Posted by Ken Lopez on Fri, Oct 28, 2011 @ 12:44 PM
We have have created
courtroom presentations in banking cases almost since our very beginning nearly 17 years ago. From savings and loan litigation in the 1990s to IPO litigation stemming from the 2001 dotcom meltdown to ongoing banking fraud and bankruptcy litigation connected with the 2008 financial crisis, we have helped jurors understand complicated financial concepts that are at the heart of most banking litigation.
We have discussed earlier this year how a good
trial consultant can make complex financial concepts comprehensible to jurors by using courtroom presentations that relate to a juror’s basic understanding of life and personal experience. See our discussions of
collateralized debt obligations and of
securities litigation.
The same can apply to courtroom presentations for seemingly complex banking litigation. Since nearly all jurors have bank accounts and have used ATM’s, they have a basic sense of what banks do. So it often is not a long stretch for them to have an intuitive notion that banks are involved in complex ATM networks, that they sell profitable investment products to clients, or that they manage and move large sums of money. What is more difficult is explaining the details of how these things work.
In a straightforward courtroom presentation graphic below, we showed that the total revenue of a bank far exceeded the gross national product of Guatemala. We used a supermarket scale and money bags – a basic concept that any juror can follow – to make an indelible impression on the jurors.
In another very straightforward courtroom presentation graphic, we showed people sitting around a conference table as a partner in a major accounting firm told them about a highly questionable tax shelter that the firm was marketing. The “shady characters” are shown in shadow to emphasize the dubious nature of what they are doing.
In another courtroom presentation illustration for the same case, we portrayed this complicated financial transaction with an illustrated flow chart with seven steps, beginning with “Taxpayer realized Capital Gain” and ending with “Taxpayer Reports Loss to IRS.” Even if a juror does not fully understand the transaction on the same level as those who devised it, he or she certainly understands that somehow a “Capital Gain” was transformed into a “Loss” for the IRS. The juror has paid taxes and has never been able to convert a gain into a loss, we can be assured.
We also graphically portrayed how a worldwide ATM network functions. At the bottom of the courtroom presentation chart are the individual bank customers, who are faced with the possibility of paying a “foreign fee” and a “surcharge.”
Finally, for litigation involving the
BCCI bank scandal of the 1980s, we created a similar chart that showed the flow of money from various entities in that case to BCCI. This case represented our first billion dollar win. We've had hundreds since.
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 Theresa Villanueva on Tue, Oct 11, 2011 @ 07:24 AM
Most people, when they think of trial graphics, focus on exhibits to be used at trial. But graphics can also be used in motions and briefs presented to judges, even if jurors will never see them. After all, if you are using graphics to make your argument or tell your story at trial, why not use them at an earlier stage to make your argument convincingly in your brief?
In addition, a lawyer who introduces graphics early in a proceeding can lay the groundwork for later use at trial or in another aspect of the case. This can also give the lawyer a sense of how receptive the judge is to the use of trial graphics in the case.
Here are some tips for using graphics in your brief:
- First, keep it simple. The judge is, after all, reading a document, and the images need to be easily incorporated into the document. Motion pictures and similar animations obviously won’t work well -- unless of course you are submitting an e-brief.
- Second, consider the amount of space you have to work with. The image needs to fit into the space appropriately.
- Third, using color is OK; just because a trial graphic is embedded in a court document doesn’t mean it has to be in black and white.
- Fourth, using trial graphics to simplify a complex aspect of the case is one of the best possible uses.
Trial graphics can effectively be used to illuminate motions in a number of areas of law, including bankruptcy, patent litigation, and litigation involving highly technical areas of scientific research.
In the first example below, the issue regarding the patent was the curvature of the rails in the equipment. As a portion of the case itself involved graphics in the form of the geometric curve, the curvature was hard to explain verbally but was much easier to delineate in a sketch.
Second, in a bankruptcy matter, a law firm needed to explain the Continuous Linked Settlement (CLS) system that was carried out by CLS Bank to provide settlement services. The CLS settlement process is very difficult to explain, so we developed a series of graphics for use in a brief that explained the settlement and clearing process.
Finally, in a pro bono assignment that we undertook involving the interpretation of a prohibition on the use of federal funds for stem-cell research, a key issue emerged regarding the definition of the term “research” in an amendment passed by Congress.
Through a series of graphics that were incorporated in a memorandum in opposition to a motion for summary judgment, we illustrated our client’s position that the term “research” can be conceptualized in many different ways and that the opposing brief, in selecting just one of those interpretations, was interpreting the term arbitrarily.
In Figure 1, for example, we showed that stem-cell research can be defined as separate from the derivation of embryonic stem cells and is not identical with the derivation process. In Figure 2, we showed that the opposing brief was trying to group stem-cell research and the derivation process together, a conclusion that was not justified by the statute. And in Figure 3, we showed that it is even possible to interpret the term “research” to encompass an entire area of inquiry, thus preventing federal funding of a whole type of research in a way that Congress could not have intended.
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, Aug 23, 2011 @ 07:43 AM
Quite often, the subject matter at issue in a major trial is very complex and technical and is not intuitively obvious for a jury composed of laypersons, or even a judge, to understand.
In fact, that’s why trial consulting companies like us emerged in the early 1990s – to help lawyers explain in a clear visual manner what’s at stake in a case, so that judges and jurors will be able to understand the facts and make a well reasoned decision.
As a Texas trial lawyer has written, “The typical jury has a 14th-grade education, a 12th-grade comprehension level, and a 9th grade attention span. The implications of this are important in presenting scientific or technical information to a jury. For one thing, it means you cannot assume the jury will have any pre-existing knowledge or understanding of the information you are trying to convey, particularly if it involves a scientific or technical matter.”
In cases involving product liability, patents, the environment, antitrust, and other areas of law, courtroom presentations ranging from the most basic photograph or chart to the most complex computer-generated presentation have been a staple for sophisticated litigators for decades.
In securities litigation, however, lawyers have been much slower to adopt visual courtroom presentations that can help juries understand their cases. Yet as Wall Street has become much more complex than just stocks and bonds, quite often the issues in a securities trial have become every bit as opaque to the average juror with that 12th-grade comprehension level as a complicated patent infringement case would be.
Now, as litigation from the financial collapse of 2008 and 2009 is finding its way into court, jurors are being asked to understand and to pass judgment on complex financial matters such as collateralized debt obligations (CDOs).
A typical definition of a CDO is that it is “a type of structured asset-backed security (ABS) with multiple ‘tranches’ that are issued by special purpose entities (SPVs) and collateralized by debt obligations including bonds and loans.” This definition will make little or no sense to most jurors, and a lawyer who tries to present the concept on this level in a courtroom will have little or no success.
Below, we use a new presentation tool called Prezi to explain CDOs in an intuitive way that is tailored to help juror understanding. Like much of our work in securities litigation, this is not a trial graphics-heavy presentation at all. Rather, our work was spent on how to best tell the story more than how to show it.
Use the play button or your right arrow to step through the presentation.
Zoom in or out, move to other sections of the presentation and return
to the script by hitting the play or back key.
Prezi is a new type of presentation program that permits the litigator to create non-linear courtroom presentations and to escape the sameness that sometimes pervades PowerPoint exhibits. Rather than slides, Prezi relies on a large canvas or mind-map type of presentation that permits the viewers to zoom in and out of a visual story.
This Prezi exhibit shows how CDOs are created, packaged and sold and how the flow of mortgage income keeps them afloat in good times – and what happens when mortgage payments dry up.
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, Jul 25, 2011 @ 08:30 AM
All good trial exhibits have one thing in common: They are able to appeal to juries by referring to ideas, principles, objects, or locations that jurors already know about in their daily lives.
For example, a trial lawyer may need to show how large, or how small, something at issue in the litigation actually is. An effective way of doing this is to relate it to the size or scope of an object with which a juror has personal experience.
We have prepared many exhibits that work in this manner. Not only do they give the jurors useful information but they also do this in a manner that jurors will easily recall when it comes time to deliberate. If we can present something as being “as large as a football field,” for example, we can lock that picture into the jurors’ minds.
1) HOW FAST: In the below graphic that we used in a medical malpractice case, evidence showed that a radiologist rushed his work and missed cancer diagnoses. He read X-ray films three times as fast as an average radiologist. What did that mean? Jurors know that “speed kills,” and a very effective trial exhibit compared that speed to traveling three times the speed limit on a highway – 210 miles per hour instead of 70. That intrinsically seems reckless.
2) HOW MUCH TIME: In the graphic below, evidence proved that conspirators in a government contract dispute in New Orleans had spent 3,548 minutes on the phone. That number by itself would probably mean nothing to a jury. We translated that fact into a graphic that showed that in 3,548 minutes, someone could drive from New Orleans to Wasilla, Alaska (an election year reference). In that amount of time, a lot of conspiring could be accomplished.
3) HOW LITTLE IMPACT: In a securities case, we likened the plaintiff’s allegation that a single stock purchase affected the stock price of a company for 14 months to the notion that a single runner’s taking the lead in a marathon for eight minutes affected all 35,000 contestants in the three- to four-hour race. That defies common sense, and jurors could conclude that the allegation regarding the stock price also defied common sense.
4) HOW MANY: In a Miami discovery dispute, we provided a graphic (below) of Pro Player Stadium (the then name of what is now the city’s Sun Life Stadium), with a seating capacity of 75,000. If that was the universe of all the documents at issue, the number that related to one client was a small portion of one section of the stadium, we showed.
5) HOW LITTLE: In an environmental case, our exhibit (below) showed that the cleanup costs at issue, when compared with the company’s annual sales, were the proverbial “drop in a bucket.” That is far easier for a juror to remember than the numbers $20 million out of $4.4 billion.
6) HOW MUCH: In this environmental insurance coverage litigation exhibit, the capacity of an underground tank farm is related to above ground pools. It was a small amount of property and the capacity of the tanks was surprising when conveyed in this way.
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, May 12, 2011 @ 10:00 AM
Presenting securities cases to juries can involve difficult problems. Many jurors may have investments in the stock market or in mutual funds, directly or through their retirement plans, and may have some sense of how securities markets work. Some jurors, on the other hand, find all financial matters to be daunting. Furthermore, even fairly sophisticated jurors don’t have a good knowledge of accounting terms or of securities law concepts such as “causation” and “fraud,” which may have quite different shades of meaning in the law from their meanings in everyday life.
Thus, it is extremely important to present securities cases, which may involve issues of insider trading, fraud, or self-dealing, in ways that a jury can understand based on their basic knowledge of how a market works and their day-to-day sense of fairness.
In 2009, Kevin LaCroix, an attorney and insurance executive, wrote on his blog that covers issues of directors and officers liability, that in a particularly complicated securities case, an attorney referred in his opening statement to “EBIDTA; purchase accounting; debt service; noncash earnings; nonoperational accounting entries; free cash flow; liquidity; and dividends.” Another opening statement cited “negative cash flow; generally accepted accounting principles; and market capitalization,” and another referred to “options exercises; hedging and hedging transactions; and tax advantages.”
LaCroix concluded, “It is not that juries are incapable of figuring out these kinds of things. The problem is that these kinds of things put an enormous burden on the lawyers, the witnesses and the court to keep things clear; to avoid letting the trial get bogged down in technical minutiae; and making sure the jury is neither confused nor bored to death.”
We have produced litigation graphics that are appropriate for jurors at all levels of knowledge. One basic and successful trial exhibit that we prepared simply asks, “What Is a Stock Exchange?” and responds that like a supermarket for groceries, a stock exchange is simply a central location to purchase the stocks of various companies. This is illustrated by a graphic of a supermarket and of the New York Stock Exchange, with examples of what is offered at each.
Originally printed as a large format trial board, another of our litigation graphics that answers a more sophisticated question is composed of 50,000 small dots, each representing the trade of 10,000 shares of stock. One tiny dot in the vast matrix represents the trades that were the subject of the lawsuit involving allegedly improper laddering transactions. The caption next to the dot reads, “Defying common sense, this dot would have to affect all others.” This caption appeals to jurors’ sense of logic, and the vast sea of dots is a memorable image.
In yet another case, we produced a set of line graphs in PowerPoint to show that over a period of time, a major investment bank was reducing its exposure to one country’s debt privately, while promoting the debt publicly. Again, a graphic illustration forms a clear depiction of a basic securities-law principle: One shouldn’t say one thing publicly while doing the opposite in private.
By appealing to a juror's common sense and using litigation graphics, a trial team can persuade even the most financially ignorant in securities litigation.
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.