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?
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 Ken Lopez Founder/CEO A2L Consulting We have been publishing this blog for almost five years now, and we keep finding new and better ways to share our insights. Our free e-books are downloaded thousands of times per month, our webinars are viewed by hundreds, and every month, more than 200 new people subscribe to our blog. Today, we're announcing a new way for you to benefit from our valuable free content about litigation and persuasion — podcasts. As technology has advanced over the past 10 years, podcasts have moved from obscurity to mainstream. Briefly, a podcast is a type of digital media that is essentially a radio show that can be streamed online to a computer or mobile device. The term was invented in 2004 as a combination of the word “pod” for the iPod and the word “broadcast,” but podcasts can be accessed on any capable device, not just on the iPod. Here at A2L, we are kicking of our new Trial Tips Podcast by introducing three long-format podcasts. Each is an audio version of one of our webinars. These are not just any webinars, but our three most popular webinars. Storytelling in Litigation 12 Things Every Mock Juror Ever Has Said 5 Ways to Maximize Persuasion During Opening Statements You can start enjoying this content right now for free by clicking here to access our podcast directory.
by Ken Lopez Founder/CEO A2L Consulting
by Ken Lopez Founder/CEO A2L Consulting This is the fifth and final installment in a series of articles focused on how defense counsel can overcome the increasingly popular Reptile trial strategy. In parts one through four, I offered an introduction to the strategy, I shared ten ways to recognize when the strategy is being used against you, I explained why the strategy does not actually work in the way that its authors describe, and I explained that despite the bad science, the Reptile trial strategy still works. In this post, I summarize how to overcome the strategy in both the pretrial and trial phases of a case. I rely heavily on the work of Jill Bechtold of Marks Gray and Steve Quattlebaum of Quattlebaum, Grooms & Tull. They were my co-presenters at a recent defense attorney-focused conference devoted to repelling the Reptile strategy. One theme that clearly emerges from the 12 points below is that being a good defense lawyer is more important than ever. No longer is it enough simply to outlast your opponent. No longer is it enough to come up with a great theme and narrative just before trial. Because the Reptile strategy often begins with the complaint, a defense against it must start shortly thereafter -- or you will pay the price later. Spot the Reptile: It can appear as late as closing arguments, but more often than not, plaintiffs counsel will introduce the key themes as early as the complaint. See, 10 Ways to Spot the Reptile in Action. Read the Book: I hate to say this, but you probably should read it. It is Reptile: The 2009 Manual of the Plaintiff’s Revolution by David Ball and Don Keenan. Spot your Opponent on the Reptile Hall of Fame: https://edgeverdicts.com/ (paywall) Plaintiffs counsel with a record of using the Reptile strategy are listed here. Is one your opponent?
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 As I discussed in Part 1 of this series, the “reptile” trial strategy is quickly spreading among plaintiffs counsel. Some plaintiffs counsel have, in fact, claimed that the strategy has resulted in verdicts totaling more than $6 billion in the past few years. In a large room of defense attorneys to whom I made a presentation last week, more than half reported having seen the strategy used in one of their cases. I think that may just be the tip of the iceberg. It appears that many defense counsel are being subjected to the strategy and don't know it is happening to them until it is too late. In light of this fact, below are 10 ways to spot the strategy. In subsequent articles, we will discuss what to do to counter it. From the very start of your case, look for any of the following 10 phenomena: You encounter themes suggesting that the community needs to be protected from the defendant; e.g. “Walking past stores on Main Street is part of what it means to be American.” The behavior of the plaintiff or other contributing or mitigating traits of the plaintiff are ignored, and instead the plaintiff works hard to keep the focus on the defendant or even an idealized defendant. Plaintiffs introduce a discussion of “safety rules” throughout all pre-trial phases of the case; e.g. “Do you agree that keeping the public safe is a key role of your train operators?”
When it comes to jury selection, many lawyers are eager to win voir dire. After all, this is their chance to shape the jury pool and hopefully secure a favorable verdict for their client. However, there are several reasons why trying to "win" voir dire may not be the best strategy. Here are five reasons why you might want to reconsider your approach:
by Ken Lopez Founder/CEO A2L Consulting Do I really need a local jury consultant? It's a question that I hear our clients struggle with frequently. The answer is maybe you do, maybe you don't. The gut instincts of many are that a jury consultant who regularly works in the jurisdiction will provide special insights that trial counsel, often admitted pro hoc vice for purposes of trial, could use to persuade the jury more effectively and have first-hand knowledge that will help in jury selection because of specific, local nuances. I understand the instinct, since - when going to trial - you naturally want every single advantage, and it's natural to fear that there are some things you just don't know about your potential jurors, your judge, the courthouse or the local community. While I understand the rationale, both emotional and logical, I've come to believe that such beliefs are now outdated and reflect pre-Internet thinking. Much like the need for 8-glasses of water a day, waiting an hour after eating to swim, or humans using 10% of their brains, I think these beliefs about local jury consultants are mostly stubborn old wives' tales. The reality is that human beings make decisions following the same principles, regardless of where they may live, and the psychology of persuasion, as well as individual and group decision-making does not need to be reinvented from place to place. What you need and can rely on is the best consultant with the best skills, regardless of their location. I'd like to offer seven ways of working through this challenge with a solution for you, whether you believe a local jury consultant helps or whether you believe hiring the best jury consultant is best for your case.
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