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 Tony Klapper Managing Director, Litigation Consulting A2L Consulting At first glance, antitrust cases seem like unlikely venues for the successful use of litigation graphics. Antitrust law has the reputation for being arcane, abstract and statistical, and to some extent the reputation is justified. After all, this area of law deals with the workings of supply and demand and other economic questions, and the issue is often whether competition (or potential competition) in a market has been suppressed in some way. These matters aren’t remotely within the daily experience of jurors. How can a litigator use graphics in antitrust cases to make them make sense? It can be done. Earlier this year, a well-written article in Law360 (paywall) noted that “explaining the details of an antitrust case to a jury can be a daunting task, but lawyers who build a compelling narrative and communicate with a straightforward style stand a good chance of bringing the jury around to their client’s point of view, experts say.” The article suggested that “many jurors are visual learners, so economic evidence is most likely to stick when the spoken testimony is supplemented with visual aids.” We agree.
by Tony Klapper (Former) Managing Director, Litigation Consulting A2L Consulting
by Tony Klapper (former) Managing Director, Litigation Consulting A2L Consulting In my last post, I talked about the fact that an expert witness needs to express her expertise in a convincing way – but also in a way that the typical juror can understand and not in the language of a specialist. The next step in becoming a truly effective expert witness is to understand the power and the importance of visual learning. It’s a safe bet that your peer-reviewed articles contain tens of thousands of words. Your academic poster contains hundreds, maybe thousands, of words. Your PowerPoint presentations delivered to your peers contain bullet point after bullet point of words (and maybe a smattering of cartoons). Ask yourself: How many television commercials convey the importance of the advertised product through words? How many magazine advertisements do the same through words? How many movies convey their story through words? How many architects explain their designs through words? How many patents have no pictures and just words? And how many biology textbooks have no illustrations and just words? In all these instances, the visual is what matters.
by Alex Brown Director of Operations A2L Consulting I read an article today that can be applied to our industry so well that I thought I should apply its lessons. The article was written by Eddie Shleyner and is titled: How to Defeat Your Most Dangerous Writing Habit: 7 Ways to Lift 'The Curse of Knowledge' The article highlights the concept of being cursed due to knowing too much. The issue refers to someone who has studied a subject so thoroughly that it becomes difficult to explain it to people who don’t know as much about the subject. As an example, he discusses the book, Made to Stick, where the Heath brothers provide an example: “Think of a lawyer who can’t give you a straight, comprehensible answer to a legal question. His vast knowledge and experience renders him unable to fathom how little you know. So when he talks to you, he talks in abstractions that you can’t follow. And we’re all like the lawyer in our own domain of expertise.” Cognitive bias is what we are talking about. Shleyner notes that this is particularly dangerous to writers, since in conversation, a listener can ask questions to clarify the issue. But litigators, when giving an opening or closing statement, are in the same boat as writers since they are unable to ask or receive questions from their audience. So, how can you defeat this curse? Ironically, more knowledge is the answer. The more you know about the curse, the less likely you will succumb to it and the more persuasive you will be. Let’s take a look at his seven best practices to combating this curse and apply them to our industry. 1. Know your audience’s base subject knowledge. Jury Research. Focus Groups, Mock Exercises. Basically, you need to know your audience. Not only to know how they think, but why, what, who, where and the often forgotten wow. Learn how they think, learn the history to know why they think this way, but most importantly, figure out how to say it in a way that will wow them and be remembered. Like It or Not: Likability Counts for Credibility in the Courtroom 5 Reasons Why Jury Consulting Is Very Important Group Psychology, Voir Dire, Jury Selection and Jury Deliberations
by Ken Lopez Founder/CEO A2L Consulting We at A2L are launching a new e-book this month. This time, we are publishing the book jointly with IMS ExpertServices, one of the nation’s premier providers of experts and consultants for top law firms and Fortune 500 corporations. The title of the new book is Expert Trial Testimony: Direct and Cross-Examination. The book answers every question you might have thought of in connection with expert testimony at trial in U.S. courts, and it does so in a clear, conversational manner. Plus, it’s a free download. As more and more money is at stake in civil trials, and as the subject matter grows more and more complex and difficult for many jurors to understand without assistance, the value and importance of expert witnesses has grown dramatically. The difference between an effective, well-prepared, convincing expert witness and one who does not come across well to a jury can often be the difference between winning and losing a trial where hundreds of millions, or billions, of dollars are at stake. The book is directed at experts themselves and gives dozens of do’s and don’ts that will make any expert’s testimony effective and convincing at a trial. It’s not only experts who will benefit from reading this book but also trial attorneys, trial technicians, in-house counsel, and anyone who wants to understand the best ways to put on expert testimony. The book addresses the typical expert witness as follows:
by Tony Klapper Managing Director, Litigation Consulting A2L Consulting At A2L, we strongly believe that strong visual presentations are indispensable to courtroom success. But great visuals don’t just create themselves. Top-notch litigation graphic artists are the ones who make unforgettable visuals, and that means that graphic artists need to be a crucial part of any trial team. And good graphic artists aren’t easy to find. As a graphic design website explains, a great graphic designer should “love art in all its forms” and “should live to create and to be inventive.” A graphic artist needs to understand color, composition, typefaces and dozens of other design elements and to use the best digital tools available.
by Jeanne Cannarozzi (Former) Business Development Manager A2L Consulting Trial teams often struggle to find just the right analogy or metaphor to help convince a jury. As persuasion consultants, our role is very often that of finding options for analogies or metaphors for a trial team to consider. It's one of those times when our office looks a lot like an advertising agency with a group trying to brainstorm. I want to share some resources used by our team in coming up with good techniques for trial teams to use.
How many slides should a world-class trial lawyer or trial presentation consultant create for use in a typical trial? That’s an interesting question that I hadn’t thought of until recently, when I had a fascinating debate with some litigators about this topic. One took the view that a trial with twice as many issues should require twice as many slides, even if the two trials are of equal length. I disagreed, and I think these litigators found my position confusing at first. I told them that the presumption for any trial team should be to use as few slides as possible to make a point. More slides just create more complexity. And that inhibits persuasion. There's a famous quote that has been attributed to many people, but it is correctly attributed to French mathematician Blaise Pascal: “I would have written a shorter letter if I had more time.” I think this sums up in many ways the goals of effective trial presentation. If you find yourself going to trial with 500 slides that you plan to use in a five-day trial, you are probably overdoing it. But people do that all the time. I wrote about this topic in an article discussing how the PowerPoint slides that you do use are informed by the ones you don't. I think of it like a sculptor and Michelangelo’s famous saying how he could see the finished piece in the block of stone, he just needed to chip away the extraneous stones. I do think trial presentation should work something like that. That's why it takes a long time to make a good presentation and why you should not find yourself at the end of the trial apologizing for not having written that shorter letter. Here are a handful of best practices for any PowerPoint slide presentation with additional reading incorporated throughout:
by Alex Brown Director of Operations A2L Consulting
by Ken Lopez Founder/CEO A2L Consulting Last week, I wrote about a new book that proposes a variety of life, body, and brain hacks to make us more persuasive. That book is written by Amy Cuddy, one of the top TED speakers of all time. I think the lessons she teaches are incredibly valuable for litigators looking to maximize persuasiveness during their opening statements. So, you might ask, what makes a good TED Talk a great one? After all, some TED Talks have tens of millions of views, while others on equally interesting topics have far fewer views. I am a big fan of TED Talks, and I have highlighted some aspects of them in previous articles such as The Top 10 TED Talks for Lawyers, Litigators and Litigation Support and The Top 14 TED Talks for Lawyers and Litigators 2014. If you happen not to know what TED Talks are, they are simply short talks, generally combined with some visual support, that are sponsored by TED, a nonprofit foundation. TED Talks have become the gold standard for thoughtful, innovative presentations to lay people in many areas of endeavor. Last year, Vanessa Van Edwards, an expert on presentations and on human behavior, studied what makes a great TED Talk, and the results are a mix of fascinating and frightening for most people. I say frightening since many of these results fly in the face of the conventional wisdom. Of course, as someone who lives and breathes trial presentations, I have a bit of an agenda here. I think that each of the lessons that Van Edwards gleaned from the elements of a great TED Talk are perfectly analogous to great lessons for how lawyers should make an opening statement. So, here are her five key findings:
by Ken Lopez Founder/CEO A2L Consulting The importance of developing a strong narrative in your case is well-established by science and by what we have all observed in the actions of jurors in real cases. In spite of the law that may be against you, in spite of the facts that may be against you, a high-quality narrative can win a case. We've written about this extensively and articles like Storytelling Proven to be Scientifically More Persuasive, 5 Essential Elements of Storytelling and Persuasion, and $300 Million of Litigation Consulting and Storytelling Validation provide a good background on the power of story, whether in a case tried to a jury or to a judge. Great litigators don't push back on the need for story anymore. Indeed, they arrive at our doors in quest of ways to fine-tune their narrative and make it more convincing. We help them by testing any number of possible approaches, by conducting practice opening statements, and by developing a persuasive visual presentation for the litigators. One bit of pushback that we do continue to hear is about injecting emotion into a case. Particularly from defense-side clients, we hear that all that’s needed and appropriate is a narrative – but that in this particular case, the narrative need not be compelling and emotional.
by Tony B. Klapper Managing Director, Litigation Consulting & General Counsel A2L Consulting I’ve recently joined the litigation consulting team at A2L as its Managing Director. This means that I will be working closely with top litigators to help them craft persuasive themes and stories, assist in the testing of a case during a mock trial exercise, and develop powerful demonstrative exhibits. In my 20+ years working at Kirkland & Ellis and then Reed Smith, I have participated in many trials, arbitrations, evidentiary hearings, mediations, and board presentations. Almost without fail, I have been the attorney responsible for coordinating and developing the litigation graphics for these events. That did not mean putting mouse to screen in a graphics program or PowerPoint. Instead, I would put pencil to paper and sketch out a great idea that someone else transformed into a powerful litigation graphic. It is work that I have always been passionate about. As I transition from working on graphics two or three times a year to developing them every week, I want to take a moment to reflect on what I’ve observed about trial graphics as a litigation partner at two major law firms. Janus-like slides. Janus is the Roman god of gates and doorways. He is depicted as having two faces and typically represents beginnings and endings or contrasting experiences, such as war and peace. Although not one of your sexier Roman gods – clearly no Jupiter or Venus – Janus does inspire some effective litigation graphics: A split-screen slide that reflects a cause on the left and an effect on the right, or a representation or claim on the left and visual proof that the representation or claim is false on the right. A single, simple split-screen slide can instantaneously convey a powerful message without resorting to a series of dull, ineffective bullet-point assertions. The Timeline. Effective stories are not simply recitations of chronological events. But “when” something happens and how that something relates to “when” something else happens is almost always a central feature in litigation and part of a good story. Stories have beginnings, middles and endings. They transport us through a maze of actors and activities, all anchored in time. Instead of vertically listing from top to bottom a series of events -- as many fond of the easel and flip chart will do -- a well-crafted and visually appealing timeline allows you to elegantly develop your narrative in linear fashion. But it’s not just the narrative. A timeline that is chock full of entries may tell a completely different story than one with wide gaps of time, even without needing to read the fine print.
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