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The Litigation Consulting Report

Top 9 Litigation Consulting Articles from Q2-2015

Posted by Ken Lopez on Tue, Jun 30, 2015 @ 01:50 PM

top-9-litigation-consulting-articles-2015-1by Ken Lopez
A2L Consulting

It's been another great quarter of publishing blog articles on A2L's Litigation Consulting Report Blog. This quarter, there were more than 45,000 blog post views, and we are just about to cross the 7,000 subscriber mark. I find those metrics incredible.

Since we post 2-3 articles every week, I've heard from our readers that it is sometimes hard to keep up with the latest articles. To help remedy that and organize the information better, roughly six times a year we publish a mini-retrospective at the end of the quarter, at the end of a year and/or to celebrate blogging milestones.

This quarter, I'm listing the top nine articles from April, May and June of 2015 reverse sorted by the number of times each article was read. This way, this list serves as an excellent reader-curated guide to the very best articles we have published recently.

Voir dire and jury selection-focused articles continue to be very popular with our readers. Also, articles about persuasion, opening statements and a discussion of the Reptile Trial Strategy are getting a lot of views and shares. For the first time in memory, there are four different A2L authors represented on a best-of list.

Below is a list of the top nine articles from A2L's Litigation Consulting Report Blog as determined by your readership. Each article has both LinkedIn and Twitter share buttons that allow it to be shared with your network. Enjoy!

9. 5 Ways to Maximize Persuasion During Opening Statements - Part 2

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8. One Voir Dire Must Do and One Voir Dire Must Never Do

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7. 12 Reasons Litigation Graphics are More Complicated Than You Think

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6. How to Apply Cialdini's 6 Principles of Persuasion in the Courtroom - Part 2

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5. 15 Things Everyone Should Know About Jury Selection

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4. 5 Ways to Maximize Persuasion During Opening Statements - Part 1

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3. Repelling the Reptile - 10 Ways to Spot the Reptile in Action

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2. 10 Ways to Lose Voir Dire

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1. Repelling the Reptile Trial Strategy as Defense Counsel - Part 1

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Tags: Litigation Consulting, Juries, Articles, Voir Dire, Jury Selection, Psychology, Opening, Persuasion

Repelling the Reptile Trial Strategy as Defense Counsel - Part 2 - 10 Ways to Spot the Reptile in Action

Posted by Ken Lopez on Fri, Jun 26, 2015 @ 01:24 PM


spot-the-reptile-trial-strategyby Ken Lopez
A2L Consulting

As I discussed in Part 1 of this series, the “reptile” trial strategy is quickly spreading among plaintiffs counsel. Some plaintiffs counsel have, in fact, claimed that the strategy has resulted in verdicts totaling more than $6 billion in the past few years.

In a large room of defense attorneys to whom I made a presentation last week, more than half reported having seen the strategy used in one of their cases. I think that may just be the tip of the iceberg. It appears that many defense counsel are being subjected to the strategy and don't know it is happening to them until it is too late.

In light of this fact, below are 10 ways to spot the strategy. In subsequent articles, we will discuss what to do to counter it. From the very start of your case, look for any of the following 10 phenomena:

  1. You encounter themes suggesting that the community needs to be protected from the defendant; e.g. “Walking past stores on Main Street is part of what it means to be American.”

  2. The behavior of the plaintiff or other contributing or mitigating traits of the plaintiff are ignored, and instead the plaintiff works hard to keep the focus on the defendant or even an idealized defendant.

  3. Plaintiffs introduce a discussion of “safety rules” throughout all pre-trial phases of the case; e.g. “Do you agree that keeping the public safe is a key role of your train operators?”

  4. Plaintiffs use phrases during discovery like “No person has a right to needlessly endanger another person.”

  5. Plaintiffs make an effort to imagine what the defendants’ conduct could have been in a worst-case scenario. e.g. “What if your plane hit a school instead of a forest?”

  6. There is an almost bizarre avoidance of discussing the standard of liability.

  7. Plaintiffs emphasize the word “must” during depositions like, “You would agree that management must remove needless workplace dangers?”

  8. There is considerable emphasis on "responsibilities" and little emphasis on the actual standard of liability.

  9. Plaintiffs counsel try to ask your client to articulate worst case scenarios if safety rules are violated, as in, “How much harm could a chemical spill from your plant cause?”

  10. Plaintiffs try to substitute job duties for a standard of liability. e.g. “A pilot's job is to make sure the plane is flightworthy, right?”

Spotting any one of these indicators means there is a good chance that the reptile trial strategy is in play. Failing to pay close attention to the use of the strategy may very well create a strong advantage for the plaintiff at trial. It is now critical that every defense attorney know how to respond to this strategy. We will cover this and other topics in subsequent posts (click here to be notified of subsequent posts) in this Reptile trial strategy series.

Have you seen these tactics in your cases? I'm particularly interested in non-tort case examples. Please tell me, either publicly or by private email, what you have seen.

Other articles and resources related to trial strategy, jury persuasion and jury consulting from A2L Consulting:

A2L Consulting Voir Dire Consultants Handbook

Tags: Trial Consultants, Trial Presentation, Jury Consulting, Trial Consulting, Juries, Jury Consultants, Trial Preparation, Psychology

Repelling the Reptile Trial Strategy as Defense Counsel - Part 1

Posted by Ken Lopez on Tue, Jun 23, 2015 @ 02:05 PM


repitile-trial-strategy-jury-consultantby Ken Lopez
A2L Consulting

Last week, I spoke at an annual gathering of defense attorneys whose subtitle was “Lawyers and Other Reptiles.”

What's going on? Who are these reptiles? It’s an interesting story. This conference was planned as a way to bring together defense attorneys around the nation who want to learn how to turn aside a frequently used set of trial tactics championed by David Ball and Don Keenan in their "Reptile" series of books and webinars. Ball is a North Carolina-based jury consultant, and Keenan is an Atlanta-based plaintiffs trial lawyer.

According to Ball and Keenan’s publicity materials, the “reptile” concept is “the most powerful tool in the fight against tort reform.” Ball and Keenan say that through their books, DVDs, seminars and workshops, “the Reptile is revolutionizing the way that trial attorneys approach and win their cases.” The proof, they say, is in the numbers, as more than $6 billion in verdicts and settlements have resulted from these tactics since they launched them in 2009.

William A. Ruskin of Epstein Becker & Green has summarized the concept well in a 2013 Lexis-Nexis article:

The Reptile theory asserts that you can prevail at trial by speaking to, and scaring, the primitive part of jurors' brains, the part of the brain they share with reptiles. The Reptile strategy purports to provide a blueprint to succeeding at trial by applying advanced neuroscientific techniques to pretrial discovery and trial. The fundamental concept is that the reptile brain is conditioned to favor safety and survival. Therefore, if plaintiff's' counsel can reach the reptilian portion of the jurors' brains, they can influence their decisions; the jurors will instinctively choose to protect their families and community from danger through their verdict.

While the “science” described by the authors is laughable and amateurish, the strategies they recommend are effective. As a result, defense attorneys nationwide are taking notice and developing strategies to combat these tactics.

The Reptile strategy is showing up mostly in single-plaintiff cases on the coastal areas, but it is spreading geographically and is now being used in larger cases. Looking at the Reptile trial strategy more as a comprehensive litigation tactic, I'd summarize the approach this way:

  • Beginning as soon as the complaint, articulate a set of common sense safety rules that people as good members of a community should follow.

  • Get experts and fact witnesses, in discovery, to agree that these common sense safety rules are reasonable for society. For example people shouldn't drive fast, pouring chemicals into rivers and streams is not ideal, a single company should not own too much of the market, doctors shouldn't hurt people.

  • Use fear as a persuasion device to frighten jurors into defending their communities by adopting what is effectively a new standard of liability.

When fully implemented, the strategy sees the defendant’s conduct as a secondary consideration to what might have occurred. For example, what if it had been a school bus in the accident? What if the contamination would have been of drinking water for a pregnant mom? These arguments substitute for the actual standard of liability and the actual conduct of the defendant.

The rationale for this approach is that fear will cause jurors to abandon rational thought and penalize the defendants. That's not how people think, that's not how juries reach decisions, and that’s not actual science. But just because the authors flub the science it doesn't mean their recommended trial strategies are bad. Ball and Keenan make some suggestions that defense lawyers must be aware of.

I believe it's possible to overcome these strategies, particularly at trial, by simply being a good lawyer and doing what you should be doing at trial anyway -- specifically by articulating a strong narrative that makes sense to people and that people care about.

If you have not seen the Reptile trial strategy in one of your cases yet, you probably will soon. A show of hands at my speaking engagement showed more than half of a large audience having seen it in one of their cases recently.

I will go more into detail about how to spot the Reptile trial strategy and how to respond to it in upcoming articles. Click here to be notified of subsequent articles.

Other articles and resources related to trial strategy, jury persuasion and jury consulting from A2L Consulting:

opening statements toolkit ebook download a2l



Tags: Trial Consultants, Juries, Jury Consultants, Trial Preparation, Psychology, Storytelling, Opening, Persuasion

One Voir Dire Must Do and One Voir Dire Must Never Do

Posted by Laurie Kuslansky on Tue, Jun 16, 2015 @ 03:07 PM


voir-dire-must-do-dont-doby Laurie R. Kuslansky, Ph.D.
Managing Director, Jury Consulting
A2L Consulting

You’re defending an alleged polluter. You ask prospective jurors, “Who here thinks there is too much government regulation of business?”

You represent an individual hurt in a workplace accident. You ask, “Has anyone ever filed a worker’s compensation claim?”

Your client is an employer accused of gender discrimination. You ask, “Please raise your hand if you believe that workers sometimes claim wrongful treatment when they simply don’t get what they want.”

Why would you do that, if the only answers you can get to these questions are ones that reveal potential allies? That is your adversary’s job, not yours. Your job is to help your supporters fly under the radar so that they can remain on the jury. If your question is likely to reveal nothing useful to you -- or worse, will point out who your friends are -- don’t use that question.

In other words: What is the single most important “Never Do” in voir dire? Clearly, it is to never ask questions that reveal who your fans are.

Instead, here is a voir dire Must Do: Invite your enemies to show themselves and make it as easy as possible for them to do so. 

For example, defending the toxic tort, ask “Some people feel that there isn’t enough government regulation because companies cannot be trusted to mind the environment on their own. Can anyone here relate to that at all? Explain.”

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Or as the personal injury plaintiff’s counsel, you’d be better off asking: “Some people favor capping damages, meaning putting a limit on the amount of money to pay in lawsuits, even if the plaintiff – meaning the injured party, such as my client – proves their case. Can you raise your hand if that makes some sense to you or you feel that way even a little bit?

For the employment defense, you might ask: “Many people are unhappy with their jobs or have had bad experiences in the workplace. Some feel they’ve been treated badly or unfairly at their job in some way. Can you think of any examples of how that may apply to you or someone close to you?”

As the song says, “Don’t believe me – just watch!” When someone says they can be fair, it is meaningless. “Fair” means using their yardstick. Instead, watch and listen to what they actually believe by asking meaningful and cautiously phrased questions. Assume that what they believe cannot be put aside, certainly not based on the transient request of a stranger to whom they have no allegiance and from whom they reap no benefit. Their beliefs can only stay where they live ... on their minds and in their decisions in deliberations. Better to reveal what they are before it’s too late.

Other articles and resources related to voir dire, jury selection and jury consulting from A2L Consulting:

A2L Consulting Voir Dire Consultants Handbook

Tags: Jury Consulting, Juries, Jury Consultants, Environmental Litigation, Voir Dire, Jury Selection, Labor and Employment

15 Things Everyone Should Know About Jury Selection

Posted by Laurie Kuslansky on Fri, Jun 12, 2015 @ 09:58 AM

voir-dire-consultants-mock-jury-selectionby Laurie R. Kuslansky, Ph.D.
Managing Director, Jury Consulting
A2L Consulting

1.  What makes a “bad” juror depends on your presentation plan.

It is easier to change your plan than to change the jury. Say you’re in Delaware (the headquarters of DuPont) and you plan to say at trial that your product is fine, and that DuPont makes a similar product, but yours is better than theirs. In that case, you might want to strike people with DuPont ties. The problem is that there are so many of them and they might otherwise be fine for your case, so instead of bashing DuPont gratuitously, drop this line of argument. Instead, frame the point more neutrally, e.g., that your client and DuPont make similar, perfectly fine products.

2.  You are not there to make friends, but to spot enemies.

We often find stock questions among the list of favorites at law firms that are exactly ... wrong, because they ask questions that reveal who their good jurors are. If you’re defending an employer in a wrongful termination case, don’t ask if someone has ever fired someone. Ask if they’ve ever been fired.

3.  Making friends is the best way to help your opponent know whom to strike.

If you sense you have a good juror, stop talking. Stop eliciting favorable information, but not so quickly that it signals a “tell” to your opponent.

4.  How you ask questions makes all the difference.

Do you want the “PC” answer or the truth? If you ask a juror whether she can be fair, of course she will say yes.

Instead of asking if someone can be fair, perhaps ask:

“Can you think of a reason you might not be fair in this case?”

“Is there any reason my client should be uncomfortable with you as a juror in this case?”

“What haven’t we asked that we should know?”

“Is there even a little doubt that you could completely put that out of your mind when deciding this case?”

5.  Asking open-ended questions yields better information.

“Can you describe your educational path?”

A2L Consulting's Storytelling for Litigators 3rd Ed E-book

6.  Asking why and how is more valuable than if, what and when.

It is more important to understand the reasons people chose to shift positions in their career path and how they felt about those changes than merely what jobs they had and when. Exploring transitions, whether professional or social, tells much more. Are they happy being retired? How did that come about – voluntarily or not? Is it the best thing or worst thing that ever happened to them? Why?

7.  Making it easy to express bias takes more than just asking.

It requires setting the stage so that people are comfortable to admit to bias. For example, rather than saying,

“Does anyone here think that rich people like my client don’t deserve to get richer – even if they are right?”

Create comfort to admit it:

“Many people aren’t comfortable making decisions that result in awarding money, especially a lot of money, to people who are already rich, and we understand that. If you may be one of those people, that’s fine. Just raise your hand and let us know your thoughts (but don’t give them a chance to espouse their opinions in open court and risk polluting the panel).”

“If you’re even the slightest bit hesitant to award my client money because you may think he/she does not need it, you’d be doing us all a favor by letting us know now.”

8.  Assume nothing.

Say your client is accused of mismanagement of money. You think that business supervisors will be your best friends. Think again. We often find that people with related knowledge and experience live to one-up your client and their opinion counts double to other jurors who see them as experts in deliberations. If you don’t ask pointed questions of them during voir dire, you won’t know if they are friends or frenemies until it is too late -- after trial.

mock jury webinar a2l kuslansky  


9. Revisit stereotypes.

Assume your case involves the issue of whether a driver did the right thing or not. You hear that someone is a stay-at-home mom and dismiss their potential for leadership. Think again. If they are in charge of the family chauffeuring and car-pooling, they may spend more time on the road than anyone else with a “day job.” Ask questions that are specific about backgrounds and experience without making assumptions.

10.  Judges are more willing to accept suggested voir dire questions from counsel that many lawyers assume.

Unless you ask, you won’t know, and sometimes a judge will vary his or her approach based on the case, so don’t assume that because they don’t usually permit this, or didn’t permit it the last time, they won’t this time.

11.  Know the rules.

Many people assume they know the local rules for jury selection, but in fact, overlook a number of potential resources that can help, such as what constitutes improper rehabilitation, the impact of prior jury service in disqualifying a potential juror, affiliation with insurance companies, whether you are entitled to make a record, and so forth. Does the verdict have to be unanimous? If not, what is required? Review these in detail and have them available in court to cite as needed. Judges may not like it, but it’s your right to make a record and to enjoy your rights. You may be surprised to learn what they are. Here’s an example for New York State available on the state court website: https://www.nycourts.gov/publications/pdfs/ImplementingVoirDire2009.pdf.


12.  Know the procedures in advance, e.g.:

How many peremptory strikes will each side get?

How many people will be in the voir dire pool?

How does voir dire proceed in that courtroom?

How many jurors will the judge put on the jury?

How many other jury trials are slated that week to pick from the same pool?

Will you be getting a fresh group or one that was already “picked over”?

Will there be alternates? How many? How many extra strikes does each side get for alternates?

What is the judge’s approach to hardship requests and excusals?

Who will ask the questions?

Will the judge permit the lawyers to speak to the prospective jurors directly?

Will he or she let the attorneys ask any follow-up questions?

What are the standard questions the judge or clerk always asks, if any?

What method does the judge use for reporting strikes – blindly, alternating, other?

How does the judge handle requests for strikes for cause?

What has the judge historically considered as a bias? Does the judge employ White’s or the Struck method? Do you have a choice/preference?

Will alternates be designated or not? If you pass your turn, do you lose your strike(s)?

Is there back-striking?

Will everyone be voir dired before you report strikes or only some, in rounds?

What information – if any – does the Court provide counsel in advance?

How much time will the judge give counsel to review the information before reporting strikes?

Is there wi-fi in the courtroom so your team can access social media about prospective jurors?

Can counsel and staff bring their mobile devices to court as a backup for online searches?

13.  Don’t assume jurors are aware of all the information that the trial team knows.

We often find that when an opponent runs positive ads about itself or a litigant gets bad press, it is top-of-mind to our clients, while jurors are unaware of it or don’t care. While such information is at the center of the client’s world, it is not at the center of the jurors’ world. You don’t want to use voir dire to alert people who were not aware of this information, but you do want to find out if anyone is aware and if that biases them. One way to explore this is, rather than mentioning the press specifically, to ask generally whether anyone has heard, seen or read anything about the company and, if so, to explore their response -- but not in open court or, if the judge permits, in writing.

14.  Check when proposed voir dire questions are due (in the pretrial motion? Another time?), leave time to review and edit, and don’t assign the task to people with no jury-selection experience. 

15.  Sometimes getting no information is better than getting information.

Remember, whatever you reveal, your opponent reveals at the same time. Lawyers instinctively tend to want more information and believe that more is better. However, they may forget that someone invariably benefits more from the information. For example, say your client is a manufacturer accused of making a dangerous product or a chemical producer charged with polluting the local groundwater. How many prospective jurors are likely against you just walking into the courtroom? Is it 75%, 80% or 90%? That means that about 10-25% may be open to hearing your side. If you ask nothing and learn nothing about the pool, you have a 1 in 4 to 1 in 10 chance of keeping your good juror(s). If you ask questions, on the other hand, then your opponent is less likely to miss them and more likely to strike them based on information rather than chance alone. You’d be better off with your opponent striking in the dark. In that case, ignorance can be bliss.

Other articles and resources related to voir dire, jury selection and jury consulting from A2L Consulting:

A2L Consulting Voir Dire Consultants Handbook

Tags: Jury Questionnaire, Trial Consultants, Jury Consulting, Trial Consulting, Juries, Jury Consultants, Voir Dire, Jury Selection

[New and Free E-Book] The Litigator's Guide to Combating Junk Science - 2nd Edition

Posted by Ken Lopez on Mon, Jun 8, 2015 @ 03:16 PM


junk-science-ebook-cta-tallby Ken Lopez
A2L Consulting

We have long participated in a joint publishing effort with Innovative Science Solutions (ISS), a company that provides strategic consulting services designed to ensure that you are prepared and knowledgeable about scientific and technical issues relevant to your case.

A2L has partnered with ISS for the benefit of many law firms and corporations. We have already had the pleasure of working together on everything from tobacco litigation to hydraulic fracturing to alleged health effects of cell phones. Along the way, we have learned, often by overcoming enormous challenges, how to make science your ally -- whether inside or outside the courtroom.

Today, A2L and ISS have just published the new and revised second edition of their e-book, The Litigator’s Guide to Combating Junk Science. The book is built on the following important concepts:

  1. Science plays a critical role in the courtroom. Access to scientific research and an understanding of scientific principles, as well as the ability to effectively convey this information, can enable the litigator to build a powerful case. This communication must effectively communicate complex technical concepts and show how they fit within the relevant law. But first and foremost the litigator must sort sound science from junk science.
  2. Many legal actions rely heavily on scientific information and testimony: personal injury, consumer protection, medical malpractice, securities law and patent law. Junk science can be present in any of them.
  3. Frequently, the case will amount to a battle of the experts, who will engage in a debate about the validity of the scientific evidence presented. Even the experts often disagree when interpreting sound scientific data.
  4. Dubious or biased scientific information is all too present in the courtroom. Judges and juries tend to accept any scientific information placed before them, for better or worse, and can decide a case incorrectly. That is one of the problems with junk science.
  1. However, when a case relies on misinformation, unsubstantiated claims, and misleading data, opposing counsel can successfully counterattack by using and providing access to the right resources.

This comprehensive, 2nd Edition e-book identifies examples of junk science; after all, how can you combat junk science if you cannot identify it?

The e-book also provides a checklist for identifying credible scientific sources online and rejecting those that are not credible. It notes that peer review is one of the foundations of good science, but that this concept is also abused to push junk science. It provides access to resources dedicated to exposing junk science. After all, the fight against junk science in the courtroom has raged for many years. This section identifies some terrific resources for continuing this fight. It gives access to government resources that will allow you to counter misinformation with scientifically sound principles.

Among the topics covered in the book are: “What Is Junk Science?” “Limitations of the Peer-Review Process,” “Teaching Science to Jurors,” “Explaining Complex Science/Statistics Using Trial Graphics,” and “Anti-Junk Science Websites.”

We are confident that by reading this e-book, you will become familiar with the hallmarks of junk science and that you will be able to recognize it and successfully argue in court against the use and admissibility of junk science.

ISS A2L Combating Junk Science E-Book

Tags: Statistics, Trial Consultants, Trial Presentation, Litigation Consulting, E-Book, Demonstrative Evidence, Juries, Jury Consultants, Science, Product Liability

10 Ways to Lose Voir Dire

Posted by Laurie Kuslansky on Wed, Jun 3, 2015 @ 08:50 AM


lose-voir-dire-jury-consultantsby Laurie R. Kuslansky, Ph.D.
Managing Director, Jury Consulting
A2L Consulting

Voir dire is an extremely important part of any trial. It’s not hard to lose a case in voir dire. Here are 10 ways to lose voir dire.
    1. Let your opponent take charge of the courtroom and leave you behind, sending the message to jurors that what you say or do don’t matter as much as your opponent and that the jurors can rely on the opponent more than on you.

    2. Don’t take the opportunity to speak with prospective jurors and leave the talking to others even when you have the opportunity.

    3. Let your opponent “rehabilitate” a favorable juror without fighting vigorously or quickly enough to keep them. When the opponent says, “But you can be fair, right?” and then rushes them back to the panel, if you don’t intervene on the spot, you may not get another chance.

    4. Waste precious time talking about things that don’t matter. Ask questions only out of curiosity and spend prospective jurors’ precious time irrelevantly.  This will yield little useful information, yet elicit resentment and impatience from potential jurors before the case even starts.

    5. Talk more and listen less. You will learn less about the panel members and then will have to decide whom to strike on insufficient information.

    6. Don’t ask the same questions to all prospective jurors so you can compare apples-to-apples.  Instead of having the same yardstick, you end up with a mishmash that isn’t very useful.

    7. Ask personal questions without assurance of privacy.  Most people are unwilling in open court to volunteer sensitive information, so they will remain below the radar and you will have an incomplete sense of their backgrounds.

    8. Ignore body language, nonverbal behavior, writing samples – everything other than their words.  Many times, someone’s true nature comes out more in non-words than in words.  How they dress, how they write, their spelling or misspelling, whether they are on time or late, what they read, whom they associate with, whether they go on breaks to smoke, etc.

    9. Ignore social media.  It turns out that people are more likely to present their real selves rather than their idealized selves on social media, which may thus provide a more candid view of the panel members than their pat answers in an unfamiliar setting such as the courtroom.

    10. Don’t ask follow-up questions. For example, if you ask, “Who is an environmentalist?” many will raise their hands, but if you ask, “Who here pays dues to an environmental organization, or contributes time or money to it?” most drop their hands, and those who don’t are the ones that matter. Or, if you ask if people believe there are too many frivolous lawsuits nowadays, many will raise their hands, but if you explain as plaintiff what your case is about, then ask who thinks that seems frivolous, most will drop their hands.  If you rely on the first answer, you will be misled.

Other articles and resources related to voir dire, jury selection and jury consulting from A2L Consulting:

A2L Consulting Voir Dire Consultants Handbook

Tags: Jury Questionnaire, Trial Consultants, Jury Consulting, Trial Consulting, Juries, Jury Consultants, Voir Dire, Jury Selection

How the New Commil USA Supreme Court Opinion Changes Patent Litigation

Posted by Ryan Flax on Mon, Jun 1, 2015 @ 09:00 AM



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

On May 26, 2015, the U.S. Supreme Court released its opinion in Commil USA, LLC v. Cisco Systems, Inc. (575 U.S. ____ (2015)) and it will significantly change patent litigation in the U.S.1

In Commil USA, the Court clarified when indirect patent infringement known as “inducement” occurs and how [not] to escape liability. As a bit of background, a patent can be infringed directly and indirectly. The Patent Act, at 35 U.S.C. § 271, makes it unlawful to make, use, sell, or offer to sell (in the U.S.) a patented thing or process without the patent holder’s permission. Part (a) of this section provides liability for direct infringement, that is, outright doing the thing that infringes a patent. Part (b) governs the first of two indirect infringements, induced infringement, and states “whoever actively induces infringement of a patent shall be liable as an infringer.” This is the focus of the Commil USA case. Part (c) of section 271 deals with the second of the indirect infringements (and interestingly, the one that was first statutorily identified), which is contributory infringement, which makes it an infringement to supply a non-staple, component for use in a patented thing or process.

Both types of indirect infringement require that some direct infringement occur and that the accused infringer actually know that its actions will constitute infringement of the patent at issue. The question before the Court was whether it was a proper defense to induced infringement that the accused infringer had a reasonable belief that the asserted patent was invalid. There is no question that there can be no infringement liability of an invalid patent claim, but does that matter when an accused infringer knows that its actions would otherwise infringe?

The Supreme Court held that, no, it does not matter. It’s no excuse and does not absolve liability for induced infringement that the accused infringer had a reasonable belief that the infringed patent was invalid. This is contrary to (and overrules) several years of precedent from the U.S. Court of Appeals for the Federal Circuit, which has held repeatedly that you cannot infringe an invalid patent and so reasonable arguments that a patent was invalid prevent induced infringement liability.2

indirect-patent-infringementThe law of the land on induced infringement is that if there is (1) a direct infringement of a patent and (2) you knew of the asserted patent and (3) you knew that the acts you actively encouraged would infringe that patent, you’re liable for infringement whether or not you thought that patent was valid or invalid. Validity is presumed, so as an accused infringer you can’t assume otherwise.

How will this affect patent litigation and patent counseling going forward?

If clients are potential indirect patent infringers, meaning they don’t actually directly infringe, but they either contribute to infringement (e.g., they supply the key component making infringement possible in an otherwise not-infringing product) or their actions would arguably encourage the direct infringement of others (e.g., a patent claims playing a video game and the client developed the software and sold the game hoping hundreds of thousands of gamers would play it), how can we help insulate them from liability?

Opinions of counsel are key and they must address non-infringement. The point of the legal opinion is to instill a reasonable belief in your client that they do not infringe.

As soon as your client learns of a patent and potential infringement, a well-reasoned (I’d suggest formal) opinion should be developed and it should focus first on a reasonable claim construction that takes the behavior at issue out of the scope of infringement. I do not advocate ignoring validity issues in these opinions, but no matter how well reasoned they are they will not mitigate against indirect infringement unless you actually succeed on the invalidity arguments at trial.

patent-infringement-willfulPre-trial opinions should set out solid reasons why there is no direct infringement. The claim construction is the first step. A reasonable claim construction that pushes the claimed invention away from the client’s behavior or product is the goal. The second step is identifying why the potential infringer’s (this is some third party because the client will be an accused inducer) actions fall outside the patent’s claim scope when properly construed. An alternative, more conservative argument on claim construction and non-infringement may also be warranted, using a claim construction more likely to be adopted by the patent holder. If a direct infringer’s actions reasonably do not infringe the more conservatively construed claims then you likely have a good argument against inducement.

The reasonable claim construction(s) developed at the pre-litigation counseling stage should be carried through to any litigation that ultimately develops so that the pre-litigation reasonable belief in non-infringement is reinforced. District courts get some deference in their claim construction holdings – that is, factual conclusions underpinning a claim interpretation under the law are reviewed for clear error, not de novo, thanks to Teva Pharma. USA, Inc., et al. v. Sandoz, Inc., et al., 135 S.Ct 831, 574 U.S. ___ (2015). This should be taken into consideration when developing non-infringement arguments and the facts upon which your claim construction is based should be carefully planned and soundly supported. Winning at the district court is important for this reason and, so, winning (or at least doing a reasonable job) the Markman is essential. If you had a pretty good, but still losing claim construction argument at the district court, you have an argument to the Federal Circuit that you had a reasonable believe you didn’t infringe the patent because of it.

Above all else, you must plan early to be the most reasonable man in the room when it comes to arguing non-infringement, whether your reasoning is based on claim construction or the facts.

Other articles on A2L Consulting's site related to patent litigation and the use of visuals in patent trials, in the ITC and in IPRs:

[1] The Court’s opinion was written by Justice Kennedy, the same judge who wrote the opinion in KSR Int'l Co. v. Teleflex, Inc., 550 U.S. 398 (2007).

[2] It should also be noted that the Federal Circuit has ruled similarly on the issue of enhanced damages for willful infringement – that a reasonable belief that a patent is invalid prevents the satisfaction of the first, objective recklessness prong under Seagate(497 F.3d 1360 (Fed. Cir. 2007)). It will be interesting to see if the Supreme Court has anything to say in the future on this issue. The Seagate rule does add that the risk of infringement must be of a “valid patent,” but this is a court-made rule and not statutory.

The materials on this website are provided for informational purposes only and do not constitute legal advice.

Tags: Markman Hearings, Litigation Consulting, Patent Litigation, Claim Construction, ITC, Federal Circuit, Inter Partes Review

How to Handle a Boring Case

Posted by Laurie Kuslansky on Fri, May 29, 2015 @ 11:32 AM


boring-case-litigation-trial-juryby Laurie R. Kuslansky, Ph.D.
Managing Director, Jury Consulting
A2L Consulting

I once asked an actuary why he chose that profession, and he replied, “Because I didn’t have enough personality to become an accountant.” The truth is, though, that nearly everything is interesting in some way. It’s the rare case, for example, that’s really dry as dust.

But many cases have aspects that are, at first glance, boring. As an advocate, what do you do when faced with one of them? Here are some suggestions.

1.  Use the boredom to your advantage. There may be facts that are not advantageous to your side. Don’t emphasize them, and they may not draw attention.

2.  For points that are advantageous, create excitement. Use verbal “drum rolls,” as in “Now THIS is really important.” Or, “If you remember just ONE thing about this case, it should be . . . ”

3.  Create visual distractions. Your graphics don’t have to be black and white blow-ups of Excel spreadsheets. There are many ways to put forth the same information, but making them interesting takes a professional and an artist/designer, not a paralegal or an associate with no training in information graphics.

Another approach is to create a memorable experience by evoking discomfort. For example, you could simply present a list of airline bankruptcies and say that no one wants to see one more, or you could develop an uncomfortably long scrolling list that presents the same information in a thought-provoking way.



4.  Work with the jury.  Acknowledge that there is information in the case that may be less than interesting, but add that you will do your best to keep it moving. Then keep your word. 

5.  If the stakes warrant it, pre-test the case through mock-jury research, searching for ways to streamline the case so that the trial is neither longer nor more tedious than it needs to be. Learn the themes that emerge, the ways that lay people express the issues in their own terms, what they find confusing, what matters to them, and what aspects of the case, if any, they don’t view as boring. Perhaps the most exciting point is damaging to your case. It’s better to know in advance.

6.  Bring out the significance of your expert instead of assuming that the jury knows it already. Here’s where name-dropping can be helpful.  “Our expert has a doctorate from Harvard and trained at the London School of Economics.” Or, “Our expert worked on these issues for the largest accounting firm in America.” Make sure that the expert exudes confidence, but not arrogance, looks the part, and speaks in language lay people understand. Bring out the expert’s accomplishments graphically and explain them in a way that the jury will understand.

7.  Use graphics to keep things moving. If you show jurors (and judges) something good to look at, it keeps them interested, reinforces memory, makes you appear more competent and organized, and cuts down on boredom.

8.  Use mixed media. Don’t present everything in a PowerPoint. Mix it up, switching at a comfortable pace between slides on screen to enlarged boards, from static images to animations, etc.

9.  If appropriate, use humor. Instead of being the egghead with the nerdy information that no one else can relate to or appreciate, bond with jurors by seeing it from their perspective.  If you can’t do that, add someone to the trial team who can.

10.  Now THIS is really important and if you remember just ONE thing, it is that nothing has to be boring.  It’s up to you. The moment you acknowledge that it is, and find a way to link it to other people’s experience, especially in ways that are potentially universal, teach people in a way that is painless and aesthetically pleasing, and find a way to tell a story about it, ta da! It isn’t boring any more.

Other articles about using litigation graphics, use of humor, being likable and more from A2L Consulting:

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Tags: Trial Graphics, Litigation Graphics, Mock Trial, Juries, Jury Consultants, PowerPoint

7 Award-Winning LitigationWorld Articles

Posted by Ken Lopez on Wed, May 27, 2015 @ 01:07 PM


litigationworld-450by Ken Lopez
A2L Consulting

We just learned that a blog post that we wrote recently was named the “Pick of the Week” by LitigationWorld, a popular email newsletter for litigators, litigation support professionals, and corporate counsel who manage litigation. This is the seventh A2L Consulting post since 2011 to be so honored.
For each issue of LitigationWorld, the editorial team there reviews hundreds of articles published during the previous week. From these articles, one is selected as LitigationWorld Pick of the Week. The article is selected because the editors there believe that it is a must-read for anyone interested in litigation.
The article that won this honor was entitled “12 Reasons Litigation Graphics are More Complicated Than You Think.”
Many awards that are given out these days are meaningless because marketing can play a role in determining who wins. By contrast, those who win the LitigationWorld Pick of the Week award don't even know they're in the running and cannot influence the editorial team. That’s what makes this award meaningful to us.
The winning article, not surprisingly, lists 12 reasons that litigation graphics are more complicated than one might think. Among them: Litigation graphics must be more than merely electronic versions of printed documents; real litigation graphics experts are storytelling experts as well; and litigation graphics experts understand the psychology of a jury and how a litigator can use psychology to his or her advantage.
This prize-winning post is only one example. Our blog is full of interesting and useful thoughts about trials, juries and litigation. The American Bar Association recently named A2L's Litigation Consulting Report blog one of the eight best in the litigation industry. Below is a list of the seven articles that LitigationWorld has named Pick of the Week.

  1. 21 Ingenious Ways to Research Your Judge

  2. 12 Reasons Litigation Graphics are More Complicated Than You Think

  3. 16 PowerPoint Litigation Graphics You Won't Believe Are PowerPoint

  4. 10 Things Litigators Can Learn From Newscasters

  5. 10 Ways to Spot Your Jury Foreman

  6. 8 Reasons to be Optimistic About the Litigation Economy

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

We're hard at work on writing new articles, and I'm very interested in hearing from you how we can be even better. To that end, if you have questions/ideas about The Litigation Consulting Report blog or about mock trials, litigation graphics for trial/ADR, trial technology/hot-seat operators or litigation advisory services for in-house counsel? Please comment below or write to Alex Brown at brown@A2LC.com. If you would like to subscribe or change how often you are notified about new blog articles articles? Click here.

Other articles that list our top blog posts, discuss A2L accolades or provide a useful directory of how to access information close to your interests include:

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Tags: Economics, Trial Graphics, Litigation Graphics, Trial Presentation, Demonstrative Evidence, Juries, Judges, Awards

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Ken Lopez founded A2L Consulting in 1995. The firm has since worked with litigators from all major law firms on more than 10,000 cases with over $2 trillion cumulatively at stake.  The A2L team is comprised of psychologists, jury consultants, trial consultants, litigation consultants, attorneys and information designers who provide jury consulting, litigation graphics and trial technology.  Ken Lopez can be reached at lopez@A2LC.com.

ryanflax blog litigation consultant 

Ryan H. Flax, Esq., Managing Director, Litigation Consulting, joined A2L Consulting on the heels of practicing Intellectual Property (IP) law as part of the Intellectual Property team at Dickstein Shapiro LLP, a national law firm based in Washington, DC.  Over the course of his career, Ryan has obtained jury verdicts totaling well over $1 billion in damages on behalf of his clients and has helped clients navigate the turbulent waters of their competitors’ patents.  Ryan can be reached at flax@a2lc.com.

dr laurie kuslansky jury consultant a2l consulting
Laurie R. Kuslansky, Ph.D, Managing Director, Trial & Jury Consulting, has conducted over 400 mock trials in more than 1,000 litigation engagements over the past 20 years. Dr. Kuslansky's goal is to provide the highest level of personalized client service possible whether one's need involves a mock trial, witness preparation, jury selection or a mock exercise not involving a jury. Dr. Kuslansky can be reached at kuslansky@A2LC.com.

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