Law360 is a top legal industry publisher owned by Lexis-Nexis. Its daily newsletters are a must-read for trial lawyers involved in big-ticket litigation. This interview, Trial Consultants Q&A: A2L Consulting's Ken Lopez, was originally published on April 28, 2017, and is reprinted here with permission. Links to A2L articles and resources have been added by A2L in this reprint. Q: What aspect of trial consulting do you and your firm specialize in? What is unique about your firm, compared to other trial consulting firms? A: Founded in 1995, our firm is a leading national litigation consulting firm that helps trial lawyers and other advocates more reliably win complex and high-dollar disputes. We are typically in trial year-round and deliver world-class client-pleasing results in three key service areas: jury research and consulting, litigation graphics consulting, and trial technology consulting. We have recently been voted #1 in each of these categories by major legal publications. The composition of our leadership distinguishes it from other trial consulting and litigation consultant firms. Unlike firms whose origins are rooted in the trial technology business, the engineering business or the marketing/public relations fields, our team is composed of experts in the persuasion sciences. These include former litigators from top law firms, attorney-artists and social science Ph.Ds with decades of experience working with judges and juries. We primarily serve AmLaw 100 law firms and their clients. However, the firm regularly works with boutique law firms and in-house departments. It counts amongst its clients nearly all top law firms and a large portion of the Fortune 500. Most people find A2L through its litigation and persuasion-focused blog, The Litigation Consulting Report. It has nearly 10,000 subscribers and was named one of the top ten blogs in litigation by the American Bar Association. Q: What was the most interesting or memorable case that you worked on? A: The average case at A2L Consulting is a business dispute between global companies with $100 million at stake where we provide jury consulting, a mock trial, litigation graphics, and courtroom hot-seat trial technology support. One of our most memorable cases was entirely — not average. Through a top trial lawyer, we were hired to work on behalf of a surviving family member of the 1996 crash of ValuJet Flight 592 in the Everglades. This was not a plane that exploded or quickly crashed. Instead, oxygen containers in the cargo area helped fuel a fire that caused smoke to fill the plane. Then, the oxygen-fueled fire burned through the passenger cabin floor from below. After some time, controls on the plane were destroyed by the fire. Then, the plane flipped and dove into the Everglades below. No one survived. It took a long time for the tragedy to unfold and the passengers had awareness of what was happened. We know this because the plane was equipped with recording devices in both the cockpit and the passenger cabin. The recording is confidential, but none of us who worked on this case will ever forget what we heard on that recording. To help the jury visualize the experience the passengers had, we could have created a 3-D animation to show what the experience inside of the cabin was like. Instead, we synced that chilling audio with an animation we created that helped tell the tragic story. Once the animation was admitted into evidence, the case quickly settled. Q: Which stage of the trial process is the most challenging, and why? A: While we support all phases of litigation from prefiling to appeal, our firm most often focuses its consulting efforts on the opening statement. Indeed, we speak and write about opening statements often. Perhaps second only to jury selection, the opening statement can make or break an entire case. It provides the framework and narrative upon which the judge or jury will hear the evidence. For many, consciously or subconsciously, the decision about the outcome of the case will be made during opening statement. Because the opening statement is so critical, the best trial lawyers expend enormous amounts of effort preparing for openings. I’ve seen some trial lawyers practice their opening more than 100 times over the course of a year. Not surprisingly, these trial lawyers tend to win their cases. In every type of litigation consulting we provide, the opening statement is a central focus. When we conduct a mock trial, the attorneys present their openings to mock jurors or mock judges. When our senior litigation consultants work with top trial lawyers to refine their trial presentation, we ask them to present their openings as part of that process. When we design a PowerPoint presentation for opening, we ask our clients to do run-throughs of openings. When we introduce one of our trial technicians/hot-seat operators to a trial team, we ask the first chair to practice opening statements so they develop a rapport with the trial tech. Indeed, sometimes, we are asked to draft an opening statement as part of our litigation consulting effort. Opening statements are the most challenging part of the trial process because they should be. Cases are regularly won and lost because of them. Q: How has trial consulting evolved over time? What major differences are there between the industry when you started and the industry now? A: Our firm, now a national litigation consulting firm with jury consulting, litigation graphics consulting and trial technology consulting practices all voted #1 by the legal industry, was started as Animators at Law, an animation and litigation graphics firm for trial lawyers focused on persuasion. Back in the mid-1990s when we started our firm, the idea of using demonstrative evidence/litigation graphics during a trial was new. Today, no serious trial lawyer would go to trial in big-ticket litigation without litigation graphics and nearly all would hire a litigation graphics consulting firm like ours. When we started our firm, PowerPoint did not exist. Most litigation graphics were printed trial boards. Today, trial boards are used as unique emphasis tools that supplement a PowerPoint trial presentation. The practice of jury research has changed too. It has evolved from a guru-dominated practice where gut instinct drove many decisions. Today, there is more scientific rigor among top jury research firms. They let the data speak for itself and supplement that data with advice based on experience. Of course, the trial technology practice has radically changed. In the 1990s, it barely existed. Now, the complexity of cases demands that an experienced trial technician/hot-seat operator run the technology, show the trial presentation and be ready to pull up evidence on a moment’s notice. Q: What are some of the biggest challenges when working with attorneys and their clients? A: One of my colleagues likes to say, “they call it the practice of law, but nobody is practicing.” I agree wholeheartedly. If I could change one thing about the way trial lawyers prepare for trial, it would be the way they practice. The correlation between open practice in front of peers and winning cases is unmistakable. Half of the time, trial lawyers practice extensively and seek feedback from litigation consultants and colleagues. These lawyers tend to win their cases. When we see a trial lawyer who wants to privately prepare their trial presentation on the eve of trial, we worry. It’s not that this approach can’t work. It often does. Instead, we simply recognize that the more a trial team openly practices, the more often that trial team wins.

by Ken Lopez Founder/CEO A2L Consulting There are a handful of large law firms that have in-house graphics departments and use them as profit centers with their corporate clients. When a big case is on its way to trial, the large firm develops its own litigation graphics, and the law firm bills the client for in-house graphics in the same way (albeit at a lower rate) that lawyers are billed out. By and large, I think the law firms win and the clients lose in these scenarios. You would think that having an in-house litigation graphics department might make some sense. After all, the corporation being represented by the large law firm likely has an in-house marketing department. That works out pretty well, right? As someone who has watched the insourcing and outsourcing ebb and flow of law firm litigation graphics departments over the past three decades, I have seen one thing remain constant: High-end outside litigation graphics firms are radically better than in-house law firm graphics departments. Here are some reasons why: The vast experience gap: A firm like A2L may go to trial 50 or 100 times per year - and those are mostly big-ticket cases. No large law firm comes close. Large law firms typically have fewer than a dozen big-ticket cases across many offices. Common sense would tell anyone that the creative staff working on one or two cases in their office probably get less experience toward being a master of their craft compared to those artists working on dozens of cases per year. See, With So Few Trials, Where Do You Find Trial Experience Now? Law firms rarely retain good talent: Most litigation graphics artists worth their salt are either working for firms like A2L or freelancing for a firm like ours. We're always hiring full-time and contract litigation graphic artists with true intellectual curiosity, considerable artistic talent, and the ability to work wonders in PowerPoint. See, 16 PowerPoint Litigation Graphics You Won't Believe Are PowerPoint. Outside litigation graphics firms are a better value: When you have $10 million or even $10 billion at stake and getting the most persuasive litigation graphics may vary your graphics spend by $5,000, isn't the best value the choice that gives you the best chance of winning? See, 12 Reasons Litigation Graphics are More Complicated Than You Think. No adjustment for venue: In a firm like ours, jury consultants are mingling with the litigation graphics team. Juries in the Southern District of New York are different than those in the Northern District of California. Our information designers understand this and know to question the jury consulting team about varying their message accordingly. Very often, our customers have no idea they are getting this value, but I'm fairly certain they are not getting it from their in-firm departments.

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 Ken Lopez Founder/CEO A2L Consulting

by Ken Lopez Founder/CEO A2L Consulting I don't want this post to be purely self-congratulatory, but I do have some good news to share. I think it's relevant and useful news for litigators and litigation professionals. A2L was just voted number one in the legal industry again. This time, it's in the category of trial consultants, in a poll conducted by the prestigious Legal Times newspaper. This accolade comes on the heels of being voted the number one jury consultant and number one litigation graphics provider in a variety of other national polls. Here's why I think this information is helpful for our readers. Twenty years after founding A2L, when I look at our industry I see three or four firms capable of delivering truly top-class results in high-profile litigation. However, the view from the law firms seems entirely different. If you Google any of our services like jury consulting, litigation graphics, or trial technician providers, we may very well come up first in many of these searches (for good reason), but there will be dozens if not hundreds of other providers listed for these services. How is one expected to sort the wheat from the chaff? You can't tell from a Google search because it's obviously not a reliable indicator of who is a top services provider. You can't always tell from your colleagues either. Have they had have many excellent experiences with a provider, or just a one off -- or do they have a longstanding relationship with a provider without a reliable track record? Well, it's exactly surveys like this one in Legal Times that provide an objective source from thousands of lawyers surveyed. And I'm proud to say that over the last five years, A2L has been consistently highly ranked in just about everywhere we've been nominated. So if you're in the market for a litigation consulting firm like ours or if you're in the market for another service like discovery, court reporting, or even law firm and litigation financing, a guide like this one is a good source of information. These guides prepared by objective organizations like Legal Times provide a directory of high-quality providers and can save a stressed litigator or litigation paralegal considerable time identifying the very best jury consultants, the very best litigation graphics providers, the very best trial technicians, the very best trial consultants or any one of dozens of categories relevant to litigation. Click here to download your copy of this 2016 guidebook. I hope it's helpful to you.

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 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