by Ken Lopez Founder/CEO A2L Consulting In my previous three posts concerning the “Reptile” trial strategy, I provided an introduction to the strategy, I discussed how to spot it, and I discussed why the science that its authors claim supports the strategy is just plain wrong. As I have mentioned in previous articles, this trial strategy has been largely absent from the types of cases that we work on at A2L. However, with high-stakes pattern litigation on the rise, and with the increase in sophistication on the plaintiffs side in big-ticket litigation, the “Reptile” is something that medium and large law firm defense firms must be able to spot and to cope with. In this article, I will focus on the critical fact that, despite the bad science that its authors employ, the Reptile trial strategy still works. In other words, the “Reptile” advocates are tapping into authentic ways of persuading jurors. There are at least seven reasons for that. The “Reptile” advocates suggest using a strong theme that is constantly reinforced throughout the case from complaint to closing. That's just good lawyering, and a majority of lawyers still don't do this. See 14 Differences Between a Theme and a Story in Litigation. Similarly, they encourage focusing on a consistent strategy from the very beginning of the case. Few defense counsel do this throughout a case, and again, following this practice is just good lawyering. See Planning For Courtroom Persuasion? Use a Two-Track Trial Strategy. They encourage the use of narrative as a persuasion strategy. We've written about that many times, and they are right to encourage it, because it works very effectively. Our proposed narratives are based on real psychological science and theirs are not, but the use of narrative is a very good idea. See $300 Million of Litigation Consulting and Storytelling Validation.
by Ken Lopez Founder/CEO A2L Consulting As I discussed in Part 1 of this series, the “reptile” trial strategy is quickly spreading among plaintiffs counsel. Some plaintiffs counsel have, in fact, claimed that the strategy has resulted in verdicts totaling more than $6 billion in the past few years. In a large room of defense attorneys to whom I made a presentation last week, more than half reported having seen the strategy used in one of their cases. I think that may just be the tip of the iceberg. It appears that many defense counsel are being subjected to the strategy and don't know it is happening to them until it is too late. In light of this fact, below are 10 ways to spot the strategy. In subsequent articles, we will discuss what to do to counter it. From the very start of your case, look for any of the following 10 phenomena: You encounter themes suggesting that the community needs to be protected from the defendant; e.g. “Walking past stores on Main Street is part of what it means to be American.” The behavior of the plaintiff or other contributing or mitigating traits of the plaintiff are ignored, and instead the plaintiff works hard to keep the focus on the defendant or even an idealized defendant. Plaintiffs introduce a discussion of “safety rules” throughout all pre-trial phases of the case; e.g. “Do you agree that keeping the public safe is a key role of your train operators?”
When it comes to jury selection, many lawyers are eager to win voir dire. After all, this is their chance to shape the jury pool and hopefully secure a favorable verdict for their client. However, there are several reasons why trying to "win" voir dire may not be the best strategy. Here are five reasons why you might want to reconsider your approach:
by Ken Lopez Founder/CEO A2L Consulting I've seen litigator ego contribute to the winning of cases and the losing of cases. Unfortunately, however, I've seen more cases lost because of it than won because of it. What do I mean by the ego of a litigator? If you've worked around litigators (or litigation consultants for that matter), you already know what I mean. For anyone else, I'm referring to all those first-chair litigators in trial-related situations who put themselves ahead of the client's best interests. The best definition I have found of “ego” is "the idea or opinion that you have of yourself, esp. the level of your ability and intelligence, and your importance as a person." In litigation, we see how ego can play both good and bad roles. Sometimes the presence of ego leads to good outcomes, as it is at least in part ego that allows a litigator to ignore the advice of a client who may be too close to their problem. More often, however, we see ego show up in ways that are counterproductive for the client. For example, in situations where:
by Ken Lopez Founder/CEO A2L Consulting I'm absolutely thrilled to announce the release of A2L Consulting's latest free litigation e-book, The Opening Statement Toolkit. You may download this book with no strings attached right now by clicking here. 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. From organizing the opening to the use of storytelling techniques to persuade, the book contains an amazing array of tips that will prove valuable to the novice litigator and the veteran alike.
by Ryan H. Flax, Esq. In our most recent post, we discussed how important it is to use an opening statement to make jurors like you as a person and thus embrace your client’s case. Another key theme of opening statements is storytelling. Everyone is always advising lawyers to use storytelling to be more persuasive. So, why isn’t it happening more? Maybe no one is reading these publications. Or perhaps when preparing for trial, we’re mired in details and chronology. In law school, we’re taught how to deal with this Venn diagram involving the intersection of the law and the facts. Never are we taught that the real intersection we care about involves human beings, how they think, how they learn, and how their influenced.
by Ken Lopez Founder/CEO A2L Consulting Unfortunately, I have the memory of an elephant when it comes to life's uncomfortable moments. One of those occurred during undergraduate school at the University of Mary Washington almost 30 years ago. Like it was yesterday, I remember reviewing my professor's notes on a graded paper. Burned in my memory is the red-pen-circled-notation, "cliché." At the time I really didn't understand why using a cliché would be a problem. After all, it's just a linguistic shortcut, and having my professor deduct points for it struck me as splitting hairs. At the end of the day, a cliché is really just a culturally entrenched phrase that shortcuts language and allows us to speak more efficiently, right? Well, not exactly. Clichés are really the place where good metaphors go to die. That is, what was once a useful language shortcut becomes so overused that it is negatively labeled a cliché. So, what's all the hubbub about when it comes to using clichés in litigation for persuasion? It turns out that by taking the easy way out and using a cliché, you will significantly harm your courtroom persuasion efforts.
by Ken Lopez Founder/CEO A2L Consulting Do I really need a local jury consultant? It's a question that I hear our clients struggle with frequently. The answer is maybe you do, maybe you don't. The gut instincts of many are that a jury consultant who regularly works in the jurisdiction will provide special insights that trial counsel, often admitted pro hoc vice for purposes of trial, could use to persuade the jury more effectively and have first-hand knowledge that will help in jury selection because of specific, local nuances. I understand the instinct, since - when going to trial - you naturally want every single advantage, and it's natural to fear that there are some things you just don't know about your potential jurors, your judge, the courthouse or the local community. While I understand the rationale, both emotional and logical, I've come to believe that such beliefs are now outdated and reflect pre-Internet thinking. Much like the need for 8-glasses of water a day, waiting an hour after eating to swim, or humans using 10% of their brains, I think these beliefs about local jury consultants are mostly stubborn old wives' tales. The reality is that human beings make decisions following the same principles, regardless of where they may live, and the psychology of persuasion, as well as individual and group decision-making does not need to be reinvented from place to place. What you need and can rely on is the best consultant with the best skills, regardless of their location. I'd like to offer seven ways of working through this challenge with a solution for you, whether you believe a local jury consultant helps or whether you believe hiring the best jury consultant is best for your case.
by Ken Lopez Founder/CEO A2L Consulting There are many annual surveys that help rank law firms, specialty legal training programs and legal vendors and consultants. The annual Best of The National Law Journal is the crown jewel of these surveys. A2L Consulting is honored to have been nominated and voted best litigation graphics provider and best jury consultants in this and other polls many times before. By voting in such surveys, I believe we make our industry better by acknowledging those who contribute to it the most. While I would certainly be thrilled, honored, and grateful it if you would vote for A2L on questions #58 and #61 in the categories of Best Demonstrative Evidence Provider and Best Jury Consultants, I think simply voting is very valuable for all of us. Here is a link to the survey that is only open for a little bit more time. Note, not all questions have to be answered, but you do have to click the "Done" button at the end. https://www.surveymonkey.com/s/2015BestofNLJ
As a CEO for nearly 30 years, I understand the importance of job satisfaction for employees. Throughout my career, I have witnessed firsthand the impact that a positive work environment can have on employee morale and productivity. Employees thrive in an atmosphere that fosters collaboration, respect, and open communication.
In today's complex legal landscape, seeking guidance and support during times of legal battles is a natural instinct. People often turn to their close circle of advisors and friends for advice and support. While it is understandable to seek comfort and reassurance from those we trust, it is important to exercise caution when relying solely on the opinions of these individuals.
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