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The Litigation Consulting Report

How to Use Litigation Graphics in Antitrust Cases

Posted by Tony Klapper on Mon, Jan 9, 2017 @ 09:29 AM

antitrust-monopoly-power-litigation-graphics.jpgby Tony Klapper
Managing Director, Litigation Consulting
A2L Consulting

At first glance, antitrust cases seem like unlikely venues for the successful use of litigation graphics. Antitrust law has the reputation for being arcane, abstract and statistical, and to some extent the reputation is justified. After all, this area of law deals with the workings of supply and demand and other economic questions, and the issue is often whether competition (or potential competition) in a market has been suppressed in some way. These matters aren’t remotely within the daily experience of jurors. How can a litigator use graphics in antitrust cases to make them make sense?

It can be done. Earlier this year, a well-written article in Law360 (paywall) noted that “explaining the details of an antitrust case to a jury can be a daunting task, but lawyers who build a compelling narrative and communicate with a straightforward style stand a good chance of bringing the jury around to their client’s point of view, experts say.” The article suggested that “many jurors are visual learners, so economic evidence is most likely to stick when the spoken testimony is supplemented with visual aids.” We agree.

Rather than defaulting to showing images of statistical models or regression analyses, antitrust litigators should consider presenting their case with visuals that we are used to seeing on a daily basis. For example, maps are an excellent way to help jurors visualize levels of competition. A state or county could be colored lighter or darker, depending on the number of competitors present in a given year. The names of the competitors can be symbolized by their logos. The entry by a company into a given geographic area is well represented by an arrow, of greater or lesser thickness. “Before and after” maps are also very effective: Here’s how dense the market was before the merger, and here’s what it looked like afterwards. And so on.

Relatively simple graphic techniques, such as bar charts, pie charts and thermometer slides, can also be very useful. A bar chart can be used to show that prices stay the same (are inelastic) regardless of the degree of competition in a relevant market (or conversely, if you are the Department of Justice, that they change fundamentally). An animated pie chart might show that in a five-year period the market share of the largest companies decreased rather than increased as new entrants appeared, indicating that concerns about market concentration are overblown. A thermometer slide (also known as a growing bar chart) might show, by category of savings, how much in the way of efficiencies was achieved.

Of course, there are many other demonstrative tools available to the prosecution or the defense in antitrust matters. Venn diagram-like slides can be used to show a lot of (or a small amount of) overlap in products or services provided by competing companies that intend to merge. For the defense, showing little overlap highlights differentiation; for the prosecution, the opposite is true. Timelines, a useful tool for most case narratives, are also effective tools for presenting evidence in antitrust cases. Timelines, for example, can depict the time and effort that went into the companies’ decision to merge and to determine if efficiencies could be achieved. Or, combined with trend lines, they can be used to explain the factors that, over time, drove the decision to merge.

With a bit of creativity, the facts in antitrust cases will be no more difficult to present successfully to jurors than the facts in any other type of case.

Other articles and A2L resources about antitrust litigation, litigation graphics and related topics:

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Tags: Trial Graphics, Litigation Graphics, Demonstrative Evidence, Persuasive Graphics, Process Charts, Antitrust Litigation

How To Find Helpful Information Related to Your Practice Area

Posted by Ken Lopez on Fri, Jan 2, 2015 @ 04:34 PM

 

practice-area-experience-a2lby Ken Lopez
Founder/CEO
A2L Consulting

Not every page, blog article, webinar or e-book on A2L Consulting's site is right for everyone. As the saying goes, what is everyone's favorite radio station? WII – FM, of course. Otherwise known as "what's in it for me?"

With hundreds of articles, dozens of e-books and hundreds of other pages, A2L's website has over 2,500 pages of valuable content. Sometimes, finding materials that are specific to your litigation practice area or need can be a challenge with all the available options.

You can search A2L's site or even browse by topic area using a topic list in the sidebar of every blog post. In spite of this, I still hear from a lot of people who wonder whether we have experience working in their specific practice area or where they can find useful information related to their practice.

I wrote this article to highlight some very useful information organized by practice area below. I've broken down the practice areas into 14 topics that cover most of the work we do. The alphabetical list with links under each topic should prove helpful when looking for the information most relevant to you.

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Antitrust: Our work in antitrust often involves making complicated economic principles make sense to judge and jury. Working with experts is essential in these cases to help them develop a coherent story.

Banking, Securities & Finance: Our banking litigation work has most often included allegations of banking fraud, disputes involving CDOs or some other financial industry-collapse related litigation.

Bankruptcy: Our bankruptcy work usually involves advisory disputes or the failure of a large company.

Complex Civil Litigation: Many disputes we are involved in are contract disputes between large corporations. Goliath vs. Goliath litigation requires special care given the stakes and resources available to both sides.

Construction & Architecture: Architecture one type or another construction disputes typically relate to defects in construction or leasing disputes or construction delays

Employment & Labor: Our labor work often involves allegations of discrimination or other large scale labor disputes. Increasingly wage and hour disputes are finding their way to trial.

Environmental & Energy: Environmental work often involves discussing human health risk from a particular chemical or the migration of a particular leak.
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International:
 Our international work often involves arbitration work at ICSID at the World Bank, at the ICC in New York or at some other venue around the world.
Life Science-Related: Science-focused topics dominate many forms of litigation. This includes disputes around pharaceuticals, medical devices, biotech and many products. Our challenge as a litigation consulting firm is frequently to make the material understandable for judge and jury.
Medical Malpractice: Our medical malpractice work sometimes involves showing how a surgery occurred and sometimes involves handling allegations of errors.
Patent, Trademarks & Copyright: Our are patent work is wide ranging and frequent, covering all lines of marketplace. About half of the cases we consult on are complex patent cases.
Product Liability: We have spent the last several decades consulting on everything from tobacco litigation to cell phone litigation to fracking litigation.These cases always involve detailed interaction with consulting experts and testifying experts.
Transportation (Aviation, Space, Automobiles, Trains and Ships): Although trials are rare since most cases tend to settle that involve a crash of planes trains or automobiles. More often transportation cases involve product liability or some other cause of action.
White-Collar & Criminal: Our work in criminal cases used to be restricted to basic white collar criminal work. Increasingly though, we are being called upon to consult on everything from campus sexual assault cases to murder cases.


Other articles and resources on A2L Consulting's site that relate to our experience by type of case and by type of experience:

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Tags: Patent Litigation, Science, Environmental Litigation, Banking Litigation, Construction Litigation, White Collar, Labor and Employment, Product Liability, Antitrust Litigation

17 Topics We Would Absolutely Love to Speak to Your Group About

Posted by Ken Lopez on Mon, Apr 7, 2014 @ 02:30 PM

 

a2l litigation support speaking cleby Ken Lopez
Founder/CEO
A2L Consulting

My colleagues and I at A2L work hard to be thought leaders in the litigation consulting and visual persuasion industries. So, it is fortunate that we are invited to speak at quite a large number of events every year. Not only do we speak at the legal conferences you'd probably guess we do, but we also have the opportunity to speak at CLE's, litigation lunches, partner retreats, online webinars and even non-legal industry conferences.

In the past several years, I have participated in many such events in the legal industry. However, some of the most interesting events for me have been speaking at Salesforce.com's Dreamforce conference about professional services firms using salesforce, HubSpot's Inbound marketing conference about how to get started with content marketing, and one event I'm looking forward to in particular is a commencement address for the graduate campus of the University of Mary Washington next month.

My colleagues and I enjoy speaking, because we love what we do. Speakers at A2L Consulting include business experts, marketing experts, jury consulting experts, witness prep experts, visual persuasion experts, experts at communicating about science to lay audience, experts in PowerPoint usage and much more.

Using a combination of traditional travel and modern videoconferencing, we speak at events around the world. For the vast majority of events that we participate in, we do so at absolutely no charge. In general, law firms, government agencies and corporations will cover out-of-pocket costs for CLE registration and travel where applicable. I think these events are a win-win for everyone involved.

Below are 17 topics we would absolutely love to talk with your group about: 

1. Using PowerPoint Litigation Graphics to Win at Trial: We have a CLE already approved in a number of states related to this topic. We also recently conducted a webinar version that is similar to the CLE. Watch the webinar PowerPoint litigation graphics webinar anytime here.

2. Building Persuasive Visuals: For many years, we have been creating persuasive visuals outside of the courtroom environment. These visual persuasion devices are being used in lobbying presentations, to help motivate executives to take action, to influence the general public and much more. To learn more about building persuasive visual presentations, download our e-book, How to Build Persuasive and Engaging Presentations.

3. Storytelling for Litigators: There is good science that supports the use of stories when persuading an audience. It's something that great litigators know intuitively, and it is something that any litigator can learn. We recently conducted a free online webinar called Using Storytelling as a Persuasion Tool that can be watched free anytime.

storytelling persuasion courtroom litigation webinar

4. How to Make and Use Powerful Trial Timelines: We have released a free e-book called The Litigation Guide to Trial Timelines, and this is a topic no courtroom-focused professional can avoid. Timelines are used at almost every trial, and making a good one is quite hard.

5. Patent Litigation Graphics: Patent litigator Ryan Flax amazes new and veteran patent litigators by showing what works in patent litigation demonstrative evidence. He is a visual persuasion expert and contributed to more than $1 billion in jury verdicts while practicing. He recently conducted a free online webinar called Patent Litigation Visual Persuasion Techniques that can be watched here anytime.

6. Communicating Scientific Concepts to a Lay Audience: We work with leading scientific consultants frequently. In a soon-to-be-announced free webinar, we'll discuss how to pick the best experts and how to communicate scientific concepts to judges, juries and the general public. In the meantime, we have a great e-book called Using Science to Prevail in Your Next Case or Controversy.

7. Antitrust Litigation Graphics: As we recently wrote about in the just released Antitrust Litigation Guide to Trial Prep and Trial Presentation book, antitrust is a very challenging area for juries. The challenge of explaining economics, charts, graphs and equations is frequently underestimated by antitrust litigators - even in bench trials.

8. Environmental Litigation Graphics: We consult on a lot of environmental litigation at A2L. There are common challenges from case to case that mostly have to do with helping experts in their testimony. We cover these topics and more in a related e-book The Environmental Litigation Trial Presentation & Trial Prep E-Book.

9. Labor & Employment Litigation Graphics and Trial Consulting: Some of our team will be speaking to a government agency about this topic this week, and they are looking forward to it.

10. Construction Litigation Graphics: It's been a few years since we presented at the Construction SuperConference, but our work in construction delay and defect cases has continued unabated. Here are some related construction litigation blog articles.

11. How to Use Jury Consulting in a Valuable Way: Jury consulting is a misnomer for describing what we do. Our work frequently includes mock bench trials, mock appeal hearings, and witness preparation in addition to the traditional jury selection and mock trial services. Learning about how best to use trial consultants is a very valuable topic for litigators. We discuss many of these topics in our free Trial Consulting Handbook for Litigators.

12. Life in the New Normal Legal Economy: We have written articles about alternative fee arrangements that we use, suggestions for in-house counsel on setting up preferred litigation support vendor programs, penned a series of articles targeted at emerging midsize litigation law firms, and have released a book about the New Normal Legal economy. It's a topic we clearly enjoy speaking about even when sometimes it makes us all a bit uncomfortable.

13. Why Are So Many Opening Statements Ineffective: They don't have to be long to be strong, you should never say "I'll talk about that later," and what has to be accomplished in the first 5 minutes or you'll likely lose your case are all topics we are passionate and knowledgeable about.

14. How to Really Assess and Prepare a Witness: We write about witnesses often, both lay and expert. Getting either prepared is something our people have done for decades. We have thousands of accumulated hours preparing witnesses and a correspondingly long list of tips and secrets to share. I think this article and this one do a good job describing our feelings about witness prep and witness testimony.

15. How Important it is to Look at Non-Verbal Behavior in the Era of the Video Deposition: I am still stunned by watching the performances in these depositions, particularly the Justin Beiber depo. Learn how to manage your client from our experts. Sometimes it is easier, better and cheaper for an outsider to prepare the witness, and we'd love to discuss what we have learned from those experiences.

16. Why Lawyer-Generated Graphics Don't Work: We don't want artists to practice law any more than we want lawyers preparing graphics. There are dozens of reasons for this, and we are happy to share them. Here's a blog post to get the ball rolling on lawyer-prepared graphics though.

17. E-Briefing and Brief Writing in the Era of the iPad: Did you know that the way people read a page of text has changed in the last ten years? If you are still writing briefs the same way you did fifteen years ago, you're missing some easy opportunities to persuade quickly. Take a look at this discussion about ipads and hyperlinked e-briefs.

If you would like to discuss a member of A2L's team speaking at your next event or have any other questions, please contact A2L's Director of Operations, Alex Brown at brown@A2LC.com or 800.337.7697 x121. We try to say yes to everything that we can given our hectic schedules. Whether it is a litigation lunch via video conference, an in-person CLE or whether it is a conference speaking opportunity, we would love to hear from you.

 

PowerPoint Litigation Graphics Webinar Consultants

Tags: e-Briefs, Litigation Graphics, Jury Consulting, Patent Litigation, Environmental Litigation, Storytelling, PowerPoint, Opening, Alternative Fee Arrangements, CLE, Antitrust Litigation

Free E-Book Download: Antitrust Litigation Trial Prep Guidebook - 2nd Edition

Posted by Ken Lopez on Tue, Apr 1, 2014 @ 04:35 PM

 

describe the imageby Ken Lopez
Founder/CEO
A2L Consulting

Antitrust trials are second in frequency only to patent trials for the types of cases A2L Consulting is engaged to support. Indeed, in the past year, we have worked with several Fortune 50 firms in their battles against the recently invigorated U.S. Department of Justice Antitrust Division.

Interestingly, we're not always on the defense in antitrust cases. Sometimes we work in support of private plaintiffs and sometimes we work for the U.S. Department of Justice's Antitrust Division. As a result, we have an excellent perspective on what it takes to be successful leading up to and during an antitrust trial.

The issues in any of the cases we work on usually relate to market power, price fixing or involve Hatch-Waxman ANDA claims. In any of these cases, the evidence most often involves a lot of charts and math that could only appeal to people with a degree in economics (I happen to be one). As a result, like a patent case or like a case involving scientific evidence, an antitrust case requires a lot more trial prep than most cases.

Good trial prep in an antitrust case includes building a meaningful and compelling story, working with the experts to make their complex testimony understandable, and developing demonstrative evidence that is clear and persuasive. None of this is easy, and in my experience some of the best trial lawyers in America struggle with the presentation of antitrust matters at trial.

So, it is in the spirit of sharing what we have learned in nearly 19 years of supporting antitrust cases at A2L that we release, The Antitrust Litigation Guide to Trial Prep and Trial Presentation (2nd Ed.).

This free 141-page book will be useful to new and veteran antitrust litigators alike. Even expert witnesses or those in litigation support will find useful lessons among the 40+ articles compiled in this fine work. We cover topics like:

  • Antitrust, Pharama & Hatach-Waxman Litigation
  • Monopoly Power & Price Fixing
  • 12 Alternative Fee Arrangements We Use and You Could Too
  • 21 Ingenious Ways to Research Your Judge
  • The Top 14 Testimony Tips for Litigators and Expert Witnesses
  • and much more.

I hope you enjoy this book. We really work hard to be thought leaders in our unique area of litigation support that includes litigation graphics, jury consulting, trial technology and visual persuasion services.

This book is completely complimentary with no strings attached. You may download it by clicking here or on the image below.

 

A2L Antitrust Litigation Guide Ebook 2nd Edition

Tags: Economics, Trial Graphics, Litigation Graphics, Trial Presentation, Jury Consulting, Litigation Consulting, E-Book, Trial Preparation, Antitrust Litigation

The Top 10 A2L Consulting Litigation E-Books

Posted by Ken Lopez on Thu, Mar 28, 2013 @ 08:00 AM


top 10 a2l consulting litigation ebooksby Ken Lopez
Founder & CEO
A2L Consulting

At A2L Consulting, we not only try to serve our clients and to produce great results at trial; we also want to become thought leaders in the trial consulting world and to educate lawyers, experts, and others on the exciting developments that are going on, both in research on juries, persuasion and other topics, and in the actual use of trial techniques.

All of our ebooks are free to anyone. You need not be a client of A2L. In the past two years, more than 10,000 free ebooks have been downloaded from A2L Consulting's site. 

We release a new book focused on a particular area of the legal industry just about every month.  Our first ebook, back in 2011, was not even 10 pages long.  Some of our recent books have been more than 150 pages long.

Most of our ebooks feature a curated list of articles culled from our hundreds of published blog posts and other articles on litigation topics plus a few extras. All have been released completely free in the spirit that we can elevate the quality of work being done in the litigation consulting industry.

For example, the Complex Civil Litigation Trial Guide, our most popular download so far, is 174 pages and is designed for the trial lawyer preparing for a complex case. But the insights in it can help almost anyone who wants to learn more about trial strategy and tactics.

The topics in that ebook include: Seven Ways to Draft a Better Opening Statement, How to Embrace a Two-Track Strategy and Win the War, Six Reasons the Opening Statement is the Most Important Part of a Case, How Timelines Can Persuade Judges and Juries, and Ten Videos to Help Litigators Become Better at Storytelling.

This ebook, like many of our other offerings, starts with the premise that the most important thing that a litigation consultant can do to help a trial team is to focus on the story that that trial team wants to develop. A litigation consultant brings not only the common sense that a fresh pair of eyes offers but also the experience of having seen, in hundreds of trials, what works and what does not work.

So one of the reasons this ebook has succeeded so well is that it can help any trial team develop a case and win at trial. It shows how to master the complexities of your case, yet still remain able to explain them to a judge or jury in a straightforward manner.

It also shows how to pick a trial graphics consultant to support your work, what to do when your trial team goes bad as a result of the anxiety that understandably can accompany any piece of complex litigation, and how trial graphics can explain even the most complicated scientific and engineering concepts to a jury. 

Here are our top 10 litigation ebooks listed in descending order by download count. 

  1. describe the imageComplex Civil Litigation Trial Guide (1st & 2nd Editions) - 1,918 Downloads, released Feb 25, 2013
     
  2. patent litigation graphics presentation guide Patent Litigation Trial Presentation Toolkit (1st & 2nd editions) - 1,669 Downloads, released September 10, 2012
     
  3. litigation support ebook Litigation Support Toolkit (1st & 2nd editions) – 998 Downloads, released February 24, 2013
     
  4. describe the image Litigation Timeline Reference Book - 943 Downloads, released March 6, 2012
     
  5. describe the image Antitrust Litigator's Trial Prep & Trial Presentation Guide - 807 Downloads, released October 17, 2012
      
  6. describe the image Leadership Lessons for the Trial Team Leaders (1st & 2nd editions) – 676 Downloads, released TKTK
     
  7. storytelling for lawyers litigators litigation support courtroom narrative icon Storytelling for Litigators - 589 Downloads - Released March 11, 2013
     
  8. describe the image How to Find the Top Trial Technicians (1st & 2nd editions) 417 Downloads, released August 22, 2012
     
  9. describe the image Environmental Litigator's Trial Presentation Handbook (1st and 2nd Editions) 395 Downloads, released December 24, 2012
     
  10. describe the image Litigator-Jury Communications 3-Year Study Results 359 Downloads, released January 2, 2007


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Tags: Energy Litigation, Trial Graphics, Trial Technicians, Litigation Graphics, Trial Presentation, Litigation Consulting, Litigation Technology, Demonstrative Evidence, Trial Technology, Litigation Support, Patent Litigation, Environmental Litigation, Storytelling, Leadership, Trial Director, HubSpot Tips, Antitrust Litigation

New 100-Page eBook: Antitrust Litigation - Graphics & Trial Prep

Posted by Ken Lopez on Tue, Oct 16, 2012 @ 08:00 AM


download antitrust litigation graphics trial presentation consultants ebook a2lby Ken Lopez
Founder & CEO
A2L Consulting

The antitrust laws have been around for more than 100 years, and they have never been more relevant than they are today. Whether it’s a question of the interplay between patents and antitrust, a hospital merger, a high-tech acquisition, or an alleged conspiracy to fix prices, companies need to know how to defend themselves in antitrust cases. Often, they also need to know how to pursue such cases as a plaintiff as well.

That means that the need for antitrust litigation graphics has never been greater.

This is especially true because antitrust litigation is inherently complex and juries frequently have to decide cases where dollar amounts in the nine or even ten figures are at stake. In addition, corporate executives can be charged with criminal antitrust violations that would likely land them in federal prison if they are convicted.

Antitrust cases that involve antitrust litigation graphics can be brought by the government – including the U.S. Department of Justice, which has the ability to bring criminal antitrust cases; the Federal Trade Commission; and state attorneys general. They can also be brought by private parties that allege that they were injured in their pocketbook by a price-fixing or similar conspiracy or by some other possible antitrust violation.

We work, in different cases, for the government and for corporations that have been accused by the government or by other corporations or individuals of entering into price-fixing conspiracies, engaging in cartel activity, or planning a merger or acquisition.

Antitrust cases require special assistance from people who are familiar with antitrust litigation graphics

antitrust litigation trial presentation graphics ebookGraphics are particularly relevant since a conspiracy must often be proved by inference because conspirators understandably try not to leave a clear record of their conspiracy. Accordingly, when we are on the side that is trying to show that a conspiracy existed, we create convincing antitrust litigation graphics that set forth the time and participants of key emails and telephone calls from which an illegal conspiracy can be inferred. Courts have made it clear that juries are allowed to infer the existence of a conspiracy from repeated contacts between corporations and the corporations’ behavior at the time.

There is no reason that jurors cannot be taught complex economic concepts such as those that appear in many antitrust cases. A well-versed trial consulting firm can help any trial team do so. One of the most important means, for example, is to use visuals in the form of photographs, schematics, animation, timelines, demonstrative evidence, or whatever is suited to the situation, and to explain them in ways that jurors who are not economic specialists can understand.

In that connection, we have prepared a 100-page e-book, The Antitrust Litigation Guide to Trial Preparation and Trial Presentation,” that will help lawyers understand the challenges that they face and some of the ways in which a top trial consulting firm can help them overcome these challenges by creating effective antitrust litigation graphics.

The book features articles on such important subjects as “Antitrust Litigation Graphics: Explaining Complex Information Simply,”  “Litigation Graphics: Timelines Can Persuade Judges and Juries,” “Trial Exhibits: Antitrust, Pharmaceuticals, and Hatch-Waxman Litigation,” “Antitrust Litigation Graphics: Monopoly Power and Price Fixing,” and “Making the Complex Understandable in Pharmaceutical Cases.”

Click here to download free eBook The Antitrust Litigation Trial Guide

Tags: Trial Graphics, Trial Consultants, Litigation Graphics, Trial Presentation, Courtroom Presentations, Litigation Consulting, E-Book, Demonstrative Evidence, Antitrust Litigation

Antitrust Litigation Graphics: Explaining Complex Information Simply

Posted by Ken Lopez on Wed, Oct 3, 2012 @ 07:40 AM

 

antitrust litigation graphics price fixing monopolyby Ken Lopez
CEO & Founder
A2L Consulting

Since antitrust litigation is inherently complex and juries frequently have to decide antitrust cases, litigation graphics in these cases are especially important. Quite often, sums in the nine or even ten figures can be at issue in a major antitrust case – or corporate executives can be charged with criminal antitrust violations that can land them in federal prison if they are convicted.

Antitrust cases can be brought by the government – including the U.S. Department of Justice, which has the ability to bring criminal antitrust cases; the Federal Trade Commission; and state attorneys general. They can also be brought by private parties that allege that they were damaged monetarily by a price-fixing or similar conspiracy, by a merger or acquisition, or by some other possible antitrust violation.

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We work, in different cases, for the government and for corporations that have been accused by the government or by other corporations or individuals of entering into price-fixing conspiracies, engaging in cartel activity, or planning a merger or acquisition that is likely to reduce competition in a particular industry.

Like patent litigation, which in recent years has begun to overlap with antitrust litigation, antitrust cases require special assistance from those familiar with modern trial presentation and litigation graphics.

Often a conspiracy must be proved by inference because conspirators understandably try not to leave a clear paper or electronic record of their conspiracy. Accordingly, when we are on the side that is trying to show that a conspiracy existed, we create convincing antitrust litigation graphics that set forth the time and participants of key emails and telephone calls from which an illegal conspiracy can be inferred. Courts have made it clear that juries are allowed to infer the existence of a conspiracy from repeated contacts between corporations and the corporations’ behavior at the time. We put that information in front of a jury in a very convincing way. See these antitrust litigation graphics below:

If we are on the plaintiff side in a class v. corporation dispute, our work is similar to a criminal antitrust case. However one obvious difference is that our focus in a civil dispute is on proving causation and damages, not the elements of a crime. The antitrust litigation graphics below helped establish the existence of conspiracy by looking at the timing of price change announcements among a group of competitors in one industry:

A price-fixing conspiracy often involves a complex web of participants, all of whom are interrelated in some way and all of whom must coordinate their activities. Our litigation graphics make it easy to understand how a conspiracy got started, who was involved, and how the various parties are related to each other.

In cases involving the Hatch-Waxman Act and issues involving the expiration of pharmaceutical patents and competition between branded drug companies and generic manufacturers, our antitrust litigation graphics can illuminate a complicated industry and a complex regulatory scheme as below:

 

Other helpful resources on A2L Consulting's site related to antitrust litigation graphics:

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Tags: Trial Graphics, Litigation Graphics, Trial Presentation, Courtroom Presentations, Litigation Consulting, Demonstrative Evidence, PowerPoint, Antitrust Litigation

Comic Brief for Your Comic Relief: Teaching with Graphics

Posted by Ryan Flax on Fri, Sep 7, 2012 @ 02:08 PM


graphics brief litigation apple a2l consultantsRyan H. Flax
(Former) Managing Director, Litigation Consulting
A2L Consulting 

As the title suggests, this post will offer a moment of levity on this Friday afternoon.  On Tuesday (September 4, 2012), an attorney filed an amicus brief with the U.S. District Court for the Southern District of New York in United States v. Apple, Inc. et al.  The authoring attorney is Bob Kohn, and he filed the brief on his own behalf.  The case relates to a proposed Department of Justice settlement with book publishers over accusations of e-book price fixing and attorney Kohn’s position is that the DOJ’s premise for settlement is based on faulty legal interpretations.  Kohn wants public disclosure of the DOJ investigation that led to the charges against the publishers.

Comic Brief for Comic Relief - US v. Apple Antitrust Filing Opens Eyes

As reported by the ABA Journal, Bob Kohn explained (to Bloomberg and the New York Times) that he chose this unusual format for the brief after U.S. District Judge Denise Cote limited the filing to just five pages.  The opening and closing points of Kohn’s brief make clear his frustration with the court’s 5-page limit.  Kohn explained “I thought of the idea of using pictures which, as we know, paint a thousand words.”

Whether Kohn’s arguments are right or wrong and the nuances of antitrust law at issue are less interesting to me than this graphical format of his brief.  Mr. Kohn himself points out the common colloquialism a picture is worth a thousand words – he actually used fewer than 800 words in his entire brief, but I think he got his point across pretty well.  I think you’ll agree that he got more than 800 words worth of argument across in this document.

It’s been suggested (and it seems quite clear) that Kohn’s comic strip brief is intended to reach beyond the judge’s desk to the court of pubic opinion.  The graphic format is something easily understandable to anyone who reads it – lawyers and their neighbors and their friends and families, alike.  Kohn’s brief underscores a point that is central to our work here at A2L – real people (e.g., jurors and judges) prefer to learn with the assistance of graphics and that fact makes a presentation that extensively includes graphics far more persuasive.

Kohn’s brief was not effective at changing the Court’s mind in approving the DOJ settlement, but it is certainly an attention grabber and was effective at teaching the basics of the case and Kohn’s position.  I couldn’t care less about the issues of the subject case, but, nevertheless, read the entire brief (comic), was interested in how it would end, and did get Kohn’s points.  I’d say that makes a pretty good case for the brief's beyond-unconventional style and the importance of graphics in being persuasive, generally.

Let me know what you think.  Add a comment below.

Click me

 

Ryan Flax is the Managing Director of Litigation Consulting at A2L Consulting. He joined A2L after practicing as a patent litigator who contributed to more than $1 billion in successful outcomes. 

Tags: e-Briefs, Trial Graphics, Litigation Graphics, Articles, Presentation Graphics, Antitrust Litigation

Antitrust Litigation Graphics: Monopoly Power and Price Fixing

Posted by Ken Lopez on Thu, Sep 29, 2011 @ 08:18 AM

 

Many antitrust cases involve potential damages of hundreds of millions or even billions of dollars. Cases can arise when one company sues another for violating the antitrust laws and causing economic harm to the plaintiff, or the government (U.S. Department of Justice, Federal Trade Commission, or state attorney general) can bring a case seeking money damages, an injunction, and other remedies. Price-fixing charges can even be brought as a criminal case by the Justice Department.

The antitrust laws prohibit both price-fixing by competitors and monopolization of a market by a single company, and both of those types of cases can be well illustrated by antitrust litigation graphics.

Click me

These cases involve complicated terms and issues such as market power, potential competition, and market definition that lawyers and economists have argued about for generations. But since they involve buying and selling, activities that jurors are familiar with, these concepts can actually be illustrated quite effectively by using analogies from daily life.

In a variety of cases, we have sometimes worked with lawyers who want to show that a company or a group of companies acted illegally to raise prices and hurt consumers in their pocketbooks, and we have sometimes worked with lawyers representing clients that are defending themselves against such accusations.

In the below movie, we portrayed a price-fixing conspiracy as a web, which is something that jurors understand well and is also a term that is used in the case literature to describe antitrust conspiracies. After the jurors have seen the web, they then see that it raised prices by a total of $740 million and caused harm to consumers.

In the next exhibit, we were attempting to show that Karma lager, a brand of beer, does not have market power in the beer market. What better way to do this than to show a shopper faced with dozens of choices in the beer aisle? Jurors see recognizable names there such as Miller, Heineken and Corona and come to the conclusion that a single player in the market would be unable to act so as to raise prices above competitive levels without losing customers.

monopoly trial graphics

In the final exhibit, we are illustrating the effects of an illegal “bundling scheme” perpetrated by a monopolist. Here, we analogize it to a late-night television commercial for a cleaning product. Not only does the graphic illustrate the economic principle of reasonable markups versus monopoly prices, but it also associates the defendant with TV hucksters, not a popular set of individuals in the mind of a juror.

“Call in the next 10 minutes and Receive the Patented Fancy Mop at NO Extra Charge!!!” is the type of pitch that many jurors will have heard and disdained. Here, we associate the monopolist in this case with that type of economic behavior.

Monopoly Bundling Trial Graphics Price Fixing 

Using trial graphics in antitrust litigation is a must.  The subjects of economics and mathematics are intimidating to most jurors and are a fundamental part of every antitrust case.

Many trial teams or antitrust experts/economists inadvertantly overwhelm a jury with one Excel bar chart after another.  I believe this serves only to confuse the jury further -- since after you seen ten Excel bar charts, they all start to look pretty much the same.


Instead of focusing on bar charts, focus on the drama of the story. You want the jury to trust your client(s) -- or better yet -- distrust the opposition. Then, use stand-out litigation graphics that sharply contrast with your bar chart exhibits to highlight the key elements of your case.
 

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Tags: Trial Graphics, Trial Consultants, Trial Presentation, Courtroom Presentations, Trial Consulting, Animation, PowerPoint, Class Action, Antitrust Litigation

Litigation Graphics: Timelines Can Persuade Judges and Juries

Posted by Ken Lopez on Mon, Jun 20, 2011 @ 10:12 AM

Timelines can be extremely helpful in many types of trials. Whenever the order in which events occurred is a significant issue, or a jury or judge needs to understand how a story began and ended, a timeline is appropriate.

As Texas attorney and legal technology expert Jeffrey S. Lisson has written [pdf], “Timelines are the most effective way to give a judge or jury a sense of who did what, when, and to whom. Just as bar charts and graphs help the uninitiated make sense out of a sea of facts and figures, timelines show the relationship between events. Timelines generally show events laid out on a horizontal, constant chronological scale. Events – the writing of a memo, the reading of an x-ray, or the shooting of a gun – are listed in the order they occurred. While tables of dates and facts require effort to understand, timelines are instantly clear.”

trial timeline trial graphics litigation courtroom timelines



Contrary to many people’s belief, PowerPoint presentations are well suited to the presentation of timelines and other litigation graphics. Because it is easy to add hyperlinks to a PowerPoint, an experienced designer can create an interactive presentation that allows the presenter to click on a “hot spot,” such as a document icon, name or date, and move directly to that item.

For example, in the exhibit, “Prior Art Interactive Patent Timeline Trial Graphics,” that we devised for a patent case, the presenter can show the history of the prior art related to a subsequent patented invention in any order that is convenient.




Similarly, in the “Hatch Waxman ANDA Timeline,” the colored bars represent periods of conversation with the Food and Drug Administration that delayed the approval of an Abbreviated New Drug Application (ANDA) for a generic drug. The timeline that we used shows visually that a citizen petition did not cause a delay in the approval of the generic drug. Rather, the delay resulted from the FDA taking its time in its review of the application. This timeline, which summarizes thousands of pages of documents, helped lead to a complete defense verdict for our client, a major pharmaceutical company.



The concept behind our exhibit, “EPA’s History of Vague Regulation and Unfair Enforcement” in a new source review case was to tell the history of EPA's lack of enforcement and inconsistent messages -- and the industry’s success in lowering pollution from coal-fired power plants in spite of the EPA’s inaction. It is possible to add other information to a timeline to make it tell more of a story and persuade, not just inform. Using timelines as a persuasion tool throughout a trial represents a higher level of advocacy than merely putting events in chronological order.  Click the image to zoom.

Timeline Plus Graph Persuades
Like any litigation graphics shown to a fact-finder, the timeline can and should be a persuasion tool.  We believe it should tell a story without having to read all or even most text entries.  Should individual timeline entries seem to be inconsistent with the overall trial theme or should juxtaposing them with a long term graph underscore that correlation does not equate with causation, we advise telling that story visually as above.

 

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Tags: Energy Litigation, Trial Graphics, Litigation Graphics, Trial Presentation, Animation, Patent Litigation, Pharmaceutical, PowerPoint, Document Call-Outs, Timelines, Clean Air Act, Antitrust Litigation

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Authors

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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.


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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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