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The Litigation Consulting Report

Litigation Graphics in White Collar Cases

Posted by Ken Lopez on Thu, Jan 26, 2012 @ 08:58 AM


litigation graphics white collarWhite-collar criminal litigation is one area in which practitioners have not been as quick to adopt the use of litigation graphics as in other litigation areas such as intellectual property, environmental litigation, or products liability.

However, we are seeing more white-collar work at A2L Consulting than ever before. It seems that defense lawyers are realizing that these days, many federal criminal laws, and alleged violations thereof, can be just as complex as a patent dispute or a commercial case. 

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Our white-collar criminal work usually involves helping an individual accused of a crime avoid indictment or in aiding in the defense at trial.  More often than not, the allegations relate to some financial fraud and our work over the years, either for the prosecution or defense, has involved WorldCom, Enron, Celebrities, Polititions and even Usama Bin Laden (our UBL-related work was on the prosecution side).

In a fascinating article published last year in a legal periodical, Kerri Ruttenberg, a litigation partner at Jones Day, summarized a white-collar criminal case in which she used litigation graphics to illustrate the complex issues:

I often use a flow chart or timeline to condense large amounts of testimony or other evidence into a single visual exhibit to facilitate the jury's assimilation of that information. I build the chart or timeline gradually in front of the jury to control the jurors' intake of the information, and I use other design elements to reinforce key themes. For instance, during a complex white collar trial in federal court that lasted nearly four months, the evidence established that three individuals took many actions to further an accounting fraud. But my client had no knowledge of and did not participate in those activities, despite the government's allegations to the contrary. I designed the closing argument so that all of the visuals distinguished between my client (with blue slides), and the other individuals (with red slides). Later in the closing, a timeline was an effective tool for assimilating all of the incidents alleged by the government, and the blue and the red came together to graphically reinforce a key defense theme - that others (in red) consistently took unlawful actions while my client (in blue) was engaged elsewhere. Even if the jurors failed to remember each incident depicted on the timeline, they would recall the red and blue distinction and therefore would recall this important, overarching defense theme.

Ruttenberg also wrote that she uses high technology when needed but that she found a low-tech solution helpful in a white-collar case when a surveillance video was at issue:

I tested the video using a laptop, projector and large screen, but the image was too dark. So, for my closing argument, I abandoned technology entirely and instead used a large foam board to display stills from the videos arranged like a film strip. The images were clear and bright, and I held them up for the jury as I walked from one end of the jury box to the other, pointing out the important details. The jurors had a great view and were clearly engaged in the presentation, leaning forward and taking notes.

Our litigation graphics experience has been similar in white collar cases.  At A2L, when a celebrity was accused of a crime, we sprung into action working 24/7 to arrange a team of artists who could help demonstrate to prosecutors, through illustration and through a group of posed actors, that the alleged crime could not have occurred as described.

In a fraud case, working for the prosecution, we developed litigation graphics, such as the PowerPoint closing below that incorporated several classic demonstrative elements cleverly into one chart.  In effect, it is a players chart, a timeline and an elements/verdict form demonstrative exhibit all in one litigation graphic.

 

In another case where we assisted in the defense of a public official, we used a common technique during closing litigation graphics to show how many counts could not be proved and also emphasized the standard of proof.

 

Recall always the fundamental reason that litigation graphics emerged as an industry 25 years ago. Almost two-thirds of the population prefers to take in information visually, and on average, only 2 jurors in a 12 person jury prefer to learn by listening. If you are not supplementing a well crafted argument with litigation graphics that are more than just words on a slide, you are likely to be misunderstood by most jurors and many judges. 

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white collar criminal defense litigation graphics

 

Tags: Trial Graphics, Litigation Graphics, Courtroom Presentations, Trial Consulting, Demonstrative Evidence, White Collar, Checklists

Litigation Graphics: The Power of Checklist Trial Exhibits

Posted by Ken Lopez on Fri, Jul 15, 2011 @ 09:52 AM


Although checklists are not as dramatic as other types of litigation graphics such as three-dimensional animations or interactive PowerPoint timelines, they can be very effective in persuading juries on key issues and in making it easier for them to recall the important elements of a case.

In the trial context, checklists are usually presented as straightforward representations of the factual or legal elements of a case that can be filled in with a yes or no answer.

These apply accepted principles of human psychology. A good salesperson can often take control of a conversation by getting a prospect to answer his or her questions with a series of “yeses.” A great speaker can engage an audience by using repetition artfully to carry the audience along. Similarly, a checklist can help make technical points much clearer and can help a judge or jury organize material that is potentially difficult by breaking it into smaller pieces.

litigation graphics prepared early win more cases

An article published in April 2007 in Champion, the magazine of the National Association of Criminal Defense Lawyers, discussed a study that tested whether jurors gain a better understanding of complex evidence related to mitochondrial DNA (mtDNA) if they are given a checklist that guides them through the evidence by asking them a series of questions.

The study, funded by the National Institute of Justice, concluded that “jurors provided with an mtDNA checklist performed better (on an expanded Jury Comprehension Scale) than those without access to the checklist.” The jurors understood the complex testimony of expert witnesses better if they had a checklist to break down the issues. Accordingly, the NACDL recommended that practitioners consider using checklists, among other techniques, to increase juror comprehension.

For example, by paying attention to the medical malpractice checklist below that we prepared as a trial exhibit, jurors could easily understand that the patient experienced the same symptoms before the alleged malpractice as afterwards and that damages should not be awarded.  Although tens of millions of damages were alleged, none were awarded. Listing six different symptoms and having each one answered in precisely the same way not only breaks the evidence down in a comprehensible manner; it also places the jurors in the habit of answering in the same fashion for each symptom.


 

Similarly, in the checklist below, which we used in a fraud case, we broke out the legal elements of fraud and of conversion of a corporate opportunity and answered “no” to the question of whether each one had been adequately proved. By conceding some "yeses," we successfully earned credibility with the jury.


 
And the litigation graphic checklist below, which was introduced in a patent invalidity case, breaks down the invalidity claim involving indoor ice making systems for refrigerators and other refrigerator technologies into a dozen specific aspects of the technology, making it easier for jurors to understand.


 
 Litigation graphics and juror communications

Tags: Trial Graphics, Litigation Graphics, Trial Presentation, Trial Consulting, Juries, Patent Litigation, Science, Psychology, Checklists, Medical Malpractice

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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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