Last week, I spoke at an annual gathering of defense attorneys whose subtitle was “Lawyers and Other Reptiles.” What's going on? Who are these reptiles? It’s an interesting story. This conference was planned as a way to bring together defense attorneys around the nation who want to learn how to turn aside a frequently used set of trial tactics championed by David Ball and Don Keenan in their "Reptile" series of books and webinars. Ball is a North Carolina-based jury consultant, and Keenan is an Atlanta-based plaintiffs trial lawyer. According to Ball and Keenan’s publicity materials, the “reptile” concept is “the most powerful tool in the fight against tort reform.” Ball and Keenan say that through their books, DVDs, seminars and workshops, “the Reptile is revolutionizing the way that trial attorneys approach and win their cases.” The proof, they say, is in the numbers, as more than $6 billion in verdicts and settlements have resulted from these tactics since they launched them in 2009.
by Ken Lopez Founder/CEO A2L Consulting We publish a lot of articles on this blog here at A2L Consulting. Sometimes we publish so many that it’s not easy to decide which ones to read first. That's why once a quarter we do a mini-retrospective of the best articles based on what our readers choose to look at. Our theory is that the more people that read an article, the more compelling and the better it is. All these articles relate in some way to persuasion: Why expensive-looking litigation graphics are better than inexpensive-looking ones, why you are less persuasive when you are using clichés, how people obtain trial experience these days when most cases don’t go to trial. We think this also helps our readership sort through the very best of our content by relying on the votes of 6,600 fellow subscribers as indicated by their reading habits.
by Alex Brown Director of Operations A2L Consulting Commitment (and Consistency) (see Part 1 about reciprocity here) In 1971, Charles Kiesler wrote a book called The Psychology of Commitment. In it he describes various experiments designed to understand human motivations. Kiesler referred to one of his experimental results as “the boomerang effect.” The idea is that if a person has committed to something and is then attacked for his position, he or she is likely to increase his or her commitment, even if the commitment was not at all strong in the first place. This brings up related questions of how and why people become more extreme in their attitudes. Is it simply to justify their past behavior, or is it because people really want to be right? In many circumstances, a person might seek out others as social support or find outward behaviors that justify his or her position. Basically, if you get someone to commit to something, they will usually stick to that commitment while under attack and will look for allies to their cause or position. As Cialdini notes, when a commitment is made public, one is likely to stick to it. In view of this, it should be obvious why this finding can make an important persuasion tool for litigators. We strongly believe that you can win or lose a case in opening statements. In an opening statement, it is your responsibility to:
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. (Former) Managing Director, Litigation Consulting A2L Consulting We have discussed four important tips for maximizing persuasion during your opening statement (See parts 1, 2, and 3). The last tip is the use of demonstrative evidence in connection with the statement. You need to be aware that most people, other than lawyers, are visual preference learners. Most lawyers, in contrast, are auditory or kinesthetic preference learners.1 Most people teach the same way they prefer to learn – so lawyers typically teach by lecturing, since that is most comfortable for them. But this strategy does not help with the majority of jurors, who would prefer to be taught visually, at least in part. So bridge this courtroom gap with demonstrative evidence, including litigation graphics.
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 Persuadius I love great design. While it is becoming somewhat more common than it used to be, it’s still rare – and it’s even rarer in the courtroom. To be clear, my definition of great design includes everything from an interface like what one sees in a Tesla to the adaptive reuse of a historic structure to a well-crafted litigation graphic that tells a story clearly and without the need for further explanation. One place we don't expect to see great design is in parking signs, when we are parking the car and trying to figure out where to park and where not to park. I live in Washington, D.C., where they have some signage that would seem to violate every principle of great design. This one pictured here is a classic, and you probably have some just like it in your town. Does that look familiar? Well, one pilot program in Los Angeles is trying to change all that and make parking signs inspiring from a design perspective. Each sign contains a simple chart that is immediately clear to almost anyone. Green and red overlaid with symbols helps provide a clear message. Here’s an example below.
I spotted an interesting blog post over the weekend that criticized a New York Times article about the Israeli-Arab conflict for using charts and data in a misleading way. I've written about cheating with charts before in several articles, but my 2012 article, 5 Demonstrative Evidence Tricks and Cheats to Watch Out For, in particular, offers some good lessons and has been read by thousands of people. Although it is taken from a very different context than courtroom litigation, the blog post about the Middle East and the Times contains good lessons for both offense and defense when it comes to creating or refuting litigation graphics. The authors levy five key complaints against the New York Times article and its use of graphics to support a narrative.
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 Alex Brown Director of Operations A2L Consulting Last year, we talked about the pros and cons of business development professionals -- specifically, the good and bad traits of people in this profession. Here, I start a new series on the six principles of persuasion. I have long been a huge fan of Dr. Robert Cialdini and find myself repeatedly going back to a book he wrote called "Influence: The Psychology of Persuasion." In this book, he discusses the six principles of persuasion. I want to share with you these principles in a six-article series, starting with principle number one: Reciprocation. According to the Merriam-Webster dictionary, reciprocation is a noun that refers to a mutual exchange, a return in kind or of like value. Now before the emails come in about the ethics of giving the jury something in exchange for a favorable verdict, hear me out.
by Ken Lopez Founder/CEO A2L Consulting If you can win the battle of opening statements, you'll likely win your trial. Up to eighty-percent of jurors will make up their minds about your case during opening statements. In this webinar you'll learn the top-five ways to maximize persuasiveness during opening statements. From how to tell compelling stories to visually supporting your key arguments, this one-hour will reveal the best secrets from courtroom persuasion experts. Ryan H. Flax, Esq., A2L's Managing Director of Litigation Consulting is an accomplished litigator who helps trial teams perfect their trial story and trial presentation using the latest persuasion science. Even if you can't make it to the live event, you'll receive access to the recorded version just for registering.
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 It's been another unbelievable year at A2L Consulting. I'm very proud to see us again be voted best jury consultants and best litigation graphics consultants. More than 20,000 free e-books and webinars were viewed on A2LC.com. Incredibly, there were more than 300,000 pages viewed our site this year. About two-thirds of those visits were to our award-winning Litigation Consulting Report blog that now boosts 5,800 free subscribers (that's more than 2,200 new subscribers since last year!). On that blog, we will have published 115 articles by year's end. It's a few less than last year, but we have to confess, we were really busy being litigation consultants this year! Each year I list the very best articles based on your readership, and this year 14 articles stand out as the top-14 for 2014. Each of these articles was read by thousands of people, and some were read by tens of thousands.
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