The Litigation Consulting Report

by Ken Lopez Founder/CEO A2L Consulting Trial teams routinely spend tens of thousands, even hundreds of thousands of dollars, developing litigation graphics for a big case. They do this because litigation graphics are among the top five things that can affect the outcome of a trial. Over three decades and after thousands of conversations with trial teams about litigation graphics, I've watched some cases start off on the right foot and some on the wrong foot. That turns out to be critical. Frequently, the way an engagement starts between a litigation graphics team and a trial team will define the success of the engagement. So, here are 11 best practices designed to help your trial team get the first meeting (we call these meetings intake meetings) with your litigation graphics team just right. Know your litigation graphics provider. There are two kinds. The first type is a true consulting or trusted adviser firm populated by litigators, jury consultants, and information artists. The second is really a group of order takers or trial technicians. How you behave toward each type of firm matters enormously. The latter type shouldn’t be considered for big-ticket litigation, so I won't further address how to handle them. Send the litigation graphics team the pleadings in advance. Great litigation graphics consultants can digest and synthesize enormous amounts of information. The sooner you send that information, the better. Time matters enormously. I don't think you can conduct a proper intake meeting in less than an hour. I've had some run eight hours. I think the right amount of time is probably about two hours. Advocate! This is a good chance for you to convince a group of people who don't know much about your case that you are right and you deserve to win. It's easy practice.

by Tony Klapper Managing Director, Litigation Consulting A2L Consulting War rooms at trial are very intense, high-pressure places. Obviously, the lawyers in the trial team are going to make the war room their “office” for the duration of the trial, as will other team members such as paralegals and consultants. Here are five reasons why a trial team should always consider having a graphic artist on site, right beside the attorneys. If an artist is not there, side by side with the lawyers, the team will lose a certain amount of flexibility and responsiveness. If a lawyer wants a visual to be slightly modified, based on testimony that’s just now being heard, there’s nothing like having someone by her side to share thoughts with. The response can be immediate and in real time. Communication between the lawyer and the litigation graphics artist is much easier to achieve. If the artist is not there, miscommunications can creep in like a child’s game of “telephone.” A lawyer can show an artist on site exactly what she means because the artist is able to see and hear the lawyer, not just read an email or listen on the phone.

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 Tony Klapper (Former) Managing Director, Litigation Consulting A2L Consulting For the purpose of telling a story or presenting data, experts have, over the years, suggested two different approaches. I will call them the “static” approach and the “build” approach. The static approach, in the hands of outstanding practitioners of data presentation, can have memorable results. Essentially, it conveys a great many types of information simultaneously, using graphic elements to show the relationship among the different varieties of data. Long before the advent of computers, French civil engineer Charles Joseph Minard, a pioneer in the presentation of data, created brilliant drawings depicting Napoleon’s Russian military campaign of 1812. These are a classic example of the static approach. The drawings, published in 1869, show the size of Napoleon’s army at each point of the campaign, the distance traveled, the latitude and longitude, and other key pieces of information. The acclaimed contemporary information scientist Edward Tufte says Minard’s work is “probably the best statistical graphic ever drawn,” high praise indeed. Trial lawyers also need to tell stories and present complex data sets to juries. That, in fact, is a good summary of what trial lawyers do. Lawyers and clients sometimes ask us at A2L to use this “static” approach and create a demonstrative that “says it all” in one large graph or chart. However, despite Tufte’s praise for Minard’s classic design, we think that judges and juries often learn better from a “build” approach, which starts with the basics of a story and builds it up incrementally. In our view, there is great benefit to not overwhelming a jury but in reaching a result in baby steps, especially when using a PowerPoint presentation for a jury trial. If a jury went into deliberations using a Minard-type document, we are not sure that all the jurors would fully see the ramifications of all the data, no matter how skillfully it was presented. In fact, the presentation itself during trial may take too much time and may be ineffective—as the lawyer (or the witness) is trying to orient the jury as to what to focus on and not focus on at any particular moment in the narrative. People tend to learn incrementally, not all at once. When many variables need to be presented – say, corporate earnings and profits, the number of market competitors, and prices over time – we often prefer to start with a PowerPoint with just one of those variables and build it up slowly. Trials are one area of endeavor in which we think the “build” approach may work better than the “static” approach. Other free and popular A2L Consulting articles related to legal infographics, PowerPoint litigation graphics, PowerPoint presentation for a jury trial, and demonstrative evidence generally: 16 PowerPoint Litigation Graphics You Won't Believe Are PowerPoint 15 Fascinating Legal and Litigation Infographics Information Design and Litigation Graphics Litigators, Portray Your Client As a Hero In 17 Easy Storytelling Steps Litigation Graphics, Psychology and Color Meaning 6 Studies That Support Litigation Graphics in Courtroom Presentations How Much Text on a PowerPoint Slide is Too Much? 9 Things I’ve Noticed About Effective Litigation Graphics After 20 Years as a Litigator 16 Litigation Graphics Lessons for Mid-Sized Law Firms 17 Reasons Why Litigation Consultants Are Better at Graphics Than Law Firms Why Trial Tech ≠ Litigation Graphics Good-Looking Graphic Design ≠ Good-Working Visual Persuasion 12 Reasons Litigation Graphics are More Complicated Than You Think

There are a handful of large law firms that have in-house graphics departments and use them as profit centers with their corporate clients. When a big case is on its way to trial, the large firm develops its own litigation graphics, and the law firm bills the client for in-house graphics in the same way (albeit at a lower rate) that lawyers are billed out. By and large, I think the law firms win and the clients lose in these scenarios. You would think that having an in-house litigation graphics department might make some sense. After all, the corporation being represented by the large law firm likely has an in-house marketing department. That works out pretty well, right? As someone who has watched the insourcing and outsourcing ebb and flow of law firm litigation graphics departments over the past three decades, I have seen one thing remain constant: High-end outside litigation graphics firms are radically better than in-house law firm graphics departments. Here are some reasons why: The vast experience gap: A firm like A2L may go to trial 50 or 100 times per year - and those are mostly big-ticket cases. No large law firm comes close. Large law firms typically have fewer than a dozen big-ticket cases across many offices. Common sense would tell anyone that the creative staff working on one or two cases in their office probably get less experience toward being a master of their craft compared to those artists working on dozens of cases per year. See, With So Few Trials, Where Do You Find Trial Experience Now? Law firms rarely retain good talent: Most litigation graphics artists worth their salt are either working for firms like A2L or freelancing for a firm like ours. We're always hiring full-time and contract litigation graphic artists with true intellectual curiosity, considerable artistic talent, and the ability to work wonders in PowerPoint. See, 16 PowerPoint Litigation Graphics You Won't Believe Are PowerPoint. Outside litigation graphics firms are a better value: When you have $10 million or even $10 billion at stake and getting the most persuasive litigation graphics may vary your graphics spend by $5,000, isn't the best value the choice that gives you the best chance of winning? See, 12 Reasons Litigation Graphics are More Complicated Than You Think. No adjustment for venue: In a firm like ours, jury consultants are mingling with the litigation graphics team. Juries in the Southern District of New York are different than those in the Northern District of California. Our information designers understand this and know to question the jury consulting team about varying their message accordingly. Very often, our customers have no idea they are getting this value, but I'm fairly certain they are not getting it from their in-firm departments.

by Tony Klapper (Former) Managing Director, Litigation Consulting A2L Consulting I recently had the opportunity to make a presentation at a federal judges’ conference in New Jersey that brought together judges and lawyers from that state. About 300 lawyers attended, as did about two dozen federal judges. The subject of my presentation was storytelling and its role in trials. After my presentation was over, I informally polled the judges in the room on their views concerning the importance of visuals at trial and the role of storytelling. Every single one of the judges, with the possible exception of one bankruptcy judge, indicated that he or she thought that the use of demonstratives was a critical part of any trial presentation. This is a notable indication, if an unscientific one, that judges, who are key decisionmakers in any courtroom, understand the role of visual persuasion. I would add a caveat. They are judges, after all, and I have little doubt that they will sua sponte reject a trial lawyer’s effort to tell a story visually that in the judge’s view is inherently unfair to the other side. Judges will control what goes on in the courtroom when it comes to the use of demonstratives as part of your narrative, as they will in every other aspect of a trial. That means that, as we said in our most recent post, trial lawyers should always have a backup plan in mind, a “Plan B” in case the judge views their original approach as objectionable. But the results of my informal poll are consistent with what we at A2L have been saying for the past several years here. Jurors are human beings who learn best when they learn visually, and they understand a case the most instinctively if it comes to them in the form of a story. Other articles about bench trials, mock bench trials, using demonstrative evidence with judges, and visual storytelling from A2L Consulting include: 21 Ingenious Ways to Research Your Judge 7 Things You Never Want to Say in Court 10 Suggestions for Conducting Mock Bench Trial Consulting Exercises Using Litigation Graphics in Bench Trials: How Different Is It From Jury Trials? 11 Surprising Areas Where We Are Using Mock Exercises and Testing Storytelling at Trial Works - But Whom Should the Story Be About? Winning BEFORE Trial - Part 3 - Storytelling for Lawyers 12 Ways to SUCCESSFULLY Combine Oral and Visual Presentations 3 Articles Discussing What Jurors Really Think About You 11 Tips for Winning at Your Markman Hearings 5 Essential Elements of Storytelling and Persuasion 11 Tips for Preparing to Argue at the Federal Circuit 5 Keys to Telling a Compelling Story in the Courtroom Preparing for ITC Hearings Three Top Trial Lawyers Tell Us Why Storytelling Is So Important

by Ken Lopez Founder/CEO A2L Consulting Over the past three decades I've heard hundreds of lawyers say, “I won't need many graphics because my case is not very visual.” Usually, that's followed up with “It's really a case about documents” or “It’s a dispute over who said what,” or “It’s just about what someone's actions were.” Fortunately, there’s a clear and straightforward answer to these objections: What drives the need for visuals in a case is not the underlying subject matter. It’s your audience's need to see things as well as hear them. In effect, every case is a visual case today. So instead of wondering whether your case lends itself to litigation graphics, you should probably be asking yourself whether you are substituting your judgment about the need for visuals for your audience's core psychological needs. Remember, lawyers tend not to be visual learners themselves, while many or most jurors will be in that category. One trial lawyer said this particularly well in this short video about why litigation graphics are important.

Timelines are a frequently used, time-honored trial technique that we have discussed in these pages more than once. Since human beings like to focus on a story – what happened first, what happened next, and so on – timelines have the power to summarize, in a simple and straightforward way, the entire narrative of a case. But not all timeline graphics are created equal. Here are three ways to use what we call “top-bottom” timelines that most successfully take advantage of their power to persuade. In the first type of “top-bottom” timeline, the chronological portion of the line, in years, months, days, whatever is relevant, sits in the middle. At the top lie the actions of your client, tagged at the appropriate time when they occurred. Below the line are the actions, or inactions, of the other side in the litigation. Let’s say the case centers around a construction contract, and your point is that a subcontractor’s inaction caused a critical delay in the completion of the contract. Above the line are the actions of your client, the main contractor – the days when it began work, when it completed certain key steps of the project, when it contacted the subcontractor for progress reports. Below the line are the actions of the subcontractor, which diminish in number and in significance as the deadline approaches. The jury can look at the timeline and immediately draw a distinction between your client’s actions (good and appropriate) and the other company’s actions (few and showing evidence of foot-dragging).

by Ken Lopez Founder/CEO A2L Consulting We recently asked three top trial lawyers about what makes them so successful in the courtroom. They are quite a successful trio. One of them is Bobby Burchfield of King & Spalding, whose bio notes, “Mr. Burchfield has never lost a jury trial.” That's an especially impressive track record as he's been in practice more than 30 years. So what does winning take? Well, as we saw in previous clips from the same interviews, these trial lawyers believe, as we do, that storytelling is at the heart of building a successful case. Furthermore, as all demonstrative evidence consultants and most trial lawyers will tell you, combining persuasive visual evidence with persuasive oral communications produces a truly synergistic persuasive effect. Persuasion is a rare circumstance where 1+1 really does equal more than 2. Of course, as we have long counseled, just because something is projected on a screen does not make it helpful at a trial. In many cases, as in the case of lawyers who use bullet points to summarize their arguments on screen, some visuals actually make you less persuasive. If yours looks like the image here, then you are certainly doing more damage than good. For more on why that's true, please see our articles 12 Reasons Bullet Points Are Bad (in Trial Graphics or Anywhere), The 12 Worst PowerPoint Mistakes Litigators Make, and Why Reading Your Litigation PowerPoint Slides Hurts Jurors. In this three-minute clip, we hear from the best of the best -- Bobby Burchfield of King & Spalding, Rob Cary of Williams & Connolly, and Patrick Coyne of Finnegan. And we certainly don't hear them talking about the power of bullet pointed lists. Instead, you hear these trial-tested litigation experts talking about the use of animation, the value of timelines, and the importance of showing real evidence to ground your argument in credibility. Burchfield said, “People learn both by seeing and by hearing, and if you can combine those two in one presentation, the more sensory perceptions you combine, the better off you are. Timelines are powerful persuasive tools. A timeline shows from left to right who did what and to whom. Sometimes you show in a timeline above the line what your client knew and below the line what your client didn’t know. It can be a powerful story to show contrasting events that were going on simultaneously. This helps the jury put the entire case into context.” Cary noted, “When a jury can see something that visually displays the evidence, that cloaks you in credibility. That’s critical in earning their trust.” Coyne pointed out, “People are predominantly visual. Most people need an image. They need it to tie things together. Ken [Lopez] and his people did a fantastic animation for us. The judge turned to the other side and said, ‘If I credit this animation, you lose. Do you know that?’ It was a very compelling animation. That’s what I mean by appealing to the judge by giving him a visual that explains what you’re trying to say.” Watching lawyers like these work is a pleasure and their teams score high on our assessment of what makes a great trial team. Other articles related to persuasion in trial, the use of bullet points, and trial presentation best practices from A2L Consulting: Don't Use PowerPoint as a Crutch in Trial or Anywhere 6 Trial Presentation Errors Lawyers Can Easily Avoid 12 Reasons Bullet Points Are Bad (in Trial Graphics or Anywhere) 10 Criteria that Define Great Trial Teams 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 The 12 Worst PowerPoint Mistakes Litigators Make 12 Ways to SUCCESSFULLY Combine Oral and Visual Presentations The Effective Use of PowerPoint Presentation During Opening Statement 16 PowerPoint Litigation Graphics You Won't Believe Are PowerPoint

by Ken Lopez Founder/CEO A2L Consulting When I speak to an audience about the work A2L does (other than trial lawyers from large law firms), I sometimes hear the question, “Is the kind of work A2L does fair?” That is, is it fair to have trial consultants support a trial team and use the latest in persuasion science to advocate only one side of a case? In a group setting, my lawyerly answer is usually something like, “What does ‘fair’ mean to you?” Then we litigate the nuances of fairness. What I really think, however, is that the work we do definitely tips the scales of justice in our client’s favor. Is that fair? Probably. After all, ferociously advocating one’s position using all available tools is one of the hallmarks of our justice system. But what if, as is typical, one side has a larger litigation budget than the other. Is it fair to have a firm like ours on one side and not the other? I've heard others reply to this question by comparing the vast differences in trial lawyer quality and arguing that the system is designed to smooth these talent gaps out. I don't have a specific answer right now, so I I'll simply say that I think it's a fair question. Trial consultants do influence outcomes of cases, sometimes to an enormous degree. Indeed, a branding firm, after surveying our customers and staff, once recommended that we use “Unfair Advantage” as our firm motto. I never really fell in love with the motto, and we didn’t end up really using it, but I understand the sentiment completely. In more than 20 years and thousands of cases, I’ve never seen one that was not improved by the input of a trial consultant. I've seen losing cases turned to winners and damages swing in the billions of dollars. Consider 12 advantages that trial consultants offer – ones that your opposition might say are just not fair. A Fresh Pair of Eyes: Trial lawyers who like to get their answers questioned outperform those who are not open to much input. Trial consultants offer a safe place to bounce theories, narratives, demonstratives, voir dire strategies, trial presentation strategies and more off smart people who are on your side. See 7 Reasons a Fresh Pair of Eyes Are Beneficial Before Trial. An Experienced Pair of Eyes: If you've been in the litigation industry for decades like me, you've watched as trial lawyers who used to go to trial every year now go to trial only every three, five or even eight years. Meanwhile, trial consultants have moved in the opposite direction and often see dozens of trials per year. So high-performing clients and high-performing trial lawyers very sensibly rely on trial consultants to enhance the trial experience of the team. See With So Few Trials, Where Do You Find Trial Experience Now? Practice: One of my former colleagues turned judge was so right about this: “They call it the practice of law but nobody is practicing.” Trial consultants help trial teams practice effectively. This is critical because so few trial teams are really practicing. Those who don't practice in front of peers underperform others. Those who do, outperform most trial lawyers. It's so obviously correlated with good outcomes, I believe that the quality of practice is a reasonable proxy for the outcome of a case. See 3 Ways to Force Yourself to Practice Your Trial Presentation.