by Ken Lopez Founder/CEO A2L Consulting Nearly 200,000 visits were made to A2L Consulting's Litigation Consulting Report Blog in 2015. With every page view, our readers express their opinion of the value of each article. Those that are the most valuable get the most page views. Today, I'm happy to share the very best articles of 2015 as chosen by our readers' reading habits. This year, we posted 90 new articles, and that brings our total blog library to nearly 500 articles. If you are involved in litigation or have to persuade a skeptical audience of anything, these articles are an incredibly valuable resource that are available at absolutely no charge. As we approach our five-year anniversary of this blog, I am very proud of our accomplishments. I'm excited to report that we now have 7,800 subscribers, some articles have been viewed more than 30,000 times, and the ABA named ours one of the top blogs in the legal industry. Not bad for our first five years. In 2015, these 15 articles below stood out as the very top articles of 2015. Articles focused on PowerPoint, litigation graphics, persuasion, and voir dire continue to dominate our readers' interest. Each of these articles can be easily tweeted or shared on Linkedin using the buttons below the article title. All are free to enjoy. I wish you the very best 2016, and here is a link to claim a free subscription so that you get notified when these articles are published. 15. How to Make PowerPoint Trial Timelines Feel More Like a Long Document 14. A Surprising New Reason to Repeat Yourself at Trial 13. Lawyer Delivers Excellent PowerPoint Presentation 12. With So Few Trials, Where Do You Find Trial Experience Now? 11. 5 Ways to Maximize Persuasion During Opening Statements - Part 1 10. How to Apply Cialdini's 6 Principles of Persuasion in the Courtroom 9. 9 Things In-House Counsel Say About Outside Litigation Counsel 8. Repelling the Reptile Trial Strategy - Pt 4 - 7 Reasons the Tactic Still Works 7. 10 Ways to Lose Voir Dire 6. Repelling the Reptile Strategy - Part 3 - Understanding the Bad Science 5. How Much Text on a PowerPoint Slide is Too Much? 4. Repelling the Reptile Trial Strategy - Part 5 - 12 Ways to Kill the Reptile 3. Repelling the Reptile Trial Strategy - Pt 2 - 10 Ways to Spot the Reptile 2. Repelling the Reptile Trial Strategy as Defense Counsel - Part 1 1. Why the Color of a Dress Matters to Litigators and Litigation Graphics
In today's rapidly evolving society, the composition of juries is constantly changing, mirroring the shifts in social dynamics. The advent of social media and its pervasive influence on our daily lives has brought about significant transformations in both jury selection and the conduct of voir dire.
by Maureen Vogel Litigation Graphics Artist A2L Consulting Before becoming an artist here at A2L Consulting, I was what you might call a typical graphic designer. I specialized in creating visual art, primarily for nonprofit organizations in the Washington, DC area. My primary focus was usually to visually convey a single important message with each graphic. I’d never concerned myself personally or professionally with the world of litigation. When I was a graphic designer, the software platforms Photoshop, Illustrator and InDesign were my standard canvas. However, as a litigation graphics artist, I usually stick to PowerPoint as the fundamental visual presentation tool. Although graphics may often incorporate visual concepts developed outside the PowerPoint platform, this is the foundation for presentation, and much of my artwork is now done in PowerPoint itself (and sometimes in Keynote for Apple devices). PowerPoint is a surprisingly powerful tool. In addition, I have noticed that there are quite a few differences between graphic design and litigation graphics art. Here are some of the differences I have observed that I find most interesting. 1. Color psychology is very important in litigation-focused graphics. Yes, color psychology is important in the graphic design realm as well. But in litigation graphics, using the wrong colors in court could offend your audience or negatively affect their mood. That would be a catastrophe. One example I’ve encountered at work was when the client asked me to change a list of people’s names on a PowerPoint slide from black to red. Red is a color we generally try to avoid in PowerPoint slides because it can increase aggressive feelings in audience members (jurors). Also, I had my own personal aversion to red; depending on the culture, the color red can also invoke very different emotions. For example, in Japan, my home country, writing a person’s name in red means that person will die soon. This would accordingly evoke a very specific emotion in the wrong audience. Because the client’s goal in changing the black font to red was simply to make it more visible and not necessarily to invoke feelings of alarm or aggression toward the people listed, we suggested a brighter blue font instead of red. Almost any color you can think of invokes a specific emotional response, so plan accordingly for your litigation graphics. A2L is looking for talented graphic designers! Read more here.
by Ryan H. Flax (Former) Managing Director, Litigation Consulting A2L Consulting Sometimes a trial graphic really does make the difference. We can’t say that in each case we’re involved in, a trial graphic likely won the case or played a major role in the win. We support some of the best lawyers in the country and they use the tools we provide to do what they do at trial. Usually we’re there to make sure they do the best they can do, but sometimes we provide that key image or animation (and the associated consulting input) that really clicks with a judge or jury and enables the win. Here’s a recent example. “Insert, Pivot, and Lock” This was a patent infringement case before the U.S. International Trade Commission concerning the connection mechanism between automobile windshield wiper blades and wiper arms – that little piece of plastic that might as well be a Rubik’s cube for most of us almost every time we need to change our wiper blades. Our client held several patents covering a very special wiper blade connector that was being ripped off by a competitor. To win at trial (final hearing at the ITC), we had to get the judge to agree to our way of understanding the rather verbose patent claim language covering what was a simple, although elegant, invention. Here’s an example of the claim language captured as an image from the patent: I’d say that this is a challenging read, whether you’re a judge, a patent attorney, or a fast food restaurant cashier. It’s pretty technically complex and rather long. Definitely “lawyery.” No doubt that it satisfies the legal requirements for claim language, but it almost takes one’s breath away. We needed to distill this language and the concepts behind it into something that was easily understandable, but we couldn’t be over-argumentative about it. Upon reading this claim language with the benefit of the rest of the patent’s disclosure and the reader’s own common sense, the invention had to seem simple (but elegant). With that understanding, how do you do it?
A former A2L jury consultant and Kenneth J. Lopez, J.D. Founder/CEO A2L Consulting Having conducted hundreds of mock trials and observed and polled jurors in hundreds of actual trials, we see the jurors asking the same questions over and over again – questions that the trial presentation should have answered. In view of that, here are five different subjects for trial graphics that are almost sure to answer some jurors' question in every case. They are so standard as scene-setters that they almost always have a place in a trial. Without them, triers of fact often feel as if they have come in after the movie started and that they can't rewind to get the answers. These five trial graphics fill in important blanks, prevent confusion, and create the foundation to tell your story, your way. Imagine the difference between being introduced to someone merely by name (“This is John Doe”), to whom you nod politely, but in whom you are unlikely to take interest -- and being introduced more fully (“This is Professor John Doe, who is in charge of research on meteors at M.I.T.”), whom you now likely have greater interest to get to know. 1. An organizational trial graphic or players chart showing the major players, their relationships, and their role in the case as you see them. A players chart answers questions like: Who initiated the relationship? What did each need or bring to it? Why? Who is in charge? Who did what? Who knows whom? What are the coalitions and who are adversaries? Who was a good or bad actor? A2L is hiring! Know a talented presentation designer for our DC headquarters?
by Lorraine Kestle Graphic Designer A2L Consulting The age-old adage that there are two sides (at least) to every story is clearly evident in litigation. Both parties believe that the applicable law, when applied to the facts, supports their position, or they likely would not be going to court. The parties and the lawyers are familiar with the facts and the law. Everyone fully understands the nuances of their position. Everyone, that is, but the judge and jury who are hearing the case for the first time. It is these “novices to the case” who will ultimately decide which version of the facts or story is most persuasive. For one day, I was a “novice to the case” in the courtroom as I helped our trial technician set up for a PowerPoint presentation in court. I observed both sides’ opening statements as well as the direct and cross-examinations. Although I have been in the courtroom on numerous occasions, I had no prior knowledge of the substance of this matter and did not work on this presentation. Our client, the plaintiff in this case, delivered an opening statement that was enhanced with a PowerPoint presentation, while opposing counsel relied on typed or handwritten notes and an easel with a large paper tablet. After observing both approaches, I came away with what I think are interesting conclusions about the effect that the PowerPoint presentation had on my understanding of the case, the attorney’s arguments, and my initial impression of liability. 1. An Increased Perception Of Preparation, Competence And Persuasion As a former paralegal, I know that preparation is one of the keys to success in litigation. And while I believe both sides were equally prepared, this was not the impression created in the courtroom by defendant’s counsel. What set the opening statements apart was the PowerPoint presentation used by our client. It served as a baseline of comparison for what followed.
by Ken Lopez Founder/CEO A2L Consulting In my last post, 7 Bad Habits of Law Firm Litigators, I wrote about the problems caused by litigators who, even when they have an adequate budget, design their own PowerPoint slides for trial. I've seen this result in: demonstrative evidence being excluded for using inappropriate tactics; demonstrative evidence being used for outright misconduct; opportunities being missed to use persuasion tricks of the trade; lawyers getting stuck in a chronological recitation of the facts; an overall lack of anything memorable or creative being presented; the use of out-of-date techniques like bullet points that damage credibility; and many other things that, as I said a few Halloween's ago, can lead to a deMONSTERative evidence nightmare. Well, there's new problem to add to this list of challenges faced by litigators who design their own slides, and it was just revealed by a brand new study conducted by the Missouri School of Journalism and the Washington Post.
by Ken Lopez Founder/CEO A2L Consulting
by Ken Lopez Founder/CEO A2L Consulting I want to share the results of an interesting study that I recently read. I believe that it has implications for how we present information in the courtroom. It appears in the October 2015 Journal of Experimental Psychology, and is entitled Knowledge Does Not Protect Against Illusory Truth. As experts in the persuasion business, we have long known about the power of repetition. We use it as a specific rhetorical technique during opening statements. We incorporate repetition when creating demonstrative evidence. We even choose to repeat the same message in many different formats (trial boards, PowerPoint, scale models) to reach different types of learners. We do this because repetition helps people remember things, it signals that something is important, and it helps presenters be more persuasive. Studies have long shown that the more we hear something, the more likely we are to believe it. This is why some people believe that Vitamin C helps stave off a cold or that you should drink eight glasses of water per day to maintain good health. Both of these statements lack any scientific basis. We've just heard them so often that many have come to believe them. Think about the assertions we are already hearing over and over in this election season. Hillary Clinton hid something in her email. Donald Trump declared bankruptcy four times. Carly Fiorina was a bad CEO. Planned Parenthood sells aborted baby parts. I don't know how much truth there is in any of these statements, but I do know that the more I hear them, the more I tend to believe them. That’s the power of repetition. Psychologists call this the illusory truth effect, and it's why we counsel our clients to use repetition throughout a case. When people don't know anything about a particular topic, the illusory truth effect tells us that the more they hear an assertion, the more they will believe it.
by Ryan H. Flax, Esq. (Former) Managing Director, Litigation Consulting & General Counsel A2L Consulting I’ve passed another anniversary at A2L Consulting and in my time as a litigation consultant I’ve been both surprised and reassured about the state of the litigation business and its players (I also wrote about my surprises upon beginning my career as a litigation consultant). I’ve seen both the very best and quite bad litigators in action and have consulted for both. Although some litigators don’t live up to my high standards, I’m impressed by many litigators as both professionals and people. Here are seven of my observations over these years that I think might help you in your practice. Many Lawyers Confuse Chronology With Storytelling It is almost universally accepted that storytelling is important to engaging an audience (including a jury) and that framing a client’s case as a compelling story is key to doing your best at trial, particularly in opening statements. But more often than not, when I ask a litigation team what their client's story is, rather than explain “why we’re really here” as they would to a jury and illustrate some conflict and emotionally valuable moral that is critical to juror engagement, they rattle off some chronological series of events that led to a legal injury to their client or some misconstrued relationship by the opposing party. These are not stories and presenting a case framed this way, while possibly interesting to a legal scholar, is not compelling to a juror. I’m surprised that so many smart litigators fall into the chronology trap and forsake emotional connection to engage jurors. I don’t advise pandering to a jury or excessive emoting by a litigator, but for a jury to care about you and your client and generate the stamina jurors need for a trial, litigators must tap into their emotional brains. This is not done by an information dump, a calendar, or using a lot of words. A story answers the question posed above – why are we here today, in this courtroom? A story also has all the stuff you learned in grade school: a beginning, middle, climax, and end, characters, setting, theme, and moral. Some Lawyers Focus Too Much on Too Small Things It’s easy for litigators (even more so for the associates doing the day-to-day stuff) to over-focus on every detail. The prospect of overlooking a potentially key piece of evidence or being surprised by an unknown fact exposed by opposing counsel is frightening for attorneys (it was for me), so we often wind up thinking way too much about every little thing in a case. This is called being “in the weeds,” and when you’re there it’s exceedingly difficult to escape without help. It happens with the selection of evidence, with witness prep, and even with the development of graphics, where sometimes counsel wants to very carefully think over every aspect, e.g., choosing what font style and color palette and slide aspect ratio will best work for their case. On each of these things, I urge counsel to take a step back and delegate where possible so they can focus on the BIG PICTURE. The best first-chair litigators do this naturally, and the rest of us need to do it deliberately. Attorney time and brainpower should be spent on figuring out what it will take to win. Let litigation graphics consultants decide what font works best for your opening statement presentation. It will be a relief when you do.
by Ken Lopez Founder/CEO A2L Consulting We have been publishing this blog for almost five years now, and we keep finding new and better ways to share our insights. Our free e-books are downloaded thousands of times per month, our webinars are viewed by hundreds, and every month, more than 200 new people subscribe to our blog. Today, we're announcing a new way for you to benefit from our valuable free content about litigation and persuasion — podcasts. As technology has advanced over the past 10 years, podcasts have moved from obscurity to mainstream. Briefly, a podcast is a type of digital media that is essentially a radio show that can be streamed online to a computer or mobile device. The term was invented in 2004 as a combination of the word “pod” for the iPod and the word “broadcast,” but podcasts can be accessed on any capable device, not just on the iPod. Here at A2L, we are kicking of our new Trial Tips Podcast by introducing three long-format podcasts. Each is an audio version of one of our webinars. These are not just any webinars, but our three most popular webinars. Storytelling in Litigation 12 Things Every Mock Juror Ever Has Said 5 Ways to Maximize Persuasion During Opening Statements You can start enjoying this content right now for free by clicking here to access our podcast directory.
by Ken Lopez Founder/CEO A2L Consulting Well, yes, of course they can. In fact, we are hired by them with some frequency. Let’s be specific. Our firm is just about 20 years old, and while our typical client is a medium-sized to mega-sized law firm, we work with a government entity every month of the year. Usually, our work is on behalf of some entity of the federal government, typically the U.S. Department of Justice or some other agency such as the Environmental Protection Agency. A typical large engagement for A2L Consulting would involve conducting several multi-panel mock trials that would help inform the development of litigation graphics, the jury selection, and the overall trial strategy. It would involve the development of litigation graphics for both sides of the case through the mock trial. It would also involve a full development of our side of the case, including the incorporation of storytelling techniques into the opening statement presentation. It would then involve a trial technician who would develop the database of video depositions and documentary evidence for instantaneous display. This is not what a government entity hires A2L for.
by Kenneth J. Lopez, J.D. Founder/CEO A2L Consulting Lawyers love words. Lawyers love words on slides - tons of words on slides. Some lawyers think that the more words they use on a PowerPoint litigation graphic, the better. They are wrong. Actually, using too many words on a slide will dramatically damage your effectiveness. This damage is not aesthetic in nature. This is not about your look and feel. It is scientifically proven damage that affects how well you inform and persuade your audience. Indeed, it can be said the higher your slide's word count, the lower your persuasiveness.
by Ryan H. Flax, Esq. Managing Director, Litigation Consulting & Gen. Counsel A2L Consulting
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