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Ryan Flax

Ryan Flax
Ryan H. Flax was A2L Consulting’s Managing Director of Litigation Consulting (and also its General Counsel) from the Spring of 2012 until February 2016. He has moved on to become an Administrative Patent Judge with the United States Patent and Trademark Office’s Patent Trial and Appeal Board (PTAB). Mr. Flax joined A2L Consulting after practicing Intellectual Property (IP) law as part of the Intellectual Property group at Dickstein Shapiro LLP (now Blank Rome LLP). Mr. Flax is also an adjunct professor of law, teaching advanced trial advocacy at American University's Washington College of Law in Washington, DC. In 2015, The National Institute of Trial Advocacy published his book, SwimTime, Corp. v. Water-Fun, Inc., which is a case file. Ryan earned his Bachelor of Science degree in Biology from Wake Forest University and his Juris Doctor degree from Southern Methodist University Dedman School of Law. Between his undergraduate studies and law school, Ryan was a Laboratory Scientist conducting DNA research at the R.J. Reynolds Tobacco Company. Questions you might have for Ryan Flax about A2L can now be answered by Tony Klapper, Managing Director of Litigation Consulting and General Counsel of A2L
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by Ryan H. Flax (Former) Managing Director, Litigation Consulting A2L Consulting Sometimes a trial graphic really does make the difference. We can’t say that in each case we’re involved in, a trial graphic likely won the case or played a major role in the win. We support some of the best lawyers in the country and they use the tools we provide to do what they do at trial. Usually we’re there to make sure they do the best they can do, but sometimes we provide that key image or animation (and the associated consulting input) that really clicks with a judge or jury and enables the win. Here’s a recent example. “Insert, Pivot, and Lock” This was a patent infringement case before the U.S. International Trade Commission concerning the connection mechanism between automobile windshield wiper blades and wiper arms – that little piece of plastic that might as well be a Rubik’s cube for most of us almost every time we need to change our wiper blades. Our client held several patents covering a very special wiper blade connector that was being ripped off by a competitor. To win at trial (final hearing at the ITC), we had to get the judge to agree to our way of understanding the rather verbose patent claim language covering what was a simple, although elegant, invention. Here’s an example of the claim language captured as an image from the patent: I’d say that this is a challenging read, whether you’re a judge, a patent attorney, or a fast food restaurant cashier. It’s pretty technically complex and rather long. Definitely “lawyery.” No doubt that it satisfies the legal requirements for claim language, but it almost takes one’s breath away. We needed to distill this language and the concepts behind it into something that was easily understandable, but we couldn’t be over-argumentative about it. Upon reading this claim language with the benefit of the rest of the patent’s disclosure and the reader’s own common sense, the invention had to seem simple (but elegant). With that understanding, how do you do it?

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by Ryan H. Flax (Former) Managing Director, Litigation Consulting & General Counsel A2L Consulting It’s always interesting to me how humans view and judge each other. We all do it almost all of the time, in every interaction with other people. We even do it when we don’t even interact with others, for example, while driving or watching TV. We develop little dramas and characters in our minds to make sense of the world around us and its characters. This is particularly important in my profession, where my goal is to help litigators frame their case or showcase their client in a compelling and engaging way for judge or jury. I’ve just watched the video below and it highlights how important it is to frame our clients’ character correctly when we want a decision maker to see things our way. That “correct” way of introducing our client is whatever way will result in a decision in our favor – Ask: what would make the judge or jury feel our client should prevail?

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by Ryan H. Flax, Esq. (Former) Managing Director, Litigation Consulting & General Counsel A2L Consulting I’ve passed another anniversary at A2L Consulting and in my time as a litigation consultant I’ve been both surprised and reassured about the state of the litigation business and its players (I also wrote about my surprises upon beginning my career as a litigation consultant). I’ve seen both the very best and quite bad litigators in action and have consulted for both. Although some litigators don’t live up to my high standards, I’m impressed by many litigators as both professionals and people. Here are seven of my observations over these years that I think might help you in your practice. Many Lawyers Confuse Chronology With Storytelling It is almost universally accepted that storytelling is important to engaging an audience (including a jury) and that framing a client’s case as a compelling story is key to doing your best at trial, particularly in opening statements. But more often than not, when I ask a litigation team what their client's story is, rather than explain “why we’re really here” as they would to a jury and illustrate some conflict and emotionally valuable moral that is critical to juror engagement, they rattle off some chronological series of events that led to a legal injury to their client or some misconstrued relationship by the opposing party. These are not stories and presenting a case framed this way, while possibly interesting to a legal scholar, is not compelling to a juror. I’m surprised that so many smart litigators fall into the chronology trap and forsake emotional connection to engage jurors. I don’t advise pandering to a jury or excessive emoting by a litigator, but for a jury to care about you and your client and generate the stamina jurors need for a trial, litigators must tap into their emotional brains. This is not done by an information dump, a calendar, or using a lot of words. A story answers the question posed above – why are we here today, in this courtroom? A story also has all the stuff you learned in grade school: a beginning, middle, climax, and end, characters, setting, theme, and moral. Some Lawyers Focus Too Much on Too Small Things It’s easy for litigators (even more so for the associates doing the day-to-day stuff) to over-focus on every detail. The prospect of overlooking a potentially key piece of evidence or being surprised by an unknown fact exposed by opposing counsel is frightening for attorneys (it was for me), so we often wind up thinking way too much about every little thing in a case. This is called being “in the weeds,” and when you’re there it’s exceedingly difficult to escape without help. It happens with the selection of evidence, with witness prep, and even with the development of graphics, where sometimes counsel wants to very carefully think over every aspect, e.g., choosing what font style and color palette and slide aspect ratio will best work for their case. On each of these things, I urge counsel to take a step back and delegate where possible so they can focus on the BIG PICTURE. The best first-chair litigators do this naturally, and the rest of us need to do it deliberately. Attorney time and brainpower should be spent on figuring out what it will take to win. Let litigation graphics consultants decide what font works best for your opening statement presentation. It will be a relief when you do.

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  by Ryan H. Flax (Former) Managing Director, Litigation Consulting & General Counsel A2L Consulting In our last post in this series, we explained why storytelling is the key to gaining and keeping the attention of any decision maker and thus the key to winning before trial. How does one develop an effective story? Here are the rules of thumb.   First, the simpler the story, the better, and the simpler the language, the better. Use metaphors involving sensory descriptions. Reduce the facts to a relatable story, and use “word pictures.” The complete package of storytelling is not just an oral telling of a story; it also involves necessary visual persuasion. Studies show that at least 60 percent of people learn primarily by seeing. They are visual learners. 

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  by Ryan H. Flax (Former) Managing Director, Litigation Consulting and General Counsel A2L Consulting High-stakes litigation is hugely expensive these days. But what if there were a means of reducing litigation costs in a way that helps both the trial team and the client and doesn’t sacrifice the quality of legal representation? That would make in-house counsel very happy, since an important part of their job is to budget and control litigation costs. There are a number of ways to do this, such as using alternative fee arrangements, streamlining litigation teams and bringing e-discovery in house. But what about a more radical step – trying to win your case well before trial? That would indeed be a cost saver and would lead to an excellent result.

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  by Ryan H. Flax, Esq. (Former) Managing Director, Litigation Consulting A2L Consulting On May 26, 2015, the U.S. Supreme Court released its opinion in Commil USA, LLC v. Cisco Systems, Inc. (575 U.S. ____ (2015)) and it will significantly change patent litigation in the U.S.1 In Commil USA, the Court clarified when indirect patent infringement known as “inducement” occurs and how [not] to escape liability. As a bit of background, a patent can be infringed directly and indirectly. The Patent Act, at 35 U.S.C. § 271, makes it unlawful to make, use, sell, or offer to sell (in the U.S.) a patented thing or process without the patent holder’s permission. Part (a) of this section provides liability for direct infringement, that is, outright doing the thing that infringes a patent. Part (b) governs the first of two indirect infringements, induced infringement, and states “whoever actively induces infringement of a patent shall be liable as an infringer.” This is the focus of the Commil USA case. Part (c) of section 271 deals with the second of the indirect infringements (and interestingly, the one that was first statutorily identified), which is contributory infringement, which makes it an infringement to supply a non-staple, component for use in a patented thing or process.

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