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There are many situations outside of trial where lawyers find themselves in a courtroom or courtroom-like environment. Some examples include a mock trial, a pretrial hearing, an arbitration, a mediation, or an administrative hearing. Some of these situations are a lot like trial, yet I find many litigators don’t treat them like a trial. I think they should. One such example whose lesson applies broadly to almost any trial attorney is a relatively new type of administrative hearing that occurs every day at the Patent & Trademark Office. It’s called an inter partes review hearing (IPR). And if you think this article applies only to patent litigators, you’re wrong. This type of hearing has lessons for all trial attorneys. The work that patent litigators do is almost always complex. Over the past 24 years at A2L, roughly 40 percent of our work has involved patent litigation. That makes sense because the work of A2L is perfectly suited to patent litigation. We have three primary services: conducting mock trials and jury research, simplifying complex information with litigation graphics and expert storytelling, and using trial technology to quickly convey information to the factfinder. Patent litigators, after all, need to convey complicated information in a jury-friendly way. It needs to be understandable and persuasive and needs to tell a story that people will care about, a story that must be delivered in a winning manner. That’s why as far back as the 1990s, it has been patent litigators whom A2L worked with most often. In 2009, the America Invents Act (AIA) fundamentally changed the way in which patent cases are tried. The act allows for, among other things, something of a shortcut method to challenge the validity of a patent via a hearing at the Patent and Trademark office. There are judges and there is vigorous opposition from opposing counsel. But what’s missing here compared with most patent trials -- professionally prepared litigation graphics, a clear and compelling story, and an effort to highlight only the important information in the oral presentation. See 5 Tips For Inter Partes Review Hearing Presentations at the PTO. I heard a quote from Judge Learned Hand recently that underscores this last point: With the courage which only comes of justified self-confidence, he dared to rest his case upon its strongest point, and so avoided that appearance of weakness and uncertainty which comes of a clutter of arguments. Few lawyers are willing to do this; it is the mark of the most distinguished talent. If you want to see 100+ bullet point-ridden slides with trial counsel reading from them (see How Many PowerPoint Slides Should You Use in a Typical Trial? and 12 Ways to SUCCESSFULLY Combine Oral and Visual Presentations), this venue is all too often the place to find them. Considering the material and what is at stake, this is pure self-sabotage on behalf of a legal team. Patent lawyers generally do well at trial working with A2L, but for some reason, many have reverted to the behaviors of the 1980s and 1990s in this venue.  Of course, I notice this in all sorts of venues, unfortunately, and I want to raise awareness for both trial counsel and clients in all areas. The science is well settled on why litigation graphics are necessary - even in a bench trial environment. See 6 Studies That Support Litigation Graphics in Courtroom Presentations. The same is true for telling a compelling story and doing that efficiently. I have heard this sentiment from judges and practitioners alike. One veteran patent litigator, Rob Mattson of the Oblon law firm, spoke to me about IPRs, “These cases are similar to a summary judgment hearing, and the judges want to understand the technology and what is in dispute as efficiently as possible. Getting the litigation graphics right here is just as important as in trial, although there may only be 20 key slides instead of 80.” I believe that this is a broad lesson that goes well beyond the inter partes review hearing. Consider some of these articles on each of these areas and how they might apply to what you present to your fact-finder. Presenting in arbitration/mediation Presenting in international arbitration Presenting in inter partes review hearings 14 Places Your Colleagues Are Using Persuasive Graphics (That Maybe You're Not) Presenting in class certification hearings Presenting in Markman hearings Presenting at the ITC Presenting in mock trials

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by 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?

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by 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

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  by 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.

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  by 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?

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  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.

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  by 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.

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