by Ryan H. Flax, Esq. (Former) Managing Director, Litigation Consulting A2L Consulting In our two previous posts, we discussed two important roles that an opening statement can play: making you and your client appealing to the jurors, and telling a convincing story. Here are two other key functions for an opening statement.
by Ryan H. Flax, Esq. In our most recent post, we discussed how important it is to use an opening statement to make jurors like you as a person and thus embrace your client’s case. Another key theme of opening statements is storytelling. Everyone is always advising lawyers to use storytelling to be more persuasive. So, why isn’t it happening more? Maybe no one is reading these publications. Or perhaps when preparing for trial, we’re mired in details and chronology. In law school, we’re taught how to deal with this Venn diagram involving the intersection of the law and the facts. Never are we taught that the real intersection we care about involves human beings, how they think, how they learn, and how their influenced.
by Ken Lopez Founder/CEO A2L Consulting Unfortunately, I have the memory of an elephant when it comes to life's uncomfortable moments. One of those occurred during undergraduate school at the University of Mary Washington almost 30 years ago. Like it was yesterday, I remember reviewing my professor's notes on a graded paper. Burned in my memory is the red-pen-circled-notation, "cliché." At the time I really didn't understand why using a cliché would be a problem. After all, it's just a linguistic shortcut, and having my professor deduct points for it struck me as splitting hairs. At the end of the day, a cliché is really just a culturally entrenched phrase that shortcuts language and allows us to speak more efficiently, right? Well, not exactly. Clichés are really the place where good metaphors go to die. That is, what was once a useful language shortcut becomes so overused that it is negatively labeled a cliché. So, what's all the hubbub about when it comes to using clichés in litigation for persuasion? It turns out that by taking the easy way out and using a cliché, you will significantly harm your courtroom persuasion efforts.
by Alex Brown Director of Operations A2L Consulting Last year, we talked about the pros and cons of business development professionals -- specifically, the good and bad traits of people in this profession. Here, I start a new series on the six principles of persuasion. I have long been a huge fan of Dr. Robert Cialdini and find myself repeatedly going back to a book he wrote called "Influence: The Psychology of Persuasion." In this book, he discusses the six principles of persuasion. I want to share with you these principles in a six-article series, starting with principle number one: Reciprocation. According to the Merriam-Webster dictionary, reciprocation is a noun that refers to a mutual exchange, a return in kind or of like value. Now before the emails come in about the ethics of giving the jury something in exchange for a favorable verdict, hear me out.
by Ken Lopez Founder/CEO A2L Consulting If you can win the battle of opening statements, you'll likely win your trial. Up to eighty-percent of jurors will make up their minds about your case during opening statements. In this webinar you'll learn the top-five ways to maximize persuasiveness during opening statements. From how to tell compelling stories to visually supporting your key arguments, this one-hour will reveal the best secrets from courtroom persuasion experts. Ryan H. Flax, Esq., A2L's Managing Director of Litigation Consulting is an accomplished litigator who helps trial teams perfect their trial story and trial presentation using the latest persuasion science. Even if you can't make it to the live event, you'll receive access to the recorded version just for registering.
by Ken Lopez Founder/CEO A2L Consulting One month ago I wrote an article titled 9 Things Outside Litigation Counsel Say About In-house Counsel, and we recently included it in our free In-House Counsel Litigation Toolkit e-book. It is a popular piece read by several thousand people so far. Today's article looks at what is being said by in-house counsel about outside litigation counsel. I've spent a lot of time talking with in-house counsel from large companies over the past two months. They have a lot to say about outside litigation counsel that I don't normally see reported in the popular press.
by Ken Lopez Founder/CEO A2L Consulting It's been another unbelievable year at A2L Consulting. I'm very proud to see us again be voted best jury consultants and best litigation graphics consultants. More than 20,000 free e-books and webinars were viewed on A2LC.com. Incredibly, there were more than 300,000 pages viewed our site this year. About two-thirds of those visits were to our award-winning Litigation Consulting Report blog that now boosts 5,800 free subscribers (that's more than 2,200 new subscribers since last year!). On that blog, we will have published 115 articles by year's end. It's a few less than last year, but we have to confess, we were really busy being litigation consultants this year! Each year I list the very best articles based on your readership, and this year 14 articles stand out as the top-14 for 2014. Each of these articles was read by thousands of people, and some were read by tens of thousands.
Ken Lopez Founder/CEO A2L Consulting The relationship between in-house counsel and outside litigation counsel has changed dramatically over the last 20 years. Technology and the Internet have been the driving forces for many of the changes. Technology growth has forced outside litigation counsel into a quasi-technology consultant role in the way they deal with e-discovery and case management. Technology has made litigation more complex as the underlying subject matter of cases has become more complex. The availability of information via the Internet has made in-house counsel a more savvy shopper and a better informed manager. Technology has surely changed the way outside litigation counsel tries cases and has forced trial counsel to be trial-technology savvy. There are many more examples of how the fast flow of information is altering the balance of power between in-house and outside counsel, but you get the idea. Reflecting these changing times, the 25-point list below offers useful best-practices that in-house counsel should be demanding from outside litigation counsel.
by Ken Lopez Founder/CEO A2L Consulting "How long in advance of trial should I be working with my trial graphics firm?" I hear this question in some form quite regularly. Often the person asking it has some idea of what they are planning to do, and they are looking for validation of their plan. However, for those who are genuinely looking for best-practices, I can offer meaningful guidance based on 20 years of advising top litigators and watching top trial teams prepare for trial. Clearly, a balance must be struck between the likelihood of settlement and the value of preparing your trial presentation long in advance of trial. Prepare too late and you risk not helping your fact finders understand your case, and you surely won't be maximizing your persuasiveness. Prepare too early and you run the risk of doing work that won't be needed if settlement occurs, and you might be focusing too much on your trial presentation and not enough on developing a good record. So what's the right amount of prep time for trial graphics?
by Ryan H. Flax, Esq. (Former) Managing Director, Litigation Consulting A2L Consulting It is well known and generally accepted by the top performers in the litigation community that you need to use demonstrative evidence, including litigation graphics, to be persuasive at trial. As a scientific certainty, using visual support to back up your key points and arguments is critical to maximizing persuasiveness. As a litigator, I’ve personally created and used graphics, and developed litigation graphics for others, to use at trial, at Markman (patent claim construction) hearings, and for other presentations. As a litigation consultant, I’ve seen countless terrific litigators both understand that they do need graphics and at the same time misunderstand how they should be using litigation graphics in these and similar settings.
by Ryan H. Flax, Esq. (Former) Managing Director, Litigation Consulting A2L Consulting A2L has a wonderful partnership with Courtroom View Network (cvn.com), which is a warehouse of video footage of courtroom presentations of all kinds and should be a valued resource for attorneys and law school students wishing to educate themselves on the “to-dos” and “not-to-dos” of litigation argument. I have been browsing the intellectual property video footage at cvn.com and wanted to provide you two examples of different presentation styles in patent litigations: one using no graphics and one using graphics. I compare and contrast these presentations below.
by Kaitlin Rothstein A2L Consulting Have you ever noticed that when you have someone else take a look at a problem or help edit a document, they find another way to address the issue or find additional areas that can be tweaked? That is what mock trials serve as, a tool to put additional eyes and minds on a massive set of data and find out where it can be fine tuned and perfected. The purpose of the mock trial is to educate the lawyers and clients on the case’s strengths and weaknesses and find where it can be enhanced. If you are on the fence about using a mock trial, think about these important ways that one could enhance your case:
by Ken Lopez Founder/CEO A2L Consulting A successful trial lawyer is one who is able to persuade a jury or judge of the truth of his or her client’s case. In order to do that, a lawyer must connect with people on an emotional level. The only way to do that is to tell a compelling story. Stories are the way in which people learn and the way in which they organize reality. Law school may prepare lawyers to build a case around the law, but it doesn’t teach the science or art of persuasion. Sitting in a jury and analyzing evidence is likely one of the most complex things a juror will ever do, so you need to make it easier for them and as entertaining as possible. You need to hook them early and keep them engaged.
Twenty years ago in my trial advocacy class, we talked a lot about developing a theme for a case. We learned to say things in an opening statement like, "this is a simple case about right and wrong" or "no good deed goes unpunished."
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