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The Litigation Consulting Report

Defeating Class Certification with Trial Presentation Graphics

Posted by Ken Lopez on Tue, May 3, 2011 @ 03:14 PM

When a major company is the target of a purported class action filed by consumers who say that they are representative of a large group that have common claims against the company, the issue of class certification becomes a crucial one. The viability of the case often stands or falls on the issue of certification.

Federal Rule 23 imposes four requirements for a class action: (1) the class must be so large as to make individual suits impractical, (2) there must be legal or factual claims in common, (3) the claims or defenses must be typical of the plaintiffs or defendants, and (4) the representative parties must adequately protect the interests of the class. Many states follow the federal requirements or have their own, similar, requirements. 
complimentary trial graphics demonstrative evidence cleWhether the case was filed under state or federal law, one of the key practical requirements for a class action is that the issues that members of the purported class have in common must predominate over the issues that are distinctive to each specific member of the class. 

As is correctly noted in this article describing class actions, in many cases, the party seeking certification must show that common issues between the class and the defendant will “predominate” in the proceedings, as opposed to individual fact-specific issues that can arise between class members and the defendant.

Graphic demonstrations can be used in many aspects of class actions, and the issue of “predominance” is one in which they are particularly helpful. In Stonebridge Life Insurance Co. v. Pitts, we created an interactive trial exhibit, using PowerPoint, for a hearing to try to defeat class cert in a Texas state court. In this case, plaintiffs claimed that they had all ended up purchasing insurance that they did not want, as a result of a telemarketing program run by the defendant that included a negative option. They sought to certify a class action that would, they hoped, eventually provide restitution of their insurance premiums.

Our trial exhibit highlighted the important differences between the class representatives, the class members, and other customers (asserting consumer protection claims). By clicking on hot spots on the exhibit, the user is able to call up customer quotes that clearly show that different consumers who were purported class members had distinctly different concerns from each other and thus that the common issues did not “predominate.”

“It was easy and convenient to have the premiums automatically charged on my Penney’s account,” one consumer was quoted as saying. Another said simply, “I called Stonebridge and changed my address.” Another said, “I received a partial refund.” 

Without the clear trial presentation graphics that we provided, it would have been difficult for anyone to understand the wide diversity of experiences and attitudes that members of the supposed class had actually had. This is another instance in which “showing” is better than just “telling.”  Class certification was ultimately defeated.

Tags: Trial Graphics, Litigation Graphics, Trial Presentation, Trial Consulting, Opening, Class Action, Information Design

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Ken Lopez founded A2L Consulting in 1995. The firm has since worked with litigators from all major law firms on more than 10,000 cases with over $2 trillion cumulatively at stake.  The A2L team is comprised of psychologists, jury consultants, trial consultants, litigation consultants, attorneys and information designers who provide jury consulting, litigation graphics and trial technology.  Ken Lopez can be reached at lopez@A2LC.com.


Tony Klapper joined A2L Consulting after accumulating 20 years of litigation experience while a partner at both Reed Smith and Kirkland & Ellis. Today, he is the Managing Director of Litigation Consulting and General Counsel for A2L Consulting. Tony has significant litigation experience in products liability, toxic tort, employment, financial services, government contract, insurance, and other commercial disputes.  In those matters, he has almost always been the point person for demonstrative evidence and narrative development on his trial teams. Tony can be reached at klapper@a2lc.com.

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Laurie R. Kuslansky, Ph.D., Managing Director, Trial & Jury Consulting, has conducted over 400 mock trials in more than 1,000 litigation engagements over the past 20 years. Dr. Kuslansky's goal is to provide the highest level of personalized client service possible whether one's need involves a mock trial, witness preparation, jury selection or a mock exercise not involving a jury. Dr. Kuslansky can be reached at kuslansky@A2LC.com.

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