by nearly half and pointed to the increased use of alternative dispute resolution (ADR) as one of the reasons for that. While the lawyers who lead an ADR team are often the same lawyers who run trial teams, I have noticed that there is far less sophistication in the use of litigation graphics during an arbitration as opposed to a trial. In trial, whether a bench trial or a jury trial, most litigators find a way to use litigation graphics. They don’t always do it well and many hurt themselves by making what are obvious mistakes to experts like us -- but at least they are trying. In arbitrations, however, I see a lot of trial lawyers acting gun shy when it comes to the use of litigation graphics. In my experience, lawyers should be using litigation graphics at every single arbitration, and it doesn’t matter whether the arbitrator or the panel of arbitrators are expert on the topic.