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The Litigation Consulting Report

14 Places Your Colleagues Are Using Persuasive Graphics (That Maybe You're Not)

Posted by Ken Lopez on Thu, Oct 11, 2012 @ 08:15 AM


persuasive graphics trial litigation graphicsby Ken Lopez
Founder & CEO
A2L Consulting 

People often focus on the use of trial graphics in, well, trials. And there’s no doubt that that’s where persuasive graphics, presentations, and exhibits are most often used. But you might be surprised to see how many other places are appropriate for the use of litigation style graphics. Here are 14 good examples. 

  1. In motions: A juror will never see them but a judge will. For more on this topic, read our article on using litigation and trial graphics in motions.

  2. In briefs: Generally, trial graphics are used for perfectly normal reasons in briefs. Occasionally, an attorney will use them for the sake of humor or just to prove a point. See this comical courtroom brief.

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  3. In depositions: One of our clients recently asked us to prepare litigation graphics for depositions with an eye toward using those same graphics at trial.

  4. In mock trials: These can be an excellent investment of money and time in a case that is large enough and significant enough to justify the use of litigation graphics during the mock. See our article on using litigation graphics during a mock trial.
     
  5. In pre-trial hearings: We all know graphics are used in Markman hearings, but they are also frequently used in summary judgment hearings and in hearings on motions to dismiss. Again, the jury will not see the exhibits but a judge will.

  6. In arbitration and alternative dispute resolution: This use of trial graphics is overlooked more than others. Many arbitrations follow rules of evidence and resemble trials, and litigation graphics are quite appropriate in them and in ADR generally.

  7. In class certification hearings: Graphic demonstrations can be used in many aspect of class actions, and the issue of “predominance” is one in which they are especially useful.

  8. In advocacy and lobbying presentations: Hydraulic fracturing is a controversial issue, and the graphic that we prepared shows how fracking works and may dispel some unwarranted myths and fears about fracking. It's received 60,000 views as of this writing demonstrating how one might use PowerPoint and video to get a message out.

  9. In presentation graphics: Most of us prepare and deliver presentations as part of our work. This article on presentation graphics showing how the President prepares and delivers an effective visual presentation using persuasive graphics is a good guide for any of us.

  10. In e-briefs: This technique is being used more and more frequently by trial lawyers, and e-briefs are now including litigation graphics, sometimes animated graphics too.

  11. In e-discovery disputes: Sometimes, a courtroom presentation consultant will demonstrate what documents were missing and why sanctions were warranted. Sometime the graphics illustrate, to the contrary, that the documents were completely or largely produced or that the matter in dispute is not large enough to require sanctions. E-discovery hearings are utilizing persuasive graphics more and more.

  12. In settlement discussions: We have seen trial graphics prepared for settlement many times in the last two decades. Recently, however, the sophistication demanded of those graphics has been on the rise. Sometimes, even high-end 3-D animations are prepared. The trick, of course, is to balance the persuasive benefit of the graphics with the risk that settlement talks fail, and you tip your hand leading up to trial.

  13. In pre-indictment meetings: As government budgets have increased over the last four years, so too have pre-indictment meetings with prosecutors. We have prepared countless 'clopening' style presentations for these meetings hoping to help our client avoid indictment altogether. Well-thought-through persuasive graphics may help avoid a negative life or company changing event.

  14. In technology tutorials: No longer are technology tutorials used only in patent cases to help educate the judge. Litigators are requesting to submit them in other cases where educating the judge is beneficial to both sides. This could include complex financial cases, large antitrust matters with a complex product at issue and many other types of cases.
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Tags: e-Briefs, Patent Tutorial, Markman Hearings, Arbitration/Mediation, Presentation Graphics, Advocacy Graphics, Judges, Claim Construction, Depositions, White Collar, Class Action

Courtroom Graphics in Labor and Employment Cases

Posted by Ken Lopez on Tue, Nov 1, 2011 @ 10:02 AM


Labor law is a highly diverse and complex area. It can involve everything from claims for overtime pay to computer fraud and abuse act cases (CFAA) involving swindling employees to trials involving the allegedly illegal firing of an employee to complicated pension benefits issues. As labor and employment cases get more complex, the use of computer graphics during trial is also on the rise.

A recent description of an academic program in labor and employment studies notes that “the field of labor and employment law has never been more dynamic and challenging than it is at the beginning of the 21st century. Over the past forty years, sweeping changes in the interplay between the American work place and the law have affected the everyday lives of nearly all members of society.”

Labor cases often go to trial these days, and especially in cases that involve large numbers of employees, lawyers on both sides of a labor law case will often find courtroom graphics extremely useful to show trends, patterns, events that took place over a long period of time, or the real-life impact of a company’s policy or practice.

For example, overtime cases involving hundreds or thousands of employees are finding their way to court. These usually involve summarizing lots of wage and hour data on just a few courtroom graphics. This is what happened in this PowerPoint set of scenarios (below) involving a company’s employees and the hours that they worked over a period of years.



In an unusual labor law case involving federal government lawyers as employees, we helped a law firm establish a class of U.S. Department of Justice employees who were unlawfully denied pay for millions of hours of overtime pay. A judge in the U.S. Court of Federal Claims found that the highest officials of DOJ knew that the employees were working overtime and maintained two sets of books – one to include the overtime and one to exclude it. This was the first-ever class action web site that facilitated online opting in, and we designed the website.



In another series of courtroom graphics (below), we showed graphically how a seemingly complex special-employer fund worked, with employers and employees making contributions and funds being withdrawn throughout the year. We used financial metaphors that any juror would understand, such as checkbooks and piggy banks, to illustrate the concepts. We used a funnel to show the number of employees who started out eligible for the retirement benefits and then the number who remained eligible after other qualifying criteria were used.

courtroom graphics employment

courtroom graphics labor

courtroom graphic labor 
Similar to securities cases, labor and employment litigation has lagged other types of litigation (e.g. patent litigation and antitrust litigation) in the adoption of courtroom graphics. Now that labor cases are no longer a simple battle of he said, she said and computer forensics are routinely revealing playing a larger role, it is essential to use courtroom graphics to help a jury understand and appreciate your client's position. 

Tags: Trial Graphics, Litigation Graphics, Trial Presentation, Courtroom Presentations, Trial Consulting, Labor and Employment, Class Action

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.

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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

Defeating Class Certification with Trial Presentation Graphics

Posted by Ken Lopez on Tue, May 3, 2011 @ 03:14 PM

When a major company is the target of a purported class action filed by consumers who say that they are representative of a large group that have common claims against the company, the issue of class certification becomes a crucial one. The viability of the case often stands or falls on the issue of certification.

Federal Rule 23 imposes four requirements for a class action: (1) the class must be so large as to make individual suits impractical, (2) there must be legal or factual claims in common, (3) the claims or defenses must be typical of the plaintiffs or defendants, and (4) the representative parties must adequately protect the interests of the class. Many states follow the federal requirements or have their own, similar, requirements. 
complimentary trial graphics demonstrative evidence cleWhether the case was filed under state or federal law, one of the key practical requirements for a class action is that the issues that members of the purported class have in common must predominate over the issues that are distinctive to each specific member of the class. 

As is correctly noted in this article describing class actions, in many cases, the party seeking certification must show that common issues between the class and the defendant will “predominate” in the proceedings, as opposed to individual fact-specific issues that can arise between class members and the defendant.

Graphic demonstrations can be used in many aspects of class actions, and the issue of “predominance” is one in which they are particularly helpful. In Stonebridge Life Insurance Co. v. Pitts, we created an interactive trial exhibit, using PowerPoint, for a hearing to try to defeat class cert in a Texas state court. In this case, plaintiffs claimed that they had all ended up purchasing insurance that they did not want, as a result of a telemarketing program run by the defendant that included a negative option. They sought to certify a class action that would, they hoped, eventually provide restitution of their insurance premiums.



Our trial exhibit highlighted the important differences between the class representatives, the class members, and other customers (asserting consumer protection claims). By clicking on hot spots on the exhibit, the user is able to call up customer quotes that clearly show that different consumers who were purported class members had distinctly different concerns from each other and thus that the common issues did not “predominate.”

“It was easy and convenient to have the premiums automatically charged on my Penney’s account,” one consumer was quoted as saying. Another said simply, “I called Stonebridge and changed my address.” Another said, “I received a partial refund.” 

Without the clear trial presentation graphics that we provided, it would have been difficult for anyone to understand the wide diversity of experiences and attitudes that members of the supposed class had actually had. This is another instance in which “showing” is better than just “telling.”  Class certification was ultimately defeated.

Tags: Trial Graphics, Litigation Graphics, Trial Presentation, Trial Consulting, Opening, Class Action, 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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