This is by far the most important e-book we have ever launched, setting a new standard in the industry with its unparalleled depth and breadth. Spanning an impressive 559 pages, it encompasses nearly everything we know about the art of persuasion through trial graphics and litigation graphics. I am beyond excited to introduce this revolutionary book for 2024. The book is titled Winning With Trial Graphics and Litigation Graphics: A Trial Lawyer's Handbook, and I am thrilled to unveil it to trial attorneys and their support teams. This e-book is an updated edition of our highly acclaimed 2014 version, which has set the benchmark in the industry for the past decade. In this new release, we’ve enriched the content with over 100 fresh articles on trial graphics, litigation graphics, storytelling, and the science of persuasion, making it an invaluable asset for legal professionals. You can download this 559-page book without any obligations by clicking here.
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
and Dan Regard, CEO/Founder, iDS As seasoned litigation consultants with law degrees, Dan (a testifying forensics expert and CEO) and Ken (a trial consultant, trial graphics expert, and CEO) have witnessed firsthand the striking distinctions between expert witness graphics and trial graphics. While these graphic types may appear similar, these types of graphics serve entirely different purposes in the legal realm. Let's delve into seven ways in which expert witness graphics and trial graphics diverge: 1. Inform vs. Persuade. Expert witness graphics are meticulously crafted to illustrate expert testimony, whereas trial graphics are strategically designed to present evidence before a jury. Expert witness graphics aim to inform the audience about complex scientific or technical concepts and provide visual clarity to the expert's testimony. These graphics are often created by experts who have in-depth knowledge and expertise in their respective fields. On the other hand, trial graphics are created by litigation artists working with litigation consultants, who focus on presenting the evidence in a persuasive and visually appealing manner to the jury. They simplify the information, ensuring it is easily comprehensible for laypeople, and aim to persuade the judge or jury of the client's position. They can (and do) take poetic license with the substance and may leverage analogies, caricatures, and even slight exaggerations to emphasize a point. 2. Experts create both. Typically, expert witness graphics are created by the very experts themselves, leveraging their knowledge and expertise in the subject matter. These experts have a deep understanding of their field's technical details and intricacies, allowing them to create graphics that effectively convey and simplify complex information. On the other hand, trial graphics are often entrusted to the expertise of graphic designers working in concert with litigation consultants. These professionals have a firm grasp of visual communication and design principles, enabling them to create visually compelling graphics that enhance the presentation of evidence in the courtroom. They collaborate closely with the legal team to ensure the graphics align with the trial strategy.
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.
At A2L, we publish so many articles about litigation and trial preparation that I like to share the best of the best periodically.
I’ve been watching the baby powder/talc trials closely for the past several years. They feature some of the world’s best lawyers, and they are pushing the boundaries of scientific evidence. For anyone in the litigation business, the talc trials, as well as the trials involving the alleged cancer-causing properties of Monsanto’s herbicide Roundup, form a fascinating window into how big-ticket cases are being tried right now. In both lines of cases, plaintiffs are showing early dominance, and I think the defense accordingly needs to adjust both how it handles demonstrative evidence and how it deals with scientific evidence. Interestingly, both of these types of trials can be watched on the Courtroom View Network (CVN). I have long advocated that trial attorneys should be watching other trial attorneys on CVN because there’s almost no other way to see today’s great lawyers in action. In the most recent talc trial, famed plaintiffs lawyer Mark Lanier of Houston took on Johnson & Johnson, which makes talcum powder products. He asserted that his clients, 22 women who used the products, were exposed to asbestos found in talc and that this exposure caused them to contract ovarian cancer. The case is notable for many reasons. The result was certainly remarkable as this past July, plaintiffs were awarded nearly $4.7 billion in damages by a jury in a Missouri state court. The case is also one of the most high-profile cases to utilize genetic evidence. And that aspect was particularly interesting to me as this is an area that A2L and its partners at Innovative Science Solutions have been discussing for the last couple of years. We even held a conference on the topic of the use of genetic evidence in civil litigation. So let me discuss two aspects of this case. First, while I am not an expert in analyzing genetic evidence in civil cases, I do understand how to use it and how to present it. In this case, the defense was clearly reluctant to use genetic evidence, and it only lightly cross-examined plaintiffs’ genetics expert. I don’t know for sure, but I’ll speculate that like other defendants, Johnson & Johnson may have feared that by presenting genetic evidence as a defendant it would position the plaintiffs as a so-called eggshell plaintiffs, making liability easier for plaintiffs to prove. See takeaway #6 in this article where we discuss why this thinking is specious. Whether or not defendants were concerned about the role of genetics in conveying to the jury that these may be eggshell plaintiffs, Lanier appeared to adopt this approach anyway. He utilized genetics to affirmatively allege that the plaintiffs were especially vulnerable to the effects of talc. This highlights an apparent growing trend of the plaintiff utilizing genetics to demonstrate plaintiff susceptibility to alleged toxins and a need for the defense to effectively address and rebut this assertion. I haven’t seen that tactic before. and similarly situated defendants must get ready for this tactic in other cases. A good place to start would be talking to my friend and frequent collaborator Dr. David Schwartz at Innovative Science Solutions who is doing pioneering work with the group ToxicoGenomica. The second element of this trial that I found fascinating was Lanier’s use of demonstrative evidence. In most big-ticket litigation demonstrative evidence is exchanged a day or so before it is used, to allow for objections to be made. Clearly, Lanier has figured out a workaround by drawing (or having his colleague draw) a highly prejudicial demonstrative that for whatever reason the defense did get excluded. It's the featured picture in this article, but let me show you what I mean in this clickable video clip and transcript below from our friends at CVN. Here Mark Lanier perfectly combines the eggshell plaintiff approach with an objectionable piece of demonstrative evidence to powerfully drive a point home. His message is that some people are genetically more susceptible to cancer-causing agents like asbestos and that Johnson and Johnson and their baby powder products pushed plaintiffs over the cliff where cancer happens. Other free A2L Consulting resources related to genetics in civil litigation, litigation graphics, and demonstrative evidence include: With So Few Trials, Where Do You Find Trial Experience Now? 7 Key Takeaways from the Genetics in Civil Law Conference Free slide decks from the Genetics in Civil Law Conference Free E-Book: The Litigator's Guide to Combating Junk Science - 2nd Edition Repelling the Reptile Trial Strategy as Defense Counsel - Part 3 - Understanding the Bad Science The Importance of Litigation Graphics in Toxic Tort Litigation 10 Key Expert Witness Areas to Consider in Your Next Toxic Tort Case Free Download: Using Science to Prevail at Trial or As an Advocate 7 Reasons the Consulting Expert is Crucial in Science-Based Litigation Using Trial Graphics & Statistics to Win 12 Questions to Ask When Hiring a Trial Graphics Consultant Repelling the Reptile Trial Strategy as Defense Counsel - Part 1 Teaching Science to a Jury: A Trial Consulting Challenge 5 Valuable (and Free) Complex or Science-Focused Litigation Resources Winning BEFORE Trial - Part 3 - Storytelling for Lawyers
If you're one of the nearly 10,000 long-time readers of this litigation consulting blog, you know that periodically, we list the recent articles that have proved the most popular. We measure popularity based on the number of times an article has been read, so these really are reader rankings. In today's article, I want to do something a little different. This time I'm listing not only the top three articles of the last quarter but also the current top three articles of all time (since 2011 when we started writing this blog). In a particular quarter, the top article may see a few thousands of individual readers reading it. However, an article on our blog for five or more years may see tens or hundreds of thousands of readers. Consistently, topics related to jury selection rank higher than those related to litigation graphics. I think this is because litigation graphics tend to be used primarily in large civil cases, whereas jury selection occurs in large and small cases and in both criminal and civil cases. These top articles should be interesting to many different types of readers. If you are interested in presenting at trial most effectively, the Netanyahu article should be studied carefully. If you participate in jury selection or hire people who do this kind of work, the voir dire article is a foundational piece. Top 3 Articles of Q2 2018: Netanyahu Persuades and Presents Better Than Most Trial Lawyers What Steve Jobs Can Teach Trial Lawyers About Trial Preparation How Much do Jury Consultants, Litigation Graphics, and Hot-Seaters Cost -- Honestly? Top 3 Articles Since 2011 (the life of our blog, The Litigation Consulting Report): 5 Questions to Ask in Voir Dire . . . Always The Top 14 Testimony Tips for Litigators and Expert Witnesses 10 Ways to Spot Your Jury Foreman
Forty years of research about the psychology of human memory has shown that our memories are far from perfect replicas of the events that they purport to describe. Eyewitness accounts, in particular, have been proved unreliable – with a profound impact on the value of courtroom testimony. Thousands of criminal convictions have been based on identifications and accounts later shown to be incorrect. Human memory is malleable -- it is affected by a number of factors that can modify it or distort it. It is well known that people can be induced to remember and to sincerely believe episodes from their past that never actually happened. This presents a difficult task for the trial lawyer. It’s not just criminal cases that turn on witnesses’ recollections of events. Most civil cases also rely on witnesses, and subjective assessments of witness credibility. Before a lawyer decides to put a fact witness on the stand, he or she needs to have some sense of how reliable that witness will be. Here are three suggestions, based on research by forensic psychologists, for the trial lawyer who wishes to assess the likely accuracy of a witness at trial. Ask the witness how confident he or she is about the planned testimony. There can be a significant relationship between how confident a witness is of his or her testimony and the likelihood that the testimony is accurate. The trial lawyer should ask the witness for a “confidence statement.” Is the witness 90 percent sure that this is what happened? Only 60 percent sure? The answer will help the trial lawyer decide how much weight to place on the witness’s testimony, or even whether to call him or her to the stand at all. Have the witness write down the key details of what he or she saw or heard. Details that are written down soon after the event are likely to be more accurate. The sooner a memory is recorded, the smaller the chance that it will be warped by hearing the accounts of others. In a civil case, it may have been months since the events in question occurred, but it still helps to ask the witness to write everything down, in his or her own words. Do not discuss the testimony with the witness too many times. Sometimes, if a witness is over-rehearsed, his or her testimony will harden to a point where it becomes rote and projects a confidence in details that is not really justified. It’s no surprise that sometimes witnesses say that they are “absolutely sure” of their testimony because they have been asked to repeat it on countless occasions before the trial. So keep to a minimum the number of times that the witness is asked to repeat his or her story. Other A2L free resources related to witness preparation, expert witnesses, and the science of persuasion include: Witness Preparation: Hit or Myth? The Top 14 Testimony Tips for Litigators and Expert Witnesses 3 Ways to Handle a Presentation-Challenged Expert Witness 7 Smart Ways for Expert Witnesses to Give Better Testimony Contact A2L about witness prep services performed by industry-leading consultants Free Download: Storytelling for Litigators How jurors evaluate expert witnesses vs. how lawyers do Witness preparation best practices - don't stay in the shallows! A2L Consulting Voted #1 Jury Consulting Firm by Readers of LegalTimes 7 Things You Never Want to Say in Court How NOT to Go to Court: Handling High Profile Clients No Advice is Better Than Bad Advice in Litigation Practice, Say Jury Consultants, is Why Movie Lawyers Perform So Well Webinar - Integrating Argument and Expert Evidence in Complex Cases Walking the Line: Don't Coach Your Experts (Re: Apple v. Samsung) 3 Articles Discussing What Jurors Really Think About You
by Tony Klapper (former) Managing Director, Litigation Consulting A2L Consulting In our last post, we discussed why expert witnesses should rely on visual aids and litigation graphics in preparing their testimony. Another key point for expert witnesses is that no matter how well credentialed a witness is, if the jury thinks he is a jackass or if he acts in a way that is inconsistent with jurors’ perception of how an expert should act, his testimony will be useless. In every trial, the jury and the judge evaluate the credibility of every witness who testifies. If you have done something as a witness to lessen your credibility quotient, what you say will either be filtered through that lens or not even considered. For example, some experts make the mistake of engaging opposing counsel in a pitched battle during cross-examination. While a feisty expert who resists answering “yes” or “no” questions might be seen by her attorney as a hero, the jury more likely sees an expert who is being difficult -- particularly when the “yes” and “no” questions are intuitively answerable. Similarly, an expert who regularly resorts to “I don’t recall” and “I don’t know” responses to questions that objectively seem knowable and recallable also undercuts her credibility. The same is true of an expert who fights over the meaning of words that have common meanings, or starts asking questions of the questioner.
by Katie Bagwill A2L Consulting Wouldn’t it be nice to be able to learn, just from hearing a witness utter a few phrases, that the witness is lying? Unfortunately, we can’t read minds, so we need to make do with second best: reading the tone of the witness’s voice and eye movements. The scientific community has been working hard to develop a way to gauge an individual’s truth telling based on the person’s behavioral, verbal, and physiological responses. In the meantime, you can use these ideas when questioning a witness, preparing your own witness to give testimony, and selecting potential jurors.
by Tony Klapper (former) Managing Director, Litigation Consulting A2L Consulting In my last post, I talked about the fact that an expert witness needs to express her expertise in a convincing way – but also in a way that the typical juror can understand and not in the language of a specialist. The next step in becoming a truly effective expert witness is to understand the power and the importance of visual learning. It’s a safe bet that your peer-reviewed articles contain tens of thousands of words. Your academic poster contains hundreds, maybe thousands, of words. Your PowerPoint presentations delivered to your peers contain bullet point after bullet point of words (and maybe a smattering of cartoons). Ask yourself: How many television commercials convey the importance of the advertised product through words? How many magazine advertisements do the same through words? How many movies convey their story through words? How many architects explain their designs through words? How many patents have no pictures and just words? And how many biology textbooks have no illustrations and just words? In all these instances, the visual is what matters.
by Tony Klapper (former) Managing Director, Litigation Consulting A2L Consulting You are a specialist in your field of study. You are about to take the stand as an expert witness in court. You have read hundreds, if not thousands, of articles in your field. You likely have an advanced degree that touches on the area about which you have been asked to testify. You may have taught classes on the subject at a university. You may have presented your thoughts and research at conferences attended by your peers. You are smart. You are well-credentialed. But are you prepared to testify in a court of law? Do you know what you have to do to be just as effective on the witness stand as you are at the podium? To help you answer these questions, here is a series of articles that chronicle the unique challenges that a testifying expert faces and lays out a road map for overcoming those challenges and becoming a truly effective expert witness.
Share: