I get excited when I am called for jury duty. After all, my entire 25-year professional career has been focused on persuading judges and juries. Serving on a jury is a rare opportunity to get a view from the inside. It allows me to confirm everything I routinely watch in mock trials and have learned. For example, see 10 Things Every Mock Jury Ever Has Said. When I get called, and yesterday was that rare day, I watch everything -- from how potential jurors are organized to the racial, ethnic, and gender composition of the pool, and every little choice the lawyers make, from clothing to tactics. Unfortunately, the fact that I am a litigation consultant always comes out during voir dire. The last time I was on jury duty, I made it through voir dire and served as foreman in a small traffic case. My fellow jurors said, “You know more about this than the rest of us, so you be our foreman.” That made sense to me, and I know myself to be a good facilitator of group discussions. It was all less formal and only five jurors were seated. Today was different. Thirty-six potential jurors were called for a 12-member jury. So I knew we were going to be facing a criminal matter. Ultimately, I was dismissed, but not before I had a chance to observe the process once again as a juror and to make some observations. Once voir dire began, I noticed that the prosecutor focused very heavily (probably too much) on potential jurors who had a connection with law enforcement and the legal industry. In the process, she exposed many government-friendly law and order jurors, doing herself a disservice. She also exposed me in a discussion around witnesses who lie – something that I had seen in a recent matter that A2L consulted on. Defense counsel put on an aggressive voir dire. She visibly angered many potential jurors by using deeply complicated hypotheticals and double negatives. Jurors turned against her, she invited many objections, and the judge ultimately turned against her as well. Her techniques exposed many jurors who were likely to be biased. However, her unapologetically brash approach distanced her from every juror. So, for the defendant's sake, I hope that her co-counsel is putting on the opening. This was not just my opinion. After being released, a group of 10 also-released jurors rode down in the elevator with me. They were abuzz with negative comments about defense counsel. I asked, so did she piss you off? The universal answer was hell yes. The lesson is that although there’s no question that it’s a good idea to weed out certain types of jurors, trial lawyers must never forget that they are dealing with human beings, not computers. It’s possible to antagonize the very jurors whose votes you need as early as the voir dire process. Don’t do anything that can stand in the way of building that fragile rapport that a trial lawyer needs to develop with the jury. Other free A2L Consulting articles and resources about voir dire, jury selection, being likeable, and more: 10 Ways to Lose Voir Dire Like It or Not: Likability Counts for Credibility in the Courtroom 10 Things Every Mock Jury Ever Has Said A Jury Consultant Is Called for Jury Duty 5 Questions to Ask in Voir Dire . . . Always 5 Voir Dire Questions to Avoid The Voir Dire Handbook | Free Download | A2L Consulting Jury Selection and Voir Dire: Don't Ask, Don't Know 7 Tips to Take “Dire” out of Voir Dire 10 Ways to Spot Your Jury Foreman 5 Things Every Jury Needs From You 10 Signs of a Good Jury Questionnaire 13 Revolutionary Changes in Jury Consulting & Trial Consulting Is Hiring a Jury Consultant Really Worth It? 12 Insider Tips for Choosing a Jury Consultant Do I Need a Local Jury Consultant? Maybe. Here are 7 Considerations. Who Are The Highest-Rated Jury Consultants? Webinar: 12 Things Every Mock Juror Ever Has Said
Every year going back to the start of this blog in 2011, I have paused to look back over the past 12 months of articles and see which were deemed best by our readers. Some articles have been read 90,000 times while others, often surprisingly, are only viewed a few dozen times. In this method of article ranking, every reader view is a vote. This year's top 21 list is consistent with recent years. Articles about storytelling and voir dire are the most read. The #1 ranked article, in particular, was very popular because it was not only about storytelling but features three top trial lawyers (all clients of A2L) talking on video about how they incorporate storytelling techniques into their advocacy. Enjoy these articles and please do encourage a friend to subscribe (for free) to this blog, The Litigation Consulting Report. Soon, we will have more than 10,000 subscribers. Each of these articles can be tweeted or shared on Linkedin using the buttons below the article. Click the titles to view the articles. 21. What Trial Lawyers Can Learn From Russian Facebook Ads 20. 5 Key Lessons You Can Learn From Mock Juries 19. How to Get Great Results From a Good Lawyer
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:
It turns out that a large number of Russian ads on Facebook that viewers did not know were Russian ads influenced the way people thought about various issues last year. They may have even influenced the 2016 presidential election to some degree. Rather than delve deeply into the appropriateness of these ads (in my view, they were wholly inappropriate), who exactly directed their placement, and how exactly they affected behavior, let's instead look at these ads from a trial lawyer’s perspective. After all, if pictures and a few short phrases can be used to change the voting behavior of the electorate, it stands to reason that pictures and some well-chosen phrases can be used to change the voting behavior of jurors. In the courtroom, there's no ethical debate about this process, since jurors know exactly where the message originates from -- the mouths of lawyers, experts, and witnesses. So if an attorney can use proven persuasion techniques and it's ethical to do so, the attorney must do so to zealously represent his or her clients. This is precisely why high-end persuasion firms like A2L exist. We're here to help persuade, using all appropriate and ethical means, both visual and rhetorical. We're not Russian hackers. Instead, we're hackers of human psychology, since we help top trial lawyers use proven techniques to maximize their persuasiveness. We do this by bringing together a remarkable combination of trial lawyers, social scientists, and artists to do what we do, a process we call litigation consulting. Let’s look at the Russian ads in this light. Because of some good investigative journalism and investigative work in Congress, many of the ads, Facebook groups, Facebook pages, and messages have been identified and published -- and most of them are really disturbing. The ads used some of the same time-honored techniques that trial lawyers use – but because their source was disguised and because they were intended to disrupt, not to persuade, they were dangerous. For example, many of the ads targeted topics where there is a deep division or poked at issues in a way designed to inflame. In almost every case, they used a favored technique of marketers, trial lawyers, and politicians alike -- FEAR. And that makes sense. Fear is a ten times greater motivator than hope of gain. That’s why marketers tell us that the one-time low pricing will end Sunday night, not how happy we will be on a new mattress. That’s why politicians tell us that immigrants should fear deportation if their opponent is elected, not that the melting pot is a good thing. And finally, of course, that’s how a specious argument that an everyday product causes cancer can overwhelm a defense based on good science. Fear wins, and good trial lawyers on both sides of the courtroom must use it. I wrote a lot about this topic in my five-part series about the Reptile Trial Strategy. It's no surprise that ads traced back to Russia focused on hot-button topics like Black Lives Matter, Muslims supporting Hillary Clinton, gun rights, LGBT rights, and more. Let's look at the techniques used in three Russia-linked ads: 1. Heart of Texas: This Facebook group that advocated for Texas secession quickly gained more than 250,000 members. The ad below uses a fake Facebook event as part of its messaging. What made a quarter of a million Texans unwittingly sign up for a Russian-backed Texas secessionist movement? The ad works because it stokes existing biases while seemingly coming from a credible source. If we define bias broadly as any commonly held belief by a person that makes it harder for them to accept contrary evidence, you can see how this could work in the courtroom. Obviously, we’re not talking about using racial, ethnic, or sexual preference biases as part of advocacy. Instead, I’m referring to those beliefs that many jurors show up to trial with -- like bankers are all motivated by greed, big energy companies don’t really care about the environment, or tech companies will ruthlessly steal from one another. Just as the Russians used biases in a deplorable manner, trial lawyers can play to other biases by encouraging jurors to accept and double down on their beliefs. As I wrote in a recent post, when you combine a credible source such as an expert witness with a message that jurors are ready to hear, you are likely to come out ahead. Consider how I embraced these biases and re-messaged these in a recent blog post about bias below. As you read each think about how you might couple each with persuasive visuals to maximize persuasion. Bankers are greedy, so why would they ever do something that risked their money? (Possible visual storytelling aid to accompany: evidence of penny pinching at all levels of the organization summarized on a chart to demonstrate a culture of avarice) XYZ oil company has been more reckless with the environment than you or me, but given what they went through before, do you really think they are dumb enough to do it again? (Possible visual storytelling aid to accompany: list in a slowly scrolling chart the tangible consequences the organization faced as a result of the last disaster) Sure, tech companies will do anything to get ahead, but can you imagine anything more humiliating to someone as competitive as the CEO of ABC company as looking as if you’re not as smart as the other guy? Nothing is worth that when you are a competitive tech geek. (Possible visual storytelling aid to accompany: text callouts coupled with the CEO photo openly demeaning the intelligence of the opposition)
We are delighted to announce the publication of a new free e-book, the Trial Lawyer’s Guide to Environmental, Toxic Tort, and Product Liability Litigation, 3rd Edition. It is a guide to all the issues and all the possibilities that can come up in environmental, toxic tort, and product liability litigation – whether related to PowerPoint, scientific expert witnesses, competing scientific theories, body language, or any of a myriad of questions that can come up in this complex field. This is the third edition of a book that we first released in 2011. We have dramatically expanded the scope and the depth of the book to add dozens of new and relevant articles, including articles on the importance of litigation graphics in toxic tort litigation and on demonstrative evidence in product liability and failure-to-warn cases. The book is now 256 pages long and packed with valuable articles. Environmental, toxic tort, and product liability cases have similar challenges. Each typically involves disputes over science and often results in a battle of expert witnesses. As a result, these cases are some of the hardest cases to litigate. These cases can include technical issues similar to patent cases, scientific elements similar to pharmaceutical cases, and damages issues similar to construction cases. In addition, for many jurors, these cases are fraught with political ramifications in a way that many other cases are not. Jurors often harbor a basic belief that if a big company is on trial, it has probably harmed people or the environment in pursuit of profits and has caused long-term damage to people and the planet – either by directly causing human health effects, polluting the air, water, or ground, or by contributing to global warming. It is important for a lawyer representing such a company to overcome jurors’ biases and to do so while keeping the case from seeming dull and boring. If you are to be successful litigating these cases, you have to be among the best in the profession. The natural complexity of these cases means that demonstrative evidence must be used extensively, jury consulting is often appropriate, and the use of trial technicians allows you to focus on maintaining your connection with the jury – rather than staying connected to the technology. This e-book will help you better prepare to litigate environmental, toxic tort, and product liability cases. From making the most of your mock trial, to managing trial team psychology, to specific demonstrative examples, there is something in here for all trial lawyers. I hope you enjoy this book and will take a moment to share some feedback by contacting me. If you ever have a question about how to prepare an environmental, toxic tort, or product liability case anywhere in the world, please ask. You may download the book by clicking this link or by clicking the download button below.
Dr. Robert Cialdini has identified six basic principles of persuasion. One of them is liking. If people like you, they are more likely to say yes. Why is that important to a litigator? Quite simply, any litigator wants to persuade a jury, judge or other adjudicator to agree with her, and if the adjudicator likes her, she is more likely to win her case. The key to getting someone to like you is to remember that it’s not just a momentary feeling but a sum of everything that the person thinks about you – and that the feeling is not permanent, but you can at any time do something to improve or to detract from the person’s feeling about you. As a litigator, you are always one misstep from losing the audience. Here are ten things you can do as a litigator that will make you more likable: Focus on how you are perceived. In 2015 Jimmy Fallon put U2 in disguise and had them play at the 42nd subway stop in New York City. Even with cameras around, and the odd fact that the lead singer sounded just like Bono, they were largely ignored. Jimmy then framed the band (again in disguise) as a local band wanting support. Suddenly, once it was known they are U2, everyone went crazy. The most remarkable part was seeing an adolescent looking at them when in disguise as if he is waiting for a car crash, but the next time you see him, after the reveal, he is dancing and completely loving what he is hearing. They music did not change, just the framing. How you appear to your audience will set the stage for how they react and their willingness to give you the benefit of the doubt. See also, Like It or Not: Likability Counts for Credibility in the Courtroom. Ask questions. It is human nature to be helpful, and we all have the desire to share what we know. When someone appears to need our help, we tend to like them more because we are the ones providing answers. Just remember HOW you ask them is crucial.
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
During one college summer, I used to engage in aikido, a martial art. In retrospect, it was all a bit goofy, but I learned some good lessons from it. In particular, I learned about a technique common to many of the martial arts and to conflict in general. This is the idea that you can use someone's momentum against them. If they are running at you, you can move to the side and trip them -- and they will fall. This requires far less energy from you. Similarly, in the courtroom, while there is no physical contact (hopefully), there is certainly a direction and a momentum in the way factfinders arrive at conclusions. We've written about the idea of confirmation bias before in articles like I’m Right, Right? 5 Ways to Manage Juror Bias and Font Matters - A Trial Graphics Consultant's Trick to Overcome Bias. It's a concept that I believe all trial lawyers must understand at least somewhat. In the courtroom, using the momentum of a juror’s beliefs to help further those beliefs is a master trial lawyer technique. A new study reveals just how important it is for high-level trial lawyers to understand this concept of persuasion. The study, reported in the open-access journal Computational Biology, confirms something that is a little sad. It turns out that most humans will continue believing something that they previously believed, even when presented with clear evidence to the contrary and even when it hurts us to continue believing it. It's a bit more nuanced than that, but this is the essence of it. In the courtroom, we regularly work with banks accused of fraud, companies that have allegedly polluted the environment, and tech companies accused of theft of trade secrets. Trial lawyers always have the temptation to simply try to straightforwardly show judges and juries evidence that clearly contradicts the beliefs that those factfinders arrived with. That only makes sense, right? After all, if someone says you put the pollution there and you didn't, you just tell them you didn't do it, bring evidence, and you're off the hook, right? Unfortunately, my experience and this study do not support that idea. All humans arrive with certain biases when they show up to trial – such as these: Bankers are greedy. Oil companies don't care about the environment. Tech companies will do anything to win. All too often, trial counsel puts a lot of effort into trying to disprove these beliefs. Instead, consider the aikido move, step to the side, agree with the momentum, and use it to your advantage as follows: Bankers are greedy, so why would they ever do something that risked their money? XYZ oil company has been more reckless with the environment than you or I, but given what they went through before, do you really think they are dumb enough to do it again? Sure, tech companies will do anything to get ahead, but can you imagine anything more humiliating to someone as competitive as ABC company as looking as if you're not as smart as the other guy? Nothing is worth that when you are a competitive tech geek. In other words, find a way to accept that either your factfinders walked in with a certain bias or that your opponent will help them form a bias during opening statements – and then run with it. There’s no better way to test this approach than in a mock trial setting. That’s where you can learn to anticipate the biases and get ahead of them. Common sense, that new study, and several decades of litigation experience bear this out. Other free A2L articles and resources related to confirmation bias, the overwhelming power of the opening statement, and the power of effective storytelling in the courtroom include: When Smart Ain’t So Smart - Cognitive Bias, Experts and Jurors 7 Ways to Overcome Cognitive Bias and Persuade Still Think Persuasion is About Talking While Showing Bullet Points? 5 Essential Elements of Storytelling and Persuasion How Much Text on a PowerPoint Slide is Too Much? 5 Ways to Maximize Persuasion During Opening Statements - Part 4 Free A2L Consulting Webinar: Persuasive Storytelling for Litigation Good-Looking Graphic Design ≠ Good-Working Visual Persuasion I’m Right, Right? 5 Ways to Manage Juror Bias Persuasive Graphics: How Pictures Are Increasingly Influencing You 14 Places Your Colleagues are Using Persuasive Graphics That Maybe You're Not Font Matters - A Trial Graphics Consultant's Trick to Overcome Bias Why the President is Better than You at Creating Persuasive Graphics Law360 Interviews A2L Consulting's Founder/CEO Ken Lopez Are Jurors on Your “Team”? Using Group Membership to Influence Subscribe to this blog for free
Many times in a typical year, A2L is voted #1 in one of our service areas (jury consulting, litigation graphics consulting, and hot-seat/trial technology consulting) in reader-driven polls. Often these polls are conducted by major legal industry publications and sometimes by bar association publications. We don't announce all of our wins as honestly, I feel a little guilty writing about it. Yes, that sounds a bit like a #humblebrag, but I mean it. I, like all the other authors here at A2L’s Litigation Consulting Report Blog, work hard to create reader-focused articles -- not A2L-focused articles. We publish to engage with the world’s top trial lawyers in a way unlike anyone else. We publish to elevate the overall state of the industry. We publish because we authentically love what we do. Today, we're very proud to announce that the Massachusetts litigation community voted in the annual Massachusetts Lawyer Weekly reader survey and concluded that A2L was a top firm in both courtroom presentations and jury consulting. We are honored and grateful. With that announcement and explanation out of the way, let's make this article about you -- our 10,000 or so readers whom we value so much. Let's even do it in my favorite way possible -- using a list. The ABA said of our blog articles, “It’s hard to resist the infectious numbered-list headlines that keep us reading their chatty, first-person posts answering questions we hadn't yet thought to ask.” So here are the top five reasons why A2L being voted number one matters to you that are in no way about us: These votes are helpful for your client relationship. It’s easier for you if a company is vetted already. As they say, nobody gets fired for hiring IBM, and the same is true when it comes to your litigation clients. Because A2L is regularly voted a top litigation consulting firm, you can make a recommendation to your client with total peace of mind. There is so much to worry about at trial. It’s nice to take one worry off the table by hiring a trial consultant that has this level of approval. This saves your client money. Taking the time to find the litigation consulting firm that’s right for your case is expensive to do well. This effort could easily cost the client thousands of dollars. Instead, you can present these options to your client: we can interview all the regular players or we can believe in the wisdom of the legal community. This saves you time in vetting. Massachusetts Lawyers Weekly issued a helpful guide of top-rated firms like ours. It's a nice peer-reviewed guide that gives you insight into who the best people are. You can download that by clicking here. You know that your peers trust us. At the end of the day, most of us trust our peers to give us good recommendations for everything from doctors to lawyers to handymen. The same is true for litigation consultants. Other free articles and resources related to A2L's jury consulting and demonstrative evidence consulting practices: Three Top Trial Lawyers Tell Us Why Storytelling Is So Important A2L Voted Best Jury Consultants & Best Trial Graphics Firm 3 Types of Litigation Graphics Consultants 11 Ways to Start Right With Your Litigation Graphics Team 21 Reasons a Litigator Is Your Best Litigation Graphics Consultant 5 Settlement Scenarios Where Litigation Graphics Create Leverage 6 Triggers That Prompt a Call to Your Litigation Consultant VIDEO: Working with A2L Consulting - Customers Talk About A2L's Litigation Consulting Services 17 Reasons Why Litigation Consultants Are Better at Graphics Than Law Firms 10 Types of Value Added by Litigation Graphics Consultants The Real Value of Jury Consulting, Litigation Graphics & Trial Tech How Does a Trial Presentation Consulting Firm Do What It Does? With So Few Trials, Where Do You Find Trial Experience Now? 12 Ways in Which We Make a Boutique Litigation Firm Feel Like a Big Firm 16 PowerPoint Litigation Graphics You Won't Believe Are PowerPoint 10 Things Litigation Consultants Do That WOW Litigators 6 Studies That Support Litigation Graphics in Courtroom Presentations FREE Webinar: Persuading with PowerPoint Litigation Graphics FREE Webinar: Storytelling as a Persuasion Tool 10 Things Litigators Can Learn From Newscasters The 12 Worst PowerPoint Mistakes Litigators Make 6 Trial Presentation Errors Lawyers Can Easily Avoid Explaining the Value of Litigation Consulting to In-House Counsel The 14 Most Preventable Trial Preparation Mistakes Trial Graphics Dilemma: Why Can't I Make My Own Slides? (Says Lawyer) Law360 Interviews A2L Consulting's Founder/CEO Ken Lopez
As you might expect, I think about the litigation graphics industry a good deal. It’s a fairly new industry, and it is undergoing constant change. The way I think about it, the industry is actually fairly small. There are perhaps three other serious national players that I would be mildly comfortable recommending when A2L is conflicted out of a case. Still, though, these firms are quite different from A2L, so a trial lawyer should expect an entirely different experience as a customer than with A2L. Most of our competition now uses the term “litigation consultant” that we first started using in the mid-1990s. In fact, we may have been the first to use it the term. However, this term means vastly different things from firm to firm. At A2L, we use the term litigation consultant primarily to refer to attorneys on our staff with a creative expertise, trial experience, and an understanding of persuasion science who interface with trial teams to help: develop the visual presentation develop themes, narratives, and strategies for the opening statement work with our jury consultants to help test cases As one can readily discern, these people are truly trusted advisors. They add value as opposed to taking orders.
by Ken Lopez Founder/CEO A2L Consulting Every month, 1,000-2,000 free e-books and webinars are downloaded and viewed on A2L Consulting's web site. These free resources are likely the single best place on the Internet to learn how the best trial lawyers prepare for and win at trial. It's an exchange of litigation's best practices like no other. Judging by the topics searched for and read during the 100,000+ visits to A2L's website and industry-leading litigation blog so far in 2017, the legal industry is especially eager to learn more about voir dire, storytelling for persuasion (including visual persuasion), and jury consulting generally. Below are the top 10 free litigation best practice resources that have been downloaded and viewed so far in 2017. Choose your favorite(s) now, share this list with friends, and improve your results. Really, everything below is complimentary. 10. The Opening Statement Toolkit: In this 219-page book, you will find 66 articles curated from A2L's massive collection of posts related to litigation and persuasion. Each article relates to opening statements in some way. 9. Why Work with A2L: This free guide details how we think as litigation consultants and the value that litigation consultants provide generally. It's a useful tool to hand to in-house counsel to explain how jury, graphics, and technology consultants can contribute to winning a case. 8. Top 75 Articles of All Time: Our litigation consultants have compiled 75 expert articles on topics related to litigation support and litigation generally. This free book compiled the top 75 articles written in the first five years of our litigation and persuasion blog. 7. The Voir Dire Handbook: This one-of-a-kind and brand-new book will be helpful to junior and veteran courtroom practitioners alike. Because the composition of a jury can dramatically affect the outcome of the case, it is vitally important to get voir dire right and use whatever tools are available for doing so. 6. Using Litigation Graphics at Trial: In our most comprehensive e-book about litigation graphics and courtroom persuasion, A2L's jury and graphics consultants have compiled 74 expert articles in what is a first-of-its-kind book. 5. Tactics for Complex Civil Litigation: Whether you are a veteran trial lawyer or support trial teams, you will find this book valuable. This guidebook includes 74 articles about how to best to prepare and try a complex civil case for bench and jury trials. 4. How to Use Storytelling in Litigation E-Book: In our biggest e-book yet on courtroom storytelling, our litigation consultants have compiled 75 expert articles on topics related to litigation support and litigation generally. 3. How to Design and Use a Great Trial Timeline: This book is a must-have for anyone who prepares informative or persuasive timelines designed to influence and change what people think. 2. Using Storytelling as a Persuasion Tool at Trial Webinar: Whether you are in-house counsel, outside counsel, or litigation support, this 60-minute webinar plus 20-minute Q&A will improve your understanding and use of storytelling techniques during litigation. Led by seasoned litigator, Tony Klapper. 1. The Litigation Consulting Report Blog: Every month, 200 or more people subscribe to our blog. Six years into its existence, there are nearly 10,000 subscribers. You or a friend can subscribe free here, and you can control how often you hear about new articles (published 1x-3x/week) here.
Law360 is a top legal industry publisher owned by Lexis-Nexis. Its daily newsletters are a must-read for trial lawyers involved in big-ticket litigation. This interview, Trial Consultants Q&A: A2L Consulting's Ken Lopez, was originally published on April 28, 2017, and is reprinted here with permission. Links to A2L articles and resources have been added by A2L in this reprint. Q: What aspect of trial consulting do you and your firm specialize in? What is unique about your firm, compared to other trial consulting firms? A: Founded in 1995, our firm is a leading national litigation consulting firm that helps trial lawyers and other advocates more reliably win complex and high-dollar disputes. We are typically in trial year-round and deliver world-class client-pleasing results in three key service areas: jury research and consulting, litigation graphics consulting, and trial technology consulting. We have recently been voted #1 in each of these categories by major legal publications. The composition of our leadership distinguishes it from other trial consulting and litigation consultant firms. Unlike firms whose origins are rooted in the trial technology business, the engineering business or the marketing/public relations fields, our team is composed of experts in the persuasion sciences. These include former litigators from top law firms, attorney-artists and social science Ph.Ds with decades of experience working with judges and juries. We primarily serve AmLaw 100 law firms and their clients. However, the firm regularly works with boutique law firms and in-house departments. It counts amongst its clients nearly all top law firms and a large portion of the Fortune 500. Most people find A2L through its litigation and persuasion-focused blog, The Litigation Consulting Report. It has nearly 10,000 subscribers and was named one of the top ten blogs in litigation by the American Bar Association. Q: What was the most interesting or memorable case that you worked on? A: The average case at A2L Consulting is a business dispute between global companies with $100 million at stake where we provide jury consulting, a mock trial, litigation graphics, and courtroom hot-seat trial technology support. One of our most memorable cases was entirely — not average. Through a top trial lawyer, we were hired to work on behalf of a surviving family member of the 1996 crash of ValuJet Flight 592 in the Everglades. This was not a plane that exploded or quickly crashed. Instead, oxygen containers in the cargo area helped fuel a fire that caused smoke to fill the plane. Then, the oxygen-fueled fire burned through the passenger cabin floor from below. After some time, controls on the plane were destroyed by the fire. Then, the plane flipped and dove into the Everglades below. No one survived. It took a long time for the tragedy to unfold and the passengers had awareness of what was happened. We know this because the plane was equipped with recording devices in both the cockpit and the passenger cabin. The recording is confidential, but none of us who worked on this case will ever forget what we heard on that recording. To help the jury visualize the experience the passengers had, we could have created a 3-D animation to show what the experience inside of the cabin was like. Instead, we synced that chilling audio with an animation we created that helped tell the tragic story. Once the animation was admitted into evidence, the case quickly settled. Q: Which stage of the trial process is the most challenging, and why? A: While we support all phases of litigation from prefiling to appeal, our firm most often focuses its consulting efforts on the opening statement. Indeed, we speak and write about opening statements often. Perhaps second only to jury selection, the opening statement can make or break an entire case. It provides the framework and narrative upon which the judge or jury will hear the evidence. For many, consciously or subconsciously, the decision about the outcome of the case will be made during opening statement. Because the opening statement is so critical, the best trial lawyers expend enormous amounts of effort preparing for openings. I’ve seen some trial lawyers practice their opening more than 100 times over the course of a year. Not surprisingly, these trial lawyers tend to win their cases. In every type of litigation consulting we provide, the opening statement is a central focus. When we conduct a mock trial, the attorneys present their openings to mock jurors or mock judges. When our senior litigation consultants work with top trial lawyers to refine their trial presentation, we ask them to present their openings as part of that process. When we design a PowerPoint presentation for opening, we ask our clients to do run-throughs of openings. When we introduce one of our trial technicians/hot-seat operators to a trial team, we ask the first chair to practice opening statements so they develop a rapport with the trial tech. Indeed, sometimes, we are asked to draft an opening statement as part of our litigation consulting effort. Opening statements are the most challenging part of the trial process because they should be. Cases are regularly won and lost because of them. Q: How has trial consulting evolved over time? What major differences are there between the industry when you started and the industry now? A: Our firm, now a national litigation consulting firm with jury consulting, litigation graphics consulting and trial technology consulting practices all voted #1 by the legal industry, was started as Animators at Law, an animation and litigation graphics firm for trial lawyers focused on persuasion. Back in the mid-1990s when we started our firm, the idea of using demonstrative evidence/litigation graphics during a trial was new. Today, no serious trial lawyer would go to trial in big-ticket litigation without litigation graphics and nearly all would hire a litigation graphics consulting firm like ours. When we started our firm, PowerPoint did not exist. Most litigation graphics were printed trial boards. Today, trial boards are used as unique emphasis tools that supplement a PowerPoint trial presentation. The practice of jury research has changed too. It has evolved from a guru-dominated practice where gut instinct drove many decisions. Today, there is more scientific rigor among top jury research firms. They let the data speak for itself and supplement that data with advice based on experience. Of course, the trial technology practice has radically changed. In the 1990s, it barely existed. Now, the complexity of cases demands that an experienced trial technician/hot-seat operator run the technology, show the trial presentation and be ready to pull up evidence on a moment’s notice. Q: What are some of the biggest challenges when working with attorneys and their clients? A: One of my colleagues likes to say, “they call it the practice of law, but nobody is practicing.” I agree wholeheartedly. If I could change one thing about the way trial lawyers prepare for trial, it would be the way they practice. The correlation between open practice in front of peers and winning cases is unmistakable. Half of the time, trial lawyers practice extensively and seek feedback from litigation consultants and colleagues. These lawyers tend to win their cases. When we see a trial lawyer who wants to privately prepare their trial presentation on the eve of trial, we worry. It’s not that this approach can’t work. It often does. Instead, we simply recognize that the more a trial team openly practices, the more often that trial team wins.
by Ken Lopez Founder/CEO A2L Consulting Imagine a world in which the best trial lawyers work in small boutique litigation firms and charge clients half of current rates. Many people have imagined such a world for a long time, and even though we're not there yet, we're closer than we used to be. Today, a few of these smaller firms do exist. They are being run by some of the world's best trial lawyers, and these lawyers do in fact charge a lot less than they used to. However, this does not represent a new type of law firm; this type of firm has always existed. After a while, these firms either become large law firms with a refreshed culture of entrepreneurialism (e.g. Boies Schiller) or they get absorbed into a big law firm (e.g. Bancroft LLP into Kirkland & Ellis). Only a small handful of firms have found something of a middle ground and are able to deliver large law firm results without a lawyer headcount in the thousands (e.g. Bartlit Beck and Williams & Connolly). Working closely with boutique law firms as we do, I see that large companies are getting much of what they hoped for. They get exceptional lawyering, better rates, and that big-firm swagger that unmistakably contributes to winning cases. There are some gaps, however, and the best of these firms acknowledge it and fill it with litigation consultants. It turns out that sometimes the resources and scale of a large law firm are precisely what is needed to overwhelm and overrun an opponent. A large enough army can always overrun even the most elite small special forces team. However, this is only true if the elite group does not have a means of bringing in more support on a moment's notice. The best in-house departments see this nimbleness as a strength. Our litigation consulting firm is often called upon to serve in this role. So here are 12 ways that we can make a litigation boutique as powerful as a very large law firm. We help keep prices down. If you're a big law firm, built into every hour billed is a cost for marketing, all those offices, and all that support staff. That is not true for a small firm. The small firm does not need to keep full-time staff on hand for services that are more efficiently outsourced (e.g. litigation graphics, trial technician services, and other trial consulting services). See 17 Reasons Why Litigation Consultants Are Better at Graphics Than Law Firms. We amplify the skills of the best members of the trial team. Part of our role for many of the top trial lawyers is to help them hone their skill set. See Your Coach Is Not Better Than You – in the Courtroom or Elsewhere. We amplify the skills of other members of the trial team. In the new litigation boutiques, there are often a handful of superstars, but there are always some lawyers who can benefit from learning the best practices of the best trial lawyers. Firms like A2L are in a unique position to transfer skills from one top trial team to another. See How to Get Great Results From a Good Lawyer. We free up the busiest trial lawyers to do what they do best. When you're one of the elite, management of your time is essential. Saying "no" and letting go becomes the new "yes." See How Valuable is Your Time vs. Litigation Support's Time?
by Ken Lopez Founder/CEO A2L Consulting Our clients at A2L tend to be the best of the best trial lawyers. It's a privilege to work with the people that we work with. We learn from them, and they learn from us. It's that last point, though, that can be a sticking point for trial lawyers who are not used to working with litigation consultants. They wonder . . . Why would I need a litigation consultant or coach if I'm already recognized as one of the best at what I do? I know I'm one of the best, and I know this litigation consultant is not better than me, so how are they helpful? What if I'm perceived to not be as good as my reputation? All these responses are very normal reactions to someone accepting coaching for the first time or for the first time in a long time. However, they can all be answered with some combination of the following three answers: Most of us have had a coach at some time in our lives. If we were very young, they were probably better than us, and they could show us the right things to do to be better at our craft. If we were adolescent or older, our coaches were often not better than us at the thing being coached. Instead, in adulthood, our coaches are usually not there to model the behavior that makes us better. Rather, they are there to help us be our best. Whether it is observing our golf swing and using cameras and computers to compare it with the ideal golf swing; whether it is telling us whether our piano concerto is being played with emotion and passion as opposed to being too mechanical; or whether it is suggesting a rearrangement of the order of an opening statement; the idea is the same. The goal of a great coach is to bring out the best. See, The Real Value of Jury Consulting, Litigation Graphics & Trial Tech. At the risk of quoting a litigator colleague too often in my writings, I will note again that they call it the practice of law but nobody is practicing! It’s only a minority of trial lawyers who routinely practice their trial presentations. I think they are doing themselves a tremendous disservice when they don't practice, and I don't believe the clients should tolerate this. A litigation consultant will make sure they practice and will help them practice. See, 25 Things In-House Counsel Should Insist Outside Litigation Counsel Do Even Michael Jordan, Tiger Woods, Katy Perry, and Joel Osteen have had coaches. All of these people were better than their coaches. You may be the best at what you do, but ask yourself, why do people who are the best at what they do still use coaches? To make it really hit home, ask yourself why many of your colleagues from other firms use litigation consultants to improve their results at trial? The answers will help you become a better trial lawyer. See, Accepting Litigation Consulting is the New Hurdle for Litigators Other FREE A2L Consulting resources about practicing for trial, using litigation consultants, the value of a litigation coach, and how to best practice your trial presentation: 7 Things In-House Misses When Litigation Consultants are Underutilized Lawyers: It’s Time to Make Time for Trial Preparation 12 Reasons Using Trial Consultants (Like Us) Is Possibly Not Fair The Magic of a 30:1 Presentation Preparation Ratio [Free Download] Trial Lawyer’s Guide to Jury Consulting & Mock Trials The Very Best Use of Coaches in Trial Preparation 21 Reasons a Litigator Is Your Best Litigation Graphics Consultant Practice, Say Jury Consultants, is Why Movie Lawyers Perform So Well 6 Ways to Use a Mock Trial to Develop Your Opening Statement With So Few Trials, Where Do You Find Trial Experience Now? Litigator & Litigation Consultant Value Added: A "Simple" Final Product Litigation Consultant: Embrace a Two-Track Strategy & Win the War 3 Ways to Force Yourself to Practice Your Trial Presentation 6 Good Reasons to Conduct a Mock Trial 25 Things In-House Counsel Should Insist Outside Litigation Counsel Do The 5 Very Best Reasons to Conduct a Mock Trial FREE E-BOOK: Making Great Speeches and Connecting with Your Audience Accepting Litigation Consulting is the New Hurdle for Litigators 16 Trial Presentation Tips You Can Learn from Hollywood Practice is a Crucial Piece of the Storytelling Puzzle Mock trial services lead by a jury consultant with 400+ mock trials 50 Characteristics of Top Trial Teams The 14 Most Preventable Trial Preparation Mistakes 7 Habits of Great Trial Teams 10 Criteria that Define Great Trial Teams Free Guidebook: Why Should I Work with A2L Consulting?
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