Posted by Ken Lopez on Tue, Apr 24, 2012 @ 11:12 AM
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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Posted by Ken Lopez on Mon, Mar 12, 2012 @ 07:02 AM
Because maps are used by jurors constantly in their daily life and because they are so frequently used to represent common locations and processes, they are one of the most frequently used and most effective types of demonstrative evidence. Whenever something can be conveyed geographically, through the use of space, it is worth considering the use of a map. Even though maps don’t always represent the highest and newest technology, their importance cannot be underestimated.
In the words of Ray Moses of the Center for Criminal Justice Advocacy, which was formed in Texas as a grass-roots training resource to help new lawyers in becoming competent criminal trial practitioners: “Visuals (graphics) such as time lines, charts, illustrations, maps, etc. are sufficiently important to communicating your message that you owe it to your client and yourself to learn how to incorporate visuals into your presentation.”
We have used maps in any number of ways as demonstrative evidence to help make our clients’ cases understandable to juries and judges. Here are a few of them.
The demonstrative exhibit below is a screen capture of a PowerPoint interactive trial presentation developed to show that an area was not actually a wetland. Specific spots on the map are pegged to portions of a video that show that there is no water channel in the affected area.
The below animated demonstrative map is a screen capture of a PowerPoint interactive demonstration developed to show how New York City gets its water supply. The demonstrative graphic successfully combines the known geography of the New York State region with the actual flow of water from the reservoirs.
The next demonstrative exhibit, below, is a screen capture of a PowerPoint trial presentation developed to show how a conflict of interest was vetted in a government contracting False Claims Act dispute. This map is an excellent example of demonstrative evidence. It shows the entire United States and the locations in which vetting officers were located.
The final piece of demonstrative evidence is a map of the United States showing where various air taxi helicopter accidents occurred, to show that they are a very small percentage of all general aviation accidents.
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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Posted by Ken Lopez on Fri, Feb 17, 2012 @ 11:54 AM
Pharmaceutical companies can be embroiled in many types of litigation. Very often, because of the length of time and the tremendous investment of money that it takes to develop a new drug and bring it to market, these cases can be crucial to the company’s continuing financial health.
For this reason, it is crucial that a litigator make these often complex cases understandable for the fact-finder, whether judge or jury. Once understanding is achieved, persuasive graphics and argument can be layered on top of that understanding.
Among the types of cases that pharma companies can frequently encounter are:
- Products liability cases. Often, plaintiffs and their lawyers use pharma cases as attempts to develop new theories of liability and to establish new theories of causation of harm. The defendant drug companies and their law firms need to explain to jurors, who are likely to be suspicious of big pharma companies, why the company should not be held liable. Making complex information understandable in these cases is essential.
- False Claims Act cases. Under the False Claims Act, someone who believes that the government has been defrauded can bring a case that the Department of Justice has the option of joining. These cases can include charges of billing fraud, kickbacks, violations of good manufacturing practices, wrongdoing in clinical research, and other allegations.
- Antitrust litigation. As is true of many industries with only a few large participants, the pharma industry is often the target of antitrust cases. These can be either civil or criminal in nature and can be brought either by the government or by private parties. They can include allegations of monopolization of the market for a drug, charges that a merger is illegal, or allegations of illegal collusion among competitors.
- Patent litigation. This type of litigation has become common because of the passage of the Hatch-Waxman Act in 1984. The act provides a mechanism for generic drug companies to quickly gain approval to sell a generic version of an existing brand name drug. Here, the complexities of the process can be a struggle for a jury. Thus, the use of litigation graphics is essential to make complex information understandable.
For example, under Hatch-Waxman, the application that begins the FDA approval process for the generic firm is called an Abbreviated New Drug Application (ANDA). Brand name drug manufacturers have an understandable incentive to delay approval of the ANDA. If that approval is delayed, the brand name firm continues to be able to lawfully sell its brand name drug without a lower priced generic equivalent in the market. One lawful mechanism that brand name companies can use that may have the effect of delaying the approval of an ANDA is the filing of a Citizen Petition with the FDA.
A Citizen Petition filed by a brand name firm would typically allege that the proposed generic drug is not equivalent to the brand name drug and thus should not be approved for sale. Should the Citizen Petition be deemed only a mechanism for delaying approval of the generic drug rather than one filed with the public's health interest at heart, the brand name firm would be liable for antitrust violations.
In a case of this type, our challenge in creating an effective trial presentation was to create trial exhibits that taught the jury and persuaded the jury simultaneously. The trial exhibits (below) were part of a PowerPoint presentation that explained how differently Citizen Petitions and ANDAs are handled at the FDA.
Similarly, in the “Hatch Waxman ANDA Bioequivalency Exhibit” (below), the straightforward area graphs show a jury how the proposed generic drug has a different concentration level and is thus not bioequivalent. This exhibit helped lead to a complete defense verdict for our client, a major pharmaceutical company.
Often pharmaceutical litigation involves topics at the microscopic level, and it is in such instances that making complex information understandable becomes especially critical. In the short animation below, we demonstrate how an impenetrable layer is created by a polymer. This explanation was critical to a jury's understanding in patent litigation worth hundreds of millions of dollars.
Paraphrasing Mark Twain, if litigators had more time to prepare, they would usually make a shorter presentation that is easy to understand. The key to a shorter, more efficient presentation is taking the necessary time to make complex information easy to understand or hiring an effective demonstrative evidence/litigation consulting firm. Like many aspects of A2L Consulting's work, making the complex understandable is simple but not at all easy.
Learn more about A2L Consulting's work:
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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Posted by Ken Lopez on Fri, Feb 10, 2012 @ 08:38 AM
Litigation involving architecture usually involves some failure in the construction process, a dispute over lease terms like sight lines or common areas, an insurance claim involving an allegedly negligent design, or the responsibility for a building damaged in a natural disaster.
Since most jurors are familiar with architecture to some degree, what usually has to be explained is the legal meaning of seemingly everyday terms, the process of design and construction, or the common customs of the architectural and construction businesses. That's where legal graphics often enter the picture.
Architecture-related litigation, especially when major damage has occurred, can involve high stakes. As a law firm that works in the area has written [pdf],
The goriest photos, the most damning letters from the builder, the contract specifications, juxtaposed with the defense expert's field notes stating that some critical element is missing and noting damage. That's what the attorney begins assembling, and in some logical, meaningful manner, if possible.
* * *
As the trial date approaches, court-imposed deadlines for exchange of motions become the new reality. Trial briefs, responses and replies on legal issues; motions seeking to prevent introduction of evidence (also called motions in limine); exhibit lists, witness lists and a myriad of other tasks are due. The exhibit and jury consultants must be summoned to assist in creating oversize photos, boards, demonstrative exhibits, models, flow charts, and any other visual aid that might help in keeping the jury focused on the facts, and on "our" side of the case.
We have had considerable experience creating legal graphics in many types of litigation that center around architecture and design. For example, when buildings are damaged as a result of a natural disaster such as a hurricane or tornado, litigation often follows. In the legal graphic presentation below, we created an interactive PowerPoint map of a building to show the damage from many perspectives.
In a very different kind of matter, we are frequently involved in disputes involving commercial leases in which millions of dollars are at stake. Below, a simple legal graphics site tour comes to life with interactive photos of the office areas in question linked to the floor plan. This presentation made an otherwise dry exhibit much more gripping.
In the case below, the issue in a landlord-tenant commercial dispute was whether the architectural sight lines permitted a retailer’s branding to be clearly seen. The planned new plaza would introduce new sight lines and possibly breach the lease. Our courtroom legal graphics showed how that occurred.
With careful planning, legal graphics can help any architecture related dispute be understandable and those same legal graphics can help persuade the fact-finder that your position is correct based on the facts and law. This is true whether the architectural dispute relates to design, construction, landlord-tenant issues, insurance coverage, environmental issues or a dispute over a contract.
Other useful resources on A2L Consulting's site related to architecture litigation:
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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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:
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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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:
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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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?)
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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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:
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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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:
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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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.
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