The Litigation Consulting Report

This article is the third in a series of four articles about courtroom storytelling (links to part 1 and part 2). My goal in this series is to reveal some of the tricks of the persuasive storytelling trade in one place for the busy trial lawyer. I hope that these recommendations can serve as a pretrial checklist for anyone who wants to draft an opening statement. A2L’s litigation consultants have published dozens of articles about storytelling, and we’ve released books and webinars on the subject. These ten tips represent the essence of what we have learned and of what we have taught. If you apply these ten suggestions when developing your story for trial, your story will be more persuasive, and you will radically increase your chances of winning your case. Here is the fifth of these ten tips. 5. It is crucial to make your audience care about the characters in your story. It’s never just about a company. It’s never just about the CEO, and if Hollywood can make you care about a mute trash robot named WALL-E, you can make your factfinders care about the characters in your story. A major way to lose an audience is to fail to develop characters that a jury will care about. you don’t develop such characters, your jury will either not care about your side or will turn against your client from the start. Unfortunately, about half of all trial teams fail to properly develop the characters in their litigation story, and their cases suffer terribly for it. The excuses are numerous: from ‘We’re a big company, we don’t have individual characters” to “Everyone on our side is perceived as bad.” These are just excuses. I can guarantee that 99.9 percent of the time, there will be characters that can be developed. Here is a step-by-step guide to using Joseph Campbell’s model of the hero’s journey so as to turn your story’s main character into a hero. To make this useful pattern more accessible, I have attempted to use plain language to describe the steps. My plain language description is followed in parentheses by the name that Campbell gave to it. Also, to help bring the process alive, I have matched each step with an example from a hypothetical legal and technical fact pattern, typical of the cases we most often see at A2L. Here, our heroine is a lower-level employee at a stagnant remote-control manufacturing company, and she has an idea for a breakthrough product -- a remote control operated not with a handheld device but by wireless physical hand gestures. Something Interrupts the Ordinary (Campbell's Call to Adventure): Describe the status quo as it was at the time. Then describe that moment when someone sees an opportunity for change or a new threat emerges. In the hypothetical example, remote controls are functional uninspiring devices that get lost, wear out and have undergone little change for 25 years, in the same era that saw the mass deployment of handheld phones and personal computers. Inspired by watching her nieces play a TV-displayed game that uses hand gestures instead of controllers, our heroine imagines a world where hand gestures alone can manipulate her television and replace standard remote controls. At work the next day, she hears a speech by the firm’s CEO who is looking for new ideas. Obstacles Arise (Campbell's Refusal of the Call): Share how obstacles arose from the very beginning that prevented your client from taking the leap of faith required to pursue the opportunity. Example: After hearing the speech, our heroine brings the idea to the attention of management at the remote-control factory and was laughed out of the executive suite. She figured they were in management for a reason and went back to manufacturing remote controls as before. A Mentor or Helper Appears (Campbell's Supernatural Aid): Explain how your client gets some unexpected assistance that is a sensible next step in bringing the opportunity to reality. Example: Our heroine attends a consumer electronics conference that shows off some new gaming technology that reminds her of her idea. She talks with the reps at the trade show booth about applications they’ve considered for their wireless controllers. They suggest she show them what she has in mind.

This article is the second in a series of four articles about courtroom storytelling (here is a link to part 1). My goal in this series is to reveal some of the tricks of the persuasive storytelling trade in one place for the busy trial lawyer. I hope that these recommendations can serve as a pretrial checklist for anyone who wants to draft an opening statement. A2L’s litigation consultants have published dozens of articles about storytelling, and we’ve released books and webinars on the subject. These ten tips represent the essence of what we have learned and of what we have taught. If you apply these ten suggestions when developing your story for trial, your story will be more persuasive, and you will radically increase your chances of winning your case. Tip #2. Charisma and likability matter. The best set of facts may not save a trial lawyer who is unattractive and poorly dressed. This isn’t fair or right, but it is a reality that science proves out. For these reasons and more, it is imperative to put your best foot forward. "Your job as a persuasive litigator is to understand the factors that can be used properly and ethically to be more likable and thus more persuasive. As your case becomes more complicated, jurors are more likely to seek shortcuts and give more weight to easier factors to understand, such as which attorney they like and which they don’t. The less personally involved jurors are with evidence, such as information that is too dry or difficult, the more they tend to rely on peripheral cues rather than on an argument’s actual strength. Being liked is an important ingredient in the cocktail of peripheral cues jurors use to decide whom to believe." See, Like It or Not: Likability Counts for Credibility in the Courtroom

No matter where you stand on the border wall dispute that has captivated the nation, you have to admit that it is an important debate. After all, $5 billion is a lot of money and who knows if the wall will really make a difference. But allowing between 200,000 and 2,000,000 people to easily enter the United States every year via the border with Mexico is probably not a good thing either. You probably just automatically identified yourself with one of those two previous sentences and took it as your position, right? The other sentence may have even made you angry or at least started you thinking about counter-arguments. In other words, like most political discussions, minds are rarely changed by more facts. It's kind of like a jury trial, right? You hear one side. You attach to it emotionally and then proceed to ignore evidence that is contrary to your new belief. In jury consulting-speak, this phenomenon is called confirmation bias. As a jury consulting firm, we've written about confirmation bias many times. See, for example: I’m Right, Right? 5 Ways to Manage Juror Bias Jurors Will Believe Anything (That They Already Believe) When Smart Ain’t So Smart - Cognitive Bias, Experts and Jurors Font Matters - A Trial Graphics Consultant's Trick to Overcome Bias Could Surprise Be One of Your Best Visual Persuasion Tools? 7 Ways to Overcome Cognitive Bias and Persuade However, A2L is not just a jury consulting firm. We’re also a top-ranked litigation graphics firm (and litigation consulting and trial technology consulting firm). So I'm always baffled by big disputes where the participants fail to use pictures effectively. In this day and age, there is no excuse. The science of visual persuasion is well established. See, What is Visual Persuasion and What Do You Need to Know About It?

A couple of years ago, I was involved in running a genetics conference focused on using genetics as a defense tactic in civil cases, much in the way that DNA evidence is used in criminal cases. I've been working with experts in this field ever since. A few months back, I wrote an article about the clever use by plaintiffs of litigation graphics and genetics in the baby powder (talc) cases (see Some Lessons for Defendants From the Talc Liability Trials), including a $4 billion verdict against a major talc manufacturer. When I write about various types of cases, I often hear from lawyers who handle the types of cases I write about. On my post on the use of genetics evidence in the talc litigation, how many talc defense lawyers do you think I heard from? If you guessed zero, you'd be exactly right. And that's a problem. Not ready to accept that this is a problem for defendants? Then I will ask whether the plaintiffs’ talc bar was similarly unresponsive. As you can probably guess from the way I posed the question, the answer is no. Out of discretion, I won't say exactly who or how many responded, but it was more than zero. Even though there is more to gain for the defense bar from understanding and leveraging these critical tools, it’s the plaintiffs’ lawyers who are most active in the field, striving to improve their approach. From the defense bar — crickets. And that's the problem I'm seeing in the way some of these talc cases are being defended. Defense counsel appear to be playing defense – and completely ignoring the key point that the best defense in litigation is a good offense. These verdicts are having an impact on the companies involved. Last Friday, on December 14, 2018, shares of Johnson & Johnson fell 10 percent and were set to have their largest percentage drop in more than 16 years, after Reuters reported that the company knew for decades that there was some asbestos in its baby powder. Yesterday, December 18, 2018, Johnson and Johnson ran the full page ad seen here in an attempt to manage this growing crisis. For trial lawyers and litigation consulting firms like ours, these asbestos allegations are not new or surprising. It's what plaintiff's have alleged recently and have used to prevail in these cases. The surprising thing in these cases is defense counsel's unnecessarily passive approach. When products are accused of causing harm, defense lawyers often choose one of the following defense strategies: Assert the harm was caused by something else but we don’t know what (the “idiopathic” defense) Assert the harm was caused by something else and we know exactly what. Typically, most defendants have chosen the ‘we don’t know what other thing caused it’ strategy because it avoids giving up the favorable allocation of the burden of proof and assuming the very specific (and often difficult) burden of proving an alternative cause – much as criminal defendants take advantage of the “beyond a reasonable doubt” standard. Not surprisingly, this argument generally falls flat. Recently, the plaintiffs’ bar won a multi-billion-dollar verdict by asserting that there is asbestos in talc and that it causes mesothelioma. This is highly improbable for several logical reasons — but jurors tend to follow emotion first and logic second when deliberating. If asbestos is present in baby powder at all, it would be in such small amounts that one could not reasonably connect mesothelioma to it. If defense counsel asserts (as they have been) that the mesothelioma was caused by some other identified source of asbestos, and not by talc, that leaves jurors without the necessary tools to argue for a defense verdict during deliberations. So, what if defense counsel could instead prove that the plaintiff’s mesothelioma was caused by something other than asbestos in baby powder? Something identifiable, measurable, and specific. Using modern genetics, this is now possible. And it is a major sea change.

This weekend, television news is sure to be dominated by Hurricane Florence. Many of us will watch the all-too-familiar scenes of high waves hitting the coastline and reporters being blown about by powerful winds. It's almost routine from a TV-watching perspective. But one unusually persuasive graphic caught my attention this week. Did you happen to see the Weather Channel’s storm surge simulation? I think it’s brilliant, and it potentially offers some lessons for forward-thinking trial counsel. The simulation begins at the 55-second mark in the video below:

Trial teams frequently wrestle with questions surrounding how simple a trial presentation should be. It’s a good thing to worry about. They worry about coming off as condescending. They worry about the story being impossible to simplify. They worry about what order to tell the story in. These are all understandable questions to wrestle with. Unfortunately, on the question of how simple a case should be made, I think most trial teams end up talking themselves out of the right answer. So here’s the answer in five parts. A trial presentation should be so simple that:

Here at A2L, we are delighted to introduce John Moustakas, our new Managing Director of Litigation Consulting and General Counsel. John comes to us from the international law firm Goodwin Procter, where he was a partner in the firm’s Securities Litigation and White Collar Defense Practice. John is a highly successful trial lawyer who has tried more than 45 cases to a jury. John spent more than six years as a prosecutor in the U.S. Attorney’s Office for the District of Columbia, before returning to Shea & Gardner, where he had begun his legal career. In addition to trying numerous criminal cases for the United States, John has tried a variety of civil matters in a combined 20 years in private practice at Shea & Gardner and its successor, Goodwin Procter. John laments the fact that, for many reasons, far fewer cases go to trial in the corporate world than even 20 years ago. “My approach to practicing law is pretty old school,” he says. A generalist at heart, John “always loved the variety of litigation and never wanted to be pigeon-holed.” He’s tried a wide variety of matters ranging from homicides and public corruption on the criminal side to civil disputes over contracts, torts, real estate, employment, securities, and civil rights, to name a few. The unique focus of his new position attracted John. “Above all else, I’ve most enjoyed the storytelling aspect of my work -- figuring out how to engage the jury and make them want us to win.” Although he will no longer be a client’s advocate in court, he relishes the trade-off. “Instead of trying my own case every four or five years, if I’m lucky, every matter I’ll be consulting on will be one bound for trial. If I can leverage my experience to help others try their cases more persuasively, I will be one very happy guy,” he says. John says that one key to a trial lawyer’s success is to follow his or her own natural style and temperament. “The jury, as a collective, is uncannily able to sniff out BS,” he says. “Pretend to be something or someone you’re not, and they will see right through you.” Convinced that his authenticity was the greatest contributor to his success as a trial lawyer, John’s mission is to keep A2L’s clients true to their nature. “So, while the goal is to help our clients strengthen their presentations with an emphasis on creating resonant themes and the engaging visuals that support them,” he says, “we help by pruning, not slashing -- by seasoning, not scrapping the recipe. The lawyers it is our privilege to work with need nothing more. While they cover the entire waterfront, sweating every detail, we have the luxury of focusing narrowly and with a bit of detachment. And that is not only a rewarding role, but one that our clients feel makes a meaningful difference.” John looks forward to bringing his insights and experiences to bear in this new chapter of his career in a way that makes that kind of difference. He can be reached at moustakas@A2LC.com or 703.548.1799. Related A2L resources about storytelling, litigation consulting, mock trials, and creating trial presentations that persuade: 9 Reasons Litigation Consultant is the Best Job Title in Litigation Who Is, and Who Isn’t, a Litigation Consultant? Free PDF: Why Work with A2L on Your Next Trial 3 Types of Litigation Graphics Consultants Top trial lawyers talk about working with A2L Top trial lawyers explain why storytelling is so critical for persuasion 10 Things Litigation Consultants Do That WOW Litigators Free E-Book: What is the Value of a Litigation Consultant? 21 Reasons a Litigator Is Your Best Litigation Graphics Consultant 3 Types of Litigation Graphics Consultants Free Webinar: Storytelling as a Persuasion Tool Free E-Book: Storytelling for Litigators Your Coach Is Not Better Than You – in the Courtroom or Elsewhere 10 Types of Value Added by Litigation Graphics Consultants Explaining the Value of Litigation Consulting to In-House Counsel 17 Reasons Why Litigation Consultants Are Better at Graphics Than Law Firms $300 Million of Litigation Consulting and Storytelling Validation Top 7 Things I've Observed as a Litigation Consultant

Roughly half of our business involves the creation of PowerPoint presentations for opening statements, closing arguments and expert witnesses. To create these presentations, our litigation consultants, typically seasoned trial lawyers and communications experts, work with our creative staff to turn the trial strategy into presentations that will motivate decisionmakers to make the “right” decisions. In a trial with millions or billions at stake, our final draft for an opening is typically version 30 or higher — and I've seen version 80 in a very large trial. Why so many versions? This is the result of what great trial lawyers do: They work with our team and iterate until perfection is achieved. However, every presentation starts with a first draft, and after three decades in this industry, I can say that a first draft sets the tone for the entire engagement. Handle it well, and trust is formed and there is a nice creative arc free from anxiety. Handle the rollout of the first draft wrong, and trust never kicks in, micromanagement dominates, and the deck becomes a “horse designed by committee.” So what’s the magic to the rollout of a first draft?

I've written about people who present well using PowerPoint many times before. Some of those articles include: President Obama: Presentation Graphics: Why The President Is Better Than You Law Professor Lawrence Lessig: Lawyer Delivers Excellent PowerPoint Presentation Dan Pink: Dan Pink, Pixar, and Storytelling for the Courtroom Nancy Duarte: Litigators Can Learn a Lot About Trial Presentation from Nancy Duarte Scott Harrison: Every Litigator Should Watch Scott Harrison Deliver This Presentation Me: 21 Steps I Took For Great Public Speaking Results Each of these articles offered some useful lessons both in designing good trial presentations and in the art of presentation. Yesterday, the world saw one of the great PowerPoint presentations of all time. If it were given in a courtroom, this presentation would be in the top one percent of courtroom presentations (not for beauty but for effectiveness). However, this presentation was not in a courtroom at all. Still, which famed trial lawyer do you imagine gave this presentation? As the title suggests, it wasn’t a trial lawyer at all. The presentation was delivered by Israel's Prime Minister Benjamin Netanyahu. If you don't agree with the man or the content, put aside your politics and learn from the presentation. Every trial lawyer should do AT LEAST this well in the courtroom. There are few excuses not to, and every client should demand a performance at this level. If you have (or are) a client who understands the outsized value of investing in the most critical presentations of your case, our team can get you to this level. Every time. This is exactly the kind of work we do with the world's top trial lawyers every day. Watch all or some of Prime Minister Netanyahu's presentation and read my commentary on it below to understand why this presentation is so effective and how any trial lawyer can learn from it. The list of things done right in this presentation is very long. Let's look at a handful, and I will link back to an article where we made these recommendations. Each of these underlying teachings is a technique that our litigation consultants use to help coach trial lawyers and maximize their chance of winning. He looks the part: 10 Things Litigators Can Learn From Newscasters He chose the right tie: Litigation Graphics, Psychology and Color Meaning He delivers on all five of these promises: 5 Things Every Jury Needs From You He establishes a clear narrative and drama early: Are You Smarter Than a Soap Opera Writer? He uses an immersive style: New Study: A Graphically Immersive Trial Presentation Works Best He uses surprise to engage and persuade: Could Surprise Be One of Your Best Visual Persuasion Tools? Persuasive images are used immediately: Persuasive Graphics: How Pictures Are Increasingly Influencing You The use of deposition-like video is brilliant for setting the stage: 6 Tips for Effectively Using Video Depositions at Trial He presents in a modern 16x9 format (like an HDTV not an old tube TV): Free Webinar: PowerPoint Litigation Graphics - Winning by Design™ He does not talk over the messages: 12 Ways to SUCCESSFULLY Combine Oral and Visual Presentations Captioning is well handled on videos: 6 Tips for Effectively Using Video Depositions at Trial He is very practiced: The Magic of a 30:1 Presentation Preparation Ratio The core opening introductory message is clear and compelling: How to Structure Your Next Speech, Opening Statement or Presentation Netanyahu used a hot seater: What a Great “Hot Seat Operator” Can Add to a Trial Team The theatrics in the form of the binders and the CDs are just brilliant: Using Scale Models as Demonstrative Evidence - a Winning Trial Tactic The level of preparation is clear and is what is expected of elite presenters - even by juries: Practice, Say Jury Consultants, is Why Movie Lawyers Perform So Well The hand gestures are well done: 5 Things TED Talks Can Teach Us About Opening Statements The call outs are simple and excellent: 3 Styles of Document Call-outs Used at Trial The translating of scale and size into terms people understand is clear and convincing: 6 Ways to Convey Size and Scale to a Jury You don't have to read Farsi to understand the nuclear materials, he says: Your Trial Presentation Must Answer: Why Are You Telling Me That? He makes limited use of bullet points: 12 Reasons Bullet Points Are Bad (in Trial Graphics or Anywhere) He organizes his message into five points and enumerates on the slides: Litigation Graphics: The Power of Checklist Trial Exhibits He uses limited text on slides throughout the presentation!: How Much Text on a PowerPoint Slide is Too Much? His slides are clean, uncluttered and generally have a single message: 12 Ways to Eliminate "But I Need Everything On That PowerPoint Slide" He includes animated graphics: 16 PowerPoint Litigation Graphics You Won't Believe Are PowerPoint He contrasts what the Iranians said vs. the reality and deploys other credibility attacks in one evidence-backed attack after another: Like It or Not: Likability Counts for Credibility in the Courtroom He tells you what to conclude: Your Trial Presentation Must Answer: Why Are You Telling Me That? He repeats (language and video) for effect and clarity: A Surprising New Reason to Repeat Yourself at Trial His use of storytelling throughout the presentation is excellent: 5 Ways to Maximize Persuasion During Opening Statements - Part 2 He makes NONE of the 12 mistakes in this article: The 12 Worst PowerPoint Mistakes Litigators Make He has been well coached by presentation consultants like us: Your Coach Is Not Better Than You – in the Courtroom or Elsewhere Nothing about this PowerPoint presentation is particularly sophisticated. In fact, there are many things that could be done to make it considerably better and more persuasive. However, above all else, it shows what a well-practiced presenter can do. VERY few trial lawyers prepare to the point where they can present at this level and if they would work more closely with elite litigation consultants, whether A2L's litigation consultants (pdf) or others, they could do even better than Benjamin Netanyahu. Here's the ultimate takeaway: it's not some innate gift that helps a presenter be world-class. Instead, it's the humility that allows someone to practice over and over getting these critical presentations just right that makes anyone appear to be world-class.

It seems to me that a good many sophisticated people, including a lot of lawyers, don’t fully understand the role of storyboards in developing an animation. A storyboard has been defined as a graphic organizer in the form of illustrations or images displayed in sequence for the purpose of pre-visualizing a motion picture, animation, motion graphic or interactive media sequence. The first story boards were used by the Walt Disney animation team in the early 1930s, and at A2L, we use storyboards in exactly the same way – to pre-visualize an animation that we are intending to use at a trial. As longtime readers of this blog may know, I came to this business about 25 years ago, just after my law school graduation. I knew a good deal about computer animation in the Toy Story era, and I originally envisioned A2L as a trial animation company for attorneys, focusing in the intellectual property area. A2L has grown to become a leading trial consulting firm and a top provider of litigation graphics and jury research, but I’ve always had a special fondness for litigation animation. Animation remains a very vibrant part of trial practice, especially now that common tools like PowerPoint provide a basic animation function as a standard offering. It’s no longer necessary to bring in a specialized designer to provide animation for trial. We’ve written about this in articles like Legal Animation: Learn About the Four Types Used in the Courtroom, What Does Litigation Animation Cost? (Includes Animation Examples), and Patent Comes Alive! Turning Patent Drawings into Trial Presentations.

One of my professional mentors had a saying: Let silence do the heavy lifting. This is good advice in many business and personal contexts. When you want to hear what another person really thinks, stop talking and wait for him to speak. Let him finish his statement, and don’t “rescue” him by interrupting him. Two thousand years ago, a rabbi in the Talmud said, “All my days have I grown up among the wise, and I have not found anything better for a man than silence.” This principle is still valid, and it applies well in the context of communications during trial between attorneys, juries and judges. I’ve noticed that many trial lawyers all too often believe they have too much to say in too little time and are obsessed with pressing a great deal of information into the hands of the fact-finder. But endless words are not always your friend if you want to be a successful persuader. Recently I observed an opening statement in which a trial lawyer applied these principles perfectly. Her client needed to make a point about the existence of ongoing communications between two parties over the course of a decade. This point was so important that it warranted special attention during the preparation of the opening statement. So we designed a litigation graphic that focused on these communications. We made sure that these timeline events rolled out slowly to the jury, slowly enough that the brief periods of silence between them caused some discomfort. This tactic noticeably changed the pace of the opening statement. It set a tone that forced the jurors to pay attention. And it wouldn’t have worked as well if the lawyer hadn’t presented her statement quietly and at a slow pace. As this masterful trial lawyer went on with her statement, the room audibly went silent and the jury paid attention. This was an emotional moment that focused the jurors’ minds on the fact of the regular ongoing communications – an essential part of the case for this lawyer’s client. This lawyer let silence do the heavy lifting. We have done this before, in other contexts. In an airline merger case, we scrolled a list of past airline bankruptcies before the jury in a way that was slower than usual – and noticeable. The message was that the airline industry had long been suffering through a dire financial situation and that the merger should be allowed to go through to reduce further bleeding. In all of these cases, the key element is that a skillful trial lawyer can plan her exhibits slowly and carefully and let silence speak loudly. Other A2L free resources about litigation graphics, timelines, and connecting with judge and jury include: 3 minute video: Three top trial lawyers discuss persuasion using litigation graphics A Must-Have Complimentary 50-page Guidebook for Those Who Use Timelines to Inform or Persuade 16 PowerPoint Litigation Graphics You Won't Believe Are PowerPoint Connecting With Jurors by Turning Off Your Screen 3 Excellent Ways to Use “Top-Bottom” Timelines in Trial 5 Trial Graphics That Work Every Time 5 Essential Elements of Storytelling and Persuasion How to Make PowerPoint Trial Timelines Feel More Like a Long Document 4 Types of Animation Used in the Courtroom Why a Graphically Immersive Trial Presentation Style Works Best Stop Using Bullet Points Why the former President is a Master PowerPointer The Redundancy Effect Search our site for just what you need 12 Ways to Eliminate "But I Need Everything On That PowerPoint Slide" 6 Trial Presentation Errors Lawyers Can Easily Avoid Trial Timelines and the Psychology of Demonstrative Evidence Don't Be Just Another Timeline Trial Lawyer The 12 Worst PowerPoint Mistakes Litigators Make

I've always been a creative type. In fact, it was my creativity 25 years ago that caused me to learn 3-D animation during law school and ultimately go on to launch A2L Consulting. In the 25 years since then, I've worked on thousands of cases advising trial teams and leading a team of people who advise top trial lawyers on conducting voir dire, running mock trials, managing complex trial technology, and my personal favorite, developing litigation graphics to simplify, explain, and persuade in complex cases. Focusing in on this creative side of the business, litigation graphics development, I have seen two types of trial teams interact with creative teams -- those that have the knack and are successful working with creative people and those that are not. The impact of these interactions turns out to be very significant. Cases have been won and lost because of a trial team's ability to interact well with a creative team. Like anything, it is a skill that can (and should) be learned. Over the past several decades, I've received feedback from hundreds of trial teams and I've seen feedback delivered to others by thousands more. Below are fourteen things to know about delivering feedback to the creative team. When creative people create, they offer a piece of themselves up for criticism. Deliver your feedback with this in mind, and you'll be ahead of your peers. If you're a shouter, find someone else to work with the creative team. Say what you mean. It's incredibly important that you be honest about what you like and what you do not. Holding in your criticism in an effort to be kind is not the goal. The goal is to deliver feedback in a productive way. Find the good and talk about it first. This one is a classic and is what is taught in art school. Simply, find something positive to say and then talk about what you do not like. Early feedback is the most important. If something feels “off” or wrong for the situation, don’t hesitate to give your feedback speedily. If you find yourself reading this list muttering something about sensitive snowflakes, you're not the best person to be working with creative people. Ask a colleague to be the messenger.

Environmental law is something that I have found fascinating for decades. In fact, I was involved in environmental litigation even before I founded A2L more than 23 years ago. It was a topic I focused on during law school and during the summers when I worked for a major pharmaceutical company. Since then, A2L has been involved in more than 100 environmental and energy cases involving more than 10,000 cleanup sites. These cases have ranged in size from a few million at stake to over $20 billion at stake. All these cases have a few things in common. First, most clean air and clean water cases necessarily involve with complex scientific concepts. Often topics such as plume migration, organic chemistry, and the concept of parts per million must be explained to the jury, the ultimate factfinders, in an understandable way. For the last ten years, another thing has become ubiquitous in environmental and energy cases -- the extensive use of PowerPoint. Here are three examples of the use of PowerPoint to show how complex topics can be translated into easier-to-understand pictures. First, here is an example of PowerPoint (converted to video format for easy viewing) that shows how one can illustrate both historical contamination issues and modern soil sampling by combining PowerPoint, photography and some simple illustration. This presentation is typical of those presented by experts in groundwater contamination cases. This next example is really a contract dispute with energy and environmental issues embedded in it. It is an example from one of the so-called Yucca Mountain cases. In this line of cases, because the government failed to build the Yucca Mountain nuclear waste storage site in Nevada, it is on the hook for ongoing damages for the costs of storing the waste, particularly spent nuclear fuel rods, at each nuclear power plant facility. Litigation occurs when the government and the plant operator cannot agree on the costs of this storage. This is an example of a PowerPoint that combines extensive technical illustration and PowerPoint to explain the hundreds of steps and the levels of complexity in removing the reactor pressure vessel and fuel rods from one facility. Hundreds of illustrations are loaded frame by frame into PowerPoint to create the feeling of an animation.

It turns out that a large number of Russian ads on Facebook that viewers did not know were Russian ads influenced the way people thought about various issues last year. They may have even influenced the 2016 presidential election to some degree. Rather than delve deeply into the appropriateness of these ads (in my view, they were wholly inappropriate), who exactly directed their placement, and how exactly they affected behavior, let's instead look at these ads from a trial lawyer’s perspective. After all, if pictures and a few short phrases can be used to change the voting behavior of the electorate, it stands to reason that pictures and some well-chosen phrases can be used to change the voting behavior of jurors. In the courtroom, there's no ethical debate about this process, since jurors know exactly where the message originates from -- the mouths of lawyers, experts, and witnesses. So if an attorney can use proven persuasion techniques and it's ethical to do so, the attorney must do so to zealously represent his or her clients. This is precisely why high-end persuasion firms like A2L exist. We're here to help persuade, using all appropriate and ethical means, both visual and rhetorical. We're not Russian hackers. Instead, we're hackers of human psychology, since we help top trial lawyers use proven techniques to maximize their persuasiveness. We do this by bringing together a remarkable combination of trial lawyers, social scientists, and artists to do what we do, a process we call litigation consulting. Let’s look at the Russian ads in this light. Because of some good investigative journalism and investigative work in Congress, many of the ads, Facebook groups, Facebook pages, and messages have been identified and published -- and most of them are really disturbing. The ads used some of the same time-honored techniques that trial lawyers use – but because their source was disguised and because they were intended to disrupt, not to persuade, they were dangerous. For example, many of the ads targeted topics where there is a deep division or poked at issues in a way designed to inflame. In almost every case, they used a favored technique of marketers, trial lawyers, and politicians alike -- FEAR. And that makes sense. Fear is a ten times greater motivator than hope of gain. That’s why marketers tell us that the one-time low pricing will end Sunday night, not how happy we will be on a new mattress. That’s why politicians tell us that immigrants should fear deportation if their opponent is elected, not that the melting pot is a good thing. And finally, of course, that’s how a specious argument that an everyday product causes cancer can overwhelm a defense based on good science. Fear wins, and good trial lawyers on both sides of the courtroom must use it. I wrote a lot about this topic in my five-part series about the Reptile Trial Strategy. It's no surprise that ads traced back to Russia focused on hot-button topics like Black Lives Matter, Muslims supporting Hillary Clinton, gun rights, LGBT rights, and more. Let's look at the techniques used in three Russia-linked ads: 1. Heart of Texas: This Facebook group that advocated for Texas secession quickly gained more than 250,000 members. The ad below uses a fake Facebook event as part of its messaging. What made a quarter of a million Texans unwittingly sign up for a Russian-backed Texas secessionist movement? The ad works because it stokes existing biases while seemingly coming from a credible source. If we define bias broadly as any commonly held belief by a person that makes it harder for them to accept contrary evidence, you can see how this could work in the courtroom. Obviously, we’re not talking about using racial, ethnic, or sexual preference biases as part of advocacy. Instead, I’m referring to those beliefs that many jurors show up to trial with -- like bankers are all motivated by greed, big energy companies don’t really care about the environment, or tech companies will ruthlessly steal from one another. Just as the Russians used biases in a deplorable manner, trial lawyers can play to other biases by encouraging jurors to accept and double down on their beliefs. As I wrote in a recent post, when you combine a credible source such as an expert witness with a message that jurors are ready to hear, you are likely to come out ahead. Consider how I embraced these biases and re-messaged these in a recent blog post about bias below. As you read each think about how you might couple each with persuasive visuals to maximize persuasion. Bankers are greedy, so why would they ever do something that risked their money? (Possible visual storytelling aid to accompany: evidence of penny pinching at all levels of the organization summarized on a chart to demonstrate a culture of avarice) XYZ oil company has been more reckless with the environment than you or me, but given what they went through before, do you really think they are dumb enough to do it again? (Possible visual storytelling aid to accompany: list in a slowly scrolling chart the tangible consequences the organization faced as a result of the last disaster) Sure, tech companies will do anything to get ahead, but can you imagine anything more humiliating to someone as competitive as the CEO of ABC company as looking as if you’re not as smart as the other guy? Nothing is worth that when you are a competitive tech geek. (Possible visual storytelling aid to accompany: text callouts coupled with the CEO photo openly demeaning the intelligence of the opposition)