4 Litigation Graphics Tactics When the USA is a Client or a Foe
by Kenneth J. Lopez, J.D.
CEO & Founder
I created my first trial exhibit while working for the U.S. government in 1992 as a clerk in the Eastern District of Virginia. Two assistant U.S. attorneys were having a hard time explaining why a witness was able to see the defendant in a drug bust in spite of a four-foot wall. I created a simple map exhibit using my Mac and they were thrilled.
Twenty years later, my colleagues and I at A2L have had the chance to work both on behalf of and against the U.S. government on countless occasions.
On behalf of the government, we have defended air traffic controllers accused of negligence, pursued countless antitrust cases for the Department of Justice’s Antitrust Division, worked on environmental cases for the department’s Environment and Natural Resources Division, pursued securities law violators for the Securities and Exchange Commission, and even helped prosecute the 9/11 perpetrators.
Our work opposing the government has been equally varied. It has included many False Claims Act and qui tam cases, environmental disputes involving water, ground and air, bankruptcy cases, EEOC cases, labor cases, tax cases and antitrust cases. Over the last two years, we have been frequently involved in helping individuals and businesses avoid indictment or civil penalty.
Much of this work involves our litigation graphics consultants’ efforts to create presentations that will show the government that no crime has been committed or at least that the likelihood of succeeding in front of a jury is unjustifiably low to pursue the case. This litigation consulting work is especially challenging since prosecutorial inertia is hard to stop. However with so many recent and high profile prosecution failures at DOJ, I believe fear of yet another public loss is a useful button to push.
When we are working for the government, resources are tight. The federal government seems to have only a limited capacity to spend taxpayers’ money on such services as mock trials, litigation graphics consulting or on-site courtroom technologists. On the other hand, when we are opposing the government, our clients routinely talk about the unlimited resources of the government. I think they are both right.
In my experience, the government is quite efficient in how it spends money on litigation support services including litigation graphics, mock trials and courtroom hot seat operators. On the other hand, I have seen the government relentlessly pursue a defendant, spending countless thousands of hours on what is at best a legal peccadillo.
With this background in mind, care must be taken to handle the government carefully, whether as client or opponent. Below are some techniques we recommend.
- Test the attitude toward the federal government: Regardless of whether the trial will be litigation graphics-intensive or not, the degree to which pro- or anti-government feelings exist varies from jurisdiction to jurisdiction and at different times is critical to evaluate. We recommend testing the jury pool's "temperature" in pretrial work and designing litigation graphics (and your case's themes) accordingly.
- If your client is the U.S. and the juror attitude is friendly, make extensive use of agency logos. For example, if the government is attempting to regulate hydraulic fracturing (aka fracking), its efforts are likely to be received differently in New York City than in pro-gas North Dakota. If we were working for the government, under such circumstances, litigation graphics and themes would make heavy use of government logos, seals and insignia in Manhattan, but in Fargo the case would take a tone more akin to "this case is brought on behalf of the people of North Dakota" and the government's identifiers would be downplayed.
- If your client is the government, stop worrying about looking big. The government is often concerned with looking too big, but I think this fear is greatly exaggerated. Like big companies worried about looking too slick (see previous posts about David vs. Goliath and trial technology), the government is the government, and everyone knows it is big. The question is not size. The question is whether it appears to be overreaching. The point to be made, perhaps, again is that "we are here to defend your (the taxpayers') rights."
- If your opponent is the government, find a way a way to make this a strength. Perhaps you are in an anti-government jurisdiction. Perhaps the government has overreached. At one time or another, particularly around April 14 each year, we all feel victimized by the government — make use of this universal feeling.
Litigating for or against the United States is a special situation. It requires different tactics than everyday civil or criminal litigation. I encourage you to leave your thoughts in the comments below.
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About A2L Consulting
• Leading national litigation consulting firm since 1995
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• Consulted for all major law firms on 10,000+ cases with trillions of dollars cumulatively at stake offering:
Trial Consulting: mock trials, Micro-Mock™, mock Markman hearings, jury consulting, shadow juries, jury selection and more;
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