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The Litigation Consulting Report

ITC Hearings: An Overview from Section 337 Practitioners

Posted by Ken Lopez on Tue, Oct 4, 2011 @ 07:30 AM

As the Washington Business Journal recently wrote, the International Trade Commission (ITC), once an obscure federal agency, has become the epicenter of high-end international patent law in recent years. Its docket is rapidly growing, and its cases can be worth sums in the hundreds of millions or billions of dollars.

And all its trials occur in a nondescript federal building in Southwest Washington, D.C., not far from our Washington, DC headquarters.

patent litigation ebook

A holder of a U.S. patent typically files a case at the ITC in order to block an allegedly infringing product from being imported into the United States. The ITC cases are used as an alternative to or in conjunction with patent litigation. These cases are filed under Section 337 of the Tariff Act, which prohibits unfair competition in imports into the United States. There are no juries, but it remains extremely important to capture and hold the attention of the judge.

We have been very active in preparing exhibits for use in Section 337 cases at the ITC. For example, we developed this PowerPoint presentation to show the nature of a patent for a ground fault interrupter.

In some ways, ITC work is a world unto itself – one that requires a specialized knowledge of the court and of its predilections.

Jim Adduci, an experienced ITC practitioner and managing partner of well-known D.C. international trade law firm Adduci, Mastriani & Schaumberg LLP, says, “At the ITC under Section 337, it’s due process with dispatch. Final decisions in just over a year, and an automatic injunction if you win, explain why the ITC docket has nearly tripled in recent years. Patent-savvy judges and consistent, well-reasoned decisions by the commission itself make the ITC the forum of choice for international patent-based trade disputes.”

Michael Oblon, a partner at Perkins Coie and a past client of ours, says, “When representing a respondent in a multi-party investigation at the ITC, it is critically important to have effective visual presentation materials that enable the administrative law judge to easily discern how your client's devices differ from those of the other co-respondents. I have had great success by using visuals that capture the ALJ's attention while quickly and accurately conveying the facts needed to make my case.” 

Blaney Harper, a partner at Jones Day and also a past client, says, “The key at the ITC is to know your judge. You've got to get his or her attention and focus the judge as quickly as possible on the main issues that you need to win. This is especially true on cross-examination with regard to demonstrative evidence. If you bore the judge, the issue you care about may be missed.”

Andrew Thomases, a partner at Skadden, Arps, Slate, Meagher & Flom and another past client, agrees. “Presenting at the ITC requires a fast-paced judge-focused presentation. Since the issues we typically present are complex and technical in nature, use of compelling visual presentations help the judges quickly process the key information in a case,” Thomases says.

While ADR in all forms is common and increasing in frequency, so too are proceedings at the World Bank, the ICC, the FTC and the ITC.  In each of these venues, costs of litigation are generally lower than a district court proceeding, rules are somewhat more liberal and they offer a legal playing field that favors high-caliber litigators.

With the passage of patent reform, new ALJ-led patent review proceedings at the PTO will likely require similar litigation skills and tactics to those of the ITC. As these judicial proceedings supplant some patent court cases, patent litigators must be prepared for faster and more efficient presentations.

To learn more about patent litigation trial presentation, we suggest downloading our free ebook on the topic.

To learn 5 Ways to Research Your Judge's Likes and Dislikes, click here.

 

Tags: Patent Tutorial, Trial Graphics, Litigation Graphics, Trial Presentation, Courtroom Presentations, Litigation Technology, Animation, Patent Litigation, Illustration, Judges, ITC

Patent Comes Alive! Turning Patent Drawings into Trial Presentations

Posted by Ken Lopez on Thu, Sep 22, 2011 @ 08:15 AM


One of the unusual techniques that we are using in patent litigation trial presentations is something we call Patent Comes Alive. This process begins with patent drawings and goes well beyond them.
 
Patent drawings themselves are a unique and highly specialized form of art. Their purpose, of course, is to illustrate the item to be patented and to show exactly what it is and what the patent applicant is claiming about the invention. For nearly all patents, the Patent and Trademark Office requires the applicant to furnish drawings.

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That is not all: The Office also requires the drawings to be in a particular form.

Well-known patent blogger Gene Quinn has written that the Patent Office “specifies the size of the sheet on which the drawing is made, the type of paper, the margins, and many other hyper-technical details relating to the making of the drawings. The reason for specifying the standards in detail is that the drawings are printed and published in a uniform style when the patent issues, and the drawings must also be such that they can be readily understood by persons using the patent descriptions.”
 
But these very characteristics that make a patent drawing precise and capable of being relied on in court can also make the drawing lifeless and impenetrable. Our technique, “Patent Comes Alive,” takes an existing patent drawing and animates it, making it understandable to a jury.
 
In a case involving patent infringement of a paper/CD shredder, for example, we brought the patent drawing to life by animating it in a PowerPoint presentation. The animation made it easy for the jury to see not only how the shredder worked but how a competing product infringed upon the patent.  

   
In another patent case, we started with a patent drawing of a vending machine patent. We looked inside the machine with animation, showing how it dispenses products.  

 
In yet another patent litigation, we got a favorable outcome for a client in a major case involving coke drum de-header valves after we took a patent drawing and brought it to life.  

     
             
This type of animation is yet another instance in which a skilled trial presentation consultant can illustrate a highly technical subject and make it easy for a lay juror to understand.

A patent drawing can be daunting and complex to someone who is not an engineer – yet basic tools such as PowerPoint, in the hands of the right courtroom consultant, can make the drawing a relevant and memorable part of a trial presentation.

Want to learn more? Download our newest and complimentary e-book: The Patent Litigation Trial Presentation Toolkit.
 

Tags: Patent Tutorial, Trial Graphics, Litigation Graphics, Trial Presentation, Courtroom Presentations, Trial Consulting, Animation, Patent Litigation, PowerPoint, Illustration

Securities Litigation Graphics and Juror Communication

Posted by Ken Lopez on Thu, May 12, 2011 @ 11:00 AM


Presenting securities cases to juries can involve difficult problems. Many jurors may have investments in the stock market or in mutual funds, directly or through their retirement plans, and may have some sense of how securities markets work. Some jurors, on the other hand, find all financial matters to be daunting. Furthermore, even fairly sophisticated jurors don’t have a good knowledge of accounting terms or of securities law concepts such as “causation” and “fraud,” which may have quite different shades of meaning in the law from their meanings in everyday life.

Thus, it is extremely important to present securities cases, which may involve issues of insider trading, fraud, or self-dealing, in ways that a jury can understand based on their basic knowledge of how a market works and their day-to-day sense of fairness.

Using trial technicians for document intensive cases like securities litigation is mandatory

In 2009, Kevin LaCroix, an attorney and insurance executive, wrote on his blog that covers issues of directors and officers liability, that in a particularly complicated securities case, an attorney referred in his opening statement to “EBIDTA; purchase accounting; debt service; noncash earnings; nonoperational accounting entries; free cash flow; liquidity; and dividends.” Another opening statement cited “negative cash flow; generally accepted accounting principles; and market capitalization,” and another referred to “options exercises; hedging and hedging transactions; and tax advantages.”

LaCroix concluded, “It is not that juries are incapable of figuring out these kinds of things. The problem is that these kinds of things put an enormous burden on the lawyers, the witnesses and the court to keep things clear; to avoid letting the trial get bogged down in technical minutiae; and making sure the jury is neither confused nor bored to death.”

We have produced litigation graphics that are appropriate for jurors at all levels of knowledge. One basic and successful trial exhibit that we prepared simply asks, “What Is a Stock Exchange?” and responds that like a supermarket for groceries, a stock exchange is simply a central location to purchase the stocks of various companies. This is illustrated by a graphic of a supermarket and of the New York Stock Exchange, with examples of what is offered at each.

Trial Graphics: What is a stock exchange illustration?

Originally printed as a large format trial board, another of our litigation graphics that answers a more sophisticated question is composed of 50,000 small dots, each representing the trade of 10,000 shares of stock. One tiny dot in the vast matrix represents the trades that were the subject of the lawsuit involving allegedly improper laddering transactions. The caption next to the dot reads, “Defying common sense, this dot would have to affect all others.” This caption appeals to jurors’ sense of logic, and the vast sea of dots is a memorable image. 

Explaining securities litigation and laddering to jurors

In yet another case, we produced a set of line graphs in PowerPoint to show that over a period of time, a major investment bank was reducing its exposure to one country’s debt privately, while promoting the debt publicly. Again, a graphic illustration forms a clear depiction of a basic securities-law principle: One shouldn’t say one thing publicly while doing the opposite in private.



By appealing to a juror's common sense and using litigation graphics, a trial team can persuade even the most financially ignorant in securities litigation.

Tags: Trial Graphics, Litigation Graphics, Trial Presentation, Juries, Animation, PowerPoint, Illustration, Opening, Securities Litigation, White Collar, Information Design

Environmental Litigation Demonstrative Exhibits and Trial Graphics

Posted by Ken Lopez on Mon, May 9, 2011 @ 12:49 PM


In a trial in which harm to the environment is at issue, the major challenge for any litigator is to present complex scientific information in a way that is easy for an average person to understand. For our litigation graphics consultants, this is true whether we are helping to represent an alleged polluter against a landowner or other person who alleges environmental damage, or whether it’s an insurance coverage case in which our client is asking an insurer to cover a claim under a business insurance policy. 

In many cases, the task is further complicated by the fact that environmental harm occurs over a period of years or even decades.  In such situations, it is crucial to show not only how the damage occurred initially but how it became more serious, or less serious, over a period of time.

Both sides in a major environmental case usually bring in environmental experts to help explain their side of the case to the jury. However, these experts are trained in science and engineering, not in information design, so their testimony, however scientifically compelling, may be presented in a way that is too complex to appeal to jurors. An astute expert knows that their testimony can be bolstered by the inclusion of a visual presentation and trial graphics.

Neil Shifrin, Ph.D., a Director at Gnarus Advisors LLC, a leading consulting firm specializing in expert analysis, litigation testimony and business advisory, says, “Clear, graphical presentations of complex scientific information can be critical to judge and jury understanding.  Graphical portrayals are almost always superior to tabulated information, but the challenge is to keep it accurate while making it interesting and most pertinent.  In court, it is true that a (good) picture is worth a thousand words.”

For example, Animators at Law produced a 3-D animation for an insurance coverage mediation. This showed that one block in a tank had been installed sideways by the property owner. As a result, oil, solvents and cleaning agents leaked into the spaces between cinder blocks over a period of time. Because this graphic was intended for a mediation, not a court case, we were free to use a glowing green color to highlight the pollutants – a feature that would have been considered overly prejudicial in a jury trial under Rule 403.



In another case, we used a three-dimensional cross-section to show the path that PCE (perchloroethene) plume took when it was released into the environment and how it ultimately contaminated the bedrock in the area and the water supply. This exhibit was built in PowerPoint and combines 3-D technical illustration with PowerPoint to create an animated effect in a cost effective manner.



Finally, in yet another case our task was to show that a particular piece of land was not a wetland under the applicable law. We used animated bar graphs to show water levels at test wells. These showed that groundwater did not stay close enough to the surface for the area to be considered a wetland. The key to this exhibit was that it was not static in time. It used data taken from several consecutive years to show a moving water level that at no point reached the required level of one foot.



In each of these examples, complex concepts were distilled down to an easily digestible level using trial exhibits.  Care should be taken in environmental litigation to ensure that any judge or juror can quickly understand the information being presented.

 

Download Environmental Litigation E-Book Here

Tags: Trial Graphics, Trial Consultants, Litigation Graphics, Trial Presentation, Trial Consulting, Juries, Animation, Science, Environmental Litigation, PowerPoint, Illustration, Information Design

Construction Litigation Graphics: Construction Delay or Defect

Posted by Ken Lopez on Thu, Apr 28, 2011 @ 09:37 AM


Construction cases are among the most difficult for even the most experienced litigator to present to a jury.

As Gary Greenberg, a professional engineer and frequent expert witness in construction cases, has written on a construction blog, trials involving construction defects, failures to perform up to specifications, scheduling problems, and similar issues create many practical problems for trial lawyers.

Greenberg notes that jurors often become lost in technical jargon, don’t understand the sequence of activities required to complete a construction project or the relationships and responsibilities of the various parties, and fail to see why every major construction project is truly unique and cannot be compared to producing widgets in a factory. 

Greenberg, who works for Arcadis, a well-known consulting firm, writes that in one case in which he testified, a jury found that a design professional violated the standard of care, caused a six-month delay to the opening of a new hospital wing, and was responsible for the need to rework various essential systems, but was assessed only one dollar in damages by the jury. 

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Clearly, many otherwise skillful attorneys have often failed to do a good job in persuading juries to award damages to their clients, even when there has been considerable proof of a significant loss.

We are aware of all these issues and problems, and we have prepared a number of trial presentations that have successfully set forth a complex set of facts in a way that is appealing and intuitive to jurors.

The “Construction Litigation Graphics Showing Construction Delay” animation covers months of construction in less than three minutes, using small boxes to represent panels needed in the project and to show how many areas were left unfilled during construction. This gives jurors a clear picture of the delay that occurred in this particular instance.



In a construction project, delays in one part of the project often have cascading effects and cause construction delay in the entire project. Jurors often have a hard time understanding the concept of a “critical path” – a sequence of activities that must be followed in order to get the project done. This idea is developed on a visual basis in the below overview trial exhibit, “Understanding Construction Schedule Charts.” We use standard construction chart flags, colored bars, and other graphic devices to introduce the subject.

Critical path and construction litigation trial graphics

A typical construction defect case, involving an inadequate technique for soil compaction, is clearly explained in our trial graphic, “Actual vs. Recommended Structural Compacted Fill.” Here we show graphically how a building footing was placed on top of unsuitable or uncompacted soils, potentially leading to serious damage.

Construction trial graphics involving construction defect
These trial exhibits show the breadth of ways in which we can make complex construction concepts clearer to juries.

Tags: Trial Graphics, Litigation Graphics, Juries, Animation, Illustration, Construction Litigation, Construction Defect, Construction Delay, Information Design

Patent Infringement Trial Graphics: Illustration + PowerPoint

Posted by Ken Lopez on Fri, Apr 1, 2011 @ 02:16 PM


Still think PowerPoint is a trial presentation tool primarily for bullet points and text?  Allow me to show you otherwise!  

Like a good salad, PowerPoint is all about the ingredients you put into it.  Bad ingredients (e.g. text only, bullet points, clip art, poor color choice, etc.) equal bad PowerPoint trial graphics.  Good ingredients (e.g. technical illustration, well-designed backgrounds, quality transitions between slides, animation, etc.) equal winning trial graphics. 

Since the introduction of the 2003 version,  PowerPoint has been a go-to tool for patent litigators in claim construction hearings, tutorials, at the ITC and in patent infringement trials.  Out of the box, PowerPoint is simply a blank canvas that allows text, clip art and basic shapes to be combined on a slide.  However, in the hands of an information designer at a trial consulting firm, it is a powerful tool indeed.  Like a master painter with high quality paints, skill and experience, the blank canvas of PowerPoint can be filled with true works of information art in the hands of a skilled information designer.

The movie below contains four examples of patent infringement trial graphics created by Animators at Law.  Three of the four examples were created for jury trials or Markman hearings.  One example was built for a §337 ITC hearing.  All examples combine technical illustration and PowerPoint animation in a clever way.  The examples are:

  • A patent litigation PowerPoint animation showing how an MRI image is captured locally and stored remotely.
  • An animated patent infringement graphic showing video streaming server technology
  • Trial graphics showing the patented process by which adipose derived stem cells are created.
  • Trial exhibits for an ITC hearing showing how a ground fault circuit interrupter works.




Although presented in video format here, each of these trial presentations was played directly in PowerPoint.  I believe that each of these trial exhibit examples represents the state of the art in patent litigation trial graphics.  By using trial exhibits like these in your next patent infringement trial or Section 337 ITC hearing, a patent litigator will be a more effective communicator, will win more cases and will do so on a shorter/more efficient trial schedule.

Trial graphics prepared early means more wins 

Tags: Trial Graphics, Litigation Graphics, Trial Presentation, Courtroom Presentations, Trial Consulting, Trial Technology, Juries, Animation, Patent Litigation, Science, PowerPoint, Illustration, Information Design

Semiconductor Patent Litigation Graphics (What is a MOSFET?)

Posted by Ken Lopez on Tue, Mar 8, 2011 @ 11:47 AM

At Animators at Law, roughly 60% of our work involves patent litigation graphics.  These patent cases run the gambit from light bulbs to software to semiconductors to drug eluting stents.  Since a jury is often called upon to decide the key issues in the litigation they must understand the underlying technology.

There is no substitute for well-crafted graphics in a patent jury trial involving technology.  Our firm has been creating litigation graphics in intellectual property litigation since 1995 often utilizing our former patent litigators has graphics consultants.  While our delivery medium is often PowerPoint, the underlying graphics or animation are usually created in a more sophisticated illustration software tool.

We routinely use visual analogies as a teaching and persuasion technique.  Specifically, we use analogies that relate complex subject matter to something familiar or easily grasped by the fact-finder.  We have used stadiums to relate scale in a bench trial where the federal judge was a season ticket holder, the Statue of Liberty to convey the severity of the turbulence and an out of business service station to explain expenses involving the storage of nuclear waste.

In the patent litigation graphic below, our challenge was to explain a protection MOSFET or metal–oxide–semiconductor field-effect transistor.  In non-technical jargon, a MOSFET is a switch used to control the flow of electronic signals.  We ultimately needed the jury to achieve a much deeper understanding than this definition, however, and this meant starting with a basic understanding of how a MOSFET works.

In the movie, you can see that we have used PowerPoint animation and a plumbing analogy to lay the foundation for an understanding of a MOSFET, transistors and semiconductors.  After all, like a valve attached to your sink, a MOSFET is simply used to control flow.

 

10 Reasons to Prepare Trial Graphics Early 

Tags: Trial Graphics, Litigation Graphics, Trial Presentation, Courtroom Presentations, Trial Consulting, Juries, Animation, Patent Litigation, PowerPoint, Illustration, 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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