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Two men hover in a small conference room staring at a white board that, at this late hour, is not as white as it is multicolored, the result of diagrams, lines and a mash of words that have been drawn, erased and drawn again. They sift through multiple versions of storyboards, step-by-step illustrations used to help them plan a set of graphics to deliver their client’s message to a discerning audience. Their challenge: Craft a message and presentation that are informative and persuasive without becoming overwhelming � or worse, conveying a sense of overt salesmanship. It’s a scene that could be taking place in any advertising agency or marketing firm along New York’s Madison Avenue, where the art of persuasion has become a hard science. But these are not advertising executives preparing to hawk the latest sneaker or Vodka brand in a commercial. They are litigation consultants, tasked with helping their client, a national law firm, fend off charges that the law firm’s client infringed on another company’s patented technology. To do so successfully, the consultants will need to help the defense attorneys persuade the judge and jury that the plaintiff’s patented technology bears little resemblance to the defendant’s technology. Frequently coming from backgrounds more closely associated with research labs than creative war rooms, litigation consultants must create a strategy that can demonstrate their client’s product and underlying technology but at the same time engage the audience. The presentation, which can include multimedia tools with interactive capabilities, will help the defense attorneys position the issues � and the case � in their favor. Strategy, multimedia and positioning are buzzwords and tactics that once were reserved for advertising professionals, but now are indispensable techniques in the courtroom and throughout the litigation lifestyle. Welcome to the new look of litigation consulting. The need for, and use of, persuasive techniques has been a staple of litigation for years. The application of these techniques traditionally has fallen on the shoulders of the trial attorneys who lead the case, while the role of litigation consultants has been, for the most part, to do whatever is necessary to help the trial attorney apply those techniques. For litigation consultants, that has meant a focus on “hard” skills, such as operating equipment like monitors and presentation software, managing documents and providing information-technology support (data backup, computer forensics, etc.). In the last few years, however, the litigation landscape has seen a proliferation of consultants who can provide “soft” skills, including media planning, visual strategy, messaging and positioning � skills more associated with advertising, marketing and business-development professionals. For many litigation-consulting veterans, this evolution is palpable but not surprising. The environment has changed in terms of how judges and jurors receive � and expect to receive � their information. The subject matter in question in a lot of trials is more complex. Jurors are more media-savvy. Litigators need to raise the bar on their presentation skills. Because communication in the courtroom is becoming more sophisticated, it makes sense that the legal consulting industry is seeing parallels with advertising and marketing. The media-savvy audience With the advent of advanced Internet applications (blogs, mobile news updates, instant messaging) and the proliferation of communications outlets in general (niche cable networks, satellite radio, etc.), members of the public have more control over the information that reaches them on a day-to-day basis. They also have access to more resources to seek out specific information that they want. This trend has wrought havoc on advertising traditionalists who reminisce about how easy it was to influence the masses. “Post a picture of our product on a billboard, say that we’re No. 1,” they would say, “and watch the sales pour in.” Today, those advertisers are forced to rethink how the average consumer operates. For litigation consultants, the task is to rethink how the average juror collects and interprets information. Today’s jurors, when placed in a situation where they must make decisions based on information presented to them, may feel empowered to think and make assumptions based on their personal knowledge of that subject. And how is that personal knowledge formed? No doubt by Web sites covering just about any topic imaginable. Just about anyone can feel like an industry expert with just a few clicks of the mouse. Advances in Internet and multimedia technologies not only change the amount of information people can access, they change the way that communicators � whether in the advertising community or in the courtroom � must present information. Consumers and jurors are accustomed to receiving information through flashy Web sites, mobile phones and innovative graphics on television. Even calling this new breed of audience the “MTV generation” begins to sound quaint. The “Internet generation” is more apt. Consider that for advertisers a decade ago, effective communication or persuasion could be accomplished through a 30-second message on television, or even a simple, static advertisement in a magazine. Today, advertisers are adapting innovative technologies in order to reach consumers where they are more receptive. Is a billboard or poster going to work better than an interactive ad online or some interesting television commercial when one is trying to sell sporting goods to young people? Probably not. Are boards or PowerPoint slides better than an interactive presentation when one is trying to educate a jury on how a software program works? Probably not. Trial attorneys are dealing with much more sophisticated and complex subject matter than ever before. Litigation consultants have to be able to put together a communications strategy that gets their clients’ message across, using the media with which jurors, like consumers, are comfortable. In advertising circles, a media campaign is a set of tactics that a company would use to deliver its message to an audience. Decades ago, when the media world was limited to only a few outlets, a comprehensive campaign included only a few components. A shoe company, for example, might have aired a television commercial on three or four stations during a month-long time frame. Those commercials might have been supplemented by print ads in two or three consumer magazines, and perhaps a radio commercial. A comprehensive media campaign today reflects a much more fragmented media landscape. In addition to television, radio and print, advertisers must factor in online advertising and all its subsets (banner advertisement, e-mail sponsorship), event sponsorship and branded entertainment (for example, product placement in film and television). This diversification of message-delivery tactics has filtered over to litigation consulting, in which, instead of a fragmentation of media outlets, there is a change in how jurors take in information, which corresponds with a decrease in the attention span of the average juror. Combine this with the increasing number of media technologies available to present the information, and the picture becomes even more complex. Back in the day, one saw cases that dealt with more straightforward issues. For example, in a patent case, one had to show how a machine worked compared with how it is described in a patent. Or in a commercial dispute, one showed how language in a contract differed from the actions of the defendant. A consultant or a litigator might put up a picture of a machine or a blow-up of some contract and the work was done. These days, they are trying not only to explain much more complicated technology, but also to show how it all fits together in a broader picture in some economy or marketplace. Although terms like “campaign” or “media” rarely appeared in conversations about litigation consulting in the past, those terms are more prevalent today. The result is visual presentation strategies that give litigators more ways to support their case themes. In a patent case, a consulting team might develop a three-dimensional animation to explain a technical process. But in addition, the team might prepare a timeline and a self-playing tutorial on CD-ROM, with interactive features combined with animated sequences so that the client can pace its presentation. Increasingly, different media types are needed to really tell a story. Help wanted: storytellers In his book A Whole New Mind: Why Right-Brainers Will Rule the Future, author Daniel Pink envisions a new, outsourced, automated economic age, in which individuals and organizations will be successful only if they embrace the ability to think conceptually. In short, Pink believes that left-brained people and companies (analytical, structured) will play supporting roles to more progressive right-brainers (creative, entrepreneurial) who can generate ideas. More car designers and fewer assembly line carmakers, for instance. One of the key attributes in this new economic age is the ability to put information in context � to tell stories. Daniel H. Pink, A Whole New Mind (2006). It’s a concept that the advertising world has adopted first. The television commercial that makes claims about the greatness of a product has been replaced by stories about how consumers’ lives were improved by that product or service. The iconic Marlboro Man on billboards has been replaced by minidramas on television and YouTube, like the one that shows a busy father bonding with his young son while fixing the plumbing. It’s a strong message, promoting a well-known brand, wrapped into a neat, 30-second story. Telling stories has really become the way to sell things, whether it’s an idea, a position or a product. This is where the litigation-consulting field has changed the most. Strip away the fancy animations and graphics, and it’s just the attorney telling a story to a judge or juror. That attorney needs to have the resources to help him or her tell that story. Ultimately, that means the system needs litigation consultants and communications strategists who can tell stories, not with words on paper but with graphics and animation. The challenge of telling a compelling story is what keeps litigation consultants glued to whiteboards and storyboards. They realize that high-concept work is what drives litigation consulting and courtroom presentation. They also understand that a changing tide in this field is forcing them to expand their own skills. The litigation consultant of old may have succeeded by being very left-brained, able to maintain schedules, coordinate logistics and create an exhibit or presentation that was technically sound and functional. Today’s consultants must apply their high-concept right brain to a project and ask new questions. How does this one presentation graphic fit in with the whole communications strategy? Will their work help the jury understand the story they are trying to tell; the point they are trying to make? Will they get it? Is the world of courtroom presentation reaching a point where high-concept, creative thinking trumps the fundamentals of litigation? Hardly. The idea is not that stories and high-tech graphics alone will persuade juries. But litigators and their firms should be prepared to embrace professionals with the high-concept skills that have helped advertisers succeed in their craft. The legal world is not going to go from litigation consultants who look like stereotypical tech nerds to artsy types overnight. But in the courtroom or war rooms � or at an attorney’s litigation consulting partner � there will be more individuals who have legal or technical backgrounds who are also comfortable talking about media mix, visual treatments or other advertising/marketing concepts. And if this doesn’t happen at the individual level, then it definitely will at the team or organizational level. It’s really an environment that’s evolving, and as an industry consultants are learning a lot along the way. David Cheung is an account executive in the Philadelphia office of Animation Technologies Inc., a national litigation consulting firm. Brent Larlee is executive vice president and co-founder of the firm, and is based in Boston. The firm’s Web site is www.animationtech.com.

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