The Litigation Consulting Report

Explaining Patent Claim Language in Patent Litigation

  

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Quick, tell me what this patent claim language means:

Unless you’re a patent geek like me, you probably haven’t the foggiest idea how to interpret this language.  But if you are an attorney in a patent infringement litigation, your job is not only to explain to a judge and jury what claim language means, but do so in a convincing and persuasive manner. If the fact finder remains as perplexed after your presentation as you were on first reading of these words, you are unlikely to win your case.

Would it help you understand this claim language – from U.S. Patent 7,657,849 – if I showed you one of the drawings from the patent?  I suspect it will, so here’s one to the right.

So what have you learned now?  Now you know what the claim probably means by “a touch-sensitive display” because this figure says right on it that you’re looking at a “Touch screen.”  Still, what does the claim language cover, specifically?  What sort of product might infringe this claim?  Here’s a big hint:  This patent is owned by Apple Inc.  I’m sure you’ve guessed it now – this patent is written to cover this product below.

Seeing the iPhone, as in the image to the left, makes most of the claim language pretty clear.  This is the now-famous Apple “slide-to-unlock” patent that covers the way users unlock the screen on an iPhone or iPad to use the device.  Hasn’t the language become so much clearer now that you have the graphical information I’ve provided by showing you an iPhone? 

People, including judges and jurors, are usually combination learners, and visual information is an important component of teaching and being persuasive.  Now that you’ve seen the iPhone, it’s probably pretty clear to you what the claim term “display an unlock image” means.  Also, it’s probably equally clear what the claim means by “transition the device to a user-interface unlock state if the detected contact corresponds to moving the unlock image along a predefined displayed path” – it means that the device senses that you’ve slid your finger along the arrow I added to the iPhone picture.  Pretty clear now, isn’t it?

Now, what other products might infringe this Apple patent?  What other products might use this type of unlocking feature?  What about this one?

Wow, HTC's new phone looks pretty similar, doesn’t it?  Are you convinced?  Maybe not completely yet, but you cannot deny that the similarities in this comparison are compelling.  This is a simple example of why trial graphics are so important, particularly in patent litigation when explaining claim language.

Additional Patent Litigation Resources on A2L Consulting's site:

Free E-Book: The Patent Litigation Trial Presentation Toolkit

Ryan Flax: 5 Surprises Transitioning from Patent Litigator to Litigation Consultant

20+ Articles About Patent Litigation from A2L

Free Subscription to the A2L Blog

Making Patent Drawings Come Alive!

Perfect Patent Tutorials for Your Judge

Creating a Presentation for an ITC 337 Hearing

About A2L Consulting

A2L Consulting is a leading national litigation consulting firm founded in 1995.  We have worked with all major law firms on more than 10,000 cases with trillions of dollars cumulatively at stake.  A2L Consulting offers the following litigation support services:

• Trial Consulting: mock trials, jury consulting, shadow juries, jury selection and more;
  
  
• Litigation Graphics: legal graphics and trial graphics, animation, video, foam core trial exhibits, PowerPoint, simplifying the case story and more;
   
• Trial Technology: ebriefs, hot seat operators, trial technicians, courtroom presentations and more;

A2L Consulting has personnel or a presence in Washington, DC, New York, NY, Boston, MA, Alexandria, VA, Atlanta, GA, Miami, FL, Chicago, IL, Houston, Texas, Los Angeles, CA, and San Francisco, California.  Our work frequently takes us to other locations such as Wilmington, DE, Philadelphia, PA, Phoenix, AZ, San Antonio, Palo Alto, Dallas, Detroit, Baltimore, Cleveland, Kansas City, Las Vegas, Pittsburgh, Richmond, Salt Lake City, Denver, London, Brussels and many other cities and countries around the world.  A2L Contact Information.
 

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3 Ways to Handle a Presentation-Challenged Expert Witness

  

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At A2L, we have the privilege of working with experts in many diverse and highly technical fields, such as software patents, polymer patents, semiconductor patents, medical device design, environmental remediation, construction, financial disclosure, economic damages, transportation safety, corporate management and many more.

When we work with these highly educated and often brilliant specialists – people whose testimony can often make the difference between victory and defeat for our clients – our task is, quite simply, to help them be as effective as possible. We achieve this primarily by helping the attorneys painstakingly prepare them for their deposition testimony before trial and for their direct testimony during trial, including the development of visual presentations that track their testimony. Experts must not only be well prepared for their own set testimony, but even more so for every possible attack by cross-examination, which is really where the case can be won or lost.

In general, experts fall into two camps when it comes to their ability to use visual aids to support and even explain their testimony. Some welcome the help from trial graphics consultants so that their highly technical presentation will be better understood by a jury of laymen (and even the judge, who may not be technically savvy), but some are already quite certain that they will be well understood by judges and juries and don't think “charts” are going to help.

This article provides tips for how a litigator can deal with the latter, more difficult, type. 

Twenty years ago, many trial lawyers believed that trial graphics were unnecessary to help them be persuasive to juries and judges. But now we have studies showing the overwhelming benefit of using visual tools in the courtroom, and especially because the pace at which people (remember, judges and juries are people) expect to receive information is ever increasing, these old-school views are no longer valid.

So how does one convince an expert witness who is a specialist on his or her subject matter and often testifies about it in court that he or she should accept some help at being understood?

I suggest three possible strategies.

1. Appeal to the expert’s ego. Tell the expert that most jurors and many judges are just not as smart as the expert, so they need the visual tools to help them understand it.  A useful quote may inspire a willingness to accept the need to communicate more effectively.  Machiavelli said, “Before all else, be armed.” But, be armed with the right tool and the understanding that the typical juror may not have a college degree and is most used to learning by watching television.
    
2. Video-test the expert. If the expert has shown any interest in improving the quality of his or her testimony, there is no better way to begin than using repeat video tests.  This can be done with or without a live mock jury or an online evaluation service.  In the world of performing, there is a cliché that is equally useful for the courtroom: A bad dress rehearsal means a great performance.
    
3. Give up. Why try to force someone into a situation that he or she is not ready for? The expert, whom you need to look as confident as possible, will simply register discomfort on the stand. And in expert testimony, persuasion is 20% what you know and 80% how you feel about what you know. The reality is that, if the suggestions above have failed, this is probably the wrong expert, and next time, you should shop around.  As a litigator, you should no more have to explain the need for thoughtfully developed visual aids to an expert any more than a client should have to explain this to you.  After all, one cannot after all expect to solve today’s problems with yesterday’s tools.
    

About A2L Consulting

A2L Consulting is a leading national litigation consulting firm founded in 1995.  We have worked with all major law firms on more than 10,000 cases with trillions of dollars cumulatively at stake.  A2L Consulting offers the following litigation support services:

• Trial Consulting: mock trials, jury consulting, shadow juries, jury selection and more;
  
  
• Litigation Graphics: legal graphics and trial graphics, animation, video, foam core trial exhibits, PowerPoint, simplifying the case story and more;
   
• Trial Technology: ebriefs, hot seat operators, trial technicians, courtroom presentations and more;

A2L Consulting has personnel or a presence in Washington, DC, New York, NY, Boston, MA, Alexandria, VA, Atlanta, GA, Miami, FL, Chicago, IL, Houston, Texas, Los Angeles, CA, and San Francisco, California.  Our work frequently takes us to other locations such as Wilmington, DE, Philadelphia, PA, Phoenix, AZ, San Antonio, Palo Alto, Dallas, Detroit, Baltimore, Cleveland, Kansas City, Las Vegas, Pittsburgh, Richmond, Salt Lake City, Denver, London, Brussels and many other cities and countries around the world.  A2L Contact Information.
 

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5 Top Litigation Consulting Report Articles from Q1

  

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After a year of providing expert commentary on trials, litigation graphics, jury research, courtroom hot seat best practices and similar topics, I think it’s time to take stock.

In the past year, the A2L Consulting blog, The Litigation Consulting Report, has gone from zero subscribers to nearly one thousand. There have been more than two thousand downloads from our popular litigation e-book series. We have given away four iPads, a prize we give each quarter to one randomly chosen subscriber. And more than anything else, I am very excited that there have been more than 20,000 visits to our litigation-focused blog, making it one of the most popular litigation blogs.

Below are snippets of the most read articles in our blog for the first quarter of 2012 and the most read articles from the past year. 

Top 5 Articles from The Litigation Consulting Report - First Quarter 2012
 

Of course, not everyone interacts with our firm via our blog. Some like to follow us on A2L's YouTube channel, where one video about Hydraulic Fracturing (Fracking) has more than 13,000 views. Some follow us on A2L's Facebook page and many follow us on A2L's Twitter feed. Our newest web presence is on Pinterest, a site that lends itself well to the visual side of our business.

We encourage you to subscribe to this blog by following this link.

About A2L Consulting

A2L Consulting is a leading national litigation consulting firm founded in 1995.  We have worked with all major law firms on more than 10,000 cases with trillions of dollars cumulatively at stake.  A2L Consulting offers the following litigation support services:

• Trial Consulting: mock trials, jury consulting, shadow juries, jury selection and more;
  
  
• Litigation Graphics: legal graphics and trial graphics, animation, video, foam core trial exhibits, PowerPoint, simplifying the case story and more;
   
• Trial Technology: ebriefs, hot seat operators, trial technicians, courtroom presentations and more;

A2L Consulting has personnel or a presence in Washington, DC, New York, NY, Boston, MA, Alexandria, VA, Atlanta, GA, Miami, FL, Chicago, IL, Houston, Texas, Los Angeles, CA, and San Francisco, California.  Our work frequently takes us to other locations such as Wilmington, DE, Philadelphia, PA, Phoenix, AZ, San Antonio, Palo Alto, Dallas, Detroit, Baltimore, Cleveland, Kansas City, Las Vegas, Pittsburgh, Richmond, Salt Lake City, Denver, London, Brussels and many other cities and countries around the world.  A2L Contact Information.
 

Claim a FREE Subscription to this Blog - The Litigation Consulting Report 

 

5 Surprises in Going from IP Litigator to Litigation Consultant

  

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Ryan Flax joins 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.  He has leveraged his significant experience in cases related to a wide array of technologies, including medical devices and systems, semiconductors, biotechnology, chemical engineering, mechanical engineering, software, and more.  Most recently, Ryan was part of the Dickstein Shapiro team that brought 2011’s largest patent verdict totaling (so far) close to $600 million, which is also the 6^th largest patent verdict in history (Bruce Saffran, MD, Ph.D. v. Johnson & Johnson et al.).  It was during this experience that Ryan realized the excellent fit between his considerable expertise and skill sets as a patent law specialist, and his penchant for designing highly effective trial presentation materials through his collaboration with A2L Consulting.  Ryan made the move to A2L Consulting to become A2L’s Managing Director, Litigation Consulting.  Ryan earned his Bachelor of Science degree in Biology from Wake Forest University and his Juris Doctor degree from Southern Methodist University Dedman School of Law.  Between his undergraduate studies and law school, Ryan was a Laboratory Scientist conducting DNA research at the R.J. Reynolds Tobacco Company.

As a seasoned litigator and IP law specialist, over the last decade I saw the discipline of trial presentation evolve into a sophisticated art form of balanced science and persuasion.  It is no longer good enough to take the complex and make it simple, but, to be effective, litigators must do this in a way that skillfully and persuasively communicates the facts and themes of the case.  Litigation graphics, especially those presented in opening statements (and at claim construction in patent matters), can literally turn the tide for or against your case.

I have had the opportunity to practice this “art” in my role as a litigator and collaborate with some great litigation graphics specialists and it is my great pleasure to announce my latest collaboration.  I have moved from a position as a practicing litigator at a prominent national law firm with a vibrant IP practice to an exciting new role as the Managing Director, Litigation Consulting at A2L Consulting.

Although my new position and my old one have many things in common, they are quite different in a number of ways:  one of the most interesting distinctions stems from the fact that, as a trial lawyer, I was keenly aware that relevant and determinative facts often emerge from literally millions of pages of documents.  It’s all too easy to get lost in the details as you try to sort out your case and find the best pieces of evidence for each point that can and must be proved at trial.  And this propensity for detail can be compounded when one is obliged to respond to an opposing counsel's case.

In such situations it can easily become difficult to see the forest for the trees as you begin looking at each individual proverbial tree under a magnifying glass to identify its species and recognize its characteristics.  There are almost always a lot of details to get lost in, yet it must never be forgotten that jury cases are ultimately about the forest.  Eventually, a trial lawyer needs to step back and regain perspective.  This is where a litigation consulting firm becomes essential.

The litigation consulting firm is unlikely to get bogged down in details and can maintain the perspective needed to develop a winning trial strategy.  The earlier a law firm engages a litigation consultant, the better.  One crucial role that a litigation consultant can play is to develop (and help develop) a working story for the client’s position early in the case.  This will necessarily be a flexible story that can be adapted to the facts as they are revealed in discovery, to the way the case progresses procedurally before the court, and in response to the opposing party’s positions.  Because A2L expertly utilizes seasoned attorneys as litigation consultants that support multiple trials every month (and hundreds over the years), our ability to add significant value to your litigation team cannot be overstated.

With all this in mind, as I make my transition from law firm litigator to litigation consultant, I have encountered a few surprises.  Here are my top 5, in no particular order:

1. Attorneys have a surprisingly wide variety of styles in developing and litigating their cases.  Some prep early.  Some prep late.  Some 1^st chair litigators do not get involved in a case until a couple of weeks before trial, while others tend to micromanage from the start.  Some take advice from dozens of collaborators.  Others work alone.  And, when it comes to trial graphics, some litigation teams like to sit down and collaborate with their consultant team to develop the graphics while others prefer the electronic (email) “tennis-style” back-and-forth volley of graphics and edits from consultants to litigators.
    
2. Many trial lawyers delay a longer time than I would have expected in developing a coherent theme and story of their case.  At my former law firm, I had the privilege of working with some of the best in the business.  Most of the trials I have seen had themes and stories worked out many months (or literally years) in advance of trial.  However, I also see effective trial attorneys now doing this work on the eve of trial.
    
3. Even I, an experienced and veteran litigator, can be swayed (surprisingly easily) to either of the opposing positions of a case depending on how well they are presented.  I have been so used to living in and believing one side of a case for so long, I am amazed by the power of a good presentation to convince me that an argument is correct.
    
4. Few things are more valuable than brainstorming the key issues, but it is surprising how long this can take even for the simplest of issues.  If you’ve ever wondered what a litigation consulting firm looks like behind the scenes, think of the popular A&E show Madmen.  Smart and experienced people combine experience and intellect to develop the best approach to presenting a case or an argument within a case.  The brainstorming goes on for hours and is repeated over days, weeks, and months (if available) and produces amazing results.
    
5. I wish I had utilized litigation consulting firms to their full potential when I was litigating cases.  As an insider, I now see the value of getting the outside perspective of people who spend all of their time either working in court or preparing others for it.

Armed with my “aha moments” and lessons learned in my first few days here at A2L Consulting, I am looking forward to achieving great things in my new position and to helping A2L Consulting’s clients do likewise in the courtroom.

I invite you to contact me, download A2L’s complimentary Patent Litigation Trial Presentation Toolkit and subscribe to this blog, to which I will be contributing frequently.


 

About A2L Consulting

A2L Consulting is a leading national litigation consulting firm founded in 1995.  We have worked with all major law firms on more than 10,000 cases with trillions of dollars cumulatively at stake.  A2L Consulting offers the following litigation support services:

• Trial Consulting: mock trials, jury consulting, shadow juries, jury selection and more;
  
  
• Litigation Graphics: legal graphics and trial graphics, animation, video, foam core trial exhibits, PowerPoint, simplifying the case story and more;
   
• Trial Technology: ebriefs, hot seat operators, trial technicians, courtroom presentations and more;

A2L Consulting has personnel or a presence in Washington, DC, New York, NY, Boston, MA, Alexandria, VA, Atlanta, GA, Miami, FL, Chicago, IL, Houston, Texas, Los Angeles, CA, and San Francisco, California.  Our work frequently takes us to other locations such as Wilmington, DE, Philadelphia, PA, Phoenix, AZ, San Antonio, Palo Alto, Dallas, Detroit, Baltimore, Cleveland, Kansas City, Las Vegas, Pittsburgh, Richmond, Salt Lake City, Denver, London, Brussels and many other cities and countries around the world.  A2L Contact Information.
 

Claim a FREE Subscription to this Blog - The Litigation Consulting Report 

 

In Trial Presentation - A Camel is a Horse Designed by Committee

  

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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.

 

About A2L Consulting

A2L Consulting is a leading national litigation consulting firm founded in 1995.  We have worked with all major law firms on more than 10,000 cases with trillions of dollars cumulatively at stake.  A2L Consulting offers the following litigation support services:

• Trial Consulting: mock trials, jury consulting, shadow juries, jury selection and more;
  
  
• Litigation Graphics: legal graphics and trial graphics, animation, video, foam core trial exhibits, PowerPoint, simplifying the case story and more;
   
• Trial Technology: ebriefs, hot seat operators, trial technicians, courtroom presentations and more;

A2L Consulting has personnel or a presence in Washington, DC, New York, NY, Boston, MA, Alexandria, VA, Atlanta, GA, Miami, FL, Chicago, IL, Houston, Texas, Los Angeles, CA, and San Francisco, California.  Our work frequently takes us to other locations such as Wilmington, DE, Philadelphia, PA, Phoenix, AZ, San Antonio, Palo Alto, Dallas, Detroit, Baltimore, Cleveland, Kansas City, Las Vegas, Pittsburgh, Richmond, Salt Lake City, Denver, London, Brussels and many other cities and countries around the world.  A2L Contact Information.
 

Claim a FREE Subscription to this Blog - The Litigation Consulting Report 

 

Explaining a Complicated Process Using Trial Graphics

  

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In our work as trial graphics specialists, many cases require us to prepare a demonstrative exhibit that simplifies a complex process. This could be a scientific or technical matter such as how environmental remediation is conducted, how surgical mesh is used, or how data backups are migrated, or it could be a business or governmental matter such as how a form of bond obligation is created and sold or how a government contract is bid and awarded.

The key to making a successful process chart or flow chart is to create a simple trial graphic that anyone can quickly understand. It does not have to spell out every last detail of the science, technology, business concept, or governmental action involved; it merely has to discuss it accurately and in a way that will help the judge or jury understand what is at issue in the case.

Here are some examples of process chart trial graphics that we have used and that we thought were effective.

In this video below, we use PowerPoint to explain how video playback and freeze frames are handled through the use of tagging technology. This was a very valuable trial graphic in a patent case.

In the presentation below, we explain, in schematic form, the hydraulic fracturing (fracking) process that is used to extract natural gas from rock. The presentation shows how far below the earth’s surface fracking occurs and the industry’s routine use of cement and steel casings to protect groundwater from the tools and substances used in the fracking process.

In the presentation below, we show in graphic form the process in which collateralized debt obligations are created by investment banks. Through the use of Prezi presentation software, we were able to make this highly technical and complex matter comprehensible to a fact finder by introducing the concept of an “investment” and then showing how CDO’s are simply a type of investment.

In the trial graphics, we explain the drug development process in the United States and the process for regulatory approval of new drugs by the Food and Drug Administration. This PowerPoint demonstration helped a jury understand the length of time that the process can take, why it can take so long to bring a drug to market, and all the steps involved. 

Below, we introduce a jury to the process of creating a FLIP (Foreign Leveraged Investment Program). By numbering the steps in the process and creating arrows from the taxpayer to other entities, we were able to show how this tax shelter unfolds.

The PowerPoint trial graphics below, created for a patent trial, shows how a coal conversion process occurs.

About A2L Consulting

A2L Consulting is a leading national litigation consulting firm founded in 1995.  We have worked with all major law firms on more than 10,000 cases with trillions of dollars cumulatively at stake.  A2L Consulting offers the following litigation support services:

• Trial Consulting: mock trials, jury consulting, shadow juries, jury selection and more;
  
  
• Litigation Graphics: legal graphics and trial graphics, animation, video, foam core trial exhibits, PowerPoint, simplifying the case story and more;
   
• Trial Technology: ebriefs, hot seat operators, trial technicians, courtroom presentations and more;

A2L Consulting has personnel or a presence in Washington, DC, New York, NY, Boston, MA, Alexandria, VA, Atlanta, GA, Miami, FL, Chicago, IL, Houston, Texas, Los Angeles, CA, and San Francisco, California.  Our work frequently takes us to other locations such as Wilmington, DE, Philadelphia, PA, Phoenix, AZ, San Antonio, Palo Alto, Dallas, Detroit, Baltimore, Cleveland, Kansas City, Las Vegas, Pittsburgh, Richmond, Salt Lake City, Denver, London, Brussels and many other cities and countries around the world.  A2L Contact Information.
 

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3 Styles of Document Call-outs Used at Trial

  

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Whenever a litigation team presents a document in a graphic way to the jury or other fact-finder at trial, there is an occasion for a document call-out. A “document call-out” is a term of art that means taking a document that is in evidence at trial and highlighting some key portion of it for easy reading and to draw the viewer's attention to the key language.

There are three usual ways to perform a document call-out: With trial presentation software such as TrialDirector, with a static exhibit with something highlighted, and with a PowerPoint presentation.

Each of these techniques has its pluses and minuses, and within each of these options there are various styles. Here is a summary of the pros and cons.

1.  Within Trial Director, there are a variety of tools for creating document call-outs, either in advance or live, on the fly.  In this video, you can see the screen of one of our hot seat trial technicians as he makes document call-outs on the fly during a televised arbitration.  Here, certain key accounting figures are highlighted through the use of color, the use of a moving cursor, and the use of a zooming-in technique to make certain numbers more prominent.

2.  In a static exhibit, when used as the old-fashioned printed foam core trial exhibit board or on a slide, the document call-out becomes quite powerful.  In today's cases, where most exhibits are presented on screen, a printed board of the key document in a case can be a great tool.

Further, sometimes the document call-out can provide something more.  In the below document,  the message we wanted to convey to the jury was that the failure to follow procedures on the ground (to STOP traffic) was what led to the accident, not air traffic control.  The octagonal red area functions both as a document call-out, to highlight the established policy on the ground when there is an incoming helicopter, and also as a strong visual reminder that it was necessary to stop traffic and that this was not done.

 

The call-out below emphasizes the crucial language of an insurance policy defining the important term “accident.”

3.  In PowerPoint slides, there are various techniques for calling out document text culled from various courtroom presentations.  In this series of slides captured from a variety of PowerPoint presentations, we illustrate a number of common document call-out techniques.

About A2L Consulting

A2L Consulting is a leading national litigation consulting firm founded in 1995.  We have worked with all major law firms on more than 10,000 cases with trillions of dollars cumulatively at stake.  A2L Consulting offers the following litigation support services:

• Trial Consulting: mock trials, jury consulting, shadow juries, jury selection and more;
  
  
• Litigation Graphics: legal graphics and trial graphics, animation, video, foam core trial exhibits, PowerPoint, simplifying the case story and more;
   
• Trial Technology: ebriefs, hot seat operators, trial technicians, courtroom presentations and more;

A2L Consulting has personnel or a presence in Washington, DC, New York, NY, Boston, MA, Alexandria, VA, Atlanta, GA, Miami, FL, Chicago, IL, Houston, Texas, Los Angeles, CA, and San Francisco, California.  Our work frequently takes us to other locations such as Wilmington, DE, Philadelphia, PA, Phoenix, AZ, San Antonio, Palo Alto, Dallas, Detroit, Baltimore, Cleveland, Kansas City, Las Vegas, Pittsburgh, Richmond, Salt Lake City, Denver, London, Brussels and many other cities and countries around the world.  A2L Contact Information.
 

Claim a FREE Subscription to this Blog - The Litigation Consulting Report 

 

The Best Ways to Use Calendars in Legal Graphics

  

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We have previously discussed how valuable timelines used as legal graphics can be in the presentation of facts at trial. As we have noted, most cases involve the placing of events along some sort of time sequence, and timelines, if they are well designed, can give jurors a straightforward introduction to the facts of a case. In fact, we recently released an e-book describing best practices for the use of timelines and legal graphics at trial.

Like timelines, calendars are also an intuitive way to organize facts and events that occur in a time sequence. In fact, they are even more intuitive because everyone is familiar with them and because they help everyone organize information on a day-to-day basis. Calendars can be especially helpful at trial when there is a lot of data that must be conveyed quickly and understandably, and when that data must be understood as a time sequence. This could involve conversations, meetings, appointments, dates of official events (such as the signing of a will or a contract), and the like.

 In What You Didn’t Learn In Law School About Trial Practice (2008), longtime Indiana trial lawyer Charles Bruess wrote: “In an employment discrimination case in which the defendant company maintained plaintiff was discharged for excessive absenteeism, an issue was what days plaintiff worked or did not work. Counsel brought large monthly calendars, placed them on an easel, and, as the witness testified as to the days worked or not worked, the dates were marked accordingly on the calendars. The calendars were marked as exhibits and were introduced into evidence.”

Below, to cite another legal graphics example, we used a calendar to illustrate key dates in the RFP process for a government contract, starting with the date on which the compressed RFP was issued by the Department of Defense.

In this series of legal graphics we show, in a partnership dispute, the dates on which the defendant was in the office and the dates on which he received calls or faxes from the plaintiff.
 

In an employment case, we used this ordinary calendar legal graphic to illustrate the dates on which a plaintiff took days off from work for various reasons. A simple color-coding technique made it easy for the jury to understand the sequence. 
 

Next, in a medical treatment calendar legal graphic, we showed the dates of key surgeries, office visits, and hospital stays, again accompanied by a simple color-coding technique.

Finally, we used a calendar legal graphic to show key dates in the development of an invention that was at issue in a patent trial.
 

About A2L Consulting

A2L Consulting is a leading national litigation consulting firm founded in 1995.  We have worked with all major law firms on more than 10,000 cases with trillions of dollars cumulatively at stake.  A2L Consulting offers the following litigation support services:

• Trial Consulting: mock trials, jury consulting, shadow juries, jury selection and more;
  
  
• Litigation Graphics: legal graphics and trial graphics, animation, video, foam core trial exhibits, PowerPoint, simplifying the case story and more;
   
• Trial Technology: ebriefs, hot seat operators, trial technicians, courtroom presentations and more;

A2L Consulting has personnel or a presence in Washington, DC, New York, NY, Boston, MA, Alexandria, VA, Atlanta, GA, Miami, FL, Chicago, IL, Houston, Texas, Los Angeles, CA, and San Francisco, California.  Our work frequently takes us to other locations such as Wilmington, DE, Philadelphia, PA, Phoenix, AZ, San Antonio, Palo Alto, Dallas, Detroit, Baltimore, Cleveland, Kansas City, Las Vegas, Pittsburgh, Richmond, Salt Lake City, Denver, London, Brussels and many other cities and countries around the world.  A2L Contact Information.
 

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5 Tips for Using TrialDirector and Trial Technicians Effectively

  

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Indata's Trial Director has become the dominant trial presentation specialty software, second only to PowerPoint in courtroom use. It is a powerful tool that is available to trial lawyers and to litigation consultants and represents the state of the art.

A trial lawyer has written: “Trial Director is predominantly a program used for viewing documents, photographs, videos, animations and other visual media from a computer. In my case, Trial Director made sense for two reasons: first, as a document display mechanism for trial preparation and as a reference tool; and second, during the litigation at the time of trial for "demonstrative" purposes. One of the key features of Trial Director is its ability to project documents, photographs and other media to a large monitor or screen for viewing by judge and or jury. A busy trial attorney will appreciate that preparation in advance of trial is the key to success.”

Here are the top five tips for the effective use of Trial Director from our 6 trial technicians or “hot-seat operators,” who are so called because these people who run the software are responsible for what the judge and jury see in the courtroom. One bad mistake -- and the credibility of the lawyer and case could be called into question. This is a service area where perfection is a job requirement. 

1. PREPARE ANNOTATIONS EARLY: When possible, make annotations in advance. In a jury trial, it is always a good idea to ask the judge in advance about this.
    
2. DON'T LOOK TOO CANNED: On the other hand, always be prepared to do some things on the fly – to locate pieces of prior testimony or exhibits that will work well at the moment and couldn’t have been anticipated. This can help keep the jury’s attention and ensure that the case doesn’t look “canned” but is developing before the jury’s eyes.
    
3. ADVANCE CODING IS A PLUS: Coding a database in advance with Bates and exhibit numbers can make it a breeze to find exhibits and documents when you need them.
    
4. PREP DEPO CLIPS WELL IN ADVANCE: Create video clips in advance to remove objections and long pauses. It’s very important to respect the jurors’ time and their public service rather than bogging them down with slow-developing clips.
    
5. TRIAL TECHS ARE TRUSTED ADVISORS:  Attorneys should see trial technicians – the “hot seat” operators – as invaluable members of the team, not just as computer jocks or IT types. A seasoned trial tech has been "in the room" many times before, probably more often than most attorneys, and the trial tech’s experience should carry some weight. It doesn't hurt to ask their advice.

About A2L Consulting

A2L Consulting is a leading national litigation consulting firm founded in 1995.  We have worked with all major law firms on more than 10,000 cases with trillions of dollars cumulatively at stake.  A2L Consulting offers the following litigation support services:

• Trial Consulting: mock trials, jury consulting, shadow juries, jury selection and more;
  
  
• Litigation Graphics: legal graphics and trial graphics, animation, video, foam core trial exhibits, PowerPoint, simplifying the case story and more;
   
• Trial Technology: ebriefs, hot seat operators, trial technicians, courtroom presentations and more;

A2L Consulting has personnel or a presence in Washington, DC, New York, NY, Boston, MA, Alexandria, VA, Atlanta, GA, Miami, FL, Chicago, IL, Houston, Texas, Los Angeles, CA, and San Francisco, California.  Our work frequently takes us to other locations such as Wilmington, DE, Philadelphia, PA, Phoenix, AZ, San Antonio, Palo Alto, Dallas, Detroit, Baltimore, Cleveland, Kansas City, Las Vegas, Pittsburgh, Richmond, Salt Lake City, Denver, London, Brussels and many other cities and countries around the world.  A2L Contact Information.
 

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6 Tips for Effectively Using Video Depositions at Trial

  

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The old-fashioned deposition, with the court reporter recording every word and producing a written transcript, is giving way to the video deposition, which permits a jury and judge to actually see the witness and get a feeling for his or her style and credibility that can’t be obtained by looking at a printed page. In addition, the witness’s body language, which was completely opaque in a written deposition, is now available to the jury.

Video depositions are now used in most large trials – and as much as the rules of evidence will allow, they are used both in direct testimony and on cross-examination. As a legal employment website notes, “With the prevalence of multimedia technology, video depositions are now preferred over simple transcript.” 
 

We polled our six national trial technicians at A2L Consulting with more than 500 courtroom appearances between them for their tips on using video depositions at trial and using TrialDirector most effectively at trial. 

Here are six good tips to follow:

1. PREPARE DEPO CLIPS EARLY: Daniel Carey, our lead “hot seat” trial technician, suggests that it’s always important to leave a lot of lead time for preparation, if there’s some possibility that an opposing witness will say something at trial that contradicts his or her deposition testimony. Possible impeachment clips need to be created in advance, then reviewed and saved in such a way that they are able to be pulled up on the fly in the rare occasion that they are actually used in court -- usually with a witness that wasn't prepped to the best of opposing counsel's abilities.
    
2. KEEP DEPO CLIPS SHORT: Keep deposition videos short and sweet. You run the risk of losing jurors if they are too lengthy.  This especially holds true if you play them after lunch, when everyone’s attention tends to flag.
    
3. USE THE SCROLLING TRANSCRIPT SELECTIVILY: Some attorneys think that subtitling (placing the witness’s words on the screen and scrolling down as he or she speaks) can be distracting, but, like much in the law, it depends. Seeing and hearing the words simultaneously can cause memory retention problems due to the redundancy effect. We recommend using the text only when the sound quality in the courtroom is poor, the sound quality on the recording is poor or the accent of the deponent is unfamiliar to the jury panel.
    
4. AVOID COURTROOM OBJECTIONS: Try to get advance agreement from all parties on any depositions to be played in place of live testimony and any objections ruled on by the court before trial begins. 
    
5. LIMIT THE NUMBER OF DEPO CLIPS USED: Using video depositions for impeachment can have a powerful effect, but using the transcript for most answers is sufficient. By saving the most powerful clips for video, they do not become routine. Quality is better than quantity.
    
6. MAKE GOOD DEPOSITION VIDEOS IN THE FIRST PLACE: Train your witness to move forward in his or her chair rather than leaning back or slouching. This form of body language has been shown to provide greater credibility and authority.
   
   

About A2L Consulting

A2L Consulting is a leading national litigation consulting firm founded in 1995.  We have worked with all major law firms on more than 10,000 cases with trillions of dollars cumulatively at stake.  A2L Consulting offers the following litigation support services:

• Trial Consulting: mock trials, jury consulting, shadow juries, jury selection and more;
  
  
• Litigation Graphics: legal graphics and trial graphics, animation, video, foam core trial exhibits, PowerPoint, simplifying the case story and more;
   
• Trial Technology: ebriefs, hot seat operators, trial technicians, courtroom presentations and more;

A2L Consulting has personnel or a presence in Washington, DC, New York, NY, Boston, MA, Alexandria, VA, Atlanta, GA, Miami, FL, Chicago, IL, Houston, Texas, Los Angeles, CA, and San Francisco, California.  Our work frequently takes us to other locations such as Wilmington, DE, Philadelphia, PA, Phoenix, AZ, San Antonio, Palo Alto, Dallas, Detroit, Baltimore, Cleveland, Kansas City, Las Vegas, Pittsburgh, Richmond, Salt Lake City, Denver, London, Brussels and many other cities and countries around the world.  A2L Contact Information.
 

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