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The Litigation Consulting Report

Trial Presentation Graphics: Questioning Climate Change in Litigation

Posted by Ken Lopez on Tue, Jun 28, 2011 @ 08:27 AM

In trial presentation graphics, a great deal can depend on the quantity of data that is presented to the jury and on the way in which it is presented.

For example, it has become conventional wisdom that humans generate pollution in the form of carbon dioxide, that carbon dioxide and other pollutants cause a greenhouse effect on the planet, and that this effect noticeably raises global temperatures and/or causes climate change. Al Gore's movie, An Inconvenient Truth, cemented this belief in the minds of the public and future jurors, largely through the use of effective visual presentations.
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The U.S. Government chart below captures the conventional wisdom well. As large quantities of carbon dioxide entered the atmosphere with rapid industrialization in the past 100 years or so, global temperatures went up, it shows.

Trial Presentation Graphics Climate Change

Because of the recent rapid spread of the conventional wisdom, as illustrated in charts like this one, it has become almost unthinkable to suggest an alternative. But in the trial context, it can be necessary to do just that.

Climate change litigation is making its way through court systems around the world. The targets can be government agencies or large power companies, especially the coal-fired power plant industry. Should a jury be called upon to decide such a case, conventional wisdom will be on the side of the plaintiffs. But the defendants are entitled to show their version of the world’s fluctuations in average temperature – without falsifying facts, of course.

The answer is to add more data that can call into question the conventional wisdom. Changing the scale of the horizontal and vertical axes can change the climate story.

We believe the above 2.5-minute PowerPoint presentation goes a long way toward making the defendant's case that global warming of human origin is not a scientific certainty. By expanding the time frame from 120 years or 1,000 years to 800,000 years or even more, this trial presentation graphic tells a different story from the conventional wisdom.

In the courtroom, our goal in using such trial exhibits would be to create enough doubt about the plaintiff's case so that a jury cannot reasonably award money to the plaintiff.  Using additional data from scientifically valid sources and from paleoclimatologists, telling this story in way that creates doubt is possible.

Our point in creating these trial presentation graphics is not to disprove climate change. Rather, our goal is to show how even the most skeptical viewer can be persuaded through the use of effective presentation graphics. Wasn't that part of what Al Gore taught us all?

We are in the business of telling the right story, our client's story. You can almost hear the closing argument that a defendant’s lawyer would make: "More data is better, isn’t it?  Does the other side want you to look at less data?  Do they want to hide the whole truth, inconvenient though it is?”

We welcome your feedback and encourage your comments below.

Click me   Science Issues Experts Trial Litigation Litigation Graphics

Tags: Energy Litigation, Trial Graphics, Litigation Graphics, Trial Presentation, Trial Consulting, Science, Environmental Litigation, PowerPoint, Timelines, Clean Air Act, Climate Change, Information Design

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

Power Plant Legal Animations and Effective Information Design (pt. 2)

Posted by Ken Lopez on Fri, Mar 11, 2011 @ 12:33 PM

Part 2 of 2 (go to part 1)

I will begin by reiterating key elements of the first post in this this two part series.

More than 20 years ago, the Justice Department began filing lawsuits against a large number of coal fired power plants based on a Clean Air Act provision called New Source Review (NSR).  The NSR process calls on power plant operators to seek EPA review and approval before making modifications to their power plant that would significantly increase emissions.  An exception exists routine maintenance.  Since Congress neglected to define routine and significant, litigation has followed over these definitions.

Animators at Law has worked on many of these cases and created trial graphics and legal animations.  I want to share portions of a 13-minute animation used in the opening of an NSR bench trial in 2003.  We worked on behalf of the power plant owner in this matter.  We faced multiple challenges such as:

  1. conveying the scale of the plant;
  2. explaining the plant's operation;
  3. showing how the projects in question were not large;
  4. showing how these projects were in fact routine maintenance;
  5. showing how none of the projects increased emissions.
After the Justice Department opened its case with an animation that compared the size of parts changed during routine maintenance to elephants, houses and semi-trucks, we had to make the point that while large parts were changed, they are relatively small in the context of such a large facility.  With billions of dollars at stake, Animators at Law prepared a large number of trial boards and legal animations for the case.

In part one of this post, I shared how Animators at Law compared the size of the facility to Busch Stadium using legal animations.  Below is an example of how we combined technical illustration with a legal animation overlay to provide an overview of the plant, to explain how the plant worked and to again emphasize scale.

Below is a trial exhibit used in an NSR trial that effectively compared the routine maintenance of the bridge to the routine maintenance at a coal fired power plant.  We think it was a very effective analogy and a leading environmental publication agreed and remarked on its use.

New Source Review Clean Air Act Trial Graphics

Below is another legal animation showing some highly skilled 3-D modeling and animation used in another New Source Review Case.  The 3-D model was used in other legal animations and graphics to explain the unique geography of the plant.

10 Reasons Trial Graphics Prep Enhances Win Rates

Tags: Energy Litigation, Trial Graphics, Litigation Graphics, Trial Presentation, Animation, Environmental Litigation, Psychology, Judges, Clean Air Act, Information Design

Power Plant Legal Animation and Effective Information Design

Posted by Ken Lopez on Thu, Mar 10, 2011 @ 10:34 AM

Part 1 of 2 (go to part 2)

In the 1990's the DOJ/EPA initiated litigation against a large number of coal-fired power plants based on the New Source Review (NSR) process under the Clean Air Act.  Among other things, the NSR process requires operators of coal-fired power plants to seek EPA review and approval to make modifications to their plant that would increase emissions.  Exceptions exist for routine maintenance at the plant and any emission increase must also be significant.  Unfortunately, Congress neglected to define routine and significant.

Animators at Law has been called upon to create legal animations and other information design focused trial graphics in a number of these cases.  These cases typically have billions of dollars at stake, and the more EPA-friendly the current presidential administration, the more cases get filed.

In this two-part post, I want to share portions of a 13-minute animation created for use in opening in one of these NSR bench trials.  We worked on behalf of the power plant operator in this matter, and we faced a Government trial team who came armed with their own legal animation.

Throughout the history of NSR cases, the Government has taken the position that any big change at the plant requires EPA approval.  This includes large parts that are changed routinely.  It turns out, however, that most parts in a plant this size are large, and the government argues that by maintaining the plant, one is extending its operating life thus increasing emissions.

The Government opened its case with an animation that compared the size of parts changed during routine maintenance to elephants, houses and semi-trucks.  Our challenge was to make the point that while large parts were changed, they are relatively small in the context of such a large facility.

We knew two things that were helpful in this bench trial.  First, the government was comparing our parts to semi-trucks.  Second, the judge was known to visit the old Busch Stadium where the St. Louis Cardinals played and where semi-trucks were often parked outside.

The message delivered by the clip below in opening was: yes, we changed big parts, but everything at our plant is big, thus we must ask, big compared to what?  Is a semi-truck really that big compared to not one Busch Stadium but twenty?  I think this legal animation reflects a good use of information design to convey scale when billions of dollars where at stake.

10 Reasons to Begin Trial Graphics Preparation Early

Tags: Energy Litigation, Trial Graphics, Litigation Graphics, Trial Presentation, Trial Consulting, Animation, Environmental Litigation, Clean Air Act, 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.

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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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