It turns out that a large number of Russian ads on Facebook that viewers did not know were Russian ads influenced the way people thought about various issues last year. They may have even influenced the 2016 presidential election to some degree. Rather than delve deeply into the appropriateness of these ads (in my view, they were wholly inappropriate), who exactly directed their placement, and how exactly they affected behavior, let's instead look at these ads from a trial lawyer’s perspective. After all, if pictures and a few short phrases can be used to change the voting behavior of the electorate, it stands to reason that pictures and some well-chosen phrases can be used to change the voting behavior of jurors. In the courtroom, there's no ethical debate about this process, since jurors know exactly where the message originates from -- the mouths of lawyers, experts, and witnesses. So if an attorney can use proven persuasion techniques and it's ethical to do so, the attorney must do so to zealously represent his or her clients. This is precisely why high-end persuasion firms like A2L exist. We're here to help persuade, using all appropriate and ethical means, both visual and rhetorical. We're not Russian hackers. Instead, we're hackers of human psychology, since we help top trial lawyers use proven techniques to maximize their persuasiveness. We do this by bringing together a remarkable combination of trial lawyers, social scientists, and artists to do what we do, a process we call litigation consulting. Let’s look at the Russian ads in this light. Because of some good investigative journalism and investigative work in Congress, many of the ads, Facebook groups, Facebook pages, and messages have been identified and published -- and most of them are really disturbing. The ads used some of the same time-honored techniques that trial lawyers use – but because their source was disguised and because they were intended to disrupt, not to persuade, they were dangerous. For example, many of the ads targeted topics where there is a deep division or poked at issues in a way designed to inflame. In almost every case, they used a favored technique of marketers, trial lawyers, and politicians alike -- FEAR. And that makes sense. Fear is a ten times greater motivator than hope of gain. That’s why marketers tell us that the one-time low pricing will end Sunday night, not how happy we will be on a new mattress. That’s why politicians tell us that immigrants should fear deportation if their opponent is elected, not that the melting pot is a good thing. And finally, of course, that’s how a specious argument that an everyday product causes cancer can overwhelm a defense based on good science. Fear wins, and good trial lawyers on both sides of the courtroom must use it. I wrote a lot about this topic in my five-part series about the Reptile Trial Strategy. It's no surprise that ads traced back to Russia focused on hot-button topics like Black Lives Matter, Muslims supporting Hillary Clinton, gun rights, LGBT rights, and more. Let's look at the techniques used in three Russia-linked ads: 1. Heart of Texas: This Facebook group that advocated for Texas secession quickly gained more than 250,000 members. The ad below uses a fake Facebook event as part of its messaging. What made a quarter of a million Texans unwittingly sign up for a Russian-backed Texas secessionist movement? The ad works because it stokes existing biases while seemingly coming from a credible source. If we define bias broadly as any commonly held belief by a person that makes it harder for them to accept contrary evidence, you can see how this could work in the courtroom. Obviously, we’re not talking about using racial, ethnic, or sexual preference biases as part of advocacy. Instead, I’m referring to those beliefs that many jurors show up to trial with -- like bankers are all motivated by greed, big energy companies don’t really care about the environment, or tech companies will ruthlessly steal from one another. Just as the Russians used biases in a deplorable manner, trial lawyers can play to other biases by encouraging jurors to accept and double down on their beliefs. As I wrote in a recent post, when you combine a credible source such as an expert witness with a message that jurors are ready to hear, you are likely to come out ahead. Consider how I embraced these biases and re-messaged these in a recent blog post about bias below. As you read each think about how you might couple each with persuasive visuals to maximize persuasion. Bankers are greedy, so why would they ever do something that risked their money? (Possible visual storytelling aid to accompany: evidence of penny pinching at all levels of the organization summarized on a chart to demonstrate a culture of avarice) XYZ oil company has been more reckless with the environment than you or me, but given what they went through before, do you really think they are dumb enough to do it again? (Possible visual storytelling aid to accompany: list in a slowly scrolling chart the tangible consequences the organization faced as a result of the last disaster) Sure, tech companies will do anything to get ahead, but can you imagine anything more humiliating to someone as competitive as the CEO of ABC company as looking as if you’re not as smart as the other guy? Nothing is worth that when you are a competitive tech geek. (Possible visual storytelling aid to accompany: text callouts coupled with the CEO photo openly demeaning the intelligence of the opposition)
We don't have a Hippocratic oath (i.e. do no harm) in the legal field, but when it comes to using litigation graphics at trial, maybe we should. You see there are some times when using litigation graphics does real damage to your overall persuasiveness. It is incorrect to assume that when using visual aids such as demonstrative evidence, scale models, trial boards, computer animation, or the ever-present PowerPoint presentation you are always doing good and helping your audience. Here are seven times when you would be better off changing your approach or not using litigation graphics at all: You are reading from your slides: If you populate your trial presentation with bullet point filled slides and you read them, you are reducing the amount of information your audience will remember and understand. This is due to the redundancy effect or split-attention effect. See Should You Read Documents Out Loud at Trial? You are going to get caught cheating: Creating a chart that is persuasive is great. Creating one that is misleading can cost you your credibility. As one of our customers rightly says in the video below, "Finding ways to illustrate ideas but also to visually display the evidence in a way that's understandable to the jury is critical in order to earn their trust -- which is the most important asset you have." See 5 Demonstrative Evidence Tricks and Cheats to Watch Out For. You are not using storytelling in combination with your litigation graphics: All too often trial counsel moves chronologically through a case without considering whether there was a better approach to storytelling. I think timelines can lock us into this approach. Sometimes chronological is best but sometimes using more sophisticated storytelling techniques to persuade work best. In any case, if you fail to tell a story, a jury will make one up to fill the void. Therefore, be sure to combine your visuals with storytelling to win your case. See Storytelling at Trial - Will Your Story Be Used? and Don't Be Just Another Timeline Trial Lawyer and 12 Ways to SUCCESSFULLY Combine Oral and Visual Presentations
We write here frequently about the importance of using visual evidence in trials and indeed in all sorts of other legal forums. But technology is not the be-all and end-all of persuasion. It is a very useful tool, but the importance of technology does not lessen the need to tell a convincing story to a jury or another decisionmaker. In fact, if courtroom technology is not deployed correctly, presenting visuals to a judge or jury can detract from one’s message rather than enhance it. In other words, figuring out who will be victorious at trial is not simply a matter of determining who is using litigation graphics and who is not. Any trial is ultimately about how each side can use its graphics to support an effective story. Technology-based graphics, therefore, should not be used to make up for the trial skills a lawyer lacks, but rather to enhance the skills he or she already possesses. The type of technological visual is another variable to consider when presenting an argument. Some research has suggested that depending on the case, different types of technology-based graphics can have different persuasive effects on the jury. For example, researchers compared a computer simulation of an air crash, an audiotape with written transcript of a cockpit voice recorder, and a speaker reading the cockpit voice recorder, and asked people to decide whether they believed there was a pilot error based on the evidence to which they had been exposed. The researchers found that jurors who were shown the computer animation believed the flight crew to be significantly less negligent that the other jurors who did not. Animations are so powerful because they can take us to places human beings cannot go. But even without animations, simple PowerPoint slides can be quite effective in advancing your narrative if done right.
During one college summer, I used to engage in aikido, a martial art. In retrospect, it was all a bit goofy, but I learned some good lessons from it. In particular, I learned about a technique common to many of the martial arts and to conflict in general. This is the idea that you can use someone's momentum against them. If they are running at you, you can move to the side and trip them -- and they will fall. This requires far less energy from you. Similarly, in the courtroom, while there is no physical contact (hopefully), there is certainly a direction and a momentum in the way factfinders arrive at conclusions. We've written about the idea of confirmation bias before in articles like I’m Right, Right? 5 Ways to Manage Juror Bias and Font Matters - A Trial Graphics Consultant's Trick to Overcome Bias. It's a concept that I believe all trial lawyers must understand at least somewhat. In the courtroom, using the momentum of a juror’s beliefs to help further those beliefs is a master trial lawyer technique. A new study reveals just how important it is for high-level trial lawyers to understand this concept of persuasion. The study, reported in the open-access journal Computational Biology, confirms something that is a little sad. It turns out that most humans will continue believing something that they previously believed, even when presented with clear evidence to the contrary and even when it hurts us to continue believing it. It's a bit more nuanced than that, but this is the essence of it. In the courtroom, we regularly work with banks accused of fraud, companies that have allegedly polluted the environment, and tech companies accused of theft of trade secrets. Trial lawyers always have the temptation to simply try to straightforwardly show judges and juries evidence that clearly contradicts the beliefs that those factfinders arrived with. That only makes sense, right? After all, if someone says you put the pollution there and you didn't, you just tell them you didn't do it, bring evidence, and you're off the hook, right? Unfortunately, my experience and this study do not support that idea. All humans arrive with certain biases when they show up to trial – such as these: Bankers are greedy. Oil companies don't care about the environment. Tech companies will do anything to win. All too often, trial counsel puts a lot of effort into trying to disprove these beliefs. Instead, consider the aikido move, step to the side, agree with the momentum, and use it to your advantage as follows: Bankers are greedy, so why would they ever do something that risked their money? XYZ oil company has been more reckless with the environment than you or I, but given what they went through before, do you really think they are dumb enough to do it again? Sure, tech companies will do anything to get ahead, but can you imagine anything more humiliating to someone as competitive as ABC company as looking as if you're not as smart as the other guy? Nothing is worth that when you are a competitive tech geek. In other words, find a way to accept that either your factfinders walked in with a certain bias or that your opponent will help them form a bias during opening statements – and then run with it. There’s no better way to test this approach than in a mock trial setting. That’s where you can learn to anticipate the biases and get ahead of them. Common sense, that new study, and several decades of litigation experience bear this out. Other free A2L articles and resources related to confirmation bias, the overwhelming power of the opening statement, and the power of effective storytelling in the courtroom include: When Smart Ain’t So Smart - Cognitive Bias, Experts and Jurors 7 Ways to Overcome Cognitive Bias and Persuade Still Think Persuasion is About Talking While Showing Bullet Points? 5 Essential Elements of Storytelling and Persuasion How Much Text on a PowerPoint Slide is Too Much? 5 Ways to Maximize Persuasion During Opening Statements - Part 4 Free A2L Consulting Webinar: Persuasive Storytelling for Litigation Good-Looking Graphic Design ≠ Good-Working Visual Persuasion I’m Right, Right? 5 Ways to Manage Juror Bias Persuasive Graphics: How Pictures Are Increasingly Influencing You 14 Places Your Colleagues are Using Persuasive Graphics That Maybe You're Not Font Matters - A Trial Graphics Consultant's Trick to Overcome Bias Why the President is Better than You at Creating Persuasive Graphics Law360 Interviews A2L Consulting's Founder/CEO Ken Lopez Are Jurors on Your “Team”? Using Group Membership to Influence Subscribe to this blog for free
The other day, I noticed a New York Times obituary for Alan Peckolick, a graphic designer and illustrator known for his distinctive corporate logos and typeface designs. Peckolick championed “expressive typography.” He wrote a textbook called “Teaching Type to Talk.” He created General Motors’ “GM” logo, and letterforms for Mercedes-Benz, Pfizer and Revlon. In a 2015 interview, Peckolick explained that he conceived of “letterform as a piece of design. Cat is not ‘cat’ — it’s c-a-t. That’s what led to the beginning of the expressive topography.” Peckolick belonged to a pioneering generation of designers who reinvented typeface as a form of art. They believed that, just as words convey literal dictionary meaning, so do they express figurative value through typeface and letterform. In litigation graphics, imbuing words with depth of meaning and expression is mission-critical. Each letter counts. Each word must carry its own weight on the page. There simply is no space to waste. And in addition to practicing economy of language, we must elevate the appearance of words to convey essential meaning. As a design blogger wrote: Typography often provides that at-a-glance first impression that people gauge and judge the rest of the design by — so your font choices need to be purposeful and appropriate. Is your font saying “beach vacation” when it should be saying “job interview”? Do the elements of your font “outfit” clash, or do they complement each other? Are they effectively communicating the qualities you want to project? Ask yourself, does the chart you are devising use an easy-to-read, unobtrusive typeface? Does the timeline have enough white space to let a juror follow it with her eyes? Does the font say “major patent issue worth hundreds of millions” or does it say “routine commercial dispute”? By power-packing words with multi-layers of meaning, we communicate at the highest level, allowing words not simply to “speak” in unison with graphics, but to come alive and leap off the page at the reader. Other free A2L Consulting articles and resources related to graphic design, font usage, and persuasion tricks in litigation graphics include: Font Matters - A Trial Graphics Consultant's Trick to Overcome Bias Still Think Persuasion is About Talking While Showing Bullet Points? Free Download: A Guide to Making Great Trial Timelines 5 Demonstrative Evidence Tricks and Cheats to Watch Out For A Surprising New Reason to Repeat Yourself at Trial Watch Out for Subliminal Messages in Trial Graphics The Top 14 Testimony Tips for Litigators and Expert Witnesses Never Use Bullet Points - Here's Why Don't Use PowerPoint as a Crutch in Trial or Anywhere 6 Trial Presentation Errors Lawyers Can Easily Avoid 12 Reasons Bullet Points Are Bad (in Trial Graphics or Anywhere) 10 Criteria that Define Great Trial Teams How Much Text on a PowerPoint Slide is Too Much? 5 Ways to Maximize Persuasion During Opening Statements - Part 4 Free A2L Consulting Webinar: Persuasive Storytelling for Litigation The 12 Worst PowerPoint Mistakes Litigators Make 12 Ways to SUCCESSFULLY Combine Oral and Visual Presentations The Effective Use of PowerPoint Presentation During Opening Statement 16 PowerPoint Litigation Graphics You Won't Believe Are PowerPoint 12 Questions to Ask When Hiring a Trial Graphics Consultant
It is unquestioned that technology has had a profound impact on our environment in the last couple of decades. Our brains are constantly adapting at a physical level to our environment, and research has suggested that technology has changed the way we perceive, remember, and process information. Not much has yet been said, however, about how technology has changed the ways in which jurors process information and the appropriate new styles that trial lawyers ought to use in presenting information to a jury. The growth of the internet, 24-hour television, and mobile phones means that we now receive five times as much information every day as we did 30 years ago. With the appropriate internet connection, technology allows us to access any information in less than a second. According to Internet Live Stats (2014), 88.5 percent of people in the United States are internet users. In addition, the internet has also changed the way we as a society process information. For example, when we read a book we do so linearly, from one sentence to another, but when using multimedia devices, we scan for keywords and grab small bits of relevant information. The internet has influenced people’s cognition in a way which they will now typically forego complex analytic thinking to get information quickly and easily. In other words, people allow the internet or even their smartphones to think for them. As a result, it is much harder to sustain attention, to think about one thing for an extended period, and to think deeply when new stimuli have been pouring in all day long. This is not to say that technology has negatively impacted our brain. Instead, the excess amount of information at our fingertips has changed the way we process large amounts of information and specifically, what information engages our attention.
Since litigation graphics are so crucial to winning a case, it’s a necessity to put your litigation graphic artist in a position where he or she is most likely to succeed. How should a litigation graphic artist begin his or her work? Here are some possibilities. The artist can listen to the attorneys and experts describe what kind of demonstrative exhibits they want; The artist can take direction from an intermediary like a litigation consultant or jury consultant; The artist can work from the pleadings; The artist can improve upon a deck that's already been produced in draft form; The artist can work from a trial outline; The artist can listen to the attorneys and experts confer with a litigation consultant and ask questions of his or her own, then agree on a plan based on this conversation. After 22 years of doing litigation graphics consulting, I believe the last method is the one that produces the best results. You might ask why. After all, wouldn't it be faster if the artist is simply told what to do, and wouldn’t it be cheaper of the artist is asked to work from a trial outline?
Many of us find ourselves, from time to time, in the position of having to give advice to friends and acquaintances. In those circumstances, it’s simply human nature that the person who is seeking the advice is frequently more than a bit resistant to following it. So the person giving advice needs to figure out ways to overcome that resistance and to persuade the friend. I believe that the same principles that help us persuade our fellow human beings to follow our advice are also very helpful for trial lawyers who want to convince a jury of the rightness of their case. Here are some of them. To me, the essence of persuasion is trust. If that friend trusts you, she is much more likely to follow your advice. The same is true of a jury. Much of a trial team’s work can be seen as a concerted effort to build up trust with the jury. Trust has several components. Certainly, a key component is credibility. Do your background and experience indicate to the jury that you know what you’re talking about? Another component is comfort. Standing before the jury, do you appear comfortable and at ease with what you are advising the jurors? Yet another aspect is rapport. This is a matter of addressing the jury directly and being mindful and focused so as to develop a connection with the jurors. No distractions or multi-tasking can be appropriate. The jury is your only focus. Then of course there is empathy. This is very important in the context of advice-giving to friends, and even more so with a jury. If your client is, say, a large company accused of polluting a river, you need to empathize with the jurors’ possible bias against your client. You need to give them a narrative that will help them change their preconceptions. Then there is culture. That is hard to define, but it involves all of the life experiences that the jurors come to court with. You wouldn’t speak identically to a jury in a high-income New York suburb as you would to a jury in the West Texas plains or the Florida Keys. In addition to trust, a key element of persuasion is logical argument. You can have a great deal of credibility with a friend and share her cultural background, but if your advice doesn’t make sense, she won’t follow it. The same is true of a jury. Finally, one must not neglect the importance of time. Even your best friend wouldn’t want you to waste his time while giving advice in a drawn-out way, and juries too tend to tune out an argument that is too lengthy and complicated. As with the other components, a good deal of the art of persuasion amounts to common sense. Other free A2L articles related to persuasion techniques, connecting with jurors, and being likable in the courtroom include: Three Top Trial Lawyers Tell Us Why Storytelling Is So Important Like It or Not: Likability Counts for Credibility in the Courtroom Still Think Persuasion is About Talking While Showing Bullet Points? Free A2L Consulting Webinar: Persuasive Storytelling for Litigation SPICE Is the Key to Persuasion Free A2L Consulting Webinar: Winning Your Case BEFORE Trial Using Persuasive Litigation Graphics — Watch OnDemand Now Free A2L Consulting Webinar: 5 Ways to Maximize Persuasion During Opening Statements — Watch Anytime How Pictures Are Increasingly Influencing You 5 Ways to Apply Active Teaching Methods for Better Persuasion 12 Ways to SUCCESSFULLY Combine Oral and Visual Presentations 5 Chart Tricks and Cheats to Watch Out For 7 Ways to Avoid Making Your PowerPoint Slides Your Handout 14 Tips for Delivering a Great Board Meeting Presentation Presentation Graphics: Why The President Is Better Than You 12 Reasons Bullet Points Are Bad (in Trial Graphics or Anywhere) 8 Videos and 7 Articles About the Science of Persuasion Could Surprise Be One of Your Best Visual Persuasion Tools? How to Be a Great Expert Witness (Part 3)
by Ken Lopez Founder/CEO A2L Consulting Every month, 1,000-2,000 free e-books and webinars are downloaded and viewed on A2L Consulting's web site. These free resources are likely the single best place on the Internet to learn how the best trial lawyers prepare for and win at trial. It's an exchange of litigation's best practices like no other. Judging by the topics searched for and read during the 100,000+ visits to A2L's website and industry-leading litigation blog so far in 2017, the legal industry is especially eager to learn more about voir dire, storytelling for persuasion (including visual persuasion), and jury consulting generally. Below are the top 10 free litigation best practice resources that have been downloaded and viewed so far in 2017. Choose your favorite(s) now, share this list with friends, and improve your results. Really, everything below is complimentary. 10. The Opening Statement Toolkit: 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. 9. Why Work with A2L: This free guide details how we think as litigation consultants and the value that litigation consultants provide generally. It's a useful tool to hand to in-house counsel to explain how jury, graphics, and technology consultants can contribute to winning a case. 8. Top 75 Articles of All Time: Our litigation consultants have compiled 75 expert articles on topics related to litigation support and litigation generally. This free book compiled the top 75 articles written in the first five years of our litigation and persuasion blog. 7. The Voir Dire Handbook: This one-of-a-kind and brand-new book will be helpful to junior and veteran courtroom practitioners alike. Because the composition of a jury can dramatically affect the outcome of the case, it is vitally important to get voir dire right and use whatever tools are available for doing so. 6. Using Litigation Graphics at Trial: In our most comprehensive e-book about litigation graphics and courtroom persuasion, A2L's jury and graphics consultants have compiled 74 expert articles in what is a first-of-its-kind book. 5. Tactics for Complex Civil Litigation: Whether you are a veteran trial lawyer or support trial teams, you will find this book valuable. This guidebook includes 74 articles about how to best to prepare and try a complex civil case for bench and jury trials. 4. How to Use Storytelling in Litigation E-Book: In our biggest e-book yet on courtroom storytelling, our litigation consultants have compiled 75 expert articles on topics related to litigation support and litigation generally. 3. How to Design and Use a Great Trial Timeline: This book is a must-have for anyone who prepares informative or persuasive timelines designed to influence and change what people think. 2. Using Storytelling as a Persuasion Tool at Trial Webinar: Whether you are in-house counsel, outside counsel, or litigation support, this 60-minute webinar plus 20-minute Q&A will improve your understanding and use of storytelling techniques during litigation. Led by seasoned litigator, Tony Klapper. 1. The Litigation Consulting Report Blog: Every month, 200 or more people subscribe to our blog. Six years into its existence, there are nearly 10,000 subscribers. You or a friend can subscribe free here, and you can control how often you hear about new articles (published 1x-3x/week) here.
by Tony Klapper Managing Director, Litigation Consulting A2L Consulting War rooms at trial are very intense, high-pressure places. Obviously, the lawyers in the trial team are going to make the war room their “office” for the duration of the trial, as will other team members such as paralegals and consultants. Here are five reasons why a trial team should always consider having a graphic artist on site, right beside the attorneys. If an artist is not there, side by side with the lawyers, the team will lose a certain amount of flexibility and responsiveness. If a lawyer wants a visual to be slightly modified, based on testimony that’s just now being heard, there’s nothing like having someone by her side to share thoughts with. The response can be immediate and in real time. Communication between the lawyer and the litigation graphics artist is much easier to achieve. If the artist is not there, miscommunications can creep in like a child’s game of “telephone.” A lawyer can show an artist on site exactly what she means because the artist is able to see and hear the lawyer, not just read an email or listen on the phone.
by Tony Klapper Managing Director, Litigation Consulting A2L Consulting I recently had the opportunity to make a presentation at a federal judges’ conference in New Jersey that brought together judges and lawyers from that state. About 300 lawyers attended, as did about two dozen federal judges. The subject of my presentation was storytelling and its role in trials. After my presentation was over, I informally polled the judges in the room on their views concerning the importance of visuals at trial and the role of storytelling. Every single one of the judges, with the possible exception of one bankruptcy judge, indicated that he or she thought that the use of demonstratives was a critical part of any trial presentation. This is a notable indication, if an unscientific one, that judges, who are key decisionmakers in any courtroom, understand the role of visual persuasion. I would add a caveat. They are judges, after all, and I have little doubt that they will sua sponte reject a trial lawyer’s effort to tell a story visually that in the judge’s view is inherently unfair to the other side. Judges will control what goes on in the courtroom when it comes to the use of demonstratives as part of your narrative, as they will in every other aspect of a trial. That means that, as we said in our most recent post, trial lawyers should always have a backup plan in mind, a “Plan B” in case the judge views their original approach as objectionable. But the results of my informal poll are consistent with what we at A2L have been saying for the past several years here. Jurors are human beings who learn best when they learn visually, and they understand a case the most instinctively if it comes to them in the form of a story. Other articles about bench trials, mock bench trials, using demonstrative evidence with judges, and visual storytelling from A2L Consulting include: 21 Ingenious Ways to Research Your Judge 7 Things You Never Want to Say in Court 10 Suggestions for Conducting Mock Bench Trial Consulting Exercises Using Litigation Graphics in Bench Trials: How Different Is It From Jury Trials? 11 Surprising Areas Where We Are Using Mock Exercises and Testing Storytelling at Trial Works - But Whom Should the Story Be About? Winning BEFORE Trial - Part 3 - Storytelling for Lawyers 12 Ways to SUCCESSFULLY Combine Oral and Visual Presentations 3 Articles Discussing What Jurors Really Think About You 11 Tips for Winning at Your Markman Hearings 5 Essential Elements of Storytelling and Persuasion 11 Tips for Preparing to Argue at the Federal Circuit 5 Keys to Telling a Compelling Story in the Courtroom Preparing for ITC Hearings Three Top Trial Lawyers Tell Us Why Storytelling Is So Important
Timelines are a frequently used, time-honored trial technique that we have discussed in these pages more than once. Since human beings like to focus on a story – what happened first, what happened next, and so on – timelines have the power to summarize, in a simple and straightforward way, the entire narrative of a case. But not all timeline graphics are created equal. Here are three ways to use what we call “top-bottom” timelines that most successfully take advantage of their power to persuade. In the first type of “top-bottom” timeline, the chronological portion of the line, in years, months, days, whatever is relevant, sits in the middle. At the top lie the actions of your client, tagged at the appropriate time when they occurred. Below the line are the actions, or inactions, of the other side in the litigation. Let’s say the case centers around a construction contract, and your point is that a subcontractor’s inaction caused a critical delay in the completion of the contract. Above the line are the actions of your client, the main contractor – the days when it began work, when it completed certain key steps of the project, when it contacted the subcontractor for progress reports. Below the line are the actions of the subcontractor, which diminish in number and in significance as the deadline approaches. The jury can look at the timeline and immediately draw a distinction between your client’s actions (good and appropriate) and the other company’s actions (few and showing evidence of foot-dragging).
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 Alex Brown Director of Operations A2L Consulting I read an article today that can be applied to our industry so well that I thought I should apply its lessons. The article was written by Eddie Shleyner and is titled: How to Defeat Your Most Dangerous Writing Habit: 7 Ways to Lift 'The Curse of Knowledge' The article highlights the concept of being cursed due to knowing too much. The issue refers to someone who has studied a subject so thoroughly that it becomes difficult to explain it to people who don’t know as much about the subject. As an example, he discusses the book, Made to Stick, where the Heath brothers provide an example: “Think of a lawyer who can’t give you a straight, comprehensible answer to a legal question. His vast knowledge and experience renders him unable to fathom how little you know. So when he talks to you, he talks in abstractions that you can’t follow. And we’re all like the lawyer in our own domain of expertise.” Cognitive bias is what we are talking about. Shleyner notes that this is particularly dangerous to writers, since in conversation, a listener can ask questions to clarify the issue. But litigators, when giving an opening or closing statement, are in the same boat as writers since they are unable to ask or receive questions from their audience. So, how can you defeat this curse? Ironically, more knowledge is the answer. The more you know about the curse, the less likely you will succumb to it and the more persuasive you will be. Let’s take a look at his seven best practices to combating this curse and apply them to our industry. 1. Know your audience’s base subject knowledge. Jury Research. Focus Groups, Mock Exercises. Basically, you need to know your audience. Not only to know how they think, but why, what, who, where and the often forgotten wow. Learn how they think, learn the history to know why they think this way, but most importantly, figure out how to say it in a way that will wow them and be remembered. Like It or Not: Likability Counts for Credibility in the Courtroom 5 Reasons Why Jury Consulting Is Very Important Group Psychology, Voir Dire, Jury Selection and Jury Deliberations
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