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The Litigation Consulting Report

Product Liability Demonstratives - Defects and Failure to Warn

Posted by Ken Lopez on Tue, Oct 18, 2011 @ 10:45 AM

Demonstratives can frequently be used very effectively in product liability litigation, in which the issue is whether a product was manufactured negligently, causing harm – or in some cases, whether a product that was manufactured and used properly still caused harm to a consumer that leads to liability on the part of the manufacturer or seller.

The demonstrative below shows that in order to get the same alcohol consumption as six regular beers, a consumer would have to drink 15 light beers – which, taken together, have more calories than the six regular beers. This "compensation" effect is an issue in some product liability cases.

demonstratives product liability demonstrative evidence 

As a popular website notes “People tend to drink more light beers than regular beers. It is because the consumer will have the need or urge to drink more light beer because drinking a single bottle of such won’t give the same effect as drinking a bottle of regular beer . . . because the alcohol may have been reduced significantly, the drinker tends to take in more light beer just to achieve that certain ‘drunk’ effect.” 

The demonstratives below introduce the subject of “pack years” to the jury. In tobacco litigation, the number of “pack years” is relevant to the diseases caused by tobacco. A pack year is the number of cigarettes smoked annually by a person who smokes a pack a day, every day. If someone smokes two packs a day, he or she consumes a “pack year” in just six months.

By using a size comparison to the Golden Gate Bridge, the demonstrative shows how many cigarettes are included in 30 pack years or 50 pack years and how large a volume those cigarettes would occupy. 

A person who has smoked two packs of cigarettes per day for 10 years is considered to have a 20 pack-year smoking history. While the risk of lung cancer is increased with even a 10 pack-year smoking history, those with 30 pack-year histories or more are considered to have the greatest risk for the development of lung cancer.

The demonstrative below was introduced in litigation concerning MTBE, a gasoline fuel additive that is often noted as a pollutant of ground water. It shows how small a percentage of ground water samples were actually shown to be polluted by MTBE at a level that is considered possibly dangerous to humans. The number of harmful readings appears as one tiny dot, or three tiny dots, in a large green field of safe levels of this chemical. This demonstrative graphic effectively summarizes the testimony of an expert.

MTBE contamination demonstratives 

The demonstrative exhibit below shows that neglecting to use a booster seat is an unsafe practice – just as riding a bicycle without a helmet and other protective devices is also unsafe.

booster seat demonstratives

The demonstrative below arranges preferred scientific tests in descending order of accuracy. We used a vertical printed trial board format to emphasize the preeminence of epidemiological testing in this case. While plaintiffs attempted to make the case that laboratory and animal testing were sufficient, the epidemiological science favored our defense position.

demonstratives epidemiology science
When complexity must be simplified and laypersons are called upon to decide whether a product has caused harm, demonstratives are a must.  Simple is best.  Fewer is more. However, getting to simple and arriving at fewer almost always requires lots of hard work and creativity which takes time. Often the demonstratives presented at trial are just the tip of the iceberg compared to what was prepared. This reflects effective litigation consulting.


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Tags: Trial Graphics, Litigation Graphics, Trial Presentation, Science, Automobile Litigation, Product Liability, Information Design

Automobile Litigation: Patent Infringement and Product Liability

Posted by Ken Lopez on Mon, Sep 19, 2011 @ 01:37 PM

As one can imagine, automobiles are the subject of a good deal of complex litigation these days -- whether the case has to do with the validity of a patent for use in the manufacture of an automobile, the possible liability of an auto manufacturer for an accident, a class action claiming a design defect in a certain model of car, or another legal issue.

Automobiles present interesting challenges for the trial graphics consultant. On the one hand, nearly everyone has driven a car, and many people think of themselves as fairly knowledgeable in auto mechanics (while they would not fancy themselves as computer or jet-engine experts, for example). On the other hand, today’s vehicles are incredibly complicated items with sophisticated computer systems and electronics. 

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In 2010, for example, IBM wrote in a press release that due to the “exponential growth in the automotive electronics industry, owning a modern vehicle is equivalent to operating thirty or more computers on wheels,” and that “the average automobile now has several millions of lines of code -- more than a space shuttle.”

So jurors do need considerable education about a seemingly basic item like a car.

Since 1995, many of our cases have involved patent disputes about items such as brake parts, valve stems, engines, wheel parts, window glass, and many other parts of the automobile.

In fact, patent litigation in the automotive industry is as old as the industry itself. A recent article in the Legal Intelligencer noted that “patent litigation in the auto industry dates back to the first days of cars” and discussed patent attorney George Selden, who sued all the early auto makers, including Henry Ford, for infringing on his patent, which was granted in 1895.

Patent litigation and automobile product liability litigation is very much alive in the industry. The exhibit below shows the evolution of seatbelts from their introduction as mandatory features in 1964 to the introduction of emergency locking retractors (ELRs) in the 1970s and 1980s.  It was used in a major product liability case.

seat belt product liability

In a case involving litigation over an automotive patent for a valve stem transmission device, we showed in a brief motion picture (just over one minute) how the device works, using a sensor.

In another patent case, we showed how two sensors work in tandem to activate air bags and how they respond to frontal, side, and oblique collisions.

In this Flash interactive exhibit, our information designers created a simple interface that allowed trial counsel in yet another patent infringement matter to illustrate how an engine and engine braking system works.

This type of litigation, as old as the automobile itself, is a mainstay of our work.

Tags: Trial Graphics, Litigation Graphics, Trial Presentation, Courtroom Presentations, Animation, Patent Litigation, PowerPoint, Automobile Litigation, Product Liability

Legal Animation: Learn About the Four Types Used in the Courtroom

Posted by Ken Lopez on Tue, May 24, 2011 @ 11:01 AM

The art and science of animated trial graphics has evolved dramatically over the past 10 years.

Animation used to refer only to 3-D animations that were produced with programs such as Autodesk Maya or Autodesk 3ds Max, formerly 3D Studio MAX.

Now a much broader array of animation tools is available to the courtroom animator, and each one has its own niche and its own strong points. We are able to provide animations of all of these varieties in-house, and we work with our clients to select the one that is best in terms of persuasive power, applicability to the problem at hand, and cost.  We have done this since 1995.

powerpoint litigation graphics consultants

PowerPoint Animation

PowerPoint Animation has become by far the most widely used type of animation today. Only 5 percent or so of all courtroom animation 10 years ago, it now amounts to as much as 90 percent today. It is a flexible tool that is adaptable to many types of cases and many types of illustrations.

For example, this PowerPoint demonstrative illustrates how airbags are designed to deploy in a frontal collision, a side collision, and an oblique collision. This brief animation uses high-quality technical illustration along with PowerPoint to illuminate the airbag technology for a patent infringement case.

2-D Animation

Two-dimensional animation, produced in a program like Adobe After Effects, can also be a very useful tool. It is quite inexpensive and has an immediate appeal to jurors.

In one case, for example, we provided a brief, sequential 2-D illustration of how the copper mining process works, from the raw ore to the finished product. When budget is at issue, this type of animation is ideal for describing complicated information to jurors.

3-D Animation

Three-dimensional animation is particularly useful when small details, rather than broad outlines, are at issue. For example, in a patent trial where the workings of a toner bottle were at issue, we produced a graphic that showed the toner bottle in all three dimensions, so that the jurors could understand the unique technology that permits the toner to move through the grooves of the bottle. Here, a two-dimensional representation would not have been adequate to show how all the parts of the bottle work together. We also used close-up views to show precise details.

Flash Animation

Finally, we have used Flash animation to present long-form tutorial videos. Often, these are intended for judges rather than for juries. For example, we often use Flash to build patent tutorial videos that explain the background of the technology at issue in major patent litigation. Since a great deal of patent litigation occurs in the Eastern District of Texas, we have created many 30-minute tutorials for judges there that combine audio and video.
One good example is a demonstration that we provided of the workings of a “picking machine” in a hospital that uses both information technology and mechanical technology to translate a physician’s prescription orders to the actual selection by mechanical means of a medicine from an array of drugs.

With animated trial exhibits finding their way into most cases with at least millions of dollars at stake, the modern litigator must be aware of the four courtroom animation options.  Fluency in this language of animation will result in savings of time and money.

Tags: Energy Litigation, Trial Graphics, Trial Presentation, Juries, Animation, Patent Litigation, Environmental Litigation, PowerPoint, Mining Litigation, Automobile Litigation, 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.

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.

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