80% of jury trials are won or lost in the opening statement. 80%!!!!!!
Our team has planned and conducted more than 500 mock trials over the past thirty years. In that time, we have noticed striking similarities in the way jurors behave. We have noticed that a trial team can radically increase the amount of valuable information they mine from a mock trial just by following a few best practices. We have seen over and over that a well-executed mock trial is the most valuable form of pre-trial preparation a trial team can do. In these ten articles listed below (our top ten all-time articles on the subject), we reveal many of A2L's best practices and insider observations. Whether you are planning a mock trial or just preparing for trial, the lessons from these articles are valuable and actionable. A mock trial is designed to mimic many aspects of an upcoming trial. The overall goal is to learn what motivates jurors, especially those similar to the likely jury, to view our side of the case in the best possible light. Many people mistakenly believe that a mock trial is designed to simulate an upcoming trial in order to predict the outcome. While there is certainly a predictive element, one cannot reliably simulate a two-month or even a two-week trial in two days. Instead, the highest value takeaways from a mock trial come from watching jurors deliberate, looking at the data behind the their decision making revealed by polling, preparing one's trial presentation earlier than one might naturally do so, getting into the mind of opposing counsel by arguing their case, and just getting some excellent practice in the run-up to trial. In a typical mock trial, 100 or more jurors may be recruited. Often a voir dire-like exercise is built into the mock and 36-48 jurors may be selected and broken into three or four juries who will deliberate separately. When a mock trial is deemed premature or the costs of conducting one do not match the dollars at stake in a case, we are often asked to conduct a smaller-scale exercise called a focus group (see How Early-Stage Focus Groups Can Help Your Trial Preparation) where a fewer jurors are used, and the format is more dialog oriented. I hope you enjoy these articles. Taken together, they offer an excellent primer on how and why to conduct a mock trial for the best possible result. 10 Things Every Mock Jury Ever Has Said 12 Astute Tips for Meaningful Mock Trials
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.
This article is the last in a series of four articles about courtroom storytelling. My goal in this series is to reveal some of the tricks of the persuasive storytelling trade in one place for the busy trial lawyer. I hope that these recommendations can serve as a pretrial checklist for anyone who wants to draft an opening statement. A2L’s litigation consultants have published dozens of articles about storytelling, and we’ve released books and webinars on the subject. These ten tips represent the essence of what we have learned and of what we have taught. If you apply these ten suggestions when developing your story for trial, your story will be more persuasive, and you will radically increase your chances of winning your case. Tip #6. Your audience MUST care about the story. The audience should be emotionally transported. It has been said, “People will forget what you said, people will forget what you did, but they will never forget how you made them feel.” Scientific studies show that when people listen to an effective story, their brains react more like participants than spectators. When we say that people experiencing a deep connection are “on the same wavelength,” there is neurological truth to that. Scientists at Princeton University looked at brain scans (fMRI) of storytellers and listeners to the stories. They found that the most active areas of the brains of the speakers and listeners matched up; they were in sync or coupled. However, this synchronized activity was found in the areas of the brain relevant to theory of mind, not in areas that drive memory or the prefrontal cortex associated with cognitive processing. The stronger the reported connection between speakers and listeners, the more neural synchronicity was observed in the test subjects. The extent of brain activity synchronicity predicted the success of the communication – so connecting with your audience more makes you more persuasive. Source: Storytelling Proven to be Scientifically More Persuasive. Tip #7. Force participation of your audience. Engage the audience in the journey. As Pixar film director Andrew Stanton says, don’t give them 4, give them 2+2 and make them work to find the answer. Nineteenth-century writer William Archer wrote, “Drama is anticipation mingled with uncertainty.” Make your audience members keenly aware of their uncertainties and holding on to their sense of anticipation. The goal of a presentation is always the same -- to engage the audience, to move them. This holds true regardless of the stage. It’s so in the courtroom, on the floor of the U.S. Congress, in the boardroom, and in the classroom. Litigators engage a jury to win their case for their client; professors engage their students so that they can best teach the subject matter. Engagement leads to better understanding, which then leads to better retention and enhanced persuasiveness. Retention and understanding are the keys to success.
It's my eighth year writing an end-of-year top-10 style article. That feels pretty great because in that time, we have published more than 600 articles and A2L's Litigation Consulting Report blog has been visited one million times. Wow, right?
You don’t have to take it from me. There’s a good reason that Bread – the 70s band that virtually invented California soft rock with unforgettable hits like “Baby I’m-A Want You” and “Make it With You” – hit #4 on the Billboard Chart in the spring of 1971 with “If.” (“If a picture paints a thousand words . . . “) Pictures do, in fact, paint a thousand words. It is a universal truth. Images are evocative; they engage the viewer and hold her attention; they can convey abstract concepts more efficiently, and often better, than words; they can level disparities in literacy, language, and intellect. For us here at A2L, the adage is not a subject of mere lip service, but an article of faith – a conviction that your presence here signifies that we share. All that being the case, why aren’t you all insisting upon having me, your litigation graphics and persuasion expert – or someone like me – present at your mock trial and focus group exercises? You certainly should. Just as the purpose of a mock trial or focus group exercise is to test-drive the arguments that the lawyers intend to present verbally at trial, it is also a crucial opportunity to assess how well the litigation graphics visually echo and even amplify, those arguments to create winning impressions. To create those impressions, you’ve brought together a team of professionals to produce a compelling factual, legal and visual presentation and to assess the impact of that presentation on your likely jurors. If you believe, among other things, in the power of compelling visuals to sharpen the focus and boost the potency of your arguments and themes, then leaving your litigation graphics consultant home is one big mistake. Just as we coach you to integrate litigation graphics in ways that avoid divided juror attention, we counsel against splitting the attention of your team and diluting the quality of its members’ observations by doubling up their responsibilities at mock exercises. To assure maximum performance, let every member of the team serve his or her highest and best use – think Indy 500 pit crew. This includes a principal member of your litigation graphics team: let him or her focus squarely on the jurors’ engagement with and reaction to the visuals. With their words, gestures, body language, attention or disinterest, mock jurors tell us how well our litigation graphics accomplished their intended purposes – what worked and what didn’t. They can tell us what they understood and what left them confused. However they “tell” us what they think, if the jurors do not exhibit the desired response, it is the time to change the graphics to evoke a better one. Who better to pose carefully tailored questions in real time to gauge the visuals’ punch or to scrutinize and take away for productive use in reworked visuals these crucial real-time impressions than the professional responsible for creating them? Testing the strengths and weakness of your case is a fundamental purpose of mock trial and focus group exercises. So much of what the format unlocks is intimately tied to being present in real time. In that respect, nothing beats watching real people grapple with the real issues and actually engage with, study, and even poke holes in the real mock trial graphics. It makes the most of the exercise and is the best way to ensure continuity as the team takes the litigation graphics to the next level for trial. Hearing about it secondhand is no substitute. Not even financially. Since the recordings of the exercises can be stopped, rewound and restarted when studied after-the-fact, any significant cost savings intended by leaving the litigation consultant behind are seldom realized. Since a picture paints a thousand words, let’s practice what we preach: insist that your litigation graphics consultants watch your mock trial and focus-group exercises, rather than simply read about them. Other free A2L Consulting resources related to mock trials, focus groups, and litigation graphics consultants: Why You Should Pressure-Test Your Trial Graphics Well Before Trial 5 Ways to Win Your Trial by Losing Your Mock Trial 9 Things That Define the Best Litigation Graphics 7 Questions You Must Ask Your Mock Jury About Litigation Graphics Free Webinar: PowerPoint Litigation Graphics - Winning by Design™ 13 Reasons Law Firm Litigation Graphics Departments Have Bad Luck Trending: Mock Trial Testing of Litigation Graphics AND Arguments 3 Observations by a Graphic Artist Turned Litigation Graphics Artist 21 Reasons a Litigator Is Your Best Litigation Graphics Consultant 6 Triggers That Prompt a Call to Your Litigation Consultant 11 Small Projects You Probably Don't Think Litigation Consultants Do 11 Things Your Colleagues Pay Litigation Consultants to Do 12 Reasons Litigation Graphics are More Complicated Than You Think Litigation Graphics: It's Not a Beauty Contest 11 Ways to Start Right With Your Litigation Graphics Team 16 PowerPoint Litigation Graphics You Won't Believe Are PowerPoint Presentation Graphics: Why The President Is Better Than You Using Litigation Graphics in Bench Trials: How Different Is It From Jury Trials? 12 Reasons Bullet Points Are Bad (in Trial Graphics or Anywhere) 5 Ways That a Mock Trial Informs and Shapes Voir Dire Questions Font Matters - A Trial Graphics Consultant's Trick to Overcome Bias 6 Studies That Support Litigation Graphics in Courtroom Presentations 8 Videos and 7 Articles About the Science of Persuasion Please Pretty Up These Litigation Graphics How Long Before Trial Should I Begin Preparing My Trial Graphics?
At A2L, we are either conducting or actively planning a mock trial 365 days a year. As you probably know, mock trials are a tool that is very often used by serious trial teams involved in large trials to help uncover the ideal strategy to win a case. In a typical mock trial that we conduct, over 40 jurors will be recruited in the trial venue through a rigorous screening process. We even incorporate expected voir dire questions into the process. Based on individual verdicts and backgrounds, mock jurors are carefully evaluated to create three or four panels of 10 to 12 mock jurors. “Clopenings,” combined argumentative opening/closing statements, are presented for both sides of the case, litigation graphics are used to support these statements, and videotaped witness testimony may be included as part of the presentation. Typically, real-time data collection methods using an Audience Response System (“ARS”) will be used, similar to the approve vs. disapprove line graphs shown on the news during election seasons. Deliberations are conducted. A focus discussion following deliberations is facilitated by our jury consulting and litigation consulting team members. All proceedings are typically observed through one-way mirrors or via closed-circuit TV, as shown in the included image. Watching the deliberations is shocking for most trial lawyers. Without the constraints of the law or internal consistency, jurors’ responses can seem inconsistent, irrational, inexplicable and thus, frightening and random. They are not. Jurors rarely understand the cases as much as hoped, and they follow predictable behavior patterns (see 10 Things Every Mock Jury Ever Has Said). While their rationale may not match the lawyers’, there is a rationale to those willing to understand it from the jurors’ perspective. Finally, data are collected from the jurors, the results from the deliberations are tallied, and an oral and written report is presented to the trial team. This report includes specific tactics, both rhetorical and visual, that should be used at trial. We have written and taught about best practices for mock trials extensively. Some of those articles and webinars include: The 5 Very Best Reasons to Conduct a Mock Trial 6 Good Reasons to Conduct a Mock Trial 6 Ways to Use a Mock Trial to Develop Your Opening Statement 5 Ways That a Mock Trial Informs and Shapes Voir Dire Questions 12 Astute Tips for Meaningful Mock Trials 11 Problems with Mock Trials and How to Avoid Them 7 Questions You Must Ask Your Mock Jury About Litigation Graphics 10 Things Every Mock Jury Ever Has Said How Early-Stage Focus Groups Can Help Your Trial Preparation Webinar: 12 Things Every Mock Juror Ever Has Said - Watch Anytime Together, these resources provide an excellent manual for conducting a mock trial for an upcoming case. However, they don’t deeply address a trial team behavior I’ve seen show up in just about every mock trial our firm has conducted: The lawyers try to win – and I don’t mean fairly.
I’ve written often about trial preparation -- and yet it seems like it’s never enough. I have a unique view of the litigation industry since I work with the absolute top-performing trial lawyers and with many other attorneys who aspire to be like them. What distinguishes the high performers from the mere aspirants is primarily their rigorous and intense preparation. Long-time readers of this blog might remember some of the articles we’ve written to try to help good trial attorneys become great trial lawyers. Here are some of them: 50 Characteristics of Top Trial Teams 7 Habits of Great Trial Teams The 13 Biggest Reasons to Avoid Last-Minute Trial Preparation How Early-Stage Focus Groups Can Help Your Trial Preparation 25 Things In-House Counsel Should Insist Outside Litigation Counsel Do Sample One-Year Trial Prep Calendar for High Stakes Cases How Long Before Trial Should I Begin Preparing My Trial Graphics? How to Get Great Results From a Good Lawyer and my absolute favorite in this trial preparation best-practices genre: 10 Criteria that Define Great Trial Teams If I had to summarize these articles, it would be simply that great trial attorneys prepare much earlier and much harder and with much more openness, communication and curiosity than merely good trial lawyers. They are comfortable with technology. They understand how to develop a courtroom presence. They practice relentlessly. I see it all the time.
Many people are familiar with mock trials, which are full-blown exercises before a trial in which witnesses are presented and arguments made before mock jurors, who proceed to render a “verdict.” The results of mock trials, as we have discussed here before, can be extremely helpful to litigators who want to know how strong their case is, which arguments and testimony to pursue at trial, and which ones to forget about. As Slate magazine wrote in an illuminating article in 2005: Either side of a case can hold a simulated trial, and they're used in both civil and criminal cases. But because these productions can cost quite a bit of money, they're most often used by lawyers who represent wealthy clients or companies in a civil suit. First, the attorneys find a random pool of mock jurors in the jurisdiction where the trial will be held. Participants are selected by random telephone calls, classified ads, or through an employment agency. (Anyone who has recently received a summons to serve as a real juror is immediately disqualified.) Another technique that is perhaps not as well known is the early-stage focus group. These are far less formal than mock trials. They are a bit like brainstorming sessions in which jurors tell trial lawyers, often in real time, what they thought about a particular piece of evidence or a particular argument. Focus groups have several advantages:
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