by Ken Lopez Founder/CEO A2L Consulting Welcome back from summer (to most), and welcome to the busy fall/winter litigation season. This blog, The Litigation Consulting Report, is now just about 4 ½ years old. In that time, we have written nearly 500 posts on dozens of trial and presentation-related subjects, including everything from TED talks to Reptile trial techniques to voir dire best-practices. We've earned accolades, won awards, won countless trials, and we have steadily grown our number of subscribers year after year, and I'm especially thrilled to say that we've just signed up our 7,500th blog subscriber! Every subscription is free, and perhaps that is part of the reason it took us less than a year to grow our community from 5,000 subscribers in September 2014 to 7,500 subscribers in September 2015 — a 50% increase. To celebrate reaching 7,500 blog subscribers, today we’re publishing (as a free download) this collection of our very best articles to date called, A2L Consulting's Top 75 Articles of All Time. By "very best," I mean that our readers have, by choosing which articles they read most, told us which articles they think are the best. On the Web, your clicks are your votes. We’re thrilled to receive this feedback from you.
by Ken Lopez Founder/CEO A2L Consulting Well, no one ever said a trial was like a day at the beach. Except that there are a lot of similarities, if you look hard enough. I'm just back from an annual two-week family vacation at the Outer Banks of North Carolina. My wife and I have seven-year-old triplet girls. My friend says that doesn’t sound too much like a vacation, and his point is well taken in many ways. Although anyone who has done this type of trip with young kids will have some memories that seem as if they came from a Norman Rockwell painting, there are plenty of stressful or crazy moments. Fortunately, with time, the human brain can focus on the good memories. This type of vacation time is chaotic, stressful, and, yes, fulfilling. And that reminds me an awful lot of what I do every day — high-stakes litigation. Let’s consider how these two events are similar. 1) Other stuff comes up. I worked one 16-hour day at the beach. I had to. Two other managers were traveling, and one was slammed. I had to pitch in even if it was from 350 miles away. A long trial is no different. Often, you have to focus on other clients for a bit and you must plan for that possibility at trial. 2) Breakdowns happen. My clunky old Range Rover broke down at the beach. My wife was not pleased, but I’m always prepared for such an event. I have towing coverage that brought the car home, and I enjoyed driving on the beach in a four-door Jeep Wrangler instead. Things break down at trial too, often at the least opportune times. If you're not mentally prepared for that, if you haven’t planned for it, you're going to look bad at trial. See, 12 Ways to Avoid a Trial Technology Superbowl-style Courtroom Blackout. 3) Surprise is the key. My daughters are well behaved, but they need to see the unexpected from time to time, whether it’s an unusual shell on the beach or a funny kind of ketchup bottle. If they don’t have that, they become moody and distracted. Judges and jurors react similarly at trial. If you don't surprise them, they become bored and antsy. Learn the power of surprise. See, Could Surprise Be One of Your Best Visual Persuasion Tools?
by Ryan H. Flax (Former) Managing Director, Litigation Consulting and General Counsel A2L Consulting High-stakes litigation is hugely expensive these days. But what if there were a means of reducing litigation costs in a way that helps both the trial team and the client and doesn’t sacrifice the quality of legal representation? That would make in-house counsel very happy, since an important part of their job is to budget and control litigation costs. There are a number of ways to do this, such as using alternative fee arrangements, streamlining litigation teams and bringing e-discovery in house. But what about a more radical step – trying to win your case well before trial? That would indeed be a cost saver and would lead to an excellent result.
by Ken Lopez Founder/CEO A2L Consulting At A2L Consulting, we have just published our latest e-book – the third edition of the Litigation Support Professional's Trial Toolkit. It's 262 pages long, contains 88 articles and is completely complimentary to download. This new e-book will be indispensable to any litigator or litigation support professional who wants a summary of the latest thinking in the fields of trial technology, trial graphics, and litigation support. In this book, we try to demystify the craft of the trial technician, with nitty-gritty discussions of how trial consulting firms do what they do, especially on a tight budget. We present ideas for seamless trial presentations that can be built, if not on a shoestring, on a budget far smaller than one might anticipate. Since the art of trial presentation is often best described as a story-telling venture, we give you the latest on the best story-telling techniques, including 16 trial presentation tips from classic Hollywood movies. We also provide 13 reasons why it’s not a good idea to do your trial preparation at the last minute, 12 great ways to combine oral and visual presentations, and five questions you should always ask in voir dire.
by Ken Lopez Founder/CEO A2L Consulting In my previous three posts concerning the “Reptile” trial strategy, I provided an introduction to the strategy, I discussed how to spot it, and I discussed why the science that its authors claim supports the strategy is just plain wrong. As I have mentioned in previous articles, this trial strategy has been largely absent from the types of cases that we work on at A2L. However, with high-stakes pattern litigation on the rise, and with the increase in sophistication on the plaintiffs side in big-ticket litigation, the “Reptile” is something that medium and large law firm defense firms must be able to spot and to cope with. In this article, I will focus on the critical fact that, despite the bad science that its authors employ, the Reptile trial strategy still works. In other words, the “Reptile” advocates are tapping into authentic ways of persuading jurors. There are at least seven reasons for that. The “Reptile” advocates suggest using a strong theme that is constantly reinforced throughout the case from complaint to closing. That's just good lawyering, and a majority of lawyers still don't do this. See 14 Differences Between a Theme and a Story in Litigation. Similarly, they encourage focusing on a consistent strategy from the very beginning of the case. Few defense counsel do this throughout a case, and again, following this practice is just good lawyering. See Planning For Courtroom Persuasion? Use a Two-Track Trial Strategy. They encourage the use of narrative as a persuasion strategy. We've written about that many times, and they are right to encourage it, because it works very effectively. Our proposed narratives are based on real psychological science and theirs are not, but the use of narrative is a very good idea. See $300 Million of Litigation Consulting and Storytelling Validation.
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?”
Last week, I spoke at an annual gathering of defense attorneys whose subtitle was “Lawyers and Other Reptiles.” What's going on? Who are these reptiles? It’s an interesting story. This conference was planned as a way to bring together defense attorneys around the nation who want to learn how to turn aside a frequently used set of trial tactics championed by David Ball and Don Keenan in their "Reptile" series of books and webinars. Ball is a North Carolina-based jury consultant, and Keenan is an Atlanta-based plaintiffs trial lawyer. According to Ball and Keenan’s publicity materials, the “reptile” concept is “the most powerful tool in the fight against tort reform.” Ball and Keenan say that through their books, DVDs, seminars and workshops, “the Reptile is revolutionizing the way that trial attorneys approach and win their cases.” The proof, they say, is in the numbers, as more than $6 billion in verdicts and settlements have resulted from these tactics since they launched them in 2009.
by Ken Lopez Founder/CEO A2L Consulting There is a lot to learn from data, and these days data is everywhere. For better or worse, data can be available for everything from the number of steps you walked today to how long you took to read a particular Web page. I recently took the time to assess how the AmLaw 100 law firms were interacting with our site, particularly with the articles on this blog. Some law firms are very active, and some hardly visit at all — and I think this information tells us a great deal about these law firms. This data is interesting to me for many reasons. First, I’m interested in making sure that our articles appeal to the AmLaw 100 law firms, as just about every one of them has been a client of A2L Consulting at some point. However, I’m also interested in what the data says about the law firm itself. Is the firm interested in learning? Is it serious about litigation? Is it set in its ways?
by Ken Lopez Founder/CEO A2L Consulting I'm absolutely thrilled to announce the release of A2L Consulting's latest free litigation e-book, The Opening Statement Toolkit. You may download this book with no strings attached right now by clicking here. In this 219-page book, you will find 66 articles curated from A2L's massive collection of posts related to litigation and persuasion. Each article relates to opening statements in some way. From organizing the opening to the use of storytelling techniques to persuade, the book contains an amazing array of tips that will prove valuable to the novice litigator and the veteran alike.
by Alex Brown Director, Operations A2L Consulting How do you determine value? This weekend, while my oldest child was in Boston at a gymnastics meet, we thought this would be the perfect time to “renovate” her room back home. My youngest daughter wanted to help but also wanted to negotiate her fee to do so. I came up with many reasons for her to find value in helping: the good of the family, experience, and enjoyment, but none of these provided the proper balance of cost and value to her. Finally I told her that she will be able to destroy something that belongs to her big sister, without any concern for retaliation. This brought her on board, and in the end she not only loved it but she also had the added benefit of being able to tell her sister how much fun it was to destroy her room and how destructive the work needed to be. As litigators, you have a similar job of having to persuade your client about, say, the importance of using expert witnesses or the need to bring on a litigation support team. This is always a delicate conversation because there are so many factors in play; emotions, money constraints, and inexperience, to name a few. For years, the use of expert witnesses has been an easy sell for the most part. But the importance of litigation support (i.e. theming, visual presentations, trial technology/hot seat operators, and mock trial exercises) is not universally accepted, so it can be more of an uphill struggle to convince clients of the need for these things and even harder to persuade them of the value. But why? It’s clearly not the cost, since that normally runs anywhere between .5 percent and 5 percent of the legal fees in a big case. So the sticking point is the need for these services.
by Ken Lopez Founder/CEO A2L Consulting We East Coasters have a love-hate relationship with snow, and the snow moving into the Northeast today may be one for the record books - particularly around Boston. It will dominate the news for days - and it probably should. An incredibly large number of people will be impacted by this particular storm. Under or next to that red line on the map where the storm is forecast to hit, you'll find roughly 20% of the U.S. population living on roughly 3% of the country's land, half of the hedge funds, one third of the headquarters of Fortune 500 firms and — in the states under the red line, about 35% of the country's and, hard as it may be to believe, about 25% of the world's lawyers! A blizzard disrupts our lives. It can feel tedious, it creates confusion, and it generates a lot of hard work — sort of like a trial. Not all trials are blizzard-like, but some surely are. Here are 21 ways some trials are like a blizzard and how to avoid white-out conditions in your courtroom.
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.
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