Best Article I Read This Week: The Science of Jury Selection and the Art of Conversation

By
Theodore O. Prosise Ph.D.

Tsongas Litigation Consulting

The goal of jury “de-selection” is to reveal jurors with attitudes and experiences antithetical to your case themes and messages.  Effectively and thoughtfully observing juror data and reactions, and then interpreting and evaluating communicative expressions, takes experience, expertise, organization, and effort.  Creating, through performance, the environment conducive to such public expression in a court of law is critical.

The courtroom is an intimidating place; especially for potential jurors.  For many, it is their first time in a courtroom. The formality of the process and the unique elements of the communicative environment can impede their comfort in expressing their views.  In addition, they are often unfamiliar with issues that are deeply embedded within a trial team’s experience.  As such, what can roll off a lawyer’s tongue in questioning may take extra time for potential jurors to process, assess, and react to.  Because the lawyers cannot (or at least are not supposed to) discuss their evidence or the law in voir dire, jurors are often asked many abstract questions which they need time to process before considering how they should answer.  But here is the conflict….

Read the full article here:

http://tsongas.com/blog-posts/the-science-of-jury-selection-and-the-art-of-conversation/

Developing Graphics for Litigation? Ask Yourself This Question….

I was recently working on a case with a long time client, when this question popped into my head: Why does this matter?

We were assembling case themes, and subsequent graphics, for his opening presentation and struggling to condense his 55-slide presentation to conform to a 45 minute time limit.  This client is a well-respected orator, so I had no worries that he would be able to persuade the audience with his dialogue, but I was genuinely concerned that he would overwhelm them with his dense visual presentation. As I culled through the slides, trying to find materials that I could cut, I kept asking myself the same question over and over again: Why does this matter?

Knowing that we had to cut this presentation in order to not overwhelm the jury, as well as get our point across, our goal was to strategically eliminate slides that didn’t hold up to the scrutiny of this imperative question.  We have to remember, that our opening presentation isn’t the time to put on our entire case, but rather provide a road map of why were are here, where we are going and how we are going to get there.  These three questions can easily be answered in less than an hour, through engaging your audience with a mix of an oratory and carefully selected visuals.

If the answer to this question is glaringly evident, particularly with your opening presentation, then most likely need to cut whatever it is you’re looking and save it for later, or not at all.  Remember: our goal in opening is to simply lay the foundation of our story in an abbreviated time frame.

It’s no coincidence that as I’m writing this article, a client (partner at a large NYC law firm) emailed regarding a current matter we are working on.  He had reviewed the presentation, created by two associates, and commented “we need to cut this down; the jury will be asleep in under 20 minutes.”  He knew what his associates should have been asking from the start, and if they did, could have saved valuable time, and money, as trial quickly approached.

 

Why does this graphic matter?  Because it combines three case themes, represents critical data and has an immediately recognized takeaway.

So, the next time you are creating your visual presentation for trial, arbitration, meditation or a hearing, don’t forget to ask: Why does this matter?

If you need assistance with this imperative question, feel free to contact me on LinkedIn or at DMykel@VisuaLexLLC.com

 

16 Litigation Graphics Lessons for Mid-Sized Law Firms

litigation graphics mid size law firm

by Ken Lopez
Founder/CEO
A2L Consulting

Over the past three decades, law firms have figured out that litigation best practices include the extensive use of visual aids, the regular use of a trial technician to manage electronic evidence at trial, and the value of conducting one or more mock exercises. Each of these practice areas has developed in response to specific problems that exist in bench and jury trials alike, and there is an art and science (and about a $250 million industry) that exists around litigation consulting.

So, as more large litigation is pushed into midsize firms as a cost containment measure, I notice something interesting. Most midsized firms just don’t know how to use litigation consultants, and what might look like cost savings is going to yield troublesome results later. After all, we figured all of these problems out once in the 1990s, and an industry exists to provide solutions.

So in the spirit of offering the midsized firm, or frankly any firm that is not an AmLaw 50 firm, a solid primer on what’s been learned these past 20 years, I offer the following 16 lessons:

1. Using Litigation Graphics Yields Better Results: It’s beyond “broad scientific consensus,” it’s just a fact, Litigation graphics provide better results. This recent 2013 study on the effect of visual evidence on juries [PDF] does a good job of summarizing the science of litigation graphics.

Read more here:

http://www.a2lc.com/blog/bid/69374/16-Litigation-Graphics-Lessons-for-Mid-Sized-Law-Firms

Making Good Use of Trial Director & Demonstratives in an Arbitration

Posted by Ken Lopez

TrialDirector, a trial presentation software package produced by InData, is an indispensable aid to the presentation of electronic and other evidence at trial. There is a reason why this product has claimed the majority of the market share for trial presentation software for more than 10 years: It can actually make it interesting for a jury or other fact-finder to listen to a witness testify about corporate balance sheets, long-ago emails, and other documents that can be fatally boring and lose the attention of the fact-finder.

trial director technology presentation

Read more here:

http://www.a2lc.com/blog/bid/51467/Making-Good-Use-of-Trial-Director-Demonstratives-in-an-Arbitration

The 5 Biggest Issues in Patent Law Right Now

by Ryan H. Flax, Esq.
Managing Director, Litigation Consulting
A2L Consulting

The field of patent law, like all other areas of the law in the U.S., is constantly in flux and is constantly being refined or even rewritten by the courts and the lawmakers.  Even more so than most other areas of law this is true for patent law because, if for no other reason, there are so many nuances to it and so many different complimentary and competing doctrines within the greater label of “patent law.”

patent litigation law issuesTo make matters more volatile, patent practitioners have two courts to deal with in terms of those believing they’re the last word on the relevant law: the U.S. Court of Appeals for the Federal Circuit and the U.S. Supreme Court.

So, recently there have been some interesting issues evolving in patent law.  Here’s a brief review to keep everyone up to date.

1. Trolls – slaying the beast under the bridge

patent trolls litigationThe most frequent patent news as of late relates to newly proposed legislation to make it less attractive for non-practicing entities

Read more here:

http://www.a2lc.com/blog/bid/68746/the-5-biggest-issues-in-patent-law-right-now?source=Blog_Email_%5BThe%205%20Biggest%20Issues%5D

Follow the Ten Commandments of Graphics Use in Trial

By Dr. Ken Broda-Bahm:

246071747_d8520ea114_b
A recent blog post written by a juror in the trial of Jim Fayed, a gold trader convicted of arranging the brutal murder of his estranged wife in a Los Angeles parking garage, included some rather colorful descriptions of the prosecutor’s use of demonstrative graphics:

…And then there were the assistant DA’s unnecessarily omnipresent PowerPoint slides. 

Here are some actual quotes:
.
“If Jim Fayed didn’t do it, who did? BATMAN?” Click: Batman slide.
.
“The defense is offering you a buffet of explanations.” Click: buffet slide.
….

Effective trial presentation is an art, and litigators should use every effective tool at their disposal to practice and hone that art. But when the techniques call attention to themselves is when “art” becomes “artiface.” Some would point to this example and say, “See! This is what happens when litigators wed themselves to PowerPoint and other presentation crutches in opening and closing.” But the problem in this case is not the use of visuals and PowerPoint, but the way they’re used

Read more here:

http://www.persuasivelitigator.com/2013/03/follow-the-ten-commandments-of-graphics-use-in-trial.html

6 Trial Presentation Errors Lawyers Can Easily Avoid

by Ken Lopez
A2L Consulting

In our view, many common techniques that lawyers use in making courtroom trial presentations actually represent very common errors.

“Error” is a strong word, since trial presentation skills and techniques are not an exact science. However, every litigator and courtroom professional should know that there is a strong body of evidence that supports the idea that these approaches are less desirable and likely to be less effective.

Don’t Split the Audience’s Attention..

Read more here:

http://www.a2lc.com/blog/bid/59802/6-Trial-Presentation-Errors-Lawyers-Can-Easily-Avoid

trial presentation errors mistakes avoid

24 Mistakes That Make For a DeMONSTERative Evidence Nightmare

Posted by Ken Lopez

demontrative evidence demonsterative halloween demonsteritive evidence

Demonstrative evidence is a general term for evidence introduced in litigation that is neither spoken testimony nor “real” evidence like an actual murder weapon. Demonstrative evidence is introduced in order to make evidence and facts in a case easier for the judge or jury to understand.

Here are some common mistakes to avoid.

  1. Waiting until it is too late. From the very beginning, plan your case with an eye toward its presentation to a jury. See our article on using a dual-track strategy in trial preparation.
  2. Cheating on your charts. There are many ways to lie using charts, including axis changes, using logarithmic scales, cherry picking data, and much more. These “black-hat” techniques are not only inappropriate but if you get caught, they are likely to draw sanctions or worse.

Read more here:

http://www.a2lc.com/blog/bid/60819/24-Mistakes-That-Make-For-a-DeMONSTERative-Evidence-Nightmare

How Does the Modality Effect Play a Role in Litigation Graphics?

Here’s a great article, recommended from a colleague, about how the modality effect works in multimedia learning.  If you’re a litigator in the 21st century, this is a must read.

Abstract:

The modality effect is a central issue in multimedia learning [see Mayer (Cambridge University Press, 2005a), for a review]. Sweller’s Cognitive Load Theory (CLT), for example, presumes that an illustrated text is better understood when presented visually rather than orally.

This article also widens the scope of the analysis of moderator variables (e.g. Pace of presentation, Type of visualization, Research group) as well as their potentially confounded effects. Finally, it is argued that, for theoretical reasons, the so-called modality effect cannot be based on Penney’s or Baddeley’s theories and must be explained in a different way.

See the entire article here: http://link.springer.com/article/10.1007%2Fs10936-011-9180-4

Journal of Psycholinguistic Research