by Tony Klapper Managing Director, Litigation Consulting A2L Consulting I was reading the Washington Post’s Business section on Sunday morning, and a front-page article about Sean Parker caught my eye. Parker, dubbed “Silicon Valley’s Bad-Boy Genius,” co-founded Napster and was the first president of Facebook. He was also played by Justin Timberlake in “The Social Network.” Far from a routine business profile, this article provides several fascinating lessons concerning the importance of creative collaboration. Apparently tired of catering to the entertainment needs of millennials, Parker recently launched the Parker Institute for Cancer Immunotherapy. Although it was notable that Parker invested $250 million to support groundbreaking research into eradicating a disease that kills millions each year, even more important is his model of creating a “sandbox” for scientific research. At press time, six premier medical research institutions—Stanford, Hopkins, MD Anderson, UPenn, UCSF, and UCLA—had signed up to be part of the consortium that Parker is creating to fight cancer. The premise behind the effort is that working together in the sandbox is far more effective than working alone. That truism is not one that is always followed.
by Ken Lopez Founder/CEO A2L Consulting In 20 years as a litigation consultant, I’ve personally seen hundreds of litigators try cases, and I have heard the observations of my colleagues on other cases, probably amounting to thousands of cases in all. So I’m in a pretty good position to evaluate what works and what doesn’t work, based on a non-scientific study of trials and trial teams.
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 Earlier this week I published, 25 Things In-House Counsel Should Insist Outside Litigation Counsel Do. I realized something important while writing that article and while participating in follow-up discussions with readers and colleagues. It's an important realization as I think recognition of it might just lead to better litigation results and money savings for in-house counsel. Here it is. Because of the current state of the relationship between most in-house counsel and outside litigation counsel, outside counsel are not asking for budget for everything they believe would help win a case. This is leading to short term savings and longer term major expenses.
by Ken Lopez Founder/CEO A2L Consulting A little more than a month ago, I surveyed our readership and asked, "how does in-house counsel hire outside litigation counsel?" Six possible answers were presented in random order. In-house chooses the lowest priced firm from a group of approved firms. In-house hires the best litigator based on prior experience. In-house hires the best litigator based on their reputation. In-house hires their litigator friends and former (or future) colleagues. In-house hires the litigator most likely to generate a win. Finally, a write-in field for other responses answers Having worked in the litigation industry for more than 20 years and seeing favoritism trump skill plenty of times, I expected some cynicism to show through in the answers provided. However, even with that expectation, I was still very surprised with the results.
by Ken Lopez Founder/CEO A2L Consulting
by Ken Lopez Founder/CEO A2L Consulting
by Ken Lopez Founder/CEO A2L Consulting We often work on large cases, and large cases often have joint defense teams. A joint defense team is simply a group of law firms working for a group of clients and/or working on some issues together in a case. Some joint defense teams work together brilliantly. It's like watching the best NFL players come together for the Pro Bowl game when each of them plays as a member of the same team. In a trial, sometimes the whole “dream team” unites to prevail. It's a beautiful thing to watch -- when it works. Unfortunately, it doesn't seem to work that way very often. In a recent engagement I watched a well-organized team in the run-up to trial perform beautifully. They had sorted out communication, who handled what issues, leadership, client communications, and billing arrangements with no apparent drama. I can contrast that with any number of large cases where the opposite is true. These are unfortunately the majority of joint defense efforts. In these cases, turf battles are common. As much time is spent on politics as is spent on winning the case. I suspect cases have been lost entirely because a joint defense effort has failed.
by Ken Lopez Founder/CEO A2L Consulting
by Ken Lopez Founder/CEO A2L Consulting
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