by Ken Lopez Founder/CEO A2L Consulting An article last month in The Recorder, a publication of American Lawyer Media, makes clearly and concisely one of the points that we frequently try to make here on this blog. The article explains what happened in a wrongful-termination trial in federal court in San Francisco, which ended on February 6 with a $10.8 million verdict, plus $5 million in punitive damages, against Bio-Rad Laboratories and in favor of the company’s former general counsel, Sanford “Sandy” Wadler. It quotes James Wagstaffe, the lead lawyer for Wadler and a partner at the small San Francisco firm of Kerr & Wagstaffe, as saying that the key to winning a jury trial is storytelling. In the article, Wagstaffe is quoted as saying, “The need to tell and hear stories is primal. Trial lawyering is part of that primal need. The jury wants to hear a story.”
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.
by Tony Klapper Managing Director, Litigation Consulting A2L Consulting We’ve spoken here more than once about the fact that jurors, unlike most attorneys, tend to be visual learners who like to be shown, not told. The best way to show them what they need to know, as we have said, is through litigation graphics. Science has also taught us that the best way to keep a jury’s attention is by telling a story in the courtroom. These insights obviously have major implications for how trial lawyers should use the arts of persuasion in a jury trial. What about a bench trial or an arbitration? Here, the decisionmaker is trained as an attorney. Do we toss out all that we know about jury trials and proceed in an entirely different manner?
by Tony Klapper Managing Director, Litigation Consulting A2L Consulting We have written many times about the fact that scientific studies have shown that nonlawyers (who are the vast majority of jurors) tend to be visual learners, and tend not to be auditory learners or kinesthetic learners –people who learn by experiencing. Lawyers (who are the ones who present facts and tell stories to jurors) tend not to be visual learners and are often drawn from the ranks of auditory or kinesthetic learners. Of course, this can present an intrinsic problem that we have discussed before. If most lawyers like to tell but not show, and our audience, the jury, prefers to be shown something and not to be told, we may completely fail to connect with our audience. It’s not just psychologists and other students of human behavior who say so; it’s also people who devote full time to understanding trial advocacy. The National Institute of Trial Advocacy (NITA) is a fantastic organization that represents the “gold standard” of trial advocacy. In addition to putting on outstanding CLE programs for newbie and experienced litigators, NITA also publishes many great books from scholars who have thought long and hard about advocacy.
by Ken Lopez Founder/CEO A2L Consulting
by Tony Klapper Managing Director, Litigation Consulting A2L Consulting Ken Lopez, the CEO of A2L Consulting, and I were talking the other day about some good books to read for the holiday season. I suggested a current best-seller, Thomas Friedman's Thank You for Being Late - strongly recommended to me by my dear friend and mentor, Jim Hostetler. But Ken guided me to another book, a best-seller written 15 years ago by Jim Collins, called Good to Great. It was a great read. Although the book is principally a heavily researched analysis on what differentiates a great company from just a good company, I believe that many of the same lessons that apply to the Fortune 500 apply with equal force to law firms, litigation consulting companies, and even trial teams. Borrowing heavily from Collins' conclusions, I offer the following New Year’s thoughts on how good trial teams can be great trial teams: Great trial teams have leaders who have the confidence to make important decisions but also the humility to call attention to the team, not themselves. Great trial teams are composed of the best and the brightest who, like their leader, put the team first. They are not necessarily subject matter experts (though subject matter expertise certainly doesn’t hurt), but they are innovative thinkers who roll up their sleeves and get to work.
by Ken Lopez Founder/CEO A2L Consulting Tony Klapper joined the A2L team after a vibrant and successful career as a litigator at law firms like Kirkland & Ellis and Reed Smith. One of the reasons that he has meshed so well with the culture here at A2L is his penchant for storytelling, particularly as it applies to persuading in the courtroom. In the past year, I've had the pleasure of watching Tony deliver private storytelling training sessions to litigators at many of the very top litigation law firms. And I have also had the distinct pleasure of watching him work with our customers, who are primarily large law firms engaged in litigation with hundreds of millions, or billions, of dollars at stake. Having been in this business and having seen a lot of people do this kind of work for three decades, I can say with confidence that Tony is absolutely superb at combining the development of a high-quality narrative with high-quality persuasive visuals. So it's with great pleasure that I announce an upcoming free public webinar on storytelling for litigators on Wednesday, January 11, 2017 at 1:30 pm (EST) - NOTE: Recorded version will be available after the event if you register. Everyone is invited to attend. All you have to do is sign up, and that takes about 30 seconds. Here's the link to register.
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 I go to a marketing conference in Boston every year, and every year I see a handful of outstanding presentations about storytelling. One stood out for me this year that will have immediate applicability for our field. The presenter, Amina Moreau, is a filmmaker and co-founder of Stillmotion. Her session, Scientific Secrets of Superpowerful Storytellers: Techniques to Spur Action, covered some topics that are particularly useful for trial lawyers looking to persuade audiences. We are constantly discussing storytelling among ourselves at A2L and with our litigation-focused client base. We've published books about storytelling, conducted webinars about storytelling (a new one is going to be announced soon), and routinely conduct storytelling CLEs at top law litigation departments. Our articles about storytelling at trial are read and shared regularly. See Dan Pink, Pixar, and Storytelling for the Courtroom, 5 Essential Elements of Storytelling and Persuasion, and Storytelling at Trial Proven to be Scientifically More Persuasive. Using neuroscience as a foundation, Ms. Moreau raised a question that we frequently wrestle with: Whom should we tell stories about to generate the most powerful call for action and to be as persuasive as possible? Should the story be about a team, should it be about the CEO, should it be about the victim's wife, should it be about the inventor? How do we make the story most meaningful to our audience? After all, if the story is not meaningful, we can't connect with the audience, and if we can't connect, we can't persuade using emotions and the framework that a well-told story provides.
by Tony Klapper Managing Director, Litigation Consulting A2L Consulting Everyone, regardless of political persuasion, can agree that a significant portion of the U.S. electorate voted for change in this week’s presidential election. And the way the whole 18-month campaign went certainly represented a change from the way most campaigns have gone in our history. But while we as a country – at least every four or eight years – seem to like change, lawyers not so much. Maybe that reflects what we learned in law school. Law is governed by precedent, and if there are changes to precedent, they are incremental at best. Or, maybe it reflects the role we assume as advisers and the tendency for many in our profession to be cautious and risk-averse. Regardless of your attitude toward changes in the law, in your political leaders, or in what your clients do, we believe that in the arena of trial advocacy change is very often a good thing. Here are five examples. Literally, change the font you are using for exhibits and displays. Mix it up occasionally. Pick a less common font, but not one that calls too much attention to itself. Jurors will notice the unusual font, although they may not know just what they’re noticing, and they will stay awake and attentive. See, Could Surprise Be One of Your Best Visual Persuasion Tools? Change your narrative. Don’t be wedded to telling your story a certain way, but be open to other people’s thoughts and perspectives. Aunt Sally’s apple pie wasn’t perfect the first time; it took years to fine tune that recipe. It could take many run-throughs to get an opening statement just right. See, 10 Types of Value Added by Litigation Graphics Consultants
by Ken Lopez Founder/CEO A2L Consulting As we approach the end of 2016, I'm reviewing the many free resources that have been viewed and downloaded from A2L Consulting's extensive litigation-focused website this year. From podcasts to blog articles to free downloadable e-books to free webinars, we have given back this year to the trial community more than ever. Our blog has been accessed 250,000 times, our 20+ free e-books have been downloaded tens of thousands of times and more than 1,000 new subscribers have signed up for a free litigation and persuasion-focused blog subscription in the past year. To help sort through all that data and information and focus on just the best content and resources, here are the 10 items, all completely complimentary and without additional obligation, that saw the most intense attention this year from the litigation industry's top players. Visits to A2L's free resources (podcasts, e-books, webinars etc.): This central set of resources allows visitors to our site to direct themselves to the information they most need. Storytelling for Litigators Webinar: The science of using storytelling for persuasion is in its nascent stages. This webinar explains what is now known and how to best use storytelling techniques to influence other people’s thoughts and conclusions. The Patent Litigation Handbook 4th Edition: During A2L's more than 20 years in business, intellectual property cases have represented nearly half of our total work. Therefore, it’s no surprise that when we want to update one of our handbooks, we often turn to our patent litigation handbook. It’s a perennial winner. The Voir Dire Handbook: I'm surprised by how popular this book is, but voir dire continues to be one of the most searched for terms on our site. We routinely help support trial teams during jury selection and conduct mock exercises that have a voir dire component. Complex Civil Litigation Handbook: This book is a necessity for anyone who enters civil courtrooms, develops theories for civil cases, or works on complex civil litigation.
by Tony Klapper Managing Director, Litigation Consulting A2L Consulting We have always emphasized how important it is for a trial lawyer to organize his or her case so as to tell a consistent and convincing story to the jury or judge. In making that recommendation, we draw on experience and common sense, as well as on science that indicates that human beings are wired to follow intriguing stories and to look forward to their ultimate resolution. “Storytelling is essential to winning trials – and that goes for mediations, arbitrations, and hearings, literally anywhere you must connect with an audience,” we have written. “Whether it’s your story or not, a story will inevitably emerge during a trial. Mock trials and focus groups have repeatedly shown that when a jury has two camps representing the two sides of the case, each camp will have a fairly consistent story that it endorses and clings to. Consistently, we find that those stories are short, that they fit with common sense, that they borrow some of the salient facts from the trial, and that they are complete tales, with a beginning, a middle and an end – including what happened and what should have happened.” A story removes a case from the realm of the strictly legal and makes it personal. It humanizes one’s client and helps a jury identify with the client. But can storytelling go too far as a technique of persuasion?
by Alex Brown Director of Operations A2L Consulting As we have mentioned before in this blog, the art of storytelling is a crucial skill for a trial lawyer. From the very beginning of a trial, many jurors will envision the facts of the case in the form of a story. Our brains are wired to tell stories, to listen to stories, and to remember stories. Storytelling began with the caveman and the campfire and is still the best way to present information to an audience. Think of the difference between these two statements: I went to the market. I went to the 7-11 at midnight to buy a Diet Mountain Dew and to play Pokemon Go because I am addicted to that game. Statement 1 is just a flat statement. It has no specifics and does not draw the reader or listener in. Statement 2, on the other hand, intrigues the reader or listener. Why did you go that late at night? How did you fare in your session of Pokemon Go? What happened when you got home? And so on. It is potentially the beginning of a story. As a trial lawyer, you will be telling stories. You want your audience to be drawn in and involved. Here are some points to consider in developing a story: Have a purpose. Who wants to hear a story when you know that the storyteller has no destination or end in sight? You feel trapped. Or worse, you zone out and stop listening to save yourself the pain of the journey. Your audience, a judge or a jury, is human and will react similarly.
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