Know Your Fallacies When Presenting in Court

By Dr. Ken Broda-Bahm:

Remember the list of fallacies? For many of us, it might fall in the category of things we learned at one point in our lives, probably in a logic or communication class, and then mostly set aside in our practical lives. After all, it can seem a little pedantic, or even arrogant, to call them out. “Hey, that’s a fallacy!” isn’t likely to work when examining a witness or persuading a jury. You could point out, “Your honor, opposing counsel is resorting to the common tu quoque or, ‘you too’ fallacy, in pointing to my discovery behavior in order to defend his own.” That isn’t likely to get you very far either. So is it worth it to remember and use the fallacies at all?

Some Common Fallacies of Legal Persuasion

Fallacies are ways of arguing that seem to offer proof or persuasive merit, while not actually contributing support. In that sense of being pleasing counterfeits, they’re as much psychological as they are logical. Here are the ones that I think are most common in our context.

Post Hoc Ergo Propter Hoc: ‘After this, therefore because of this’ or, as the book refers to it, ‘Not a cause, for a cause.’

Shortly after the product redesign, that’s when the complaints and incidents started to occur…

Read more here:

http://www.persuasivelitigator.com/2013/09/know-your-fallacies.html

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.

Read more tips here:

http://www.a2lc.com/blog/bid/67138/15-Tips-for-Great-Customer-Service-from-the-Restaurant-Industry?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+a2lc+%28The+Litigation+Consulting+Report+from+A2L+Consulting%29

Displaying Patent Language in Patent Litigation

By Michael Kelleher

As lawyers, we are always arguing about documents, and we often need to display those documents in court. In patent cases, displaying documents is particularly important because the patent’s language describes the invention. In today’s post, I’ll talk about how to display this language in an understandable, readable and trustworthy form for the judge or jury.

Importance of the Patent’s Language

The primacy of a patent’s language comes from the patent statutes. For example, 35 U.S.C. § 112 requires that inventors describe their inventions fully and clearly, and that they point out their invention in the claims:

In light of the key role of patent language, patent litigators often need to display patent language in court to argue about the meaning of the language.

The Three Requirements: Understandable, Readable and Trustworthy

Whenever you display document language in court, you must make sure that (1) the audience understands what is being shown; (2) the language is readable; and (3) that the judge and/or jury trusts that you are displaying the language accurately.

Displaying Your Patent Language: Slides vs. Live Presentation

How do we recommend presenting patent language? First, you need to decide if you will be presenting prepared slides, or showing magnified documents live on Trial Director, Sanction, an Elmo, a poster board or another live display technology in court. There are advantages to both approaches. In this post, I’ll assume that you have decided to use pre-prepared slides of patent language, and save for another day the discussion of Trial Director or Sanction versus prepared slides.

Read more here:

http://cogentlegal.com/blog/2013/08/displaying-patent-language/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+CogentLegalBlog+%28Cogent+Legal+Blog%29

17 Tips for Great Preferred Vendor Programs

by Ken Lopez
Founder/CEO
A2L Consulting

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.

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.

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.

Read more here:

http://www.a2lc.com/blog/bid/66290/17-tips-for-great-preferred-vendor-programs?source=Blog_Email_%5B17%20Tips%20for%20Great%20Pr%5D

Danger! Peremptory Challenges Under Attack from Washington State Supreme Court Justice

By: Glenn Kuper Ph.D., Theodore O. Prosise Ph.D.

Recently the highest court in Washington seems to have set their sights on the issue of peremptory strikes in the jury selection process.  The article, “Wash. justices decry race bias in jury selection,” discusses an argument made recently by state Supreme Court Justice Steven Gonzalez that the use of peremptory strikes increases the potential for racism to play a role in jury verdicts.  Justice Gonzalez argued that peremptory strikes, a 700 year-old practice, have been used to unfairly eliminate minority jurors from jury panels, and according to Justice Gonzalez, should be eliminated.  However, this is a classic example of “throwing the baby out with the bathwater,” as the proper use of peremptory challenges, when informed by information gathered through robust voir dire and supplemental jury questionnaires, can actually reduce the instances of bias in jury decision-making.

Jury consultants have the opportunity to observe more mock jury trial deliberations and conduct more in-depth post-verdict interviews than virtually anyone else in the judicial system.  And we can tell you a single individual with bias or prejudice against a particular corporation, against management in an employment case, against law enforcement, or against a particular “type” of plaintiff can exert tremendous influence on a jury.

Read more here:

http://tsongas.com/blog-posts/danger-a-concerning-development-in-justices-views-of-jury-selection-practice/

Don’t Overlook This Simple Yet Effective Point in Your Presentation

by: Bethany Auck

There is no more greatly undervalued place on a presentation slide than the title field. Too often, title fields are filled with vague descriptors, packed with unnecessary verbage, or, worse, skipped all together (e.g. the Zimmerman trial prosecution slides). Slide titles have great real estate and should be put to use. Here are five rules of thumb for powerful slide titles.

1. Don’t Label

Labeling a slide with a vague descriptor may be the most common titling fail. Titles like “Revenue Chart,” and “Conclusion” are all too common and sometimes appear on several slides in a row. Nothing could be more useless for the audience.

A title is not a label; it is a headline. What specific information is this slide sharing? If multiple slides in the deck have the same headline, there are likely too many slides.

2. Argue

Even specific titles, while a vast improvement, fall short of their full potential. A title like “2014 Revenue Goals” is specific to its content, but falls short of driving home the argument of the slide. “2014: Increasing Revenue Via Product A” further clarifies the inherent argument of the data. Not only should a slide headline be specific to its exact content, but it should argue your point and lay bare a specific takeaway message. It should answer the question, What does this slide want to prove? What should the audience

Read more here:

Slide Design: 5 Tips for Hardworking Titles

Looking to Engage Multiple Audiences at Trial? Try this…

By Dr. Ken Broda-Bahm:

If you returned with me to Shakespeare’s original theater, the Globe in London around 1600, you would notice one important architectural feature: There is a gallery and there is a pit. The gallery, the seats in the bleachers that ring the outside of the theater, are the pricier seats occupied by the more well-to-do theater goers. The pit, the straw-covered floor of the theater, is where the less affluent would stand and watch the show. Based on this class difference, there is also a difference in the kind of show that each audience wants to see….

A recent panel at the ABA Annual Meeting in San Francisco focused on what Shakespeare had to say to lawyers (it turns out the ‘first, kill all the lawyers” thing is presented as a route to tyranny). I wasn’t able to attend, but I do wonder if the panel touched on this “multiple audiences” lesson from Shakespeare. Litigators addressing a jury have the same need for complexity in focus. But in addition to addressing differences in social class, age, education, race, and gender, attorneys are also speaking to differences in whether jurors are naturally favorable or naturally skeptical of your kind of case.

Read more here:

http://www.persuasivelitigator.com/2013/08/learn-from-the-bard-engage-multiple-audiences.html

21st Century Clients’ Expectations & BigLaw Collide – And It Ain’t Pretty

By: Nicole Black

If, like some lawyers, you’ve had your head in the sand, you might be unaware that the legal landscape has changed dramatically in recent years. Internet-based technologies have affected all aspects of our culture, including consumer expectations and the ways that business is conducted. Because of the mobile and Internet revolutions, we now have instantaneous access to information, resulting in consumers who are more knowledgeable, more selective, and more demanding. Accordingly, online payments are the norm and consumers have come to expect more for their money, fast response times, and quick answers.

When “consumers” suddenly encounter legal problems and thus become “legal consumers,” their expectations do not suddenly change. Instead, 21st century legal consumers expect just as much from their attorneys as they do from other non-legal service providers. This sudden shift in expectations has dramatically increased competition in the legal services space and has had an astounding effect on the delivery of legal services. For evidence of this, you need look no further than the huge success of LegalZoom and similar services and the predicted decline of BigLaw.

Read more here:

http://lasthonestlawyer.org/2013/08/12/guest-post-by-nicole-black-21st-century-clients-expectations-biglaw-collide-and-it-aint-pretty/

How to Correctly Manage Exhibits at Trial

By: Ted Brooks

Exhibits are the building blocks of litigation, and if you end up at the short end in the battle of admitted evidence, you lose the trial. Like many sports, coming in second place in trial is not really a good thing. While you may have to play the hand you’ve been dealt, you do have options as to how you manage and present your evidence.

For purposes of this article, we will assume that you have a large volume of documents – although the recommendations and best practices shared may be applied to cases of any size.

Organizing the Data

You may already be onto the idea that finding what you need during trial is fairly important. Setting up a reliable data structure can mean the difference of finding that key document in a hurry, or not finding it at all. This relates to naming and structuring of folders and files. While there isn’t necessarily a right or wrong way, there are definitely good and bad ways for this.

Read more here:

http://trial-technology.blogspot.com/2013/04/managing-exhibits-in-trial.html

Communicate More Effectively: Tune Your Witness’s Tone of Voice

Tune Your Witness’s Tone of Voice

By Dr. Shelley Spiecker:

A few days ago I was helping prepare a successful CEO for testimony in an upcoming arbitration. The case boiled down to a dispute between two shareholders with one advocating for dissolution of their agreement and the other seeking to keep the agreement in force. My client’s testimony and credibility would be crucial to the case. A high self-monitor, he quickly picked up on my recommendations for posture, eye contact, and other key nonverbal credibility cues. One impediment remained – a tendency to end sentences with an upward vocal inflection. While infrequent, this “uptalking” had the overall effect of making him appear uncertain and less believable than desired.

Ironically, while vocal characteristics speak volumes in terms of impression formation, they can often be one of the more difficult aspects of witness presentation to change. Sager suggests that scientifically voice sounds different to the speaker than it does to the listener, a key reason it can be difficult for many witnesses to self-correct their vocal cues.

Recent research suggests that making the effort to assess vocal quality and enhance vocal effectiveness can pay off.

Read more here:

http://www.persuasivelitigator.com/2013/05/what-are-your-witnesses-saying-when-they-speak.html