Posted by Ken Lopez on Thu, Jan 26, 2012 @ 07:58 AM
White-collar criminal litigation is one area in which practitioners have not been as quick to adopt the use of litigation graphics as in other litigation areas such as intellectual property, environmental litigation, or products liability.
However, we are seeing more white-collar work at A2L Consulting than ever before. It seems that defense lawyers are realizing that these days, many federal criminal laws, and alleged violations thereof, can be just as complex as a patent dispute or a commercial case.
Our white-collar criminal work usually involves helping an individual accused of a crime avoid indictment or in aiding in the defense at trial. More often than not, the allegations relate to some financial fraud and our work over the years, either for the prosecution or defense, has involved WorldCom, Enron, Celebrities, Polititions and even Usama Bin Laden (our UBL-related work was on the prosecution side).
In a fascinating article published last year in a legal periodical, Kerri Ruttenberg, a litigation partner at Jones Day, summarized a white-collar criminal case in which she used litigation graphics to illustrate the complex issues:
I often use a flow chart or timeline to condense large amounts of testimony or other evidence into a single visual exhibit to facilitate the jury's assimilation of that information. I build the chart or timeline gradually in front of the jury to control the jurors' intake of the information, and I use other design elements to reinforce key themes. For instance, during a complex white collar trial in federal court that lasted nearly four months, the evidence established that three individuals took many actions to further an accounting fraud. But my client had no knowledge of and did not participate in those activities, despite the government's allegations to the contrary. I designed the closing argument so that all of the visuals distinguished between my client (with blue slides), and the other individuals (with red slides). Later in the closing, a timeline was an effective tool for assimilating all of the incidents alleged by the government, and the blue and the red came together to graphically reinforce a key defense theme - that others (in red) consistently took unlawful actions while my client (in blue) was engaged elsewhere. Even if the jurors failed to remember each incident depicted on the timeline, they would recall the red and blue distinction and therefore would recall this important, overarching defense theme.
Ruttenberg also wrote that she uses high technology when needed but that she found a low-tech solution helpful in a white-collar case when a surveillance video was at issue:
I tested the video using a laptop, projector and large screen, but the image was too dark. So, for my closing argument, I abandoned technology entirely and instead used a large foam board to display stills from the videos arranged like a film strip. The images were clear and bright, and I held them up for the jury as I walked from one end of the jury box to the other, pointing out the important details. The jurors had a great view and were clearly engaged in the presentation, leaning forward and taking notes.
Our litigation graphics experience has been similar in white collar cases. At A2L, when a celebrity was accused of a crime, we sprung into action working 24/7 to arrange a team of artists who could help demonstrate to prosecutors, through illustration and through a group of posed actors, that the alleged crime could not have occurred as described.
In a fraud case, working for the prosecution, we developed litigation graphics, such as the PowerPoint closing below that incorporated several classic demonstrative elements cleverly into one chart. In effect, it is a players chart, a timeline and an elements/verdict form demonstrative exhibit all in one litigation graphic.
In another case where we assisted in the defense of a public official, we used a common technique during closing litigation graphics to show how many counts could not be proved and also emphasized the standard of proof.
Recall always the fundamental reason that litigation graphics emerged as an industry 25 years ago. Almost two-thirds of the population prefers to take in information visually, and on average, only 2 jurors in a 12 person jury prefer to learn by listening. If you are not supplementing a well crafted argument with litigation graphics that are more than just words on a slide, you are likely to be misunderstood by most jurors and many judges.
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 Nina Doherty on Tue, Jan 24, 2012 @ 04:00 PM
by Nina Doherty
National Director, Business Development
A2L Consulting
In an era in which clients are scrutinizing their legal bills and negotiating discounts and alternative fee arrangements with their law firms, it is no surprise that they are also looking closely at the bottom line when it comes to litigation support costs. Of course, that includes the costs of litigation graphics, trial technology, and the other litigation consulting services that we provide. In the typical piece of litigation, most of those costs are incurred in the months and weeks just before trial – and they can seem expensive to a client who is not accustomed to dealing with these services.
At A2L, our invoice pales in comparison with that of the law firm(s) that we work with. (We usually estimate that it will run between half of 1 percent of the legal fees at the low end, and 5 percent at the high end.) Still, the litigator who is the client’s chief contact in the law firm must often justify the value of litigation consulting services to a client who may not be familiar with the requirements of modern litigation.
Here are some points that a trial lawyer can make to a client in a high-stakes case that shows the value of our work.
Litigation Graphics: For our litigation graphics services, it is well documented that 60 percent of human beings, and thus 60 percent of jurors, are visual learners. A compelling and clear visual presentation can help ensure that the client’s case is easily conveyed and understood. In order to create such a presentation, a litigation consulting firm requires a specialized graphic artist’s skills. This is not a matter of “dumbing down” the presentation; quite the contrary, it is difficult and challenging to convey complex ideas to jurors.
In addition, when we use a mix of mediums such as presentation boards, PowerPoint, 3-D scale models, document call-outs and highlighting, we minimize jurors’ boredom and keep them interested in the client’s case. Finally, when we create graphics for mock jury exercises, we are testing case themes and helping the client decide which ones will be presented at trial.
Trial Technology/Hot-Seaters: For our trial technology services, it’s important to note that in an age of “CSI” and “Law and Order,” jurors expect a seamless performance by the legal team. The use of a “hot seat operator” permits the client’s lawyers to focus on their presentation, not on the technology supporting it. The jurors like to think that the lawyers respect their time by making presentations that go off perfectly, without glitches. And since the other side’s lawyers will probably be using similar technology, it is important to keep up with them or even to surpass them in skill.
Trial & Jury Consulting: Jury research and witness preparation can easily be seen as having direct and immediate effects on the client’s litigation success. A mock jury or focus group can provide crucial information about whether the trial plan is the best one possible and can further determine whether a trial is a good idea in the first place. Preparing witnesses is vital to ensuring that their testimony will have the desired effect. And the use of jury experts during jury selection can help the client obtain the best pool of fact finders for winning the case.
Ebriefs: For electronic brief production, the filing of briefs in electronic format is becoming a preferred mode or even a requirement in some courts. Electronic hyperlinking of citations in a brief makes it easier for judges and their clerks to access the client’s briefs anywhere and at any time – even on their iPads.
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, Jan 17, 2012 @ 09:43 AM
At first it sounds like something out of science fiction, but 3D printing has arrived – and it can be very helpful to the litigator and litigation consultant.
In 3D printing, which was invented in 2003, the user either electronically sculpts or scans nearly any object into the printer, using a computer-assisted design (CAD) program to tinker with the color and shape of the object when necessary. It can be a hand tool, an architectural model, an auto part – nearly anything within a reasonable size limitation. The printer does the rest.
When you press “print,” the printer builds up a three-dimensional replica of the object gradually, by adding material one layer at a time in plastic or metal. In a short time, you have a new solid object in your hand. It is hard to believe, but this process creates usable, functional objects. A tool such as an adjustable wrench can be “built” on this type of printer, using an existing wrench or a 3D model as a template.
While futurists are already speculating on whether this technology, once its price is reduced, will revolutionize manufacturing or even become the basis for a new type of industrial revolution, we are already planning on using it for trial exhibits in the courtroom.
At A2L Consulting, we are able to adapt this technology to offer a new option for demonstrative evidence. We can create miniature scale models of buildings in a construction case or larger models of tiny parts that can be at issue in a patent case. Previously, these types of replicas had to be sculpted by hand by artisans – a much more lengthy and expensive process.
In a case involving medical malpractice, a 3D printer can create a model of the body part in question, showing the damage or injury. A good example would be a 3D model of a spinal cord injury, which can be built up from a 3D medical image.
The cost of these printers is already beginning to come down, so we expect that their use will only expand in the coming decades. We are one of the first trial exhibit providers to offer this technology.
As is always true in the trial technology industry, anything that helps a juror understand or visualize the issues at trial is extremely helpful. Many jurors are visual learners and will naturally gravitate towards a 3D object during their deliberations, since it “tells a story” for them.
The short video below will give you a good idea of how this technology can be used. A2L Consulting has the ability to perform 3D printing operations for litigation in most major cities.
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, 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 Thu, Dec 22, 2011 @ 01:33 PM
Expert witnesses can be an extremely valuable portion of your case. If they are well-prepared, convincing and convey a clear, uncomplicated message to the jury, their testimony can lead directly to a verdict in your favor. If they are unconvincing and don’t communicate well, they are at best useless and at worst damaging to the case.
The essential problem is that expert witnesses – whether they are testifying on engineering, scientific, financial, or other issues – tend to be very intelligent and knowledgeable. At the same time, however, they are prone to using terms that are well above the jury’s experience and educational levels and thus these experts are prone to be dismissed by some jurors as ivory-tower types who have nothing useful to say.
We believe our firm plays several important roles helping expert witnesses get prepped for trial. Since our goal is winning by telling a clear and convincing story, the value of expert testimony must be maximized in each case. Expert witnesses are an essential piece of the litigation persuasion puzzle.
Here are our seven tips for preparing expert witnesses and expert testimony to the best effect possible:
- USE VISUAL COMMUNICATIONS TOOLS: Use litigation graphics as demonstrative evidence to help the expert explain his or her opinion. No testimony, however favorable to your cause, is helpful if jurors don’t understand it. Don’t simply rely on whatever Excel charts or graphics the expert may have included in his or her report. Those are designed for lawyers and specialists in the field to understand, not for the jurors. Two-thirds of jurors learn primarily through visual means, and the expert’s testimony is no exception.
- PREP WITH A TRIAL TECH: Have your hot-seat trial technicians practice direct testimony with the expert. Even experts who have testified before need to remain familiar with the flow of seeing documents presented in real time, making requests for live call-outs and highlights and working with demonstrative evidence. Experts are more likely to focus on their research and their conclusions than on the potential jurors’ responses to the information.
- PRACTICE DIRECT EXAMINATION: It is remarkable how often, in the rush to prepare for trial; expert witnesses go basically unprepared in high-stakes cases. Every bit of direct testimony should be practiced. Direct should be like driving a high performance automobile on the autobahn, exhilarating but quite predictable.
- PRACTICE CROSS EXAMINATION: The importance of this cannot be overstated. An expert witness can make a great impression on direct examination, but a cross-examiner can be ready with one or two devastating questions that cast doubt in jurors’ minds on the expert’s conclusions, or even worse, on his or her methods and techniques. You should go over all possible lines of cross-examination and be ready for them. Very often, the same attorney who will ask questions on direct will prepare the witness for cross. We recommend recruiting a less friendly face from within the firm to ask questions to prep the witness.
- VIDEO AND REVIEW: Record a practice session for both direct and cross-examination. Review it. Refine it. Re-record it. Repeat until you are satisfied.
- USE EXPERTS AT A MOCK: We recommend testing expert witnesses in a mock trial format to see what lines of testimony work the most effectively. For some mock trials different strategies for the same expert can be tested.
- KEEP IT SIMPLE: No matter how complicated the issues at trial may be, the jurors need to remember a point or two from the expert’s testimony that they will understand. Get past the technicalities. You want the jurors to think something like this: “Remember what that expert said -- as much as the prosecutor was condemning the defendants for these commodities trades, they’re basically no different from trades that people do on the exchanges every single day.”
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 13, 2011 @ 08:30 AM
Trademark cases are one type of case that lends itself well to the use of graphics. That may seem obvious since in most such cases, the object under dispute is a trademark – something that is itself often an item of graphic design, or at the very least a word or phrase that is easy to visualize. So one would expect that courtroom visuals would help jurors a great deal in trademark cases.
This analysis is true to some extent, in that the litigation team will wish to introduce the trademarks into evidence so that the jury can look at them and often see some obvious similarities or differences from other marks.
However, that is not usually where the analysis ends. Trademark law can be surprisingly complex and doesn’t always follow common-sense rules. Trademark trials can turn on esoteric concepts like reverse confusion, a mark that is found to be “deceptively misdescriptive,” and similar ideas.
David C. Hilliard, a name partner at Pattishall McAuliffe, Newbury, Hilliard & Geraldson, a top Chicago-based intellectual property law firm, has written that for a trial in which BASF was defending its right to use the trademark “Galaxy” for its herbicide [link is PDF], he had planned to use an effective courtroom graphic. He wrote, “For the BASF trial, we had prepared a display board that showed there were 220 Galaxy companies in existence in the midwestern United States. It was strong support for our argument that one more wouldn't infringe plaintiff's rights any more than the other 220 did.” As it happened, the graphic was not introduced into evidence, but Hilliard would certainly have introduced it under other circumstances.
In the same article, Hilliard noted that in a case involving infringement of a potato chip packaging trademark, “In Frito Lay v. Bachman, we used a visual display which featured admissions during discovery by Bachman's president of intentional trademark infringement.
Q: Were you concerned that [your] package would be confused by the public with the more popular RUFFLES package?
A: Some would confuse it with one that looks like it, yes.”
Similarly, at A2L Consulting, we used the graphic below to show that under any circumstance, the existence of a cheap knock-off brand would not cause post-sale confusion and would thus not have a significant market effect on a high-end company.
In the graphic below, we illustrated the principle that the customers of dining establishments, bars, and hotels overlap and that the infringement of a trademark for one of those types of businesses could lead to unfair competition with a trademark for another of these types of businesses, thus causing consumer confusion in the marketplace.
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, Nov 22, 2011 @ 09:13 AM
Discovery disputes have always been a staple of litigation. And now that electronic discovery has pretty much supplanted the old-fashioned discovery of paper documents, the disputes have only become more complicated and more bitter. As a result, our firm is increasingly called upon to create courtroom presentations for discovery dispute hearings.
In the past ten years, e-discovery consulting firms have come to dominate the litigation support field, providing their expertise in a rapidly changing and highly technical field. That is not the only new development in this field.
First, many law firms that are representing clients in document-heavy pieces of litigation have begun to hire “discovery counsel,” law firms that specialize in discovery alone and don’t promote their expertise in other areas of law. One such firm says on its website that it devotes “all of our resources to the successful execution of document collections, reviews, and productions.”
Second, many traditional law firms are setting up dedicated practice groups to address e-discovery and records management issues. These lawyers’ primary job is to help the firm’s general litigators in dealing with e-discovery issues that may come up.
Finally, as an excellent article by a K&L Gates partner points out, “some companies have hired National e-Discovery Counsel to handle e-discovery issues in all of their litigation matters nationally and/or internationally.”
As the article points out, these companies have several advantages: They have one firm that is fully up to speed on their information systems; they have developed uniform practices and procedures for discovery; and they can achieve some cost savings by reusing their databases.
Whoever the players are in a particular case, there’s little doubt that the advent of e-discovery has resulted in more discovery battles than there ever used to be.
That is where a courtroom presentation consultant can come in. Sometimes the consultant’s role is to demonstrate what documents were missing and why sanctions are warranted. Sometimes the graphics illustrate, to the contrary, that the matter in dispute is not large enough to warrant sanctions.
Dan Regard, leading testifying e-discovery expert and Managing Director of iDiscovery Solutions notes, "we are often brought in by clients not only to understand a complex situation, but to help explain it to a trier of fact. I prefer when we work with the courtroom presentation artists, because at the end of the day our job is easier and the message is clearer."
The three courtroom presentation exhibits below were all used in pre-trial hearings after a discovery dispute had erupted. Each of them uses a familiar analogy to show that only a small number of pages or emails are at issue.
In the first courtroom presentation graphic (below), we showed that the number of relevant emails is equivalent to only 3.6 pages from the Encyclopedia Britannica.
In the second courtroom presentation graphic (below), we used tall stacks of paper to indicate that out of 8,000 pages, there were only 13 unique emails and attachments.
In the third courtroom presentation trial graphic (below), we created a schematic of a pro football stadium to show that if compared with the whole universe of documents, the ones that relate to Morgan Stanley was only the equivalent of 114 spectators in the whole stadium.
Courtroom presentations are a valuable weapon in discovery hearings. When done correctly, the right trial graphics can help a litigator prevail in these ever more acrimonious disputes.
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 Fri, Nov 04, 2011 @ 06:39 AM
Since most complex trials deal with issues and subjects that are well outside the ordinary person’s experience, a trial lawyer’s job, and by extension that of a litigation consultant, is to help the jurors understand these topics. One of the best ways of doing this is by using analogy and metaphor courtroom exhibits – in other words, by showing how the complicated scientific or legal concepts in the trial are similar to things that a juror sees every day.
A metaphor is defined as a figure of speech that uses one thing to mean another and makes a comparison between the two. An analogy is defined as a logical argument that shows how two things are alike by pointing out shared characteristics, with the goal of showing that if two things are similar in some ways, they are similar in other ways as well.
In the presentation of evidence with courtroom exhibits, metaphor and analogy are used together to achieve a result – that the jurors understand a concept that might have been foreign to them. For example, a lawyer might tell the jury, “The stock market is a supermarket.” Well, the stock market isn’t literally a supermarket, so that is a metaphor; it uses the term “supermarket” to refer to the stock market. Then a courtroom exhibit could point out the points of similarity between a supermarket and the stock market, with the result that the jury would think of the stock market as a market and would treat events in the trial that occurred in the market as if they occurred in the market.
Here are some metaphors and analogies that we have used and that have been successful:
To show that a patent must be precisely and narrowly defined, we used the courtroom exhibit (below) that compares a patent with a piece of land whose boundaries are precisely stated. Just as a jury would think there’s something amiss with a property whose boundaries are unclear, they would think the same of an ill-defined patent.
We made an analogy in the courtroom exhibit (below) between a data CD and a legal pad. Information can be written on the CD, erased from it, or recovered from it just as if it were written in pencil on a legal pad. In effect, the CD is, metaphorically, a legal pad.
In explaining a data transfer controller patent (below), we analogized it to a highway. Just as automobiles merge onto a highway, data signals are transferred by the controller from the “local bus” to the “remote bus.”
In showing that a nuclear power company incurs storage costs, including direct and indirect costs, we made an analogy with an automobile repair shop (below), which may need to store unused oil if it is not picked up.
In depicting a sequence of events leading to a home explosion from a gas leak, we made an analogy to a ticking time bomb. In this courtroom exhibit, the metaphor is a visual one, as the sequence of events (below) is “wrapped around” dynamite sticks.
Finally, when we needed to show the distinction between drying an object by forced air versus radiant heat, we made the visual analogy to someone drying her hair (below). Either process would dry hair, but they are different processes.
Experienced litigators frequently tell us that they avoid using analogies, because the analogy might be "flipped" and used against them by opposing counsel. In our experience, 1) this almost never happens; 2) when opposing counsel attempts it, the judge or jury can usually see through the attempt and it carries little weight; and 3) by using courtroom exhibits to depict the analogy or metaphor, opposing counsel's ability to change its meaning is much more limited.
Finally, as far as discovering the best and most effective analogy/metaphor for your courtroom exhibits, we recommend one of two approaches. Either, 1) conduct a mock trial and listen to what the mock jurors come up with; or 2) work with your litigation consultants to choose several analogies and test them with a lay audience in a mock trial setting or test them through conversations with people unfamiliar with the 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.