I've written two articles recently about the impeachment proceedings, and after publishing each, someone has written to me and accused me of bias. With thousands of people reading these articles, this is to be expected, I suppose. Well, in these two bias accusations, I was accused once by the left and then next by the right. I'm proud of this fact, as this suggests I'm not actually demonstrating bias. In fact, I believe my political beliefs are not relevant in my role as CEO of A2L. We're not a political entity. So, I have to warn you, this article is not political, it is not about the content of the statements the presenters made, and it is also not really about the weight of the evidence on either side of the impeachment trial. It is, however, about who won the first day of trial presentations during the Senate impeachment trial — from a trial presentation best-practices standpoint. On this question, I thought the answer was clear.
Over the past ten years, we have written about persuasive storytelling more than any other subject. There are dozens of A2L storytelling articles, e-books, and webinars on the topic. A2L's most popular CLE/presentation is called Storytelling for Trial Lawyers. I have presented it at dozens of major law firms, PLAC, DRI, and other conferences. The subject matter is always well received. The reason we publish and talk so much about storytelling is that trial lawyers increasingly understand that being a superb storyteller is essential for maximizing persuasion. More and more scientific studies confirm this each year, and I think most of us understand this instinctively. Storytelling is how humans have always shared information in a memorable and persuasive way. While many great trial lawyers are naturally great storytellers, I know from experience that anyone can learn to become a very good storyteller. It's a challenging thing to learn, but it is possible with practice. In my talk on Storytelling for Trial Lawyers, I provide one framework for telling a great story known as the Pixar method. Every Pixar movie follows this format, and it works fantastically well for building an opening statement. I've written about Dan Pink discussing this topic in the past. However, that method that both Dan Pink and I speak about is actually culled from a list of 22 storytelling tips that a former Pixar employee published almost ten years ago. The original list can be found here, but I have modified that list to be trial lawyer-friendly and focused on the opening statement. In this form, I think it can serve as a useful checklist and guide for any trial lawyer preparing an opening statement. As we help other trial lawyers enhance their opening statements and opening trial presentations/litigation graphics, it is a tool that we use, and it works. I'd recommend coupling this list with some of our other publications about storytelling, especially some of these articles: Storytelling at Trial - Will Your Story Be Used? Portray Your Client As a Hero in 17 Easy Storytelling Steps Poor Litigation Character Development Will Yield Poor Results Are You Smarter Than a Soap Opera Writer? Ten Ways to Maximize Persuasive Courtroom Storytelling (Part One) A2L's 22 Rules for Litigation Storytelling in the Opening Statement - Adapted from Emma Coats' 22 Pixar Storytelling Rules Explain how the client tried and failed over and over. Keep in mind what’s interesting to the judge and jury, not what’s interesting to counsel. They can be very different. If you have a narrative and theme from the beginning great, but if you discover those along the way, go back and rewrite your opening statement with those in mind.
Last week I shared A2L's top 10 articles of the year based on the visits of our 10,000+ subscribers. In those articles, there are many valuable best practices, useful war stories, and litigation consultant expert tips for trial lawyers and the professionals who support trial lawyers — particularly if you are interested in storytelling, jury consultants, litigation graphics, or trial technology/using hot-seaters. However, for as valuable as I know these articles are, I think other articles were published over the last year or two that may have been overlooked for one reason or another — and they should not have been. Sometimes the title doesn’t capture the attention of our audience. Sometimes the timing of the release of a particular article is terrible. Sometimes the news of the day simply competes with our publication, The Litigation Consulting Report. So in that light, here are six articles that I think are really exceptional and useful for every trial lawyer. I believe that when read together, they will improve the performance of both veteran and new trial lawyers alike. Here are six recent articles that every trial lawyer should read: Develop Your Trial Story – Sooner, Not Later: This article by veteran trial lawyer and senior litigation consultant, Alan Rudlin, explains clearly when one should develop their trial narrative. Obviously, the answer is suggested by the title, but hearing the rationale from such an experienced expert will help any trial lawyer prepare for trial more effectively. Great Trial Lawyers Behave Differently: Simply put, if the other 99% of trial lawyers really knew how the top 1% of trial lawyers prepare for trial, I believe the 99% would improve their trial prep. This article gets to the heart of the stark difference in trial preparation strategies. Netanyahu Persuades and Presents Better Than Most Trial Lawyers: While Netanyahu's fall from grace is noted, it takes nothing away from the fact that the PowerPoint presentation shown here was incredibly well executed. Every trial lawyer could learn something from it.
Every year hundreds of thousands of people visit A2L's website and read litigation-focused articles on our blog. We have published more than 600 articles there since 2011, and the ABA and others have named it one of the top litigation blogs. Periodically we list articles that have been deemed our very best by you, our readers, based on readership. As long-time readers of The Litigation Consulting Report blog know, our articles typically focus on topics like: Using storytelling as a persuasion tool; Combining psychology and litigation graphics to influence decision-making; Maximizing results during voir dire and mock trials; and Utilizing trial technicians so that litigators can focus on connecting with the jurors and judges. Looking at A2L's top 10 articles from 2019, these topics are indeed covered, but it’s interesting to watch the trends in the most-read articles. Storytelling continues to be a very popular topic, but as you can see from the list below, so also are subjects like litigation graphics and jury consulting. Below are the top 10 articles A2L Consulting published during 2019. I encourage you to share this list with friends and on social media. Links to post to Twitter and LinkedIn in just two clicks are included: 1. One Demonstrative Exhibit, One Concept 2. Ten Ways to Maximize Persuasive Courtroom Storytelling (Part One)
At A2L, we publish so many articles valuable to trial lawyers and litigation professionals that we like to share our very best periodically. Below are the top three articles (based on readership) published in the second quarter of 2019. Each has links that allow you to easily share the article on Twitter or LinkedIn. Top 3 A2L Litigation Articles Published in Q2 2019 1. 5 Valuable Lessons From Some Horrible Infographics 2. 10 Timely Tips For Trial Preparation 3. A Useful Directory of Federal Courtroom Technology
The traditional way for trial lawyers to prepare for a new case is pretty straightforward. The first step is to get one’s arms around the basic facts of the case – to understand the facts and the timeline of the case in depth. The second step is to ask oneself what the ideal resolution of these facts would be: What would the client want a fact finder to conclude? The third step is to begin to fit the facts into legal frameworks or algorithms that accord with the client’s view of the case. Often, however, lawyers take these steps, and then, when they are close to trial, probably too close to trial, they begin to ask themselves how a jury would likely view the case that they are putting together. This is the wrong time to ask that question. The right time is much earlier than most trial lawyers think. The story is told of a famous trial lawyer who is walking down the broad front steps of a courthouse. He encounters a younger lawyer walking up those same steps, laden down with piles of books in each arm and obviously feeling the weight. The older lawyer says to the younger one, “Son, what you need is a story.”
This article is the last in a series of four articles about courtroom storytelling. My goal in this series is to reveal some of the tricks of the persuasive storytelling trade in one place for the busy trial lawyer. I hope that these recommendations can serve as a pretrial checklist for anyone who wants to draft an opening statement. A2L’s litigation consultants have published dozens of articles about storytelling, and we’ve released books and webinars on the subject. These ten tips represent the essence of what we have learned and of what we have taught. If you apply these ten suggestions when developing your story for trial, your story will be more persuasive, and you will radically increase your chances of winning your case. Tip #6. Your audience MUST care about the story. The audience should be emotionally transported. It has been said, “People will forget what you said, people will forget what you did, but they will never forget how you made them feel.” Scientific studies show that when people listen to an effective story, their brains react more like participants than spectators. When we say that people experiencing a deep connection are “on the same wavelength,” there is neurological truth to that. Scientists at Princeton University looked at brain scans (fMRI) of storytellers and listeners to the stories. They found that the most active areas of the brains of the speakers and listeners matched up; they were in sync or coupled. However, this synchronized activity was found in the areas of the brain relevant to theory of mind, not in areas that drive memory or the prefrontal cortex associated with cognitive processing. The stronger the reported connection between speakers and listeners, the more neural synchronicity was observed in the test subjects. The extent of brain activity synchronicity predicted the success of the communication – so connecting with your audience more makes you more persuasive. Source: Storytelling Proven to be Scientifically More Persuasive. Tip #7. Force participation of your audience. Engage the audience in the journey. As Pixar film director Andrew Stanton says, don’t give them 4, give them 2+2 and make them work to find the answer. Nineteenth-century writer William Archer wrote, “Drama is anticipation mingled with uncertainty.” Make your audience members keenly aware of their uncertainties and holding on to their sense of anticipation. The goal of a presentation is always the same -- to engage the audience, to move them. This holds true regardless of the stage. It’s so in the courtroom, on the floor of the U.S. Congress, in the boardroom, and in the classroom. Litigators engage a jury to win their case for their client; professors engage their students so that they can best teach the subject matter. Engagement leads to better understanding, which then leads to better retention and enhanced persuasiveness. Retention and understanding are the keys to success.
This article is the third in a series of four articles about courtroom storytelling (links to part 1 and part 2). My goal in this series is to reveal some of the tricks of the persuasive storytelling trade in one place for the busy trial lawyer. I hope that these recommendations can serve as a pretrial checklist for anyone who wants to draft an opening statement. A2L’s litigation consultants have published dozens of articles about storytelling, and we’ve released books and webinars on the subject. These ten tips represent the essence of what we have learned and of what we have taught. If you apply these ten suggestions when developing your story for trial, your story will be more persuasive, and you will radically increase your chances of winning your case. Here is the fifth of these ten tips. 5. It is crucial to make your audience care about the characters in your story. It’s never just about a company. It’s never just about the CEO, and if Hollywood can make you care about a mute trash robot named WALL-E, you can make your factfinders care about the characters in your story. A major way to lose an audience is to fail to develop characters that a jury will care about. you don’t develop such characters, your jury will either not care about your side or will turn against your client from the start. Unfortunately, about half of all trial teams fail to properly develop the characters in their litigation story, and their cases suffer terribly for it. The excuses are numerous: from ‘We’re a big company, we don’t have individual characters” to “Everyone on our side is perceived as bad.” These are just excuses. I can guarantee that 99.9 percent of the time, there will be characters that can be developed. Here is a step-by-step guide to using Joseph Campbell’s model of the hero’s journey so as to turn your story’s main character into a hero. To make this useful pattern more accessible, I have attempted to use plain language to describe the steps. My plain language description is followed in parentheses by the name that Campbell gave to it. Also, to help bring the process alive, I have matched each step with an example from a hypothetical legal and technical fact pattern, typical of the cases we most often see at A2L. Here, our heroine is a lower-level employee at a stagnant remote-control manufacturing company, and she has an idea for a breakthrough product -- a remote control operated not with a handheld device but by wireless physical hand gestures. Something Interrupts the Ordinary (Campbell's Call to Adventure): Describe the status quo as it was at the time. Then describe that moment when someone sees an opportunity for change or a new threat emerges. In the hypothetical example, remote controls are functional uninspiring devices that get lost, wear out and have undergone little change for 25 years, in the same era that saw the mass deployment of handheld phones and personal computers. Inspired by watching her nieces play a TV-displayed game that uses hand gestures instead of controllers, our heroine imagines a world where hand gestures alone can manipulate her television and replace standard remote controls. At work the next day, she hears a speech by the firm’s CEO who is looking for new ideas. Obstacles Arise (Campbell's Refusal of the Call): Share how obstacles arose from the very beginning that prevented your client from taking the leap of faith required to pursue the opportunity. Example: After hearing the speech, our heroine brings the idea to the attention of management at the remote-control factory and was laughed out of the executive suite. She figured they were in management for a reason and went back to manufacturing remote controls as before. A Mentor or Helper Appears (Campbell's Supernatural Aid): Explain how your client gets some unexpected assistance that is a sensible next step in bringing the opportunity to reality. Example: Our heroine attends a consumer electronics conference that shows off some new gaming technology that reminds her of her idea. She talks with the reps at the trade show booth about applications they’ve considered for their wireless controllers. They suggest she show them what she has in mind.
This article is the second in a series of four articles about courtroom storytelling (here is a link to part 1). My goal in this series is to reveal some of the tricks of the persuasive storytelling trade in one place for the busy trial lawyer. I hope that these recommendations can serve as a pretrial checklist for anyone who wants to draft an opening statement. A2L’s litigation consultants have published dozens of articles about storytelling, and we’ve released books and webinars on the subject. These ten tips represent the essence of what we have learned and of what we have taught. If you apply these ten suggestions when developing your story for trial, your story will be more persuasive, and you will radically increase your chances of winning your case. Tip #2. Charisma and likability matter. The best set of facts may not save a trial lawyer who is unattractive and poorly dressed. This isn’t fair or right, but it is a reality that science proves out. For these reasons and more, it is imperative to put your best foot forward. "Your job as a persuasive litigator is to understand the factors that can be used properly and ethically to be more likable and thus more persuasive. As your case becomes more complicated, jurors are more likely to seek shortcuts and give more weight to easier factors to understand, such as which attorney they like and which they don’t. The less personally involved jurors are with evidence, such as information that is too dry or difficult, the more they tend to rely on peripheral cues rather than on an argument’s actual strength. Being liked is an important ingredient in the cocktail of peripheral cues jurors use to decide whom to believe." See, Like It or Not: Likability Counts for Credibility in the Courtroom
Great trial lawyers are paid to tell stories for a living. Typically, one side’s recitation of a story is more persuasive than the other – even when both sides are drawing on the same set of facts. But why? Is it the charisma of the trial lawyer? Is it the way the story is told by both sides? Is it the deployment of superior litigation graphics by one side? Well, it’s all these things – and more. Our litigation consulting firm is often engaged to help top trial lawyers tell their stories in the most persuasive way possible. We do this by applying the latest findings of persuasion science and sharing the wisdom that we inherit by routinely observing the world’s very best trial lawyers. This article is the first in a series of four articles. My goal in this series is to reveal some of the tricks of the persuasive storytelling trade in one place for the busy trial lawyer. I hope that these recommendations can serve as a pretrial checklist for anyone who wants to draft an opening statement. A2L’s litigation consultants have published dozens of articles about storytelling, and we’ve released books and webinars on the subject. These ten tips represent the essence of what we have learned and of what we have taught. If you apply these ten suggestions when developing your story for trial, your story will be more persuasive, and you will radically increase your chances of winning your case. Tip #1. There must be a story. You should present a story, and it should follow the basic guidelines of storytelling. That is, there should be a beginning, middle, and end, and there should be storylines and human characters that your factfinders care about. Research tells us that human beings automatically make stories out of virtually all life events to gain a sense of control, even if it’s a false sense. It’s the difference between collecting bare facts and interpreting them in a coherent manner. Most people can’t resist making assumptions, drawing inferences, and imposing upon the facts what they “mean” rather than merely accepting information as is. Most of what people discuss in their social lives are stories and gossip – not random facts. Since we know that your jury will be using a story to sort out your litigation facts in order to reach its results, whose story do you want the jurors using -- one they’ve made up, one provided by opposing counsel, or yours? If we now think about how one might tell a story in an opening statement, below is a model for telling such a persuasive story. This example comes from a trial that ultimately derived from the financial crisis of the last half of the decade of the 2000s, where the issue was whether a bank could be held liable to its shareholders for bad real estate investments that the bank made. Introduction: I like to start with the statement of some fundamental truths and an introduction of the characters like, “Banks survive on greed - it's how they make money. When they make good loans, they make money. When they make bad loans, they lose money. These bankers are essentially being accused of making bad loans, which to be true would have to mean, they were not trying to make money. When is the last time you heard of bankers not trying to make money? It makes no sense.”
No matter where you stand on the border wall dispute that has captivated the nation, you have to admit that it is an important debate. After all, $5 billion is a lot of money and who knows if the wall will really make a difference. But allowing between 200,000 and 2,000,000 people to easily enter the United States every year via the border with Mexico is probably not a good thing either. You probably just automatically identified yourself with one of those two previous sentences and took it as your position, right? The other sentence may have even made you angry or at least started you thinking about counter-arguments. In other words, like most political discussions, minds are rarely changed by more facts. It's kind of like a jury trial, right? You hear one side. You attach to it emotionally and then proceed to ignore evidence that is contrary to your new belief. In jury consulting-speak, this phenomenon is called confirmation bias. As a jury consulting firm, we've written about confirmation bias many times. See, for example: I’m Right, Right? 5 Ways to Manage Juror Bias Jurors Will Believe Anything (That They Already Believe) When Smart Ain’t So Smart - Cognitive Bias, Experts and Jurors Font Matters - A Trial Graphics Consultant's Trick to Overcome Bias Could Surprise Be One of Your Best Visual Persuasion Tools? 7 Ways to Overcome Cognitive Bias and Persuade However, A2L is not just a jury consulting firm. We’re also a top-ranked litigation graphics firm (and litigation consulting and trial technology consulting firm). So I'm always baffled by big disputes where the participants fail to use pictures effectively. In this day and age, there is no excuse. The science of visual persuasion is well established. See, What is Visual Persuasion and What Do You Need to Know About It?
It's my eighth year writing an end-of-year top-10 style article. That feels pretty great because in that time, we have published more than 600 articles and A2L's Litigation Consulting Report blog has been visited one million times. Wow, right?
This weekend, television news is sure to be dominated by Hurricane Florence. Many of us will watch the all-too-familiar scenes of high waves hitting the coastline and reporters being blown about by powerful winds. It's almost routine from a TV-watching perspective. But one unusually persuasive graphic caught my attention this week. Did you happen to see the Weather Channel’s storm surge simulation? I think it’s brilliant, and it potentially offers some lessons for forward-thinking trial counsel. The simulation begins at the 55-second mark in the video below:
I’ve been watching the baby powder/talc trials closely for the past several years. They feature some of the world’s best lawyers, and they are pushing the boundaries of scientific evidence. For anyone in the litigation business, the talc trials, as well as the trials involving the alleged cancer-causing properties of Monsanto’s herbicide Roundup, form a fascinating window into how big-ticket cases are being tried right now. In both lines of cases, plaintiffs are showing early dominance, and I think the defense accordingly needs to adjust both how it handles demonstrative evidence and how it deals with scientific evidence. Interestingly, both of these types of trials can be watched on the Courtroom View Network (CVN). I have long advocated that trial attorneys should be watching other trial attorneys on CVN because there’s almost no other way to see today’s great lawyers in action. In the most recent talc trial, famed plaintiffs lawyer Mark Lanier of Houston took on Johnson & Johnson, which makes talcum powder products. He asserted that his clients, 22 women who used the products, were exposed to asbestos found in talc and that this exposure caused them to contract ovarian cancer. The case is notable for many reasons. The result was certainly remarkable as this past July, plaintiffs were awarded nearly $4.7 billion in damages by a jury in a Missouri state court. The case is also one of the most high-profile cases to utilize genetic evidence. And that aspect was particularly interesting to me as this is an area that A2L and its partners at Innovative Science Solutions have been discussing for the last couple of years. We even held a conference on the topic of the use of genetic evidence in civil litigation. So let me discuss two aspects of this case. First, while I am not an expert in analyzing genetic evidence in civil cases, I do understand how to use it and how to present it. In this case, the defense was clearly reluctant to use genetic evidence, and it only lightly cross-examined plaintiffs’ genetics expert. I don’t know for sure, but I’ll speculate that like other defendants, Johnson & Johnson may have feared that by presenting genetic evidence as a defendant it would position the plaintiffs as a so-called eggshell plaintiffs, making liability easier for plaintiffs to prove. See takeaway #6 in this article where we discuss why this thinking is specious. Whether or not defendants were concerned about the role of genetics in conveying to the jury that these may be eggshell plaintiffs, Lanier appeared to adopt this approach anyway. He utilized genetics to affirmatively allege that the plaintiffs were especially vulnerable to the effects of talc. This highlights an apparent growing trend of the plaintiff utilizing genetics to demonstrate plaintiff susceptibility to alleged toxins and a need for the defense to effectively address and rebut this assertion. I haven’t seen that tactic before. and similarly situated defendants must get ready for this tactic in other cases. A good place to start would be talking to my friend and frequent collaborator Dr. David Schwartz at Innovative Science Solutions who is doing pioneering work with the group ToxicoGenomica. The second element of this trial that I found fascinating was Lanier’s use of demonstrative evidence. In most big-ticket litigation demonstrative evidence is exchanged a day or so before it is used, to allow for objections to be made. Clearly, Lanier has figured out a workaround by drawing (or having his colleague draw) a highly prejudicial demonstrative that for whatever reason the defense did get excluded. It's the featured picture in this article, but let me show you what I mean in this clickable video clip and transcript below from our friends at CVN. Here Mark Lanier perfectly combines the eggshell plaintiff approach with an objectionable piece of demonstrative evidence to powerfully drive a point home. His message is that some people are genetically more susceptible to cancer-causing agents like asbestos and that Johnson and Johnson and their baby powder products pushed plaintiffs over the cliff where cancer happens. Other free A2L Consulting resources related to genetics in civil litigation, litigation graphics, and demonstrative evidence include: With So Few Trials, Where Do You Find Trial Experience Now? 7 Key Takeaways from the Genetics in Civil Law Conference Free slide decks from the Genetics in Civil Law Conference Free E-Book: The Litigator's Guide to Combating Junk Science - 2nd Edition Repelling the Reptile Trial Strategy as Defense Counsel - Part 3 - Understanding the Bad Science The Importance of Litigation Graphics in Toxic Tort Litigation 10 Key Expert Witness Areas to Consider in Your Next Toxic Tort Case Free Download: Using Science to Prevail at Trial or As an Advocate 7 Reasons the Consulting Expert is Crucial in Science-Based Litigation Using Trial Graphics & Statistics to Win 12 Questions to Ask When Hiring a Trial Graphics Consultant Repelling the Reptile Trial Strategy as Defense Counsel - Part 1 Teaching Science to a Jury: A Trial Consulting Challenge 5 Valuable (and Free) Complex or Science-Focused Litigation Resources Winning BEFORE Trial - Part 3 - Storytelling for Lawyers
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