Posted by Ken Lopez on Mon, Jan 09, 2012 @ 10:20 AM
Because of the continuing high value to society of minerals that are mined from the earth, mining litigation, when it occurs, often involves very high stakes. This is all the more true in our high-tech era, in which a wide variety of minerals have found new, very valuable uses in cutting-edge scientific and industrial applications.
For example, one little-known “rare earth” metallic element, dysprosium, is now used in laser materials, commercial lighting, control rods in nuclear reactors, hard disks, drive motors for hybrid electric vehicles, and high-precision fuel injectors. The vast majority of jurors have never heard of this element, whose continued availability is crucial to the nation’s economic well-being.
When A2L is involved in mining litigation, the case can involve a dispute over mining technology, a conflict over the value of a mined material, a dispute about how valuable minerals from the mining operation will be distributed according to a contract, or an environmental dispute usually involving mine waste such as wastewater or tailings.
Often these cases are tried in courtrooms where the jury pool is very far removed from the concepts of mining and needs to be educated about those basic concepts.
For example, tailings are the materials left over in a mine after the process of separating the valuable fraction of the ore from the uneconomic fraction. To a population of a mining town, their characteristics are well known; an urban jury, however, will require considerable education about how tailings are produced and what their environmental risks may be.
A 2002 report, Stewardship of Tailings Facilities[pdf], concluded that “tailings storage facilities typically represent the most significant environmental liability associated with mining operations. They have been in the news frequently in recent years for unfortunate reasons, as a result of a series of well-publicized failures subjected to rapid and widespread reporting in the media. These recent failures, together with previous ones, have put the mining industry under increasing pressure and scrutiny in regard to its environmental practices in general and the safety of tailings impoundments in particular. “ The industry is often placed in a position where it needs to respond to that scrutiny.
Courtroom graphics are important to give juries a balanced view of the issues surrounding mining operations – issues that jurors know little about and that are subject to manipulation by interest groups that see only one side of the issue.
A simple 2D animation, below, is used to show how the copper mining process works. This type of animation is easy and inexpensive to produce and is convincing to a jury.
Another animation, below, shows the way in which a company prepares a copper deposit for the process of open-pit mining.
The straightforward schematic diagram, below, illustrates different techniques that mining companies can use for the treatment of mine waste water.
Another straightforward diagram, below, shows the way in which the coal that is produced by a mine is allocated among the owners of the mine.
As with any topic outside the normal experience of the average judge or juror, care must be taken to explain enough for the fact-finder to allow them to make the right decision. Courtroom graphics, including static charts, electronic exhibits and animations, make it possible to communicate a lot of complex information quickly. In an era of increasingly efficient trials, the courtroom graphics are used, the more time can be saved.
Related materials on A2L Consulting's site:
Since 1995, A2L Consulting has provided litigation consulting services to clients in Washington DC, Atlanta, New York, New Jersey, Virginia, Delaware, Philadelphia, Boston, Miami, Florida, Houston, San Antonio, Dallas, Texas, Chicago, Salt Lake City, Phoenix, San Francisco, San Diego, Silicon Valley, Los Angeles, California, Canada, the United Kingdom, Ireland and Europe. For litigators from all major law firms, we have provided litigation support and litigation consulting services including jury consulting, litigation graphics, litigation animation, trial presentation technology, e-briefs and trial technicians/hot seat operators.
Posted by Ken Lopez on Tue, Dec 06, 2011 @ 08:33 AM
U.S. district court judges often lack the scientific or engineering background to fully understand the issues in highly technical patent cases without outside assistance. And ever since the Supreme Court’s Markman ruling in 1996 finding that claim construction – the interpretation of the words of a patent claim – is a task given over to the judge, it has been more important than ever for judges to get a solid working knowledge of the subject matter of a case.
Judges now routinely convene so-called Markman hearings, also known as claim construction hearings, before trial to help them in their task of claim construction, which is at the core of many patent disputes. Many patent lawyers say the Markman hearing has become second in importance only to the trial itself.
In a Markman hearing, judges must resolve all the disputes about the interpretation of a patent and must construe the claims for trial. The Markman hearing is therefore a key opportunity for both parties to guide the judge through the thicket of the evidence and to help him or her understand the case.
There are a number of ways to give the judge the needed guidance. One of them is a patent tutorial, which is generally presented months or weeks before the Markman hearing, in the form of a 30-minute factual documentary presentation that explains the technology. Typically, each side is given the chance to create a tutorial, which must stick to the facts and must not be argumentative. The tutorial can be presented either live, usually using a combination of PowerPoint and Trial Director, or as a DVD with a voice-over.
As Vincent P. Kovalick of the Finnegan Henderson firm wrote in China IP News in October 2009, “Often judges will request a brief tutorial on the technology of the patent either before or in conjunction with the Markman hearing. This is a great opportunity to stage your case in your favor. Lawyers often hire graphics consultants to help create insightful and persuasive graphical animations and tutorials for the judge. This is costly, but it is money well spent as most U.S. judges do not have technical backgrounds.”
Indeed, the use of Markman hearings is expanding in the courts and in administrative hearings. Judge Davis in EDTX is holding Markman hearings early in a case, so-called mini-Markmans, in an effort to resolve cases more efficiently. In the International Trade Commission (ITC), Markman hearings were introduced in 2009. Patent tutorials are used in many of these cases as well, so their use is also on the rise.
At A2L Consulting, we have produced many such patent tutorials. Below are several examples of patent tutorials for judges. Each is designed to provide an overview of the technology, the prior art and the patents involved. Each includes just a hint of advocacy.
The patent tutorial presentation below was presented on DVD in the In re Katz Interactive Call Processing Patent Litigation MDL. It provides an overview of call processing and call center technology and is structured so that the judge or clerk can view portions that are important to them whether an overview, prior art or patents in issue.
The Katz MDL Patent Tutorial
The below litigation PowerPoint, used as a patent tutorial, demonstrates the workings of an optical disc drive, using the analogies of writing and erasing on a legal pad to show the concepts of data storage, erasure, and retrieval. With clear graphical icons, it also shows the technical problems that the inventors of an optical disc drive had faced and the patented solutions that they came up with to solve them.
PowerPoint Patent Tutorial
The below patent tutorial shows graphically the way in which a doctor’s prescriptions for aspirin and Lipitor are translated into a hospital picking machine that automatically selects and removes the medicines for the patient.
Flash-Based Patent Tutorial (Pre-Markman)
With careful planning and attention to detail, even the most complex technology can be explained to a judge unfamiliar with that particular technology. The use of litigation graphics and either a voice over or in combination with a live presenter makes this job managable.
Additional patent resources on the A2L Consulting website include:
Since 1995, A2L Consulting has provided litigation consulting services to clients in Washington DC, Atlanta, New York, New Jersey, Virginia, Delaware, Philadelphia, Boston, Miami, Florida, Houston, San Antonio, Dallas, Texas, Chicago, Salt Lake City, Phoenix, San Francisco, San Diego, Silicon Valley, Los Angeles, California, Canada, the United Kingdom, Ireland and Europe. For litigators from all major law firms, we have provided litigation support and litigation consulting services including jury consulting, litigation graphics, litigation animation, trial presentation technology, e-briefs and trial technicians/hot seat operators.
Posted by Ken Lopez on Fri, Nov 18, 2011 @ 02:12 PM
The choice of a trial graphics firm is one of the most important decisions that a trial lawyer can make. Since experts widely agree that about two-thirds of jurors and many judges prefer to learn visually, it can literally make the difference between winning and losing your case. However, many lawyers still use the wrong approach to the selection of a trial graphics consultant.
For example, they may choose a provider based on familiarity (“I know someone who does graphics . . .”), price (“the client has a tight budget . . . “), or proximity (“they’re right around the corner . . . “).
There are better ways to choose a consultant. Think of hiring a trial graphics provider as similar to the hiring of an expert witness. If you are hiring an expert witness, you are delegating a portion of the case to someone who has specialized knowledge and experience that you may not.
You would hire an electrical engineering expert witness to discuss the workings of a patented device. Similarly, you should hire a trial graphics provider, who is an expert in the field of information design, to create effective trial graphics for your case.
Here are 12 questions that you should ask any trial graphics provider that you are considering. The answers to these questions will, in all probability, lead you to the right decision.
- What kind of experience does the trial graphics consultant have in providing trial graphics consulting for cases like yours? (i.e. Can you show me examples? Cite case names? Provide litigator references?)
- Since the attorneys will be working with the provider on a daily or hourly basis, how easy will the trial graphics provider’s employees be to work with? (i.e. How do you feel about working weekends? How do I get in touch with you after hours? Does the provider's team have their mobile phone number on their business card?)
- How responsive will the trial graphics provider be to unexpected developments in the case that may require quick turn-around time? (i.e. How have they rapidly scaled a project team? Can you provide specific examples?)
- Is the trial graphics provider ready to work long hours at night or on weekends to help the attorneys? (i.e. Tell me of three instances where you have had to do this? Who can I call to verify these events?)
- How familiar are the trial graphics provider’s employees with the concepts behind your case and with the basics of courtroom procedure and evidence? (i.e. Some firms are run by lawyers and Ph.Ds while others are run by high school grads or computer scientists. Choose the right provider for your case.)
- Is the trial graphics provider able to suggest creative visual approaches to your case rather than merely accepting your initial thoughts and putting those into practice? (i.e. Will the provider be a true partner in your trial effort or merely an “order-taker”? Can you provide references who can speak to this?)
- Who will lead the project on the trial graphics consultant's team? (i.e. Will I have more than one point of contact to deal with? How many projects has the project lead managed previously? How will the provider update our team on critical path requirements, key deadlines and issues that could put timing in jeopardy?)
- Will the trial graphics provider be honest enough to be able to step back and provide an outside perspective on your case and its strengths and weaknesses? (i.e. What is the provider's value-add? How might the provider identify potential additional case themes? Are attorneys involved in the creative process throughout the project lifecycle?)
- Is the trial graphics provider able to discuss the cost of a project from the outset as well as the factors that may increase or decrease that cost as time goes on? (i.e. Will the firm consider a fixed price arrangement? If not, why not? Remember, [if] they provide these services all the time, they should be experienced enough to accurately estimate average costs).
- Will the trial graphics consultant keep you up to date on changes in the scope of the project that may affect the budget? (i.e. Can they talk comfortably about money? Do they know how to keep you out of hot-water with your client?)
- How long has the firm provided trial graphics services? (i.e. Are they an overseas e-discovery provider masquerading as a trial graphics consulting firm? Will your client's confidential information be sent to India?)
- Are the references the trial graphics consultant provides - like you? (i.e. If the case involves billions of dollars of toxic torts, is the trial graphics consultant providing references to high-profile but low-dollar disputes or vice versa?)
Since 1995, A2L Consulting has provided litigation consulting services to clients in Washington DC, Atlanta, New York, New Jersey, Virginia, Delaware, Philadelphia, Boston, Miami, Florida, Houston, San Antonio, Dallas, Texas, Chicago, Salt Lake City, Phoenix, San Francisco, San Diego, Silicon Valley, Los Angeles, California, Canada, the United Kingdom, Ireland and Europe. For litigators from all major law firms, we have provided litigation support and litigation consulting services including jury consulting, litigation graphics, litigation animation, trial presentation technology, e-briefs and trial technicians/hot seat operators.
Posted by Ken Lopez on Thu, Nov 10, 2011 @ 07:18 AM
One of the most important jobs of the trial lawyer and of the litigation consultant is to make highly complex and technical issues understandable to the average juror who does not have a scientific, engineering or technical background. In technology cases, especially patent cases, using demonstrative evidence is normally a good tactic. Here's why.
The trial lawyer has spent months or probably years delving into every aspect of the case, and by the time it gets to trial, even the most arcane subjects can appear simple to him or her. Of course, that doesn’t mean they are easily understood by the general population of which the men and women in the jury box are a representative sample.
Think of the challenge as needing to explain a complicated subject to a kid or to your grandparent; it takes creativity (and visual presentations - e.g. demonstrative evidence) to make the concept digestible to all audiences.
Similarly the trial lawyer, assisted by a litigation consulting firm such as ours, needs to simplify the subject matter without losing its essence and without seeming to talk down to the jury. The way to do that is to present the scientific or technical material in a way that is at the same time dramatic and fully accurate.
The jurors should be given the ideas behind the evidence in a broad sense at first and then introduced to the details. High-level demonstrative evidence illustrating the big-picture concepts used in opening will best set the stage for the detailed evidence shown in the case in chief.
In this age of constant content delivery on smart phones, tablets, computers and television - the information presented also has to retain the jurors' attention and interest. The information needs to be both informative and visually stimulating; enough so, that the content is learned and retained for deliberation.
We often use these demonstrative evidence techniques in patent litigation trials. While the technical evidence in these cases is not as dramatic as in television shows like “CSI,” it can often be shown to the jury in a way that appeals to their common sense or their sense of justice.
For example, below we created demonstrative evidence to show how liquid crystal displays (LCD’s), commonly used in televisions, computer monitors, and many other applications, are designed to function. The various layers, including glass layers, liquid crystal, film, and others come together in a brief presentation to create an LCD.
In this demonstrative evidence, below, we showed how a transistor works. We use analogy to indicate that a transistor is like a light switch. When it is turned on, electricity flows, and when it is turned off, electricity does not flow.
Here, below, we explained a metal-oxide-semiconductor field-effect transistor (MOSFET) to a jury. We used a frequent analogy, comparing the flow of electrons to the flow of water through pipes. This type of transistor is able to divert the flow of electrons, just like a pipe valve diverts water into the ground. However, occasionally the diverted water can cause problems such as leaky basements; similarly, the jury can understand that diverted electrons can also cause problems.
In all of these cases, the jurors need to understand the technology before they can rule on the factual issues before them. Did a particular company’s new version of an LCD infringe on a previous type of LCD? Was a specific transistor identical for all purposes with an earlier transistor? A fully informed jury will come to the right decision.
High-quality demonstrative evidence is a powerful weapon in the arsonal of the modern litigator. Please see other demonstrative evidence resources on our site below:
Since 1995, A2L Consulting has provided litigation consulting services to clients in Washington DC, Atlanta, New York, New Jersey, Virginia, Delaware, Philadelphia, Boston, Miami, Florida, Houston, San Antonio, Dallas, Texas, Chicago, Salt Lake City, Phoenix, San Francisco, San Diego, Silicon Valley, Los Angeles, California, Canada, the United Kingdom, Ireland and Europe. For litigators from all major law firms, we have provided litigation support and litigation consulting services including jury consulting, litigation graphics, litigation animation, trial presentation technology, e-briefs and trial technicians/hot seat operators.
Posted by Ken Lopez on Thu, Oct 20, 2011 @ 04:30 PM
Very often, trial lawyers face what feels like an impossible dilemma. The case that they want to present is extremely complex, intensely tedious or worse yet, both.
However their audience, the very people who need to understand the facts of the case and render a verdict in the client’s favor, are jurors – everyday people with full-time jobs and often without any relevant technical background. Enter the litigation consultants.
Whether a case involves a patent dispute over electronic circuits, or an environmental issue involving leaking storage tanks, or an antitrust prosecution where complicated business strategies are being tested, it’s pretty certain that the jurors who are the ultimate decision-makers will have little or no previous knowledge of the topic. Let's hope they can muster an interest - most jurors can - for a reasonable period of time. With this pretext in mind, the good news is that there are proven strategies employed by litigation consultants to solve these very problems, and these same strategies can be used by trial counsel in any case.
So, how does one prevent jurors from being bored and tuning out the trial presentation? After all, a great case on the law and the facts is useless if the jurors aren’t listening.
The answer is: Use any one (or a combination) of these 5 proven trial presentation techniques used by litigation consultants to provide entertainment value while you, as trial counsel, educate and persuade.
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Create a Compelling Visual Experience: When people watch the news, they now typically receive it in 30-second sound bites, YouTube presentations, and color photographs, diagrams, and graphics. Like it or not, the days of families gathering to watch Walter Cronkite each weekday evening are gone.
Decades ago, many daily newspapers, prodded by the success of USA Today, started putting data about everything from baseball averages to political poll standings to vaccination rates into color-coded charts and graphs. The Internet, where most people receive the majority of their news today, only magnifies that trend.
Good litigation consultants use the same visual communication methods to help trial counsel create a compelling experience for the jury -- one that communicates with them on a variety of different levels. So, instead of using PowerPoint exhibits only, also use printed trial boards in combination to mix the mediums and enhance the viewer’s experience. Instead of showing documentary evidence only, consider including some appropriate animation. Rather than showing your presentation entirely on a screen, show some photos on an iPad as well.
Create a complete experience using information design tactics that touches all senses and all three learning styles. It’s all about the total trial presentation – not just the answers that the witnesses give on the stand and the summations to the jury.
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Create a Memorable Experience: Lawyers need to provide the jurors with a memorable experience if they expect the jurors to pay attention. Trial lawyers can mimic the memory techniques used by experienced litigation consultants. Even with a “boring” or “technical” subject, if you use the right tools, jurors will remember.
Consider the use of scale models or physical models in the courtroom to make a case more memorable for a juror, especially those with a kinesthetic learning style. Remember also that color coding and the use of alliteration can further imprint the memory of the listeners and keep their attention, so do not discount these simple devices to help jurors track information and key facts.
Also consider using an image that sticks with a jury. In the example below, in order to convey the notion that an expert gives different business valuations to different audiences, we use a memorable image of the two-sided man. Obviously the goal here is to undermine credibility of the opposition’s expert.
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Use Interesting Analogies: A good analogy can be delivered orally or by video, diagrams, animations, three-dimensional models, or anything that will keep jurors’ interest. A lawyer can use this strategy regardless of how large or small the client’s pocketbook is.
For example, if the case is about software and whether the modifications constituted an invention, use a familiar analogy to tell that story instead of continuing to show line after line of code. Putting an abstract concept into everyday terms can help eliminate confusion and can sometimes create the added value of a more emotional connection to the facts.
- Animation in Some Form Works: A top-rated litigation consulting and animation company knows how to build exhibits (whether the budget is severely limited or not) that convey information graphically and in a manner that piques the viewer’s interest. Keep in mind that animation can be as simple as movement of information on a screen, ghosting (dulling) images or text to spotlight specific content at the pace desired by the presenter, or highlighting a key statement from a document. Animation takes many forms and can allow the litigator to take control of even the most mundane information and present it in a far more interesting way.
Litigation consulting companies, from their years of practical experience in managing trial exhibits, know what will work and what will not. A well-prepared animation will always capture a jury's attention. Some forms of animation can be produced in-house, and others require the help of litigation consultants. Learn about 4 courtroom animation styles in this article.
- Tell Great Stories: The job of any trial lawyer is to advocate for his or her client’s interests as zealously as possible within ethical limits. Today, that responsibility includes making sure that the jurors remain awake, interested, and entertained. Litigation consultants use information design techniques in litigation to help tell great stories.
For example, if the case turns on the credibility of a key witness. Tell a memorable and emotional story about them. In a corporate fraud and bankruptcy case, we successfully undermined the credibility of the plaintiff by pointing out his mixed motives in the case and his pattern of "wearing many hats" to suit that which benefited him most financially.
Consider any or all of these top 5 winning litigation consulting techniques whenever you prepare to present and you can be certain that your presentations will be the better for it.
Other related A2L Consulting Resources by our Litigation Consultants:
Since 1995, A2L Consulting has provided litigation consulting services to clients in Washington DC, Atlanta, New York, New Jersey, Virginia, Delaware, Philadelphia, Boston, Miami, Florida, Houston, San Antonio, Dallas, Texas, Chicago, Salt Lake City, Phoenix, San Francisco, San Diego, Silicon Valley, Los Angeles, California, Canada, the United Kingdom, Ireland and Europe. For litigators from all major law firms, we have provided litigation support and litigation consulting services including jury consulting, litigation graphics, litigation animation, trial presentation technology, e-briefs and trial technicians/hot seat operators.
Posted by Ken Lopez on Tue, Oct 04, 2011 @ 06:30 AM
As the Washington Business Journal recently wrote, the International Trade Commission (ITC), once an obscure federal agency, has become the epicenter of high-end international patent law in recent years. Its docket is rapidly growing, and its cases can be worth sums in the hundreds of millions or billions of dollars.
And all its trials occur in a nondescript federal building in Southwest Washington, D.C., not far from our Washington, DC headquarters.
A holder of a U.S. patent typically files a case at the ITC in order to block an allegedly infringing product from being imported into the United States. The ITC cases are used as an alternative to or in conjunction with patent litigation. These cases are filed under Section 337 of the Tariff Act, which prohibits unfair competition in imports into the United States. There are no juries, but it remains extremely important to capture and hold the attention of the judge.
We have been very active in preparing exhibits for use in Section 337 cases at the ITC. For example, we developed this PowerPoint presentation to show the nature of a patent for a ground fault interrupter.
In some ways, ITC work is a world unto itself – one that requires a specialized knowledge of the court and of its predilections.
Jim Adduci, an experienced ITC practitioner and managing partner of well-known D.C. international trade law firm Adduci, Mastriani & Schaumberg LLP, says, “At the ITC under Section 337, it’s due process with dispatch. Final decisions in just over a year, and an automatic injunction if you win, explain why the ITC docket has nearly tripled in recent years. Patent-savvy judges and consistent, well-reasoned decisions by the commission itself make the ITC the forum of choice for international patent-based trade disputes.”
Michael Oblon, a partner at Perkins Coie and a past client of ours, says, “When representing a respondent in a multi-party investigation at the ITC, it is critically important to have effective visual presentation materials that enable the administrative law judge to easily discern how your client's devices differ from those of the other co-respondents. I have had great success by using visuals that capture the ALJ's attention while quickly and accurately conveying the facts needed to make my case.”
Blaney Harper, a partner at Jones Day and also a past client, says, “The key at the ITC is to know your judge. You've got to get his or her attention and focus the judge as quickly as possible on the main issues that you need to win. This is especially true on cross-examination with regard to demonstrative evidence. If you bore the judge, the issue you care about may be missed.”
Andrew Thomases, a partner at Skadden, Arps, Slate, Meagher & Flom and another past client, agrees. “Presenting at the ITC requires a fast-paced judge-focused presentation. Since the issues we typically present are complex and technical in nature, use of compelling visual presentations help the judges quickly process the key information in a case,” Thomases says.
While ADR in all forms is common and increasing in frequency, so too are proceedings at the World Bank, the ICC, the FTC and the ITC. In each of these venues, costs of litigation are generally lower than a district court proceeding, rules are somewhat more liberal and they offer a legal playing field that favors high-caliber litigators.
With the passage of patent reform, new ALJ-led patent review proceedings at the PTO will likely require similar litigation skills and tactics to those of the ITC. As these judicial proceedings supplant some patent court cases, patent litigators must be prepared for faster and more efficient presentations.
To learn more about patent litigation trial presentation, we suggest downloading our free ebook on the topic.
To learn 5 Ways to Research Your Judge's Likes and Dislikes, click here.
Since 1995, A2L Consulting has provided litigation consulting services to clients in Washington DC, Atlanta, New York, New Jersey, Virginia, Delaware, Philadelphia, Boston, Miami, Florida, Houston, San Antonio, Dallas, Texas, Chicago, Salt Lake City, Phoenix, San Francisco, San Diego, Silicon Valley, Los Angeles, California, Canada, the United Kingdom, Ireland and Europe. For litigators from all major law firms, we have provided litigation support and litigation consulting services including jury consulting, litigation graphics, litigation animation, trial presentation technology, e-briefs and trial technicians/hot seat operators.
Posted by Ken Lopez on Thu, Sep 29, 2011 @ 07:18 AM
Many antitrust cases involve potential damages of hundreds of millions or even billions of dollars. Cases can arise when one company sues another for violating the antitrust laws and causing economic harm to the plaintiff, or the government (U.S. Department of Justice, Federal Trade Commission, or state attorney general) can bring a case seeking money damages, an injunction, and other remedies. Price-fixing charges can even be brought as a criminal case by the Justice Department.
The antitrust laws prohibit both price-fixing by competitors and monopolization of a market by a single company, and both of those types of cases can be well illustrated by antitrust litigation graphics.
These cases involve complicated terms and issues such as market power, potential competition, and market definition that lawyers and economists have argued about for generations. But since they involve buying and selling, activities that jurors are familiar with, these concepts can actually be illustrated quite effectively by using analogies from daily life.
In a variety of cases, we have sometimes worked with lawyers who want to show that a company or a group of companies acted illegally to raise prices and hurt consumers in their pocketbooks, and we have sometimes worked with lawyers representing clients that are defending themselves against such accusations.
In the below movie, we portrayed a price-fixing conspiracy as a web, which is something that jurors understand well and is also a term that is used in the case literature to describe antitrust conspiracies. After the jurors have seen the web, they then see that it raised prices by a total of $740 million and caused harm to consumers.
In the next exhibit, we were attempting to show that Karma lager, a brand of beer, does not have market power in the beer market. What better way to do this than to show a shopper faced with dozens of choices in the beer aisle? Jurors see recognizable names there such as Miller, Heineken and Corona and come to the conclusion that a single player in the market would be unable to act so as to raise prices above competitive levels without losing customers.
In the final exhibit, we are illustrating the effects of an illegal “bundling scheme” perpetrated by a monopolist. Here, we analogize it to a late-night television commercial for a cleaning product. Not only does the graphic illustrate the economic principle of reasonable markups versus monopoly prices, but it also associates the defendant with TV hucksters, not a popular set of individuals in the mind of a juror.
“Call in the next 10 minutes and Receive the Patented Fancy Mop at NO Extra Charge!!!” is the type of pitch that many jurors will have heard and disdained. Here, we associate the monopolist in this case with that type of economic behavior.
Using trial graphics in antitrust litigation is a must. The subjects of economics and mathematics are intimidating to most jurors and are a fundamental part of every antitrust case.
Many trial teams or antitrust experts/economists inadvertantly overwhelm a jury with one Excel bar chart after another. I believe this serves only to confuse the jury further -- since after you seen ten Excel bar charts, they all start to look pretty much the same.
Instead of focusing on bar charts, focus on the drama of the story. You want the jury to trust your client(s) -- or better yet -- distrust the opposition. Then, use stand-out litigation graphics that sharply contrast with your bar chart exhibits to highlight the key elements of your case.
Since 1995, A2L Consulting has provided litigation consulting services to clients in Washington DC, Atlanta, New York, New Jersey, Virginia, Delaware, Philadelphia, Boston, Miami, Florida, Houston, San Antonio, Dallas, Texas, Chicago, Salt Lake City, Phoenix, San Francisco, San Diego, Silicon Valley, Los Angeles, California, Canada, the United Kingdom, Ireland and Europe. For litigators from all major law firms, we have provided litigation support and litigation consulting services including jury consulting, litigation graphics, litigation animation, trial presentation technology, e-briefs and trial technicians/hot seat operators.
Posted by Ken Lopez on Thu, Sep 22, 2011 @ 07:15 AM
One of the unusual techniques that we are using in patent litigation trial presentations is something we call Patent Comes Alive. This process begins with patent drawings and goes well beyond them.
Patent drawings themselves are a unique and highly specialized form of art. Their purpose, of course, is to illustrate the item to be patented and to show exactly what it is and what the patent applicant is claiming about the invention. For nearly all patents, the Patent and Trademark Office requires the applicant to furnish drawings.
That is not all: The Office also requires the drawings to be in a particular form.
Well-known patent blogger Gene Quinn has written that the Patent Office “specifies the size of the sheet on which the drawing is made, the type of paper, the margins, and many other hyper-technical details relating to the making of the drawings. The reason for specifying the standards in detail is that the drawings are printed and published in a uniform style when the patent issues, and the drawings must also be such that they can be readily understood by persons using the patent descriptions.”
But these very characteristics that make a patent drawing precise and capable of being relied on in court can also make the drawing lifeless and impenetrable. Our technique, “Patent Comes Alive,” takes an existing patent drawing and animates it, making it understandable to a jury.
In a case involving patent infringement of a paper/CD shredder, for example, we brought the patent drawing to life by animating it in a PowerPoint presentation. The animation made it easy for the jury to see not only how the shredder worked but how a competing product infringed upon the patent.
In another patent case, we started with a patent drawing of a vending machine patent. We looked inside the machine with animation, showing how it dispenses products.
In yet another patent litigation, we got a favorable outcome for a client in a major case involving coke drum de-header valves after we took a patent drawing and brought it to life.
This type of animation is yet another instance in which a skilled trial presentation consultant can illustrate a highly technical subject and make it easy for a lay juror to understand.
A patent drawing can be daunting and complex to someone who is not an engineer – yet basic tools such as PowerPoint, in the hands of the right courtroom consultant, can make the drawing a relevant and memorable part of a trial presentation.
Want to learn more? Download our newest and complimentary e-book: The Patent Litigation Trial Presentation Toolkit.
Since 1995, A2L Consulting has provided litigation consulting services to clients in Washington DC, Atlanta, New York, New Jersey, Virginia, Delaware, Philadelphia, Boston, Miami, Florida, Houston, San Antonio, Dallas, Texas, Chicago, Salt Lake City, Phoenix, San Francisco, San Diego, Silicon Valley, Los Angeles, California, Canada, the United Kingdom, Ireland and Europe. For litigators from all major law firms, we have provided litigation support and litigation consulting services including jury consulting, litigation graphics, litigation animation, trial presentation technology, e-briefs and trial technicians/hot seat operators.
Posted by Ken Lopez on Mon, Sep 19, 2011 @ 12:37 PM
As one can imagine, automobiles are the subject of a good deal of complex litigation these days -- whether the case has to do with the validity of a patent for use in the manufacture of an automobile, the possible liability of an auto manufacturer for an accident, a class action claiming a design defect in a certain model of car, or another legal issue.
Automobiles present interesting challenges for the trial graphics consultant. On the one hand, nearly everyone has driven a car, and many people think of themselves as fairly knowledgeable in auto mechanics (while they would not fancy themselves as computer or jet-engine experts, for example). On the other hand, today’s vehicles are incredibly complicated items with sophisticated computer systems and electronics.
In 2010, for example, IBM wrote in a press release that due to the “exponential growth in the automotive electronics industry, owning a modern vehicle is equivalent to operating thirty or more computers on wheels,” and that “the average automobile now has several millions of lines of code -- more than a space shuttle.”
So jurors do need considerable education about a seemingly basic item like a car.
Since 1995, many of our cases have involved patent disputes about items such as brake parts, valve stems, engines, wheel parts, window glass, and many other parts of the automobile.
In fact, patent litigation in the automotive industry is as old as the industry itself. A recent article in the Legal Intelligencer noted that “patent litigation in the auto industry dates back to the first days of cars” and discussed patent attorney George Selden, who sued all the early auto makers, including Henry Ford, for infringing on his patent, which was granted in 1895.
Patent litigation and automobile product liability litigation is very much alive in the industry. The exhibit below shows the evolution of seatbelts from their introduction as mandatory features in 1964 to the introduction of emergency locking retractors (ELRs) in the 1970s and 1980s. It was used in a major product liability case.
In a case involving litigation over an automotive patent for a valve stem transmission device, we showed in a brief motion picture (just over one minute) how the device works, using a sensor.
In another patent case, we showed how two sensors work in tandem to activate air bags and how they respond to frontal, side, and oblique collisions.
In this Flash interactive exhibit, our information designers created a simple interface that allowed trial counsel in yet another patent infringement matter to illustrate how an engine and engine braking system works.
This type of litigation, as old as the automobile itself, is a mainstay of our work.
Since 1995, A2L Consulting has provided litigation consulting services to clients in Washington DC, Atlanta, New York, New Jersey, Virginia, Delaware, Philadelphia, Boston, Miami, Florida, Houston, San Antonio, Dallas, Texas, Chicago, Salt Lake City, Phoenix, San Francisco, San Diego, Silicon Valley, Los Angeles, California, Canada, the United Kingdom, Ireland and Europe. For litigators from all major law firms, we have provided litigation support and litigation consulting services including jury consulting, litigation graphics, litigation animation, trial presentation technology, e-briefs and trial technicians/hot seat operators.
Posted by Ken Lopez on Mon, Aug 29, 2011 @ 07:00 AM
Very often, trial attorneys in complex cases need to explain extremely difficult and elusive scientific concepts to jurors who are not well versed in science. The lawyer’s job is to convey the science correctly to the jury so that they can make a rational decision – yet not to bury the jury under a blizzard of scientific terms and concepts that they will never understand.
The answer is to use visuals in the form of photographs, schematic diagrams, animation, timelines, demonstrative evidence, document call outs or whatever is suited to the situation, and to explain them in terms that jurors who are not specialists in the scientific subject can understand.
Analogies (in other words, what is something like?), contrasts (how is something different from something else?), and simple definitions (what are the components of an object? how is it used?) are very useful tools for the trial lawyer.
As Jan D’Arcy wrote in 1998 in Technically Speaking, “Many scientific subjects are hard to describe; they can be difficult to see, touch, measure or imagine. A presenter should find ways to illuminate a concept in known terms with the least amount of distortion. . . . Comparisons and contrasts are two of the best ways to translate your information clearly to your audience. Similes, metaphors, and analogies are comparisons that can often lead to amazing insights.”
The brief movie below shows how restenosis (the formation of new blockages at the site of an angioplasty or stent placement) can form in blood vessels when a non-drug-eluting stent (one that does not contain an anti-stenosis drug) is used by a heart surgeon. This is a highly technical medical subject, yet after seeing the presentation, jurors will understand how stents work and why such drugs are used. Just months ago, this A2L Consulting animation and others like it helped a long-time client win the 6th largest patent litigation verdict in history totaling $593,000,000.
Below, we created a very straightforward, highly memorable patent litigation graphic that shows one person walking his own path, away from conventional wisdom, to show that an inventor’s idea was unique and non-obvious.
Similarly, we have devised a 78-second video presentation that details the challenges of inbred reproduction, and the advantages of hybrid reproduction, in the corn plant. This is easily understandable to a juror, even one who does not have a background in biology or food science.
Finally, the schematic diagram below uses the excellent analogy to the letters and numbers in a license plate – an object familiar to jurors – to indicate how many possible structures of a chemical compound can exist and thus how the one structure designed by a client was not obvious and therefore was deserving of patent protection.
As Matthew Weinberg, CEO of the scientific consulting firm The Weinberg Group notes, "Successful litigation relies upon a strong science story. An expert who can explain the science easily and clearly makes a difference. Juries want to understand the science and can be helped by an expert who makes it interesting and believable."
We believe that no scientific concept is too difficult to teach to a jury. In our 16 year history, we have found a way to successfully teach and persuade about everything from the genetic development of cancer, genetically modified corn, stem cells, physical separation in patented pharmaceuticals, metal fatigue, the transportation of air, water and ground pollution, DNA, bioequivalence, how allergies work, epidemiology, physics, chemistry and countless applied science medical principles.
With the right combination of trial team, trial consulting firm and expert consulting firm, any concept can be made understandable by combining a good explanation and a good visual.
Since 1995, A2L Consulting has provided litigation consulting services to clients in Washington DC, Atlanta, New York, New Jersey, Virginia, Delaware, Philadelphia, Boston, Miami, Florida, Houston, San Antonio, Dallas, Texas, Chicago, Salt Lake City, Phoenix, San Francisco, San Diego, Silicon Valley, Los Angeles, California, Canada, the United Kingdom, Ireland and Europe. For litigators from all major law firms, we have provided litigation support and litigation consulting services including jury consulting, litigation graphics, litigation animation, trial presentation technology, e-briefs and trial technicians/hot seat operators.