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The Litigation Consulting Report

Powerful Preconceptions and Malaysia Airlines Flight 370 TV Coverage

Posted by Laurie Kuslansky on Thu, Mar 27, 2014 @ 11:13 AM

 

malaysian airlines flight 370 photo of planeby Laurie R. Kuslansky, Ph.D.
Managing Director, Jury Consulting
A2L Consulting

The year is 2014. We can land on Mars, predict earthquakes, and, with GPS, find a lost dog, a misplaced cell phone, or just about anything else. When you get an X-Ray, “x” marks the spot of what’s there, whether a fracture or something else. The general public, which largely thinks of satellites as a combination of science and magic, cannot comprehend why, then, if the satellites of several nations have spotted an apparent debris field in the same “spot” in the Indian Ocean, someone can’t just zip over to that “spot” and Bingo!, find the possible remains of Malaysia Airlines Flight 370. 

News networks have interviewed endless “experts” to try and explain why “it isn’t so easy.” But so far, it doesn’t seem that they’ve succeeded in making the answer comprehensible.

As anyone skilled in presentation, they’ve attempted to do so using various visual aids. There, too, it hasn’t helped much either, because to understand their explanations, you have to already understand what they’re saying. Most allude to how large “the spot” is and the passage of time between receiving the image and being able to get “there.” Again, the public wonders, why does it take so long, when time is of the essence?  It doesn’t make sense. You get an X-Ray and in moments, have your answer, so why does it take days in this case?

They’ve used metaphors, the most popular being that it is like looking for a needle in a haystack, but haven’t yet found the farm, let alone the haystack. 

malaysian airlines flight 370 sattelite imageWe’ve been told how hostile the southern ocean is. Check. We’ve been told how far the search area is from Perth, Australia – like flying from D.C. to Denver. Check. We’ve been told that planes have limited fuel time to spend searching once there. Roger that. But we haven’t been taught the key points – not about what caused MH370 to disappear, but why we can’t find it when the satellites have.

Despite so much media coverage, the preconception persists, fueling distrust and frustration. Why?

Understanding in this type of scenario requires getting over multiple hurdles first:

  • People are impatient and eager to learn the information;
  • People are anxious about the dangers of flying;
  • A major airplane disaster is many people’s worst fear;
  • If knowledge is power, not knowing makes one feel powerless;
  • No information is better than inconsistent, vague and unreliable information;
  • The information provided is shrouded in secrecy and what is disclosed does not relate to common knowledge;

And on and on . . .

Complex information in troubling circumstances often breeds distrust from the get-go. It is no different in litigation involving unfamiliar information – whether in the field of technology, science, finance or others that the typical jury doesn’t know or understand.    

With this backdrop, persuasion requires a lot of education to an audience that is seeking quick, clear answers where none exists. How can the points be made better?

For starters, it would help if the “experts” actually answered people’s questions: Why is it so hard when it seems so easy? How is it possible, with all the technology we now have available to us, not to be able to do better?

Educating and advocating are also not as easy as they may seem.  This disaster should serve to provide many important lessons, including understanding the fact that being an expert hardly matters if you don’t get your message across to your audience.

Other A2L Consulting resources related to aviation/airline litigation, teaching science, courtroom persuasion and expert testimony:

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Tags: Presentation Graphics, Psychology, Expert Witness, Persuasive Graphics, Aviation Litigation, Newscasts

Demonstrative Evidence: Using Maps as Courtroom Exhibits

Posted by Ken Lopez on Mon, Mar 12, 2012 @ 08:02 AM


demonstrative evidence mapsBecause maps are used by jurors constantly in their daily life and because they are so frequently used to represent common locations and processes, they are one of the most frequently used and most effective types of demonstrative evidence. Whenever something can be conveyed geographically, through the use of space, it is worth considering the use of a map. Even though maps don’t always represent the highest and newest technology, their importance cannot be underestimated.

In the words of Ray Moses of the Center for Criminal Justice Advocacy, which was formed in Texas as a grass-roots training resource to help new lawyers in becoming competent criminal trial practitioners: “Visuals (graphics) such as time lines, charts, illustrations, maps, etc. are sufficiently important to communicating your message that you owe it to your client and yourself to learn how to incorporate visuals into your presentation.”

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We have used maps in any number of ways as demonstrative evidence to help make our clients’ cases understandable to juries and judges. Here are a few of them.

The demonstrative exhibit below is a screen capture of a PowerPoint interactive trial presentation developed to show that an area was not actually a wetland. Specific spots on the map are pegged to portions of a video that show that there is no water channel in the affected area.

 

The below animated demonstrative map is a screen capture of a PowerPoint interactive demonstration developed to show how New York City gets its water supply.  The demonstrative graphic successfully combines the known geography of the New York State region with the actual flow of water from the reservoirs. 


The next demonstrative exhibit, below, is a screen capture of a PowerPoint trial presentation developed to show how a conflict of interest was vetted in a government contracting False Claims Act dispute. This map is an excellent example of demonstrative evidence. It shows the entire United States and the locations in which vetting officers were located. 

 

The final piece of demonstrative evidence is a map of the United States showing where various air taxi helicopter accidents occurred, to show that they are a very small percentage of all general aviation accidents.

helicopter safety map

 

 demonstrative evidence

Tags: Trial Graphics, Trial Presentation, Demonstrative Evidence, Animation, Environmental Litigation, Trial Boards, Aviation Litigation

Using Scale Models as Demonstrative Evidence - a Winning Trial Tactic

Posted by Ken Lopez on Tue, Sep 27, 2011 @ 09:55 AM

 

When most people think of courtroom presentations, they think of computer-aided graphics like PowerPoint presentations or movies – or of written guides such as charts, graphs, and timelines. They don’t usually think of physical, scale-model creations.

In the appropriate cases, however, physical models or scale models can be extremely convincing to jurors, especially those jurors who are “kinesthetic learners” – those who learn best from three-dimensional objects. Every jury is likely to include one or even two of these people, and it is important to present information in ways that are suitable to their learning style.

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We have built effective models in a variety of case types including patent infringement cases, Hurricane Katrina cases, and aviation cases.

As Dallas attorney James L. Mitchell wrote in 2003 [pdf] in a paper presented at a litigation and trial tactics seminar:   Scale models which are fabricated specifically for a case . . . can serve an explanatory, illustrative function which is difficult to duplicate with any other medium. It is important to remember that even when the model is present in the courtroom, it is still useful to present it with photographs (and/or slides) or with the use of the courtroom video visualizer. After the jurors look at the model and grasp the overall spatial relationships involved, they may get a clearer view of the specific areas at issue through a photograph rather than the model.  

scale model demonstrative evidence​In a major patent case, we helped attorneys for Samsung Electronics Co. Ltd., show how electricity flows through computer memory by building a 15-gallon, clear plastic water tank. [View full article at right here pdf] At issue were Samsung patents for reading the electrical charges in computer circuitry. Samsung’s expert contended on the stand that the way the Samsung circuit was built, electricity would discharge completely under the proper circumstances. The opposing expert from In Matsushita Electric Industrial Co. Ltd. disagreed. In a courtroom demonstration, the water in the tank did in fact completely run out, into a tub on the floor.   ​In a month-long trial, the jury ended up rejecting a challenge to the patents that had been posed by Matsushita.

​In an aviation case, we built models of airplane instruments that were 4 feet by 4 feet in length in order to show how what happened when the knobs on the instruments were turned: The dials moved as well via a gear system that we designed and built.
flight instruments scale model demonstrative evidence
In a patent case involving blood plasmids, we built a set of wooden rings that were intended to show the composition and relative sizes of various competing products on the market.

blood plasmid scale model

Each of these examples nicely illustrates what is possible when good trial lawyers work with highly creative people to thoughtfully prepare for trial.  As we say -- it is a winning model!


scale models demonstrative evidence

 

Tags: Trial Consultants, Trial Presentation, Courtroom Presentations, Trial Consulting, Patent Litigation, Science, Scale Models, Aviation Litigation, Information Design

Aviation Litigation Graphics and Effective Demonstrative Evidence

Posted by Ken Lopez on Wed, Jul 6, 2011 @ 08:15 AM

Litigation graphics can be especially useful in aviation cases. Nearly every juror has been an airline passenger at some point, and jurors know that while most flights are uneventful, mistakes committed by airline employees or others can result in serious injury or death. A good trial exhibit will illustrate exactly what happened on the flight and will properly evoke people’s concerns about flying, without being improperly inflammatory.

For example, in two high-profile airline trials in the 1990s, using only the technology that was available at that time, we produced highly persuasive trial animations and other litigation graphics.

 

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In a wrongful-death trial arising out of the tragic crash of ValuJet Flight 592 into the Everglades in 1996, we produced a 3D animation that synched audio from the cabin, the pilots and air traffic controllers with the audio transcript and animation of the plane’s flight.


The well-documented cause of the crash was improperly stored oxygen containers, placed in a cargo compartment by a contractor, that contributed to a fire bursting through the floor of the passenger cabin during flight.

We were able to maximize the plaintiff’s damages by demonstrating the terror of the three and one half minutes it took the plane to fall from the sky. The litigation graphics animation is shown here without audio, as the audio is protected by court order.



These litigation graphics were not intended to depict exactly what happened on the flight as the fire burned through the floor of the passenger cabin, but rather were designed to allow the viewer to use his or her own imagination by hearing what happened through the eyes of the crew and the passengers and by observing the movements of the plane during the last moments of the flight.



The animation helped secure a very favorable settlement for the client and resulted in the trial lawyers on the case describing the animation as “an extremely important piece of evidence” that was “well, well worth it.”


In a different type of air accident case, we were instrumental in helping to secure the largest verdict stemming from airplane turbulence in history. This case arose from a 1995 American Airlines flight from Los Angeles to New York during which severe turbulence caused the plane to rise and fall 200 feet within less than one second, throwing passengers from their seats.


In order to effectively depict the traumatic experience that the passengers endured during the 28 seconds of intense turbulence, we created a 2D animated litigation graphic of an airplane drawn to scale that moved from left to right, leaving behind its path in the form of a graph, which showed the plane’s altitude as the 28 seconds progressed.

In the left hand corner, we superimposed an image of the Statue of Liberty and its measurements, so that jurors could compare them with the altitude changes the plane made and understand that what the passengers experienced was essentially like jumping off the Statue of Liberty. The use of the image of the Statue of Liberty was included in this litigation animation since the case took place in New York. 

A jury awarded $2.2 million to 13 plaintiffs in this case -- even though no one was seriously injured. The award was based almost entirely on allegations that the passengers suffered post-traumatic stress syndrome stemming from the 28-second ordeal during which they believed they were going to die.

 

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Tags: Trial Graphics, Trial Technicians, Trial Consultants, Litigation Graphics, Trial Presentation, Litigation Technology, Trial Consulting, Trial Technology, Juries, Animation, Aviation Litigation, Information Design

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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.


tony-klapper-headshot-500x500.jpg 

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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