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The Litigation Consulting Report

Using Litigation Graphics in Bench Trials: How Different Is It From Jury Trials?

Posted by Tony Klapper on Thu, Feb 9, 2017 @ 10:25 AM

judge-litigation-graphics-bench-trial.jpgby Tony Klapper
Managing Director, Litigation Consulting
A2L Consulting

We’ve spoken here more than once about the fact that jurors, unlike most attorneys, tend to be visual learners who like to be shown, not told. The best way to show them what they need to know, as we have said, is through litigation graphics. Science has also taught us that the best way to keep a jury’s attention is by telling a story in the courtroom. These insights obviously have major implications for how trial lawyers should use the arts of persuasion in a jury trial.

What about a bench trial or an arbitration? Here, the decisionmaker is trained as an attorney. Do we toss out all that we know about jury trials and proceed in an entirely different manner?

Not at all. First, narratives are just as important in a trial before a judge as they are in a jury trial. Judges are human beings, and like all human beings, they have minds that search constantly for an organizing principle, a way to tame the vast river of information that flows to them in a trial. A narrative is the best way for them to do that. Even a brilliant judge who happens to be an aural learner, not a visual learner, needs some way to organize data. That’s where your narrative comes in. (“First this happened, then this happened, then something else happened.”) Not only does story-telling make the trial lawyer’s job’s easier by making his or her case easy to understand; it also makes the case easier to remember.

After all, judges are not computers. They come to any case with their human values, perspectives and predispositions. A narrative will help them connect the case with these values and will help them build a story in their mind, based on those values and on the information they receive at the trial.

The same is true with litigation graphics. Even someone who learns predominantly through aural or kinesthetic means can still find a chart or a timeline interesting and helpful as a way of organizing information. For example, in Markman hearings, which occur exclusively before judges, patent lawyers almost invariably present diagrams of the patent figure or blow-ups of the patent language. In hearings like these and in bench trials, a trial lawyer may sometimes need fewer litigation graphics, but that doesn’t mean that the lawyer shouldn’t use any at all.

Just as top trial firms often use mock juries to test their case on before the actual trial, they can use “mock judges” in the case of a bench trial. If their budget permits, they could find a retired judge, possibly someone who knows the judge in the case, and present their evidence before him or her.

They can ask the judge what types of evidence and themes were most convincing, and which demonstratives did or did not work. It’s another good practice in presenting a case to a judge who is the decisionmaker.

Other articles about litigation graphics in bench trials, mock bench trials, and mock testing from A2L Consulting:

persuasive storytelling for litigators trial webinar free

Tags: Markman Hearings, Trial Graphics, Litigation Graphics, Trial Presentation, Courtroom Presentations, Mock Trial, Demonstrative Evidence, Storytelling, Judges

[Free and New E-Book] Patent Litigation Toolkit - 4th Edition

Posted by Ken Lopez on Wed, Feb 10, 2016 @ 03:51 PM

A2L PATENT LITIGATION TOOLKIT 4TH editionby Ken Lopez
Founder/CEO
A2L Consulting

Since our founding 20 years ago, nearly half of our consulting work has involved patent litigation. Patent cases are uniquely suited to our brand of consulting, which relies on storytelling, persuasive demonstratives, and the simplification of complex materials for communication at trial. So it is with great pleasure that we release the 4th edition of our Patent Litigation Toolkit (download here).

It seems obvious that our litigation consultants and litigation graphics consultants would routinely help patent litigators make their cases presentable and digestible for jurors. After all, these cases are often incredibly complex, involving issues of detailed mechanics, organic chemistry, and cutting-edge electronic technology.

Less obvious perhaps, is the need for good storytelling. In fact, a lack of good storytelling is the undoing of many a patent case and patent litigator. After all, jurors will develop a story about your case whether you give them one or not. If you've done your trial preparation correctly, you will have offered one to them that they can believe in.

This complimentary 270-page book is designed to help you with all of your patent litigation challenges - from storytelling to the simplification of complex material. I think you'll find articles like these very helpful: 

  • 5 Tips For Inter Partes Review Hearing Presentations at the PTO
  • 11 Tips for Winning at Your Markman Hearings
  • 16 PowerPoint Litigation Graphics You Won't Believe Are PowerPoint
  • Introducing Mock Markman Hearings to Patent Litigation
  • Trial Graphics in Patent Litigation - 11 Great Demonstrative Tips
  • Explaining a Complicated Process Using Trial Graphics
  • 10 Things Every Mock Jury Ever Has Said
  • 5 Questions to Ask in Voir Dire . . . Always
  • 5 Essential Elements of Storytelling and Persuasion
  • 12 Worst PowerPoint Mistakes Litigators Make

This book is completely free and one of 20 that we offer as a complimentary resource to the legal industry. Download The Patent Litigation Toolkit 4th Edition by clicking here or by clicking the image below.

free patent litigation toolkit 4th edition from a2l consulting - top litigation consulants

Tags: Patent Tutorial, Markman Hearings, Litigation Graphics, Litigation Consulting, Litigation Support, Patent Litigation, Storytelling, Claim Construction, ITC, Design Patents

Winning BEFORE Trial - Part 2 - Parallel Trial Preparation Tactics

Posted by Ryan Flax on Mon, Aug 10, 2015 @ 03:01 PM

 

trial-presentation-trial-preparation-trial-prepby Ryan H. Flax
(Former) Managing Director, Litigation Consulting & General Counsel
A2L Consulting

In our last post, we discussed why it is important to win a case before trial and we went over some excellent ways of doing so.

 In a patent case, for example, let’s say we could end litigation by winning a landslide victory in claim construction at a Markman hearing. Granted, this doesn’t necessarily cut off all the post-trial costs because the U.S. Court of Appeals for the Federal Circuit will ordinarily be involved. But a claim construction that forecloses or ensures infringement or invalidity is a very powerful result.

Similarly, in a criminal case, a convincing pre-indictment meeting with assistant U.S. attorneys, or similar state prosecutors, and their staffs can save a good amount of time and money.

 But what if the opportunity to argue a case before trial isn’t necessarily going to end the litigation? Is it still worthwhile to follow best practices early on in that case? Well, if you and your client are committed to spending hundreds of thousands or even millions of dollars taking a case to trial, shouldn’t all that expense and effort be worth it in the end? Depositions, settlement negotiations, mock jury exercises, and similar proceedings provide you with real opportunities to focus your case and sharpen the way in which you will present it to a jury or judge so as to maximize your persuasiveness. This early work will put you in a position to win at trial and on appeal.

But how do we do this? What is meant by “best practices”?

The best practices in litigation are based on the idea that the road to success at trial is forked. You need to approach litigation in a specific way. Many attorneys fail to develop the necessary two-track strategy.

Litigators know that during a trial, a jury tends to find relatively few facts to be interesting and important. They usually decide the case on the basis of those few facts. Jurors are always looking for the “smoking gun,” and attorneys need to recognize this and to build their case around those key facts.

What begins at the early stages of case preparation as a single track of general case-building now needs to change to a two-track strategy directed both toward a persuasive presentation and to the formation of a solid record. These two tracks clearly do not have the same path or destination, but both are essential to winning. Often in litigation, too little time is spent on the track of developing a sympathetic story and theme that will be presented to the jury. Instead, litigation teams tend to focus very heavily on the minutiae of a case until the last minute before trial and not enough time putting their story together in a way that will be persuasive to jurors.

In our next post, we will discuss why storytelling is so crucial to winning at trial. Click here to be notified of subsequent articles.

Additional articles and resources focused on pre-trial strategy and trial preparation from A2L Consulting:

litigation support trial toolkit consultants a2l consulting

Tags: Markman Hearings, Trial Presentation, Litigation Management, Juries, Trial Preparation, Storytelling, White Collar, Federal Circuit

Winning BEFORE Trial - Part 1 - Consider Litigation Costs and Opportunities

Posted by Ryan Flax on Wed, Aug 5, 2015 @ 01:59 PM

 

pre-trial-graphics-litigation-consultantsby Ryan H. Flax
(Former) Managing Director, Litigation Consulting and General Counsel
A2L Consulting

High-stakes litigation is hugely expensive these days. But what if there were a means of reducing litigation costs in a way that helps both the trial team and the client and doesn’t sacrifice the quality of legal representation? That would make in-house counsel very happy, since an important part of their job is to budget and control litigation costs. There are a number of ways to do this, such as using alternative fee arrangements, streamlining litigation teams and bringing e-discovery in house.

But what about a more radical step – trying to win your case well before trial? That would indeed be a cost saver and would lead to an excellent result.

Let’s first look at how expensive this type of litigation can be. A piece of employment litigation that is in the top 25 percent of costs (but not in the top one percent or anything like that), costs close to $1 million by the end of discovery – and that’s before closing arguments. And the costs are mostly borne by the defendant.

Or consider a typical patent infringement case – say, one that involves possible damages of $1 million to $10 million. This kind of case usually ends up costing more than twice as much as that employment case. By the time discovery is over in the patent case, you’re well past the $1 million mark in costs. Other types of cases – antitrust, environmental, contract cases and the like – are not quite as expensive, but costs add up there too.

how-much-does-litigation-cost

But it doesn’t have to work out that way. There are quite a few ways of winning a case without a trial.

First, we all know about dispositive motions – motions to dismiss, summary judgment motions, motions related to venue and jurisdiction, and the like. These can end a case before trial, but after the filing of a brief and usually an oral argument.

Second, a Markman hearing is a special type of proceeding in a patent case in which the court hears argument (and sometimes some expert testimony) and decides what the patented invention actually is by interpreting the patent claims and resolving disputes over claim language.

Third, a pre-indictment meeting is one that takes place when your client is under investigation by the government and you would reasonably expect charges to be presented against it. This usually involves an attempt by counsel to persuade the government to drop a case before it begins.

Finally, we all know about mediation, arbitration and settlement.

All of these are out-of-court occasions in which lawyers have a chance to argue their clients’ cases before trial. They can happen in lieu of a trial or just before a possible trial.

What do all of these have in common? They are all opportunities, before trial, to begin winning your case by using the best practices of case framing and persuasion.  If you can raise your game in these situations, if you can persuade the court or opposing counsel or the opposing party or a mediator or the opposition’s star witness that you’re a winner, how much better off would you be?

In our next post, we will discuss more about these best practices and how they can help you win. To be notified when subsequent articles are published, click here.

Additional articles and resources focused on pre-trial strategy and trial preparation from A2L Consulting:

* Chart data is based on 2013 Court Statistics Project Caseload Highlights, RAND Institute for Civil Justice “Where the Money Goes, Understanding Litigant Expenditures for Producing Electronic Discovery” (2012) and 2013 AIPLA data.

pretrial trial graphics motions briefs hearings

Tags: Economics, Markman Hearings, Arbitration/Mediation, Trial Preparation, Pricing, White Collar, Settlement, Briefs

[New Webinar] Winning Cases BEFORE Trial Using Persuasive Graphics

Posted by Ken Lopez on Tue, Jul 7, 2015 @ 04:41 PM

 

A2L-pre-trial-graphics-tallby Ken Lopez
Founder/CEO
A2L Consulting

We at A2L are sponsoring later this month a new and exciting webinar entitled “Winning Your Case BEFORE Trial Using Persuasive Litigation Graphics.” Whether you are in-house counsel, outside counsel, or a member of a litigation support team, this 60-minute webinar will prove invaluable and will reveal secrets of persuasion that will help you win cases before trial.

The key insight here is that graphics aren’t only for use at trial. They can also be used very effectively in motions and briefs presented to judges, even if jurors will never see them. If you are planning to use graphics to make your argument or tell your story at trial, why not use them at an earlier stage to make your argument convincingly in your brief or motion?

In addition, a lawyer who introduces graphics early in a proceeding can lay the groundwork for later use at trial or in another aspect of the case. This can also give the lawyer a sense of how receptive the judge is to the use of trial graphics in the case.

In fact, you’d be amazed at the different ways in which litigation graphics can be used. We have seen them deployed effectively in all of the following:

  •       Motions and briefs before judges
  •       Pretrial depositions
  •       Mock trials
  •       Alternative dispute resolution hearings
  •       Class certification hearings
  •       Lobbying presentations
  •       E-discovery disputes
  •       Settlement talks
  •       Pre-indictment meetings with prosecutors

Even if you can't make it to the live webinar later this month – it will take place July 29 at 1:30pm EST -- you'll receive access to the recorded version just for registering.  The presenter, A2L's Managing Director of Litigation Consulting, Ryan H. Flax, Esq., regularly works with top trial teams to help develop, refine and test storylines and persuasive graphics for briefs, hearings, depositions, ADR, tutorials, and pre-indictment presentations.

The topics of the webinar will include:

  • Why and how to frame your case as a story from the very beginning
  • Putting effective graphics in unexpected places: depositions, ADR and hearings
  • Techniques for persuading skeptical audiences with graphics
  • Using litigation graphics persuasively in briefs and motions

We hope to see you at the webinar later this month. Click here to reserve your free seat or be notified when the recorded version is available.

pretrial trial graphics motions briefs hearings

Tags: Markman Hearings, Trial Graphics, Litigation Graphics, Mock Trial, Arbitration/Mediation, Persuasive Graphics, Settlement, Briefs

How the New Commil USA Supreme Court Opinion Changes Patent Litigation

Posted by Ryan Flax on Mon, Jun 1, 2015 @ 09:00 AM

 

us-supreme-court-patent-decision

by Ryan H. Flax, Esq.
(Former) Managing Director, Litigation Consulting
A2L Consulting

On May 26, 2015, the U.S. Supreme Court released its opinion in Commil USA, LLC v. Cisco Systems, Inc. (575 U.S. ____ (2015)) and it will significantly change patent litigation in the U.S.1

In Commil USA, the Court clarified when indirect patent infringement known as “inducement” occurs and how [not] to escape liability. As a bit of background, a patent can be infringed directly and indirectly. The Patent Act, at 35 U.S.C. § 271, makes it unlawful to make, use, sell, or offer to sell (in the U.S.) a patented thing or process without the patent holder’s permission. Part (a) of this section provides liability for direct infringement, that is, outright doing the thing that infringes a patent. Part (b) governs the first of two indirect infringements, induced infringement, and states “whoever actively induces infringement of a patent shall be liable as an infringer.” This is the focus of the Commil USA case. Part (c) of section 271 deals with the second of the indirect infringements (and interestingly, the one that was first statutorily identified), which is contributory infringement, which makes it an infringement to supply a non-staple, component for use in a patented thing or process.

Both types of indirect infringement require that some direct infringement occur and that the accused infringer actually know that its actions will constitute infringement of the patent at issue. The question before the Court was whether it was a proper defense to induced infringement that the accused infringer had a reasonable belief that the asserted patent was invalid. There is no question that there can be no infringement liability of an invalid patent claim, but does that matter when an accused infringer knows that its actions would otherwise infringe?

The Supreme Court held that, no, it does not matter. It’s no excuse and does not absolve liability for induced infringement that the accused infringer had a reasonable belief that the infringed patent was invalid. This is contrary to (and overrules) several years of precedent from the U.S. Court of Appeals for the Federal Circuit, which has held repeatedly that you cannot infringe an invalid patent and so reasonable arguments that a patent was invalid prevent induced infringement liability.2

indirect-patent-infringementThe law of the land on induced infringement is that if there is (1) a direct infringement of a patent and (2) you knew of the asserted patent and (3) you knew that the acts you actively encouraged would infringe that patent, you’re liable for infringement whether or not you thought that patent was valid or invalid. Validity is presumed, so as an accused infringer you can’t assume otherwise.

How will this affect patent litigation and patent counseling going forward?

If clients are potential indirect patent infringers, meaning they don’t actually directly infringe, but they either contribute to infringement (e.g., they supply the key component making infringement possible in an otherwise not-infringing product) or their actions would arguably encourage the direct infringement of others (e.g., a patent claims playing a video game and the client developed the software and sold the game hoping hundreds of thousands of gamers would play it), how can we help insulate them from liability?

Opinions of counsel are key and they must address non-infringement. The point of the legal opinion is to instill a reasonable belief in your client that they do not infringe.

As soon as your client learns of a patent and potential infringement, a well-reasoned (I’d suggest formal) opinion should be developed and it should focus first on a reasonable claim construction that takes the behavior at issue out of the scope of infringement. I do not advocate ignoring validity issues in these opinions, but no matter how well reasoned they are they will not mitigate against indirect infringement unless you actually succeed on the invalidity arguments at trial.

patent-infringement-willfulPre-trial opinions should set out solid reasons why there is no direct infringement. The claim construction is the first step. A reasonable claim construction that pushes the claimed invention away from the client’s behavior or product is the goal. The second step is identifying why the potential infringer’s (this is some third party because the client will be an accused inducer) actions fall outside the patent’s claim scope when properly construed. An alternative, more conservative argument on claim construction and non-infringement may also be warranted, using a claim construction more likely to be adopted by the patent holder. If a direct infringer’s actions reasonably do not infringe the more conservatively construed claims then you likely have a good argument against inducement.

The reasonable claim construction(s) developed at the pre-litigation counseling stage should be carried through to any litigation that ultimately develops so that the pre-litigation reasonable belief in non-infringement is reinforced. District courts get some deference in their claim construction holdings – that is, factual conclusions underpinning a claim interpretation under the law are reviewed for clear error, not de novo, thanks to Teva Pharma. USA, Inc., et al. v. Sandoz, Inc., et al., 135 S.Ct 831, 574 U.S. ___ (2015). This should be taken into consideration when developing non-infringement arguments and the facts upon which your claim construction is based should be carefully planned and soundly supported. Winning at the district court is important for this reason and, so, winning (or at least doing a reasonable job) the Markman is essential. If you had a pretty good, but still losing claim construction argument at the district court, you have an argument to the Federal Circuit that you had a reasonable believe you didn’t infringe the patent because of it.

Above all else, you must plan early to be the most reasonable man in the room when it comes to arguing non-infringement, whether your reasoning is based on claim construction or the facts.

Other articles on A2L Consulting's site related to patent litigation and the use of visuals in patent trials, in the ITC and in IPRs:

[1] The Court’s opinion was written by Justice Kennedy, the same judge who wrote the opinion in KSR Int'l Co. v. Teleflex, Inc., 550 U.S. 398 (2007).

[2] It should also be noted that the Federal Circuit has ruled similarly on the issue of enhanced damages for willful infringement – that a reasonable belief that a patent is invalid prevents the satisfaction of the first, objective recklessness prong under Seagate(497 F.3d 1360 (Fed. Cir. 2007)). It will be interesting to see if the Supreme Court has anything to say in the future on this issue. The Seagate rule does add that the risk of infringement must be of a “valid patent,” but this is a court-made rule and not statutory.

The materials on this website are provided for informational purposes only and do not constitute legal advice.

Tags: Markman Hearings, Litigation Consulting, Patent Litigation, Claim Construction, ITC, Federal Circuit, Inter Partes Review

A Tale of Two Patent Trial Presentation Styles [CVN Video]

Posted by Ryan Flax on Wed, Nov 5, 2014 @ 03:37 PM

 

patent-trial-presentation-style-cvnby Ryan H. Flax, Esq.
(Former) Managing Director, Litigation Consulting
A2L Consulting

A2L has a wonderful partnership with Courtroom View Network (cvn.com), which is a warehouse of video footage of courtroom presentations of all kinds and should be a valued resource for attorneys and law school students wishing to educate themselves on the “to-dos” and “not-to-dos” of litigation argument. I have been browsing the intellectual property video footage at cvn.com and wanted to provide you two examples of different presentation styles in patent litigations: one using no graphics and one using graphics.  I compare and contrast these presentations below.

First, here is a 5 minute video of attorney Joseph Zito introducing a patent at suit and discussing its technology, a bone screw. Watch it and then see my commentary after the jump.

patent-trial-presentation-style-courtroom

What did we just see?  This was a Markman hearing – the hearing before the court where counsel argues for a certain interpretation of the patent’s claims as a matter of law. The judge is the audience – there’s no jury at this point.

You see that Mr. Zito has elected not to use any litigation graphics to help him explain the technology or to argue his case. Instead, he’s chosen to use an ELMO overhead camera machine to show paper documents, including the patent and his claim charts. He explains the technology by flipping the patent’s pages to its drawings.  He explains the claims at issue by pointing to his claim charts that quote the patent’s claims. He’s also decided to showcase his fingers and pen.

Did you find what Mr. Zito had to say interesting? Did you particularly follow any of what he said? Did you find it easy to watch all 5 minutes of the argument?

I did not find Mr. Zito’s argument interesting, and I must admit that I found myself daydreaming just a little during the brief 5 minutes of video. The technology here is not super-complicated. It’s basically a screw with a threaded head and how it interacts with a bone plate. This is not too hard to understand, but I don’t feel I really get much of what Mr. Zito wants to argue and he sure hasn’t made bone screw technology interesting (it could have been to me as I’m quite partial to medical device technology).

Now let’s watch another courtroom video. Here is another 5 minutes of another attorney, John Adkisson, who, similar to Mr. Zito, introduces a patent in suit and its technology (completely different case).  Watch it and see my commentary after the jump.

patent-litigation-trial-presentation-style-courtroom

What did we see here?  Attorney Adkisson made, what I believe, a more interesting presentation – and, all things being equal, a better trial presentation.

First, we see Mr. Adkisson adhere to our first rule of persuasion: frame your case as a story. He introduces his client and the inventor and sets the scene for the judge. He asks and answers the all-important question of “why are we really here?” – we're here because of (Professor) Dr. Paul Blum’s invention in hyperthermophillic organisms (whatever that is).

Moreover, Mr. Adkisson uses litigation graphics to make his case. He hasn’t yet gotten to the real meat of his arguments yet, but we know what patent is at issue here, what the invention is about, which claims are being asserted, and how they might be infringed. Furthermore, Mr. Adkisson uses an immersive presentation style where he always shows the judge a graphic while he makes his argument – this is the only way to significantly improve your persuasiveness using visual support.

I’m not saying that Mr. Adkisson’s trial presentation/argument style was perfect – far from it.  He made some elementary mistakes that could wind up killing his presentation, e.g., using bullet points, not animating his graphics, simultaneously saying what’s written on his PowerPoint slide.  However, he did a far better job using litigation graphics than Mr. Zito did without litigation graphics.

What do you think?  Which style of trial presentation did you find more interesting? Which held your attention longer? Which presentation’s information did you feel you understood better and
which did you retain longer? I’d say the second one, but I’d love to hear from you.

Other A2L Consulting articles and resources related to storytelling, patent litigation, Markman hearings, trial presentation and litigation graphics:

A2L Consulting's Storytelling for Litigators 3rd Ed E-book

Tags: Markman Hearings, Trial Graphics, Litigation Graphics, Trial Presentation, Courtroom Presentations, Patent Litigation, Storytelling

16 PowerPoint Litigation Graphics You Won't Believe Are PowerPoint

Posted by Ken Lopez on Tue, Feb 4, 2014 @ 01:35 PM


powerpoint litigation graphics consultants providersby Ken Lopez
Founder/CEO
A2L Consulting

Litigators do not need to know how to create advanced PowerPoint litigation graphics. However, litigators do need to understand what a skilled artist is capable of producing using the program. Most will be surprised to learn what's possible, and even veteran users of PowerPoint will think there's an element of magic in some of the presentations shared in this article.

As a litigation graphics consultant who has been using PowerPoint since the 1990s, even I am amazed by the litigation graphics some artists are able to create using PowerPoint. Using real artistic skill combined with PowerPoint's built-in features unleashes impressive creative potential. What used to require 2D and even 3D animation just five years ago can now often be produced within PowerPoint faster and with a fraction of the investment that used to be required. Then, best of all, everything created is available for a litigator or their trial technician to present right from PowerPoint without any additional software or fancy hardware. In many cases, it can even be presented right from an iPad.

Too often, people view PowerPoint as a program that helps someone put their speaking outline, usually in bullet-point form, in visual form on a series of slides. We have long counseled that the use of bullet point riddled slides hurts your trial presentation, especially when one reads bullet points. Fortunately, most litigators are changing with the times and paying attention to the good science that shuns the use of bullets.

We have written before about combining illustration with PowerPoint animation to achieve great results and the four types of animation one typically sees at trial. The purpose of this article is to help you understand how far you can stretch PowerPoint. It's not the right tool for every situation, however when used the right way and in the right hands, it is a powerful weapon of advocacy.

Below are 16 PowerPoint litigation graphics presentations (all converted into movies for easy online viewing) that most will be surprised to learn were created in PowerPoint by artists at A2L. We'd certainly welcome questions about how we created these graphics, and we would absolutely love to hear from artists who can do this kind of work well.

1. This PowerPoint litigation graphic prepared for a recent antitrust trial is really a timeline in an unusual format. To emphasize how difficult it is to run an airline in the United States, a long list of bankruptcies is set to scroll like movie credits in PowerPoint. Interested in more timeline examples, download our timeline book (opens in new window).

 

2. This PowerPoint litigation graphic was used by an expert in a patent case to explain how the design of a ship's hull affected its performance. Interested in patent litigation graphics, download our patent litigation toolkit for litigators (opens in new window).

 

3. This clever PowerPoint makes good use of motion path animation and illustration to explain video playback patented technology. The use of "tags" helps explain the concept of keyframing in video encoding and playback in a jury-friendly way.

 

storytelling persuasion courtroom litigation webinar

 

4. PowerPoint can even be used to show deposition clips. If you have more than a handful of deposition clips, you would probably want to use Trial Director to show them, but for a limited number or a group of short clips, PowerPoint does a good job.


 

5. This A2L PowerPoint litigation graphic, explaining how hydraulic fracturing (aka fracking) works, has been viewed more than 180,000 times on YouTube. The use of dials and animation of the drill head are not what you would normally expect from PowerPoint (link set to start video at 1:27). The voiceover audio is embedded into the PowerPoint.

 

6. This simple traffic cop animation explains the roll of an operating system in an easy-to-understand format. By using illustrations combined with animation in a PowerPoint litigation graphic where small parts are varied, an animated or cartoon effect is achieved within PowerPoint.

 

7. In a very simple way, this chart uses PowerPoint to show how Fahrenheit and Celsius scales compare to one another. Like many of the examples in this article, it's surprising that the graphic was created in PowerPoint.

 

8. This chart shows how a phone dialing system works and is designed for a judge's viewing in a claim construction setting rather than jury viewing during trial. Again, it is animated and presented entirely in PowerPoint.

 

patent litigation demonstrative evidence

9. Even a surgical procedure can be shown using a combination of illustration and PowerPoint animation techniques. Such work can make courtroom animation economically feasible in even small cases.

  

10. Here, to help demonstrate that a doctor was reading films too quickly to maintain an appropriate standard of care, an analogy to speeding is created in PowerPoint.

 

11. For a claim construction hearing, this PowerPoint was created to show how a drug delivery system works in a hospital environment. Claim language is shown in conjunction with the PowerPoint litigation graphic to give it context and meaning. I think it is a smart use of animated graphics juxtaposed with claim language.

 

12. Here, the removal of a nuclear power plaint reactor pressure vessel is shown. By creating illustrations that are shown in quick succession, the effect of animation is achieved in PowerPoint without having to go through the expense and complications of creating an animation.

 

13. Using PowerPoint's native interactive features, one can create hot-spots on a graphic that show a document or another image. This means that images do not need to be shown in linear order. This becomes useful when one wants to use a timeline built in PowerPoint and still have the flexibility to jump around to other documents. Interested in more timeline examples, download our timeline book (opens in new window).

 

14. Explaining complicated patent terms with PowerPoint litigation graphics becomes much easier when coupled with a straight-forward analogy like the one shown here. Simply a local bus and remote bus (computer communication systems that move data between components) bear similarities to traffic patterns that are easy for a jury to understand. Interested in patent litigation graphics,download our patent litigation toolkit for litigators (opens in new window).

 

15. Making heavy use of illustration, this PowerPoint serves as a timeline that explains how a worker was electrocuted on a job site and went undiscovered for some time.

 

16. Finally, here is an example of how one might use the interactive features of PowerPoint to tell a complicated story in a mortgage-backed securities case. The user is free to click on any of the state icons to view developments in other locations in any order they choose.

 

Using PowerPoint litigation graphics will solve many trial challenges, however one needs to know when to use PowerPoint, Flash, a physical model, a trial board or a more sophisticated 3D animation program. To make that judgment, ask your litigation graphics consultants or contact A2L.


Articles related and resources to PowerPoint litigation graphics on A2L Consulting's site:

using litigation graphics courtroom to persuade trial graphics a2l consulting

Tags: Patent Tutorial, Markman Hearings, Trial Graphics, Litigation Graphics, Demonstrative Evidence, Animation, Patent Litigation, PowerPoint, Claim Construction, Information Design

Litigation Graphics and Demonstrative Evidence at the USPTO

Posted by Ryan Flax on Tue, Jan 21, 2014 @ 10:45 AM

 

litigation graphics demonstrative evidence pto patent officeby Ryan H. Flax, Esq.
(Former) Managing Director, Litigation Consulting
A2L Consulting

How do you win in oral argument before USPTO Administrative Patent Judges in an Inter Partes Review, Post-Grant Review, Business Method Review, or a plain-old appeal from a final rejection hearing?  You do it in the same way you win at trial – by being as persuasive as you can be.  But, unlike in a district court trial, you’re only going to have an hour or less with the PTAB to make your case in oral argument, so it’s as if everything comes down to a terrific closing argument.

You win at trial and at any of these hearings by having any combination of two of: (1) a great lawyer; (2) great facts; and (3) a great presentation.  Assuming my audience here consists only of great patent lawyers and that if you had great facts you’d not be at the oral argument stage before the PTAB, the question is – how do you have a great presentation?  You do it by educating your audience in a way that they prefer to learn and research shows that chances are good that at least two judges on your panel of three will prefer to learn visuallySee, e.g., William C. Bradford, Reaching the Visual Learner: Teaching Property Through Art (for download).

patent litigation demonstrative evidence

Your oral argument at any of the above-identified PTAB hearings is essentially your closing statement for the case.  It’s about the same length as a typical closing argument, it comes at the end of the case, and it will be just you standing in front of the decision-making audience trying one last argument to sway them.  When would you consider making a closing argument at trial (or a Markman hearing oral argument for that matter) in a patent litigation without showing the judge or jury graphics and evidence electronically to visually support your arguments?  Never – so don’t overlook this powerful tool at the U.S. Patent and Trademark Office either.

patent trade mark office graphics alexandria litigation support

If the USPTO Trial Board suggests they don’t want “fancy” graphics, does this mean not to use any? NO, of course not.  Just take a look (below) at how the USPTO itself explained the sequence of procedural events for the new post-grant procedures under the AIA:

pto timeline post grant procedure aia explained infographic

So, what is that?  It’s a graphic, a demonstrative, a timeline.  Why did the USPTO publish this timeline in its Trial Practice Guide (Fed. Reg. Vol. 77, No. 157 (Aug. 14, 2012)?  Because they knew that the subject matter was confusing, even for patent attorneys, and that a graphic (demonstrative) would make it clearer.

The first oral hearing before the new PTAB in a post-grant proceeding was held April 17, 2013 in Case No. CBM2012-00001 (SAP America Inc. and Versata Development Group Inc.) challenging U.S. Patent No. 6,553,350 (a business method review case).  ptab graphics presentations consultantsIn that hearing, each party produced demonstrative exhibits (you can see them at the previous link and at this one; they’re not too impressive or professional looking, and they don’t adhere to the fundamentals of visual information design important to litigation graphics, but at least they’re there and were used) and focused their arguments and demonstratives on technical questions relating to §101 (patent eligibility) issues.  So, from the very beginning, demonstratives and graphics have shown themselves to be an essential component to PTAB oral argument.

Oral arguments are governed by rule 37 C.F.R. § 42.70 – any party can request a hearing on issues raised in papers filed during the case.  Demonstrative exhibits must be served at least 5 days before the argument.  While the Trial Board recommends foregoing “fancy” exhibits, professionally crafted, well designed, and thematically focused exhibits are essential to winning.  You should provide both a bound exhibit book, tabbed so key exhibits are easy to locate, and an electronic visual presentation to support your oral argument.  If any special equipment is needed, e.g., a projector and screen, you should contact the Board paralegal well in advance of your argument (at (571) 272-9797).

Let’s see what experienced practitioner Robert Greene of Stern Kessler Goldstein & Fox PLLC has to say about using demonstratives before the PTAB:

Under the AIA, new arguments cannot be presented at an oral hearing.  See 35 U.S.C. §§ 316(a) and 326(a); 37 C.F.R. § 42.70(a).  Oral argument is limited to issues “raised in a paper” – “[a] party may rely upon evidence that has been previously submitted in the proceeding and may only present arguments relied upon in the papers previously submitted. No new evidence or arguments may be presented at the oral argument.”  Trial Practice Guidelines, Vol. 77, No. 157, 48768 (Aug. 14, 2012).  Further, under the rules, demonstrative exhibits to be used at oral argument must be exchanged at least five days before the hearing and filed with the Board no later than the time of the hearing to ensure they comply with the law and rules. Id. at § 42.70(b).

These rules present an opportunity and somewhat of a necessity to add graphics to your briefing with the intent of laying the foundation for later turning them into demonstrative exhibits for your hearing.  My suggestion is to add smaller (so you don’t interfere with the strict page limits), but intelligible graphics to your brief, inserted into the text at the appropriate points, and add the full-sized (page-sized) graphics as exhibits to your brief.  Thus, you will have already thought out your hearing presentation’s visual component and laid its foundation without worry about the “new argument” problem.

In CBS Interactive Inc. v. Helferich Patent Licensing, LLC, IPR2013-00033, Paper 118, the PTAB clarified what a party to a post-grant hearing may include in its demonstrative slides, stating that “figures, charts and diagrams may serve as visual aids,” but “written text, setting forth various statements, characterizations, and assertions go beyond serving as visual aids, as they constitute additional briefings themselves.”  So, lay that foundation and tune your graphics to limit text (which is what we at A2L suggest in every situation where graphics are used anyway).

With filing fees for Inter Partes Review at $14,000, Ex Parte Reexam at $12,000, Post-Grant Review at $18,000 (or more), it is easy to justify building a professionally supported visual presentation component into your post-grant case budget.  With the high stakes of these types of proceedings (not the least of which is the estoppel that applies to the defeated), patent attorneys need to be as persuasive as possible and visual support for oral argument is a key to that persuasion.

Other articles related to patent litigation and the Patent & Trademark Office:

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Tags: Markman Hearings, Litigation Graphics, Demonstrative Evidence, Patent Litigation, Judges, Appeal, Briefs

The 5 Biggest Issues in Patent Law Right Now

Posted by Ryan Flax on Mon, Nov 25, 2013 @ 10:38 AM


by Ryan H. Flax, Esq.
(Former) Managing Director, Litigation Consulting
A2L Consulting

The field of patent law, like all other areas of the law in the U.S., is constantly in flux and is constantly being refined or even rewritten by the courts and the lawmakers.  Even more so than most other areas of law this is true for patent law because, if for no other reason, there are so many nuances to it and so many different complimentary and competing doctrines within the greater label of “patent law.” 

patent litigation law issuesTo make matters more volatile, patent practitioners have two courts to deal with in terms of those believing they’re the last word on the relevant law: the U.S. Court of Appeals for the Federal Circuit and the U.S. Supreme Court.  We all know who really gets the last word on things, but for most patent issues, the Fed. Cir. makes the law.

Well, guess what, the lawmakers in Congress also think they have something to say about the patent laws they initially wrote (or someone in the seat they now occupy wrote).  The wheels on Capitol Hill are turning again over the patent laws (they have to do something up there while they’re not addressing the nation’s financial concerns).

So, recently there have been some interesting issues evolving in patent law.  Here’s a brief review to keep everyone up to date.

1. Trolls – slaying the beast under the bridge

patent trolls litigationThe most frequent patent news as of late relates to newly proposed legislation to make it less attractive for non-practicing entities, also called patent trolls, to sue as a business model.  Patent trolls are usually categorized as entities that own patents, but not the inventor of the claimed subject matter, that use those patents aggressively to solicit fees from companies they allege infringe their patents.

Most recently, a bill called the Patent Litigation Integrity Act (S. 1612) was introduced in the U.S. Senate by Orrin Hatch (an experienced IP legislator) and proves for fee shifting in patent enforcements that aren’t “substantially justified” and allows for an accused infringer to move the court to require a bond be posted by the plaintiff.  Prior to that, the Innovation Act (H.R. 3309) was introduced in the U.S. House of Representatives and provides for fee shifting of litigation costs and heightened pleading requirements, as well as a requirement that a party enforcing a patent disclose patent ownership information from the outset of a lawsuit.

There’s some pushback on such proposed legislation within the patent practitioner community, not the least of which comes from former Chief Judge of the Fed. Cir., Judge Paul Michel (Ret.) (he made his comments, by the way, at the 15th Annual (Ray) Niro Distinguished Intellectual Property Lecture – Ray Niro is a well-known patent plaintiff’s attorney).  Likewise, the current Chief Judge Randall Rader warned lawmakers of overreaching in a speech at the Eastern District of Texas Bench Bar Conference – both decrying the “litigation blackmail” of some patent owning plaintiffs who seek to extort settlement that is less than the cost of a defense and also balancing this by saying that the solution is not special rules for patent owners that don’t make or sell any products.  Opposition aside, it’s apparent that people are getting fed up with the tactics of trolls and the climate is ripe for some action.

patent litigation demonstrative evidence

2. Claim Construction – deference to district court

patent litigation trial graphicsAs patent litigators we’re all aware of how important the claim construction is to the entire case – it often dictates the outcome before the jury selection even takes place.  So, it’s with high interest that we all await the en banc opinion from the Fed. Cir. in Lightning Ballast Control v. Philips.  This case is all about how much deference to give the district court in reviewing its claim construction order.  As it stands now, the 1998 Fed. Cir. ruling in Cybor makes claim construction a pure issue of law and allows absolutely no deference to the trial court judge’s opinion.

Both parties in the Lightning Ballast case agree that the standard de novo review applied by the Fed. Cir. in reviewing claim construction is not the way to go.  What they argue over is merely what parts of the district court’s claim interpretation get deference. 

I personally can’t wait to see the result.  It hardly seems fair for the Fed. Cir. to identify a brand new claim interpretation, one that never had to be proved-up at the district court, and still outright reverse a jury verdict.  But, this happens all the time.  The opinion in Lightning Ballast should improve things one way or another.

3. Damages and Costs?

The U.S. Supreme Court has granted cert. in several IP cases this term.  One of them, Octane Fitness, LLC v. ICON health & Fitness, Inc., involves the issue of determining whether a case is “exceptional” and, thus, warrants increased damages or the award of attorney fees.  Fed. Rule Civ. Pro 11(c) and Patent Act section 285 each provide for the award of attorney fees as a sanction against the loser of certain cases.  The Patent Act requires an exceptional case for such an award.  What’s exceptional?  A finding of willful infringement will make it so.

Again, in Highmark Inc. v. Allcare Heath Management Sys., the subject of attorneys fees are at issue.  In Highmark the question relates to whether any deference must be given to the district court’s award of attorney fees. 

So, as winners, we all want to collect attorney fees – we’ll have to stay tuned to see how it will be done in the future.

4. Burden of Proof – should it shift?

Just in the last couple of weeks (November 5) oral argument [PDF] was heard in the U.S. Supreme Court in Medtronic Inc. v. Boston Scientific Corp.  The issue is whether, in a declaratory judgment (DJ) matter, the burden should be on the possible-infringer plaintiff or the patent-holding defendant to prove either non-infringement or infringement, respectively.  Normally, a patent holder has the burden of proof to establish by a preponderance of the evidence that those he accuses have infringed. 

patent law litigation graphicsA DJ situation is skewed, though, in that the would-be infringer brings the case to establish that he hasn’t infringed (or that the patent is invalid and he cannot infringe).  That would-be infringer here (Medtronic) is a licensee, so the defendant-patent-holder’s position is that, as a licensee in good standing, he has no right to assert a counterclaim of infringement.  So, a licensee-party can sue a patent-holding-licensor, force them to litigate, and also force the burden of proof on them.  Weird, eh?  In any event, we’ll definitively know the answer to this question in a few months.

5. Post-Grant Stuff at the USPTO

The America Invents Act, now in full effect, created new ways to challenge issued patents: inter partes reviews (IPR); post-grant reviews (PGR); and covered business method reviews (CBM).  It appears that these are becoming pretty popular strategies as more and more litigators recognize how each challenge can fit into their practice and specific client situation.  Apparently, as of this Fall, there have been almost 600 IPR petitions, a the rate of about 60 per month.  Experts expect this rate to double in the coming year.

To add fuel to this fire, recently the Fed. Cir. held in Fresenius USA Inc. v. Baxter Int’l Inc., 721 F.3d 1330 (Fed. Cir. 2013), that an invalidity (unpatentability) ruling by the USPTO Paten Trial and Appeal Board mooted a pending district court case once the patent was found invalid.  Interestingly, the district court had reached the opposite ruling and was essentially overruled by the USPTO.

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Tags: Markman Hearings, Patent Litigation, Judges, Claim Construction, Federal Circuit

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Authors

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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.


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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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