The Litigation Consulting Report

7 Lessons of Design That are Universal (in Trial Graphics or Anywhere)

Posted by Ken Lopez on Thu, Apr 9, 2015 @ 11:35 AM

 

good-design-parking-signs-litigation-graphicsby Ken Lopez
Founder/CEO
A2L Consulting

I love great design. While it is becoming somewhat more common than it used to be, it’s still rare – and it’s even rarer in the courtroom.
 
To be clear, my definition of great design includes everything from an interface like what one sees in a Tesla to the adaptive reuse of a historic structure to a well-crafted litigation graphic that tells a story clearly and without the need for further explanation.
 
One place we don't expect to see great design is in parking signs, when we are parking the car and trying to figure out where to park and where not to park. I live in Washington, D.C., where they have some signage that would seem to violate every principle of great design. This one pictured here is a classic, and you probably have some just like it in your town.
 
Does that look familiar? Well, one pilot program in Los Angeles is trying to change all that and make parking signs inspiring from a design perspective. Each sign contains a simple chart that is immediately clear to almost anyone. Green and red overlaid with symbols helps provide a clear message. Here’s an example below.
 
los-angeles-parking-sign-good-design-litigation-graphics-timelineThere is of course a lesson for the courtroom here. Clear design matters, and it matters a lot. If your litigation graphics look more DC than LA, you’re probably leaving judges and jurors frustrated -- just as frustrated as you feel when you’re trying to interpret a poorly designed sign with lots of text.
 
As Jonathan Ive, Apple’s longtime chief designer and a close associate of the late Steve Jobs, once said, “Make each product the best it can be. Focus on form and materials. What we don’t include is as important as what we do include.”
 
Let's review seven key principles of good design when it comes to the courtroom.
  1. In all presentations, ban the bullet point. The only thing that on-screen bullets kill is your persuasion.
  2. Use well-crafted exhibits. The better looking your trial graphics, the better received you will be.
  3. Don't use only pictures. People learn in different ways, and both surprise and changing mediums of persuasion will make you more effective.
  4. Don't use only words. Same as above.
  5. Don’t use only static slides. You want to present more like the national news and less like a CLE.
  6. Use lots of slides. More slides is generally more effective. 
  7. Stick to one concept per click. People need more time to digest information than you think they do.

If you start here, you may not be as great a designer as Ive, but you will be a long way down the right path.

Other A2L Consulting articles and resources focused on good design in trial graphics, litigation graphics and persuasive visuals generally:

using litigation graphics courtroom to persuade trial graphics a2l consulting

Tags: Trial Graphics, Litigation Graphics, Advocacy Graphics, Persuasive Graphics, Visual Persuasion, Washington D.C., Persuasion, Los Angeles

How to Make PowerPoint Trial Timelines Feel More Like a Long Document

Posted by Ken Lopez on Tue, Mar 31, 2015 @ 01:33 PM

 

trial-timeline-litigation-slidingby Ken Lopez
Founder/CEO
A2L Consulting

I love a good trial timeline whether it's a printed large-format trial board or whether it's in PowerPoint form. This goes for my colleagues here at A2L, as well. In fact, we love timelines so much that we've even produced a book with more than 30 types of trial timelines illustrated.

Timelines are used as demonstrative evidence in just about every trial. They serve an obvious purpose of orienting judge and/or jury to the order of events and how those events relate to one another. It's the one exhibit that helps make sense of it all, particularly in a complex case.

As our trial timine book discusses, a timeline does not have to be limited to simple chronologies. In fact by incorporating graphs, photos, color schemes and more, a timeline can transmute from being simply informative to being quite persuasive.

When I first launched A2L back in the mid-1990s, timelines were almost exclusively printed on large trial boards. There were many advantages to this approach. Sometimes we had to use as many as five tiled boards standing next to each other to make a complicated case make sense and show many events over a long period of time.

Click me

Relative to the 1990s, very few printed trial boards get produced these days, although we still prepare a good number each month. One of the best exhibits to use a printed trial board for is the timeline, because you can often leave it up in front of a jury or judge and help them stay oriented to your case. However what happens when you can't or don't want to print a large timeline on a board?

There are a couple of good techniques for designing timelines in PowerPoint, Prezi or Keynote that allow you to create the illusion of a much bigger canvas than you can otherwise show legibly in PowerPoint. I've written about this approach in Prezi before, but I continue to advise against using that program at trial because of issues people have with motion sickness.

The sliding timeline technique is a great method to use when you have many events over a long period of time. By creating a transition between slides that mimics sliding a large piece of paper across the screen you help keep your audience oriented and in touch with the passage of time. Have a look at the simple two-slide example below to see what I mean.

sliding-timeline

In this PowerPoint trial timeline that compares the role of testifying experts and consulting experts, we move along the litigation lifecyle in a case from complaint to discovery by sliding the timeline across the screen using a push from right transition. I think it does a good job creating a fluid and elegant transition, and it helps the jury clearly appreciate when you're going forwards and backwards in time. It's a simple lesson, but it is one I see frequently underutilized. Dig into the articles, books and webinars below to learn more.

Other articles and resources from A2L Consulting discussing trial timelines, printed trial boards, PowerPoint and litigation graphics generally:

trial timeline trial graphics litigation courtroom timelines


 

Tags: Trial Graphics, Litigation Graphics, Demonstrative Evidence, Presentation Graphics, Advocacy Graphics, PowerPoint, Visual Persuasion, Timelines, Prezi

Why Expensive-Looking Litigation Graphics Are Better

Posted by Ryan Flax on Fri, Mar 13, 2015 @ 10:37 AM

by Ryan H. Flax
Managing Director, Litigation Consulting
A2L Consulting

placebo-effect-juries-litigation-graphics-expensive-price-costI am not advocating that you spend more to develop top-notch demonstrative evidence. What I want you to do is make sure that the litigation graphics that you do use look like you paid a million bucks for them. Make sure you’re getting what you’re paying for. Let me explain why.

Recently published and widely reported research out of the University of Cincinnati relating to treating Parkinson’s disease shows that the placebo effect is a real thing and a powerful psychological phenomenon. Interestingly, what the study also shows is that it matters greatly to those experiencing a strong placebo effect how much they believed the pseudo-pharmaceutical cost. Amazingly, seemingly-more-expensive drugs turned out to be much better “drugs” in effect (even though they were not drugs at all). The more a patient believed a drug cost (here the artificial difference was $100 vs $1,500 per dose), the more effective it was at treating their symptoms of Parkinson’s.

Perception of cost was capable of influencing physical and psychological behavior and responses on a subconscious level. Wow.

Knowing this new and interesting bit of science, how can we use it to be more persuasive in litigation, ADR, or similar situations? An easy step is making it appear that your demonstrative evidence, e.g., trial graphics, were very expensive. This is easy – just make your graphics, boards, scale models, etc., look fantastic: creative, well designed, well composed, simple, beautiful, and well-targeted to their specific purpose.

cost-perception-persuasion-placebo-effect-juries-litigation-graphics-expensive-priceI became aware of the above-identified research while driving to the office and listening to NPR’s Morning Edition. The show very briefly discussed the research and it really struck a chord with me because just the day before I’d been in a client’s patent claim construction (Markman) hearing at the U.S. International Trade Commission (ITC) and had the opportunity to compare our supporting graphics to those of opposing counsel. I know ours satisfied the requirements for looking very expensive (see above). The opposition’s, on the other hand, while arguably supportive of their argument, and were rudimentary and just plain ugly.

cost-perception-persuasion-placebo-effect-juries-litigation-graphics-expensive-price-uglyWhat makes litigation graphics ugly? Not paying attention to style, lack of client and/or case branding (must be subtle though), inconsistency in color/font size/font type, lack of composition, use of improper font for electronic display, poor slide aspect ratio choice, too much text, too small text, use of bullet-point lists, use of PowerPoint effects for no good reason, and many other things. Basically, if slides look like anyone could make them, they’re not worth the effort or cost. Litigation graphics must look intentional, beautiful, and purposeful. They should look like they cost a lot (but they don’t, really).

I am confident that there was no significant difference in how much either set of Markman hearing PowerPoint slides cost, ours versus theirs. But I witnessed a huge difference in the way the Court received each side’s counsel at oral argument and the general momentum throughout the hearing. It all went our way. The arguments on our side were better, no doubt, but I believe the “high-priced-placebo” effect also played an important role. Our more appealing, more professional-looking, higher-design, more focused graphics enhanced the entire experience for the judge and resulted in better rapport and a lot more nodding at and softball questions for our attorney.

Don’t pay more. But, make sure you get more.

Other articles from A2L Consulting related to litigation graphics, pricing of litigation support services and getting good value from your litigation graphics provider:

Maximize Persuasion During Opening Statements

Tags: Trial Graphics, Litigation Graphics, Demonstrative Evidence, Animation, Pricing, Psychology, PowerPoint, Visual Persuasion, Trial Boards, Information Design

How Valuable is Your Time vs. Litigation Support's Time?

Posted by Alex Brown on Tue, Mar 10, 2015 @ 08:37 AM

litigation-support-value-time-money-qualityby Alex Brown
Director, Operations
A2L Consulting

How do you determine value?
 
This weekend, while my oldest child was in Boston at a gymnastics meet, we thought this would be the perfect time to “renovate” her room back home. My youngest daughter wanted to help but also wanted to negotiate her fee to do so. I came up with many reasons for her to find value in helping: the good of the family, experience, and enjoyment, but none of these provided the proper balance of cost and value to her. Finally I told her that she will be able to destroy something that belongs to her big sister, without any concern for retaliation. This brought her on board, and in the end she not only loved it but she also had the added benefit of being able to tell her sister how much fun it was to destroy her room and how destructive the work needed to be.
 
As litigators, you have a similar job of having to persuade your client about, say, the importance of using expert witnesses or the need to bring on a litigation support team. This is always a delicate conversation because there are so many factors in play; emotions, money constraints, and inexperience, to name a few. For years, the use of expert witnesses has been an easy sell for the most part. But the importance of litigation support (i.e. theming, visual presentations, trial technology/hot seat operators, and mock trial exercises) is not universally accepted, so it can be more of an uphill struggle to convince clients of the need for these things and even harder to persuade them of the value. But why? It’s clearly not the cost, since that normally runs anywhere between .5 percent and 5 percent of the legal fees in a big case. So the sticking point is the need for these services.

Here are a few of the things we hear when discussing our services.
  • It's just PowerPoint, I can do that myself?

  • Just give me a list of universal questions I can ask the jury.

  • We'll just run a mock trial at the office.

  • I think we can bring you in after we know what we want, so it will be cheaper.
As a litigator, do you enjoy having the client sit next to you every step of the way, having the client in meetings when you discuss your next steps, and having them question you on every decision? Of course not. The client doesn’t have the experience, and these questions will drive down productivity. The same is true for litigation support. Perhaps in the back of your mind you think you can do it yourself. But the difference between doing it and doing it right is vast. I would never ask my doctor to fix my electrical problem, I would never ask my babysitter to fix the brakes on my car, and I will never ask my mother to drive at night. Likewise, I would never ask my litigator to do what A2L can do for them. A2L's team is experienced and professional. They can develop more options because they understand the case and are there to support you. They see more court time in a month than most litigators see in a several years. Why wouldn’t you want that level of experience in your corner?
 
David Beldon of iExecuVision International and Vistage once gave me the most important mantra that you as a litigator should incorporate into your life: “I will only do today, what ONLY I can do.”

Other A2L articles and resources related to the role of litigation support, getting value from litigation support and making a case for litigation support services to in-house counsel:

litigation consulting graphics jury trial technology

Tags: Litigation Graphics, Mock Trial, Litigation Consulting, Litigation Support, Trial Preparation, Pricing, Voir Dire, Practice, PowerPoint, In-House Counsel

How to Apply Cialdini's 6 Principles of Persuasion in the Courtroom

Posted by Alex Brown on Wed, Mar 4, 2015 @ 09:29 AM

persuasion-juries-reciprocationby Alex Brown
Director of Operations
A2L Consulting

Last year, we talked about the pros and cons of business development professionals -- specifically, the good and bad traits of people in this profession. Here, I start a new series on the six principles of persuasion. I have long been a huge fan of Dr. Robert Cialdini and find myself repeatedly going back to a book he wrote called "Influence: The Psychology of Persuasion." In this book, he discusses the six principles of persuasion. I want to share with you these principles in a six-article series, starting with principle number one: Reciprocation.
 
According to the Merriam-Webster dictionary, reciprocation is a noun that refers to a mutual exchange, a return in kind or of like value. Now before the emails come in about the ethics of giving the jury something in exchange for a favorable verdict, hear me out.
 
The idea of reciprocity is to give something to get something in return. So a litigator must put himself or herself into the shoes of each juror. What can you legally give them that has a perceived value above what they expected? To do this, you have to know what the jurors are expecting from the trial -- and most of that is negative. They feel that they are being taken away from work, family, personal time. They feel the pressure of making a decision that will help or hurt someone or something (a company), and they expect to be bored to death with statistics, witnesses, and the legal side of the case.
 
One of the things that the jurors do hope for is to be interested in the case or entertained -- but in truth, they expect just the opposite. When you are putting together your case, you should take to heart the immortal words from Gladiator: Are you not entertained!
  1. Entertain the audience. Regardless of the seriousness of the case, levity can defuse the pressure that the jury is feeling. There are levels of levity; choose the appropriate level for the case. A term related to this is the CSI effect. Jurors expect to see amazing displays of evidence, just as good as what they see on the hit TV show. Give them what they expect. Use professionals to develop slide decks, use professionals to videotape and digitize depositions, use professionals to prep the witnesses. If you don’t, the audience will notice, and your credibility will be harmed. 
  1. Connect with the audience. Engage them mentally and if possible personally.This concept needs to be infused into the strategy and the theme of your case from the start and repeated throughout the whole trial. Give them a reason to be engaged.
  1. Respect the audience. Make them feel welcome and make them think positively about you and your client. You can do this by creating easy-to-understand points, easy to-follow demonstratives and exhibits, and easy-to-believe witnesses. 

Remember, the audience members are not lawyers. The old adage that you can lead a horse to water but you can't make it drink applies to juries. Make it easy for them to come to a conclusion in your favor.
 
If you think about what you can give to the jury that they can appreciate, you will not only Increase the odds that they will listen to your argument, but you will create an easier path for them to understand and agree with your argument.

Other articles and resources related to persuading a jury, entertaining a jury and connecting with a jury from A2L Consulting:

mock jury webinar a2l kuslansky

Tags: Trial Graphics, Litigation Graphics, Trial Presentation, Demonstrative Evidence, Juries, Storytelling, Persuasion

Why the Color of a Dress Matters to Litigators and Litigation Graphics

Posted by Ryan Flax on Fri, Feb 27, 2015 @ 11:20 AM

color-litigation-graphics-litigators-dress-blue-goldby Ryan H. Flax
Managing Director of Litigation Consulting
A2L Consulting

Today, the internet is abuzz over what color this dress is:

The online debate was whether the dress is white and gold or blue and black. There is a right answer, by the way, and I’ll get to that below.

The debate has raged for hours and hours and has been widely, globally reported (at, e.g., NBC Today, CNN, NPR, BuzzFeed, Independent (UK), Reddit, and hundreds of other places) – just search “what color is the dress” on Google right now if you haven’t yet heard of this dress.

Celebrities like Ellen DeGeneres, Kim and Kanye, Taylor Swift, and Matt Lauer have all weighed in. BuzzFeed.com alone has reported over 21 Million views of this dress. Wired.com has even gone to the length of engaging an expert to analyze the image and assign real color values to the dress’s various parts – who said it is blue and black. Even after this expert photo analysis and knowing of it, NPR’s David Greene still swore it was white and gold and told Renee Montagne she was “wrong” for believing it to be blue and black.

I’ve been staring at the photo above for many, many minutes now and I must admit that I see it as pale blue with gold stripy-trim. I’m crazy (holy cow – before I got to the end of writing this article I looked back at the photo above and see it as blue and black now!).

So, why does this matter to you as a litigator?

It matters because THERE IS A CORRECT ANSWER HERE, but millions of people seeing actual, real evidence (the photo above) have divergent and strongly held opinions on the issue and are willing to take time out of their day to argue it. NPR’s David Greene told his coworker she was wrong about it. Folks on Gawker are insulting one another in comments debating the issue. These people are your potential jurors, and this blip on the internet’s timeline shows you that sometimes the facts are less important than perception and impression.

color-trial-graphics-litigators-dress-blue-gold-whiteI’m sure you can imagine a jury arguing over what is and what is not “reasonable” or whether a patent’s claim limitation is infringed by some plastic, flexible component of an accused windshield wiper blade product in a similar fashion to the folks on Gawker.com arguing with one another over a dress’s hue. This dress shows how scary this reality can be when your client’s case, life, company, and/or money is on the line.

Well guess what – here’s a photo of the dress in a different light:

It’s pretty clear now, isn’t it, that the dress really is blue and black. How can there be any debate?

What is this photo to the right? Is it actual evidence of the color of the dress above, the one the whole world is consumed with? No, it is not.

what-color-is-the-dress-litigation-graphics-litigators-dress-blue-gold-whiteWhat we have here in the photo to the right is demonstrative evidence. We are using it to illustrate that a similar dress, from the same company, designed in the same way as our dress-at-issue, but photographed differently, shows our dress’s actual colors. Here, it’s the only “proof” we’ll get, and this shows the critical impact demonstrative evidence (litigation graphics, scale models, animations, etc.) can have on an audience you’re trying to persuade.

Whether this is real evidence or demonstrative evidence matters not to jurors according to the top jury researcher in the country (Dr. Laurie Kuslansky). Jurors simply don’t distinguish between actual evidence and what you show in litigation graphics to demonstrate your points – it’s all just “evidence” to them.

Are you now convinced that the real dress is blue and black? I am (however, I just looked at the real dress photo one more time and it looks blue and gold to me again).

Other A2L Consulting articles related to litigation graphics, color theory and persuasion during opening statements:

Maximize Persuasion During Opening Statements

Tags: Trial Graphics, Litigation Graphics, Demonstrative Evidence, Juries, Psychology, Color Theory, Persuasive Graphics, Visual Persuasion, Opening

[New Webinar] 5 Ways to Maximize Persuasion During Opening Statements

Posted by Ken Lopez on Wed, Feb 25, 2015 @ 08:24 AM

 

opening-statements-webinar-cta-tallby Ken Lopez
Founder/CEO
A2L Consulting

If you can win the battle of opening statements, you'll likely win your trial. Up to eighty-percent of jurors will make up their minds about your case during opening statements. In this webinar you'll learn the top-five ways to maximize persuasiveness during opening statements.

From how to tell compelling stories to visually supporting your key arguments, this one-hour will reveal the best secrets from courtroom persuasion experts. Ryan H. Flax, Esq., A2L's Managing Director of Litigation Consulting is an accomplished litigator who helps trial teams perfect their trial story and trial presentation using the latest persuasion science.

Even if you can't make it to the live event, you'll receive access to the recorded version just for registering.

WEBINAR TOPICS:

  1. Why and how to frame your case as a story
  2. What NOT to do when introducing your case to jurors
  3. Why and how to support your opening statement with images and graphics
  4. Pitfalls and the dangers of poor visuals

Here are the details of the free webinar:

What: 5 Ways to Maximize Persuasion During Opening Statements
When: Tuesday, March 24, 2015 at 1:30pm ET How long: 45 minutes + 15 minute Q&A
Where: Online, once registered you will receive a personal login link
How much: Free
Why: Understand how to best persuade fact-finders during opening statements.
Who: Led by veteran litigator, Ryan H. Flax, Esq, A2L Consulting's Managing Director of Litigation Consulting.
How: Click here or on the button below to register for the complimentary webinar.

Whether you are in-house counsel, outside counsel, or litigation support, this 45-minute webinar will prove valuable and reveal secrets learned by one of the world's top persuasion experts.

Maximize Persuasion During Opening Statements

Tags: Trial Consultants, Litigation Graphics, Litigation Consulting, Webinar, Juries, Jury Consultants, Storytelling, Opening, Persuasion

How PowerPoint Failures in Demonstrative Evidence Can Sink a Case

Posted by Ryan Flax on Mon, Feb 2, 2015 @ 04:28 PM

 

demonstrative-evidence-powerpoint-warning-cautionby Ryan H. Flax
Managing Director, Litigation Consulting
A2L Consulting

We strongly advocate that counsel must use a visual presentation to support his or her oral argument at trial (and anywhere they need to be persuasive). This most commonly happens during opening statements and closing arguments at trial and the dominant format for such presentations is PowerPoint – a very good tool. However, like cutting your own hair or doing your own dental work, we must again caution you that you must really know what you’re doing because your case may depend on it.

On January 22, 2015, the Supreme Court of the State of Washington published its opinion in State v. Walker, overturning the State Prosecutor’s conviction of an accused murderer because the attorney went too far with his demonstrative evidence in closing. A murderer has potentially been freed because, in the Court’s view, counsel was inflammatory in his presentation and “appealed to passion and prejudice” of the jury.

Certainly as zealous advocates we do want to appeal to the passion of jurors on some level. We need their emotions to be in sync with the law and evidence, but what might be too much so as to prejudice the proceedings? Let’s explore the Washington Supreme Court’s opinion to see.

What Did the Prosecutor Do?

defendant-walker-guilty-of-premeditated-murderI’ll preface these notes with the fact that based on the Court’s findings of facts, the evidence was pretty overwhelming against the defendant, and he appeared to be a cold-blooded killer. The prosecution proved its case.

During closing arguments the prosecutor used a PowerPoint presentation of approximately 250 slides – that’s a lot of slides. Over 100 of those 250 were titled “DEFENDANT WALKER GUILTY OF PREMEDITATED MURDER.” They also included a slide with the defendant’s face and the text “GUILTY BEYOND A REASONABLE DOUBT” superimposed thereover in bright red letters. As you see in the slides reproduced above, the prosecutor argued (visually at least) that the defendant was guilty because he spent the stolen money on toys, safes, and a lobster dinner.

The prosecutor showed slides composed of trial exhibits – photographs – with the prosecutions take on the significance. For example, one slide showed a table littered with stolen money – real evidence – captioned with “MONEY IS MORE IMPORTANT THAN HUMAN LIFE,” which was not a statement in evidence. Another showed a photograph of the murder victim in life, captioned with “DEFENDANT’S GREED AND CALLOUS DISREGARD FOR HUMAN LIFE.”

During the prosecution’s closing, defense counsel objected unsuccessfully to the prosecution’s discussion of premeditaiton and a slide analogizing it to stopping at a railroad crossing, but never objected to the PowerPoint slides mentioned above.

Why Did the Court Find It Wrong?

rule-404-demonstrative-evidence-powerpoint-warning-problemsThe Court indicated that “[t]he primary question in th[e] case [was] whether those [accomplice to first degree murder, first degree assault, first degree robbery, solicitation, and conspiracy] convictions must be reversed in light of the PowerPoint presentation the prosecuting attorney used during closing argument.”

The Court held that “prosecutorial misconduct violated Walker’s right to a fair trial” because of the prosecution’s PowerPoint presentation. Why?

The real reason is that a prosecutor represents the state and the judiciary and must be impartial so as to act only in the interest of justice. According to Washington, “advocacy has its limits, and a prosecutor has the duty to ‘subdue courtroom zeal,’ not add to it.”

The Court professed to have had “no difficulty” holding that the prosecutor’s PowerPoint presentation was “egregious misconduct.” Why?

The Court felt that the prosecutor had presented “altered versions of admitted evidence” and “derogatory depictions of the defendant.” [recall, this defendant is pretty much, absolutely a murderer – his also-guilty girlfriend testified to it]. The Court took offense to the inflammatory nature of the PowerPoint slides – the superimposing of text and captions that suggested the defendant “should be convicted because he is a callous and greedy person who spent the robbery proceeds on video games and lobster.” The Court indicated that the presentation “plainly juxtaposed photographs of the victim with photographs of [the defendant] and his family, some altered with racially inflammatory text.” Finally, the prosecution’s slides “repeatedly and emphatically expressed a personal opinion on [the defendant’s] guilt.”

The Court found all this a “clear effort[] to distract the jury from its proper function as a rational decision-maker.” It held that “[t]he voluminous number of slides depicting statements of the prosecutor’s believe as to defendant’s guilt . . . is presumptively prejudicial and may in fact be difficult to overcome, even with an instruction.”

mock jury webinar a2l kuslansky

Finally, the Court suggested that there is a “serious need to curb abuses of such visual presentations” and encouraged “trial court judges to intervene and to preview such slides before they are shown to a jury.”

How to Navigate the Minefield.

This all seem a bit crazy to me, but I do get it from the perspective of the State needing to exert control over itself as it’s represented in the judicial system. State prosecutors are held to a higher standard than other lawyers in the courtroom. I suspect that had the defense used a similar counter-point PowerPoint presentation in its own closing arguments, it would not have been misconduct or even close thereto. But, the State is supposed to be more even-handed and tempered.

I’m fairly certain that the prosecutor made his own PowerPoint presentation and had absolutely no guidance from anyone that knew how such a presentation should be made – this is fairly clear from the examples of slides above. First, regardless of how long the closing argument was, there is simply no reason that there should have been 250 slides. I cannot imagine what all these slides presented and how each one could be needed to tell the simple story of how very bad this bad guy was. So, the fact that there were 100 or so slides that expressed the prosecution’s flaming belief that the defendant was guilty of premeditated murder is, to say the least, excessive.

If I could get into my time machine and travel back in time to help this prosecutor, my advice would have been to tighten up the presentation as a whole, to use more well-crafted and less over-the-top graphics, and to make his hard-hitting, prosecutorial-belief slides just those at the very beginning and very end of the presentation (which would reduce the “inflammatory” slides from 100 to maybe 4 or 5). I can imagine prosecution counsel pounding on the lectern and shouting during closing arguments, too – my advice: don’t (the facts are on his side). I would advise counsel to have a tight and reasonable story, to develop well-composed slides that fit with this story and show the evidence, and to summarize the evidence only at the beginning and end with the thematic, “Defendant is Guilty – Defendant is a Callous Murderer – Defendant Put No Value A Real Man’s Life” slide. I suspect with this advice, the murder stays in prison and the prosecution is saved embarrassment.

In non-criminal cases and cases outside of Washington, I suspect this case and the sentiment of Washington’s Supreme Court are mostly irrelevant. It is our goal as litigators to zealously advocate for our clients and when we don’t work for the state, we probably have a lot more leeway to do so. It is imperative that we use strong and reasonable stories, themes, and well-crafted, supporting visuals to evoke sympathetic and empathetic emotions in jurors. As a professional litigation consultant, I help identify ways to do this that are not so heavy handed as Washington’s state attorneys’ tactics.

Other articles and resources related to problems with trial graphics, litigation graphics and demonstrative evidence from A2L Consulting:

litigation consulting graphics jury trial technology

Tags: Trial Graphics, Litigation Graphics, Litigation Consulting, Litigation Technology, Demonstrative Evidence, Trial Technology, Advocacy Graphics, PowerPoint, Criminal

5 Tips For Inter Partes Review Hearing Presentations at the PTO

Posted by Ryan Flax on Thu, Jan 29, 2015 @ 03:57 PM

 

inter-partes-review-presentation-graphics-patent-office-ptoby Ryan H. Flax
Managing Director, Litigation Consulting
A2L Consulting

Inter Partes Review, or IPR, has drastically changed the way we litigate patent infringement in the U.S. In big-budget patent cases, it is now almost inevitable that an IPR will be requested (and likely granted). The process is supposed to take no longer than a year to complete, but under current case law that’s a year’s delay in the district court case. Moreover, the odds are that any patent that enters IPR will not leave it unscathed.

So, whether you need to win an IPR to save your client’s patent’s claims or to insure your client against infringement allegations, the bottom line is that it’s critically important. And, you need to win.

Here are what I believe to be five important tips for improving your chances of victory once you get to the oral argument stage at the end of an IPR. At that point, you’ll need to convince Administrative Patent Judges that you’re the most reasonable person in the room and what you’ve said throughout the IPR “just makes sense.”

alexandria-inter-partes-review-presentation-graphics-patent-office-pto1. Always Support Your Argument With Visuals

As in any situation where you need to be persuasive in a presentation, there are steps you must take to be as persuasive as possible. The use of visual support for your argument is essential. Studies show with scientific certainty that it will make you more persuasive, all things being equal.

Moreover, other studies establish that it does you no good to merely make some PowerPoint slides and show them just “when you need them.” It has been confirmed that you must support the entirety of your oral argument with visuals in an immersive way – always give your audience something to see while you speak. This is the only presentation style that provides a significant improvement in persuasiveness over pure oral argument alone.

The PTAB itself (read the APJs that will be hearing your oral argument) wants you to use visual support for your argument and provides you the means to do so. As explained at the USPTO website:

[a]t the Alexandria hearing rooms, the Board has an easel, an Elmo projector, a laptop projector, and a screen, which may be requested for oral arguments. For Microsoft PowerPoint and other computer-based presentations, the party must provide its own laptop. Animation and video demonstratives cannot be presented at a hearing without specific prior authorization. The hearing rooms do not have Internet access capabilities – all information must be stored on the party’s laptop (e.g., a hard drive, flash drive, or CD).

So, use the tools available to you and follow these rules and get the permissions you need. But, the bottom line is that you must do more than explain why the claims at issue are or are not patentable – you must show the judges why it’s so and do so in an engaging way.

2. Keep Your PowerPoint Presentation Crisp And Clean

IPR-patent-litigation-crisp-clean-presentationIn both your argument and your visual support thereof, get right to the point. The Board doesn’t want any hyperbole, nonsense, or fluff.

The USPTO guidelines request that counsel begin their “conversation” with the Board with the critical issues, not extensive background. So, first explain the main reasons (each of them – I always suggest having 3) why you should win and show these reasons in your first slide. This presentation style sets a clean agenda for your oral argument and one you can return to as you move through your presentation. The APJs will know what to expect from you and will be able to work in their questions a little more on your schedule this way – if they have questions they brought to the hearing they can ask them at the appropriate time if they know you’re going to hit on that subject. This helps you make the points you want to make with less interruption.

You want to make the APJs’ jobs easier for them. Help them understand the technology as you see it, the facts as you see them, the claim language as you understand it, and the prior art as you know it. This help to the Board will come in the form of pinpointing and highlighting the special things about the technology and claim language that might not be clear enough from the papers alone. Point out the things, and do so visually, that seem to have been or might be overlooked by the APJs.

patent litigation webinar free litigation graphics demonstrative Use graphics to establish why your interpretation of things is the MOST REASONABLE one. When what you’re saying and showing can only be responded to with, “that seems to make sense,” you’re on the right track. The first step here is to separate the wheat from the chaff and made things more, not less, clear.

Likewise, your graphics should be clear and unembellished. Make them easy to see, easy to read, easy to interpret, and memorable. Don’t use unnecessary animations – control the urge to go “PowerPoint crazy.” But make your graphics look professional and make them well composed.

3. Simplify The Complex

patent-trademark-office-alexandria-litigation-trial-support-graphicsTechnology is, by its nature, complicated. Throw in claim language written by a patent prosecutor with little time and a penchant for using less than standard-everyday-English, a thick stack of prior art, and the nuances of Sections 102 and 103 and you’ve got the recipe for confusion. APJs are human beings and, so, they will appreciate you distilling the facts, science, and law for them into a more easily digestible pill. Doing so will make you more persuasive.

Always ask yourself the question, “why are we really here” or “what is this really about” when beginning to develop your oral argument and accompanying graphics. If you can explain in words and images what claim language really means or what a prior art references fails to disclose and why, simply and clearly, you are certainly ahead of the game.

This is not so easy and many patent attorneys find it difficult to simplify the complex. Using graphics and, actually, planning the development of the graphics you’ll use, makes this job easier. You’ll have to determine how to economically tell your story in images and doing that will help you cull the key facts and storylines from fluff and extraneous details.

4. Minimize Text

Beyond helping litigation counsel develop their case so they are the “most reasonable person in the room” come time for argument, my most important job is often forcing attorneys to reduce the amount of text they want to include in their visual support for oral argument. A text-heavy PowerPoint presentation is a barrier to connecting with your audience, a barrier to good communication, and a barrier to persuasiveness.

pto-alexandria-litigation-trial-support-graphicsIf you are asking (aka, forcing) your judges to read your argument while you’re also making it orally, you’re not connecting with them on a human level and you’re not engaging them. You want your hearing graphics to support what you’re saying and to make it more readily understandable and memorable. You don’t need or want to be redundant.

Incorporating too much text in your visual presentation introduces several potential problems. It increases the chance that you’ll use PowerPoint as a crutch and will base what you say on what you’ve written into your slides. Besides being boring, this presents another problem – that of the “redundancy effect,” where you simultaneously say what you show in text on the slide and thereby turn off your audience’s brains. Finally, as much as most attorneys love them, having too much text probably means you’ve includes lots of bullet-point lists in your presentation, which is a presentation killer for many reasons.

Use your opportunity to show graphics to pinpoint the important evidence for the Board and highlight language and facts that you want to stand out. Compare the language of your claims to the disclosure or non-disclosure of the prior art visually. Don’t simply show your briefing in PowerPoint form.

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5. Develop A Related, But Different Leave-Behind Document

If you’ve followed my tips above, you’re using a graphics presentation, but you’ve significantly reduced the text content of your graphics and doing so has probably caused you some heartburn. Do not dismay. My last suggestion is to save all that text you wanted to put into your PowerPoint slides, e.g., your oral argument script, and combine it with the graphics you ultimately did use in the hearing. This will be your hand-out and leave-behind for the Board.

As discussed at the USPTO website:

For AIA trials, unless otherwise directed, demonstrative exhibits must be served on opposing counsel at least five business days before the oral argument and a copy served electronically at the Board no later than the time of the oral argument. 37 CFR § 42.70(b).
***
Parties are advised to bear in mind that some judges may appear remotely from other locations. It is incumbent on the parties to ensure that any demonstratives used during an oral hearing are visible and available to all judges on the panel. For example, demonstrative exhibits displayed on an easel or via a projector may not be able to be seen by judges participating remotely. Those remote judges will refer to the electronic copy of the demonstrative exhibit provided by the party in advance or to a copy of the relevant document as it appears in the record. As such, parties should also clearly identify during the oral hearing any demonstrative exhibit to which they are referring to enable all judges participating in the hearing to follow along with the argument being presented.

patent-litigation-inter-parties-review-ptoAs the USPTO suggests, make sure all the judges have access to your demonstratives. This leave-behind is a good way to do that. It will combine the memorable and engaging graphics you used at your oral argument with what is essentially that same, scripted argument (uninterrupted by questions) in the notes associated with those graphics. Package it nicely so the APJs can refer back to your demonstratives and recall how they relate to your argument (the document can also easily be in PDF format to email remote judges).

Other patent litigation-related resources on A2L Consulting's site:

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Tags: Patent Tutorial, Trial Graphics, Litigation Graphics, Demonstrative Evidence, Patent Litigation, PowerPoint, PTO, Alexandria, Inter Partes Review

21 Ways Trial Can Be Like a Blizzard - But It Never Has to Be

Posted by Ken Lopez on Mon, Jan 26, 2015 @ 01:17 PM

 

percentage-population-megalopolis-snow-trial-preparationby Ken Lopez
Founder/CEO
A2L Consulting

We East Coasters have a love-hate relationship with snow, and the snow moving into the Northeast today may be one for the record books - particularly around Boston. It will dominate the news for days - and it probably should.

An incredibly large number of people will be impacted by this particular storm. Under or next to that red line on the map where the storm is forecast to hit, you'll find roughly 20% of the U.S. population living on roughly 3% of the country's land, half of the hedge funds, one third of the headquarters of Fortune 500 firms and — in the states under the red line, about 35% of the country's and, hard as it may be to believe, about 25% of the world's lawyers!

A blizzard disrupts our lives. It can feel tedious, it creates confusion, and it generates a lot of hard work — sort of like a trial. Not all trials are blizzard-like, but some surely are. Here are 21 ways some trials are like a blizzard and how to avoid white-out conditions in your courtroom.

  1. The dialogue is often boring. Similar to the neighborhood small talk that surrounds a snow storm, many trials are boring for judges and juries. I know federal judges who frequently fall asleep, and I have seen plenty of jurors do the same. However, I have always asserted that trial counsel have a duty to entertain a jury. See, Lights! Camera! Action! Verdict! A Trial Team's Responsibility to Visually Entertain and 12 Things Every Mock Juror Ever Has Said - Watch Anytime

  2. Too much, too fast. Judges are pushing for faster and faster trials and many lawyers are failing to use presentation techniques that can speed up a trial dramatically and save time. You don't want your judge and jury to feel like they can't see where you and they are going together. See, 5 Ways to Apply Active Teaching Methods for Better Persuasion and  Will Being Folksy and Low-Tech Help You Win a Case?

  3. Poor planning is dangerous. If there is a lot at stake, one needs to test one's approach in advance. Governments spend years planning their responses to a blizzard, and if your case warrants it, you should spend a considerable amount of time testing themes, testing witnesses, testing litigation graphics and testing arguments in a mock trial setting. See, 12 Astute Tips for Meaningful Mock Trials and 10 Suggestions for Conducting Mock Bench Trial Consulting Exercises.

  4. There are bad drivers everywhere. Like the ubiquitous Toyota Camry inexplicably on the roads in a snow storm, you have to be careful to avoid those who pose a threat during trial preparation. See, No Advice is Better Than Bad Advice in Litigation

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  5. Travel and everything else require massive planning. I often quote one of my favorite trial lawyer clients who said, "I never sleep better than when I am at trial, as I know how well prepared I am." He had a habit of being successful. If you need to get to the trial site early, you should. Last minute is very last century. See, The 13 Biggest Reasons to Avoid Last-Minute Trial Preparation

  6. It's hard to see. If your projector and your trial technology are not well planned for, like in a blizzard, you end up with a washed out image on screen where colors are hard to make out. See, 24 Mistakes That Make For a DeMONSTERative Evidence Nightmare

  7. Practice is essential. You wouldn't want a snowplow driver to make their first run during a blizzard any more than you would want to articulate an opening statement for the first time during trial. See, 3 Ways to Force Yourself to Practice Your Trial Presentation and Practice, Say Jury Consultants, is Why Movie Lawyers Perform So Well

  8. Going it alone is a bad idea. We are in an era where litigators from top firms try very few cases. In-house counsel understand this dilemma. Now, more than ever, litigation consultants are mandatory for a trial with more than a few million dollars at stake. See, 9 Things In-House Counsel Say About Outside Litigation Counsel and Accepting Litigation Consulting is the New Hurdle for Litigators

  9. IT support is critical. I think many of us would sooner go without water at home during a blizzard than go without Internet. Trial is not dissimilar. You need your technology to work. Trial technicians can be an incredible asset to make sure things go smoothly in the warroom and at trial. It is an expensive and avoidable nightmare when something goes wrong during a mock, the night before trial, or, worst of all, during trial. See, 12 Ways to Avoid a Trial Technology Superbowl-style Courtroom Blackout

  10. Anticipate the worst and prepare for it. Whether it is a motion in limine going the wrong way, an expert being disqualified, an exhibit being excluded, good trial teams discuss the worst that can happen and prepare for it just as good governments do before blizzard conditions exist. See, The 14 Most Preventable Trial Preparation Mistakes

  11. Know your environment. If you fail to properly map out your courtroom well in advance of trial, you'll end up feeling as lost as a snowplow driver without a GPS. Your technology won't serve the very people you designed it for. See, 21 Ingenious Ways to Research Your Judge

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  12. Pick and prepare the right experts. There are experts who help pick expert witnesses. I find that a lot of litigators fail to rely on this resource and regret it later. Once you have an expert, they must be prepared. Just as you would not want to see an everyday weather geek opine sophomorically about storm conditions, you must work on your experts so they can work for you. Otherwise, you'll be shoveling more than snow. See, Witness Preparation: Hit or Myth? and 7 Smart Ways for Expert Witnesses to Give Better Testimony.

  13. Know how much science your audience can take. Many fact-finders will glaze over with the presentation of too much science, so a balance must be struck between good trial presentation and making a good record. Most of us want to hear Jim Cantore explain the story simply, not go into the detailed science. See, 5 Valuable (and Free) Complex or Science-Focused Litigation Resources and Teaching Science to Juries

  14. Tell a story. Everyone comes out of a blizzard with a good story, but a good story poorly told is not really that good. Trial is the same way. Stories engage people, but you have to do it right. See, Free Webinar - Watch Anytime - Storytelling as a Persuasion Tool and Storytelling for Litigators E-Book 3rd Ed.

  15. Make sure your story is compelling. Nobody likes someone who tells a long chronological story and bores everyone to death. There are good rules of thumb for telling a story that people care about. See, Don't Be Just Another Timeline Trial Lawyer and 5 Essential Elements of Storytelling and Persuasion and 14 Differences Between a Theme and a Story in Litigation

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  16. Don't under-budget. In-house counsel or your client want you to win, but you need to ask for the budget you need to win. Similarly, in-house counsel need to do a better job of arming trial teams for battle by making sure they feel confident in asking for budget. After all, what happens to a mayor who does not budget enough for the blizzard and a city breaks down? See, In-House Counsel Should Make Outside Litigation Counsel Feel Safe

  17. Use the right visuals. Just because you use a PowerPoint at trial does not mean you are more persuasive. In fact, you could hurt your persuasiviness if you use the wrong approach to visuals. Think about all the work that is going to go into reporting on this blizzard and watch the visuals that are used. The science behind what visuals people need to see to be entertained and persuaded is vastly more complex than most people know. See, 10 Things Litigators Can Learn From Newscasters and 6 Studies That Support Litigation Graphics in Courtroom Presentations and Good-Looking Graphic Design ≠ Good-Working Visual Persuasion

  18. Make sure your words compliment your visuals. Just as you can quickly tell the difference between a national newscast and one from a small town, good and well-prepared presenters are obvious to everyone. See, 12 Ways to SUCCESSFULLY Combine Oral and Visual Presentations and 10 Things Litigators Can Learn From Newscasters

  19. Don't overdo it. Knowing when the pressures of trial are too much is just as critical as knowing when not to shovel that large driveway. See, 10 Signs the Pressure is Getting to You and What to Do About It

  20. Make sure you have the right audience. If you are saying the wrong things to the wrong people, no one will get behind your message. Unlike an elected politician or a newscaster, litigators have some choice about who their audience is - make the most of that opportunity during voir dire. See, New and Free E-Book: The Voir Dire Handbook

  21. At the appropriate time, and if it's right for you, a cocktail will probably help.

Other articles and resources related to trial preparation, thoughtful mock trial testing, persuasive litigation graphics and trial technology considerations from A2L Consulting:

A2L Consulting Voir Dire Consultants Handbook

Tags: Trial Graphics, Litigation Graphics, Trial Technology, Jury Consultants, Trial Preparation, Opening, Newscasts, New York, Boston

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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.


ryanflax blog litigation consultant 

Ryan H. Flax, Esq., Managing Director, Litigation Consulting, joined A2L Consulting on the heels of practicing Intellectual Property (IP) law as part of the Intellectual Property team at Dickstein Shapiro LLP, a national law firm based in Washington, DC.  Over the course of his career, Ryan has obtained jury verdicts totaling well over $1 billion in damages on behalf of his clients and has helped clients navigate the turbulent waters of their competitors’ patents.  Ryan can be reached at flax@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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