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 (Former) 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
by Ken Lopez Founder/CEO A2L Consulting We at A2L are launching a new e-book this month. This time, we are publishing the book jointly with IMS ExpertServices, one of the nation’s premier providers of experts and consultants for top law firms and Fortune 500 corporations. The title of the new book is Expert Trial Testimony: Direct and Cross-Examination. The book answers every question you might have thought of in connection with expert testimony at trial in U.S. courts, and it does so in a clear, conversational manner. Plus, it’s a free download. As more and more money is at stake in civil trials, and as the subject matter grows more and more complex and difficult for many jurors to understand without assistance, the value and importance of expert witnesses has grown dramatically. The difference between an effective, well-prepared, convincing expert witness and one who does not come across well to a jury can often be the difference between winning and losing a trial where hundreds of millions, or billions, of dollars are at stake. The book is directed at experts themselves and gives dozens of do’s and don’ts that will make any expert’s testimony effective and convincing at a trial. It’s not only experts who will benefit from reading this book but also trial attorneys, trial technicians, in-house counsel, and anyone who wants to understand the best ways to put on expert testimony. The book addresses the typical expert witness as follows:
by Jeanne Cannarozzi (Former) Business Development Manager A2L Consulting Trial teams often struggle to find just the right analogy or metaphor to help convince a jury. As persuasion consultants, our role is very often that of finding options for analogies or metaphors for a trial team to consider. It's one of those times when our office looks a lot like an advertising agency with a group trying to brainstorm. I want to share some resources used by our team in coming up with good techniques for trial teams to use.
by Ken Lopez Founder/CEO A2L Consulting
by Alex Brown Director of Operations A2L Consulting
by Ken Lopez Founder/CEO A2L Consulting Last week, I wrote about a new book that proposes a variety of life, body, and brain hacks to make us more persuasive. That book is written by Amy Cuddy, one of the top TED speakers of all time. I think the lessons she teaches are incredibly valuable for litigators looking to maximize persuasiveness during their opening statements. So, you might ask, what makes a good TED Talk a great one? After all, some TED Talks have tens of millions of views, while others on equally interesting topics have far fewer views. I am a big fan of TED Talks, and I have highlighted some aspects of them in previous articles such as The Top 10 TED Talks for Lawyers, Litigators and Litigation Support and The Top 14 TED Talks for Lawyers and Litigators 2014. If you happen not to know what TED Talks are, they are simply short talks, generally combined with some visual support, that are sponsored by TED, a nonprofit foundation. TED Talks have become the gold standard for thoughtful, innovative presentations to lay people in many areas of endeavor. Last year, Vanessa Van Edwards, an expert on presentations and on human behavior, studied what makes a great TED Talk, and the results are a mix of fascinating and frightening for most people. I say frightening since many of these results fly in the face of the conventional wisdom. Of course, as someone who lives and breathes trial presentations, I have a bit of an agenda here. I think that each of the lessons that Van Edwards gleaned from the elements of a great TED Talk are perfectly analogous to great lessons for how lawyers should make an opening statement. So, here are her five key findings:
by Ken Lopez Founder/CEO A2L Consulting The importance of developing a strong narrative in your case is well-established by science and by what we have all observed in the actions of jurors in real cases. In spite of the law that may be against you, in spite of the facts that may be against you, a high-quality narrative can win a case. We've written about this extensively and articles like Storytelling Proven to be Scientifically More Persuasive, 5 Essential Elements of Storytelling and Persuasion, and $300 Million of Litigation Consulting and Storytelling Validation provide a good background on the power of story, whether in a case tried to a jury or to a judge. Great litigators don't push back on the need for story anymore. Indeed, they arrive at our doors in quest of ways to fine-tune their narrative and make it more convincing. We help them by testing any number of possible approaches, by conducting practice opening statements, and by developing a persuasive visual presentation for the litigators. One bit of pushback that we do continue to hear is about injecting emotion into a case. Particularly from defense-side clients, we hear that all that’s needed and appropriate is a narrative – but that in this particular case, the narrative need not be compelling and emotional.
by Ken Lopez Founder/CEO A2L Consulting I wrote about Harvard psychologist Amy Cuddy's body language TED Talk in 2012. Her findings about how striking a power pose can measurably affect your persuasiveness are as relevant for litigators today as they were four years ago. Professor Cuddy has released a new book called Presence, and it is filled with an even greater wealth of useful information for litigators. She goes into detail about what one can do to prepare for a high-pressure situation like a job interview, a competitive swim meet, or a venture capital pitch - all situations similar enough to an opening statement that we can safely assume the same advice applies. When one is delivering as their best self, they are said to be exhibiting "presence." She says that presence is most clear to others when "we feel personally powerful, which allows us to be acutely attuned to our most sincere selves." In other words, when we believe in our message and believe in ourselves, we are in fact scientifically more believable to others - and there are ways to hack your own brain, like the power pose, to make these findings work for anyone. Make no mistake, presence is not about feigning confidence or passion. Instead, exhibiting presence is more like being in sync with your true self. For these techniques to work and for you to maximize your persuasiveness in the courtroom, you really must authentically believe in yourself. But how? Her suggestions for achieving presence are not conjecture. Cuddy roots her advice in solid science and rigorous study. For example, one study involved analyzing videos of 185 pitches to venture capitalists. In this setting, much like the courtroom, there is a clear winner and loser. Key behaviors (all sub-elements of presence) of all the presenters were assessed and compared with those who were successful in getting venture capital funding. The results are fascinating. Four factors clearly dominated all others in determining who got funding:
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.
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.
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