The Litigation Consulting Report

by Ken Lopez Founder/CEO A2L Consulting As I discussed in Part 1 of this series, the “reptile” trial strategy is quickly spreading among plaintiffs counsel. Some plaintiffs counsel have, in fact, claimed that the strategy has resulted in verdicts totaling more than $6 billion in the past few years. In a large room of defense attorneys to whom I made a presentation last week, more than half reported having seen the strategy used in one of their cases. I think that may just be the tip of the iceberg. It appears that many defense counsel are being subjected to the strategy and don't know it is happening to them until it is too late. In light of this fact, below are 10 ways to spot the strategy. In subsequent articles, we will discuss what to do to counter it. From the very start of your case, look for any of the following 10 phenomena: You encounter themes suggesting that the community needs to be protected from the defendant; e.g. “Walking past stores on Main Street is part of what it means to be American.” The behavior of the plaintiff or other contributing or mitigating traits of the plaintiff are ignored, and instead the plaintiff works hard to keep the focus on the defendant or even an idealized defendant. Plaintiffs introduce a discussion of “safety rules” throughout all pre-trial phases of the case; e.g. “Do you agree that keeping the public safe is a key role of your train operators?”

Last week, I spoke at an annual gathering of defense attorneys whose subtitle was “Lawyers and Other Reptiles.” What's going on? Who are these reptiles? It’s an interesting story. This conference was planned as a way to bring together defense attorneys around the nation who want to learn how to turn aside a frequently used set of trial tactics championed by David Ball and Don Keenan in their "Reptile" series of books and webinars. Ball is a North Carolina-based jury consultant, and Keenan is an Atlanta-based plaintiffs trial lawyer. According to Ball and Keenan’s publicity materials, the “reptile” concept is “the most powerful tool in the fight against tort reform.” Ball and Keenan say that through their books, DVDs, seminars and workshops, “the Reptile is revolutionizing the way that trial attorneys approach and win their cases.” The proof, they say, is in the numbers, as more than $6 billion in verdicts and settlements have resulted from these tactics since they launched them in 2009.

Handling a CEO during litigation can be a daunting task for trial lawyers. CEOs often hold significant influence and are the public face of their companies, making their words and actions crucial in determining the outcome of a trial. It is imperative to approach this situation with careful consideration, thorough preparation, and a solid understanding of the legal process.

by Ken Lopez Founder/CEO A2L Consulting Unfortunately, I have the memory of an elephant when it comes to life's uncomfortable moments. One of those occurred during undergraduate school at the University of Mary Washington almost 30 years ago. Like it was yesterday, I remember reviewing my professor's notes on a graded paper. Burned in my memory is the red-pen-circled-notation, "cliché." At the time I really didn't understand why using a cliché would be a problem. After all, it's just a linguistic shortcut, and having my professor deduct points for it struck me as splitting hairs. At the end of the day, a cliché is really just a culturally entrenched phrase that shortcuts language and allows us to speak more efficiently, right? Well, not exactly. Clichés are really the place where good metaphors go to die. That is, what was once a useful language shortcut becomes so overused that it is negatively labeled a cliché. So, what's all the hubbub about when it comes to using clichés in litigation for persuasion? It turns out that by taking the easy way out and using a cliché, you will significantly harm your courtroom persuasion efforts.