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The In-House

Counsel
Litigation Toolkit
Litigation Graphics DECEMBER 2014
Jury Consulting
Trial Technology
Visual Persuasion
Introduction to A2L Consulting
A2L Consulting (formerly Animators at Law) offers litigation consulting services to law firms
and corporations worldwide. The firm's services include jury consulting, the consultative
design of litigation graphics and deployment of pre-trial technology, courtroom electronics
and the personnel to support that technology.

A2L headquarters is in Washington, DC and it has personnel or a presence in New York,


Miami, Houston, Chicago, Los Angeles and San Francisco. The firm's work routinely takes it
to those cities plus Boston, Newark, New Jersey, Wilmington, Delaware, Philadelphia,
Virginia, Maryland, Atlanta, Dallas, Phoenix and London, England. Since 1995, A2L
Consulting has worked with litigators from 100% of top law firms on more than 10,000 cases
with trillions of dollars cumulatively at stake.

A2L Consulting was recently voted Best Demonstrative Evidence Provider by the readers of
LegalTimes and a Best Demonstrative Evidence Provider by the readers of the National Law
Journal.

Litigation Graphics Visual Persuasion


Demonstratives for Litigation and ADR Corporate Presentations
Sophisticated PowerPoint Presentations Social Media Messaging
Document Call-outs Lobbying Visuals
Printed Large Format Boards
2D and 3D Animations
Physical Models

Jury Consulting E-Briefs


Mock Trials and Focus Groups Scanning and Coding
Witness Preparation Configure Database
Juror Questionnaires Citations and Hyperlinking
Jury Selection Digitally Convert Paper Briefs
Post-trial Interviews
Opening and Closing Statements

Trial Technology
Hot-Seat Personnel
Trial Software
Video Encoding
Document Coding
Equipment Rental and Setup
Video Synchronization
Provide DVD, Flash Drive, or iPad

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Thank you for downloading our latest e-book

Recent years have seen in-house counsel become more involved in litigation. Gone are the
days when in-house counsel would simply hire the top name in litigation and hope for the
best.

Today, in-house is deeply involved in determining strategy, managing budget, choosing


litigation support consultants and they often take a leadership role on the trial team.
However, since trials are relatively rare and not many in-house counsel were trial lawyers
themselves, how is in-house supposed to effectively lead in a litigation environment.

Enter this new book, The In-House Counsel Litigation Toolkit, a first of its kind for A2L
Consulting. We have published more than a dozen books over the last several years.
However, this book contains 50 hand-curated articles focused on litigation and the role of
modern in-house counsel.

I hope that you find the information in this book valuable, and I would welcome your
feedback. A2L has been working with major companies and law firms for twenty years, and
the lessons shared her combine knowledge accumulated over thousands of litigation
engagements.

Enjoy the book, and please get in touch when questions arise about mock trials, litigation
graphics presentations and other courtroom persuasion needs.

Sincerely,

Kenneth J. Lopez, J.D.


Founder and CEO
A2L CONSULTING
lopez@A2LC.com
www.A2LC.com

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Table of Contents
25 Things In-House Counsel Should Insist Outside Litigation Counsel Do........................ 1
In-House Counsel Should Make Outside Litigation Counsel Feel Safe ............................. 6
12 Alternative Fee Arrangements We Use and You Could Too......................................... 8
14 Tips for Delivering a Great Board Meeting Presentation .............................................11
10 Key Steps After: "I've Got a Case I Might Need Help With” .........................................14
Planning For Courtroom Persuasion? Use a Two-Track Trial Strategy ............................17
How to Structure Your Next Speech, Opening Statement or Presentation .......................19
9 Questions to Ask in Your Litigation Postmortem or Debrief ...........................................22
The 14 Most Preventable Trial Preparation Mistakes .......................................................24
Litigator & Litigation Consultant Value Added: A "Simple" Final Product ..........................27
7 Reasons In-House Counsel Should Want a Mock Trial .................................................30
6 Reasons The Opening Statement is The Most Important Part of a Case ......................32
The Top 5 Qualities of a Good Lawyer.............................................................................34
5 Questions to Ask in Voir Dire . . . Always ......................................................................37
5 Keys to Telling a Compelling Story in the Courtroom ....................................................39
7 Things You Never Want to Say in Court .......................................................................42
2 Metrics Showing Litigation Shifting to Midsize Law Firms .............................................44
16 PowerPoint Litigation Graphics You Won't Believe Are PowerPoint ............................48
The Top 14 Testimony Tips for Litigators and Expert Witnesses......................................57
24 Things to Know About The "New Normal" of The Legal Economy...............................65
12 Ways to Eliminate "But I Need Everything On That PowerPoint Slide" ........................68
In Trial Presentation - A Camel is a Horse Designed by Committee ................................71
15 Tips for Great Customer Service from the Restaurant Industry ...................................72
17 Tips for Great Preferred Vendor Programs .................................................................74
6 Studies That Support Litigation Graphics in Courtroom Presentations ..........................77
10 Ways Timely Payment Helps You Save Money On Litigation Consulting ....................80
What Do Trial Presentation Services Cost? .....................................................................83
12 Reasons Bullet Points Are Bad (in Trial Graphics or Anywhere) ................................84
What Does Litigation Animation Cost? .............................................................................91
In-House Counsel Hiring Methods for Litigation Counsel Are Surprising ..........................96
Witness Preparation: Hit or Myth? ...................................................................................98
10 Things Every Mock Jury Ever Has Said ....................................................................103
Poof! Seeing Litigation as a Business ............................................................................107

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Practice, Say Jury Consultants, is Why Movie Lawyers Perform So Well ......................109
What Does Using a Trial Technician or Hot-Seater Cost?..............................................112
Working in Parallel vs. Series with Trial Presentation Consultants .................................114
The Top 14 TED Talks for Lawyers and Litigators 2014.................................................116
10 Signs the Pressure is Getting to You and What to Do About It ..................................124
9 Things Outside Litigation Counsel Say About In-house Counsel.................................126
Font Matters - A Trial Graphics Consultant's Trick to Overcome Bias ............................129
Portray Your Client As a Hero in 17 Easy Storytelling Steps ..........................................132
5 Tips for Working Well As a Joint Defense Team .........................................................138
5 Signs of a Dysfunctional Trial Team (and What to Do About It)...................................140
12 Ways to SUCCESSFULLY Combine Oral and Visual Presentations .........................142
21 Ingenious Ways to Research Your Judge .................................................................148
5 Things Every Jury Needs From You ...........................................................................151
The 12 Worst PowerPoint Mistakes Litigators Make ......................................................154
Explaining the Value of Litigation Consulting to In-House Counsel ................................158
Like It or Not: Likeability Counts for Credibility in the Courtroom ....................................160
Sample One-Year Trial Prep Calendar for High Stakes Cases ......................................164

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25 Things In-House Counsel Should Insist


Outside Litigation Counsel Do
By Ken Lopez, Founder/CEO, A2L Consulting

The relationship between in-house counsel and outside


litigation counsel has changed dramatically over the last
20 years. Technology and the Internet have been the
driving forces for many of the changes.

Technology growth has forced outside litigation counsel


into a quasi-technology consultant role in the way they
deal with e-discovery and case management.
Technology has made litigation more complex as the
underlying subject matter of cases has become more
complex. The availability of information via the Internet
has made in-house counsel a more savvy shopper and a
better informed manager. Technology has surely changed the way outside litigation counsel
tries cases and has forced trial counsel to be trial-technology savvy. There are many more
examples of how the fast flow of information is altering the balance of power between in-
house and outside counsel, but you get the idea. Reflecting these changing times, the 25-
point list below offers useful best-practices that in-house counsel should be demanding from
outside litigation counsel.

1. Alternative fee arrangements. At A2L, we have all but left the billable hour behind
as a measurement of delivering value—mostly because it does not measure value at
all. In July of 2013, we wrote about the 12 different alternative fee arrangements we
use at A2L as a guide for anyone selling professional services. Not all clients want
AFAs but they probably should. There's no better way to align the value of services
delivered to the size of the problem solved.

2. Mock trials. As we wrote in 7 Reasons In-House Counsel Should Want a Mock Trial,
there are so many good reasons to conduct a mock trial and almost no reason,
except for budget, not to. Dollar for dollar, I think a mock trial is the single best
investment in-house counsel can make in trying to win a case. Since outside counsel
may be hesitant to request budget for it, it may very well be up to in-house counsel to
recommend it.

3. Story development. Although many great trial attorneys used the technique 20
years ago, the science of why storytelling helps persuade was not fully understood.
Today, it is recognized as essential for trial. See, Storytelling Proven to be
Scientifically More Persuasive. All trial counsel should be able to articulate a clear
story well before trial that succinctly explains the case and why your side should win.
See also, 14 Differences Between a Theme and a Story in Litigation and 5 Essential
Elements of Storytelling and Persuasion.

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4. A story that people care about. Not just any story will do. Trial counsel must
develop a compelling story that both judge and jury will care about. See:

1. Free webinar: Storytelling for Litigators

2. 5 Keys to Telling a Compelling Story in the Courtroom

3. Every Litigator Should Watch Scott Harrison Deliver This Presentation

4. Your Trial Presentation Must Answer: Why Are You Telling Me That?

5. Free download: Storytelling for Litigators E-Book 3rd Ed.

5. Open practice. In addition to a mock trial, good trial counsel will want to schedule
structured practice sessions and invite in-house counsel to attend. See 3 Ways to
Force Yourself to Practice Your Trial Presentation and Practice is a Crucial Piece of
the Storytelling Puzzle.

6. Accept coaching. In this era where the highest profile litigators only go to trial
rarely, using a coach, usually in the form of a litigation consultant is a best-practice.
These professionals spend most of their time preparing for trial and in the courtroom,
perhaps working on dozens of trials per year. See, Accepting Litigation Consulting is
the New Hurdle for Litigators and Working in Parallel vs. Series with Trial
Presentation Consultants.

7. Abandon the last-minute when it comes to trial. The era of the litigator who
swoops in at the last minute and tries a case, occasionally needing to be reminded of
the client's name, is largely over. In-house counsel must be prepared to
communicate the expectation that a case should be trial ready well before trial.
See, The 13 Biggest Reasons to Avoid Last-Minute Trial Preparation.

8. Use technology well. Litigators should be so well-practiced in their use of trial


technology that it should look seamless. Missteps in the use of technology destroy
credibility, and they must be anticipated and avoided. See:

1. 5 Tips for Displaying Documents Well at Trial [CVN Video]

2. 24 Mistakes That Make For a DeMONSTERative Evidence Nightmare

3. Will Being Folksy and Low-Tech Help You Win a Case?

4. 6 Tips for Effectively Using Video Depositions at Trial

5. 12 Ways to Avoid a Trial Technology Superbowl-style Courtroom Blackout

9. Use trial technicians well. There may come a time when trial counsel controls their
presentation just as on-air meteorologists do with a simple clicker, but we're not
there yet. Courtroom presentations are dynamic and unpredictable. If trial counsel is
to look like a professional, they must learn how to work with a trial technician well.
See:

1. Making Good Use of Trial Director & Demonstratives in an Arbitration

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2. Why Trial Tech ≠ Litigation Graphics

3. 11 Traits of Great Courtroom Trial Technicians

4. 5 Tips for Using TrialDirector and Trial Technicians Effectively

5. Download: Finding and using the best trial technicians

10. No more surprises. I used to have a competitor that would low-ball every bid, bill 3x
at trial and then write down their invoice by 10% when a post-trial dispute arose over
the invoice. Once one of the top brands in the industry, they now lay in shambles, not
surprisingly. We have always lived by a no-surprises model when it comes to pricing
and billing. It is reasonable to insist on the same from outside counsel and legal
consultants like us. See, 17 Tips for Great Preferred Vendor Programs.

11. Post-trial lessons-learned sessions. Elite organizations spend lots of time


planning and lots of time debriefing after the mission. Litigation should be no
different. See, 9 Questions to Ask in Your Litigation Postmortem or Debrief.

12. Be upfront about trial costs. To be fair, I've said this more than one way already,
but it is worth emphasizing. If your vendor or outside counsel can't tell you what it is
going to cost, how much experience do they really have? Very often, it is the job of
in-house counsel to make outside counsel comfortable spending what is needed to
win. Trust me, they're often afraid to ask. See, Learn How to Get Value in The New
Normal Legal Economy.

13. Proof they are staying current. How do you know your outside counsel is staying
current with modern best-practices? If they are trying cases just like they did 20
years ago, they are going to see diminishing returns. Insist on proof that they are
improving their game outside of simple CLEs and the like. See, 19 Ways in Which
the World Has Changed Since 1995.

14. Research your judge. No longer do we have to rely on vague tips from local
counsel. Outside counsel should understand what really makes a judge tick and
exploit that knowledge. Ask them what they know and push them to learn more.
See, 21 Ingenious Ways to Research Your Judge.

15. Anticipate non-legal implications. For litigators to really be trusted advisers, they
need to demonstrate that they understand that things said in a courtroom can have a
profound implication for the company, from reputation to stock price. Some day,
cameras will be allowed in all courtrooms, and this will only accelerate the need to
take a more global view of the client. Make sure your outside litigators understand
the big picture. See, 10 Web Videos Our Jury Consultants Say All Litigators Must
See.

16. Really prepare the witnesses. Whether expert or fact witnesses, all witnesses
should be professionally prepared. There is simply too much riding on their
testimony. Litigation consultants and jury consultants may be better positioned to do
this than lawyers at the firm. See:

1. Witness Preparation: Hit or Myth?

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2. The Top 14 Testimony Tips for Litigators and Expert Witnesses

3. Witness Preparation: The Most Important Part

4. 7 Things Expert Witnesses Should Never Say

5. 7 Smart Ways for Expert Witnesses to Give Better Testimony

17. Work well with others. Litigators must also be leaders, and they must set an
example for how to behave. They are representatives of the company and must
remember this whether in an elevator, at a restaurant or on a subway. See, 5 Tips for
Working Well As a Joint Defense Team, 10 Signs the Pressure is Getting to You and
What to Do About It, Download: Leadership for Lawyers.

18. Don't push boundaries. Whether ethical, legal or business boundaries, ask your
outside counsel not to get too close to any boundary. In recent years we have seen
such decisions bring down major law firms, and you don't want a scandal to land on
your doorstep.

19. Don't say "my client." Modern litigators should know how to personalize the
company and tell the company story in the best way possible. See, 7 Things You
Never Want to Say in Court.

20. Don't melt down. I've seen plenty of partners melt down at trial, and I have seen
plenty of partners sleep soundly on the eve of trial. A meltdown is usually a sign of
poor preparation, and it is most certainly the role of in-house counsel to ensure that
preparation is done early and done well. See, When a Good Trial Team Goes Bad:
The Psychology of Team Anxiety and 5 Signs of a Dysfunctional Trial Team (and
What to Do About It).

21. No condescension about what they know. Of course trial counsel knows more
about trying a case than in-house counsel. If they didn't, you wouldn't need them.
However, the best outside litigation counsel include in-house counsel in the process
of trial preparation and never talk down to the client.

22. Body language and appearance. Outside trial counsel should understand the
impact of body language and how best to appear in the courtroom. Even tie color
makes a difference. See, 7 Videos About Body Language Our Litigation Consultants
Recommend and Litigation Graphics, Psychology and Color Meaning.

23. Use litigation graphics well. Yes, we have written the book on this topic, and A2L
was once again just voted #1 demonstrative evidence consultants. This litigator-
authored article describes the state-of-the-art thinking surrounding litigation
graphics: How I Used Litigation Graphics as a Litigator and How You Could Too.

24. Likability. In the courtroom, it matters a great deal that people like you. Maker sure
that your outside counsel knows how to appeal to judge and jury. See, Like It or Not:
Likeability Counts for Credibility in the Courtroom and 5 Things Every Jury Needs
From You.

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25. Subscribe to this blog. Really, it may be the easiest (and certainly the cheapest)
way to know that your trial counsel is staying current with best practices. Here's a
free subscription that you can share.

In-house counsel, I can tell you that based on hundreds of conversations I have had over
the years, outside litigation counsel is scared to make you unhappy. This means they
hesitate to ask for budget for things that will help win the case. Part of your role has to be to
insist on supurb trial preparation as you have the most riding on the outcome. Help guide
outside counsel, and make them comfortable asking for the tools they need to win. You'll win
more cases if you do.

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In-House Counsel Should Make Outside


Litigation Counsel Feel Safe
By Ken Lopez, Founder/CEO, A2L Consulting

Earlier this week I published, 25 Things In-House Counsel Should Insist Outside Litigation
Counsel Do. I realized something important while writing that article and while participating
in follow-up discussions with readers and colleagues. It's an important realization as I think
recognition of it might just lead to better litigation results and money savings for in-house
counsel.

Here it is. Because of the current state of the relationship between most in-house counsel
and outside litigation counsel, outside counsel are not asking for budget for everything they
believe would help win a case. This is leading to short term savings and longer term major
expenses.

You see, outside litigation counsel really want to please in-house counsel. And why
shouldn't they? In-house counsel pays the bills, they ARE the client, and they represent the
holy grail—the hope of a longer and broader legal relationship that pays dividends for the
relationship/billing partner for years to come.

So, what's wrong with having a service provider try to please you? We could all use more of
that, right? Isn't that just good customer service?

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Here's the problem. Outside litigation counsel is, ideally, not acting as a mere service
provider. Rather, they are acting as, and please forgive the cliche, a trusted advisor.
Unfortunately, I think most outside litigation counsel feel like the balance between trusted
advisor status and mere service provider status has tipped a bit too far toward service
provider status in recent years.

When you are a service provider, your motivations are a bit different than when you are a
trusted advisor. As a service provider, your goal is to make the customer happy and
preserve the business relationship. You wouldn't want your doctor to only tell you what you
want to hear. You want them to tell you what you need to hear. The same is true for your
outside litigation counsel. But how can we expect outside litigation counsel to tell us the truth
if they don't feel safe doing so.

I think most outside litigation counsel are scared. They're scared of losing business. They're
scared of RFPs. They're scared of asking for what they honestly believe they need. And I
think it is negatively affecting litigation outcomes, and I think it is mostly up to in-house
counsel to solve this.

My mentor recently said, if you're not getting what you want from a relationship, your partner
is likely not experiencing you as safe. It's true in any relationship, of course. Translated for
litigation, if you're not getting the litigation outcomes you seek, it may be because outside
litigation counsel does not feel safe asking you for the tools they need.

So, if you are in an in-house counsel role, ask yourself, are my litigators truly comfortable
telling me, let alone asking for, what they need? Are they talking to me about mock trials,
litigation consultants, and litigation graphics created based on persuasion science rather
than the mere gut instinct of an inexpensive twenty-something graphic artist?

If they are not telling you that they need these things, it's likely either because they are
afraid to ask or because they don't know that they should be asking. Either way, it's probably
going to be up to you as in-house counsel to solve this problem, and my article from earlier
this week about the in-house/outside counsel relationship provides a good framework for
discussion.

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12 Alternative Fee Arrangements We Use


and You Could Too
By Ken Lopez, Founder/CEO, A2L Consulting

These days, alternative fee arrangements


(AFAs), agreed upon between major law
firms and their clients, have become
commonplace as part of the “new normal”
relationship between corporate America
and their law firms. The old days of the
billable hour are coming to an end, if they
haven’t already ended. Although some
commentators think AFAs are more
discussed than actually used, there’s no
question that they are here to stay.

The same can be said of the relationships


between law firms and vendors such as
litigation and trial consultants. At A2L
Consulting, we are pioneering the use of
AFAs in our dealings with law firms, and
both sides are very pleased.

We recently conducted a survey of people who downloaded some of our e-books and
asked: What is your biggest fear about using litigation consultants? Of five options, fully 62
percent said they were concerned about the price for litigation consultants’ services.

We are listening. In 2008, we pioneered fixed price arrangements for the preparation of trial
graphics. It was a revolutionary approach that won A2L a lot of loyal customers who prefer
predictability over uncertainty. In 2010, we announced fixed pricing for trial
technician/courtroom technology support. In 2012, we announced fixed pricing for mock
trials and some other jury consulting services.

These fixed price arrangements are just one form of AFA’s that we use. Why do this?
Actually, we prefer AFAs. I think they are better for our clients and better for us.

Our clients in large law firms consistently tell us that they prefer alternative fee
arrangements, because they only have to have one budget conversation with their corporate
client, as opposed to the old way of an easy one up front and a hard one after trial, and
because it is a “set it and forget it” system that allows the lawyers to focus on getting the
work done. We like them as well, because they allow us to get paid on a timely and
predictable basis.

I think a fixed price alternative fee arrangement is a pretty good form of AFA, but it's just not
perfect for every case. Sometimes, things are just too unpredictable weeks before trial. So
we have created a number of other pricing strategies and discounting methods that have

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also worked well for our clients. Since our litigation consulting services are similar to the
"consulting" that a law firm provides to a client, each of these alternative fee arrangement
methods is applicable for law firms as well.

1. Fixed Price: The key to a successful fixed price engagement is agreement on a scope of
work. In agreeing to fix price, we normally make arrangements to have payments arrive at
predictable intervals. It's a win-win for all involved unless the work departs significantly
(upward or downward) from the scope.

2. Capped Fees: Keeping in mind the necessity of an agreed-to scope, capped fees allow a
bit of flexibility by providing a not-to-exceed level of billing. This approach can be beneficial
when both sides know there’s a good degree of unpredictability in how the trial will go.

3. Billable Hour + Floor and Ceiling: This approach keeps the traditional billable hour as
the base but protects both us and the client in case the volume of the work proves to be
greater or smaller than anticipated.

4. Blended Rate: We have a blended rate for each of our three service areas (jury/trial
consulting,litigation graphics and courtroom technology support) and even a blended rate for
any combination of these services. This approach allows for easier review of invoices since
it is just naturally easier to evaluate a bill based on a number of hours rather than sort out
the increased complexity of how various rates were balanced together.

5. Days Rates/Week Rates: These are especially appropriate for our on-site trial services
like on-site preparation of trial graphics or trial technology support.

6. Success Fees: Increasingly the litigation support world is seeing the use of success fees
or incentive bonuses being used by clients looking to align interests with their key vendors.
Agreements of this type should be crafted with the corporate client and not the law firm,
since fee splitting is not allowed between law firms and legal support vendors that work with
them.

7. Holdbacks: Similar to success fees, holdbacks are usually constructed to allow costs to
be covered during the litigation and then a final amount to be paid after the engagement is
complete. This amount may be voluntary, at the client’s discretion.

8. Firmwide Volume Discounting: For some large law firms, we offer across the board
discounts up to 25 percent that are based on ongoing sales volume. After a threshold is
reached in the first year or after it becomes obvious it will be reached, subsequent
engagements are discounted so long as the volume levels are maintained. If you are a large
law firm or corporation engaged in frequent litigation, this is a no-brainer.

9. Firmwide Marketing Discounting: For law firms that cannot achieve volume levels or
those that want to avail themselves of discounts out of the gate, we offer a discount of up to
20 percent in exchange for helping us to market to their litigation counsel internally.

10. Litigation Financing: Relationships with litigation financing firms allow us to work at a
reduced rate since they can be a frequent source of trial consulting work for A2L and
because we refer them clients regularly.

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11. Hard-line Estimates: If you have an estimate you can believe in, it can be nearly as
good as the arrangements listed above – except when it’s not. Sometimes, through a
combination of lowball estimates and trial teams who underestimate the scope of work, a
hard estimate proves quite inaccurate, to the detriment of the relationship between the law
firm, the client and the trial consulting firm. However, we have an 18-year history of
providing firm estimates and know how to manage to them.

12. Settlement Insurance is a term we use to describe a discounting methodology that


applies in cases like fixed price alternative fee arrangements. We agree to discount
proportionally if a case settles rather than enforce a fixed fee.

In the environment of the “new normal,” law firms are proposing AFAs to their corporate
clients, either because they want to or because they need to. Either way, they understand
the importance of AFAs and their economic value. When it comes to paying the costs of a
litigation consulting firm, they would like to benefit from AFAs as a client, and we think we
can benefit as a vendor. Why shouldn’t people be able to agree on price and value --
whether it is for jury consulting, litigation graphics, trial technicians, or legal services? It's just
good business.

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14 Tips for Delivering a Great Board


Meeting Presentation
By Ken Lopez, Founder/CEO, A2L Consulting

Many of us in the legal industry sit on non-profit, educational


or corporate boards. Inevitably, presentations are made by
staff, advisers and fellow board members. 75 percent of the
time, they use PowerPoint, and 99 percent of the time they
make classic and easily avoidable mistakes when using this
program.

PowerPoint is a great tool. A paint brush is a great tool.


However, in the wrong hands, no matter how well intentioned,
misuse of either tool can yield horrible outcomes. When using
PowerPoint, these outcomes may not be as devastating as
the wretched Spanish fresco restoration pictured to the right,
but they are unnecessarily neglectful.

At A2L Consulting, we not only help trial lawyers prepare


sophisticated trial presentations, we also help lawyers and
non-lawyers prepare presentations outside of the courtroom. Sometimes these
presentations are for lobbying or advocacy efforts and sometimes they are for CLE's or
board presentations. I'll even let you in on a secret - if our schedule permits it, we often
prepare presentations for our clients outside the courtroom gratis. We do this because we
want our clients to look good no matter where they present.

In the case of a board meeting, there are typically two types of presentations. One is
informational, and the other is inspirational or persuasive. Of course, you'll likely have to
provide information to be persuasive. In either case, below are 14 easy-to-follow rules for
preparing and delivering a great board meeting presentation:

1. Avoid Bullet Points Entirely: Yes, entirely. In most instances, use of bullets in a
presentation will harmful. Since people read faster than you can speak, your
audience will read the bulleted text and then ignore what you say. Our article with 12
reasons not to use bullet points includes 74 workarounds and alternative
approaches.

2. Follow a Format: A well-crafted presentation follows a format that is itself well-


crafted. I share two approaches that I use frequently in the article How to Structure
Your Next Speech, Opening Statement or Presentation.

3. Prepare 30:1: I believe that if you want to deliver a great presentation, you will need
to invest 30 times the amount of time allocated for your presentation preparing for
your presentation. For example, if you have a 20-minute board presentation coming
up, you should invest 10 hours preparing for it. In the article 21 Steps I Took for
Great Public Speaking Results, I outlined the 90-day method I followed for a 45-

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minute conference presentation. I'm giving a commencement address in May (five
months from this writing), and I have already started preparing for that and even
engaged a friend to coach me.

4. Never Read Your Slides: If you read what is written on your slides, your audience
will remember less than if you had either presented only orally or just shown slides.
See our articles covering the redundancy effect and the split-attention effect.

5. Mix Your Media: There is good science that establishes and quantifies the high
value of using a visual presentation. However, there is also good science that says
that you need to use a visual presentation in a certain way to get real value. In
general, I recommend using a few dynamic slides and having a handout or poster-
board as part of a presentation strategy. This article, equally applicable for the
boardroom, reiterates many of these points and offers many reasons, grounded in
science, for mixing your media up in unexpected ways: 6 Trial Presentation Errors
Lawyers Can Easily Avoid.

6. State Your Intention - Inform or Inspire: In the beginning of a presentation, state


whether your intention is to simply report data or whether you want to ask the board
for a specific action. Doing so will help you achieve your intention as people will not
be waiting for a sales pitch in a report-only presentation, and your audience will not
be surprised by your 'ask' in a persuasive presentation if it comes only at the end.

7. Download these books for free: A2L Consulting currently has 17 e-books
circulating on a variety of litigation and presentation topics. For board presentations, I
recommend downloading these three free books:

1. How to Deliver a Great Presentation

2. How to Build Persuasive Visual Presentations

3. Storytelling for Litigators: Building a Great Narrative

8. Read these presentation-focused articles: Of all of the hundreds of presentation-


focused articles on our site, I think you will get the most value out of these 10 articles
listed below when preparing a board presentation (many are linked throughout this
article as well):

1. 21 Steps I Took For Great Public Speaking Results

2. The 12 Worst PowerPoint Mistakes Litigators Make

3. 3 Ways to Force Yourself to Practice Your Trial Presentation

4. Practice, Say Jury Consultants, is Why Movie Lawyers Perform So Well

5. How to Structure Your Next Speech, Opening Statement or Presentation

6. 7 Ways to Draft a Better Opening Statement

7. Presentation Graphics: Why The President Is Better Than You

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8. 16 Trial Presentation Tips You Can Learn from Hollywood

9. 12 Reasons Bullet Points Are Bad (in Trial Graphics or Anywhere)

10. 6 Trial Presentation Errors Lawyers Can Easily Avoid

9. One concept per slide: Steve Jobs was a master of this technique. He would simply
show a word or a picture and talk about it. You needn't be so avant-garde in your
approach, but I do think you should keep your thoughts to one per slide, especially in
a persuasive presentation.

10. Learn to Use the B-key: Most people don't know that when using a presentation
program, hitting the "B" key will black out the screen. Hitting it again will instantly
bring it back on. Unless leaving up a slide that is not directly related to the point you
are making serves some purpose, hit the B-key when speaking to focus the attention
on what you are saying.

11. Own the Technology: The technology you will use to present works as expected
about half the time in my experience. To the extent that you can, control all of the
technology in the presentation room to avoid a presentation technology meltdown.

12. Tell a Story: There is real value in using stories as a persuasion tool. We're
presenting a free webinar on this topic next month. If you are subscribed to this blog,
you will see a notice about it soon. In the meantime, here is an article and a video
about one presentation that features A+ storytelling.

13. Do you Really Need a Visual Presentation? Most people prefer to receive
information visually. With that said, not every presentation will benefit from a visual
presentation, particularly if it is not done well. You must ask yourself whether you
need a presentation to fulfill your intended purpose and whether you honestly intend
to put in the work required to do it well. Sometimes, it is best to avoid a visual
presentation altogether.

14. Seek Help Early Not Late: As I mentioned earlier, we often prepare presentations
for use outside the courtroom at A2L Consulting. We even prepare such
presentations gratis for our clients when we can. The one thing I can say about every
time that we have helped is that the earlier you start, the better the presentation.
There is simply no fast-forward button on the creative process. Get help, but get it
early.

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10 Key Steps After: "I've Got a Case I


Might Need Help With”
by Ken Lopez, Founder & CEO, A2L Consulting

"I've got a case I might need some help with." That's how it usually starts when someone,
usually a first or second chair litigator, reaches out to me at A2L Consulting.

What happens next is not something that I have discussed publicly a great deal. But there’s
no reason not to. It actually represents a well-honed process that we have developed over
the last 18 years that helps trial teams try cases more effectively. Our process is unique and
special.

I want to share an overview of that process, because when you understand it, you
can appreciate how we, as jury & trial consultants and as trial graphics experts, help many
of the top trial lawyers in the nation prepare for trial.

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Step 1: We request as many documents as will be helpful and relevant – pleadings, briefs
(both sides), outlines, proof charts, key pieces of evidence, bad docs -- anything that has
been developed by the trial team that will be useful in proving their case.

Step 2: We conduct an initial brainstorming session, sometimes using mind-mapping tools.


Our goal is to understand the case and appreciate its basic strengths and weaknesses. This
helps us craft a recommendation about how we should use mock trials and demonstrative
evidence in our trial preparation.

Step 3: We meet with the trial team to hear the case from the team’s perspective. Very often
we learn at this meeting that certain points warrant more emphasis than others in the trial
presentation. We also find out what the key strengths and weakness of our client’s case
may be, as opposed to what they may have said in their briefs. Litigators will often tell us
that this step was critical to their success as it was the first time they had to try to convince
someone of the merits of the case, and we helped them do this much earlier than they
would have naturally done.

Step 4: We return to our office and form a team generally comprising between three and 10
people. The team will be made up of some combination of Ph.D. jury consultants, former
litigators, information designers, trial technologists, and others. Then we organize a formal
brainstorming session that includes members of this team as well as others from A2L who
have no familiarity with the case. At this point, we present quickly both sides of the case and
highlight key strengths and weaknesses. From this effort we gather common-sense
reactions and learn more about the emotional triggers in the case.

Step 5: We brainstorm an initial trial graphics list and start to make decisions about what
might work and what might not. We often share this list with counsel at this early stage to
keep costs down and to get their feedback. Given the attorneys’ extensive familiarity with
the case, our initial exhibit list will also prompt them to add other litigation graphics, possibly
to delete some graphics, and to come up with other creative ideas at this point.

Step 6: We share our thoughts with the team and get some feedback on
which demonstrative evidence and litigation graphics to move forward with.

Step 7: We prepare the initial litigation graphics as a sort of test run. We run them by the
trial team to make sure that we are on the right track and haven’t missed anything important.
At this stage, we are usually preparing the basic litigation graphics like litigation
timelines, players charts, document call-outs, checklist exhibits, etc, but we might also
produce physical scale models or courtroom animations.

Step 8: We test our exhibits in a mock setting of some sort. This can be a full mock trial with
“jurors,” or it can be a less complicated version like our Micro-Mock format.

Step 9: We refine and retest our approach and our litigation graphics based in part on the
results of the mock event.

Step 10: We sort out and execute our courtroom technology plan. Pretty soon after this
step, we will be ready for trial.

So, as you can see, what seems like a complex process from the outside actually follows a
well-defined set of steps designed to produce the best possible result.

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Sometimes we execute this process over the course of two years. Sometimes we do a more
accelerated version of this process in two weeks. When executed with a great trial team, this
process will produce order out of chaos and help litigators tell a simple and persuasive trial
story - proof of a job well done.

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Planning For Courtroom Persuasion? Use


a Two-Track Trial Strategy
by Ryan H. Flax, Esq., Managing Director, Litigation Consulting, A2L Consulting

How early in the litigation process should you think


about how a jury will react to your case, your client,
or you? When should you begin to develop your case
themes and storylines? Which is more important to
your chances of winning a trial – having a compelling
story to tell, or bringing in solid evidence under the
law? Here’s an easy one: When you get to the
appeal, would you rather be writing the red or blue
brief (hint: it’s the red one for respondents)?

What I encourage in this article will seem elementary


to the best litigators, but I’m writing from experience
when I say that many trial attorneys fail to properly
develop the necessary two-track strategy for their
case – and lose because of it.

The Two-Track Strategy

What begins at the early stages of case preparation as a single track, which includes
general case building, wrapping one’s mind around the full scope of the relevant law, filling
in the useful facts where they are needed and identifying the harmful facts, must quickly
change to a two-track strategy directed towards both a jury presentation and a solid
evidentiary record. (Although this article is focused on courtroom persuasion in jury trials, it
also applies well to a bench trial to a judge, an arbitration to a panel, or a mediation before a
mediator, which are all forums with an audience of human beings.)

These two tracks clearly do not occupy the same route, but both are essential to winning.

The “Law Track”

Most attorneys, especially those closer to their law school graduation than to retirement, are
more familiar with one of these two tracks than the other -- the creation of a solid evidentiary
record that is focused on a winning defense on appeal. We’ll call this track the “law track.”
That’s because it’s the track that is most heavily burdened with law and facts, which is what
we are taught in law school: we were tasked daily with reading and briefing cases and
statutes and being prepared to recite legal requirements when called upon by our
professors.

Most attorneys approach their cases in this same way – by identifying what the court of last
resort has to say about the relevant law, i.e., what must be proved for them to win in the
eyes of the court, ordinarily by fulfilling all the “prongs” of the case law. Then these attorneys
slowly build up their “garden of weeds” around the case, based on these issues.

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These same attorneys focus on every fact they can soak up to decide where it fits into their
legal position, they build preemptive defenses relating to any “bad” facts, and they search
for hidden facts to support alternative theories of their case. This is very important because
it’s the foundation of any case. But it’s not the only or even most important part of building a
case for trial. Moreover, as the “garden of weeds” grows and grows as discovery develops,
it’s often very difficult for even the sharpest attorneys to extricate themselves from the
weeds and see the bigger picture of the case they’re about to try.

So, in addition to the “law track,” what else should a trial lawyer consider?

The Persuasion Track

The other of the two tracks, and the one that many litigators tend to overlook, is building a
case to satisfy a jury (or judge in the event of a bench trial) in a “real life,” non-legal sense. I
call this the “persuasion track.”

After all, trying a case in court is something like making an extended elevator pitch for your
client, and you need to make sure that the jury wants to hear it and that the jurors will be
affected by your pitch in the way you intend.

Often, a litigator will spend too little time, or none at all, on this courtroom persuasion track.
Most litigation teams tend to wait until the last minute before trial (often in the war room
outside the courthouse) to really put their story together in a way that will be persuasive to
jurors.

I have found that during trials (and mock trials), juries tend to find relatively few facts very
interesting and “important” and that they then base the entirety of their decisions in the jury
room on those few facts. There is a well-known psychological phenomenon
called confirmation bias, which is the tendency to interpret new evidence as confirmation of
one’s existing beliefs or theories. After observing many mock trial exercises and seeing the
results of dozens of jury trials, I have concluded that most juries tend to decide the outcome
of a case in the first few minutes of opening statements and then use facts that fit their
version of the case as reasoning in deliberations (the strongest or loudest or pushiest jurors
typically triumphing in these deliberations). Attorneys need to recognize this and to develop
their trial story around the key facts onto which jurors will tend to latch.

If you don’t win at trial, you’ve got the short end of the stick when you head to post-trial
arguments/motions and appeal. You must carefully develop your case along the persuasion
track to plan to be successful on the second, law track. The question now is, how is this
done? That will be the subject of my next article.

*This article updates a 2012 article and lays the groundwork for a more detailed explanation
of the two-track strategy in subsequent articles.

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How to Structure Your Next Speech,


Opening Statement or Presentation
by Ken Lopez, Founder/CEO, A2L Consulting

I frequently help lawyers craft presentations – whether it’s the


opening statement of a litigator, a pitch presentation for a law
firm, or a seminar presentation for a corporate lawyer. And I too
am often called upon to speak at events or even off the cuff to a
group.

After a good bit of trial and error, I have found two nearly
foolproof ways of organizing any of these talks that I use almost
invariably, whatever the context may be.

The great thing about these models is that you can use them in an off-the-cuff speech just
as well as you can in a highly scripted presentation. Whether it's the courtroom or your kid's
school, these models work wonders. You will come off as inspiring, not just informative. You
will appear confident. You will also be seen as following modern presentation styles – the
spoken equivalent of using an electronic presentation versus using transparent overhead
slides.

To understand these new approaches, which have become common in TED Talks, on the
professional speaking circuit, and among A2L’s clients, you need to understand the old
format and why it is a recipe for audience disconnection and boredom. It goes something
like this:

"Hi, I'm Ken Lopez. Thanks for having me here this morning. It's a real pleasure to speak to
a group like you.

I founded A2L Consulting in 1995, and today I am going to talk to you about litigation
consulting. If you heed my message about conducting mock trials, using litigation graphics
and relying on trial technicians in court, you are going to be at the top of your game in the
modern courtroom."

Okay, it’s accurate, but it’s flat. And it gets worse. The agenda slide comes up. Ugh.
The parade of bullet points starts marching across the screen. Ugh again.

Compare this with the following approach. These will be the first words you hear from me:

"Litigation consulting is a process that helps people like you, the world's best
communicators, persuade even more effectively. For your must-win cases, it is a must-do
and includes a three-stage system of structured practice including mock trials,
the consultative creation of litigation graphics to bring your trial story alive, and flawless
courtroom document and electronics handling by trial technicians who make you look like a
star. Your judge and jury will reward your fine preparation.

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I'm Ken Lopez, and I'm the Founder/CEO of A2L Consulting, the world's best litigation
consulting firm."

Delivered the right way, with the right pauses and the right tone, version two should have left
you feeling something entirely different than version one. It should have left you feeling. And
that's no accident.

I'm using a format that I call BELIEF - ACTION - BENEFIT. I learned it from a professional
speech coach many years ago. Essentially, it goes like this:

I believe ____, I think you should do _____, and if you do, the benefit will be _____. Then
introduce yourself. Then go into detail about what you believe, what actions you want your
audience to take and how they will benefit by doing so. Finally, repeat your initial belief -
action - benefit statement.

This process needs to be modified to suit your situation. What a lawyer believes is not really
relevant to an opening statement, so the belief - action - benefit approach needs to be
couched a bit differently -- more like "Plaintiffs, self-described patent trolls, are attempting to
wrongfully extort money from my client. You have a chance to make this right. If you do,
you'll be standing up for small business and all that is just and right."

One well-known speaker who offers a similar format is Simon Sinek. He points to the golden
circle of communication that follows a pattern of WHY - HOW - WHAT, whereas most
people communicate the opposite way WHAT - HOW - WHY, which is exactly what I used in
my first uninspiring example. Look at Simon's now legendary TEDx Talk:

I think Simon's format is extraordinary and pretty similar to BELIEF - ACTION - BENEFIT. I
tend to weave both formats together when developing a story for trial, but when I am
speaking off the cuff, I just find BELIEF - ACTION - BENEFIT to be a bit easier to
remember. However you look at it, I bet this is not the presentation you would have given a
year ago, or even a week ago.

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Here's a chart that will help you visualize both approaches. Remember, most people,
businesses and organizations communicate from the outside in. But to inspire rather than
simply inform, communicate from the inside out.

Below are some additional articles and resources that you can find on the A2L
Consulting site about storytelling, opening statements, making great presentations
and giving a memorable and inspiring speech:

• Free Download: Storytelling for Litigators

• 10 Great TED Talks for Lawyers

• Great tools and methods for drafting an opening statement

• Why the opening statement is so important

• Great presentation techniques from Barack Obama

• 12 Reasons to Never Use Bullet Points and 74 Ways to Overcome Them!

• Practice - it's why movie lawyers look prepared

• Presentation tips lawyers can learn from the movies

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9 Questions to Ask in Your Litigation


Postmortem or Debrief
by Ken Lopez, Founder/CEO, A2L Consulting

After almost all of our medium


and large engagements, I do
something that is probably the
single most important thing I do
as CEO: I take A2L's clients to
lunch.

It's not the lunch that counts,


although it is appreciated. It’s the
discussion that matters. I
consider this discussion to be a
great opportunity for a debrief or
postmortem.

Since the trusted-adviser relationship of litigation consultant to litigator is similar to that of


litigator to in-house counsel, I think this practice is one most lawyers can use too.

Of course, this approach is not unique to the legal industry. The debrief or postmortem has
been used in the movie industry for decades. It’s frequently used in government settings and
is often used by the military. As a Green Beret friend of mine says, after a mission it’s
important to ask, “What almost got us killed today?”

I have done these debriefings more than 100 times in the past two decades, and I learn
something new every single time. It’s a simple exercise but not an easy one. To help make it
a bit easier, I always bring another member of my team and we hold ourselves to one critical
standard that makes this lunch work well: we never get even a bit defensive. This lack of
defensiveness puts our clients at ease.

Here are the questions I usually ask, in this order.

1. Why I engage in this exercise: This is not a question I ask them. Rather, it is
something I tell them, and I think it is essential to set the stage. I do these lunches in
order to improve my company’s delivery and service and to ensure that we are giving
our clients what they need and that we are adapting to their needs rather than the
other way around.

2. Have you worked with folks like us before?: In many cases, I will be meeting the
client for the first time, and I like to understand how familiar with litigation
consultants they are. It also helps set a baseline. If you were asking this of your
client, you might want to know how other law firms would tackle the client’s problem.

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3. What did we do well?: I find that if we do not discuss the positive first, the negative
is too hard to say, or it is too hard to say positive things after diving into the negative.

4. What can we do better?: They don't usually believe I am serious about this. So I
use some of the information they have shared about competitors to ask, “Did we do it
better than XYZ?” “There is always something that can be improved; what is that
one thing here?”

5. Did we find the right balance of giving advice and taking direction? This is a
very sensitive area in our line of work. We have written about it many times
(see Working in Parallel vs. Series with Trial Presentation Consultants). However, for
a successful engagement, we need to get this right.

6. If you were in my shoes, what would you do? Most of the time I hear, "just keep
doing what you are doing." But sometimes, I get some real nuggets of wisdom from
people who want us to be getting better and better for both of our sakes.

7. What is the best way for us to say in touch? We have a large number of ways
that we stay in touch with clients, from our blog to social media. I am always trying to
match our ability to stay in touch to the customer's style. Some say "sign me up for
the blog," while others say take me to lunch once a year or so, and I am happy to do
either.

8. Net Promoter Score. Like many of my peers, we use some variation of the Net
Promoter scoring system to measure how our clients are feeling about us.
Specifically, we ask: "How likely is it that you would recommend [your company] to a
friend or colleague on a scale of 1-10?"

9. Anyone you think I should meet? If your clients replies to you with a Net Promoter
score of 7-10, you can ask for referrals, otherwise I think you have some work to do.

Wonder if this approach works and is appreciated by clients? I had one of my favorite clients
reply to the Net Promoter Score question with a "5" which he then raised to a "7" because in
his words, we took the time to have this conversation with him and no one else ever had.

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The 14 Most Preventable Trial


Preparation Mistakes
by Ken Lopez, Founder/CEO, A2L Consulting

Compared with even the largest law firms, we go to


trial a lot. After all, even the busiest litigators in major
firms try at most 30 cases in their lifetimes. We
consult on many more cases than that in a year.
Indeed, we have spent 20 years going to trial, and
our clients are mostly major law firms that are
working on very high-stakes cases.

This unique perspective on how litigators conduct


trial preparation for cases has given us enough best
practices to fill this blog for a lifetime. No two
litigators are quite alike. From the trial attorney who
knows his case perfectly months in advance to the
one who only learns the case a couple of days
before trial, there is no one right way to do things.

However, it is easy to make fundamental mistakes when preparing for trial. After all, unless
you have worked in a prosecutors' office or have cut your teeth at a smaller firm, the
chances are that trial is a rare event for you.

Here are 14 mistakes we have seen in trial prep that are completely and easily preventable.

1. Where's the story? As more and more science emerges about the proven value
of storytelling as a persuasion device, it is critical that your case have a story. Many
teams arrive at our doorstep with no story in place at all, so we craft one for them
through mock jury work and other exercises like aMicro-Mock.

2. Where's the meaning? In addition to telling a story, you have to be prepared to tell
jurors why they should care about your client and the case. If you can’t do that, don’t
expect a good result.

3. Being penny-wise and pound-foolish: This old phrase means, of course, that one
is focused on small costs, not on the ultimate result. Let’s say you or the client
chooses hotel accommodations that are five miles away from the courthouse to save
money, or that you adopt a software solution that isn’t tailored to your needs because
it’s cheaper. These choices don’t help in the long run.

4. Using paralegals or associates as trial technicians: It's not fair to these good
people who support litigation partners to ask them to run software at trial that they
have not had adequate training and experience with. We had a recent case where a

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law firm attempted to use an under-experienced person to handle trial presentation
and lived to regret it. They, the judge and their jury waited in silence for ten minutes
during opening statements for the technology to work. As our happy (and winning)
client said, "you don't get a second chance to make a first impression." I couldn't
agree more.

5. Going with the low estimate on graphics: As one client said to me recently after a
competitor of ours was brought into a case on a low estimate and then dismissed for
performance issues, "it was a false economy." If a consultant makes your trial
preparation more difficult, or even just less easy, that always costs your client hard
dollars. Explaining this value to in-house counsel is critical.

6. There's last minute, and then there’s really last minute: Often people think a
case will settle and they put off trial preparation, only to find that the settlement didn’t
occur. Unfortunately, trial preparation is just one of those things that takes time, and
there really is no fast-forward button. Put off trial prep to keep the client bill down in
the near time, and you will likely be the one getting blamed for a bad trial result in the
end.

7. Insufficient practice: We have published some very popular articles on the subject
of practice. From how actors prepare to how professional athletes practice, there are
countless examples of the benefits of good practice. One estimate for great
presentations suggests that to be really effective, you must devote and an amount of
time to practicing equal to at least thirty times the length of your presentation.

8. Using PowerPoint amateurishly: I used to race cars a bit, and I noticed on the
track that there is a surprisingly wide gap between adequate and great drivers. It
shows up on a stopwatch of course, but I would see it more in the mistakes people
made. Preparing litigation graphics on your own is quite similar. Almost all of us
know how to drive a car and even drive fast, but very few people can consistently
make the right choices on the track. Similarly, almost anyone can prepare a slide in
PowerPoint, but making the right choices to win over your jury is much more difficult.

9. Failing to survey the courtroom in advance: Just as a professional athlete will


visit a new stadium or arena in advance, you should visit the courtroom wll before the
trial begins. Often litigators learn too late that a courtroom is too small for a standard
projector or that a timeline they want to use has no place in a particular courtroom
layout.

10. Failure to role play: Like an actor who tries to practice alone, an attorney must work
with experts, assist in witness preparation and conduct drills of their opening and
closing statements.

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11. Failure to test graphics in advance: I remain astounded that mock trials are
conducted without litigation graphics being tested. You don’t want to find out during
the trial that your graphics or your equipment are incompatible with the courtroom
setup or are ineffective. As any qualified jury expert will tell you juries rely on more
on what they see than what they hear, roughly by a factor of 2:1.

12. Failure to understand your judge: There are many good ways to research a judge,
some of which we have detailed in a popular article. You simply must understand
how he or she decides things. In the court nearest me, there are judges who will not
tolerate trial technology of any sort, and there are judges who get annoyed when you
don't use it.

13. Losing it during trial preparation: Sometimes even great trial teams go bad, but
the single worst thing that can go wrong is when the leader loses his or her cool
close to trial when anxiety is at its highest.

14. Failing to brainstorm what could go wrong: Plan for the worst and expect the
best. This should be just as true for pre-trial motions as it is for trial technology.

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Litigator & Litigation Consultant Value


Added: A "Simple" Final Product
By Thomas F. Carlucci, Partner, Foley & Lardner LLP
John E. Turlais, Senior Counsel, Foley & Lardner LLP
Ryan H. Flax, Managing Director, Litigation Consulting, A2L Consulting

There is a certain irony in providing high-level litigation


and litigation consulting services. Namely, if we, as
litigators and litigation consultants, do our jobs correctly,
the end product – whether it be a presentation to a jury
or to the government – should be simple.

For this reason, it can be difficult for some clients to


appreciate the value of the process required to create
that end product, even when that end product serves the
ultimate goal of a trial win or a favorable settlement. A
simple end product, however, most often signifies a
deliberate, detailed, and thoughtful process.

Foley & Lardner LLP and A2L Consulting recently collaborated on a project relating to an
elaborate fraud carried out through numerous, complex transactions. The fraud was
executed over many years and related to dozens of contracts and hundreds of thousands of
pages of documents. Complicating matters further, the case proceeded on parallel litigation
tracks, with civil claims being pursued by numerous sophisticated entities, while the U.S.
Government investigated criminal charges. From all this, a presentation had to be prepared
boiling down the complexities and complications to a simple, straight-forward, and
persuasive position.

Crafting a winning litigation presentation, including the accompanying litigation graphics, can
be analogized to writing a song. Take most anything the Beatles ever wrote, for example.
Once you have heard the song, it seems simple – so simple, in fact, that you might proclaim:
“I could do that, I could write a song.” Until you actually try doing it.

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The Beatles created world-changing art, and they made it look easy. What winning
litigation teams and litigation consultants strive to do is similar in that, to achieve their goals,
they must take complex fact patterns and legal positions and make them both easy to
understand and persuasive. They must make the case look easy.

Simplify the complex is the first rule in developing both a litigation narrative and the
litigation graphics that elucidate it. Unlike the trial attorneys or line prosecutors, a jury has
not “lived” with a case for many years. Nor, for that matter, do government attorneys high in
the chain-of-command necessarily have the same deep understanding of the facts and
intricacies of a case as do their investigators or line prosecutors. Dumping all of the facts on
the table in the hope that the audience will latch on to a winning argument almost invariably
leads to another result – confusion and, ultimately, failure. The key is to present the
evidence and information in a manner that can be easily digested by those who, based on
limited time and/or limited exposure to the case, want and need to see the big picture.

Making the complex simple, however, takes time, creativity, and hard work. As Blaise
Pascal (French mathematician, physicist, inventor, writer, and philosopher) famously said, “I
would have written a shorter letter, but I ran out of time.” (often also-attributed to Mark
Twain and Abraham Lincoln). But it is through this process that value is generated.

Ideally, and when a litigation team employs a


litigation consulting and litigation graphics
firm, the process involves a bit of a witches’
brew. A lot of facts, ideas, theories, and
storylines get thrown into the pot, and the
attorneys, litigation consultants, and litigation
artists must work together to explore and
decide what facts fit and which story lines are
most persuasive. The process is rarely
straightforward and smooth, and it involves
occasionally wandering down dead ends to
find the right path. But this process is
necessary to chip away at marginal,
unnecessary, and/or potentially distracting and detracting portions of the case.

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The team of litigators must deal with thousands of discrete and related facts, sometimes
millions of pages of documents, and, often, multiple interested parties forwarding their own
versions of the case to the same target audiences. The litigators must figure out how to
refine the mountains of information into a neat and compact outline of evidence that tells a
compelling narrative. The litigation consultants and graphics firm must then take the
evidence that the attorneys believe most important, understand the narrative forwarded by
the trial team, and push the attorneys to further hone and sharpen the presentation of their
case. The graphics must be developed with equal precision so that a narrative emerges
from the slides that not only emphasizes the key evidence, but also provides simple and
persuasive themes.

At the end of the process, the team is left with a streamlined and seemingly simple
presentation that the audience can readily understand and, more importantly, be compelled
to agree with on some level.This streamlined and simple end-product, however, is often all
the client sees as well. The work that goes on behind the scenes – the effort and expense
needed to develop the themes, to frame the evidence, and to refine the message to its basic
core – constitutes the majority of the work that goes into the case. When done correctly, it
should look easy, as if anyone could have done it. Most importantly, clients should
recognize that this is precisely the value added by their litigators and litigation consultants.

In simplicity, there is power. Give the right people the power to create simplicity, and you,
as client, will get astonishing results (that look easy).

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7 Reasons In-House Counsel Should


Want a Mock Trial
by Laurie R. Kuslansky, Ph.D., Expert Jury Consultant

Times have changed. No longer will in-house


counsel approve every request outside counsel
makes related to trial. Budgets are demanded and
negotiated. Litigation team structures are
scrutinized. Expenses of outside consultants are
doubly scrutinized.

So, it is not uncommon for outside litigation counsel


to propose that a mock trial is conducted only to
have in-house counsel push back. Indeed, A2L
recently supported a case with nearly $100 million at
stake where in-house counsel was quite skeptical
about conducting a mock trial.

Outside counsel made the case for a mock trial, and in-house counsel ultimately approved
the expense and attended the mock trial. Like most instances when a client attends the
mock trial, the value is immediately clear to them, but that that realization is until not after
the fact. Once the actual jury trial was completed, not only did A2L's client win a complete
defense verdict, they won substantial counter claims as well. A true slam dunk, thanks to the
skill of the attorneys working for the defense and their secret weapon - a preview of
unexpected areas of weakness and strengths of both sides.

Here was a typical example where in-house was skeptical about conducting a mock trial
before doing one, convinced it was a good idea once they saw the mock deliberations and
once the result came in, certain it was a great idea. This is not uncommon for A2L, and not
all that uncommon for the high-caliber litigators we have the privilege of working with
throughout the country. So, how can we all help doubtful in-house counsel appreciate the
value of a well-conducted mock trial?

Here are seven reasons we believe in-house counsel should want a mock trial:

1. Risk/Reward: The process of litigation is expensive. The longer one stays on that course,
the more it will cost. By identifying the case’s potential risk/reward earlier rather than later,
you will be able to control the budget more rapidly and more wisely.

2. Evaluate Settlement Intelligently: Knowing the strengths and weaknesses of the case
will help you develop a more focused approach, will improve the preparation of witnesses
and depositions of opposing witnesses, and will help in-house counsel decide whether,
when and for how much it makes sense to settle.

3. Negotiate with Strength: Most cases settle before trial, so the better armed you are
during discovery and pretrial, the more strategic you can be during settlement talks.

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4. Guide Discovery Efficiently: While many in-house counsel understandably prefer to
spend “no dime before its time,” i.e., only conduct a mock trial when a trial is certain and
imminent, conducting a mock trial before the end of discovery might yield greater rewards.
That may seem counterintuitive because all the facts are not in hand, expert discovery is not
completed, and rulings that may affect the nature and scope of the case are pending.
However, it is a great advantage, while there is still time, to get a read on the case even in
its skeletal form in order to guide rather than react to the way in which the discovery evolves.

5. One Early Bite at the Apple: Once it’s over, it’s too late. In other words, what if a
particular type of expert or subject of testimony is seen as critically relevant and helpful to
mock jurors – but you only find this out after the deadline? Then it would be of little use and
frustrating. Mock trials often reveal this information, so why not get it when it could make the
most difference?

6. Trial Strategy Alignment: Sometimes in-house counsel and outside counsel have
different opinions about trial strategy, the importance of certain witnesses, and the need to
spend money on certain items. A mock trial usually clarifies the issues and leads to
agreement.

7. I.D. Major Problems Early: If the case is unwinnable or can’t be settled, the sooner you
find out, the better. That way, you can make informed decisions. If anyone on the trial team
is under the false impression that the case is better than it is, the mock trial will help clarify
any misguided beliefs.

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6 Reasons The Opening Statement is The


Most Important Part of a Case
Trials are structured in familar segments
– opening statements, direct
examination, cross-examination and
closing arguments. Of those events, I
believe that opening statements deserve
more emphasis than any other portion of
the case.

As trial lawyer Ira Mickenberg has said,


“Opening statements are the lens
through which jurors view the evidence.
The most important thing to understand
about opening statements is that they
establish the context in which the jurors
will interpret all of the evidence they hear
during the trial. [PDF]"

With this context, I offer 6 reasons why I believe opening statements are the most important
part of a case:

1. FRAMEWORK: It is a psychological truth that people like to place information in a


coherent framework rather than deal with disjointed bits of data. As soon as jurors
hear any facts, they will begin to connect the dots and fill in the picture of the events
in their minds. Therefore, it is crucial that the framework that they use should be
yours rather than the other side’s.

2. WHO HOLDS THE TRUTH?: When the trial starts, jurors figure someone is lying
and someone is telling the truth. The opening statement is when they initially reach
these conclusions. The opening statement offers the best opportunity to grab and
hold the high ground - while at the same time positioning your opposition as slippery.

3. JURORS DECIDE EARLY: Jury research has shown that as many as 80 percent of
jurors make up their mind immediately after hearing the opening statements. This
may seem unfair or strange, but it is true.

4. ATTENTION: Unless a celebrity witness like Bill Gates or Scarlett Johansson will be
taking the stand, the judge’s and jurors’ attention levels will be at their highest during
the opening statement. This is your opportunity to grab their attention with a
compelling story and compelling demonstrative evidence and keep it.

5. IT'S GOOD TO BE ROOTED FOR: People like to pick someone to root for early. Did
you ever watch a sporting event with teams you don't know well? Don’t you normally
pick a favorite early in the game? A trial is no different.

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6. ABC - ALWAYS BE CLOSING: As is true of all sales events – and a trial is a sales
event – emotion is what matters. People buy on emotion and justify on facts. In jury
trial terms, that means they decide after opening who is the emotional winner and
spend the rest of trial and deliberation justifying their emotional leaning with the facts
that fit best.

As noted trial lawyer Herald Price Fahringer has said, “Cases are won or lost on the opening
statement. Therefore, all your ingenuity, all your intellectual resources, all your stamina, has
to be poured into that opening statement, because your failure to fully exploit that critical
opportunity can mean either winning or losing a case.”

Fahringer has said, in fact, that the opening line of the opening statement is particularly
critical because it grabs the jurors’ attention.

He points to an excellent example from the opening lines of P.D. James’ 1989 novel,
Devices and Desires: “The Whistler's fourth victim was his youngest, Valerie Mitchell, aged
fifteen years, eight months and four days, and she died because she missed the 9:40 bus
from Easthaven to Cobb's Marsh.”

As Fahringer says, we need to learn from these artists.

[We shared this helpful clip from Herald Price Fahringer in a recent article and thought it was
worth singling out]

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The Top 5 Qualities of a Good Lawyer


by Ken Lopez, Founder/CEO, A2L Consulting

I'm often asked for advice on hiring a lawyer. In fact, I refer about two dozen cases/clients
out to trustworthy lawyers each year. Usually, they range in value from family law-types of
cases to $100 million complex commercial disputes.

I am in a unique position. While trained as a lawyer, I don't practice. I spend the majority of
my time running A2L, a litigation consulting firm, and I publish what is likely the most widely
read litigation blog. However, I think what really qualifies me to make great referrals is the
twenty years I've spent working with top litigators both as a consultant and as a client. In that
time, I've had a chance to see how 1,000 lawyers or so perform, and I've learned a lot about
who is good and who is average.

When someone calls and says to me, "I need a good lawyer," I need to know a lot more than
that. In fact, I'm convinced that most people don't know what "a good lawyer" means exactly.
I'm not even sure many lawyers know what makes a good lawyer.

From the outside of the industry, however, I think it's almost impossible to tell who is good.
"Good" is almost entirely based on word-of-mouth, and world-of-mouth is usually affected by
some form of confirmation bias. That is, people want to recommend a lawyer they've used

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before, since making that recommendation helps them reinforce the decision they made to
hire that lawyer in the first place.

Knowing that someone is a SuperLawyer is good, being AV rated is good too, and even
having a reasonable Avvo score is a plus. However, even among lawyers meeting these
three criteria, I observe wide variations in talent. So, to give a good referral, I really have to
both understand who is a good lawyer, and recommend the right lawyer for the situation.

Reflecting on 20 years of experience, here are five traits that define a good lawyer for me
when I am making a referral:

1. Negotiation talent. Far more important than any other trait, negotiation skill will get
you the most value from a lawyer. Good lawyer-negotiators seek to leave all parties
feeling like a reasonable outcome was achieved, rather than trying to run over the
opposition. This does not mean they get you less than you seek. It means you get a
fair outcome, and you feel good about your outcome. It means the outcome is also
workable and has staying power. Good lawyers manage expectations on both sides
of the "v." and are masters of selectively using leverage to help guide a dispute
toward resolution. They have a warrior spirit that is fed by cleverly getting to the
desired outcome. They play chess, not checkers. When a lawyer is not a good
negotiator, disputes cost more and outcomes are less favorable. The problem is that
this skill is very, very hard to evaluate unless you have seen someone conduct a
negotiation.

2. Good Paper Talent. Good lawyers draft correspondence, motions and briefs that
are well-cited and well-written. Typos are non-existent, and they maintain a sense of
decorum unless it is truly helpful to do otherwise. Their emails are well-thought-
through, and they avoid common grammar issues. They get things done on time, and
they are familiar with using storytelling and persuasive graphics in pleadings to
maximize persuasiveness. Of course, they get the law right, but that really should be
a given.

3. Presentation Talent. Good lawyers present well when they are being spontaneous,
and they present fantastically well when they have time to prepare a trial
presentation. They are confident. They are familiar with the latest thinking about
litigation graphics. They are comfortable relying on litigation consultants and others
for good ideas.

4. Specific Experience. Just like a job interview, you really want to hire someone who
has handled a problem like yours many times before. This is not always possible
when hiring a lawyer as many problems are unique. Furthermore, if I had to balance
negotiation skills vs. experience with a particular subject, I'd still very heavily weight
my decision in favor a lawyer with superior negotiation skills.

5. Reasonable Accessibility. Good lawyers make themselves available to you, and


you should not have to beg them to talk with you. That does not mean you have a
right to be high-maintenance, it means their availability should vary proportionally to
the seriousness of what you are facing at that moment. Good lawyers are busy, but
as they say, if you want something done, ask a busy person to do it.

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Notice I did not mention fees or rates in my top-five list. As my favorite outside counsel says
to me, perhaps in a self-serving way, "there's nothing more expensive than a cheap lawyer."
Fortunately, I happen to agree with him.

You can probably tell that I enjoy making referrals, and, in fact, I happened to give three
yesterday. My hope is always that I have made a good match for all involved, and so far,
that's always been true. Please comment with other traits you think I overlooked.

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5 Questions to Ask in Voir Dire . . . Always


by Laurie R. Kuslansky, Ph.D., Expert Jury Consultant

The meaning of the term "voir dire" translated literally, means "See say,” but figuratively
means “to speak the truth." In common practice, "voir dire" describes the process of
questioning potential jurors, by judge or litigator, in advance of a jury trial to uncover
conflicts, biases or other reasons to dismiss the potential juror.

The stated goal of voir direis to impanel an impartial jury. However, in the majority of courts
that allow voir dire questions by counsel, the goal of each side of the case is to get the best
jury for their client possible through a process of revealing and eliminating those who are
most adverse. Through a combination of dismissals for cause and peremptory challenges,
potential jurors are removed from the pool of jurors. As an example of the traditional
process, see this description of the voir dire process written for those called for jury duty in
the Southern District of New York.

In cases where the sides agree and the judge permits, jury selection often begins with a
series of written questions agreed to by all parties. Ideally, mock jury pre-trial research is
conducted to identify the most important and revealing questions to include based on the
types of jurors who tend to look most unfavorably on the client's case. In court, once
prospective jurors’ information and responses are received, there is often very limited time in
which to conduct additional fact-finding research and evaluate the responses.

Many litigators mistakenly believe that voir dire is conducted only by judges in federal court.
This is simply not true. I have conducted mock trials focused on voir dire and voir
dire consulting in a majority of states in the U.S. On many occasions, this was done in
preparation for a federal trial. This recent ABA article does a good job of describing the state

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of voir dire in the federal courts. Even in those courts where the judge or the clerk conducts
the voir dire, many accept proposed questions from counsel. The key is to know which, few
questions are most productive.

Since the voir dire process can help determine the outcome of a case, it is essential to use it
to your advantage. With the foregoing in mind, here are five questions I would always
suggest asking in voir dire, whether in state court, in federal court, on a jury questionnaire,
or among the questions presented to your judge to ask.

1. If you were my client, would you be completely comfortable having you as a


juror on this case?

2. Can you think of anything in your own life that reminds you of this case? What
and how?

3. Is there anything that you have seen or heard that would make it hard for you
to guarantee to judge my client the same as the other side?

4. Is there anything you’d prefer to discuss in private?

5. Is there anything we haven’t asked you that you think we should know?

Each of these questions is designed in one way or another to uncover biases that might hurt
your client. Each is designed to provoke deeper thinking and candid responses, rather than
meaningless knee-jerk ones which are politically correct, but not helpful in decision making
during jury selection. Each is open ended and designed to avoid a simple yes or no answer.

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5 Keys to Telling a Compelling Story in


the Courtroom
by Ken Lopez, Founder & CEO, A2L Consulting

Developing a compelling story for your judge or jury


may be simple, but it is not easy.

Typically, when I've ask a trial team about the case


story a few months before trial, only a small minority
can tell me. Most respond with one of the following:

• We just got the case;

• Everybody hates our client, because they are


an oil company, tobacco company, bank etc;

• This case has to be won on the law alone;

• It's a bench trial, so story doesn't matter;

• We're too busy;

• We're working on that;

• We don't need help with that;

• I don't know what you mean by a story;

Yet, as I look at all the winning trial teams we've worked with over the last year, one
common theme is that they had a well-developed story. It didn't matter whether they were
trying a dry patent case or a scandalous white-collar case, they built a strong narrative. It's
what great litigators do - yet so many either skip this step or procrastinate and wait too long
to fully develop it.

I have written a number of times this year about the importance of storytelling at trial. As I
close out the year, I think this may be the most important thing a litigation consultant can do
to help a trial team. A litigation consultant brings not only the common sense that a fresh
pair of eyes offers but will also bring the experience of having seen what works and what
does not and the experience of having helped develop stories for hundreds of trials.

Here is an overview of storytelling for litigators with five key points every great litigator
should know.

1) Why Care About Story? In his book The Storytelling Animal, author Jonathan Gottschall
shares so much valuable science and commonsense wisdom about storytelling that I
suggest it should be on the must-read list for litigators. The New Yorker summed up the
essence of it this way: "human beings are natural storytellers—that they can’t help telling
stories, and that they turn things that aren’t really stories into stories because they like

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narratives so much. Everything—faith, science, love—needs a story for people to find it
plausible. No story, no sale." We've drawn parallels between sales and trials before, and I
agree that without a story, no one will side with you. Read this book, and your openings will
be forever improved.

2) What is a Story? It's not a simple recitation of information and facts in chronological
order. It is a tale of character-rich events told to evoke an emotional response in the listener.
As one Harvard paper put it, "without [stories], the stuff that happens would float around in
some glob and none of it would mean anything." Unfortunately, many opening statements
don’t follow that advice.

3) What is the Structure of a Story? A drama is often split into five parts:

• The introduction (also called exposition) is where characters are introduced, the
scene is set and the plot is introduced.

• Rising action is where the hero is revealed, the conflict is identified and our hero
finds the solution to the conflict.

• The third act is the climax where our hero's situation is either clearly improved or
worsened.

• Falling action is where we see the conflict diminishing and our hero is now clearly
winning or losing.

• The resolution or denouement provides a transition toward the end of our


story. Morals are revealed, tension is released and a sense of relief is given to the
listeners.

4) How would I structure a litigation story along these lines?

• Introduction: I like to start with belief or fundamental truth and 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."

• Rising Action: Here the key is to keep a logical flow and keep the tenor rising until
the conflict is identified. For example, "After years of lackluster home sales, finally it
looked like Miami was positioned to take off and it was these bankers' jobs to make
sure their bank made money - and that meant, making loans. And that's just what
they did. Month after month, loan applications were up, and month after month, the
bank was making more and more money. These bankers were at the top of their
game. They received awards for their actions. But a storm was brewing. A real estate
collapse had begun, and these bankers had to face it head on, sometimes at great
personal sacrifice."

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• Climax: Here, we see where our heroes overcome or are instead defeated by the
conflict. For example, "Our clients did their best to weather the storm, but the reality
of the real estate environment was too great to overcome. Loans were not repaid,
foreclosures occurred and our clients either lost their jobs or retired and the bank
ultimately failed. It was a brave battle but just not one you can fight at the age of 70
after a 40-year career in banking. Even if they wanted to, the fight was not winnable.”

• Falling Action: "So they returned to their families. They lived modestly. They played
with their grandkids. On a part-time basis, each helped to wind down bank
operations. In the end, they saw much of their life's work blotted out by forces that
were completely beyond their control. After all, they are just a couple of retirees who
did their job well – they made loans, the bank made money until the unthinkable
happened.

• And the Resolution: "Ultimately insurance protected all of the bank customers, so no
money was lost. The stockholders lost money in their investment, but not all
investments work out, right? Not all of the loans these bankers made worked out,
and there's no redo for them. So would it make sense to reward stockholders for
their investment that didn’t work out by giving them an award of money? If Bank
greed makes us squirm, the greed of those trying to recoup a lost investment in a
bank should make you sick.”

5) Where can I learn more about storytelling for lawyers? We have written often about
this topic this past year, and I think it is one of the most important topics we write about. I
encourage you to view these posts:

1. 10 Great Videos to Help Lawyers Become Better at Storytelling.

2. Demonstrative Evidence Lessons from Apple v. Samsung. Yes, even patent cases
have stories.

3. The output of a great collaboration between a trial team and litigation consulting
team is a compelling and simple story.

4. 16 Trial Presentation tips you can learn from Hollywood.

5. Many of the videos in this popular post of the Top 10 TED Talks for Lawyers are
helpful for storytelling in the courtroom.

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7 Things You Never Want to Say in Court


by Ken Lopez, Founder/CEO, A2L Consulting

Lawyers say a lot of things in court – but here’s a list


of seven things that, for various reasons, you never
want to hear yourself saying in court.

Number 1: “Your Honor, could I please have a


moment to sort out this technical issue.” The
middle of trial is not the place to fix your technical
glitches – yet one hears lawyers utter this sentence all
the time. With few exceptions, technical problems are
almost entirely preventable. And in any case, you
always have a backup plan, right? Take a look at
these related articles for more background on this:

• 12 Ways to Avoid a Trial Technology


Superbowl-style Courtroom Blackout

• Free Download: Which Courtroom Trial


Technician Should I Use?

Number 2: “My client.” Can you imagine anything more distancing? When you think about
it, isn't “my client” just shorthand for “this person or organization who is paying me to say
this”? Instead, humanize your clients and even turn them into heroes.

I believe the phrase “my client” should be


banished from the lexicon of all litigators.
Number 3: “You might not be able to see this, but.” Well, make sure they can see it! All
too often we see one of the simplest mistakes being made -- failing to create a presentation
with text that everyone can read. A good presentation environment includes high-quality
projectors, high-quality equipment and the use of font sizes on slides that are always larger
than 20 and usually larger than 30. One can easily avoid this problem, and no apologies or
explanations will be needed. See these related articles for more:

• The 12 Worst PowerPoint Mistakes Litigators Make

• The 14 Most Preventable Trial Preparation Mistakes

Number 4: “Take my word for it.” Just as above, if you find yourself saying something like
“take my word for it” or anything that attempts to excuse the inadequate quality of a visual,
you're just trying to explain away your error. This could be colors that are too light, too
similar or even issues with a projector. With all the testing tools that are available to a

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litigator today, there's simply no excuse for this. These related articles provide additional
guidance:

• Trial Graphics Dilemma: Why Can't I Make My Own Slides? (Says Lawyer)

• 24 Mistakes That Make For a DeMONSTERative Evidence Nightmare

Number 5: “Put yourself in his shoes.” Long known as the "Golden Rule" in jury trials,
we still see lawyers from reputable firms make this mistake. The Golden Rule is said to be
violated when a lawyer asks a jury to put themselves into the shoes of their client. I don't
think it's an entirely intuitive rule, so it is understandable how mistakes are made. After all
one is really just trying to help the jury understand? However this is a bright line, and you
should avoid statements like: "reward my client as you would want to be rewarded" or
"imagine how this suffering would feel and then pick the right damages figure." Learn
more here.

Number 6: "Looking at my next bullet point." In general, the use of bullet points on your
slides must be avoided. Judges and jurors alike will read them and not listen. Plus, people
remember and understand less of what you both speak and show at the same time. We
have written about this many times before, but my favorite article on the topic offers twelve
reasons why bullet points are bad.

Number 7: "Notwithstanding," "But for," "Whereas," "Assuming arguendo,"


"Aforementioned," or "Heretofore" Alright, maybe sometimes you have to say "but for"
when it is part of the law in question, but for (that one doesn't count) the most part you can
strike (add that word to the list too) all of these from your courtroom vocabulary. Remember,
you want people to relate to you. You want them to see you as approachable and
trustworthy. You can achieve this by speaking to them as their family would speak to them
and nothing more.

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2 Metrics Showing Litigation Shifting to


Midsize Law Firms
by Ken Lopez, Founder/CEO, A2L Consulting

Last month I published a four-part series about the rising influence of midsize law firms in
big-ticket litigation. Major news outlets are reporting on the trend, and we're seeing it play
out at A2L. However, new and interesting data about case filings and trials shows just how
surprisingly far along midsized law firms are in capturing a large share of the litigation
market.

The four articles listed below made up our four-part midsize law firm series last month. In
addition to A2L's valuable tips for trying big cases on a midsized budget, the key takeaway
was that over the last three years, midsized law firms have doubled the amount of high-
stakes litigation they are being hired to run. The articles below go into more detail and offer
useful tips for law firms of any size heading to trial.

• 16 Litigation Graphics Lessons for Mid-Sized Law Firms

• 8 Trial Technician-Related Tips for Midsized Law Firms

• 17 Trial Consulting and Jury Consulting Tips for Midsized Law Firms

• 9 More Things Midsized Firms Should Know About Litigation Consultants

I write for another blog geared toward litigation support salespeople and e-discovery
salespeople. Using LawProspector as a litigation research tool, I am able to see some very
clear trends unfolding related to new cases and trials. I discussed these trends in two recent
articles.

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In an article that analyzed which law firm offices are busy, I focused my study on new case
filings over the past 6 months or so. The trends revealed by the data were surprising to me
since I've spent the last 20 years watching the top 50 law firms dominate the litigation
dockets. Ranked according to the number of cases attorneys were newly involved with (both
plaintiff and defense side), these law firm offices listed below are the busiest when it comes
to federal cases:

10. Quinn Emanuel's California offices.


9. Wilson Elser's offices in the west, east and south.
8. Bradley Arant's Charlotte and Alabama offices.
7. Alston & Bird's DC, and Atlanta offices.
6. DLA Piper's offices in DC, New York and California.
5. Nelson Mullins' North Carolina offices.
4. Akerman Senterfitt's various Florida offices.
3. Snell & Wilmer's Phoenix and Las Vegas offices.
2. Barnes & Thornburg's Indianapolis office.
1. Baker Donelson's Tennessee offices have more new matters than any other firm in the
top 200 law firms.

What I find amazing about this list is how law firms in the 300-750 lawyer range, roughly the
top 50-150 law firms ranked by size, are dominating the list. This is the first time I've seen
this pattern in my three decades in the litigation support industry.

To confirm whether this data might be a fluke of some sort, I followed up with a second
article and a review of trials scheduled over the next year. Sure enough, that same midsize
law firm dominance was showing up again.

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This table lists the top 15 law firms ranked by the number of federal trials their attorneys
have scheduled over the next year. After some analysis, the data reveals something
remarkable: roughly 60 percent of the federal trials scheduled in the next year are
being handled by a midsize law firm.

Further, only three of 15 law firms on this list have more than 1,000 lawyers (roughly the top
25 law firms). Those top 25 law firms collectively have about 45,000 lawyers, and law firms
ranked 50-150 by size also have about 45,000 lawyers in total. However, 80 percent of the
litigation is going to the second group. This is a tectonic shift compared to the data only a
few years ago.

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With changes of this magnitude occurring in the litigation industry, we all need to be paying
attention. Large law firms need to work on the economics of their firms if they wish to
(re)capture the everyday litigation market. Midsize law firms need to learn the techniques
used by large law firms to be successful in big litigation. Litigation support firms have to
adjust to a whole new audience eager to learn what works best.

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16 PowerPoint Litigation Graphics You


Won't Believe Are PowerPoint
by Ken Lopez, Founder/CEO, A2L Consulting

Litigators do not need to know how to create advanced PowerPoint litigation graphics.
However, litigators do need to understand what a skilled artist is capable of producing using
the program. Most will be surprised to learn what's possible, and even veteran users of
PowerPoint will think there's an element of magic in some of the presentations shared in this
article.

As a litigation graphics consultant who has been using PowerPoint since the 1990s, even I
am amazed by the litigation graphics some artists are able to create using PowerPoint.
Using real artistic skill combined with PowerPoint's built-in features unleashes impressive
creative potential. What used to require 2D and even 3D animation just five years ago can
now often be produced within PowerPoint faster and with a fraction of the investment that
used to be required. Then, best of all, everything created is available for a litigator or their
trial technician to present right from PowerPoint without any additional software or fancy
hardware. In many cases, it can even be presented right from an iPad.

Too often, people view PowerPoint as a program that helps someone put their speaking
outline, usually in bullet-point form, in visual form on a series of slides. We have long
counseled that the use of bullet point riddled slides hurts your trial presentation, especially
when one reads bullet points. Fortunately, most litigators are changing with the times and
paying attention to the good science that shuns the use of bullets.

We have written before about combining illustration with PowerPoint animation to achieve
great results and the four types of animation one typically sees at trial. The purpose of this
article is to help you understand how far you can stretch PowerPoint. It's not the right tool for
every situation, however when used the right way and in the right hands, it is a powerful
weapon of advocacy.

Below are 16 PowerPoint litigation graphics presentations (all converted into movies for
easy online viewing) that most will be surprised to learn were created in PowerPoint by
artists at A2L. We'd certainly welcome questions about how we created these graphics, and
we would absolutely love to hear from artists who can do this kind of work well.

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1. This PowerPoint litigation graphic prepared for a recent antitrust trial is really a timeline in
an unusual format. To emphasize how difficult it is to run an airline in the United States, a
long list of bankruptcies is set to scroll like movie credits in PowerPoint. Interested in more
timeline examples, download our timeline book (opens in new window).

2. This PowerPoint litigation graphic was used by an expert in a patent case to explain how
the design of a ship's hull affected its performance. Interested in patent litigation
graphics, download our patent litigation toolkit for litigators (opens in new window).

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3. This clever PowerPoint makes good use of motion path animation and illustration to
explain video playback patented technology. The use of "tags" helps explain the concept of
keyframing in video encoding and playback in a jury-friendly way.

4. PowerPoint can even be used to show deposition clips. If you have more than a handful
of deposition clips, you would probably want to use Trial Director to show them, but for a
limited number or a group of short clips, PowerPoint does a good job.

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5. This A2L PowerPoint litigation graphic, explaining how hydraulic fracturing (aka fracking)
works, has been viewed more than 180,000 times on YouTube. The use of dials and
animation of the drill head are not what you would normally expect from PowerPoint (link set
to start video at 1:27). The voiceover audio is embedded into the PowerPoint.

6. This simple traffic cop animation explains the roll of an operating system in an easy-to-
understand format. By using illustrations combined with animation in a PowerPoint litigation
graphic where small parts are varied, an animated or cartoon effect is achieved within
PowerPoint.

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7. In a very simple way, this chart uses PowerPoint to show how Fahrenheit and Celsius
scales compare to one another. Like many of the examples in this article, it's surprising that
the graphic was created in PowerPoint.

8. This chart shows how a phone dialing system works and is designed for a judge's viewing
in a claim construction setting rather than jury viewing during trial. Again, it is animated and
presented entirely in PowerPoint.

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9. Even a surgical procedure can be shown using a combination of illustration and
PowerPoint animation techniques. Such work can make courtroom animation economically
feasible in even small cases.

10. Here, to help demonstrate that a doctor was reading films to quickly to maintain an
appropriate standard of care, an analogy to speeding is created in PowerPoint.

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11. For a claim construction hearing, this PowerPoint was created to show how a drug
delivery system works in a hospital environment. Claim language is shown in conjunction
with the PowerPoint litigation graphic to give it context and meaning. I think it is a smart use
of animated graphics juxtaposed with claim language.

12. Here, the removal of a nuclear power plaint reactor pressure vessel is shown. By
creating illustrations that are shown in quick succession, the effect of animation is achieved
in PowerPoint without having to go through the expense and complications of creating an
animation.

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13. Using PowerPoint's native interactive features, one can create hot-spots on a graphic
that show a document or another image. This means that images do not need to be shown
in linear order. This becomes useful when one wants to use a timeline built in PowerPoint
and still have the flexibility to jump around to other documents. Interested in more timeline
examples, download our timeline book (opens in new window).

14. Explaining complicated patent terms with PowerPoint litigation graphics becomes much
easier when coupled with a straight-forward analogy like the one shown here. Simply a local
bus and remote bus (computer communication systems that move data between
components) bear similarities to traffic patterns that are easy for a jury to
understand. Interested in patent litigation graphics, download our patent litigation toolkit for
litigators (opens in new window).

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15. Making heavy use of illustration, this PowerPoint serves as a timeline that explains how
a worker was electrocuted on a job site and went undiscovered for some time.

16. Finally, here is an example of how one might use the interactive features of PowerPoint
to tell a complicated story in a mortgage-backed securities case. The user is free to click on
any of the state icons to view developments in other locations in any order they choose.

Using PowerPoint litigation graphics will solve many trial challenges, however one needs to
know when to use PowerPoint, Flash, a physical model, a trial board or a more
sophisticated 3D animation program. To make that judgment, ask your litigation graphics
consultants or contact A2L.

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The Top 14 Testimony Tips for Litigators


and Expert Witnesses
by Ryan Flax, Managing Director, Litigation Consulting, A2L Consulting

Litigators and their witnesses are confronted with difficult


situations during testimony, and it’s nice to have reliable ways
out of those sticky situations.

Expert witnesses are engaged to provide their expert insight


and opinions supporting their client’s case during testimony
and are there to tell the truth to the best of their knowledge
when questioned at trial or deposition.

Litigators get paid to ask good and, at times, tough questions


to get desired answers from the opposition’s witnesses and to
help their own witnesses do their best.

During both courtroom testimony and in depositions there are common situations where an
attorney tries to make things difficult for the witness. Below, I identify 14 of these common
situations and provide some good strategies, both from my own experience as a litigator and
from tips collected from attorneys and expert witnesses. Consider the points below when
advising and preparing your witnesses for trial and depositions. The main and reoccurring
principles are:

1. The “Yes or No” Question

If you’re a witness (an expert) you are going to be asked “yes or no” questions (where the
forced response appears to be a “yes” or a “no”) on cross-examination or during a
deposition. This type of questioning will put you in a tough spot because whatever you’re
asked to respond “yes” to is most likely something you’d rather say “no” to, and vice

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versa. But, to be truthful, you’ll feel that you must answer in a way that seems counter to
your beliefs or the foundations of your case.

There are many easy ways to get yourself out of this predicament. First, you need to
identify that you’re in it. Then, in response to the question you say this: “I understand that
you’re asking me for a ‘yes or no’ answer here, and I could answer you in that way,
but doing so would be an incomplete answer and I don’t want to mislead you or the
court.” Now, what have you done?

You’ve instantly made yourself look very reasonable in front of the jury/court and like
someone interested in getting the “truth” out rather than an unreasonable (paid) witness who
won’t answer questions. If the attorney asking the “yes or no” question insists that you go
ahead and answer simply “yes or no” he looks like a jerk pushing his own agenda
and uninterested in the truth – neither of which will help him in the jury’s or court’s eyes. It’s
unlikely he’ll do this, but if he does, you go ahead and answer as he’s asked, but you’ve
made him look bad and also have clearly identified the issue for re-direct from your own
counsel.

2. The “Yes or No” Question – Take Two

As mentioned above, there are a variety of ways to get yourself out of the sticky “yes or no”
question problem. So, in addition to the solution above, here are some additional tip/tricks
to consider.

One expert witness has suggested that a response she uses to combat this situation is to go
ahead and answer the question with the “yes” or “no” sought by the examining attorney, and
then add, “under certain conditions,” with nothing further.

This presents the examining attorney with a dilemma. Should she let that answer
stand? What circumstances is the expert referring to? Should she follow up and inquire
about the circumstances the expert has in mind? Doing this surely exposes the attorney to
a strong counter point by the expert. Responding in this way allows the expert to take the
advantage.

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3. The “Yes or No” Question – Take Three

Another expert surveyed for this article suggested replying to the “yes or no” question with,
“as I understand your question the answer is [insert ‘yes’ or ‘no’].” As this expert
explains it, this is a non-answer; it means nothing because there is no way for the lawyer to
know how the expert understood his question and the answer can be either yes or no based
on whatever is going on in the expert’s mind.

So, again, this begs the question: will the attorney follow up and allow the expert to express
what’s on his/her mind? Again, advantage: expert witness.

As mentioned, experts will be asked “yes or no” questions during their deposition as they will
at trial – the purpose being, once the examining attorney has probed the depths of the
expert’s knowledge and bases for opinions, he or she will want to lock the expert into some
position for trial. Just as in the trial testimony scenario, experts can use the same, and even
more, techniques to wiggle out of this sticky situation during a deposition (I say “more”
because you’re not responding in front of a judge and will have more flexibility).

There are other types of “sticky situations” expert witnesses will be confronted with during
their examination by an attorney. Several are explored below.

4. “I Don’t Understand”

As an expert witness, you’ll be subjected to some pretty tough, sometimes technical


questions. Often the questioning attorney will offer a lot of hypothetical facts and complexity
within a question. If confronted by such a question, when in doubt, respond that you
just don’t understand the question and request that the attorney rephrase it.

At worst, this buys you a moment of time to consider the question. At best, you’ll throw off
the questioning attorney, who may have carefully scripted his question because he or she
simply had to in order to address the complexity necessary to the issue being investigated.

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5. “I Don’t Understand” – Take Two

When you express lack of understanding and ask the attorney to rephrase a confusing
question, sometimes the attorney will ask what was confusing to you. Don’t play this
game. Don’t parse the question for what was clear and what was not.

The entire question was confusing and it’s his job to figure out a way to make it
clear. Just make sure that, before you go this route, the question is at least too confusing
for the jury to easily understand, otherwise, they’ll perceive you as playing games and being
deceptive.

As mentioned, often, the examining attorney will have been asking his questions from a
script that he or an associate prepared or that he obtained from a book. If the expert being
examined is in a dense or very high tech field, the attorney may not understand the topic
well enough to craftily rephrase his question.

6. “I Don’t Understand” – Take Three

Also, make opposing counsel define words if something could be ambiguous. Here’s
an example based on the examination of a fact witness in a child custody battle:

Opposing counsel began asking leading questions to the mother in the case designed to try
to paint her as a promiscuous parent who paraded men in front of her kids night and day. If
you knew the mom, you would know how utterly laughable this tactic was. So, the
examining attorney began the questioning by asking if the mom had “dated” anyone. The
mom-witness responded to each of the attorney’s questions with her own, e.g., what do the
terms “date,” “relationship,” “intimate,” “boyfriend,” etc., mean? The attorney finally gave up
in frustration and the mom-witness's attorney got a good laugh out of it – the examining
attorney got nowhere.

Don't assume you know what examining counsel means by the words he/she uses. Make
them explain it (assuming doing so isn’t ridiculous enough to make you look stupid or
difficult in front of the jury).

7. Think Before You Answer

The next common technique of examining-counsel is the use of rapid fire questioning. This
is an easy technique to defuse since the witness can control the rate of questioning by
taking the time to consider each question before answering. When the expert witness takes
his time to answer, he also gives his counsel time to object.

Our CEO, Ken Lopez, was once questioned about an animation in a plane crash case and
the question was something like: “the clouds in this animation are really like a video game
aren’t they?” Ken explained, “I felt defensive, but choose to take my time answering. After
a long pause, I replied, ‘I can't think of a video game like that works like that.’” He was
surprised that the examining-attorney dropped the questioning at that point.

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Remember, whatever you say is going permanently on the record – so make it accurate,
make it useful, and make it count.

8. Don’t “Help” Them

Most expert witnesses are, on some level, teachers. They want to instruct, inform, and
educate. Often, the greatest and most sought-after experts are well-regarded university
professors. This presents a problem when they’re under questioning at trial or (especially)
in depositions. It’s often difficult for these witnesses to refrain from offering additional
information, filling-in the pauses with education, and generally responding to questions that
weren’t asked.

If an expert finds that their questioning attorney is at a loss for words, don't offer any. Let
the uncomfortable silences sit there. Not an easy thing to do, but necessary.

If an examining-attorney asks a question that doesn’t get the science right, or misses the
point somehow, don’t educate them. Let them stay ignorant and let the record stay ignorant
until the right time to inform it, which is when the witness is on direct.

9. Don’t Guess

Remember, the expert’s testimony is forever on the record and will be held against him and
his client if possible. If you can't answer a question, or don't know the answer to a question,
say so. If your answer is an estimate or only an approximation, say so. If you think you
might have the answer in the future, say, “I don't recall at this time.” If you do not
remember, say so.

Never think that you must have 100% total recall or something even close. Do what you can
before a deposition to refresh your recollection if it’s appropriate, but don’t refresh yourself
on irrelevant or unhelpful things.

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10. Don’t Guess – Take Two (or Stick to What You’re There For)

Another expert recognized that a standard trick is to get an expert to answer a question that
is outside her experience because of the natural tendency to try and help by giving an
answer. But, doing so can trap the expert because it then calls into question everything she
has previously written and all her opinions expressed in court.

It is much better to simply say you cannot answer the question because it is outside
your experience. So the cross examining counsel's armory is even further reduced. In
addition, the image that the jury (or Judge) then has of you will further be
improved. Knowing your business very well and the specific limits of your experience and
expertise should garner your more respect.

11. Don’t Guess – Take Three (or Stick to What You’re There For – Take Two)

Following the previous note, what if the line of questioning moves to a subject for which your
expert IS knowledgeable, but not there to talk about? He can’t say he doesn’t know how to
respond.

Another expert suggests that if the subject matter of cross exam is not outside the expert’s
experience, but is outside the scope work conducted in the matter, consider answering, at
least in the U.S. – “I am sorry, but that work was outside of the scope of my retention
in this matter, and so was not considered.” This expert gives the following example: “I
have a specialty of deciphering Traffic Signal Timing plans to try and determine who
REALLY had the green, as opposed who THOUGHT they had the green. In many of these
cases, a separate Accident Reconstructionist is hired [as another expert]. If an Accident
Reconstruction question is asked, it will most probably be within the scope of my
EXPERIENCE and TRAINING, but is outside of the scope of my RETENTION in that
matter.”

The danger of this scenario is that opposing counsel will try to drive a wedge between your
multiple experts’ testimony, make them contradict one another, and diminish one or more of

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your experts and, thereby, your case. To combat this possibility, have your experts well
prepared on what they are there to testify about. Have them stick to their expert reports, if
they were required. Have them well prepared on what other experts on your team are
testifying about and well prepared not to step on their teammate’s toes.

12. Only Answer One Question At A Time.

Compound questions are objectionable, whether in deposition or at trial. Nonetheless, have


your experts prepared for this possibility. When asked multiple questions at one time, they
should ask for clarification to be clear which part they are responding to. For example:

Q: Do you drink alcohol or take illegal drugs?

A: Yes to the alcohol; no to the illegal drugs.

There would often be an objection here. If there is no objection, and it is too complicated to
easily respond to both parts, then do not be afraid to ask for the question to be restated.

13. Don't Let Yourself Get Cut Off

Another expert recommends: “If there is more that you


need to say, then say it. If that means adding it to the
next answer or simply saying, ‘I'm sorry counselor, I
wasn't finished answering your question,’ and then
continuing,” then do it.

Also, be careful if asked a question that attempts to cut


off your response, such as: “Is that everything?” Leave
the door open in case you might have forgotten
something. Respond to such a question with, “that’s
what I can recall at this time” or something to that
effect. Your attorney can try to fix any problems or
misrepresentations on your redirect and it will be easier
for the attorney to remind you what you have forgotten
if you do not testify under oath that you have already
covered everything.

14. Make Your Own Hypotheticals

Cross examination involving hypotheticals is common for experts. Another


surveyed expert suggested that, when asked a hypothetical question, they are also very
seldom complete – engineered that way to be more helpful to the opposing side and
damaging to yours. This expert suggests responding with “I am sorry, that is an
incomplete hypothetical, which I cannot answer as phrased. Would you like me to fill
in the missing pieces and then give you an answer?” How can the examining-attorney
possibly refuse and still appear reasonable to the jury?

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I hope you find these points useful in preparing your expert witnesses if you’re an attorney
or useful in preparing yourself for cross examination if you’re an expert. If you or your expert
witness needs support in to prepare to testify, A2L Consulting is a valuable resource and
here to help.

This article was exceedingly difficult to finish because all my experts who provided input
kept providing new and helpful tips and examples. If you want to follow such new and
helpful tips, join and follow the comments at the LinkedIn Expert Witness Network group
here: LINK. If you have your own useful tips to add, please do so below in a comment
below.

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24 Things to Know About The "New


Normal" of The Legal Economy
by Ken Lopez, Founder/CEO, A2L Consulting

The term the "new normal" is a term that is frequently used today to describe the changing
state of the legal market.

In its present connotation, the term was apparently coined by Mohamed A. El-Erian, the
head of PIMCO, a major global financial firm, to describe the new post-recession world of
slower economic growth. It was quickly applied to the legal market by other theorists. The
concept was recently mentioned in connection with the current Weil Gotshal layoffs and
other efforts by law firms to reduce staff to meet reduced demand. We have written about
the topic recently and plan to release an e-book about the new normal in a couple of weeks
(*subscribe for free and be notified of its release).

The reason we are writing about the new normal is because we believe there has been a
permanent shift that mirrors what is happening in the economy as a whole. With the rise of
the Internet, buyers of almost anything can now quickly find information about various
products or services and compare price. This used to be quite difficult not all that long ago,
especially in the legal market.

In business, this process is called commoditization. When a product becomes


commoditized, buyers learn what the product or service actually consists of, and they learn
to compare similar providers. Once that occurs, RFPs appear in the marketplace, and price
eventually becomes the biggest factor in purchasing decisions.

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In our industry, it was printed trial boards that were commoditized first. Then it was
courtroom trial technician support and increasingly it is graphics and jury work. Price is not
the only consideration, but it is a big one, especially for in-house counsel, and it should be.
The speed with which e-discovery services were commoditized surprised even experts.

Being much smaller than a large law firm, we adapted to the new normal back in 2008 when
we first announced fixed-fee pricing and other discounting methods to create predictable
pricing. We continue to offer a variety of innovative alternative fee arrangements and we
routinely participate in preferred litigation support vendor discounting programs.

Not only have we adopted new pricing methods, thus embracing commoditization in one
part of our business, but we continue to innovate and add new service offerings like mock
hearings and sophisticated jury consulting services. For a firm to thrive for decades as ours
has, that is the only way to address commoditization unless you intend to become the Wal-
Mart of your industry. Law firms must do the same – strive to deliver many services much
more efficiently, while at the same time introducing novel elements to their businesses.

Below are 24 great resources that discuss the new normal, divided into 11 topic areas.

1. The ABA has 30 pages of article titles devoted to the new normal with the first mention of
the term back in October 2010.

2. The New Republic article last week, The Last Days of Big Law, has been widely
discussed as an example of the “new normal.” I think it was a bit of a hatchet job on Mayer
Brown, which is a great firm.This ABA article discusses the New Republic article and
includes Mayer Brown's statement on the article. So many have written about the New
Republic article in the last ten days that the author has alreadypenned a rebuttal to critics.

3. The Weil Gotshal layoffs last month generated a lot of discussion about the new normal.
This New York Law Journal article discusses the reaction of other law firm leaders. What
was especially noteworthy was that Weil Gotshal's executive partner attributed the layoffs to
the "new normal."

4. I love this article discussing business basics as it applies to the new normal. The author
does a great job creating a financial primer for law firm management.

5. The reports of Citi and Hildebrandt on law firm management always generate good
discussion, and increasingly that is focused overtly on the new normal. Here is a
good Above the Law article commenting on the specifics of a recent Citi/Hildebrandt report.

6. Many industry observers have discussed alternative fee arrangements (AFAs). Broadly
defined, that means anything that isn't simple billable hours times an hourly rate. We have
written about AFAs, DuPont is a thought leader on the topic and there are many good
articles such as this ABA piece.

7. Pricing specialists. The new normal has given rise to a new position at law firms, strategic
pricing specialists. If you are a large corporation, you would want to work with law firms that
have a pricing specialist on staff. Firms like Akin Gump, Crowell & Moring, and others have
great programs in place. Good articles have been written about this topic such as this article

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in the Legal Intelligencer. Here is agreat blog article on who holds these positions at large
law firms.

8. Discussion of the death of the billable hour. A discussion of the new normal essentially
goes hand in hand with a discussion of the passing of the billable hour.

9. I like this 2013 report [PDF] from Georgetown Law describing the state of the legal
market. It is a good rational discussion backed up by a lot of data. Altman Weil's 2013 Law
Firms in Transition Survey [PDF] is also illuminating.

10. Perhaps the whole industry should get a copy of Who Moved My Cheese? because the
apparent shock expressed by some to the industry changes is surprising. This article talks
about Motivation and Morale in the New Normal.

11. There are many good blogs discussing the new normal, the business of law and law firm
economics. Here are a few I think are worth a look: Adam Smith, Esq., Leadership for
Lawyers, Corcoran's Business of Law, Legal Bill Reviewer,

What is the silver lining in all of this? First, everything is going to be okay. We adapted our
pricing models very quickly five years ago, and I have come to prefer fixed-price
engagements for our jury consulting, litigation graphics and courtroom technology
assignments. Such an alternative fee arrangement removes a lot of anxiety and allows us
and the trial team to focus more deeply on winning.

Furthermore, just as it is a bad sign when people say it's a new economy when the market is
soaring, it is probably a good sign that people are talking about a fundamental shift having
taken place now. It suggests we are at or past the bottom, and that likely means good times
are just around the corner. Here's an encouraging pair of articles that remind us that despite
all we hear, law firm hiring is up 27% and revenue per lawyer at large law firms rose by 8.5%
in 2012.

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12 Ways to Eliminate "But I Need


Everything on That PowerPoint Slide"
by Ken Lopez, Founder/CEO, A2L Consulting

Have you ever heard any of the following during a PowerPoint presentation?

• "It may be hard to make out the details of this slide."

• "I'm not sure if you can read this in the back of the room."

• "In case you can't read this, let me read it for you."

• "I know there is a lot on this slide, but bear with me."

• "Let me try to zoom in on this part of the slide [proceeds to fumble with remote]"

Of course you have heard these apologetic statements. If you are in the business world, you
have probably heard them all. However, there is never an excuse to say these things
whether in a boardroom or in a courtroom. As much as you may want everything you have
to say about a key message on a single PowerPoint slide, as hard as it may be to imagine
another way of doing things, I promise, you most definitely do not need everything (or even
a lot) on one slide. And, you can still get your point across.

The number one video in my recent article The Top 14 TED Talks for Lawyers and Litigators
2014 as well as other articles I have written like 12 Reasons Bullet Points Are Bad and 7

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Ways to Avoid Making Your PowerPoint Slides Your Handout describe methods for limiting
the amount you put on your slide.

With all this said, it is important to remember that sometimes you just need everything on a
slide. Sometimes it is an advantage. So, in this article, I want to offer twelve easy methods
for eliminating PowerPoint slide clutter and focusing your audience’s attention on what
matters - you and your message. Sometimes, albeit rarely, this means getting everything
onto a single slide. More often than not, however, it means taking a single slide's
complicated content and spreading it across many slides without your audience knowing
you've even changed slides.

1. 28 point font: My recommendation is to use no less than 28 point text, and if you do
so, you will be forced to take care of most slide-clutter issues before they become
problems. Most of the points below will explain how one might do this.

2. One idea per slide: Another technique for eliminating slide-clutter, and a best
practice generally, is to only include one idea, one takeaway, and one message per
slide. Try not to focus on your total slide count as this is mostly irrelevant to the
length of a presentation. Focus instead on one idea per slide or one idea per click on
your remote.

3. Zoom with remote: Some projectors have a nice high quality zoom feature that
allows you focus in on one area of a slide. IF you are very adept with this feature, IF
you are in control of the projector and the technology in the room and IF you have a
high-enough-resolution image, then this may be a good option, but I don't
recommend it for 99% of all presenters. The resolution of your image must be high
enough so that it does not pixelate when you zoom.

4. Zoom box: Say you want to present something like an organizational chart with 25
elements on it. You might show the whole thing to start with, but no one can be
expected to read it since the font size will be far too small. Consider starting with the
whole image and then placing a zoomed-in version of portions of the chart on
subsequent slides. To keep your audience oriented, use a small icon of the full
image in the corner with a red box to indicate the portion you are showing.

5. Sliding timelines: Very often people want to put a timeline onto a PowerPoint slide.
If it has more than five items on it, it gets hard to read. One technique that we use,
described in example 25 in A2L's free book, The Litigation Guide to Trial Timelines,
is to create a sliding transition between time spans in the timeline. If you break your
timeline up onto multiple slides it is easier to read. If you use the sliding transition,
you give the impression of a larger timeline and keep your audience oriented.

6. Prezi: Prezi is an alternative presentation tool to PowerPoint. It allows the presenter


to create a large canvas of materials (i.e. videos, text and images) and allows the
presenter to zoom into portions of the canvas. I think it is a neat program, we use it
at A2L, but in the hands of an untrained user, Prezi presentations give people motion
sickness. You can learn more about it and see an example in my
article Collateralized Debt Obligations (CDOs) Explained for a Jury.

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7. Custom animation: Zoom effects in PowerPoint are not for beginners. PowerPoint
actually makes it quite hard to zoom in on an element in a slide without it becoming
pixelated. However, if you have learned how to do this, you can take something like
an org chart and create animated zooms into key elements of it to make your points.
Done well, the audience never loses sight of the big picture.

8. Layer elements in: When it is advantageous to show many elements together on a


slide, the best way to do this is to build them in over time. Showing an audience too
much at once causes them to shut down. Allowing comfort with the materials to build
over time is a best practice. Example #4 in The Litigation Guide to Trial
Timelines illustrates this nicely.

9. Zoomed-pop-in elements: Similarly, if you need to show many things on a single


image, you can make them legible by introducing one element at time, zoomed in,
nearly full screen. Once introduced they can reduce in size and be placed where
important. For example, in an org charge, each box could start full-screen sized and
then shrink while moving into place on the chart.

10. Hyperlinked elements: When you are not sure what order you have to show
materials in, you can use PowerPoint's hyperlinking function to pop-up an object so
that it is legible. For example, if you are showing an org chart, you could create a
hotspot on each position that when clicked would zoom open a larger version of the
box. Example #7 in How To Use and Design Trial Timelines shows how this is
achieved.

11. Printed materials: Very often, it just makes no sense to show something in
PowerPoint. Printed documents have better resolution than a screen and offer a
range of other advantages when handed out. See also 7 Ways to Avoid Making Your
PowerPoint Slides Your Handout.

12. Exception: Sometimes you want to show how hopelessly confusing something is to
gain an advantage. This is the only exception to the rules articulated above. For
example, if you want to show that a process was nearly impossible to follow,
PowerPoint may be ideal since you can build elements of the process over time until
it becomes impossible to follow.

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In Trial Presentation - A Camel is a Horse


Designed by Committee
There is an old expression that a camel is a
horse designed by committee.

The expression means that when many


individuals design something as a group, every
imaginable feature will go into the finished
product – and it will end up with many important
features. But the product will have lost its beauty
– and sometimes will have lost some of its
usefulness as a complete entity.

Working with trial teams to create a trial presentation can sometimes feel a bit like designing
a horse and ending up with a camel. Many people provide lots of input on a particular
presentation and sometimes, it ends up that too many features have been added to a single
trial presentation. Unless a strong leader seizes control and dictates the final content, the
project can go in any number of directions at once, and it may fail to be as outstanding a
product as it can be.

An easy business comparison is Apple. There, great design is at the core of the
company's success and has made it the most valuable company in the world. Since the
1990s, the man behind this great design is London-born designer Jonathan Ive. Ive, Apple’s
senior vice president of industrial design, has been responsible since 1996 for leading a
design team widely regarded as one of the world’s best. Ive has been said to have “the
obsessive desire to create products that are meaningful to people.”

Ive is ultimately responsible for the design of the iMac, the iPod, the iPhone and the iPad. It
was he who brought the great designs to Steve Jobs for his consideration. Jobs would pick
among Ive’s proposed designs. Fortunately for us, Jobs was right most of the time. What
we never see from Apple, however, are all the rejected designs.

At A2L, we see ourselves as the Jonathan Ive of a trial team, constantly bringing great trial
presentation ideas and prototypes forward with the hope that the first chair litigator will see
something that he or she likes. In my experience, the stronger the leader, the more likely it
is that a good trial presentation design approach will be selected and the camel-like result
avoided.

Our recommended approach when lots of individuals need to provide input on a project is
simple. Everyone has a voice, but only one person has a vote.

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15 Tips for Great Customer Service from


the Restaurant Industry
by Ken Lopez, Founder/CEO, A2L Consulting

I have a CEO friend who says she won't hire someone who’s
never had experience working in a restaurant. And she’s not in
the restaurant business. She just thinks that one of the best
places one can get trained in customer service is waiting tables
in some form.

And whoever you are – outside counsel, litigation support staff,


consultant, or in-house counsel – client service is an essential.
How do you develop that skill?

I've always felt that you can learn as much going to great
restaurants about customer service as you can in the Ritz
Carlton's hospitality training. Great waitstaff know how to make
the experience work.

Here are fifteen tips for providing great service that I learned from the restaurant business.

1. Set expectations. Most disputes arise from differences in expectations. This is


especially true in customer service. Helping people understand what to expect and
when to expect it is critical. If you're going to share the draft brief, the client needs to
know that it is a draft. If you're going to share trial exhibits in draft form with the client
they need to understand the difference between the draft and final from your
perspective.

2. Anticipate needs. Just as you would want your server to bring you a cup with a lid
for a toddler, offer your client things you know they are going to need. If they are
presenting at trial, make sure they have a remote clicker. If they are using printed
trial boards, make sure they have an easel.

3. Don’t be clingy. I recently had a waiter who would not leave our table but just kept
asking questions while I was engaged in an important business discussion. Knowing
when to back off is just as important as knowing when to lean in.

4. Check in from time to time. Asking how things are going is one of the simplest
things waitstaff can do. We do the same in our engagements. Asking how things are
going from the client perspective is one of the easiest things any of us can do.

5. At the end, ask how things went. Many restaurants use comment cards to collect
evaluations from diners. Most restaurants also ask how things went. You should do
the in your business. Perhaps it is not a comment card and is instead a follow up
lunch.

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6. Tell me about the specials. In litigation there may not be special offers, but you
may have some tricks up your sleeve that you can share. We often share ways to
save money or get the work done most efficiently.

7. Stay in touch. We work hard to stay in touch with clients and reach out to new
potential clients. There are many ways of doing this, but every client is unique. Find
the way that your client likes to maintain contact if at all, and try to customize that
experience for your client.

8. Dress well and look good. We like it when our server is put together and clients like
it when you are too. Look the part.

9. Ensure that all your systems are working, whether client-facing or not. Most
people in our industry are impatient. Few of us have tolerance for technology
letdowns. Make sure your technology functions and everything works when you're
near the client.

10. Be up front with the client. If there's a delay in the kitchen, the waitstaff should tell
the customer. The best thing to do is to explain the problem in detail and ask if
there’s anything you can do to make things right for the client. In the restaurant world
it might be a free drink or appetizer. Find the equivalent in your business and offer it
generously. If you don't have an equivalent offer, create one or simply provide free
professional time as your fall back.

11. Make sure other customers are not getting in the way of great customer
service. It actually bothers me when a lawyer tells me they're busy or can’t get to
something because they're servicing another client. You wouldn't want to hear that
from your waitstaff anymore than you want to hear from your lawyer. Insulate your
clients from knowledge of other clients. Make them feel like they're the only one.

12. Please take notes. I'm impressed when waitstaff try to remember an order of more
than a person or two, but I am also completely stressed out that they are going to
forget. So, it's just not fun for me. Writing things down in our business is just polite
even if you can remember what someone is telling you.

13. Status me. I like to know how things are going, and I find our clients like to know the
same. If my order is coming right up, please tell me.

14. Do I have the right utensils? If you serve me pie without at least a fork, I'm not
going to be happy. If we send a draft PowerPoint trial presentation to our client in a
version they don't have, they rightly get annoyed too. We ask first or we develop for
an older version of PowerPoint.

15. Say "thank you." It it such an easy thing to do, and it goes a long way. Write notes.
Buy lunch. No matter what, always find a way to say it.

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17 Tips for Great Preferred Vendor


Programs
by Ken Lopez, Founder/CEO, A2L Consulting

You might have read a recent article about the 12


alternative fee arrangements we use at A2L. It's
one of our most popular recent articles, and for me,
that speaks volumes about the state of the legal
market.

I confirmed that sense the other day over breakfast


with a partner in management at a major law firm. I
asked him what he thought about the "new normal,"
a term being used to describe the increased market
power of corporate counsel over price and other
terms when engaging a law firm. His response was
not surprising to me, but I am afraid it may be for some.

In sum, he said that now that corporate in-house departments have experienced having the
power to control price, things will never revert to the way they were before the recession
began to hit in 2008, with the possible exception of highly complex/highly threatening/bet-
the-company style litigation. I agree, and given his good business acumen, it's no surprise
that his firm is performing well while other firms continue to struggle.

Not long after the recession hit, A2L began to roll out a series of alternative pricing
arrangements. We've continued to innovate since then as well. I have been watching
carefully as various firms, both law firms and large companies, make us a part of their
preferred vendor programs as a provider of litigation consulting services. It's how they set
these programs up that is interesting to me.

Click here to Download


the Free Complex Civil
Litigation Trial Guide

Although A2L is a preferred vendor for a number of major law firms, most preferred vendor
programs have largely focused on e-discovery, legal process outsourcing, and other more
easily commoditized services like copying or scanning. For services like ours, where the
work is mostly intellectual and often unpredictable in scope, pricing can be a challenge.
However, we have also worked with Fortune 1000 in-house departments to help establish
preferred rates in the last year. These in-house departments and their procurement teams
have worked with A2L to establish standardized rates for a variety of services.

Below, I share some of the best practices as they apply to the selection of a litigation
consulting firm based on what I have seen from both law firms and in-house departments
recently.

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1. Get bids based on scenario pricing: A major national insurance firm requested a
preferred rate for our jury consulting, litigation graphics and trial technology services.
However, instead of focusing on the billable hour, they asked for scenario pricing like
"one day mock trial, three panels of 12 jurors." I thought this was a smart approach,
and we can certainly answer similar questions that specify scenarios such a five-day
patent trial over two patents with 30 exhibits in the Southern District of New York and
no wired courtroom; or a scenario of trial technology only in a three-week trial in the
Eastern District of Texas with 20 video depositions.

2. Try to obtain discounted blended rates for bundles of services: Pricing a mock
trial is very different from pricing of litigation graphics. For a mock, most of the money
spent will be on the facility and the jurors. The professional fees are small in
comparison. However, it is possible to blend rates for jury consulting, for litigation
graphics consulting and for trial technology services. When asked, we will do it for
the entire firm's set of services, although, it is influenced by the scope of the work to
be performed.

3. Remember, litigation is generally a one-time thing: You never want to be so


focused on price that you overlook this. For trial support, you generally only get one
bite at the apple, and vendors, especially new ones, can be a risk. So, as you
consider procurement, be mindful of quality. Trust me, all firms are not created equal
in this industry.

4. Ask about minority ownership and diversity: A2L is a registered minority-owned


business in many states, and there are reciprocity agreements among many other
states. If you are a law firm, your clients are probably asking for this already. If you
are in-house, you already likely understand the value of such certifications.

5. Check references: Ask for names of people who are a lot like you. If you are a
general counsel of a Fortune 1000 company, ask to speak with others who are
similarly situated. If you are the top litigation partner at an AmLaw top 10 firm, ask for
references of this type.

6. Learn the categories well: If you look toward the bottom of this article, you will see
a good list of our services with a number of sub-categories. Your goal should be to
collect hourly and scenario-based pricing in all of these categories when evaluating
litigation consultants.

7. Use spreadsheets: Your goal is going to be to build a spreadsheet with vendor


services on one side and vendor names on the other. Only by collecting the data
from a number of firms can you compare apples to apples. Remember though, there
are not as many qualified litigation consulting firms as there are law firms or e-
discovery firms, so you will likely need to include a quality score of some type to
avoid comparing high-performing firms with lesser firms and doing a disservice to
your client.

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8. Use tiered groups: Our firm tends to focus on larger, more complex cases, however
there are firms who focus mostly on smaller cases. Just as one would do if they were
comparing law firms, one would not want to compare their bet-the-company litigation
counsel to their slip-and-fall counsel. It is important compare litigation consulting
firms in tiers of who they typically serve.

9. Leave wiggle room: The best preferred vendor agreements I have seen include a
couple of terms that remain not fully determined, in order to encourage discussion.
Some firms charge for things that others do not, and you should leave the room to
discover this fact. For example, we have competitors who still charge hourly rates for
the use of a trial laptop by a trial technician whereas we assume that to be built into
the hourly rate.

10. Promote success fees, caps, ceilings, and the like: Referring back to our list of
various pricing strategies, you should ask your vendor list who is willing to participate
in various pricing strategies. Our list is a good guide for what to consider.

11. Trade things vendors value that are no-cost for you: Not only do you have power
to control price by simply demanding more standardization from like vendors, but by
giving more you can get more too. For example, A2L frequently negotiates on price
just to know we will be getting paid in a timely way.

12. If you have volume, use it to your advantage: Running a sales operation in
litigation support is expensive. There's travel, use of tools like LawProspector to
research who needs your services, there are sales meetings, CRM, commissions
and much more. If you can help reduce those costs for a litigation support vendor
with a preferred vendor program, you will benefit in the savings.

13. Invite many bidders: In our industry, there are all a handful of go-to litigation
consulting companies for “brain surgery” style litigation. However, there are many
firms available for your everyday $500,000 personal injury case. Figuring out who's
who is not easy. So, rely on referrals and high-volume best-of lists like the National
Law Journal's annual best of surveys.

14. Take advantage of training: Many firms like ours offer ongoing training in the form
of CLEs and other events. Negotiating this as part of the relationship is probably
good for both parties.

15. Review our tips for evaluating vendors in these articles: How to pick a litigation
consulting firm and what you must know when choosing a trial tech and 6 secrets of
the jury consulting business.

16. Focus on the possible payment of travel time: Different people take different
views on this topic. I actually think it should be compensated in some form if it is
difficult for the consultant to do other work, but plenty of F500's take a different view.
Just remember, litigation consultants are generally different from law firms. We tend
to focus on one client at a time.

17. Build a trusted evaluation team: It is going to take some smart people to work
through these issues, but the payoff is in the bottom line.

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6 Studies That Support Litigation


Graphics in Courtroom Presentations

When we started A2L in 1995, our focus was on educating the legal market about the value
of using visual aids in courtroom presentations. It may seem hard to believe now, but twenty
years ago, most people did not believe visuals aids would help much with a jury. As one
partner famously said to me in a Paper Chase-esque voice, "I went to Harvard and Yale, I'm
pretty sure people understand me when I speak."

Since then, the vast majority of litigators have come to realize that the litigation graphics
used in courtroom presentations are not used to make up for poor communications. Rather,
these visual aids, in the form of demonstrative evidence, trial exhibits, trial boards, scale
models, courtroom animation and trial director generated visuals are used to increase
the likelihood of winning cases.

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Visual aids help win cases for many reasons including 1) nearly two-thirds of jurors (and
many judges) are visual learners who process visual information far better than information
delivered orally; 2) people forget most of what they hear; 3) visual aids simplify cases and
speed them up; 4) visual aids are known to increase persuasion.

Below are 6 studies and articles that support the science behind using litigation graphics
and visual aids of all types in courtroom presentations.

1. The Wechsler Memory Scale (1946): First developed in 1946, this standardized
measure of memory has come to be used to measure everything from the
progression of Alzheimer's to juror memory and retention. It has been used
to authoritatively show that people quickly forget about two-thirds of what they
hear. Many studies draw similar conclusions.

2. Enhancing Juror Comprehension and Memory Retention (1989) [pdf]: "[t]rial


attorneys unknowingly present arguments and issues that exceed jurors' capacity to
understand. . . . being confused or feeling intellectually inferior
is psychologically uncomfortable, and jurors may respond with resentment and
antagonism toward the presenting attorney. . . . Present as much of your case as
possible using visual aids."

3. The Persuasive Effect of Graphics in Computer-Mediated Communication


(1991): Those exposed to graphics are more persuaded to act than those who
are not. The test constructed here was whether graphics (either static or dynamic)
made someone more inclined to pledge a donation to their alma matter than
someone who was exposed to only text.

4. A2L's Communication Style Study (2003): Practicing attorneys and non-lawyers


prefer to learn and communicate differently. A majority of non-lawyers prefer visual
communications. A majority of attorneys prefer non-visual
communications. Thus, litigators must bridge this communication gap with
visual courtroom presentations.

5. Visual Evidence (2010) [pdf]: Visual aids in courtroom presentations enhance


juror attention and recall and improve recall of key events. Charts and diagrams
improve comprehension of quantitative information, and animation improves
understanding of a dynamic process.

6. Broda-Bahm Study (2011): We referenced this study in a previous article. It found


that an immersive (as opposed to an occasional or absent) use
of graphics during courtroom presentations yielded the best results.

One cautionary note about vaguely cited studies and especially the often cited 1992 Weiss-
McGrath Report courtesy of Pepper Hedden, a detail-oriented reference librarian in the New
York County District Attorney's Office [pdf pp 27-30]. The results of the Weiss-McGrath

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study are impressive - a 650% increase in juror retention when oral and visual evidence are
combined. Many in the courtroom presentations business have cited this study for decades.
Google returns millions of results for it.

However, it turns out that the study does not actually exist. Rather, in 1992 an article was
published in the ABA Journal which cited this study. Weiss and McGrath did write an article
in 1963 that mentioned similar results, but they were quoting an 1856 internal corporate
presentation and not a study at all. The 1856 reference does in fact note that a study was
done, but it is not cited.

Please post links to additional studies and references in the comments section below. Your
email address is never shown, published or used, and you do not need to enter your full
name.

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10 Ways Timely Payment Helps You


Save Money On Litigation Consulting
by Ken Lopez, Founder/CEO, A2L Consulting

Trial consulting is certainly not a risk-free


business. Recently, our most significant
competitor laid off roughly 50 full-time
staff, for example. That can serve as a
cautionary lesson for our industry.

As a CEO, one of my jobs is to minimize


risk to ensure that we don’t run into the
same kind of problems. One of the
biggest risks that our firm and litigation
consulting firms like ours face is how we
get paid. It’s probably the single largest
barrier to entry in our marketplace.

We try to be thought leaders in our field, and publishing our litigation consulting report
blog is part of that effort. I believe, and I know this view is shared by most in the industry,
that if we can manage how we get paid better, the entire industry will be better for it. Simply,
the better payments are managed in the tripartite relationship of litigation consulting firm, law
firm and client, the lower the overall cost to the client (and everyone else too). That
connection between good payment structures and the ultimate cost to the client may not be
obvious at first glance.

No firm active in our industry is as large as a major law firm. Not one of us can really afford
to float the bills for a major law firm or major corporation for very long. As a result, the more
predictable the payments and the easier payments flow from client to law firm to litigation
consulting firm, the lower the costs for everyone in the relationship.

To take a closer look at why this is true, here are 10 reasons that paying litigation consulting
firms on time saves the client money.

1. Alternative Fee Arrangements Are Good Business. Clients love alternative fee
arrangements. They're demanding them of law firms and litigation consulting firms alike.
In this article about alternative fee arrangements, I outlined 12 methods we use for charging
customers. Most of our alternative fee arrangements have predictable payment structures
built into them. Sticking with these payment structures allows us to offer predictable pricing
and usually offer discounts in the process.

2. Structured payments make for more reasonably sized invoices and predictable
outcomes. We prefer and our long-time clients have come to prefer a model where we offer
predictable structured payments throughout the lifetime of a project. It ends up saving
everyone money. In the right kinds of cases, we even couple structured payments with fixed
prices.

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3. Litigation Consultants Are Not Like Other Experts. We often hear from clients that
many of their experts are comfortable waiting months to get paid and so we should be too.
However, there is one big difference between a litigation consulting firm and most experts. A
litigation consulting firm brings a team in to solve a problem (i.e. people to run a mock trial,
create litigation graphics, run courtroom presentations). There can be dozens of people and
large out-of-pocket costs involved. An expert firm may only use one or two people to
prepare an expert report; thus their costs are quite low. Time is money always, but it is
especially true when there are many out-of-pocket costs. The shorter the length of the
outlay, the lower the price we can charge ultimately.

4. Working Capital Requirements Are Large. In a large project for a large case, it would
not be unusual for us to generate six figures worth of invoices in a single month. If we do
that a few months in a row and then have to wait three or four months to get paid on those,
we would need to have upwards of half a million dollars of cash on hand just to fund that
single project. And we're never just working on one project. Given the opportunity costs of
keeping cash on hand, we can charge less when we don't have to keep it to fund a project.

5. We Provide Rare Access to High-End Talent. I think there are only a small handful of
people in the world who are experienced in litigation and have a creative talent. Many of
those people work at our firm, and there are others at a small handful of firms around the
world. You should not forget that you're paying for rare talent whether that is your jury
consultant, your graphics consultant or your in court trial technician.

6. You get what you pay for. This is true in terms of quality, but this is also true for
payment. When litigation consulting firms are not getting paid, salespeople do not get their
commissions, and they complain to the folks who deliver your product. When the people
charged with delivering your product have questions about the firm they are working hard to
support, you can imagine that everyone suffers. It is a lose-lose cycle that is so easily
avoided.

7. Responsible payment processing helps everyone. Most firms like ours have had
clients fail to pay their bills at some point, and this is money we probably will never see. So,
it quickly raises red flags when we see payments arriving late. One way or another, this
causes the cost of a project to rise, often because work is delayed and must be inefficiently
rushed close to trial. If bills never get paid, like shoplifting losses in retail, it just gets passed
onto other clients in the form of higher prices.

8. We offer discounts for early payments via wire transfer. We try to make it easy for
our customers to pay, and we even pay them to do so. It is a win-win.

9. Friction costs money. The more a litigation consulting firm has to do to get paid, the
more it costs the client ultimately. Such costs come in many forms and are easily avoided.
Why not simply create set-it-and-forget-it payment structures at the beginning of an
engagement coupled with accountability systems around the work performed? Doing so
produces smaller invoices and better relationships.

10. The equities support on-time payment. In comparison, litigation consulting firms are
dwarfed by law firms and their clients. Is it reasonable to ask a litigation consulting firm to
fund the operations of a Fortune 1000 company? Of course not. The cost of capital for a
litigation consulting firm is much higher than for a law firm or Fortune 1000. Accordingly,

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money is saved simply by not forcing a litigation consulting firm to tap its pricey lines of
credit to fund litigation when that capital could more cheaply be deployed by firms with much
more cash on hand.

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What Do Trial Presentation Services


Cost?
We are often asked how much trial presentation consulting services cost. Since we have
been consulting with the legal industry since 1995, we are experts in estimating price for
trials of all sizes and complexity. Indeed, we can usually provide a solid estimate in our first
conversation with a potential client. We believe anyone in the industry should be able to do
the same if they are truly experts.

We have two pricing methods: billable hour estimating and fixed-price arrangements. Here's
what they mean:

• Billable Hour Estimates: Just like a law firm, we offer our services on a billable hour
basis. Members of our team have different rates depending on their skill set and
experience. We differentiate ourselves from the competition insomuch as we stick to
our estimates.

• Fixed-Price Contracts: Since we have worked on thousands of cases since 1995


and we are experts in estimating, we offer a fixed-price for many of our
projects. Imagine, not having to worry about bills spiraling out of control and only
having one conversation about money with your client. Here is an article about
our alternative fee arrangements.

In a typical case we find our services cost the client less than 5% of the legal fees in the
case or less than 1% of what is at stake in the overall case. Usually, our fees are
somewhere between 1/10 of 1% and 1/2 of 1% of what is at stake. Truly, they are a drop in
the bucket.

Despite the relatively low investment, the value delivered is enormous. With 2/3 of the
population preferring to learn visually, the best visuals can win a case, especially with all
other things being equal.

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12 Reasons Bullet Points Are Bad


(in Trial Graphics or Anywhere)
Bullet points, especially when they’re found in PowerPoint
slides, have become the cliché of the trial graphics and
presentation worlds. There’s no good reason to use
them, and plenty of reasons not to. For many, bullet
points signal a boring presentation is about to begin or one
is about to hear a presenter who, like someone on a
vintage cell phone, is detached from modern presentation
style.

Bullets are not just aesthetically bothersome. The A2L


Consulting trial graphics team, trained in cutting-edge
theories of conveying information, believes that text-heavy
presentations riddled with bullet points also do harm to the
persuasion process.

Garr Reynolds, a leading writer on the art and science of presentation, says in Presentation
Zen, “Bullet-point filled slides with reams of text become a barrier to good communication.”

Chris Atherton, a cognitive psychologist who has scientifically studied bullet points, writes,
“Bullets don't kill, bullet points do.”

Attorney Mark Lanier, commenting on his $253 million Vioxx verdict after following the no-
bullets advice offered by Cliff Atkinson, another top presentation theorist and author
of Beyond Bullet Points, said, "The idea that you could speak for 2 1/2 hours and keep
the jury's attention seemed like an impossible goal, but it worked. The jury was very
tuned in."

Below is a list of reasons and resources that support the reality that bullet points do not
belong in your presentation – whether a trial graphics presentation or something else.

1. People read faster than they hear -- 150 words per minute spoken vs. 275 words per
minute reading. People will read your bullets before you can say them and stop
listening. If jurors are spending time (and brain-power) reading your trial graphics
presentation, they are not listening.

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2. Chris Atherton's work confirms that bullet points do real harm to your presentation.
Her scientific study validates the notion of eliminating bullet points and she lectures
on the topic in this video.

3. The redundancy effect describes the human mind’s inability to process information
effectively when it is receive orally and visually at the same time. If you speak what
others are reading in your bullets, because of the redundancy effect, you end up with
less comprehension and retention in your audience than if you had simply presented
either 100% orally or 100% visually. http://www.a2lc.com/blog/bid/26777/The-
Redundancy-Effect-PowerPoint-and-Legal-Graphics

4. Authorities on the subject agree bullets are problematic. Read Presentation Zenor
pick up Garr Reynolds' tips in the video below. Also see here
http://beyondbulletpoints.com/ and here:
http://sethgodin.typepad.com/seths_blog/2007/01/really_bad_powe.html

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5. Watch great presentations and see what they are doing right (and note that they do
not use bullets). Here are three stand-out and bullet-point-free presentations:

Hans Rosling's TED Talk presenting data in an appealing way.

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Steve Jobs introduces the first iPhone in 2007.

Al Gore revisits his Inconvenient Truth theories.

6. The more you use bullets the more people will judge you as outdated. If you are
making a trial graphics presentation and your case relates to technology, this is
unforgivable, but for any case this will not be helpful. Remember Chris Atherton's
work from point 2 above.

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7. If you are using bullets to talk about numbers, there is usually a very easy
workaround. For example, here is an easy way to handle changing metrics:

and an easy way to handle dates:

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8. Understand how the brain works. Developmental Molecular Biologist Dr. John
Medina explains briefly one of his 12 "brain rules" from his book of the same title.
Here, he explains that vision trumps all other senses and pokes fun at bullet points in
the process.

Vision from Pear Press on Vimeo.

9. Whether most of your presentations are for judges and juries or whether they are for
management, learn how to tell better stories; take a look at one of our most popular
articles: articles http://www.a2lc.com/blog/bid/53536/10-Videos-to-Help-Litigators-
Become-Better-at-Storytelling

10. Remember, if you are using bullet points, people are likely to tune you out as boring
when you most want them to be paying attention.

11. Consider using Prezi instead of PowerPoint as we explained in this popular post, and
illustrated in A2L's well-circulated Prezi sample that explains Collateralized Debt
Obligations (CDOs): http://www.a2lc.com/blog/bid/40453/Beyond-PowerPoint-Trial-
Presentations-with-Prezi-and-Keynote

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Collateralized Debt Obligations (CDOs) Explained with Prezi on Prezi

12. Finally, while A2L Consulting would be thrilled to help, here are 74 ways to remove
bullet points on your own.

a. 6 inspiring non-bullet point options

b. 41 great alternatives to bullet points

c. 4 before bullet point and after bullet point examples

d. 4 great before and after bullet points from Garr Reynolds (see slides 5 through 8
- although his entire presentation is helpful)

e. 7 ways to replace bullet points altogether

f. 12 more ways to avoid bullet points

We believe that a well-crafted presentation -- whether in trial graphics or in the corporate


world -- will change the way people make decisions. Regardless of your audience, there is
something you want from them. Make your presentation the best it can be using the latest
techniques.

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What Does Litigation Animation Cost?


(Includes Animation Examples)

By Ken Lopez, Founder/CEO, A2L Consulting

Our firm, A2L Consulting, is a national litigation consulting firm with a wide range of trial-
focused services from jury consulting to mock trials to trial graphics to courtroom trial
technology services. However, most people don't know that I founded A2L 18 years ago
after I had taught myself computer animation while in law school.

To me, it made sense to try to fit these two subjects together. In retrospect it was quite
smart. At the time, though, my friends and family looked at me with a somewhat perplexed
gaze.

You see, animation was just emerging on the scene with movies like Jurassic Park and Toy
Story. In the courtroom the first litigation animations were being used in a handful of cases
in the late 1980s and early 1990s.

Back then, people would quote animation costs at as high as $1,000 per finished second of
animation. These numbers seem preposterous today, as production costs have plummeted
and prices more along the lines of $1,000 per finished minute are not uncommon.

However not all litigation animations are created equal. Indeed there are many types and
there is a flavor for every case and every budget.

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In a previous article I described the types of litigation animation used typically in the
courtroom. To summarize, they are PowerPoint animation, 2-D animation, and 3-D
animation. There are several variants of 2-D animation, and one looks convincingly similar to
3-D animation.

There are a variety of tools used to produce animation from PowerPoint on a laptop to Flash
on a desktop PC or to Maya on a workstation. Not only do the costs of hardware and
software vary dramatically but the kind of people who produce these animations vary in their
availability and demand.

Suffice it to say that PowerPoint animators are the most readily available and can work on
the least expensive hardware-software combination. At the other end of the spectrum are 3-
D animators. Good ones are few and far between, and they require high-end software and
hardware and lots of experience to produce good work.

Not only is there variability in cost of production, but there is significant variability in the time
required to produce a finished product. Some PowerPoint animations can be done in a few
minutes and may be all you need for your case. Other 3-D animations may require weeks or
months to develop a finished product for trial.

Below is a guideline for what a trial team should expect to pay for three types of typical
litigation animation projects.

1. Five minutes of a PowerPoint animation-style exhibit with average complexity. For


something along these lines, I would expect to invest between $5,000 and $15,000, with the
variability explained by the amount of complexity and the amount of back-and-forth. Here is
an example of project like this where video playback patents had to be explained at trial:

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Below is an example of another PowerPoint-style animation used in an ITC case involving
ground fault circuit interrupters.

2. Ten minutes of animation built from drawings or schematics, perhaps of an


environmental spill or plume, an architectural drawing or a bringing a patent drawing to life
as we explained in this article. For this project, which likely requires more technical skill in
the use of a product like Adobe After Effects or perhaps Flash, I would expect to invest
between $10,000 and $35,000. Below is an animation of toner tubes from a patent case.
The models were built from existing CAD technical drawings which sometimes saves
considerable time and money on litigation animation costs.

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Below is an example of 2-D animation used to explain how a power plant works and give a
sense of its scale:

3. A 15-minute 3-D animation of a complex subject like a highly technical patent, a


structure collapse or perhaps a complex aviation accident. Assuming the animation was still
considered demonstrative in nature rather than a simulation, which requires an entirely
different level of complexity, I would expect to invest between $40,000 and $150,000 for this
type of product. Below is an example of a 3-D animation used in a patent trial that resulted
in the 6th largest verdict in patent litigation history:

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Below is another 3-D animation used in a mediation for an environmental insurance
coverage dispute:

In the 3-D litigation animation example below, the layout of a coal-fired power plant is
explored:

Of course all of these costs are highly variable but they provide broad guidance for what to
expect and how to look at your projects as you think about trial. Below are some additional
materials related to animation for use at trial.

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In-House Counsel Hiring Methods for


Litigation Counsel Are Surprising
by Ken Lopez, Founder/CEO, A2L Consulting

A little more than a month ago, I surveyed


our readership and asked, "how does in-
house counsel hire outside litigation
counsel?" Six possible answers were
presented in random order.

1. In-house chooses the lowest


priced firm from a group of
approved firms.

2. In-house hires the best litigator


based on prior experience.

3. In-house hires the best litigator based on their reputation.

4. In-house hires their litigator friends and former (or future) colleagues.

5. In-house hires the litigator most likely to generate a win.

6. Finally, a write-in field for other responses answers

Having worked in the litigation industry for more than 20 years and seeing favoritism trump
skill plenty of times, I expected some cynicism to show through in the answers provided.
However, even with that expectation, I was still very surprised with the results.

A2L Consulting is quite precisely in the business of helping litigators improve their results at
trial, primarily through mock trial testing, litigator coaching and the development of
persuasive litigation graphics. Said another way, we are in the business of helping trial
teams win. Accordingly, perhaps seeing the world a bit too much through my own lens, I
really did expect that the number-one result would be "in-house hires the litigator most likely
to generate a win."

Boy, was I wrong. That answer didn't place in the top four. In fact, other than "Other," win-
generation-likelihood was the factor ranked lowest for how in-house counsel hires outside
litigation firms. I find that amazing. Isn't a win exactly what we seek when going to trial in the
first place?

Well, the results get even more surprising. Two answers stood out as the dominant rationale
for making hiring decisions. They are essentially tied for first place and are together twice as
popular as the next two highest ranked answers. Based on 168 responses thus far, in-house
counsel hires outside litigation counsel by:

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• Hiring the best litigator based on prior experience, and;

• Hiring their friends and former (or future) colleagues.

Those are pretty surprising answers if you think about it. In-house counsel are, by and large,
hiring their buddies and litigators they've used before. They are not hyper-prioritizing
winning, reputation and price, at least not over other factors. That's not to say that those
factors are not considered. Rather, they are just factors not at the top of the list (albeit, by a
wide margin).

There's nothing wrong with hiring a litigator who has generated good results before. Past
performance is the best predictor of future performance. However, it is extraordinarily rare, if
not impossible, to find a litigator that is the right fit for every case a business faces.
Furthermore, most great litigators actually go to trial very rarely, so how can one reasonably
predict great results based on one or two previous positive results? If favoritism is the
dominant decision-making rationale, one can't really say they are deeply focused on
winning. Trust may be important, but how much does it really contribute to getting great
results at trial?

Putting on my CEO hat for a minute, I can't imagine our GC making a decision based on
favoritism, and I wonder if CEOs and CFOs understand how the hiring of outside litigation
counsel is being handled in their firms. How many dollars are being lost or left on the table
(at trial or with outside counsel) because of this decision-making methodology? How would
a CEO or Board of Directors even begin to evaluate whether the trial results they are getting
are as good as they should be? I'm going to tackle this and many of these questions in
future articles.

The write-in answers on this survey provide more clarity, confirmation of the dominant
decision-making rationale and a few laughs. Here are a handful of answers that stood out to
me when our readership was asked, how does in-house counsel hire outside litigation
counsel, and chose "other":

• "In-house hires the firm where a member of the board of directors is a senior
partner."

• "In-house hires the law firm least likely to cause in-house to be fired"

• "In-house hires "IBM", which is the litigator or firm that they will not be questioned
about if they lose"

• "In-house hires the firm that presents the strongest strategic argument when
interviewing the firms"

• "In-house hires the team with whom they see themselves being able to spend the
next five to seven years of the lives."

• "In-house hires the litigator who best understands their business"

• "Hire a big firm regardless of price or litigation history."

• "Who they play golf with."

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Witness Preparation: Hit or Myth?


by Laurie R. Kuslansky, Ph.D.

Have you ever helped a witness get up to speed, or


interviewed a witness who seemed all put together, only to
see him or her take the stand and unravel? For example, had
Mark Fuhrman been able to appropriately acknowledge his
regrettable actions of the past in the O.J. Simpson criminal
trial, how many days of courtroom drama would we have
been spared?

Recent high-profile cases suggest the need to rethink basic


assumptions about witness preparation – to, in effect, probe
the essentials of this fine art more deeply than is encouraged
in most litigation skills training.

There are two fundamental levels of witness preparation:

• Witness Prep Level 1: Surface, which includes observable outward appearance,


demeanor, body language, and delivery of verbal testimony.

• Witness Prep Level 2: Subsurface, which includes the emotional/


personal/professional conflicts that act as an undercurrent to the surface level.

Witness Preparation Level 1 – Surface

Many practitioners (lawyers and others) attempt to modify the exterior aspects of witness
testimony (i.e., the surface level) by rehearsing the “correct” responses with witnesses,
admonishing them about incorrect responses, and telling them how or how not to look (i.e.,
cosmetic fixes). It is common to discuss the selection of the appropriate suit and tie for a
male witness or the right style of dress and accessories for a female witness.

It is also common to provide witnesses with lawyer-generated outlines or scripted responses


for Q & A sessions, and to ask them to study and internalize the scripts. Efforts of this type
require witnesses to perceive, attend to, comprehend, store and recall information. In other
words, they must use their perceptual and cognitive abilities.

However, traditional witness preparation tends to yield unreliable results because it is


superficial and does not address subsurface conflict. For example, we have often heard
counsel advise a witness, “Don’t worry about this particular issue in your testimony,” without
knowing what the witness actually does have to worry about.

Progress made through surface-level preparation alone is transient and highly susceptible to
being reversed in the absence of constant reinforcement. Conflict tends to undermine
surface-level preparation because it interferes with the perceptual and cognitive skills
involved in processing and recalling the information. Distractions or emotional concerns

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may cause the witness to simply forget the answer due to limited recall of the “correct”
response when under pressure. Second, even when the witness recalls the “correct”
response, the delivery can unwittingly communicate unaddressed, underlying discomfort or
conflict and betray the intended message. In other words, the delivery (through intonation,
choice of words, facial expression, body language, posture and eye contact) can sabotage
the response (for example, when the mouth says “no” but the head nods yes).

Finally, since rote feeding of responses cannot predict every possible question, it cannot
supply every possible answer. The witness may progressively fail to hold up under attack on
cross examination because he or she does not know the prescribed response to an
unanticipated question. If, in the face of the unexpected, a witness senses that they’ve lost
control, it will throw them off track and into a tailspin.

Witness Preparation Level 2 – Subsurface

The surface-level approach thus ignores two powerful sources of potential witness failure:

1. The inability to predict every possible question and thus to model every possible
response for the witness.

2. The fact that, in some way that relates to the case or the experience of testifying, the
witness is conflicted. Such conflict tends to undermine surface level preparation
because it interferes with the perceptual and cognitive skills involved in processing
and recalling the information necessary for effective witness performance. In addition
to pondering and reviewing legal or technical facts, almost every witness is likewise
preoccupied by internal and personal issues. These may pertain to his or her real or
imagined vulnerabilities, may or may not be case-related, and may be known or
unknown to the trial team. Usually they are unknown.

For example, there was “the man who bent over backwards,” a caring, hardworking disaster-
claims adjuster with an impeccable professional record who had an extramarital affair during
a claim assignment. The handling of that claim later became the issue of a lawsuit. The
adjuster’s diligence might be a positive issue under cross, but because of his affair (not the
work he had done), he experienced great angst while preparing to testify. The
consequences of being exposed threatened to undermine his testimony. It was only by
bringing the issue of his affair to light, discussing possible consequences and solutions, and
reconciling them in the context of the case that the witness was able to cope with it. Once
free of his dark secret, he was prepared to assert affirmative points, focus on his proper
handling of the disputed claim, and present himself with dignity. In fact, further dialogue
revealed that, in some instances, his on-the-road relationship may have actually benefited
the insured because he had offered extra assistance to his coworker paramour (crawling
into difficult-to-reach inspection sites, for example), which he would not have done had they
not been so close.

The sources of conflict are typically not cognitive, but emotional or personal in origin. Since
one’s emotional state affects perception and memory as well as overall competence and
performance, it is risky to engage in preparing a witness on the surface level until the covert,
subsurface-level issues are addressed first and fully. The conflicts must be explored,

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revealed and resolved before a witness can come to a state of optimal competence and
reliable performance in which he or she is fully able to process and handle information.

During typical preparation sessions, witnesses are unlikely to voluntarily bring their personal
conflicts and concerns to the surface and reveal them to the trial team, either because they
are unaware of the conflicts themselves or because they experience shame, regret, dread of
repercussion, or self-recrimination. This is particularly so for expert witnesses who often
fancy themselves (or believe others should see them) as invincible. Admitting a problem
could shatter that image.

The goal is to prepare a witness to be conflict-free. The term “conflict-free” does not mean
“problem-free,” in which witnesses would be reassured by simply playing down the
challenges to overcome in the testimony. Instead, it means a witness free of unaddressed
emotional dread about undisclosed issues. Internal conflict is fueled by anxiety and is then
unwittingly disclosed on the stand in a variety of self-defeating behaviors. These include
defensive preempting of, or sparring with, the cross-examiner; anticipating questions;
interrupting the examiner; becoming antagonistic; misstating known facts; failing to recall
memorable facts; or contradicting prior testimony.

Solving Conflict: Important Steps

Being conflict-free is achieved by:

1. Establishing rapport and trust with the witness;

2. Empowering the witness with knowledge about the case, the process, procedure,
case progress, and expectations; and

3. Exploring and addressing internal personal fears by providing concrete coping


strategies and helping to reframe issues. It is not necessarily a “bad fact” that
undermines a witness; rather, it is how the witness views and reacts to the bad fact
that determines his or her credibility and durability as a witness. One senior engineer
had a habit of jotting down highly provocative and inflammatory comments in the
margins of his company’s internal memos. In a lawsuit years later, he was terrified
those notations would come back to haunt him. The day was won by shifting his
focus from the notations to his behavior, and by getting him to acknowledge outright
that he had a bad habit of writing “cockamamie” things which were immature,
impudent, and intended to get a rise out of his superiors, but which did not relate to
the plaintiff’s allegations of fraud.

4. Establish rapport and trust. Ask fundamental questions that show concern for
witnesses. Who are they outside the context of the case? What are their family
histories and backgrounds? Place in birth order? Role in family, role in business,
role in the case? How has all of this affected their personal and professional
lives? What makes them angry or worried or upset? What is the best and worst
outcome they could expect? How do they feel about the possible
consequences? What is their prior experience testifying? What from that experience
still applies? What’s different now? What, if anything, do they regret regarding this

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case? How, if at all, can it be remedied? What would they have done differently if
they knew then what they know now?

Maximizing contact between the witness and the trial team helps to maintain the established
rapport and sends a message to the witness that the trial team is receptive and values their
participation. Individuals such as junior or lower level associates and staff who are capable
of building rapport with witnesses can act as communications liaisons between witnesses
and senior members of the trial team. Such liaisons are commonly more accessible and
less threatening. Witnesses are apt to ask them questions or express concerns to them.
These contacts can be especially valuable during the pretrial countdown days when what
the witness considers important can be superseded by the trial team’s priorities.

Empower the witness with knowledge. Even a seasoned professional can be reassured by a
review of fundamentals and details of what is expected in an upcoming procedure (whether
deposition, hearing or trial). Make sure witnesses are kept up to date regarding the status of
the trial and changes that may impact the order and substance of their testimony. The
communications liaisons discussed above can assure that witnesses are continually
apprised of developments. Address areas of conflict and provide coping
strategies. Particularly troublesome witnesses who have difficult dispositions, attitudes,
and/or substantive problems can be significantly aided with the help of professionals.

Appropriate professionals to consult include those who specialize in psychology and law,
who have an astute understanding of trial tactics as well as the know-how to deftly elicit and
manage witness conflict. Psychologists who lack an understanding of trial context and
strategy will be of limited value. Explore, through nonjudgmental dialogue, how the witness
witnesses reframe issues to alleviate undue stress and resolve internal conflict. Perhaps
most importantly, do not supply answers before hearing out the witness. Here are a few
specific coping strategies:

Reframe Difficult Issues

From: “I did the wrong thing.”

To: “Knowing what I knew at the time, I did my best under the circumstances: I made a
reasonable choice and took reasonable action. I did not know and could not have known
then what I know now.”

Overcome Anticipated Criticism or Exposure

From: “I fear this issue is going to come out. I pray it doesn’t. I don’t know what to say. I
should have done a better job/more/shouldn’t have done what I did.”

To: “That issue may very well come out. If it does, I can respond with x, y and z. It is not
really relevant because it has nothing to do with this case. It is simply intended to make me
look bad. Knowing that, I can prepare for it. In any case, I can bring the focus back to my
main point.”

Modify Unrealistic Expectations

From: “I wish I had read everything, knew what everyone else was going to say or said, and
could remember everything so I don’t get tripped up and look stupid.”

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To: “No one can read, know or remember everything. I can reasonably review what’s
important, make a plan and be diligent. After that, it’s perfectly fine to ask to see documents
to refresh my recollection, to take my time and contemplate questions, and to say I don’t
know/remember’ if that is the case. I do not have to be perfect, I just have to be myself and
do my best.”

Take Reasonable Control

From: “No one is really looking out for me. The lawyers don’t even know the right questions
to ask. I’ll have to straighten them all out.”

To: “I’m part of a relay race. I have my part, no more and no less. My part is a-b-c. If my
lawyers

choose not to ask for a certain detail, that’s based on their expertise. They probably know
something I don’t, so I’d better do my job and let them do theirs. “I’ll just stay cooperative
and answer the questions asked as best I can. If the other lawyer asks a poor question or
a mistaken assumption, I will simply offer accurate information and not attack the lawyer. I’ll
have another chance on redirect to respond if my lawyer thinks it is necessary. If not. I’ll
have to trust their judgment. They’re running the show, not me.”

Learn Where to Pick Fights

From: “I’d really like to show up (opposing counsel). He really gets my goat. I’m not going to
give him an inch.”

To: “I’d rather win the war than the battle. When I respond cooperatively and make my point,
I show real strength instead of showing I have something to be afraid of by playing tug-of
war. If I let go of the rope, my opponent will fall, not me. Otherwise, I’ll be sending a red flag
and creating smoke. That hurts me, not them. “Conceding minor points is sometimes
appropriate. Otherwise, it will seem like I am difficult and combative, which is unpleasant
and not persuasive. What really matters in this case is that the jury understands x, y and z. I
can help send that message.”

How Not to Take It Personally

From: “If I don’t blow it on the stand, I’ll be a hero; if I do and we lose, it will all be my fault.”

To: “I know what I know, I’ll prepare well and do my best. My goal is to communicate two
points, ‘a’ and ‘b.’ Beyond that, I have no control over what happens. I am only one part of
the case. I will let the lawyers and other competent witnesses do their part. I will make a
sincere effort. Whatever happens, I’ll be the same person afterwards as I was before.”

In sum: To present a witness who is well-prepared, it is vital to reveal and remove conflicts
which, like hidden land mines, can cause irreversible damage.

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10 Things Every Mock Jury Ever Has Said


by Laurie R. Kuslansky, Ph.D., Jury Consultant

For decades and in every part of the nation, mock jurors who are presented with various fact
patterns and legal issues tend to have the same reactions. Some are helpful and others are
harmful, depending on where you stand in the case. Knowing that these issues recur over
and over can help to prevent those which are unfavorable to you:

1) Why did the plaintiff wait so long to sue?

While there may be good reason to delay filing suit, mock and actual jurors often use the
delay between the alleged problem and the filing of a claim as a yardstick of its merit. The
longer the gap, the less credible the claim. If counsel fails to address this issue, it tends to
work against the plaintiff. It is especially damaging, for example, when someone claims an
issue in the workplace, but waits until they are no longer employed. To many jurors, this
signals that it was the termination, separation, or voluntary departure that was the issue, not
the conduct, such as discrimination, that is the subject of the complaint.

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2) That doesn’t make sense.

Lawyers don’t always put their case through the basic “smell test” or test of common sense
from the layperson’s perspective. They skip this step at their own peril, because those are
the tools most accessible to lay jurors. While the theory of the case may work for a
sophisticated user, it may go over other people’s heads and not square with more
fundamental questions. Jurors’ questions may and often do fall outside the strict legal
requirements of verdict issues to answer -- but if left unanswered for the jury, those gaps
often harm the party that failed to close them. For example, motive may not be required
legally, but is required for most cases psychologically. People want to know who gained
and who lost? Why did they do what they did? Did they have alternatives? Why would
someone act against their own interest? Why would a rich person nickel and dime?

3) How much should we give them?

Without the benefit of law school, or knowledge of the law, lay jurors often have no difficulty
separating causation from damages. Instead, some permit other motives (e.g., sympathy),
to drive a desire to award some money, whether or not liability has been proven. Therefore,
it is not uncommon for mock deliberations to begin not with a question of liability but with the
question, “So, how much should we give [plaintiff]?” A mere reading of instructions is not
the remedy. Instead, defense counsel needs to pay particular attention to this possibility
and address it directly – not only legally (the law requires a finding of liability before
considering damages) – but in terms of messages of why it is okay not to award damages,
or not okay to award them from a practical perspective. For example, one might argue that
awarding damages to the plaintiff means that the defendant did the wrong thing and the
evidence shows that these people (defendants) did not do the wrong thing.

4) That may be true, but they didn’t prove it.

Thankfully for some defendants, many jurors express their belief that the plaintiff is right, but
accept that the plaintiff must prove its case and that the evidence does not amount to proof.
Arming defense-oriented jurors to espouse this posture to defeat plaintiff-leaning jurors is
always worthwhile, especially in cases that may engender sympathy for the plaintiff. “You
may think the plaintiff is right or you may want the plaintiff to win, but the test is for the
plaintiff to prove their case and if they do not do so, then you cannot find for the
plaintiff.” This line of thinking should also be incorporated into the voir dire where available,
e.g., asking questions along the lines of “If plaintiff has to prove its case and does not prove
its case with the evidence, can you assure me that you will not find for the plaintiff?”

5) Let’s see what everyone wants to give and divide it.

In an attempt to fairly represent everyone’s position about damages, the most commonly
seen approach is the quotient verdict on damages, whereby the average of the individual
awards is the final one. Research has shown that it is not a true mean, but rather skewed
upward because those wishing to award/punish more strongly tend to stand their ground

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more fervently and exaggerate the amount more than the opposing camp. To prevent this,
individual jurors should be encouraged to stand their ground and should be armed with
messages in summation on how to deal with this possibility.

6) Do we have to be unanimous?

No matter how clear the jury instructions when unanimity is required, someone in the
deliberations will question it. This typically occurs when the group is not in agreement and
seeks an easier way out of resolving their differences. If unanimity helps your side, then
additional attention needs to be paid in summation to what the jury is being asked to do.
Summary litigation graphics that make it easy for everyone to have a mutual reference point
can help disparate thinkers converge on the points made visually, and the presenter should
incorporate language that leads them to unanimity, e.g., “As we can see in this summary of
the evidence, no one should disagree that x, y, z.” “Everyone on the jury saw and heard the
testimony of X, which showed that …., so everyone has the evidence needed to come to a
unanimous decision on that issue to decide Y.”

7) Were those real attorneys or actors?

It is surprising, but consistent, that mock jurors assume the actual attorneys are actors, but
that the jury consultant is an attorney.

8) Where is it in writing?

People who lack legal training or involvement in fields in which spoken agreements are
common are extremely skeptical about any oral agreement, absent documentary
support. In some places, cultures, or age groups, a handshake is a durable bond (e.g., the
South and the older generation), but in others, it amounts to a mere he said/she said and
means little to nothing. Overall, most jurors and mock jurors reject the concept that a verbal
agreement is as binding as a written one, no matter what the law may say. Though a
course of conduct may help reinforce that there was an agreement, it often requires some
writing to be believed, so it is an uphill climb to prove a binding agreement in its absence.

9) We should give them something.

When a plaintiff is especially sympathetic (e.g., a baby or a child), a defendant is disliked or


perceived to be rich (e.g., a pharmaceutical or insurance company), or the conduct is
notably unlikable (alleged pollution), jurors often rig their decisions in order to award money
to plaintiffs, stating their discomfort and reluctance to send plaintiff home empty-
handed. This echoes the process of awarding damages stated earlier, whereby there is a
disconnection between liability and damages. Part of overcoming this behavior entails
arming jurors with a message of why it is not okay to penalize the defendant when
wrongdoing is not found, or why it is okay not to reward plaintiff. Again, it is a subject that
should be addressed in voir dire. “Although you may have sympathy for the plaintiff(s) in

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this case, do you have any doubt or discomfort awarding no money if the plaintiff does not
prove his/her case?”

10) It may be legal, but it just isn’t right.

For some mock and actual jurors, the moral barometer is sufficient to find liability, regardless
of the legal standard. Counsel for the defense should make sure to address this
possibility. While someone may not like the law, the law is what he or she is required to
follow. The subject should also be included in voir dire, e.g., “If your personal feelings are
different from the legal instructions, please explain if you would have any difficulty following
only the law and the evidence to reach your decision.” “If you have any religious or moral
beliefs that might stand in the way of you making a decision only based on the law, and
setting those aside, please let us know/raise your hand.”

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Poof! Seeing Litigation as a Business


This article is an excerpt from a longer article and e-book available for free download by
clicking here

Litigation, that is, one piece of litigation, is what I call a “poof business.”

Similar to any other business, a particular piece of litigation has revenue, expenses, full-time
and part-time employees, consultants, sometimes a formal budget, some form of
organization, a team culture and its success or failure can be measured in dollar
terms. When compared to these typical business traits, a piece of litigation sounds like a
business, right?

So, why “poof” you ask? Well, unlike most businesses built to last for many years, decades
or even centuries, litigation has a finite lifespan. Poof!, it’s there, and poof!, it’s gone.

It’s a peculiar thing really, and I think it is a business model worthy of closer examination. In
this article excerpt (download full article as part of a free e-book on litigation leadership
here), I would like to briefly examine one element of the poof business model: leadership.

Poof Businesses

The litigation business is not without comparison. Other poof businesses do exist. For
example, a movie production, a Broadway play, a concert tour or an election
campaign. Each of these businesses shares traits with litigation that are more than just
being created with an end in mind.

Non-poof businesses have a startup phase usually accompanied by some form of business
plan. Companies like Google, Facebook and Amazon ran on very little cash in their first few
years. Google only had $100,000 to fund its first year, and Amazon’s first year investment
consisted of a few hundred thousand dollars that came from founder Jeff Bezos’ parents’ life
savings. Even Facebook started with a budget of near zero.

Poof businesses, on the other hand, spend millions of dollars in their short
lifetimes. According to theAIPLA, the average cost of major patent litigation is estimated to
be at least $6 million with many costing tens of millions.

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Leadership in Poof Businesses

As intensely studied as traditional businesses are, poof businesses, by comparison, have


received scant attention. Many authors devote their lives to educating people on leadership
in business. Amazon lists more than 50,000 titles about leadership alone. Still, hardly any of
these books give leadership in poof businesses (by any name) any attention.

Many of us in business leadership positions spend significant time and effort focused on
becoming better leaders. Like more than 10,000 other CEOs in the U.S., I spend a full day
each month attending Vistagemeetings (a CEO focused organization) where the emphasis
is on education, methods and ideas for improving leadership.

Leadership in the Business of Litigation

I believe litigation team leadership should be well-defined and openly discussed.

One of the many best-practices that litigation teams can learn from other business teams is
that a clear leadership model is imperative to the success of any business; even if that
business is short lived by its very nature. I believe choosing the wrong leader for a team can
lead to just as bad an outcome as choosing the wrong lawyer to try the case.

As celebrated Vistage Chair David Belden has said, “leadership is not about what you say,
your followers are watching what you do and that is all that matters. To be seen as a leader,
you must be seen leading.” So, what does good leadership look like?

Achieving Level 5 Leadership in Litigation

In Good to Great, Jim Collins describes five attributes of a Level 5 leader, the type of leader
associated with the most success. In two excellent articles on the topic (part 1, part 2), Dr.
Carl Robinson offers a guide for becoming a Level 5 leader and summarizes their habits and
traits.

Having worked with hundreds of the world’s top litigators in my sixteen-year career in
litigation consulting, I believe that those litigation team leaders with traits similar to those
described by Collins and Robins have the best results.

Conclusion

I believe that a piece of litigation should be seen as business and can be categorized as a
special type of business called a poof business. It’s leadership should be clearly defined,
and it’s leader should be asking himself or herself how they can become, in the
nomenclature of Good to Great, a Level 5 leader of their business. If they can recognize the
importance of a clearly defined leadership structure and the importance of the leader having
or developing Level 5 leadership qualities, I believe they will deliver the best results for their
clients.

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Practice, Say Jury Consultants, is Why


Movie Lawyers Perform So Well
by Ken Lopez, Founder & CEO, A2L Consulting

Most of the lawyers that our jury consultants work


with go to trial about once a year - if that often.
Some might find that surprising, but it’s quite true
that even the best big-firm litigators in the world don’t
go to trial that often. How could they become so
good when they get jury face time so infrequently?

All of these litigators have a gift for connecting with


jurors. Most will regularly conduct mock trials and
solicit advice from our jury consultants. They heavily
use litigation graphics and work with our courtroom
trial technicians, who ensure that the lawyer has his
or her mind on his connection with the jury, not on
his or her connection with the Internet.

But, even among the very best, there are some who are the simply the best of the best, and
their habits are quite different from most. They comfortably rely on image consultants. They
use acting coaches. They videotape themselves doing run-throughs, review the tapes, refine
and repeat. And, more important than anything else, they practice openly in front of a group
of trusted advisers. In a nutshell, they spend most of their careers asking, How can I be
better?

When I watch these great litigators at work, I notice that they are a great deal like the
fictional depictions of lawyers in the movies. And I don't think it is an accident. They've
worked with jury consultants and other consultants to slowly mold themselves into who they
are now.

I've written before about how lawyers can learn a lot about trial presentation from the
movies, how the litigation business is not all that unlike the movie business and how
litigators can benefit from learning to tell better stories - just like the movies. So, this got me
thinking.

Since juries expect litigators to be a lot like those in the movies, and since the best in the
business are not all that dissimilar from lawyers in the movies, might the gap in performance
between good litigators and great litigators be the degree to which they practice?

There is a noticeable gap between the way some litigators perform in the courtroom when
compared to a Glenn Close, Paul Newman, Laura Linney, Matthew McConaughey or
Gregory Peck. It's not just about their hair and makeup. It's about how they present their
cases, how they connect better with jurors and how they tell better stories that are more
emotionally compelling. So, rather than guess, I've turned to a few friends from the movie

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industry and asked them, How much practice goes into a performance like those we
see in film?

Hollywood director John Carter has had a


chance to work with and coach some of the
best in the business. He observes, "Putting
ego aside and working the material is
critical to performance. A screenwriter
spends months contemplating a character
and a line of dialog before a final draft.
Often the screenwriter listens to actors read
the material long before production of a film.
Then there is the rehearsal process
involving props and wardrobe as the actor
becomes the character, even masters the character. Imagine someone else playing Forest
Gump. At one point there was just Tom Hanks and a script. That character came from a
special collaboration and hard work. At some point, the great ones aren't even thinking
about the material anymore, they have become the character. I wonder how much Roger
Federer thinks about the mechanics of his serve before he hits it. Not much. After 17 Grand
Slam titles, he still has a coach."

Paul Dano, famous for his roles in films like Little Miss
Sunshine and There Will Be Blood remarked, "It's hard to speak for
anyone else, but I think a lot of actors enjoy their preparation. It is a time
when you can learn, discover, and push yourself. I find the more deep
my preparation, the more fun I have on the actual day of shooting. Each
actor is very different, but I think hard work is the most common
characteristic between the great ones I have worked with."

Kaili Vernoff, who's appeared in multiple Woody Allen films, has also
played a lawyer on TV in the series Law & Order. For her role, she
noted, "by the time I'm on set, I've already run the scene with other
actors - or my very supportive husband - until I know it back and forth. If
I'm still stumbling over the words, I'm not able to breathe any life into the
character. For professionals, it's that kind of practice and preparation
that makes all the difference."

Michael Allosso, has appeared alongside Steve Martin and others in a


long career as actor and director for both film and stage. He said,
echoing the teachings of our jury consultants, "Structure allows you to
be more spontaneous. If you prepare, rehearse, practice - no matter
how many flaws there are in those rehearsals - you will be ready to be
more improvisational in the moment. Be impeccably prepared. Then,
you are upping the chances of delivering a believable, natural
performance."

Jules Haimovitz, former president of MGM Networks and former Vice


Chairman and Managing Partner of Dick Clark Entertainment, sees a
vast difference between prepared entertainers and those who

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extemporize. He reminds, "in the movie and television business, like in life, there is no
substitute for careful preparation. Those who fly by the seat of their pants do not position
themselves well for repeatable success."

So, just as our jury consultants suggested to me, it seems to me that litigators can learn a lot
from actors, directors and movie moguls about preparation. As someone who also gives
speeches and presentations regularly, I know that I am far better when I've prepared. No
matter how many times I've done a run-through in my car or practiced in front of a mirror,
there is simply no substitute for practicing in front of others. Yet, sometimes I, like many
litigators, resist the humiliating feeling of not performing well, even in practice. But, I know, to
get long-term gain, you often have to suffer some short-term pain.

That's where a great jury consultant or trial coach can come in. As my mentor reminds me
from time to time, it requires two people to really grow yourself. This is true because the
feedback you receive in real time is where much of your growth comes from. A jury
consultant can provide feedback on everything from your style of dress, to how you use your
hands, to how you structure your argument.

One key difference between a fictional lawyer and a real litigator is that some things just
cannot be practiced. While you can practice your opening and closing until you're as
convincing as Gregory Peck, learning how to conduct a good cross, managing objections,
handling everything that leads up to trial as well as maintaining a good client relationship are
all special challenges that no amount of memorization can prepare you for.

Ultimately, as some of Hollywood's brightest have shared and as our jury consultants
remind, it is how you practice that defines how you present - and there are no short cuts.

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What Does Using a Trial Technician or


Hot-Seater Cost?
by Ken Lopez, Founder/CEO, A2L Consulting

Are you a litigator who tries big cases, needs to present a lot of evidence, but still likes to
have your trial presentation look like a perfectly choreographed play? If that's you, you will
likely enjoy using a trial technician to help coordinate your courtroom technology and trial
presentation.

The role of a trial technician, sometimes called a hot seater, trial tech, or even trial
consultant, is to manage the moment-by-moment display of evidence in a trial. This role can
vary considerably, but it usually involves bringing up deposition video that has been synced
with the transcript of that deposition, finding a specific trial exhibit, showing judge and jury a
particular demonstrative exhibit, and being able to bring up one of thousands or even
millions of documents on a moment’s notice.

The term hot seater has been aptly applied to this position. Typically the trial tech works with
the trial team to help practice the overall trial presentation in a mock trial and in the days or
weeks leading up to trial. With the right trial tech, a litigator feels like an expert producer is
anticipating their next move and is able to respond to commands almost instantly while not
drawing the focus away from the litigator or evidence.

We have written about the role of the trial technician before. We have described how
challenging this job can be and how to do the hot-seater job well. We have even written an
entire e-book on the subject of finding the right trial technician. However we've never really
been specific about what a trial technician costs in most cases.

As with any professional service, the costs vary considerably. On the low end of the
spectrum I have seen trial techs charging about $100 per hour. While on the high end there
are a handful who charge more than $400 per hour, although I don't think the cost reflects

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talent as much as it reflects those particular trial tech’s lack of desire to do what is a very
difficult job.

The most common rate I see in the industry is about $200 per hour. I'd say 90% of all trial
techs are charging within $25 per hour of this amount. However, the hourly rate is hardly the
end of the analysis one should perform.

Obviously, chemistry, talent, skill and experience should be weighted more heavily than a
10% or even a 50% variance in cost. Generally speaking, you get one bite at the apple in a
trial, and the trial tech is a relatively inexpensive insurance policy to make sure that things
go well and that you look good as a litigator. After all, the consequences of not having a
good trial tech are extremely high.

In a recent case our very experienced trial tech sat wide-eyed in court while the opposing
counsel's trial tech fumbled in silence for 10 minutes trying to get a presentation going
during opening. Needless to say, this left a very poor impression with the jury, and I think
this contributed to the eight-figure loss their side experienced.

When considering trial techs, the terms are just as important as the hourly rate. Many
charge daily minimums, many charge cancellation rates, many charge for equipment rental,
many charge for local travel, and there are some who insist on being paid in advance. I think
a typical arrangement is similar to what we offer: we charge for out-of-town travel, we ask
that the client pay the hotel fees directly whenever possible and we normally charge an eight
hour minimum during while at trial. When it fits the situation, we offer a fixed price for the
entire engagement and other alternative fee arrangements.

The use of a trial technician is a luxury for many. However if the client has the budget, it is a
necessity for most. A great trial technician can leave you looking like a star and help you
build credibility and trust with the jury. The wrong trial technician can contribute to the loss of
your case. This is not a situation in which to be penny wise and pound foolish.

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Working in Parallel vs. Series with Trial


Presentation Consultants
by Ken Lopez, Founder/CEO, A2L Consulting

Our business saw a big growth spurt begin in the summer


of 2013. Since the summer, cases of all types and sizes
have arrived at our doors.

With so many cases going on simultaneously, I have had


an opportunity to compare the styles of various trial
teams. One stylistic difference I see is between those trial
teams who want to work in parallel versus those who want
to work in series.

Let me define terms here -- parallel versus series. In the


electrical sense, most people think of parallel versus
series in the context of holiday lighting. If a string of
holiday lights were in series and one bulb went out, the
entire string would go out. The reality is that all holiday
lighting is manufactured with parallel circuitry. Thus, if one
bulb goes out, the others stay on.

So what does electrical circuitry have to do with the courtroom and trial preparations? It
offers a reasonable metaphor for two styles of trial preparation. If a trial team operates in
parallel, it allows a high degree of control, input and independence for its trial presentation
consultants. They will be free to work with the trial team to develop a theme, a story, an
outline and their draft slide decks without a ton of day-to-day input from the trial team except
for some general coaching.

On the other end of the spectrum, what I'm calling the series approach, there are trial teams
that will not allow trial presentation consulting operations to proceed without a high degree
of control. Nothing is to be executed without authorization and input, and discussions are
conducted in a highly regimented format.

These two styles are common amongst our clientèle. We see both types in equal amounts,
and I suspect if we took the time to graph and assess it, we would see a bell curve.

Very few trial presentation consulting firms can be trusted to operate in parallel. After all,
how could they come to understand and appreciate the nuances of a case that has been in
progress for years? Well, I can say that firms like ours and a small handful of others around
the country operate quite well in a parallel format.

In trial presentation, freedom combined with some structure allows for maximum creativity.
And it is creativity quite specifically that a trial team is seeking to outsource. The more
freedom within reasonable boundaries, the better the results, but both approaches can and
do produce good results.

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One of the great challenges for our frontline litigation consultants who in our firm are usually
former litigators themselves, is assessing whether this trial team who is in front of them
wants them to operate in parallel or in series. Asking the question in an otherwise heated
trial environment does not always produce a real answer.

How do you know if you can trust your trial presentation firm to operate in parallel at all? I
think a lot of it has to do with the personnel in that firm. Are they attorneys? Are they
litigators? Are they experienced litigators? If the answers to these questions are yes, I think
you might get very good results by allowing them the opportunity to operate in parallel for a
brief period of time.

So what would this look like? Well, you might say I'd like to see a draft presentation that
follows this ten-point outline in a week. And I'd like that to take no more than 50 hours.
Running a test along these lines will help you understand whether you are dealing with a
trial presentation consulting firm who is capable of operating in parallel or series. This is
important to know as it helps define the level of management that will be required from your
team.

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The Top 14 TED Talks for Lawyers and


Litigators 2014
By Ken Lopez, Founder/CEO, A2L Consulting

In 2012, I wrote an article called The Top 10


TED Talks for Lawyers. Back then, most readers
didn't know what TED was. Now, just a couple of
years later, a majority of people have heard of
TED and most have usually seen at least one
TED talk. Over the last several years, a number
of TED offshoot events were launched that
dramatically increased the footprint and influence
of TED and its "ideas worth sharing." TEDx
events are TED-like speaker conferences but are
independently organized and usually quite local. TEDed videos are informative videos
produced and posted online to teach about a particular topic of interest.

The list of TED talks I put together for lawyers and litigators in 2012 still holds up nicely, and
I encourage you to browse it. In it, I included talks that focused on storytelling, neuroscience,
juries and the legal system generally. For 2014, I want to share new videos on those same
topics and also highlight a subject that the legal industry is passionate about: persuasion.

Even though lawyers engage in persuasion all the time, and it is at the core of the work we
do, persuasion is something most are street-smart about, not book-smart. In other words,
most people's knowledge of how to persuade tends to come naturally or is attained by
observing how other talented persuaders behave.

I spend a great deal of time reading about the science of persuasion, studying those who do
it well and practicing the craft myself. I tend to separate visual persuasion and oral
persuasion, but they are, of course, fundamentally interrelated as many of these TED talks
touch on. Across our service areas at A2L, persuasion is central to our jury consulting and
our litigation graphics consulting practices. Thus, it is something we are consciously doing
as litigation consultants and as visual persuasion consultants every day.

I hope that you enjoy my top 14 TED talks for lawyers of 2014 and can use these videos to
improve your skills as a lawyer and litigator:

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14. Influence at Work: Proven Science for Business Success: "Rarely, in isolation, does
information influence or persuade us." At A2L, this sentence rings true with our core belief
system and offers the primary reason our firm is hired by so many litigators. This speaker
does a good job of discussing how information can overwhelm and introduces proven
scientific techniques for persuasion. There are good lessons here for how to communicate
with jurors.

13. Storytelling, Psychology and Neuroscience: A graduate student explains the


connection between these three concepts in a way that would be useful for most lawyers to
understand.

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12. The Science of Stage Fright (and how to overcome it): I have seen many litigators
with dozens of years of experience get nervous, sometimes distractingly so, in court. This
TEDed presentation discusses the physiological effects of stage fright and how to overcome
fear of public speaking.

11. Why We Should Trust Scientists: Frequently, litigation involves science. This talk
provides a good framework for explaining why we should believe in science. It can be a
useful guide for helping to explain to a jury why your expert is correct.

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10. The Impact of Persuasion: As many TED speakers discuss, Don Norman discusses
how social proof influences our behavior and other scientific concepts of persuasion. These
concepts are useful to keep in mind when communicating with judges and juries.

9. The Aesthetics of Decision Making: The hero's journey is discussed and the real truths
about how decisions are made are revealed.

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8. Persuasion: Influencing the Rational Decision Maker: A shopper strategy consultant
discusses how people make decisions. Many lessons for persuasive visual communications
are discussed.

7. Hear "Yes" More Often with the Science of Influence: This speaker discusses how to
use influence and persuasion based on the latest science. Concepts such as information
social influence, authority and reciprocity, are discussed.

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6. 3 Ways the Brain Creates Meaning. Information designer Tom Wuject discusses
something near and dear to me: how the brain processes visual imagery and makes
meaning out of it. The applicability here for litigators is wide ranging. In particular, the
techniques discussed here are excellent for case preparation in complex cases.
Furthermore, he lays out some of the fundamental reasons that litigation graphics are
essential in every single trial.

5. The Mystery of Storytelling: This TED Talk helps explain why most storytelling fails and
offers a methodology for telling good stories. We have talked a lot about storytelling, written
a book on the topic and even offer a recorded version of our popular storytelling for litigators
webinar for free. This talk complements our work well by offering a structure for a good
story.

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4. How Your Working Memory Makes Sense of the World: This talk focuses on the
something we discuss frequently on our blog, namely, working memory. If you understand
how working memory operates, you can better understand how to persuade an audience. In
a nutshell, people have a very limited working memory. Thus, what we present at trial must
be incredibly simplified and properly structured.

3. Leadership Storytelling: "Most stories do not work." Stories must be true, must be
positive, must be simple and must contrast the before and after to be effective. Consider this
when putting together your next opening or closing.

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2. The Power of Story: PR agent Greg Power discusses why storytelling works.

1. How to Avoid Death by PowerPoint: At A2L, we frequently write about how best to use
PowerPoint, and how we work with litigators, CEOs and advocates to find the best ways to
persuade using this tool. This speaker does a good job of summarizing many of our beliefs
about what works best when persuading with PowerPoint. I don't agree on every point (e.g.
the use of dark backgrounds), but we agree on almostevery point. If you'd like to learn more
about our recommendations for how to use PowerPoint, read our articles on the topic,
download a free book we have written about it or watch our popular webinar about
persuading with PowerPoint.

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10 Signs the Pressure is Getting to You


and What to Do About It
by Ken Lopez, Founder/CEO, A2L Consulting

Are you shouting at your co-workers or family? Would you do almost anything to get away?
Are you acting out or underperforming? Are you “losing it” from time to time under pressure
from work deadlines, family life, or a combination of both?

Although I don’t usually write about these issues, the nature of my work and the intense
pressures that trial practice can bring make me a bit of an amateur expert in such things.
Unfortunately, I have seen trial teams and individuals break down many times, and I don't
think it has to end up that way.

Here are a few things that you can do, or encourage someone else to do, to gain control of
your own emotions and of a situation. No one is immune to these issues; rather, we are all
prone to cross an anxiety threshold that we are not comfortable with. It’s all in how we
handle it.

I have written before about how individuals and groups behave when their anxiety levels are
high. In short, they behave in a series of progressively worse ways that are all essentially
forms of a fight-or-flight response.

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Instead of allowing yourself to slip into fight or flight, here are some productive ways of
retraining your brain to help deal with the anxiety.

First, ask what your own role was in creating the bad situation. Often, all we see is how
others caused something to happen to us. Forcing yourself to understand your role in
creating the problem is often a first step to getting back on the right track.

Second, get in the habit of asking yourself what is the one thing you can do right now to
make things a bit better for everyone involved. Sometimes, a solution is a bit like eating an
elephant. You just have to take one bite at a time.

Third, make sure that you are not engaged in mindless bickering with co-workers or others.
Fighting is, of course, one of the most common examples of a fight-or-flight response. Often,
when people fight they are really trying to deal with anxiety in a dysfunctional way.

Fourth, make sure you are not simply fleeing a situation that you could help solve. Perhaps
you have the skills and the opportunity to fix things. If you can help, why shouldn’t you? After
all, don't you want the situation to be better?

Fifth, make sure you’re not just wasting your time and that of others by mindlessly talking
about the person or thing that is causing the anxiety. Doing this does nothing to make the
anxiety dissipate. It simply creates more unnecessary drama. Again, try doing one thing
right now to make things better.

Sixth, ask yourself if you are withdrawing from the situation without even knowing it.
Withdrawal is another form of fight-or-flight behavior. You can think of it as flight without
moving your feet. Avoid this behavior.

Seventh, are you trying to get other people to solve problems for you, make decisions for
you or just want someone to make the anxiety go away. Well, it's not up to them, right? So,
who should work the problem? You should, not them.

Eighth, if your challenge is longer term and less situational, practice a whole range of
scientifically-proven methods to make things better including meditation, managing diet,
exercise, yoga, sleeping, doing peaceful things, thinking positively, asking for help and
seeing a doctor.

Ninth, put one foot in front of the other. Don't be blown about by every wind. Live one day at
a time. Live one hour at a time if you have to. There are a whole host of ways to simply treat
big problems as little ones. Ask yourself, at this very moment, "am I okay?" If so, move on to
the next moment.

Tenth, ask if you are making the problem worse. If you are engaging in behaviors that are
distracting to the group and you just cannot control your emotions, then consider taking
yourself out of the game, at least temporarily. After all if you want the problem solved, try not
to make it worse. Even if you are headed to trial, your colleagues will understand if you need
a day of downtime. They probably already know.

Anyone can learn to effectively manage one's psychology, even in very difficult times.
Following these steps will help you become part of the solution and not part of the problem.

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9 Things Outside Litigation Counsel Say


About In-house Counsel
Ken Lopez, Founder/CEO, A2L Consulting

Even behind closed doors, our law firm clients have very good things to say about their in-
house clients. It's relatively rare that I hear any serious complaints. Almost without
exception, our outside litigation counsel clients are actually quite proud of the relationship
they have with their mostly Fortune 1000® corporate clients.

However, especially in these times of change, with all the talk of a legal industry new
normal, I do hear some frustrations being discussed regularly. Below are nine things I hear
outside litigation counsel say regarding in-house counsel that deserve more attention:

1. We would all benefit from better early case assessment: Outside litigation
counsel understand that litigation costs are under fire. By making outside counsel
part of the solution rather than a line item to avoid later, better decisions can be
made. A2L, for example, is being increasingly asked to use a variation of our Micro-
Mock process to help both in-house and outside litigation counsel assess the
potential merits of a case closer to filing than to trial. Failing to do this type of formal
analysis often leaves too much to instinct and emotion.

2. When the stakes are high, let litigation counsel do what they are good at: Some
corporations are often involved in litigation but are still rarely involved in high-stakes
litigation. The two types could not be more different. Controlling costs in small cases
is critical. However, trying to control the throttle too much when hundreds of millions
or more are at stake can be like jumping over dollars to pick up dimes. Outside

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litigation counsel who are expert at their craft need room for creativity. However, that
does not mean the relationship should be without structure. Rather, I believe that it is
the structure, in the form of budgets, reporting and deadlines, that allows for
maximum creativity by outside litigation counsel.

3. Put settlement and trial preparation on separate tracks: Settlement talks often
fail. Sometimes one side may disingenuously signal settlement just to slow down trial
preparation. For these reasons and more, it is important to allow settlement talks to
proceed while fervent trial preparations continue. It is normally best to create a
separate settlement team when settlement is a possibility and trial is approaching.
See related article about two-track trial preparation strategies: Litigation Consultant:
Embrace a Two-Track Strategy & Win the War.

4. Enthusiastically embrace mock trials: This is one of the most common frustrations
I hear from outside litigation counsel. They want to conduct mock trials, but
frequently get resistance from in-house. Once they get that resistance, they
sometimes fear that insisting on a mock makes them look like they don't know what
they are doing when exactly the opposite is true. After all, if practice didn't matter
why would all great athletes and great actors do it almost obsessively? In this era
when trials are quite rare at large law firms, in-house counsel should want to
encourage practice via mock trials since it will help them get a better result and may
help inform settlement. See 7 Reasons In-House Counsel Should Want a Mock Trial.

5. Watch the mock exercises: While I think outside litigation counsel from prior
generations preferred to run a case with minimal regular input from in-house counsel,
these days, in-house counsel are involved more regularly. One area where in-house
counsel should increase their involvement further is in the attendance of mock trials.
From behind a one-way mirror, you will learn more about your case, the perception
of your firm, and your choice of outside litigation counsel in one day than in the
year(s) of preparation that proceeded it. The great lawyers will want you there while
the less confident prefer to prepare privately and avoid mock trials altogether. Keep
an eye out for this litigation counsel red-flag.

6. Be clear with your leadership approach: In a recent article about joint defense
teams, I touched on the topic of litigation leadership by in-house counsel. Generally, I
believe that a variety of team structures will work so long as they are clearly defined
and executed. Trouble arises when there is confusion about who is in charge. See 5
Tips for Working Well As a Joint Defense Team as the lessons discussed here apply
just as well when working with a single law firm.

7. Litigation consulting vendors are not created equal: Preferred vendor


relationships are on the rise for litigation consulting firms. We participate in them at
A2L and encourage them. However, market disruptions are putting the future of
some trial graphics firms (not ours) that regularly appear as preferred vendors in
question. Procurement departments and in-house counsel are going to have less
visibility into vendor stability than outside counsel, and outside counsel should
generally make the final decision about who to use for jury consulting, litigation
graphics and trial tech for best results.

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8. Pay vendor bills on time: Litigators never want to deal with getting bills paid as they
prepare for trial. It's distracting and annoying. All relationships on the team are
weakened when bills are not paid timely. The bottom-line benefits of simply paying
bills on time was covered in more detail in a recent article, 10 Ways Timely Payment
Helps You Save Money On Litigation Consulting.

9. There's more that outside counsel can and should be doing: From early case
assessment by litigators, to client counseling about the very things they try cases
about, to participating in non-litigation messaging, to assisting in lobbying and
legislative activities, outside litigation believe they have a lot more to contribute to the
operation of a business than they are being asked to do. As an informed outsider,
may I suggest that in-house counsel consider starting off 2014 by asking your
outside litigation counsel how they can help you manage budget better and run the
business more effectively. The best litigation counsel will have an informed answer
for you. The litigators that you will soon want to relegate to your slip-and-fall cases
will look at you like a doe in the headlights.

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Font Matters - A Trial Graphics


Consultant's Trick to Overcome Bias
by Ken Lopez, Founder & CEO, A2L Consulting

A fascinating new study in the field of social psychology indicates that the type font in which
an argument is presented has an effect on how convincing it is. For trial graphics
consultants and litigators alike, this is potentially very big news.

The study, published in the Journal of Experimental Social Psychology [pdf],tested the
effectiveness of political arguments in convincing people to change their minds – and also
tested people’s attitude to a hypothetical defendant in a mock trial.

It is well known that people tend to disregard arguments that vary from their own
longstanding views and to take note of arguments that support their views. This
phenomenon is known as confirmation bias. For litigators and trial graphics consultants, we
know this means judges and jurors will only closely pay attention long enough to confirm
what they already believe - so, we need tactics to overcome this bias.

The idea behind such research was to present the arguments in hard-to-read type faces
(e.g. light gray bold and italicized Haettenschwiler, and, the scorn of all design
professionals, Comic Sans italicized) and to see whether confirmation bias was just as
strong as when the arguments were presented in normal, easy-to-read type (Times New
Roman).

Below are two sample trial graphics that compare two of these fonts. The first image uses
easy-to-read Times New Roman for the callout.

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And the second uses hard-to-read light gray Comic Sans italicized.

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The result of the study was that confirmation bias was moderated by the use of the hard-to-
read type. Normally, those who believed the defendant was guilty would stay with that view
after reading the arguments pro and con, and the same would be true of those who thought
the defendant was innocent. They wouldn’t change their views.

But with the hard-to-read type, more people began to seriously consider the arguments
against their initial position.

"We showed that if we can slow people down, if we can make them stop relying on their gut
reaction -- that feeling that they already know what something says -- it can make them
more moderate; it can have them start doubting their initial beliefs and start seeing the other
side of the argument a little bit more,” said graduate student Ivan Hernandez, one of the
leaders of the study.

What might this research mean for trial graphics consultants and litigators?

First, there’s no question that confirmation bias exists among jurors. A juror who, because of
the opening statement or for some other reason, approaches the trial evidence with a
certain perception, is unlikely to change that perception. That is one of the trial lawyer’s
toughest challenges – to reach a juror (or judge) who starts out against his or her client and
to get that juror to reconsider.

This study seems to say that hard-to-read typography will “disrupt” that bias and lessen its
persistence, perhaps by making people “slow down.” This may affect the preparation of
litigation graphics by trial graphics consultants by forcing them to consider whether a bias
against their clients exists, and if so, making exhibits more, not less, difficult to read. This
might mean that text call-outs from scanned documents should not be retyped and that
persuasive titling should be in harder to read fonts.

We will begin testing these findings with our mock juries, and if they prove successful,
testing them at trial as well. Anything to make jurors (metaphorically) stand up and listen
(that is within ethical and legal boundaries) is fair game for trial graphics consultants. We will
keep you posted.

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Portray Your Client As a Hero in 17 Easy


Storytelling Steps
By Ken Lopez, Founder/CEO, A2L Consulting

Much has been written about the hero's journey as


Joseph Campbell described it in his seminal work, The
Hero with a Thousand Faces. In this 1949 book,
Campbell asserts that storytellers worldwide, in their best
stories, have for centuries used a story structure that he
calls the monomyth. From Beowulf to Ulysses to Luke
Skywalker, the pattern is seen over the ages.

Leadership speakers, filmmakers, theologians and


literary authorities use the 17 steps described by
Campbell to tell stories that have multi-generational
staying power. I had the pleasure of attending a TEDx
event last month whose theme was the hero's journey.

As we have written about before and described in A2L's


free Storytelling for Litigators book, humans are moved
by stories at a primal level. Tapping into this human need
for drama by using storytelling in the courtroom is an
easy (but not simple) method of persuading your judge or
jury. As is largely true in sales, I believe that juries (and probably most judges) decide on
emotion and justify their decisions with facts.

Since we know that using story is a valuable courtroom strategy and since we know that
painting our clients as heroes is also inherently valuable, I thought I might try to use some of
the existing hero’s journey charts and guides to build a narrative for a typical case. The
problem that I found is that most writing (or charting) on this topic is weighed down by so
much jargon (e.g. Apostasis, Belly of the Whale, Rescue from Without) that it is hard to
quickly make sense of. To that end, below is a litigation-ready infographic free of literary
jargon that lays out the key 17 steps of the hero's journey.

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[Click on image to pop-out a larger version and to share]

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As the chart above shows, the hero's journey follows a pattern of 17 steps. Campbell's
cryptically described 17 steps are well discussed here. To make this useful pattern more
accessible, I've attempted to use plain language to describe the steps. My plain language
stage 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.

1. 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 hang 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 here’s a speech by the firm’s CEO who
is looking for new ideas.

2. 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 heroin 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.

3. 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 tradeshow
booth about applications they’ve considered for their wireless controllers. They suggest she
show them what she has in mind.

4. A Big Step Forward (Campbell's Crossing of the First Threshold): Recount how
your client made the decision to move forward toward the opportunity with a large
clear step.

Example: Our heroine makes the brave decision to leave her employer and set off on her
own.

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5. Out with the Old, In with the New (Campbell's Belly of the Whale): Tell how your
client demonstrated a willingness to embrace the opportunity in spite of the great
odds.

Example: Our heroine’s savings has run out and she stays up night after night trying to
perfect a prototype with the dream of returning to that gaming company to show off her
work.

6. Many Attempts with Mixed Results (Campbell's Road of Trials): Chronicle how
your client tried to reach the opportunity time and time again. Usually, there are
some successes and some failures.

Example: She created prototype after prototype and each had some success and some
failure.

7. Finding a Partner (Campbell's Meeting With the Goddess): Describe how your client
came to find that right person or right organization that helped them achieve
success.

Example: Our heroine goes to the gaming company, shows off her prototype, agrees to sell
the technology and joins the new firm to help them commercialize it.

8. Temptation to Stray (Campbell's Woman as Temptress): Detail how your client was
met with an opportunity to stray from the chosen path but chose the higher road.

Example: Our heroine is contacted by her former employer, who offers to bring her back to
the old firm for more money and an executive position at the company if she will share the
new technology they are hearing rumors about. She declines the offer.

9. Meeting with a Mentor (Campbell’s Atonement with the Father): Discuss how your
client one day had a meeting with the person or organization at the center of the
opportunity.

Example: The Chairman of the Board stops by our heroine’s prototype lab to check out the
new product in development and take stock of her. He says that they are going to bet big on
her idea for the holiday season.

10. A Period of Reflection (Campbell's Apotheosis): Explain how your client took some
time to reflect on how far things progressed to date.

Example: While on vacation, our heroine watches as her young nieces again use a wireless
gaming device to entertain themselves on a rainy beach day and she increasingly sees her
product as the future.

11. Success (Campbell's Ultimate Boon): Share how your client achieved the goal set
out in the opportunity.

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Example: The product is launching into stores, and the early reviews are positive from the
technology press. Our heroine begins to realize that her idea was not only a good one but
one with vast commercial potential.

12. Don't Forget Where You Came From (Campbell's Refusal of the Return): Report
how your client began to enjoy her success.

Example: All of the press swoon over our heroine, and she becomes a fixture on panels at
technology conferences worldwide, often traveling for weeks at a time. Her nieces miss
seeing her.

13. Remember Where You Came From (Campbell's Magic Flight): Discuss your client's
return to their roots and journey home.

Example: Our heroine, now fed up with long periods of time away from loved ones, puts an
end to the fame treadmill and makes a surprise journey home to be with her family.

14. Back to Reality (Campbell's Rescue from Without): Relate how your client had to
return back to everyday life having achieved so much, only the world is now quite
different for them.

Example: Our heroine is picked up from the airport by her sister who describes what was
like to return from a military deployment and reminds her of the challenge of coming home
from her own time away.

15. What Did You Learn (Campbell's Crossing of the Return Threshold): Describe what
your client learned from this entire experience.

Example: Our heroine comes back to her family and shares her experiences with them. Now
she watches as her nieces easily use her invention to operate the television without a
physical remote control. She is also reminded that the example of the children playing is
how she arrived at her idea in the first place.

16. Mastery Is Revealed (Campbell's Master of Two Worlds): Position your client as
someone who now understands what it takes to be successful and is likely capable
of replicating that success.

Example: Our hero notices that the children playing with her new remote control interface
ask sensible questions about why other things like cars, bikes and computers can't work this
way. We know that she is just beginning to see the possibilities.

17. Loss of Fear (Campbell's Freedom to Live): With success under their belt, your
client now has the confidence to look for new success and trust their instincts. At this
point, one might begin the story again to show how your opponent enters the story
and the hero's journey begins anew with new challenges to their heroism.

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Example: While watching the kids at home and at complete peace, our heroine hears a
knock at the door. It's a process server. Her former company is suing, claiming that the IP
was developed on their dime. And so, the hero’s journey begins again, back to step one,
only this time, it will be the jury who defines the ending.

Finally, I enjoy this short YouTube video on the hero's journey as it relates to Star Wars, The
Matrix and Harry Potter. It will give you another perspective on the hero's journey related to
films you're likely familiar with.

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5 Tips for Working Well As a Joint


Defense Team
by Ken Lopez, Founder/CEO, A2L Consulting

We often work on large cases, and large cases often have joint defense teams. A joint
defense team is simply a group of law firms working for a group of clients and/or working on
some issues together in a case.

Some joint defense teams work together brilliantly. It's like watching the best NFL players
come together for the Pro Bowl game when each of them plays as a member of the same
team. In a trial, sometimes the whole “dream team” unites to prevail. It's a beautiful thing to
watch -- when it works.

Unfortunately, it doesn't seem to work that way very often.

In a recent engagement I watched a well-organized team in the run-up to trial perform


beautifully. They had sorted out communication, who handled what issues, leadership, client
communications, and billing arrangements with no apparent drama.

I can contrast that with any number of large cases where the opposite is true. These are
unfortunately the majority of joint defense efforts. In these cases, turf battles are common.
As much time is spent on politics as is spent on winning the case. I suspect cases have
been lost entirely because a joint defense effort has failed.

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So what's the difference between the joint defense teams that succeed and those that fail? I
think the critical difference as with any NFL team, any military division or any serious
business team, is in how the leader performs.

I have seen in-house counsel take the leadership role. I have seen joint defense teams elect
a coordinating counsel. I have even seen co-leaders successfully prepare for and go to trial.

The common element is not the structure. The common element is the skill of the leader(s)
and how the leader(s) runs the team. Here are five tips based on 18 years of watching joint
defense teams that found success.

1. Make the leadership clear. If you are an in-house counsel who wants to be the leader,
that can work but you have to be very explicit that final decisions are made by you. Failure
to define this can by itself destroy a functioning joint defense team. In general I find it's best
to convey that everyone has a voice but there is only one vote.

2. Assign specific roles to specific lawyers and let them build their teams. If you have
a case that has antitrust, patent and pharmaceutical as well as bankruptcy claims and have
six law firms, break down the issues in the case and assign the best lawyers for that issue
solely. Only the leader should be able to overrule them.

3. Lawyers should be assigned roles typical to their roles in the corporation. There
should be a lawyer in charge of all things billing. There should be a lawyer in charge of
running the trial consultant team. There should be a lawyer in charge of coordinating the
development of litigation graphics. You can sort this out early by breaking down all of the
roles (e.g. opening, mock opposition counsel, point person for jury consulting work, etc.)

4. Constantly remind the joint defense team of the mission at hand. The leader should
frequently say, “Don't forget these people are trying to get us and it's up to you to make sure
they don't. The battle is never among the law firms. Remember, the battle is being fought for
our company. And I'm counting on you.”

5. Find a way to make sure communications flow smoothly. As the leader, schedule
regular meetings to communicate where the various teams stand. This way if people have
some expertise yet are assigned to another team, they will still be able to provide input
during these meetings.

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5 Signs of a Dysfunctional Trial Team


(and What to Do About It)
by Ken Lopez, Founder & CEO, A2L Consulting

Anxiety does strange things to people, especially when they are working together in teams.
When they become anxious, a rare few people become more focused and Zen-like. For
most people and teams, however high anxiety causes one (or more) of five predictable
dysfunctional behaviors to be manifested, of course subconsciously. The anxious person is
usually not aware that he or she is behaving in this way.

There’s a close connection between trial preparation and anxiety. All too often, much is left
to the eleventh hour, and the more that is left, the more anxiety there is. Many litigators
procrastinate until a few weeks in advance to prepare for trial. It's understandable why this
happens. Usually this is just that litigator's style, or the attorney is accustomed to getting
excellent results with minimal preparation, or he or she is trying to please their client by not
spending money until the client can see they are headed for trial.

No matter the reason, procrastinating does not serve a client well. We've written about this
topic before (see also Simplicity Takes Time and Two-Track Litigation Strategies). No large
case should be prepped for trial in the two weeks leading up to it, and one of the reasons
this is true is due to the anxiety it causes.

High anxiety causes most people to behave irrationally and to follow primitive signals from
their “old” brain, the amygdala. These five dysfunctional behavior patterns can be spotted in
a trial team if you know what you are looking for.

1) Fighting or passive-aggressive behavior. People openly pick arguments with fellow


team members, often over seemingly trivial matters, or they exhibit passive-aggressive
behavior by seeming to agree but sabotaging the other person’s plan.

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2) Exits. People abruptly leave the trial team. Often the only thing these people are able to
say is that it “just became too much for them,” or that they had “had enough.”

3) Dependence/Deification. People look to the leader to make the anxiety go way


through specific behaviors that invite the leader to assume control. These include not
participating actively in discussions, appearing confused, or saying to the leader things like
“we just need you to decide.”

4) Control. Someone may deal with anxiety by assuming dictatorial control of a team or
engaging in a mass firing. When someone behaves like Al Haig after the Reagan
assassination attempt, that person is in a dysfunctional pattern.

5) Pairing. Pairing is seen when a team completely cracks under the pressure. Odd as it
may sound, pairing can be thought of as a form of mating whose offspring is a new team
(which paradoxically usually goes on to repeat these behaviors again down the road).
Pairing sometimes shows up in the form of a coup, and in the trial team context we often
see new law firms being brought in at the eleventh hour, the first chair being thrown off the
case, or a full blown departure of the team's subordinates.

All these behaviors reflect a subconscious desire to make the anxiety go away, and it is all
subconscious. Nobody really wants to behave in these counter-productive ways. The
problem is that the person doesn’t know that he or she is really operating out of fear.
However, unless you have a team that has both been educated about these behaviors and
has the emotional wherewithal to rise above its own psychology, it's very hard to pull a team
back together.

So, what is a leader of trial teams to do? Here are my suggestions.

1) Keep cool. A leader must never lose his or her cool when these dysfunctional patterns
occur. This is especially difficult as it is often the leader who is under attack by the team.

2) Calmly diagnose. The leader must coolly diagnose what is causing the anxiety.

3) Describe reality. The leader must then accurately describe the reality.

4) Do NOT blame. The leader must not under any circumstances blame the rest of the
team. Do this during these critical moments, and you'll lose the team for good.

5) Talk about the problem. The leader must talk through the issue and tackle the thing that
is causing the anxiety head-on. Hopefully, the team will reengage and their bar for what
triggers their anxiety breakdowns will now be higher.

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12 Ways to SUCCESSFULLY Combine


Oral and Visual Presentations
by Ken Lopez, Founder/CEO, A2L Consulting

A lot of litigators express confusion about how best to use litigation graphics. Top litigators
are asking smart questions like:

• Should I pause to let a jury take in a graphic before speaking?

• Should I turn off my presentation while I am speaking?

• How much text should I put on a slide?

• How much of my slide should I read?

• And, what's all this negative talk about bullet points (especially when the author of
this very article uses bullet points to talk badly about bullet points)?

In many cases, it is litigation graphics consultants who are to blame for this general state of
confusion. For decades, litigation graphics consultants have been telling litigators that
combining oral and visual messages will increase judge and jury information-retention and
understanding. That's correct, but most litigators have never been taught how to combine
the two exactly, and getting good results depends entirely on the how.

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To drive the home the need to use courtroom visuals, litigation graphics consultants have
used science to emphasize their message. Most of us have heard of or talked about the
much-cited Weiss-McGrath study. Among other things, it is reported to conclude that
combining oral and visual messages will result in a 650% increase in people's retention of
information.

So, what have litigators done in the face of all of these confusing messages? They listened
and they adapted to the changing times.

Litigators started using graphics in earnest over the past twenty years. Printed trial
boards were used at first, and then PowerPoint litigation graphics arrived in the mid-2000's.
Despite these efforts to improve courtroom communications, I fear that many times the way
oral and visual presentations are being combined is doing more harm than good.

Why? Well, I believe three key things have gone awfully wrong:

1. Over the last 20 years, very few litigators received guidance from litigation graphics
consultants about what works when combining graphics and oral communications.

2. Without real guidance, litigators made an understandable mistake by using litigation


graphics as a means to read bullet point filled slides to jurors.

3. As for the science, despite thousands of citations to it, there never was a Weiss-
McGrath study. Still cited by many trial graphics firms as their Raison d'etre, this
report was recently proven to never exist by an diligent law libararian [p27-30 of this
pdf]. Fortunately, the science supporting the use of litigation graphics turns out to be
better than what this mythological study reported, and I'll describe it below. The fact
that this study never existed just underscores the confusion that both litigation
graphics consultants and litigators have suffered through these past 20 years.

So, I think we find ourselves in a time where litigators are trying hard to figure out what
works best when using visual evidence, and litigation graphics consultants are not doing
enough to help them. My hope is to remedy this problem by describing what we modern
litigation graphics consultants mean when we promise that you will get better results if
you do combine oral and visual presentations - the right way.

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Here are 11 ways you should combine your spoken presentation and your visual
presentation to achieve maximum persuasion:

1. Forget about bullet points in the way we've come to expect them (like the slide
below). Yes, at A2L, we talk about bullets every third article or so, and for good reason. If
you read your bullets (and you're likely to do so if you use them) you are almost certainly
worse off than if you had not used litigation graphics at all. See these 11 A2L articles about
bullet points for more. This applies only to presentations,not written materials where bullets
can be quite valuable.

2. Use speaker notes. Whether you simply print this information out or you use a dual
screen set-up when you project your slides, having your notes available within PowerPoint is
simple. Simply place them in this area shown below, and you will be able to print these
notes next to your slides or print them alone. Either way, this will help you avoid putting
everything you want to say on your slide.

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3. Never duplicate your spoken message on screen. Instead of reading your slides, plan
to have some of your message spoken have some of it be visual. Try to think of yourself as
a popular on-air meteorologist. While the weather forecast is easily conveyed with a simple
graphic like the one below, it helps to hear additional details, story, and meaning from a
person. It is a much more memorable experience to look at this chart while hearing
someone say, "Wednesday's snowstorm will be crippling for parts of the DC region."

4. Create some graphics that you can speak to. It's okay - indeed it is possibly better - if
you have a graphic that needs some explaining. It will give you something important to say
and enhance your message overall. For example, this circa 1997 litigation graphic below
does not stand on it's own since you really cannot tell what it means. However, if you
explained, using this chart, that the standard of care requires a differential diagnosis (i.e.
narrow the cause of several symptoms to a specific disease whenever possible) and Dr.
Smith instead diagnosed and treated nine separate problems, you get a clear and
memorable picture.

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5. Use the B-Key. Don't leave up or show a slide that is
unrelated to what you are saying unless that is an intentional
tactic used to distract from what you are saying. The b-key
displays a black screen when pressed and returns you to your
presentation when pressed again. If you think of a news anchor
for a moment, wouldn't it look strange if Brian Williams was
talking about the Winter Olympics while there was a video
playing of a hurricane over his shoulder? Of course it would.
Use the b-key to subtly tell your judge and jury to return their
attention to what you are saying, not what you are showing.

6. You don't always need to be speaking, but you probably need to be always
showing something. A recent study demonstrated that an immersive style of trial graphics
presentation will yield the best results. The results of this study suggest that you should
always be showing a visual when you can.

7. Pause. When you bring up a new graphic, let your silence encourage the jury to look at
your litigation graphics and soak it in.

8. Subscribe to this blog. This is not (only) a self-serving pitch, I really mean it. If you are
in litigation, there are only a couple of blogs that cover this information with real authority. If
you are watching what we are publishing, you will stay ahead of others around you. About
3,800 of your peers subscribe already.

9. One concept per slide. Lots of people talk about the graphic below and how it is a great
example of effective information design. It is beautiful, but it would make a terrible
demonstrative exhibit at trial. Why? Because there is way too much information shown on a
single graphic. At trial, keep it simple - one concept per slide. If you have to use a chart like
this one, build it up over a number of slides and then display it as a printed trial board.

10. Minimize text. In general, never use less than 28 point font size in PowerPoint, and you
will be in good shape. This rule will force you to limit the amount of text that you use, and will
keep your presentation legible at the same time. You don't want to try to mimic a Steve Jobs
iPhone launch exactly, but you want to limit your text as much as possible.

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11. Keep up with the science. Academics are turning their attention how one best
persuades with graphics. In 2012, one of the most important studies to date was released. It
showed specifically that the use of PowerPoint increases persuasiveness. Part of the
abstract is shown below. You'll find this article helpful too: 6 Studies That Support Litigation
Graphics in Courtroom Presentations.

12. Practice, practice, practice. Don't spend time and money developing a great argument
and great litigation graphics only to fail to practice combining the two. We advocate a 30:1
practice to performance ratio.

Combining oral and visual messages is the best way to communicate with your jury. This is
based on commonsense, experience and good science. Many lawyers have never been
taught the right way to do it, and I hope this article has been a help. I would
welcome hearing from anyone interested in learning moreor talking about how this applies to
a specific trial presentation challenge.

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21 Ingenious Ways to Research


Your Judge
by Ken Lopez, Founder/CEO, A2L Consulting

For small town attorneys, it is possible to get to know a


local judge quite well. Not only do you spend time in
front of the local judges frequently, but you very likely
see them socially as well.

Most of our clients, though, work in large and medium


sized law firms in big cities. They likely try more cases
outside of their home town than they do within it. They
likely appear in court more often on a pro hac
vice (temporary) basis than they do in the jurisdiction
where they are admitted to practice. So for these
lawyers and the teams that support them, it can be a
real challenge to understand your judge’s likes and
dislikes.

Local counsel’s anecdotal statements can be helpful,


it’s true. All too often, however, they are hard to get
much value from. Local counsel can usually tell you whether the judge has tried many cases
like yours, something about his or her demeanor, his or her tolerance for outsiders, along
with a sense of what arguments work. Like using Yelp for restaurants however, you have to
judge not only the quality of the review but also the preferences of the reviewer.

In some jurisdictions, such as the Eastern District of Texas and the District of Delaware,
local counsel know the judges well enough so that you can come to understand a judge's
likely approach to your case. However, if you want more information, there are other
techniques that make sense.

Here are 21 ways to research your judge:

1) Watch the Judge: Above all else, if your client has the budget, there is no substitute for
watching your judge hear motions and preside over a similar case.

2) Commission a Judge Study: Our senior trial consultants prepare detailed judge studies
that will help inform the tactics you use at trial.

3) Conduct a Mock Bench Trial: We are big believers in mock bench trials. The benefits
are many and include: 1) forcing yourself to practice early; 2) hearing advice from
colleagues of the judge; 3) getting a sense of what works and what does not. We have
previously offered some great tips for conducting mock bench trials and getting great
results.

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4) Find Past Clerks: Here is an advanced Google search for finding former clerks of a
judge. For this and other sample searches below, replace the judge's name and district as
appropriate.

5) Research Any Controversies: Here is an advanced Google search for ferreting out
controversies or scandals a judge may be involved in.

6) Research Memberships and Affiliations: Here is an advanced Google search


for researching the memberships or affiliations of a particular judge.

7) Consult Judgepedia: This site is a comprehensive, up-to-date site that contains vast
amounts of current information on federal and state judges. Modeled on Wikipedia, it gives
useful background data on thousands of judges and on the state and federal court systems.

8) Visit The Robing Room: This judge-rating site is valuable because the feedback from
lawyers is anonymous.

9) Visit RobeProbe: Here is another judge discussion site with reviews from lawyers. This
site also has a number of international lawyers listed.

10) Research Donations: Here is a site to research donations to Pennsylvania judges'


campaigns. Donations to campaigns regulated by the FEC are listed here.

11) Consult Social Media: Some judges are on LinkedIn, some are on Facebook and some
are even on Twitter. It's up to you to find out. Our guide to social media for litigators will be
generally helpful.

12) For Federal Judges, Read the Almanac of the Federal Judiciary: Unless you find a
copy on Westlaw/Lexis or in your local law library, this tome will set you back almost $2,000.
Still, it has a lot of useful information about judges including notable rulings, impressions of
lawyers who have experience with the judge, as well as demeanor analysis and more.

13) Use Westlaw Tricks: Here is a guide that Westlaw offers for researching a judge.

14) Use Lexis Tricks: Here is a link to a PDF from LexisNexis entitled Researching A
Judge. It has some useful tips if you use Lexis. Here are a variety of resources that Lexis
lists as well.

15) Use LawProspector Tricks: LawProspector is a service designed primarily to help


litigation support business development efforts, however litigators can use it to quickly see
other attorneys who have recently had a trial or hearing before a particular federal judge. It
starts at $299/month, so a one-month subscription might be useful to find out who can give
you some good advice.

16) Local Websites: Many jurisdictions, like Pennsylvania, New York and Florida, have
detailed information about state court judges online.

17) Visit the Federal Judicial Center: Here you will find some useful information about
federal judges and there is a focus on history here as well.

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18) Subscribe to TRAC: This tool covers cases since 2004 in the federal judiciary and
claims to "provide a unique way to examine the year-by-year work product of individual
federal district judges." You'll find it here.

19) Visit Judicial Watch: This site attempts to collect financial disclosure information about
particular judges. The coverage does not appear to be extensive in the federal courts, but
you might luckily find your judge listed here.

20) How Long Will That Motion Take: Here are a variety of lists of slow moving judges in
the US Courts.

21) Local Counsel: Of course you should talk to local counsel. This blog article from Texas
law firm Charhon Callahan does a great job of explaining the value of local counsel and
what to look for when selecting them.

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5 Things Every Jury Needs From You


by Laurie R. Kuslansky, Ph.D., Jury Consultant

1. To be able to like you.

Ever hear someone assume everything their ex says is a lie, even when it’s true? Ever
notice how gullible people seem when they find a new love, even when it’s all a lie?

That’s because we want to believe people we like and vice versa. So, you don’t need the
jury to fall in love with you (although that would be nice), but you can’t afford for them
to dislike you. There is research on what creates liking and disliking, but some highlights
are:

• Speak in a way they can understand

• Don’t overly out-dress them to show off how rich you are

• Show respect for their time by being organized and prompt on your feet and not
wasting time

• Don’t overload them with information

• Don’t be presumptuous (“You all know what it’s like to have a 401k.”)

• Don’t act angry all the time. It’s exhausting to witness.

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2. To trust you and your witnesses (after they like you/them)

• Don’t over-promise and under-deliver.

• Don’t make it too personal. It’s “icky” to witness other people feuding and
unprofessional, especially since they view counsel as the “grownups” in the room.

• Keep it simple for them to keep score, from opening, throughout the evidence, and
closing, by being thematic and giving them reminders as the pieces fit together.

• Work with your witnesses to overcome arrogance or trying too hard to be perfect.

• Demonstrate that you are qualified and that your message stays the same over time.

• Show respect to the court.

• Don’t act harshly to your adversary in court, only to act like buddies as soon as you
leave the courtroom. Jurors will think you are playing a game and won’t trust you.

3. To feel OK about you winning/the other side losing

• If you’re Goliath, jurors need a message that makes it OK to find for you or against
David.

• Alternatively, you may want to shape your message to explain why it would be wrong
to find against Goliath.

• Assuming that a 2D explanation that is purely factual (“The evidence is not there for
liability, so you cannot find for Plaintiff.”) is not a message.

• If finding for your client would feel bad to the jury, it’s your job to deal with it.

4. What you actually need them to do, not vaguely, but exactly

• Asking jurors to find for your client does little to guide them when it comes time to
answer actual verdict questions.

• Provide them with the actual questions, the appropriate answers as you see them, a
summary of the evidence that supports those answers (ideally in graphic form), and
the reasoning.

5. You’re saying and showing many things. What’s most important?

Everything you say and do is not equally important. You know what is critical and what is
not. While you are required to lay foundations and assemble the case from the bottom up,
jurors are more likely to judge the case top-down. They tend to focus on a few key things
that stand out to them and form their own story of what happened, then fit the choice things
that fit well into that construct.

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What happens if what stands out to them misses your point altogether? What if they have
no idea why you went through all that information and didn’t pay as much attention because
it was boring?

To avoid leaving your most important evidence – as you see it – as the stuff of their naps,
reduce the risk by alerting them to vital points. Have witnesses repeat key answers. Ask,
“What is the most important thing about that?” Fill your side of the courtroom with spectators
when your star witness will testify. Thin out your spectators when opposing witnesses
should not be seen as important. Use prefaces that alert jurors’ attention like a drum
roll. Have your spectators wear their finest for special moments in the trial. Avoid being too
cute, but be clear and send clear signals that help lead jurors to pay more attention to (or
ignore) information so they get out what you put in to the trial.

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The 12 Worst PowerPoint Mistakes


Litigators Make
by Ken Lopez, Founder & CEO, A2L Consulting

Some online estimates say that about 30 million PowerPoint presentations are given every
day. That number seems more than a bit high, and it’s hard to find a credible source for it.
But let’s say it’s off by a factor of 80 percent, so that just one-fifth of that many presentations
are given each day. Still, that would be 6 million PowerPoints.

In the legal community, we give our fair share. Since legal services are about 1% of the total
economy, we can make a guess that at least 60,000 PowerPoints are being given every day
in the U.S. legal industry, or about 6,000 for every hour of the working day.

If we assume that every legal industry PowerPoint is being watched by an average of two
other people and all of those people charge $200 on average for their services, America's
legal industry is producing at least $3.6 million of PowerPoints every hour! That’s a lot of
time and a lot of money. We ought to at least use it well.

PowerPoint has been the dominant presentation software in the courtroom since 2003.
When used well in the courtroom, it allows a skilled presenter to captivate an audience with
a well told story, enhance the audience's understanding of a case, and persuade skeptics
that the presenter’s position is correct. In other words, a well-crafted PowerPoint
presentation helps tip the scales of victory, potentially substantially, in your client's favor.

Unfortunately, I believe the typical PowerPoint presentation used in the courtroom causes
more harm than good. Here are twelve easy-to-avoid PowerPoint mistakes.

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1. The bullet point list. This is the mother of all PowerPoint mistakes. If you make this
one, you probably make several others on the list. We have written about why bullet
points are bad many times, and below is an example of what not to do. The most
significant problem is that people will normally read your bullets and ignore what you
are saying. Further, their brains will remember less than if they had either read OR
heard what you were saying because of the split attention effect.

2. The wall of text. Courtroom presentations should be a lot more Steve Jobs and a lot
less like the example below. Nobody can read it.

3. The “who cares.” If you fail to tell a compelling story that nobody cares about, your
presentation was a waste.

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4. The flying whatever. Please do not use PowerPoint animation effects. They are
distracting and add little to your presentation.

5. The “huh” image. Don't include images that only vaguely enhance your message.

6. The back turn. Do not turn your back on your audience. Watch the TED Talks for
good presentation form.

7. The itsy bitsy. For text on a slide that is projected, I would not go below 24-point
text.

8. The slide that overstayed its welcome. Don't leave up a slide that has nothing to
do with the point you are making. Either insert a black screen slide or press the B
key to toggle on and off your presentation.

9. The Bob Marley. "Turnnn your lights dooowwwwnnn looooowwww." If you have to,
you have the wrong projector. Use 3000 lumens; that’s good, and 5000 lumens is
great.

10. The highly objectionable. Do not put up materials that the judge will rule
inadmissible.

11. The “ehhh.” If you have sound to play, make sure you have the equipment to
amplify it with. Your laptop speakers are not enough for any courtroom.

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12. The End (is missing): Please do insert a black screen on your last slide so that we
don't see you hit the “next” key one more time only to reveal the desktop photo of
you and your kids in Tahoe.

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Explaining the Value of Litigation


Consulting to In-House Counsel
In an era in which clients are scrutinizing their legal bills
and negotiating discounts and alternative fee
arrangements with their law firms, it is no surprise that
they are also looking closely at the bottom line when it
comes to litigation support costs. Of course, that
includes the costs of litigation graphics, trial technology,
and the other litigation consulting services that we
provide. In the typical piece of litigation, most of those
costs are incurred in the months and weeks just before
trial – and they can seem expensive to a client who is
not accustomed to dealing with these services.

At A2L, our invoice pales in comparison with that of the


law firm(s) that we work with. (We usually estimate that
it will run between half of 1 percent of the legal fees at
the low end, and 5 percent at the high end.) Still, the
litigator who is the client’s chief contact in the law firm must often justify the value of litigation
consulting services to a client who may not be familiar with the requirements of modern
litigation.

Here are some points that a trial lawyer can make to a client in a high-stakes case that
shows the value of our work.

Litigation Graphics: For our litigation graphics services, it is well documented that 60
percent of human beings, and thus 60 percent of jurors, are visual learners. A compelling
and clear visual presentation can help ensure that the client’s case is easily conveyed and
understood. In order to create such a presentation, a litigation consulting firm requires a
specialized graphic artist’s skills. This is not a matter of “dumbing down” the presentation;
quite the contrary, it is difficult and challenging to convey complex ideas to jurors.

In addition, when we use a mix of mediums such as presentation boards, PowerPoint, 3-D
scale models, document call-outs and highlighting, we minimize jurors’ boredom and keep
them interested in the client’s case. Finally, when we create graphics for mock
jury exercises, we are testing case themes and helping the client decide which ones will be
presented at trial.

Trial Technology/Hot-Seaters: For our trial technology services, it’s important to note that
in an age of “CSI” and “Law and Order,” jurors expect a seamless performance by the legal
team. The use of a “hot seat operator” permits the client’s lawyers to focus on their
presentation, not on the technology supporting it. The jurors like to think that the lawyers
respect their time by making presentations that go off perfectly, without glitches. And since
the other side’s lawyers will probably be using similar technology, it is important to keep up
with them or even to surpass them in skill.

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Trial & Jury Consulting: Jury research and witness preparation can easily be seen as
having direct and immediate effects on the client’s litigation success. A mock jury or focus
group can provide crucial information about whether the trial plan is the best one possible
and can further determine whether a trial is a good idea in the first place. Preparing
witnesses is vital to ensuring that their testimony will have the desired effect. And the use of
jury experts during jury selection can help the client obtain the best pool of fact finders for
winning the case.

E-briefs: For electronic brief production, the filing of briefs in electronic format is
becoming a preferred mode or even a requirement in some courts. Electronic hyperlinking of
citations in a brief makes it easier for judges and their clerks to access the client’s briefs
anywhere and at any time – even on their iPads.

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Like It or Not: Likeability Counts for


Credibility in the Courtroom
by Laurie R. Kuslansky, Ph.D., Managing Director, Jury Consulting, A2L Consulting

In the courtroom or anywhere else, for that matter, it’s hard to believe someone you don’t
like … because you don’t want to. Credibility depends on likeability and likeability is one of
the easiest variables to overlook, at your own peril, whether we are talking about the
likeability of a litigator, a client or a witness. When assessing the likeability of someone on
your side’s team, it is difficult to be objective because it’s your job to like them (say, if you
are lead counsel, or lead counsel is your boss, plus the client, the client’s employees and
your expert witnesses). You already have plenty of motivation to do so – whether a
paycheck, a promotion, a relationship, or other rewards. A jury does not. Jurors will not
only have no rose-colored glasses on; they may have shades on altogether.

According to the “friendship/liking rule,”[1] people are more favorable to people they know
and like and are more willing to comply with their requests. This principle can be used for
good or evil. For example, it is evident in one of the most successful business models to
evolve: the Tupperware home party. Tupperware found that sales pitches are received more
positively from friends and neighbors than from strangers, since we believe people we like
more than ones we dislike. It is also evident in affinity fraud, whereby people trust their
money to people they know and like, which is exploited by many a con artist engaging in
Ponzi schemes. As the U.S. SEC states (emphasis added):[2]

• “These scams exploit the trust and friendship that exist in groups of people who have
something in common.”

• “Affinity frauds can target any group of people who take pride in their shared
characteristics, whether they are religious, ethnic, or professional.”

Notice that the common thread here is having common ground. Having and using the
common ground between participants in conversation is one of the most important routes to
effectively communicating. The converse is also true. Among the most important building
blocks toward reaching the skill of successful communication during development are the
abilities to take another’s perspective, include it in forming one’s messages, making sure to
use the common ground, and making one’s utterances contingent on the other’s input

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(rather than having a collective monologue, whereby each one says something that
does not relate back to what the other just said). Many of us can recall bad dates or failed
relationships in which this has happened and how frustrating and unsatisfying such
communication can be. This behavior is more common (and age appropriate) for 3-year
olds. For example, one may say “I like ice cream,” to which the other responds, “Look, a
puppy!”

Using common ground to increase likability and trust is a variation on xenophobia, i.e., we
are more likely to like and trust people more like ourselves than people who are different,
like it or not. Similarity (about opinions, personality traits, dress, background or lifestyle) has
been shown to increase likability, so it is worthwhile for trial counsel and key witnesses
to match styles with the local flavor of the jury, or, as Marisa Tomei said in My Cousin Vinny,
“You blend” with your decision maker(s).[3] Another way to increase similarity between your
litigation team and the jury is to mirror body language by subtly matching the judge’s or
jurors’ postures and gestures to make them feel more at ease and positive about you
because you seem more like them. In contrast, during cross examination, or when facing
hostility in the courtroom, it may be more powerful not to match the style of the adversary.

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 is more complicated,
jurors are more likely to seek shortcuts and give more weight to easier factors to
understand, such as whom they like or not. 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.[4] Being liked is an important
ingredient in the cocktail of peripheral cues jurors use to decide whom to believe. Knowing
that likeability is so critical to credibility in litigation, what can you do about it?

What Increases “Liking” in the Courtroom?

Attorneys and witnesses who – by design – cannot share an existing friendship with jurors --
can still benefit from applying the liking/friendship rule by understanding a number of
relevant factors outlined below.[5]

Factors of liking and friendship include:

• Physical attractiveness

• Pretty positive: Positive reactions to good physical appearance generalize to talent,


kindness, honesty, and intelligence.[6] Thus, attractive attorneys, witnesses and
clients at counsel table are generally more likely to be persuasive at changing
attitudes and getting what they request.[7]

• The truth isn’t pretty: In fact, more physically attractive defendants have yielded
less certainty of guilt from jurors and received recommendations for less severe
punishments than less physically attractive defendants.[8]

• Compliments can create return liking and willing compliance. For example, the actor
McClean Stevenson once said: “My wife tricked me into marrying her – she said she
liked me.”

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• Flattery, if not overtly manipulative, creates liking[9] and is just as effective at
creating liking when true as when not true, and even when the recipient realizes that
the flatterer stands to gain from being liked.[10]

• Cooperation: People working together toward a goal, such as pulling together


against a common enemy, feel more positive toward one another[11] Car salesmen
and others often engage the principle of good cop/bad cop by setting up their
manager or “Corporate” or someone more senior as the villain so the salesman and
customer can do battle to win him/her over, creating a common alliance toward a
mutual goal. To the extent possible, create mutual goals toward which you can help
the jury work with you, whether a mystery you will help them solve, a more efficient
way to get through certain procedures, clear tutorial graphics to become educated
about facts, or another end you can help them reach.

• Scarcity improves positive attitudes because if less is available, what is available


seems better. Limited access to information makes us want it more and makes it
more influential.[12] Hence, explaining “little-known facts of interest,” or information
only the courtroom is privy to which are relevant to the case, and making jurors
aware of this fact when possible, makes them feel special. Scarcity has increased
how things are valued throughout history. Collectors know it; precious mistakes such
as a misstamped coin are valuable because of it. It’s a shortcut to something’s value,
it can cause the loss of freedoms, and people hate to lose freedoms they already
have (because it diminishes personal control), also called “psychological reactance
theory.”[13] The more threatened we are about losing something, the more we want
to keep it and value it (you don’t know what you’ve got till it’s almost gone).

• Reciprocity: Offering someone something first makes them more likely to want to
give you something back, known as the “reciprocity reflex.”[14] Phrasing what you
promise the jury in voir dire in such terms (I promise to do “x” for you, and rely on you
to do “y”), then keeping your word, is one way to act on this principle.

• Smooth Talking: People highly responsive in conversation (those who responded


faster and more, used more diverse words, and were more effusive when
responding) were also perceived to be likeable, intelligent, and interesting, and were
valued as a possible friend.[15] This implies that both attorneys responding to the
Judge’s questions and witnesses responding to attorneys’ questions should beware
of overly laboring the timing of their responses and should be conversational when
responding – without overdoing it.

• Other factors which have added to likeability are self-disclosure, listening, cordiality,
showing interest, and of course, appropriate smiling. A variety of research has
yielded other highly valuable findings about the relationship of social validation (fitting
in with what others are doing as a model for what to do), consistency (between prior
and current actions) and authority (whereby credentials merit trust), among others, to
increase persuasion.[16]

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Jekyll vs. Hyde

Likeability and trust also come from consistency. Knowing that what you see is what you
get, over time, helps. It is no wonder, therefore, that witnesses who drastically change their
demeanor from friendly and cooperative on direct examination, and then morph into
someone who refuses to answer questions, becomes antagonistic and uncooperative on
cross – is not likable nor trusted. The truth should look and feel the same, no matter who’s
asking the questions.

In the end, sincerity bonds people together. Allowing them to see in you and your clients and
witnesses the same truths and human traits that they recognize in themselves makes you
genuine, likeable, and believable, like it or not.

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Sample One-Year Trial Prep Calendar for


High Stakes Cases
By Ken Lopez, Founder & CEO, A2L Consulting

A high percentage of the work that we do at A2L Consulting is on cases with billions at
stake. Over the last 18 years, we've seen trial teams prepare well and we've seen trial
teams caught underprepared, often because they believed that settlement was imminent
and that there was little or no need for trial preparation.

So that no one gets caught without being prepared, here’s a sample calendar that lays out a
trial preparation plan for mock trials, the creation of litigation graphics, the planning and
deployment of trial technology, witness preparation and informal run-throughs on the eve of
trial.

Not every case warrants this level of preparation. However if your client is in a bet-the-
company situation, if there is $20 million or more at stake or if there is a threat of pattern
litigation, then this level of preparation is entirely appropriate - if not required.

Gone are the days when a trial lawyer wings his or her way through a trial and tries to use
charm to win a case. Juries and judges expect a lot more these days from attorneys than
they did 10 years ago. They want to see a well-rehearsed show with evidence nicely teed up
for decision-making, witnesses who are well prepared, and a lawyer who has planned
everything out, including the technology. Anything less, and they'll likely punish your client
for it on some level.

The best litigators that I see prepare a lot with the support of a client. Often this involves
several rounds of full-scale mock trials. However, the most important thing a client can do is
create an environment where the trial attorney feels that he or she can make mistakes. As
they say in show biz, bad rehearsal, great performance.

In the sample calendar below, we show a year's worth of preparation for a hypothetical 2-
week December trial. We use our Micro-Mock™ service for an early case assessment and
to help clarify the likely trial themes and story. Preparation of litigation graphics starts early
to allow for several rounds of testing, refinement and approval over the course of the year.
Two mock-trial exercises are planned with three or four panels of jurors per exercise.
Witnesses are thoroughly prepped and trial technology for both the war room and the
courtroom are planned and set up. Finally, a series of run-throughs are scheduled just prior
to trial to make sure that trial counsel, the trial technician, witnesses and the trial technology
are operating like a well-oiled machine.

What we are describing below is a general sense of how this should work, using a sample
calendar. There is considerable variability in the investment required, both in terms of time
and money, depending on how many witnesses there will be, how long a mock trial, how
many graphics there are, how long the trial is, and other variables.

Click here or on the image below to download a larger PDF version of the sample trial
preparation one-year calendar for a two-week trial in a high-stakes case:

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5 Tips for Working Well As a Joint Defense Team


The 5 Biggest Issues in Patent Law Right Now
12 Insider Tips for Choosing a Jury Consultant
7 Things Expert Witnesses Should Never Say
10 Things Litigators Can Learn From Newscasters
11 Traits of Great Courtroom Trial Technicians
Top 5 Trial Timeline Tips
Trial Graphics, Color Choice and Culture

Like These Articles?


Subscribe to our blog for free.
The Very Best Use of Coaches in Trial Preparation
4 Tips for Stealing Thunder in the Courtroom
7 Tips to Take “Dire” out of Voir Dire
How to Emotionally Move Your Audience
Jury Questionnaire by the Numbers
360° of PTSD: Facts vs. Fiction in Litigation
Are You Smarter Than a Soap Opera Writer?
Don't Be Just Another Timeline Trial Lawyer
7 Things You Never Want to Say in Court

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Ken Lopez
Founder and CEO
lopez@A2LC.com
1.800.337.7697

Litigation Graphics
Jury Consulting
Trial Technology
Visual Persuasion
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