The Litigation Consulting Report

4 Litigation Graphics Tactics When the USA is a Client or a Foe

Posted by Ken Lopez on Tue, Jul 3, 2012 @ 07:58 AM


The us government or doj as a litigantby Kenneth J. Lopez, J.D.
CEO & Founder
A2L Consulting

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.

  1. 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.
     
  2. 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.
     
  3. 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."
     
  4. 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.

 

Other litigation graphics resources on A2L Consulting's site:


Tags: Trial Graphics, Trial Consultants, Litigation Graphics, Trial Presentation, Jury Consulting, Litigation Consulting, Trial Consulting, Trial Technology, Criminal

Join 5,600 Subscribers and Get Notified of New Articles Every Week

Watch Now: Using PowerPoint Litigation Graphics to Win - Webinar

using powerpoint litigation graphics

Free Litigation Webinars - Watch Now

ryan flax a2l litigation consultants webinar recorded


patent litigation webinar free litigation graphics demonstrative

Featured E-Book: The Patent Litigator's Guide to Trial Presentation & Trial Preparation

patent litigation ebook 3rd edition

Featured Free Download: The Complex Civil Litigation Trial Guide

a2l consultants complex civil litigation trial guide download

Free Webinar - Integrating Expert Evidence & Winning Arguments - Watch Anytime.

expert witness teach science complex subject courtroom webinar

Nationally Acclaimed - Voted #1 Jury Research Firm and #1 Demonstrative Evidence Firm in the U.S.

voted best demonstrative evidence consultants

A2L best demonstrative trial graphics consultants
best demonstrative evidence litigation graphics consultants

Download the (Free) Storytelling for Litigators E-Book

describe the image

Considering Using a Trial Technician at Your Next Trial? Download this first.

trial technicians trial technology atlanta houston new york boston virginia

Featured Free Download: Using Science to Prevail in Your Next Case or Controversy

using science to win at trial litigation jury

Featured FREE A2L E-Book: Using Litigation Graphics Persuasively

using litigation graphics trial graphics trial presentation consultants

Free Jury Consulting & Trial Consulting Guidebook for Litigators

jury consulting trial consultants guide

Timelines Appear In Most Trials - Learn how to get the most out of using trial timelines in this ebook

trial timelines graphics consultants litigators

Featured Complimentary eBook - The 100-page Antitrust Litigation Guide

antitrust ebook a2l litigation consultants

Featured Complimentary eBook - Leadership Lessons for Litigators and Litigation Support

leadership lessons litigation law firms litigation support

Featured E-Book: The Environmental Litigator's Guide to Trial Presentation & Prep

environmental litigation trial presentation trial prep ebook a2l

Authors

KenLopez resized 152

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.


ryanflax blog litigation consultant 

Ryan H. Flax, Esq., Managing Director, Litigation Consulting, joined A2L Consulting on the heels of practicing Intellectual Property (IP) law as part of the Intellectual Property team at Dickstein Shapiro LLP, a national law firm based in Washington, DC.  Over the course of his career, Ryan has obtained jury verdicts totaling well over $1 billion in damages on behalf of his clients and has helped clients navigate the turbulent waters of their competitors’ patents.  Ryan can be reached at flax@a2lc.com.


dr laurie kuslansky jury consultant a2l consulting
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.

Articles by Category

Follow A2L Consulting

Member Red Well Blog
ABA Blawg 100 2013 7th annual

Follow Us on Google+

A2L on Google+