by Lorraine Kestle Graphic Designer A2L Consulting The age-old adage that there are two sides (at least) to every story is clearly evident in litigation. Both parties believe that the applicable law, when applied to the facts, supports their position, or they likely would not be going to court. The parties and the lawyers are familiar with the facts and the law. Everyone fully understands the nuances of their position. Everyone, that is, but the judge and jury who are hearing the case for the first time. It is these “novices to the case” who will ultimately decide which version of the facts or story is most persuasive. For one day, I was a “novice to the case” in the courtroom as I helped our trial technician set up for a PowerPoint presentation in court. I observed both sides’ opening statements as well as the direct and cross-examinations. Although I have been in the courtroom on numerous occasions, I had no prior knowledge of the substance of this matter and did not work on this presentation. Our client, the plaintiff in this case, delivered an opening statement that was enhanced with a PowerPoint presentation, while opposing counsel relied on typed or handwritten notes and an easel with a large paper tablet. After observing both approaches, I came away with what I think are interesting conclusions about the effect that the PowerPoint presentation had on my understanding of the case, the attorney’s arguments, and my initial impression of liability. 1. An Increased Perception Of Preparation, Competence And Persuasion As a former paralegal, I know that preparation is one of the keys to success in litigation. And while I believe both sides were equally prepared, this was not the impression created in the courtroom by defendant’s counsel. What set the opening statements apart was the PowerPoint presentation used by our client. It served as a baseline of comparison for what followed.
by Ken Lopez Founder/CEO A2L Consulting The title of this article shouldn't sound like a breaking news headline, but let's be honest, it does. Most PowerPoint presentations are bullet-point-riddled text-heavy electronic projections of a speaker's notes. Most lawyer-delivered PowerPoint presentations are the same — just with even more text and smaller fonts. As a result, a significant majority of speakers (and lawyers) using PowerPoint presentations are hard to understand and dramatically less persuasive than they could be. There are exceptions of course. The kinds of litigators and others who become clients of A2L Consulting's litigation graphics division are the first exceptions. They typically learn the rules of effective presentation and high-level visual persuasion based on well-established neuroscience principles and rigorous psychological studies. The second exception is Lawrence Lessig, a Harvard law professor. I had the pleasure of seeing him deliver a presentation at TEDx MidAtlantic recently. Whether or not one agrees with his message, almost everyone can learn a lot from his presentation style and the methods he used to achieve visual persuasion. Here is a video of that presentation:
by Ken Lopez Founder/CEO A2L Consulting In my last post, 7 Bad Habits of Law Firm Litigators, I wrote about the problems caused by litigators who, even when they have an adequate budget, design their own PowerPoint slides for trial. I've seen this result in: demonstrative evidence being excluded for using inappropriate tactics; demonstrative evidence being used for outright misconduct; opportunities being missed to use persuasion tricks of the trade; lawyers getting stuck in a chronological recitation of the facts; an overall lack of anything memorable or creative being presented; the use of out-of-date techniques like bullet points that damage credibility; and many other things that, as I said a few Halloween's ago, can lead to a deMONSTERative evidence nightmare. Well, there's new problem to add to this list of challenges faced by litigators who design their own slides, and it was just revealed by a brand new study conducted by the Missouri School of Journalism and the Washington Post.
by Ken Lopez Founder/CEO A2L Consulting In our role as trial consultants, we frequently work with some of the top law firm litigators in the nation, as well as with in-house counsel for some of the nation’s major companies. Ideally, we form a cohesive team that works seamlessly to provide outstanding trial representation and to win cases. Occasionally, we find that law firm litigators are engaging in bad habits that can increase inefficiency, cost the client money, and decrease the chances of winning at trial. Here are seven of them. 1. Lawyers designing PowerPoint slides. Anyone who went to law school can of course use PowerPoint. Generating PowerPoint slides is not difficult, and lawyers are smart. Many lawyers can even make PowerPoint slides that look nice. But: a. It's not about pretty slides, it's about effective slides, and the rules for how to create those take years to learn. See Litigation Graphics: It's Not a Beauty Contest b. A lawyer doing slides costs the same or more per hour than a litigation graphics expert doing slides. Classically, you could cut your own hair, but why would you? See How Valuable is Your Time vs. Litigation Support's Time? c. A lawyer creating slides does not know the tricks of the trade. See Trial Graphics Dilemma: Why Can't I Make My Own Slides? (Says Lawyer) d. A lawyer creating slides will likely tell a chronological story instead of an effective story. See Don't Be Just Another Timeline Trial Lawyer e. A law firm might claim to have in-house litigation graphics expertise (See 13 Reasons Law Firm Litigation Graphics Departments Have Bad Luck). But ask yourself: How many trials does that law firm do per year? For even the largest firms, that answer may be a couple dozen. How many cases does that lone artist work on? A small percentage of what is already a small number? Contrast that with a litigation consulting firm with graphics expertise that might do 50 or 100 trials per year concentrated among a handful of key staff. See With So Few Trials, Where Do You Find Trial Experience Now?
by Ken Lopez Founder/CEO A2L Consulting
by Ken Lopez Founder/CEO A2L Consulting I want to share the results of an interesting study that I recently read. I believe that it has implications for how we present information in the courtroom. It appears in the October 2015 Journal of Experimental Psychology, and is entitled Knowledge Does Not Protect Against Illusory Truth. As experts in the persuasion business, we have long known about the power of repetition. We use it as a specific rhetorical technique during opening statements. We incorporate repetition when creating demonstrative evidence. We even choose to repeat the same message in many different formats (trial boards, PowerPoint, scale models) to reach different types of learners. We do this because repetition helps people remember things, it signals that something is important, and it helps presenters be more persuasive. Studies have long shown that the more we hear something, the more likely we are to believe it. This is why some people believe that Vitamin C helps stave off a cold or that you should drink eight glasses of water per day to maintain good health. Both of these statements lack any scientific basis. We've just heard them so often that many have come to believe them. Think about the assertions we are already hearing over and over in this election season. Hillary Clinton hid something in her email. Donald Trump declared bankruptcy four times. Carly Fiorina was a bad CEO. Planned Parenthood sells aborted baby parts. I don't know how much truth there is in any of these statements, but I do know that the more I hear them, the more I tend to believe them. That’s the power of repetition. Psychologists call this the illusory truth effect, and it's why we counsel our clients to use repetition throughout a case. When people don't know anything about a particular topic, the illusory truth effect tells us that the more they hear an assertion, the more they will believe it.
by Ken Lopez Founder/CEO A2L Consulting Today is the 20th anniversary of the founding of A2L. We literally started in a closet not long after I finished law school. First, we were Animators at Law. Then almost five years ago, we became A2L Consulting to reflect the fact that litigation graphics were now less than half of our business. Jury consulting, trial technology support and litigation advisory services are now a bigger part of what we do. Twenty years later, we're a national litigation consulting firm and arguably, the very top litigation consulting firm in the country. That's not mere puffery. We're consistently voted #1 in local and national legal industry surveys. To celebrate our 20th, here are 20 new realities that litigators, in-house counsel and litigation support professionals should consider. 1. The New CLE: It is a rare CLE seminar that does not put us all to sleep. I think that modern formats of continued learning like our Litigation Consulting Report blog and other litigation blogs, including those recognized by the American Bar Association, are the best places to go for continued learning. It’s time for the legal establishment to agree. 2. The power of storytelling: The science behind the effectiveness of storytelling as a persuasion device is just now coming into view. It is critical for litigators to study this field and to understand the insights it has developed. See, Storytelling for Litigators E-Book 3rd Ed. 3. Big firm litigators rarely try cases: As a result of this new reality, litigators must get a new kind of help - help from trial tested litigation consultants. These courtroom experts may participate in 50-100 trials per year. It just stands to reason that they can help a litigator who is in court far less frequently. See, With So Few Trials, Where Do You Find Trial Experience Now? 4. Using PowerPoint incorrectly does more harm than good. Most lawyers will actually design slides for themselves that will reduce overall persuasion - but they don't have to. See, How Much Text on a PowerPoint Slide is Too Much? 5. Juror expectations are on the rise: Jurors expect litigators to wow them a bit with graphics and to keep them interested. They know what can be done in the form of graphics and at a lower price than ever before. See, Will Being Folksy and Low-Tech Help You Win a Case?
by Kenneth J. Lopez, J.D. Founder/CEO A2L Consulting Lawyers love words. Lawyers love words on slides - tons of words on slides. Some lawyers think that the more words they use on a PowerPoint litigation graphic, the better. They are wrong. Actually, using too many words on a slide will dramatically damage your effectiveness. This damage is not aesthetic in nature. This is not about your look and feel. It is scientifically proven damage that affects how well you inform and persuade your audience. Indeed, it can be said the higher your slide's word count, the lower your persuasiveness.
by Ken Lopez Founder/CEO A2L Consulting Over breakfast the other day, a partner in a major law firm was explaining to me that it can be challenging to explain the added value that litigation graphics consultants can provide in a case, especially given the challenging budget environment in which litigators operate today. He was surprised when I said that the key here is not the fact that graphics consultants know how to prepare PowerPoints. After all, the average law firm associate can prepare a pretty decent PowerPoint presentation. The problem is that perhaps one in 500 PowerPoints prepared by a smart and well-informed law firm associate does more good than harm. What litigation consultants can do for a trial team is more complex, more persuasive and more sophisticated. So here are ten ways in which a litigation graphics consultant would add value where a litigation associate might cause harm or simply might not provide benefit. 1. Supporting the development of a narrative. We've written about this extensively, and great graphics consultants like those at our firm have enormous value here. One of the essences of trial presentation is telling a narrative. See, $300 Million of Litigation Consulting and Storytelling Validation. 2. Helping separate the theme from the narrative. Many of us who took trial advocacy were taught to start out our openings with "this is a case about . . . ." After that, we would usually state our theme. What many lawyers were not taught was how to develop a persuasive narrative. A few rare litigation graphics consultants can operate at the 1st chair level and offer this kind of support. See, 14 Differences Between a Theme and a Story in Litigation and 21 Reasons a Litigator Is Your Best Litigation Graphics Consultant. 3. Helping combat the now-fashionable “Reptile” trial strategy tactics that plaintiffs lawyers use. We have discussed this in several recent blog posts. See, Repelling the Reptile Trial Strategy as Defense Counsel.
by Ken Lopez Founder/CEO A2L Consulting If the creation of litigation graphics were as simple as some people make it out to be, you would never need a litigation graphics consultant. Yet litigation graphics consultants of varying skill levels are everywhere these days. Clearly, there is a need for them. But why? What value do litigation graphics consultants add? It’s a fair question, and here are 12 good answers. 1. Contrary to what some think, litigation graphics are more than electronic versions of printed documents: Many litigators make the mistake of thinking they are fully utilizing litigation graphics when they hire a trial technician who does nothing more than show documents on screen. See Why Trial Tech ≠ Litigation Graphics 2. Real litigation graphics consultants are storytelling experts, not PowerPoint experts: The technology isn’t what matters. As with lawyers, there are wildly differing levels of talent and education among litigation graphics consultants. The very best, like those on the A2L team, are true experts in helping to craft a story using visuals. These experts add value, not just slides. See Patent Litigation Graphics + Storytelling Proven Effective: The Apple v. Samsung Jury Speaks and $300 Million of Litigation Consulting and Storytelling Validation
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 Ken Lopez Founder/CEO A2L Consulting I love a good trial timeline whether it's a printed large-format trial board or whether it's in PowerPoint form. This goes for my colleagues here at A2L, as well. In fact, we love timelines so much that we've even produced a book with more than 30 types of trial timelines illustrated. Timelines are used as demonstrative evidence in just about every trial. They serve an obvious purpose of orienting judge and/or jury to the order of events and how those events relate to one another. It's the one exhibit that helps make sense of it all, particularly in a complex case. As our trial timine book discusses, a timeline does not have to be limited to simple chronologies. In fact by incorporating graphs, photos, color schemes and more, a timeline can transmute from being simply informative to being quite persuasive.
by Ryan H. Flax (Former) Managing Director, Litigation Consulting A2L Consulting I am not advocating that you spend more to develop top-notch demonstrative evidence. What I want you to do is make sure that the litigation graphics that you do use look like you paid a million bucks for them. Make sure you’re getting what you’re paying for. Let me explain why. Recently published and widely reported research out of the University of Cincinnati relating to treating Parkinson’s disease shows that the placebo effect is a real thing and a powerful psychological phenomenon. Interestingly, what the study also shows is that it matters greatly to those experiencing a strong placebo effect how much they believed the pseudo-pharmaceutical cost. Amazingly, seemingly-more-expensive drugs turned out to be much better “drugs” in effect (even though they were not drugs at all). The more a patient believed a drug cost (here the artificial difference was $100 vs $1,500 per dose), the more effective it was at treating their symptoms of Parkinson’s. Perception of cost was capable of influencing physical and psychological behavior and responses on a subconscious level. Wow.
by Alex Brown Director, Operations A2L Consulting How do you determine value? This weekend, while my oldest child was in Boston at a gymnastics meet, we thought this would be the perfect time to “renovate” her room back home. My youngest daughter wanted to help but also wanted to negotiate her fee to do so. I came up with many reasons for her to find value in helping: the good of the family, experience, and enjoyment, but none of these provided the proper balance of cost and value to her. Finally I told her that she will be able to destroy something that belongs to her big sister, without any concern for retaliation. This brought her on board, and in the end she not only loved it but she also had the added benefit of being able to tell her sister how much fun it was to destroy her room and how destructive the work needed to be. As litigators, you have a similar job of having to persuade your client about, say, the importance of using expert witnesses or the need to bring on a litigation support team. This is always a delicate conversation because there are so many factors in play; emotions, money constraints, and inexperience, to name a few. For years, the use of expert witnesses has been an easy sell for the most part. But the importance of litigation support (i.e. theming, visual presentations, trial technology/hot seat operators, and mock trial exercises) is not universally accepted, so it can be more of an uphill struggle to convince clients of the need for these things and even harder to persuade them of the value. But why? It’s clearly not the cost, since that normally runs anywhere between .5 percent and 5 percent of the legal fees in a big case. So the sticking point is the need for these services.
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