by Ken Lopez Founder/CEO A2L Consulting After the more than 20 years that we have spent in the litigation consulting business, we don't hear very many questions that we’ve never heard before. However, this week I did hear one, and the story is worth sharing because it goes to the heart of how a truly great litigator performs. The question I heard was, “What can we do better as a trial team on the next engagement?” Consider how remarkable this is. Here was a litigator from a large law firm sincerely trying to improve the performance of his team and himself. I was deeply impressed, as this was the first time I've had someone ask that question after an engagement. It's a very sensible question, of course. A2L's team has worked with thousands of litigation teams from the very best law firms in the world. I have watched many litigators perform near-magic in the courtroom, and I have seen teams fail miserably. There are patterns that lead to success and patterns that lead to failure. In the spirit of the question that this litigator asked me, I started thinking about the traits of the world’s most effective trial teams. Here are 50 of them culled from my experience and that of my colleagues Dr. Laurie Kuslansky and Tony Klapper. Practice is by far the single most obvious indicator of a trial team's success. The great litigators draft their openings months or years in advance of trial and practice them dozens or hundreds of times. See, Practice, Say Jury Consultants, is Why Movie Lawyers Perform So Well Preparation. Great trial teams start preparing long before trial, and they don't ask the client’s permission to do so. Their attitude is, “If you work with a team like ours, it means you want to win and we know how to win and we're going to get that done, whatever it takes.” I think they are right. There are only a handful of law firms that I have observed that have this sense of preparation embedded in their litigation culture. See, The 13 Biggest Reasons to Avoid Last-Minute Trial Preparation Great litigation teams want their answers questioned. Great litigators are confident. They are so confident that they open themselves up to rigorous scrutiny in their approach to trial. Through a whole host of methods, they invite criticism, suggestions, fresh pairs of eyes, lay people’s opinions, experts’ opinions, and they use all of these voices to perform at their best. See, Accepting Litigation Consulting is the New Hurdle for Litigators They lead, but they can be led too. Great litigators avoid dominating all discussions. They intentionally let others lead them and be seen as leaders. Download the Leadership for Lawyers eBook They just look comfortable in front of a jury. Confidence equals persuasiviness and humans are born with an expert ability to detect it. See, A Harvard Psychologist Writes About Presenting to Win They build narratives early. They know how important a narrative is to winning a case. They have also learned from experience that the earlier this is done, the better. A well-constructed narrative can inform everything from briefing to discovery to witness preparation. Download The Opening Statement Toolkit
by Ken Lopez Founder/CEO A2L Consulting In 20 years in the litigation consulting business, I've seen a lot of successful trial teams and some that are not so successful. A team that is successful needs good leadership. In fact, good leadership and good preparation are the best predictors of a trial team's success. We've written before about effective trial team leadership and even released an e-book on good litigation leadership skills. Good leaders force timely preparation, they delegate effectively, and they put their egos aside in the interests of a successful outcome. One important challenge for good trial team leaders is knowing when to make changes to the team. These changes can amount to anything from adding new lawyers to the team, removing lawyers and support staff, or even releasing vendors and hiring new ones. I have seen a fair number of litigation consulting firms removed at various stages of the litigation. Many times, we are the firm that is brought in to replace the removed firm. An important part of the work of a good trial team leader is to ensure that a good litigation consultant is chosen. This is not an easy decision. Many companies that claim to be top litigation consulting firms are actually nothing more than trial technology firms or everyday graphic arts firms. The list of high-quality providers can be counted on one hand. So, unless you have first-hand knowledge about a firm and the people you'll be working with, there are plenty of ways to make mistakes. Fortunately, these can be corrected if you have a good reason and the courage to make the change. By far the biggest reason I have seen firms removed from their roles in jury consulting or litigation graphics consulting is a lack of creativity. This is understandable because creativity is a hard thing to judge before you work with someone. Often these removals occur after one phase of the litigation and before the next. For example, in patent litigation, we are often brought in for the trial after another firm provided no meaningful suggestions or advice to counsel in the pretrial phases of the case. I've also seen many examples where we are brought in after remand for the second bite at the trial apple. Sometimes a trial team says they just didn't get any value from their litigation consultants. There are many reasons a trial team would need to switch litigation consultants as they prepare for a mock trial or litigation graphics. It must not be forgotten that this type of switch is an extreme outcome that runs the risk of doing harm. It shouldn’t be undertaken lightly. Yes people: I actually had the CEO of a competitor once ask me, “Why would I give litigators advice?” I indicated politely that his instincts were correct. HE shouldn’t do so. There are many like him in the industry. They can be a source of support if you’ve simply hired them to run your PowerPoint during an opening statement. Some just have no business taking the extra step and adding value, because bad advice is worse than no advice. Missed deadlines: On my first day of law school, my criminal law professor stopped a student trying to enter class late. He said, “You are attempting to enter the only profession in the world for which you can go to jail for being late.” There is never an excuse for being late. The creatively challenged: It’s common for technology people to masquerade as visual persuasion consultants. They should be pretty easy to detect. See Why Trial Tech ≠ Litigation Graphics, 16 PowerPoint Litigation Graphics You Won't Believe Are PowerPoint, and 21 Reasons a Litigator Is Your Best Litigation Graphics Consultant. The jury hack: As a top jury consultant wrote, there is no license required to become a jury consultant. So there are many “consultants” who are simply not qualified to gather data in a sophisticated way. Some trial technicians try to offer advice on a jury during voir dire. This is litigation consulting malpractice in my view. See, 6 Secrets of the Jury Consulting Business You Should Know and No Advice is Better Than Bad Advice in Litigation.
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.
The Dunning-Kruger Effect is a fascinating cognitive bias that can have significant implications for the justice system, particularly when it comes to juries. This effect refers to the tendency of individuals to overestimate their own abilities and knowledge in a particular area, leading them to believe that they are more competent than they actually are.
Cognitive biases are a natural part of being human, and jurors are not exempt from these biases when serving in a court of law. The impact of these biases on how jurors receive and interpret expert testimony cannot be underestimated, as it can ultimately shape the outcome of a trial.
As the largest and most diverse generation in American history, millennials are having a significant impact on many aspects of society, including the legal system. One area where this impact is particularly noticeable is in the jury pool. As more and more millennials enter the pool of potential jurors, they are bringing with them a unique set of experiences, values, and attitudes that can influence the outcome of trials and the way that juries function.
by Ken Lopez Founder/CEO A2L Consulting I am very proud of A2L Consulting's role in the creation of the job title "litigation consultant." Over the years, this position has evolved somewhat, but it remains substantially similar to the way we designed it in the mid-1990s. Back then, it was my full-time job. Today, I still get a chance to do parts of it now and then, and after 20 years, I believe it's the best job in litigation. The role of a litigation consultant is to work with trial teams and help them develop the best visual and rhetorical strategies for persuading factfinders at trial, ADR, or in any dispute. In the 1990s, no one but the attorney-consultants at A2L called themselves litigation consultants and few if any firms offered a similar service. Now, litigation consultants are generally litigators themselves often hailing from a large law firm. They spend most of their time directing the development of persuasive PowerPoint presentations, working with jury consultants in mock trials, and helping top litigators more effectively tell their stories at trial. As we've written before, this role is becoming increasingly important in the litigation industry where even top litigators make it to trial only once every few years. By contrast, a litigation consultant may see the inside of a courtroom dozens of times or more per year. If you love litigation like I do, this is the best job in the world. Here are nine reasons why I think this is so. Trial. Let's be honest, the best part of litigation is not the endless years of paper pushing in advance of trial, it's the theater of preparing for and performing at trial. A litigation consultant skips all of the pre-trial tedium and gets to engage in all the best parts of litigation. See, 11 Things Your Colleagues Pay Litigation Consultants to Do.
Confirmation bias is a pervasive cognitive bias that affects individuals in all areas of life, including the court system. It is crucial to understand the nature and effects of confirmation bias in order to mitigate its impact in jury trials. By recognizing and addressing confirmation bias, we can work towards a fairer and more just legal system.
Jury selection is a critical part of the legal process, and the jury summons form plays a significant role in this process. While many may overlook this form, it actually holds valuable information that can greatly influence the outcome of a trial.
One of the key considerations in data-driven jury selection is the identification of favorable jurors based on their background and beliefs. This involves analyzing a wide range of data, such as demographic information, voting history, social media activity, and even purchasing habits. By delving into these details, lawyers can gain valuable insights into potential jurors' decision-making processes and biases.
In today's rapidly evolving society, the composition of juries is constantly changing, mirroring the shifts in social dynamics. The advent of social media and its pervasive influence on our daily lives has brought about significant transformations in both jury selection and the conduct of voir dire.
As someone who has participated in countless mock trials, I can attest to the fact that it can be an incredibly stressful and overwhelming experience. From preparing your arguments to presenting them in front of a panel of jurors or judges, there are a lot of moving parts to keep track of.
by Ken Lopez Founder/CEO A2L Consulting Every year, our firm receives awards in a variety of litigation consulting and blogging categories. I don't often promote those achievements in this blog, as I regard the blog as primarily educational in nature. However, I do believe that there is real value in knowing which firms your peers are rating highest in the industry. Not only does this help you save time and energy when you want to engage a litigation support firm, it helps you know the up-and-coming firms and what the market trends look like. Recently, Legal Times, one of a few elite legal publications remaining, asked its readership to identify the best consultants in a variety of categories including e-discovery, legal banking, legal recruiting, and many more. I'm happy to announce that A2L Consulting was voted the number one jury consultant ahead of other industry giants FTI Consulting and DecisionQuest. I've always admired those firms and the work that they do. We are friendly competitors, and I congratulate them on their achievements. The leader of our jury consulting practice is jury consulting industry veteran Dr. Laurie Kuslansky. Coincidentally, she has held leadership positions with both of the other two top-ranked firms. Her record and reputation in the industry are excellent, and her bio/CV/references can be viewed or downloaded here. Dr. Kuslansky shares my view that jury consultants alone are not to be relied upon as gospel for advice on jury selection, theme development, and storytelling. This method of jury consulting is antiquated, but still practiced by many jury consultants. The preferred method for assisting top trial teams is, rather, to listen to the data developed by conducting well-designed mock trials and focus groups. The data is in the form of feedback from mock jurors or mock judges. Any jury consultant can offer a gut instinct (no matter how suspect that instinct is). However, it takes a great jury consultant and jury consulting firm to show restraint and properly interpret the data and feedback from mock jurors and focus group members and know how to blend art and science. The magic comes when a jury consultant can properly obtain good data, interpret it, wisely season it with insightful judgment, and taking in the input of the trial team. Blindly applying data or narrowly focusing on instinct each has its perils. Likewise, asserting oneself as the smartest person in the room is hardly the team approach clients prefer.
by Ryan H. Flax (Former) Managing Director, Litigation Consulting & General Counsel A2L Consulting It’s always interesting to me how humans view and judge each other. We all do it almost all of the time, in every interaction with other people. We even do it when we don’t even interact with others, for example, while driving or watching TV. We develop little dramas and characters in our minds to make sense of the world around us and its characters. This is particularly important in my profession, where my goal is to help litigators frame their case or showcase their client in a compelling and engaging way for judge or jury. I’ve just watched the video below and it highlights how important it is to frame our clients’ character correctly when we want a decision maker to see things our way. That “correct” way of introducing our client is whatever way will result in a decision in our favor – Ask: what would make the judge or jury feel our client should prevail?
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