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The Litigation Consulting Report

Trial Graphics in Patent Litigation - 11 Great Demonstrative Tips

Posted by Ryan Flax on Thu, Jul 5, 2012 @ 10:29 AM


trial graphics in patent litigationby Ryan H. Flax, Esq.
(Former) Managing Director, Litigation Consulting
A2L Consulting

There are good reasons that more than half of A2L Consulting's trial graphics and litigation consulting work is related to patent law: 1) patent cases typically involve complex and technical subject matter that must be explained to non-technical judges and jurors, 2) the cases frequently make it to trial because settlements are often more difficult to craft in patent cases, and 3) patent cases may often have hundreds of millions or even billions of dollars at stake (which is another reason they don’t settle).

I've put together this article to let patent litigators, like myself, know what resources are available to them at our firm. Frankly, these are things I wish I knew when I was tasked with hiring a trial consultant, trial graphics firm, or trial technician while I was actively litigating patent cases.

Here are 11 things you should consider when involved in patent litigations, including several trial graphics and litigation consulting resources on A2L Consulting's site.  I hope you find these valuable.

  1. Hire your patent trial graphics experts early enough for them to be helpful. There are many phases of patent litigation where you would be well served to have a litigation consultant and graphics firm on board. Markman briefing and hearings are the most obvious, but also consider using graphics with your summary judgment briefing, Daubert motions, motions in limine, and appeal briefing (have your demonstratives entered into the record for this).



  2. Thoroughly understand your judge and his court. Know the local rules, particularly if there are special patent rules (as there are in the E.D. Tex and N.D. Cal). Know what the courtroom has to offer in terms of presentation technology – do you need to supply a projector or screen? Know your judge’s preferences for the use of demonstrative exhibits (note, the judge’s position may change from Markman to trial settings). Set a favorable schedule (for you) relating to demonstrative exhibit exchange and objections – if you have a great graphics team, plan on exchange just a few days or one day before their use and a day to object. For all these things, enlist the aid of an experienced and successful local counsel, preferably one with a lot of patent litigation experience and a good relationship with the court.
     
  3. Download and read The Patent Litigator's Trial Graphics Toolkit. It is a free e-book with great tips and articles, many of which are shared individually below.

  4. Relatedly, download and read A2L's largest e-book to date that was just released, The BIG Litigation Interactive E-Book. In it, you’ll find many great tips, not limited to patent litigation.

  5. There are many excellent patent-related articles on A2L's litigation blog, The Litigation Consulting Report. They primarily discuss trial graphics, jury consulting, leading litigation teams and using courtroom technicians. I would encourage you to subscribe to the blog so that you are notified when new articles (like this one) are published. I frequently publish blog posts there, and my favorite subject is patent law. Here is a subscription link and here is a shortened link you can use or cut, paste and send to a friend: http://a2.lc/BlogSub

  6. Read: Perfecting the Patent Litigation Trial Graphics Tutorial for Your Judge  As you know, a good tutorial can color the entire trial and has the potential to influence the claim construction. We used one in each of my concluded Saffran litigations against Boston Scientific Corp. and Johnson & Johnson, made by A2L. They were effective and seemed to help us be more persuasive during claim construction.

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  7. Read: Preparing Trial Graphics for ITC Hearings Creating trial graphics for this face-paced jurisdiction is a must, and this article provides a good introduction from other patent litigators who have practiced before the ITC.

  8. Read: Explaining Patent Claim Language Using Trial Graphics How do you intend to make the jurors understand what comprises what and what the “said second surface being adjacent to the first surface” means? Use graphics – it’s a no-brainer.

  9. Read: Teaching Science to a Jury Using Trial Graphics See No. 8 above.

  10. Read: Making the Complex Understandable in Pharmaceutical Cases Using Trial Graphics Again, it’s hard to explain something technical that took you two years to fully understand yourself to your mom and dad, but that’s essentially what you need to do at trial. Using trial graphics will help, a lot.

  11. Watch: When I was litigating patent cases, I had a chance to use other trial graphics consultants and then use A2L. My perspective will perhaps not be surprising since I choose to join the A2L Consulting team, however the differences between our firm and others are vast and worth hearing about. I am also curious if you have had the same challenges that I did. I invite you to leave a comment below or contact me.




patent litigation ebook

 

Ryan Flax is the Managing Director of Litigation Consulting at A2L Consulting. He joined A2L after practicing as a patent litigator who contributed to more than $1 billion in successful outcomes. 

Tags: Patent Tutorial, Trial Graphics, Trial Consultants, Litigation Graphics, Trial Presentation, Litigation Consulting, Trial Consulting, Patent Litigation, Pharmaceutical

Explaining a Complicated Process Using Trial Graphics

Posted by Ken Lopez on Tue, Apr 24, 2012 @ 12:12 PM


process flow charts trial graphicsIn our work as trial graphics specialists, many cases require us to prepare a demonstrative exhibit that simplifies a complex process. This could be a scientific or technical matter such as how environmental remediation is conducted, how surgical mesh is used, or how data backups are migrated, or it could be a business or governmental matter such as how a form of bond obligation is created and sold or how a government contract is bid and awarded.

The key to making a successful process chart or flow chart is to create a simple trial graphic that anyone can quickly understand. It does not have to spell out every last detail of the science, technology, business concept, or governmental action involved; it merely has to discuss it accurately and in a way that will help the judge or jury understand what is at issue in the case.

Here are some examples of process chart trial graphics that we have used and that we thought were effective.

In this video below, we use PowerPoint intellectual property graphics to explain how video playback and freeze frames are handled through the use of tagging technology. This was a very valuable trial graphic in a patent case.

 

In the presentation below, we explain, in schematic form, the hydraulic fracturing (fracking) process that is used to extract natural gas from rock. The presentation shows how far below the earth’s surface fracking occurs and the industry’s routine use of cement and steel casings to protect groundwater from the tools and substances used in the fracking process.


In the presentation below, we show in graphic form the process in which collateralized debt obligations are created by investment banks. Through the use of Prezi presentation software, we were able to make this highly technical and complex matter comprehensible to a fact finder by introducing the concept of an “investment” and then showing how CDO’s are simply a type of investment.

In the trial graphics, we explain the drug development process in the United States and the process for regulatory approval of new drugs by the Food and Drug Administration. This PowerPoint demonstration helped a jury understand the length of time that the process can take, why it can take so long to bring a drug to market, and all the steps involved. 


Below, we introduce a jury to the process of creating a FLIP (Foreign Leveraged Investment Program). By numbering the steps in the process and creating arrows from the taxpayer to other entities, we were able to show how this tax shelter unfolds.

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What Is FLIP

 

The PowerPoint trial graphics below, created for a patent trial, shows how a coal conversion process occurs.

 

process charts trial graphics

Tags: Energy Litigation, Trial Graphics, Demonstrative Evidence, Animation, Patent Litigation, Pharmaceutical, Environmental Litigation, PowerPoint, Securities Litigation, Process Charts

Making the Complex Understandable in Pharmaceutical Cases

Posted by Ken Lopez on Fri, Feb 17, 2012 @ 12:54 PM


making complex cases understandable in pharma litigationPharmaceutical companies can be embroiled in many types of litigation. Very often, because of the length of time and the tremendous investment of money that it takes to develop a new drug and bring it to market, these cases can be crucial to the company’s continuing financial health.

For this reason, it is crucial that a litigator make these often complex cases understandable for the fact-finder, whether judge or jury. Once understanding is achieved, persuasive graphics and argument can be layered on top of that understanding.

Among the types of cases that pharma companies can frequently encounter are:

  • Products liability cases. Often, plaintiffs and their lawyers use pharma cases as attempts to develop new theories of liability and to establish new theories of causation of harm. The defendant drug companies and their law firms need to explain to jurors, who are likely to be suspicious of big pharma companies, why the company should not be held liable. Making complex information understandable in these cases is essential.
     
  • False Claims Act cases. Under the False Claims Act, someone who believes that the government has been defrauded can bring a case that the Department of Justice has the option of joining. These cases can include charges of billing fraud, kickbacks, violations of good manufacturing practices, wrongdoing in clinical research, and other allegations.
    patent litigation ebook
     
  • Antitrust litigation. As is true of many industries with only a few large participants, the pharma industry is often the target of antitrust cases. These can be either civil or criminal in nature and can be brought either by the government or by private parties. They can include allegations of monopolization of the market for a drug, charges that a merger is illegal, or allegations of illegal collusion among competitors.
     
  • Patent litigation. This type of litigation has become common because of the passage of the Hatch-Waxman Act in 1984. The act provides a mechanism for generic drug companies to quickly gain approval to sell a generic version of an existing brand name drug.  Here, the complexities of the process can be a struggle for a jury.  Thus, the use of litigation graphics is essential to make complex information understandable.

For example, under Hatch-Waxman, the application that begins the FDA approval process for the generic firm is called an Abbreviated New Drug Application (ANDA).  Brand name drug manufacturers have an understandable incentive to delay approval of the ANDA. If that approval is delayed, the brand name firm continues to be able to lawfully sell its brand name drug without a lower priced generic equivalent in the market. One lawful mechanism that brand name companies can use that may have the effect of delaying the approval of an ANDA is the filing of a Citizen Petition with the FDA.

A Citizen Petition filed by a brand name firm would typically allege that the proposed generic drug is not equivalent to the brand name drug and thus should not be approved for sale.  Should the Citizen Petition be deemed only a mechanism for delaying approval of the generic drug rather than one filed with the public's health interest at heart, the brand name firm would be liable for antitrust violations.

In a case of this type, our challenge in creating an effective trial presentation was to create trial exhibits that taught the jury and persuaded the jury simultaneously. The trial exhibits (below) were part of a PowerPoint presentation that explained how differently Citizen Petitions and ANDAs are handled at the FDA.

 

Similarly, in the “Hatch Waxman ANDA Bioequivalency Exhibit” (below), the straightforward area graphs show a jury how the proposed generic drug has a different concentration level and is thus not bioequivalent. This exhibit helped lead to a complete defense verdict for our client, a major pharmaceutical company.
 

 

Often pharmaceutical litigation involves topics at the microscopic level, and it is in such instances that making complex information understandable becomes especially critical.  In the short animation below, we demonstrate how an impenetrable layer is created by a polymer. This explanation was critical to a jury's understanding in patent litigation worth hundreds of millions of dollars. 
 


Paraphrasing Mark Twain, if litigators had more time to prepare, they would usually make a shorter presentation that is easy to understand.  The key to a shorter, more efficient presentation is taking the necessary time to make complex information easy to understand or hiring an effective demonstrative evidence/litigation consulting firm. Like many aspects of A2L Consulting's work, making the complex understandable is simple but not at all easy.


Learn more about A2L Consulting's work:



demonstrative evidence in pharmaceutical cases makes complex understandable 

Tags: Trial Graphics, Litigation Graphics, Courtroom Presentations, Trial Consulting, Animation, Patent Litigation, Pharmaceutical, Science

Teaching Science to a Jury: A Trial Consulting Challenge

Posted by Ken Lopez on Mon, Aug 29, 2011 @ 08:00 AM


by Ken Lopez

Very often, trial attorneys in complex cases need to explain extremely difficult and elusive scientific concepts to jurors who are not well versed in science. The lawyer’s job is to convey the science correctly to the jury so that they can make a rational decision – yet not to bury the jury under a blizzard of scientific terms and concepts that they will never understand.

The answer is to use visuals in the form of photographs, schematic diagrams, animation, timelines, demonstrative evidence, document call outs or whatever is suited to the situation, and to explain them in terms that jurors who are not specialists in the scientific subject can understand.

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Analogies (in other words, what is something like?), contrasts (how is something different from something else?), and simple definitions (what are the components of an object? how is it used?) are very useful tools for the trial lawyer.

As Jan D’Arcy wrote in 1998 in Technically Speaking, “Many scientific subjects are hard to describe; they can be difficult to see, touch, measure or imagine. A presenter should find ways to illuminate a concept in known terms with the least amount of distortion. . . . Comparisons and contrasts are two of the best ways to translate your information clearly to your audience. Similes, metaphors, and analogies are comparisons that can often lead to amazing insights.”

The brief movie below shows how restenosis (the formation of new blockages at the site of an angioplasty or stent placement) can form in blood vessels when a non-drug-eluting stent (one that does not contain an anti-stenosis drug) is used by a heart surgeon. This is a highly technical medical subject, yet after seeing the presentation, jurors will understand how stents work and why such drugs are used.  Just months ago, this A2L Consulting animation and others like it helped a long-time client win the 6th largest patent litigation verdict in history totaling $593,000,000.

Below, we created a very straightforward, highly memorable patent litigation graphic that shows one person walking his own path, away from conventional wisdom, to show that an inventor’s idea was unique and non-obvious.

trial consulting patent litigation teaching science to juries

Similarly, we have devised a 78-second video presentation that details the challenges of inbred reproduction, and the advantages of hybrid reproduction, in the corn plant. This is easily understandable to a juror, even one who does not have a background in biology or food science.

Finally, the schematic diagram below uses the excellent analogy to the letters and numbers in a license plate – an object familiar to jurors – to indicate how many possible structures of a chemical compound can exist and thus how the one structure designed by a client was not obvious and therefore was deserving of patent protection.

trial consulting and teaching science to a jury


As Matthew Weinberg, CEO of the scientific consulting firm The Weinberg Group notes, "Successful litigation relies upon a strong science story.  An expert who can explain the science easily and clearly makes a difference.  Juries want to understand the science and can be helped by an expert who makes it interesting and believable."

We believe that no scientific concept is too difficult to teach to a jury.  In our 16 year history, we have found a way to successfully teach and persuade about everything from the genetic development of cancer, genetically modified corn, stem cells, physical separation in patented pharmaceuticals, metal fatigue, the transportation of air, water and ground pollution, DNA, bioequivalence, how allergies work, epidemiology, physics, chemistry and countless applied science medical principles.

With the right combination of trial team, trial consulting firm and expert consulting firm, any concept can be made understandable by combining a good explanation and a good visual.

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trial consulting demonstrative evidence science juries



Tags: Trial Graphics, Litigation Graphics, Trial Presentation, Courtroom Presentations, Trial Consulting, Animation, Patent Litigation, Pharmaceutical, Science

Litigation Graphics: Timelines Can Persuade Judges and Juries

Posted by Ken Lopez on Mon, Jun 20, 2011 @ 10:12 AM

Timelines can be extremely helpful in many types of trials. Whenever the order in which events occurred is a significant issue, or a jury or judge needs to understand how a story began and ended, a timeline is appropriate.

As Texas attorney and legal technology expert Jeffrey S. Lisson has written [pdf], “Timelines are the most effective way to give a judge or jury a sense of who did what, when, and to whom. Just as bar charts and graphs help the uninitiated make sense out of a sea of facts and figures, timelines show the relationship between events. Timelines generally show events laid out on a horizontal, constant chronological scale. Events – the writing of a memo, the reading of an x-ray, or the shooting of a gun – are listed in the order they occurred. While tables of dates and facts require effort to understand, timelines are instantly clear.”

trial timeline trial graphics litigation courtroom timelines



Contrary to many people’s belief, PowerPoint presentations are well suited to the presentation of timelines and other litigation graphics. Because it is easy to add hyperlinks to a PowerPoint, an experienced designer can create an interactive presentation that allows the presenter to click on a “hot spot,” such as a document icon, name or date, and move directly to that item.

For example, in the exhibit, “Prior Art Interactive Patent Timeline Trial Graphics,” that we devised for a patent case, the presenter can show the history of the prior art related to a subsequent patented invention in any order that is convenient.




Similarly, in the “Hatch Waxman ANDA Timeline,” the colored bars represent periods of conversation with the Food and Drug Administration that delayed the approval of an Abbreviated New Drug Application (ANDA) for a generic drug. The timeline that we used shows visually that a citizen petition did not cause a delay in the approval of the generic drug. Rather, the delay resulted from the FDA taking its time in its review of the application. This timeline, which summarizes thousands of pages of documents, helped lead to a complete defense verdict for our client, a major pharmaceutical company.



The concept behind our exhibit, “EPA’s History of Vague Regulation and Unfair Enforcement” in a new source review case was to tell the history of EPA's lack of enforcement and inconsistent messages -- and the industry’s success in lowering pollution from coal-fired power plants in spite of the EPA’s inaction. It is possible to add other information to a timeline to make it tell more of a story and persuade, not just inform. Using timelines as a persuasion tool throughout a trial represents a higher level of advocacy than merely putting events in chronological order.  Click the image to zoom.

Timeline Plus Graph Persuades
Like any litigation graphics shown to a fact-finder, the timeline can and should be a persuasion tool.  We believe it should tell a story without having to read all or even most text entries.  Should individual timeline entries seem to be inconsistent with the overall trial theme or should juxtaposing them with a long term graph underscore that correlation does not equate with causation, we advise telling that story visually as above.

 

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Tags: Energy Litigation, Trial Graphics, Litigation Graphics, Trial Presentation, Animation, Patent Litigation, Pharmaceutical, PowerPoint, Document Call-Outs, Timelines, Clean Air Act, Antitrust Litigation

Trial Exhibits: Antitrust, Pharmaceuticals & Hatch-Waxman Litigation

Posted by Ken Lopez on Tue, Apr 12, 2011 @ 07:30 AM


The passage of the Drug Price Competition and Patent Term Restoration Act in 1984 and its subsequent amendments (collectively the Hatch-Waxman Act) gave rise to more competition in the pharmaceutical industry and a new era of litigation.  The act itself provides a mechanism for generic drug companies to quickly gain approval to sell a generic version of an existing brand name drug.

The application that begins the FDA approval process for the generic firm is called an Abbreviated New Drug Application (ANDA).  Brand name drug manufacturers have an understandable incentive to delay approval of the ANDA.  Simply, if the ANDA approval is delayed, the brand name firm continues to enjoy the lawful ability to sell their brand name drug without a lower priced generic equivalent in the market. One lawful mechanism brand name manufacturers use that may have the effect of delaying the approval of an ANDA is the filing of a Citizen Petition with the FDA.

The Citizen Petition filed by a brand name firm would typically allege that the proposed generic drug is not equivalent and thus should not be approved for sale.  Should the Citizen Petition be deemed only a mechanism for delaying approval of the ANDA/generic drug rather than one filed with the public's health interest at heart, the brand name firm would be liable for antitrust violations.

Such was the question our firm faced when working on behalf of a brand name pharmaceutical firm recently.  A Citizen Petition had been filed and a jury was going to be asked whether it had been lawfully filed.  Were the jury to find that the Citizen Petition had been unlawfully filed with the intent to simply delay approval of the generic drug, they could possibly award hundreds of millions of dollars in damages.  One quirk in this case that proved advantageous was the fact that it was not the generic drug firm suing the brand name firm, but instead it was the middleman or drug wholesaler who was alleging antitrust violations.

Our challenge in creating an effective trial presentation was to create trial exhibits that both taught the jury and persuaded the jury simultaneously. The trial exhibits shown below were part of an opening PowerPoint presentation that explained who was involved in the case (i.e. the typical parties/players trial exhibit) and who was not involved.  We sought to emphasize that the brand name firm was being sued not by the generic drug manufacturer but instead the wholesaler who we painted as the delivery guys in these opening trial exhibits.  The story told is this:
  • Brand name firms seek approval for a new drug from the FDA;
  • Brand name firms distribute their product through wholesalers who then sell them to pharmacies;
  • Generic firms receive approval to sell through an ANDA;
  • The brand name firm here is BrandName Pharma, generics will be mentioned and then there are the wholesalers.  In this case HatchWax Wholesale Drug;
  • One would think the generics are involved, but they are not.  Only the wholesalers or the delivery guys are suing.  What business do they have suing?
  • Who is HatchWax Wholesale Drug?  They are professional antitrust plaintiffs. 

These trial exhibits shown in video format were part of a PowerPoint created for opening statements. Scroll below the movie for the impressive result.





Despite a serious threat with potential damages approaching half a billion dollars, our top five law firm client prevailed with the assistance of our trial exhibits.  We received a complete defense verdict and our client noted about Animators at Law:


"The whole team was incredibly thoughtful, creative and always willing to answer the call. We would not hesitate to recommend you to any of our colleagues, we had a far better experience with you than with others we have used in the past (who didn't quite "get" what we were trying to convey and were always three steps behind us - you guys were consistently one step ahead)."

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Tags: Trial Graphics, Litigation Graphics, Trial Presentation, Animation, Patent Litigation, Pharmaceutical, Science, PowerPoint, Opening, Information Design, Antitrust Litigation

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Authors

KenLopez resized 152

Ken Lopez founded A2L Consulting in 1995. The firm has since worked with litigators from all major law firms on more than 10,000 cases with over $2 trillion cumulatively at stake.  The A2L team is comprised of psychologists, jury consultants, trial consultants, litigation consultants, attorneys and information designers who provide jury consulting, litigation graphics and trial technology.  Ken Lopez can be reached at lopez@A2LC.com.


tony-klapper-headshot-500x500.jpg 

Tony Klapper joined A2L Consulting after accumulating 20 years of litigation experience while a partner at both Reed Smith and Kirkland & Ellis. Today, he is the Managing Director of Litigation Consulting and General Counsel for A2L Consulting. Tony has significant litigation experience in products liability, toxic tort, employment, financial services, government contract, insurance, and other commercial disputes.  In those matters, he has almost always been the point person for demonstrative evidence and narrative development on his trial teams. Tony can be reached at klapper@a2lc.com.


dr laurie kuslansky jury consultant a2l consulting







Laurie R. Kuslansky, Ph.D., Managing Director, Trial & Jury Consulting, has conducted over 400 mock trials in more than 1,000 litigation engagements over the past 20 years. Dr. Kuslansky's goal is to provide the highest level of personalized client service possible whether one's need involves a mock trial, witness preparation, jury selection or a mock exercise not involving a jury. Dr. Kuslansky can be reached at kuslansky@A2LC.com.

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