by Ken Lopez Founder/CEO A2L Consulting Every year, our firm receives awards in a variety of litigation consulting and blogging categories. I don't often promote those achievements in this blog, as I regard the blog as primarily educational in nature. However, I do believe that there is real value in knowing which firms your peers are rating highest in the industry. Not only does this help you save time and energy when you want to engage a litigation support firm, it helps you know the up-and-coming firms and what the market trends look like. Recently, Legal Times, one of a few elite legal publications remaining, asked its readership to identify the best consultants in a variety of categories including e-discovery, legal banking, legal recruiting, and many more. I'm happy to announce that A2L Consulting was voted the number one jury consultant ahead of other industry giants FTI Consulting and DecisionQuest. I've always admired those firms and the work that they do. We are friendly competitors, and I congratulate them on their achievements. The leader of our jury consulting practice is jury consulting industry veteran Dr. Laurie Kuslansky. Coincidentally, she has held leadership positions with both of the other two top-ranked firms. Her record and reputation in the industry are excellent, and her bio/CV/references can be viewed or downloaded here. Dr. Kuslansky shares my view that jury consultants alone are not to be relied upon as gospel for advice on jury selection, theme development, and storytelling. This method of jury consulting is antiquated, but still practiced by many jury consultants. The preferred method for assisting top trial teams is, rather, to listen to the data developed by conducting well-designed mock trials and focus groups. The data is in the form of feedback from mock jurors or mock judges. Any jury consultant can offer a gut instinct (no matter how suspect that instinct is). However, it takes a great jury consultant and jury consulting firm to show restraint and properly interpret the data and feedback from mock jurors and focus group members and know how to blend art and science. The magic comes when a jury consultant can properly obtain good data, interpret it, wisely season it with insightful judgment, and taking in the input of the trial team. Blindly applying data or narrowly focusing on instinct each has its perils. Likewise, asserting oneself as the smartest person in the room is hardly the team approach clients prefer.
by Ken Lopez Founder/CEO A2L Consulting
by Ryan H. Flax (Former) Managing Director, Litigation Consulting & General Counsel A2L Consulting It’s always interesting to me how humans view and judge each other. We all do it almost all of the time, in every interaction with other people. We even do it when we don’t even interact with others, for example, while driving or watching TV. We develop little dramas and characters in our minds to make sense of the world around us and its characters. This is particularly important in my profession, where my goal is to help litigators frame their case or showcase their client in a compelling and engaging way for judge or jury. I’ve just watched the video below and it highlights how important it is to frame our clients’ character correctly when we want a decision maker to see things our way. That “correct” way of introducing our client is whatever way will result in a decision in our favor – Ask: what would make the judge or jury feel our client should prevail?
by Ken Lopez Founder/CEO A2L Consulting Since first being exposed to the group psychology work of Wilfred Bion 15 years ago, I've been completely fascinated by it. I think his theories perfectly explain the behavior of every group that I've ever encountered. From boards that I sit on to groups on reality TV shows, they all behave in the same predictable ways, especially when placed under pressure. I think the author Robert Young captures the essence of the group dynamics model Bion describes when he says, "My experience was that, sure enough, from time to time each group would fall into a species of madness and start arguing and forming factions over matters which, on later reflection, would not seem to justify so much passion and distress. More often than not, the row would end up in a split or in the departure or expulsion of one or more scapegoats." I've written about Bion's work before in 5 Signs of a Dysfunctional Trial Team (and What to Do About It) and When a Good Trial Team Goes Bad: The Psychology of Team Anxiety. These articles and Young's article from the Human Nature Review provide a good introduction to Bion's group dynamics model. Here are the key aspects of Bion’s group dynamics model. In Bion's framework, groups are always functioning in one of two modes. Either they are working or they are operating dysfunctionally (he called this later state the Basic Assumption State). Both groups rely on a leader, and the members interact with the leader in predictable ways. In the working group, the group gets things done. They understand the meaning of the task at hand and cooperate to get it done without unnecessary emotional distress. In the dysfunctional group, much less gets done, and the group moves through a progressively worse set of dysfunctional behaviors triggered by some anxiety or pressure. Initially, the dysfunctional group will attempt to look to the leader to make the anxiety go away by treating the leader as a type of wise superhuman. If that fails to make the anxiety go away, two or more members of the group will begin to conspire to replace the leader or form a new group, If that does not work, fighting and/or departures will begin. All of this is subconscious, but once you understand the patterns, you'll see them everywhere. Knowing where you are in the process of dysfunction can be one of the most valuable tools a manager, leader or consultant can have. I bet you can guess another group that behaves in predictable ways that I have an interest in — that's right, juries. And they certainly behave in ways that solidly fit Bion's group dynamics model. If you understand how this works, you can use this knowledge during jury selection. Our team has seen thousands of juries deliberate. That's unusual since jury deliberations are secret. Of course, when we see them deliberating, often four juries at a time, it is behind the one-way mirrors of mock trial facilities. The behavior we see from jury to jury is remarkably consistent. We've detailed some of these behaviors in the article 10 Things Every Mock Juror Ever Has Said and the webinar and the podcast 12 Things Every Mock Juror Ever Has Said. Furthermore, an article by A2L's Managing Director of Jury Consulting, Dr. Laurie Kuslansky, called 10 Ways to Spot Your Jury Foreman is a useful background piece for those interested in this area of study.
by Ken Lopez Founder/CEO A2L Consulting A new friend of mine had been the head of litigation at a Fortune 500 firm known for frequently being involved in litigation. He said something interesting to me earlier this week: “You guys put the best information out there. You synthesize litigation information better than anyone else. But does it translate into business for you?” He said that last part with a bit of skepticism in his voice. That was an “aha” moment for me. I realized that I really haven’t talked much about how helpful our blogging has been to our business (and might be for yours), so I want to share some of the amazing facts about it. A month ago, we celebrated our 7,500th subscriber who signed up to be notified of new articles in this Litigation Consulting Report Blog. In just four and a half years, we have gone from zero subscribers to 7,500. We have progressed from 800 visitors to our website each month to about 20,000. We've gone from a small handful of downloads from our website each month to about 2,000 per month. We've gone from a couple dozen published articles to more than 500. Even the American Bar Association has called our blog one of the very best. That is amazing, and I've shared most of that information in some form before. Here's the most important piece I've never shared, and it's what I shared with my new litigation friend: Just about every business day, sometimes many times per day, someone asks about working with us as a result of reading something on our blog.
by Ryan H. Flax, Esq. (Former) Managing Director, Litigation Consulting & General Counsel A2L Consulting I’ve passed another anniversary at A2L Consulting and in my time as a litigation consultant I’ve been both surprised and reassured about the state of the litigation business and its players (I also wrote about my surprises upon beginning my career as a litigation consultant). I’ve seen both the very best and quite bad litigators in action and have consulted for both. Although some litigators don’t live up to my high standards, I’m impressed by many litigators as both professionals and people. Here are seven of my observations over these years that I think might help you in your practice. Many Lawyers Confuse Chronology With Storytelling It is almost universally accepted that storytelling is important to engaging an audience (including a jury) and that framing a client’s case as a compelling story is key to doing your best at trial, particularly in opening statements. But more often than not, when I ask a litigation team what their client's story is, rather than explain “why we’re really here” as they would to a jury and illustrate some conflict and emotionally valuable moral that is critical to juror engagement, they rattle off some chronological series of events that led to a legal injury to their client or some misconstrued relationship by the opposing party. These are not stories and presenting a case framed this way, while possibly interesting to a legal scholar, is not compelling to a juror. I’m surprised that so many smart litigators fall into the chronology trap and forsake emotional connection to engage jurors. I don’t advise pandering to a jury or excessive emoting by a litigator, but for a jury to care about you and your client and generate the stamina jurors need for a trial, litigators must tap into their emotional brains. This is not done by an information dump, a calendar, or using a lot of words. A story answers the question posed above – why are we here today, in this courtroom? A story also has all the stuff you learned in grade school: a beginning, middle, climax, and end, characters, setting, theme, and moral. Some Lawyers Focus Too Much on Too Small Things It’s easy for litigators (even more so for the associates doing the day-to-day stuff) to over-focus on every detail. The prospect of overlooking a potentially key piece of evidence or being surprised by an unknown fact exposed by opposing counsel is frightening for attorneys (it was for me), so we often wind up thinking way too much about every little thing in a case. This is called being “in the weeds,” and when you’re there it’s exceedingly difficult to escape without help. It happens with the selection of evidence, with witness prep, and even with the development of graphics, where sometimes counsel wants to very carefully think over every aspect, e.g., choosing what font style and color palette and slide aspect ratio will best work for their case. On each of these things, I urge counsel to take a step back and delegate where possible so they can focus on the BIG PICTURE. The best first-chair litigators do this naturally, and the rest of us need to do it deliberately. Attorney time and brainpower should be spent on figuring out what it will take to win. Let litigation graphics consultants decide what font works best for your opening statement presentation. It will be a relief when you do.
by Ken Lopez Founder/CEO A2L Consulting Today is the 20th anniversary of the founding of A2L. We literally started in a closet not long after I finished law school. First, we were Animators at Law. Then almost five years ago, we became A2L Consulting to reflect the fact that litigation graphics were now less than half of our business. Jury consulting, trial technology support and litigation advisory services are now a bigger part of what we do. Twenty years later, we're a national litigation consulting firm and arguably, the very top litigation consulting firm in the country. That's not mere puffery. We're consistently voted #1 in local and national legal industry surveys. To celebrate our 20th, here are 20 new realities that litigators, in-house counsel and litigation support professionals should consider. 1. The New CLE: It is a rare CLE seminar that does not put us all to sleep. I think that modern formats of continued learning like our Litigation Consulting Report blog and other litigation blogs, including those recognized by the American Bar Association, are the best places to go for continued learning. It’s time for the legal establishment to agree. 2. The power of storytelling: The science behind the effectiveness of storytelling as a persuasion device is just now coming into view. It is critical for litigators to study this field and to understand the insights it has developed. See, Storytelling for Litigators E-Book 3rd Ed. 3. Big firm litigators rarely try cases: As a result of this new reality, litigators must get a new kind of help - help from trial tested litigation consultants. These courtroom experts may participate in 50-100 trials per year. It just stands to reason that they can help a litigator who is in court far less frequently. See, With So Few Trials, Where Do You Find Trial Experience Now? 4. Using PowerPoint incorrectly does more harm than good. Most lawyers will actually design slides for themselves that will reduce overall persuasion - but they don't have to. See, How Much Text on a PowerPoint Slide is Too Much? 5. Juror expectations are on the rise: Jurors expect litigators to wow them a bit with graphics and to keep them interested. They know what can be done in the form of graphics and at a lower price than ever before. See, Will Being Folksy and Low-Tech Help You Win a Case?
As a legal professional, it is crucial to ask the right questions during voir dire to ensure that you select your best jury. One way to prepare for this is through a mock trial.
by Ken Lopez Founder/CEO A2L Consulting We have been publishing this blog for almost five years now, and we keep finding new and better ways to share our insights. Our free e-books are downloaded thousands of times per month, our webinars are viewed by hundreds, and every month, more than 200 new people subscribe to our blog. Today, we're announcing a new way for you to benefit from our valuable free content about litigation and persuasion — podcasts. As technology has advanced over the past 10 years, podcasts have moved from obscurity to mainstream. Briefly, a podcast is a type of digital media that is essentially a radio show that can be streamed online to a computer or mobile device. The term was invented in 2004 as a combination of the word “pod” for the iPod and the word “broadcast,” but podcasts can be accessed on any capable device, not just on the iPod. Here at A2L, we are kicking of our new Trial Tips Podcast by introducing three long-format podcasts. Each is an audio version of one of our webinars. These are not just any webinars, but our three most popular webinars. Storytelling in Litigation 12 Things Every Mock Juror Ever Has Said 5 Ways to Maximize Persuasion During Opening Statements You can start enjoying this content right now for free by clicking here to access our podcast directory.
by Ken Lopez Founder/CEO A2L Consulting Well, yes, of course they can. In fact, we are hired by them with some frequency. Let’s be specific. Our firm is just about 20 years old, and while our typical client is a medium-sized to mega-sized law firm, we work with a government entity every month of the year. Usually, our work is on behalf of some entity of the federal government, typically the U.S. Department of Justice or some other agency such as the Environmental Protection Agency. A typical large engagement for A2L Consulting would involve conducting several multi-panel mock trials that would help inform the development of litigation graphics, the jury selection, and the overall trial strategy. It would involve the development of litigation graphics for both sides of the case through the mock trial. It would also involve a full development of our side of the case, including the incorporation of storytelling techniques into the opening statement presentation. It would then involve a trial technician who would develop the database of video depositions and documentary evidence for instantaneous display. This is not what a government entity hires A2L for.
by Ken Lopez Founder/CEO A2L Consulting
by Ken Lopez Founder/CEO A2L Consulting Welcome back from summer (to most), and welcome to the busy fall/winter litigation season. This blog, The Litigation Consulting Report, is now just about 4 ½ years old. In that time, we have written nearly 500 posts on dozens of trial and presentation-related subjects, including everything from TED talks to Reptile trial techniques to voir dire best-practices. We've earned accolades, won awards, won countless trials, and we have steadily grown our number of subscribers year after year, and I'm especially thrilled to say that we've just signed up our 7,500th blog subscriber! Every subscription is free, and perhaps that is part of the reason it took us less than a year to grow our community from 5,000 subscribers in September 2014 to 7,500 subscribers in September 2015 — a 50% increase. To celebrate reaching 7,500 blog subscribers, today we’re publishing (as a free download) this collection of our very best articles to date called, A2L Consulting's Top 75 Articles of All Time. By "very best," I mean that our readers have, by choosing which articles they read most, told us which articles they think are the best. On the Web, your clicks are your votes. We’re thrilled to receive this feedback from you.
By Jim Grandone Special Guest Author Grandone Media Strategies A lawyer I worked with recently summed up the love-hate relationship between lawyers and the news media as follows, “We spend 50 percent of the time trying to get publicity about our firm and the other 50 percent worrying about what the press is going to write about us.” It’s true that in some states, there are constraints on what a lawyer can say about a pending case. But in general, a lawyer is allowed to discuss the basics --such as the claim, the offense or defense involved, and (except where prohibited), the identity of the persons involved; any information on the public record; the fact that an investigation is in progress; and the scheduling or result of any step in litigation. Why then are lawyers so reluctant to speak to reporters? After all, these allowable types of comments – and many states permit lawyers to say even more about their cases – give lawyers considerable leeway to talk to reporters. So you can go ahead and promote whatever your firm is doing that is admirable, successful or high-profile. Reporters already have instant electronic access to what you have filed, so why not emphasize the most important messages? Do not expect the reporter to communicate your key message for you! You can reach your most important audience outside the courtroom by simply reiterating what you have already said in court documents, even if it is only a summary. Develop a message and clearly communicate the key points of the case.
by Ken Lopez Founder/CEO A2L Consulting This is the fifth and final installment in a series of articles focused on how defense counsel can overcome the increasingly popular Reptile trial strategy. In parts one through four, I offered an introduction to the strategy, I shared ten ways to recognize when the strategy is being used against you, I explained why the strategy does not actually work in the way that its authors describe, and I explained that despite the bad science, the Reptile trial strategy still works. In this post, I summarize how to overcome the strategy in both the pretrial and trial phases of a case. I rely heavily on the work of Jill Bechtold of Marks Gray and Steve Quattlebaum of Quattlebaum, Grooms & Tull. They were my co-presenters at a recent defense attorney-focused conference devoted to repelling the Reptile strategy. One theme that clearly emerges from the 12 points below is that being a good defense lawyer is more important than ever. No longer is it enough simply to outlast your opponent. No longer is it enough to come up with a great theme and narrative just before trial. Because the Reptile strategy often begins with the complaint, a defense against it must start shortly thereafter -- or you will pay the price later. Spot the Reptile: It can appear as late as closing arguments, but more often than not, plaintiffs counsel will introduce the key themes as early as the complaint. See, 10 Ways to Spot the Reptile in Action. Read the Book: I hate to say this, but you probably should read it. It is Reptile: The 2009 Manual of the Plaintiff’s Revolution by David Ball and Don Keenan. Spot your Opponent on the Reptile Hall of Fame: https://edgeverdicts.com/ (paywall) Plaintiffs counsel with a record of using the Reptile strategy are listed here. Is one your opponent?
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