by Tony Klapper (former) Managing Director, Litigation Consulting A2L Consulting Here in these pages, we often talk about storytelling as a fundamental principle of successful trial work. But what are the elements of a good story? A good story is one that will be retold – it’s one that begs to be retold. Just as our ancestors told and retold the fundamental stories of their nations by the fireside, a great story is one that people today will repeat at the watercooler, in the bar, in the line at the grocery, or anywhere that there’s time for a narrative. A compelling movie (think of the Pixar films or a Steven Spielberg production) or a great epic (as far back as the Iliad or the Odyssey) or even an account of business success (think Steve Jobs, Bill Gates or Thomas Edison) will have the essential elements of a story. And as trial lawyers, we want jurors to pick up the story that we tell, and retell it in the jury room during deliberations. Each of these great stories has a few things in common: a distinct source of conflict or tension, compelling character development, and a message that is conveyed, either directly or subtly, that conforms with the values of the people who are hearing the story.
by Tony Klapper Managing Director, Litigation Consulting A2L Consulting We have written many times about the fact that scientific studies have shown that nonlawyers (who are the vast majority of jurors) tend to be visual learners, and tend not to be auditory learners or kinesthetic learners –people who learn by experiencing. Lawyers (who are the ones who present facts and tell stories to jurors) tend not to be visual learners and are often drawn from the ranks of auditory or kinesthetic learners. Of course, this can present an intrinsic problem that we have discussed before. If most lawyers like to tell but not show, and our audience, the jury, prefers to be shown something and not to be told, we may completely fail to connect with our audience. It’s not just psychologists and other students of human behavior who say so; it’s also people who devote full time to understanding trial advocacy. The National Institute of Trial Advocacy (NITA) is a fantastic organization that represents the “gold standard” of trial advocacy. In addition to putting on outstanding CLE programs for newbie and experienced litigators, NITA also publishes many great books from scholars who have thought long and hard about advocacy.
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 Katie Bagwill A2L Consulting Watching a mock jury deliberate is a lot like watching Dr. Phil; there is a lot of arguing, and most of the “facts” end up skewed. Nevertheless, a mock jury’s conclusions and how they reach them are essential to any lawyer who wants to understand the weaknesses of his or her case. Here are some of my takeaways from observing this fascinating exercise recently. Be clear. If a point or idea you want to instill in the jury isn’t clarified enough, you will see it warped and interpreted wildly during the deliberations. During each mock presentation that I saw, the amount of attention paid and the volume of notes taken varied, but one constant seemed to be apparent: jurors want to feel as if they have all the information. Even if they don’t, once they have a firm opinion, they will use any of the “facts” they have to defend it. Naturally you want these facts to be in your favor, but for the sake of this exercise it is actually more beneficial to you for the stacks to be weighted against you. In order to improve, you need to know how you could lose. Be passionate but humble. It is important for the jury to feel empathetic toward your client, and for that to happen they need to connect with you. While presenting your case, you want to appear confident and informed without coming off as arrogant. Persuasion is all about presentation. One of the most important notes that our mock jurors made about one of our presenters was that he seemed “smug,” which made him seem sneaky, and it spiraled from there.
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 Ken Lopez Founder/CEO A2L Consulting I go to a marketing conference in Boston every year, and every year I see a handful of outstanding presentations about storytelling. One stood out for me this year that will have immediate applicability for our field. The presenter, Amina Moreau, is a filmmaker and co-founder of Stillmotion. Her session, Scientific Secrets of Superpowerful Storytellers: Techniques to Spur Action, covered some topics that are particularly useful for trial lawyers looking to persuade audiences. We are constantly discussing storytelling among ourselves at A2L and with our litigation-focused client base. We've published books about storytelling, conducted webinars about storytelling (a new one is going to be announced soon), and routinely conduct storytelling CLEs at top law litigation departments. Our articles about storytelling at trial are read and shared regularly. See Dan Pink, Pixar, and Storytelling for the Courtroom, 5 Essential Elements of Storytelling and Persuasion, and Storytelling at Trial Proven to be Scientifically More Persuasive. Using neuroscience as a foundation, Ms. Moreau raised a question that we frequently wrestle with: Whom should we tell stories about to generate the most powerful call for action and to be as persuasive as possible? Should the story be about a team, should it be about the CEO, should it be about the victim's wife, should it be about the inventor? How do we make the story most meaningful to our audience? After all, if the story is not meaningful, we can't connect with the audience, and if we can't connect, we can't persuade using emotions and the framework that a well-told story provides.
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.
by Ken Lopez Founder/CEO A2L Consulting We at A2L are launching a new e-book this month. This time, we are publishing the book jointly with IMS ExpertServices, one of the nation’s premier providers of experts and consultants for top law firms and Fortune 500 corporations. The title of the new book is Expert Trial Testimony: Direct and Cross-Examination. The book answers every question you might have thought of in connection with expert testimony at trial in U.S. courts, and it does so in a clear, conversational manner. Plus, it’s a free download. As more and more money is at stake in civil trials, and as the subject matter grows more and more complex and difficult for many jurors to understand without assistance, the value and importance of expert witnesses has grown dramatically. The difference between an effective, well-prepared, convincing expert witness and one who does not come across well to a jury can often be the difference between winning and losing a trial where hundreds of millions, or billions, of dollars are at stake. The book is directed at experts themselves and gives dozens of do’s and don’ts that will make any expert’s testimony effective and convincing at a trial. It’s not only experts who will benefit from reading this book but also trial attorneys, trial technicians, in-house counsel, and anyone who wants to understand the best ways to put on expert testimony. The book addresses the typical expert witness as follows:
by Tony Klapper (former) Managing Director, Litigation Consulting A2L Consulting When I was a practicing lawyer, trying high-stakes cases in the major law firm world, many of my colleagues would often cast doubt on the need for jury consultants and mock trials. They would say that as experienced trial lawyers, they already had a good feel for a jury and for the art of persuasion. In addition, lawyers would argue that very few reliable conclusions could be drawn from the attitudes and outlooks of a small number of mock jurors. Actually, this is a rather short-sighted way to approach the topic. A jury consultant can add immeasurable value to a trial team’s efforts in any number of ways. Here are five of them: Theme development. Working with a mock jury provides invaluable research into what themes will work with the actual jury and what themes will not work. The mock jury will get a chance to hear several proposed themes for your side, as well as the way in which the opposition can be expected to rebut those themes. Interviewing the mock jurors will shed considerable light on what works for them, emotionally, and what does not. Message clarity. Many lawyers on a trial team get lost in the weeds and develop countless lines of information without any concern for whether they contribute to their side’s main narrative. It is very easy to review documents for their own sake without any consideration of why they should care about the documents. A mock trial will force all those attorneys to focus on the facts that really matter to their case and will provide the needed discipline.
by Alex Brown Director of Operations A2L Consulting Nearly every person can recognize a successful and persuasive public speaker when he or she hears one. But it’s not always so easy to identify the specific traits that nearly all successful speakers share. As a longtime observer of oral advocacy and persuasion, I have compiled a list of the things that all speakers should do if they want their audiences to listen and care about what they are saying – especially if their audience happens to be a jury or judge. Start strong. As you know, your opening statement will win or lose the case. So it makes sense that the opening of your opening – the very first few sentences -- is vital. Use this as your chance to set the stage. The majority of people on the jury do not want to be there or see their jury service as a waste of time, so don’t waste their time. Catch them quickly and hold their attention. Know your audience. Make sure you are speaking to your audience, and not at them. Do you understand their background, their culture, their education level, and their socio-economic standing? Can you identify who the likely leaders will be, and can you get them on your side? Do you already know who your advocates on the jury will be? Sounds hard, but if you have a top-notch jury expert, they can give you the ammunition to know these answers before you open your mouth.
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 Ken Lopez Founder/CEO A2L Consulting
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