My Facebook feed lit up this week after the passing of 67-year-old drummer Neil Peart of the band Rush. Suddenly, mild-mannered middle-aged friends were pouring their hearts out over the loss of a drummer who was at the height of his popularity some 35 years ago. For many of my friends and indeed for me (someone who likes playing drums but is not particularly liked by others when he plays), he was the best of the best - the G.O.A.T of the drumming world. Neil Peart forever changed the way other drummers performed and even thought about how to approach a drum set. Why should trial lawyers (who didn't happen to come of age in suburban America or Canada in the early 1980s) care at all? A quote in Peart's Rolling Stone obituary is what jumped out at me because it demonstrates a way of thinking that is useful for trial lawyers and drummers alike: “What is a master but a master student?” Peart told Rolling Stone in 2012. “There’s a responsibility on you to keep getting better.” Here, Peart was talking about why he started working with a drum coach/instructor relatively late in his career -- even after he was widely considered the best drummer in the world. To people who work with the world's best anything, whether that's athletes, actors, or trial lawyers, this kind of thinking is not surprising. In our field, rules of professional responsibility speak to this concept of continuous improvement, but I don't think that's why the very best push themselves to be better. The reasoning for why is circular, but I think it's true: the best are the best because they seek feedback about how to be the best, and this loop never ends. When the best trial lawyers in the world (and those who aspire to be) work with A2L (or someone like us), they benefit not just from jury consulting and litigation graphics services, but they also benefit from working with similarly accomplished trial lawyers called litigation consultants -- a term we first started using in the 1990s. We have written about this concept of trial lawyers supporting other trial lawyers in articles like: Your Coach Is Not Better Than You – in the Courtroom or Elsewhere 3 Ways to Force Yourself to Practice Your Trial Presentation Practice, Say Jury Consultants, is Why Movie Lawyers Perform So Well When Peart wrote the obituary for his coach, he paraphrased a foundational message from his coach, and that message rang very familiar to me. It sounds a lot like the message the trial lawyers on our team deliver to other trial lawyers who hire us. "You've been doing what you do for a long time, so it obviously works. Don't mess with that. Consider my suggestions as options." And there it is -- firms like ours and people like us present already successful trial lawyers with options. It's part of the reason those trial lawyers outperform their peers. Whether an athlete, musician, or litigator, if you seek to be the best, seek and listen to options. It's what the very best always do. Here is a good Neil Peart tribute piece that already has millions of views on YouTube: Other A2L articles and free resources about storytelling, coaching, and litigation consulting include: Great Trial Lawyers Behave Differently The First Version of Your Story Is NOT Your Best 3 Ways to Force Yourself to Practice Your Trial Presentation 9 Things In-House Counsel Say About Outside Litigation Counsel Dan Pink, Pixar, and Storytelling for the Courtroom Practice is a Crucial Piece of the Storytelling Puzzle Three Top Trial Lawyers Tell Us Why Storytelling Is So Important The 13 Biggest Reasons to Avoid Last-Minute Trial Preparation Your Coach Is Not Better Than You – in the Courtroom or Elsewhere What Steve Jobs Can Teach Trial Lawyers About Trial Preparation Develop Your Trial Story – Sooner, Not Later 21 Reasons a Litigator Is Your Best Litigation Graphics Consultant Practice, Say Jury Consultants, is Why Movie Lawyers Perform So Well 7 Things In-House Misses When Litigation Consultants are Underutilized FREE DOWNLOAD: Storytelling for Persuasion - 144-page complimentary book The Very Best Use of Coaches in Trial Preparation 3 Ways to Force Yourself to Practice Your Trial Presentation $300 Million of Litigation Consulting and Storytelling Validation RECORDING STORYTELLING WEBINAR Conflict check: Be the first to retain A2L
Every year hundreds of thousands of people visit A2L's website and read litigation-focused articles on our blog. We have published more than 600 articles there since 2011, and the ABA and others have named it one of the top litigation blogs. Periodically we list articles that have been deemed our very best by you, our readers, based on readership. As long-time readers of The Litigation Consulting Report blog know, our articles typically focus on topics like: Using storytelling as a persuasion tool; Combining psychology and litigation graphics to influence decision-making; Maximizing results during voir dire and mock trials; and Utilizing trial technicians so that litigators can focus on connecting with the jurors and judges. Looking at A2L's top 10 articles from 2019, these topics are indeed covered, but it’s interesting to watch the trends in the most-read articles. Storytelling continues to be a very popular topic, but as you can see from the list below, so also are subjects like litigation graphics and jury consulting. Below are the top 10 articles A2L Consulting published during 2019. I encourage you to share this list with friends and on social media. Links to post to Twitter and LinkedIn in just two clicks are included: 1. One Demonstrative Exhibit, One Concept 2. Ten Ways to Maximize Persuasive Courtroom Storytelling (Part One)
As both a leading jury consulting firm and a leading litigation graphics consulting firm, we can offer a unique perspective about the intersection of these two fields. A mock trial is frequently a part of A2L's jury consulting work. One aspect of designing and executing a valuable mock trial that I take particular interest in is the development of litigation graphics for both sides of the case. This litigation graphics presentation is typically created in PowerPoint and is designed to support the "clopening" argument for each side's case. If it is not apparent, the industry term "clopening" is a portmanteau of the words opening and closing. During an actual trial, argument is prohibited during an opening statement and reserved only for the closing statement. During a mock trial, the opening and closing statements are combined into a single event where a case is introduced, explained, and argued. A typical clopening argument is 1-2 hours long, and an average of 30-60 real and demonstrative evidence slides will be used to support the clopening argument. Just a few years ago, many jury consulting firms neglected to use and test visual presentations during a mock trial. For decades, we have explained the obvious importance of this testing and made a case for it in articles like: Why Litigation Graphics at Mock Trials Make Sense, Why You Should Pressure-Test Your Trial Graphics Well Before Trial, 7 Questions You Must Ask Your Mock Jury About Litigation Graphics, and Mock Trial Testing of Litigation Graphics AND Arguments. In my experience, the visual presentation is as important as the oral presentation during a mock trial. It aides in juror understanding, it speeds up the case considerably, it provides lessons to the litigation graphics team, and it makes for a more realistic simulation of the actual trial. See, Insist Your Litigation Graphics Consultant Attend Your Mock Trial. As is often the case for a trial, preparation for a mock trial is typically focused on the development of the initial presentation for the mock jurors. It's a sensible place to concentrate trial prep efforts as designing this presentation forces timely preparation of the legal arguments, the development of a well-honed narrative, and often the discovery of the best way to visually explain a case. Preparing these presentations for a mock trial is quite different from preparing for a courtroom trial, however. Whether you are a veteran trial lawyer or you are considering your first mock trial. These three tips below are useful for anyone planning a mock trial and have proven to be critical in the very best mock trials I have observed:
This month A2L Consulting celebrated its 24th anniversary! I'm proud to say that we are at the top of the jury consulting, litigation graphics, litigation consulting, and trial technology industry in most national polls. In honor of all those top trial lawyers who rely on us every day, I want to add value to your practice today with the unique content of this article.. These five mini-series-style articles are some of the best of our 600+ trial-focused articles, and there is just nothing else like them available anywhere. Each takes a deep dive into a specific trial-focused topic. Winning Before Trial focuses on actions one can take pre-trial to eliminate the need for a trial entirely. Throughout this series the importance of preparation is emphasized. In 24 years, there is no greater predictor of success at trial than the level of preparation for trial LONG in advance of trial. The article on persuasion during opening brings together some of our most important material. As an organization, we believe most cases are won or lost during the opening statement. This article is written with winning your opening in mind. The storytelling article builds on this concept as does the article focused on being a great expert witness. Finally, the article about the Reptile Trial Strategy is one of my favorites. This complex topic is tackled from the defense lawyer perspective. Without an understanding of this plaintiffs lawyer strategy, a defense lawyer experiencing a reptile attack for the first time will be overwhelmed by the strategy before they realize it's happening. Top 5 A2L Mini-Series-Style Litigation Articles 1. 5 Ways to Maximize Persuasion During Opening Statements (4 Parts) 2. Repelling the Reptile Trial Strategy as Defense Counsel (5 Parts)
The opening statement is, in most trials, the most important part of the case. Here, biases are formed and overcome, attention levels will be at their highest, and up to 80% of jurors will make up their minds about who will win. Over three decades, A2L Consulting has supported the development of thousands of opening statements. It's where our trial-lawyer clients and we invest the most time and energy. Our work has typically included: the creation of persuasive PowerPoint presentations to accompany well-developed opening statements to; practicing and refining an opening statement 100+ times until it is perfectly delivered; testing versions of opening statements in a mock trial setting to help best plan the trial strategy. Our team is made up of trial lawyers, psychologists, litigation graphics artists, and hot-seaters. We see many of the world's best trial lawyers practice their craft on a regular basis. As I have always said and written about, Great Trial Lawyers Behave Differently. I often write about how their preparation is altogether different from an average litigator. When I do write about this topic, my goal is to cross-pollinate great techniques and ideas. This article is no different. I want to share some of what A2L has learned along the way both by watching great trial lawyers prepare for trial and by helping them do so. These best practices expressed in these top 10 articles/books/webinars about opening statements are unique. I hope you can put this information to use as you prepare for your next trial. How to Structure Your Next Speech, Opening Statement or Presentation 6 Reasons The Opening Statement is The Most Important Part of a Case 5 Things TED Talks Can Teach Us About Opening Statements
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.
Alan Rudlin is a retired litigation partner from Hunton & Williams [now Hunton Andrews Kurth] in Richmond, Va., and a senior litigation consultant at A2L who has worked with us for about two years. Here is a brief Q and A to introduce Alan to the readers of this blog. Q. What brought you to the world of trial litigation? A. I graduated from the University of Virginia School of Law and spent a couple of years working in Washington, D.C., for a Joint Presidential-Congressional committee in the Watergate era. Then I decided to move back to Richmond, where I grew up, and to undertake a career in civil litigation. Q. What kinds of cases did you try? A. I worked on a wide variety of cases around the nation, including mass torts, First Amendment cases, environmental cases, and business disputes of all sorts. I tried dozens of cases to juries. Q. How did you become interested in trial techniques and the science of persuasion? A. Many years ago, I had a case where we and our client didn’t know if it made sense for our client to apologize for something. We put together a panel of ordinary people and used two-way mirrors to communicate with them. The answer they gave, by the way, was: Don’t apologize. Anyway, at that time I became fascinated with the art and science of jury studies, and used them when it made sense. Just as valuable I found was to seek the post-trial opportunity to learn whatever I could from jury interviews. Q. What is the most important benefit of those interviews? A. It’s very simple. If you won a case, but you don’t know why you won it, you don’t know very much. It’s like what doctors do. When something goes wrong in a surgery, they do a post-surgery review to figure out what went wrong and to do better in the future. Q. What kinds of questions do you like to ask jurors after a trial? A. I would have a detailed set of questions, and my favorite was to ask: Was there a point during the trial that was crucial for your understanding of the facts, when something clicked for you? Another good question is: What was your perception of the lawyers, the witnesses and the litigation graphics? Q. What is your opinion of jurors and their conclusions in a trial? A. I learned that one can trust jurors in complex cases. They may not express their opinions and conclusions in a way that a lawyer might, but they have a great deal of practical wisdom, and learning how to tune in to their ways of reasoning about what was fair or right is a critical skill. Alan Rudlin can be reached at rudlin@A2LC.com. Other free articles about senior A2L leaders, litigation consulting, and jury consulting work include: Litigation Consulting News: Introducing John Moustakas Law360 Interviews A2L Consulting's Founder/CEO Ken Lopez 9 Reasons Litigation Consultant is the Best Job Title in Litigation Who Is, and Who Isn’t, a Litigation Consultant? Free PDF: Why Work with A2L on Your Next Trial 3 Types of Litigation Graphics Consultants Top trial lawyers talk about working with A2L Top trial lawyers explain why storytelling is so critical for persuasion 10 Things Litigation Consultants Do That WOW Litigators Free E-Book: What is the Value of a Litigation Consultant? 21 Reasons a Litigator Is Your Best Litigation Graphics Consultant 3 Types of Litigation Graphics Consultants Free Webinar: Storytelling as a Persuasion Tool Free E-Book: Storytelling for Litigators Your Coach Is Not Better Than You – in the Courtroom or Elsewhere 10 Types of Value Added by Litigation Graphics Consultants Explaining the Value of Litigation Consulting to In-House Counsel 17 Reasons Why Litigation Consultants Are Better at Graphics Than Law Firms $300 Million of Litigation Consulting and Storytelling Validation Top 7 Things I've Observed as a Litigation Consultant 6 Secrets of the Jury Consulting Business You Should Know Who Are The Highest-Rated Jury Consultants?
At A2L, we publish so many articles about litigation and trial preparation that I like to share the best of the best periodically.
Please join me in wishing all the authors of A2L's Litigation Consulting Report blog a Happy 8 Year Blogging Anniversary!
No matter where you stand on the border wall dispute that has captivated the nation, you have to admit that it is an important debate. After all, $5 billion is a lot of money and who knows if the wall will really make a difference. But allowing between 200,000 and 2,000,000 people to easily enter the United States every year via the border with Mexico is probably not a good thing either. You probably just automatically identified yourself with one of those two previous sentences and took it as your position, right? The other sentence may have even made you angry or at least started you thinking about counter-arguments. In other words, like most political discussions, minds are rarely changed by more facts. It's kind of like a jury trial, right? You hear one side. You attach to it emotionally and then proceed to ignore evidence that is contrary to your new belief. In jury consulting-speak, this phenomenon is called confirmation bias. As a jury consulting firm, we've written about confirmation bias many times. See, for example: I’m Right, Right? 5 Ways to Manage Juror Bias Jurors Will Believe Anything (That They Already Believe) When Smart Ain’t So Smart - Cognitive Bias, Experts and Jurors Font Matters - A Trial Graphics Consultant's Trick to Overcome Bias Could Surprise Be One of Your Best Visual Persuasion Tools? 7 Ways to Overcome Cognitive Bias and Persuade However, A2L is not just a jury consulting firm. We’re also a top-ranked litigation graphics firm (and litigation consulting and trial technology consulting firm). So I'm always baffled by big disputes where the participants fail to use pictures effectively. In this day and age, there is no excuse. The science of visual persuasion is well established. See, What is Visual Persuasion and What Do You Need to Know About It?
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?
A couple of years ago, I was involved in running a genetics conference focused on using genetics as a defense tactic in civil cases, much in the way that DNA evidence is used in criminal cases. I've been working with experts in this field ever since. A few months back, I wrote an article about the clever use by plaintiffs of litigation graphics and genetics in the baby powder (talc) cases (see Some Lessons for Defendants From the Talc Liability Trials), including a $4 billion verdict against a major talc manufacturer. When I write about various types of cases, I often hear from lawyers who handle the types of cases I write about. On my post on the use of genetics evidence in the talc litigation, how many talc defense lawyers do you think I heard from? If you guessed zero, you'd be exactly right. And that's a problem. Not ready to accept that this is a problem for defendants? Then I will ask whether the plaintiffs’ talc bar was similarly unresponsive. As you can probably guess from the way I posed the question, the answer is no. Out of discretion, I won't say exactly who or how many responded, but it was more than zero. Even though there is more to gain for the defense bar from understanding and leveraging these critical tools, it’s the plaintiffs’ lawyers who are most active in the field, striving to improve their approach. From the defense bar — crickets. And that's the problem I'm seeing in the way some of these talc cases are being defended. Defense counsel appear to be playing defense – and completely ignoring the key point that the best defense in litigation is a good offense. These verdicts are having an impact on the companies involved. Last Friday, on December 14, 2018, shares of Johnson & Johnson fell 10 percent and were set to have their largest percentage drop in more than 16 years, after Reuters reported that the company knew for decades that there was some asbestos in its baby powder. Yesterday, December 18, 2018, Johnson and Johnson ran the full page ad seen here in an attempt to manage this growing crisis. For trial lawyers and litigation consulting firms like ours, these asbestos allegations are not new or surprising. It's what plaintiff's have alleged recently and have used to prevail in these cases. The surprising thing in these cases is defense counsel's unnecessarily passive approach. When products are accused of causing harm, defense lawyers often choose one of the following defense strategies: Assert the harm was caused by something else but we don’t know what (the “idiopathic” defense) Assert the harm was caused by something else and we know exactly what. Typically, most defendants have chosen the ‘we don’t know what other thing caused it’ strategy because it avoids giving up the favorable allocation of the burden of proof and assuming the very specific (and often difficult) burden of proving an alternative cause – much as criminal defendants take advantage of the “beyond a reasonable doubt” standard. Not surprisingly, this argument generally falls flat. Recently, the plaintiffs’ bar won a multi-billion-dollar verdict by asserting that there is asbestos in talc and that it causes mesothelioma. This is highly improbable for several logical reasons — but jurors tend to follow emotion first and logic second when deliberating. If asbestos is present in baby powder at all, it would be in such small amounts that one could not reasonably connect mesothelioma to it. If defense counsel asserts (as they have been) that the mesothelioma was caused by some other identified source of asbestos, and not by talc, that leaves jurors without the necessary tools to argue for a defense verdict during deliberations. So, what if defense counsel could instead prove that the plaintiff’s mesothelioma was caused by something other than asbestos in baby powder? Something identifiable, measurable, and specific. Using modern genetics, this is now possible. And it is a major sea change.
There are so many legal industry "best of" surveys that I have a hard time keeping track of them. Just about every month in one of them A2L is voted the top firm in either jury consulting, litigation graphics consulting, litigation consulting, or for our trial tech/hot seat services. I am grateful for our clients and blog readers who take the time to help and vote for us. It is a very big deal for me to see the company I helped build these past 24 years be recognized. While I know our people are the best at what they do, it is still it's nice to hear other people say it too. In a sea of surveys, one rises above the rest — The annual Best of the National Law Journal. A2L has been named #1 in this NLJ survey before. Today, I'm asking a favor of our readers. Would you help us be voted #1 in the nation again? It takes 2 minutes to help us be (publicly) recognized as the nation's top litigation consulting firm. We are nominated in four categories. Here's how you vote: Go to https://www.surveymonkey.com/r/BestofNLJ2019 before November 1, 2018 Answer at least questions 11, 55, 58 & 59 Click through the next buttons until you click DONE.
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