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The Litigation Consulting Report

7 Reasons the Consulting Expert is Crucial in Science-Based Litigation

Posted by Tony Klapper on Fri, Jun 3, 2016 @ 11:49 AM

consulting-expert-managing-expert-science-litigation.jpgby Tony B. Klapper, Managing Director, Litigation Consulting & GC, A2L Consulting and David H. Schwartz, Ph.D., Co-Founder, Innovative Science Solutions 

The successful litigator knows that one of the first and most important steps to be taken when confronted with complex science-based litigation is to identify and engage a top-notch testifying expert. The ideal testifier is one who is highly qualified, able to credibly communicate to a jury, and can educate the legal team. These characteristics go for experts involved in patent disputes, product liability litigation, and consumer fraud cases involving allegations that a supplement, drug, or device is not effective.

Testifying experts are indeed critical for the success of a case, but as we have discussed in a previous post, many litigators fail to recognize that it is equally important to engage an experienced and litigation-savvy consulting expert. To understand why, consider the following seven points.

1. Availability

If you have recruited the ideal testifying expert, his or her time may be limited by the day-to-day obligations as an opinion leader in their field. I am sure that most of the litigators reading this post have experienced the challenges of working with a testifier who teaches, is conducting scholarly research, or has just simply overcommitted to too many legal clients. When this happens, getting the expert’s attention may prove just as difficult as understanding the science upon which the expert relies. And because understanding the science enough to cross-examine the other side’s expert is a critical component of effective advocacy, having a consulting expert available to take the time to educate you and help you prepare your case can be indispensable.

2. Context

Consulting experts tend to understand the litigation landscape better than an academic testifying expert. With the exception of the oft-used professional testifier, most testifying experts are not particularly litigation savvy and may not be familiar with the manner by which scientific evidence in their field may be twisted and turned by more experienced testifiers. A consulting expert who has studied not only the literature, but the positions espoused by the adversary’s experts—as articulated in expert reports, depositions and trials—can help litigators more effectively prepare their testifiers’ reports and direct examinations, as well as prepare for cross.

3. Cost-Containment

Third, consulting experts provide the litigator with a means of evaluating an adversary’s case, as well as his or her own, and understanding where the strengths and weaknesses lie. As we all know, we live in an age when early case assessments have become critically important to the business client. Those clients increasingly demand that their outside counsel find ways to resolve resolvable disputes well before hundreds of thousands (if not millions) of dollars are spent in motions practice, discovery and expert retention. Having a consulting expert help assess your case before retaining your testifier often proves to be one of the most cost-effective ways to satisfy the client’s cost-saving demands.

expert witness teach science complex subject courtroom webinar 4. Discoverability Concerns

Notwithstanding changes to Fed. R. Civ. P. 26(b)(4)(B)-(C), discoverability concerns remain with testifying experts (particularly in state courts) that are not as relevant with consulting experts. Know your jurisdiction. In addition to all the reasons mentioned above and below for retaining a consulting expert, if you litigate in a state court that does not provide full work product protection to communications with testifying experts, beware. The consulting expert might be your only safe harbor for open and candid discussion about the scientific evidence.

5. Find the Best Testifiers

Fifth, the right consulting expert can help you find and recruit the ideal testifying experts, especially when the issues are extremely complex and esoteric. This is particularly true when the litigator has not had the time to fully immerse him or herself into the science. Until that happens, finding the right testifier can be a complete crapshoot. Who are the real thought-leaders in the field? Among them, are there any candidates who have espoused views antithetical to my client’s? They may say they haven’t, but how do you know without fully understanding the literature and that expert’s writings? Can the candidate’s methodology expose him or her to a blistering Daubert attack? These and other questions are critical in the search process. But who has the time and the skills to make these judgment calls? A good consultant can help in the vetting and selection process in ways that busy litigators often cannot.

6. Help To Ensure Victory

Sixth, in the age of increasing Daubert (and other expert) challenges, having a consultant available to help assess the adversary experts’ methodologies and brainstorm areas of attack can be the difference between winning and losing a case. Yes, lawyers can be very skilled at identifying the logical flaws, errors of omission, and unfounded inferences that plague many an expert’s analysis. But having a consulting expert dig into the literature and/or serve as a sounding board for lawyer-based “scientific” musings helps ensure that potential arguments are carefully vetted and those selected are truly effective.

7. Some Examples

Where can these consultants and consulting services be most helpful? Consider their use in patent disputes, personal injury litigation, and consumer fraud matters.

For example, pharmaceutical and medical device patent disputes revolve around demonstrating issues of patent validity and infringement. If you represent an innovator, you will be focused on demonstrating that the patent is valid under intense scrutiny and that your adversary is infringing on the teaching present in your patent. If you are defending a generic manufacturer, your goals will most likely be reversed. Consulting experts can help you perform these tasks and identify the right testifying experts to make these assertions. These non-testifying experts can scrutinize the laboratory notebooks and meeting minutes to spot documents that both support and potentially refute your case. For these types of cases, you will be looking for consulting experts with credentials in medicinal chemistry, drug metabolism, as well as basic cell and molecular biology.

In personal injury product liability cases involving healthcare products—such as pharmaceutical and medical devices, dietary supplements, agra-chemicals, and foods—consulting experts are perfectly positioned to work closely with counsel. The knowledgeable consulting experts can be instrumental resource in matters that involve a complex regulatory landscape and equally complex science-based issues. Consulting experts can help clients develop strategies and approaches that are central to the defense, and they can help identify the difficult-to-find regulatory testifying experts.

Finally, as many of our readers know all too well, consumer fraud cases are becoming extremely common, especially for products such as dietary supplements, cosmetics, and other consumer healthcare products. These cases generally involve allegations that no competent and reliable scientific evidence supports the advertised benefits of the products at issue. Like personal injury litigation, consulting experts are critical to an in-depth understanding of the science relevant to the case. Because there is a specific regulatory standard at issue in these cases, it is sometimes less important to have experts who are experts in the medical area at issue and more important to have consultants who understand regulatory standards and the types of studies that would be considered competent and reliable scientific evidence. Consulting experts in these cases will be able to evaluate and assess the substantiation reports that the defendant may have generated and they will help you perform an up-to-date, comprehensive review of the scientific literature relevant to a substantiation of the advertising claims at issue.

Other articles from A2L Consulting related to science-focused litigation:

ISS A2L Combating Junk Science E-Book

Tags: Litigation Management, Science, Environmental Litigation, Expert Witness, Witness Preparation, Toxic Tort, Damages, Product Liability

[New and Free E-Book] The Litigator's Guide to Combating Junk Science - 2nd Edition

Posted by Ken Lopez on Mon, Jun 8, 2015 @ 03:16 PM

 

junk-science-ebook-cta-tallby Ken Lopez
Founder/CEO
A2L Consulting

We have long participated in a joint publishing effort with Innovative Science Solutions (ISS), a company that provides strategic consulting services designed to ensure that you are prepared and knowledgeable about scientific and technical issues relevant to your case.

A2L has partnered with ISS for the benefit of many law firms and corporations. We have already had the pleasure of working together on everything from tobacco litigation to hydraulic fracturing to alleged health effects of cell phones. Along the way, we have learned, often by overcoming enormous challenges, how to make science your ally -- whether inside or outside the courtroom.

Today, A2L and ISS have just published the new and revised second edition of their e-book, The Litigator’s Guide to Combating Junk Science. The book is built on the following important concepts:

  1. Science plays a critical role in the courtroom. Access to scientific research and an understanding of scientific principles, as well as the ability to effectively convey this information, can enable the litigator to build a powerful case. This communication must effectively communicate complex technical concepts and show how they fit within the relevant law. But first and foremost the litigator must sort sound science from junk science.
  2. Many legal actions rely heavily on scientific information and testimony: personal injury, consumer protection, medical malpractice, securities law and patent law. Junk science can be present in any of them.
  3. Frequently, the case will amount to a battle of the experts, who will engage in a debate about the validity of the scientific evidence presented. Even the experts often disagree when interpreting sound scientific data.
  4. Dubious or biased scientific information is all too present in the courtroom. Judges and juries tend to accept any scientific information placed before them, for better or worse, and can decide a case incorrectly. That is one of the problems with junk science.
  1. However, when a case relies on misinformation, unsubstantiated claims, and misleading data, opposing counsel can successfully counterattack by using and providing access to the right resources.

This comprehensive, 2nd Edition e-book identifies examples of junk science; after all, how can you combat junk science if you cannot identify it?

The e-book also provides a checklist for identifying credible scientific sources online and rejecting those that are not credible. It notes that peer review is one of the foundations of good science, but that this concept is also abused to push junk science. It provides access to resources dedicated to exposing junk science. After all, the fight against junk science in the courtroom has raged for many years. This section identifies some terrific resources for continuing this fight. It gives access to government resources that will allow you to counter misinformation with scientifically sound principles.

Among the topics covered in the book are: “What Is Junk Science?” “Limitations of the Peer-Review Process,” “Teaching Science to Jurors,” “Explaining Complex Science/Statistics Using Trial Graphics,” and “Anti-Junk Science Websites.”

We are confident that by reading this e-book, you will become familiar with the hallmarks of junk science and that you will be able to recognize it and successfully argue in court against the use and admissibility of junk science.

ISS A2L Combating Junk Science E-Book

Tags: Statistics, Trial Consultants, Trial Presentation, Litigation Consulting, E-Book, Demonstrative Evidence, Juries, Jury Consultants, Science, Product Liability

How To Find Helpful Information Related to Your Practice Area

Posted by Ken Lopez on Fri, Jan 2, 2015 @ 04:34 PM

 

practice-area-experience-a2lby Ken Lopez
Founder/CEO
A2L Consulting

Not every page, blog article, webinar or e-book on A2L Consulting's site is right for everyone. As the saying goes, what is everyone's favorite radio station? WII – FM, of course. Otherwise known as "what's in it for me?"

With hundreds of articles, dozens of e-books and hundreds of other pages, A2L's website has over 2,500 pages of valuable content. Sometimes, finding materials that are specific to your litigation practice area or need can be a challenge with all the available options.

You can search A2L's site or even browse by topic area using a topic list in the sidebar of every blog post. In spite of this, I still hear from a lot of people who wonder whether we have experience working in their specific practice area or where they can find useful information related to their practice.

I wrote this article to highlight some very useful information organized by practice area below. I've broken down the practice areas into 14 topics that cover most of the work we do. The alphabetical list with links under each topic should prove helpful when looking for the information most relevant to you.

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Antitrust: Our work in antitrust often involves making complicated economic principles make sense to judge and jury. Working with experts is essential in these cases to help them develop a coherent story.

Banking, Securities & Finance: Our banking litigation work has most often included allegations of banking fraud, disputes involving CDOs or some other financial industry-collapse related litigation.

Bankruptcy: Our bankruptcy work usually involves advisory disputes or the failure of a large company.

Complex Civil Litigation: Many disputes we are involved in are contract disputes between large corporations. Goliath vs. Goliath litigation requires special care given the stakes and resources available to both sides.

Construction & Architecture: Architecture one type or another construction disputes typically relate to defects in construction or leasing disputes or construction delays

Employment & Labor: Our labor work often involves allegations of discrimination or other large scale labor disputes. Increasingly wage and hour disputes are finding their way to trial.

Environmental & Energy: Environmental work often involves discussing human health risk from a particular chemical or the migration of a particular leak.
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International:
 Our international work often involves arbitration work at ICSID at the World Bank, at the ICC in New York or at some other venue around the world.
Life Science-Related: Science-focused topics dominate many forms of litigation. This includes disputes around pharaceuticals, medical devices, biotech and many products. Our challenge as a litigation consulting firm is frequently to make the material understandable for judge and jury.
Medical Malpractice: Our medical malpractice work sometimes involves showing how a surgery occurred and sometimes involves handling allegations of errors.
Patent, Trademarks & Copyright: Our are patent work is wide ranging and frequent, covering all lines of marketplace. About half of the cases we consult on are complex patent cases.
Product Liability: We have spent the last several decades consulting on everything from tobacco litigation to cell phone litigation to fracking litigation.These cases always involve detailed interaction with consulting experts and testifying experts.
Transportation (Aviation, Space, Automobiles, Trains and Ships): Although trials are rare since most cases tend to settle that involve a crash of planes trains or automobiles. More often transportation cases involve product liability or some other cause of action.
White-Collar & Criminal: Our work in criminal cases used to be restricted to basic white collar criminal work. Increasingly though, we are being called upon to consult on everything from campus sexual assault cases to murder cases.


Other articles and resources on A2L Consulting's site that relate to our experience by type of case and by type of experience:

mock jury webinar a2l kuslansky

Tags: Patent Litigation, Science, Environmental Litigation, Banking Litigation, Construction Litigation, White Collar, Labor and Employment, Product Liability, Antitrust Litigation

Product Liability Demonstratives - Defects and Failure to Warn

Posted by Ken Lopez on Tue, Oct 18, 2011 @ 10:45 AM


Demonstratives can frequently be used very effectively in product liability litigation, in which the issue is whether a product was manufactured negligently, causing harm – or in some cases, whether a product that was manufactured and used properly still caused harm to a consumer that leads to liability on the part of the manufacturer or seller.

The demonstrative below shows that in order to get the same alcohol consumption as six regular beers, a consumer would have to drink 15 light beers – which, taken together, have more calories than the six regular beers. This "compensation" effect is an issue in some product liability cases.

demonstratives product liability demonstrative evidence 

As a popular website notes “People tend to drink more light beers than regular beers. It is because the consumer will have the need or urge to drink more light beer because drinking a single bottle of such won’t give the same effect as drinking a bottle of regular beer . . . because the alcohol may have been reduced significantly, the drinker tends to take in more light beer just to achieve that certain ‘drunk’ effect.” 

The demonstratives below introduce the subject of “pack years” to the jury. In tobacco litigation, the number of “pack years” is relevant to the diseases caused by tobacco. A pack year is the number of cigarettes smoked annually by a person who smokes a pack a day, every day. If someone smokes two packs a day, he or she consumes a “pack year” in just six months.

By using a size comparison to the Golden Gate Bridge, the demonstrative shows how many cigarettes are included in 30 pack years or 50 pack years and how large a volume those cigarettes would occupy. 

A person who has smoked two packs of cigarettes per day for 10 years is considered to have a 20 pack-year smoking history. While the risk of lung cancer is increased with even a 10 pack-year smoking history, those with 30 pack-year histories or more are considered to have the greatest risk for the development of lung cancer.

The demonstrative below was introduced in litigation concerning MTBE, a gasoline fuel additive that is often noted as a pollutant of ground water. It shows how small a percentage of ground water samples were actually shown to be polluted by MTBE at a level that is considered possibly dangerous to humans. The number of harmful readings appears as one tiny dot, or three tiny dots, in a large green field of safe levels of this chemical. This demonstrative graphic effectively summarizes the testimony of an expert.

MTBE contamination demonstratives 

The demonstrative exhibit below shows that neglecting to use a booster seat is an unsafe practice – just as riding a bicycle without a helmet and other protective devices is also unsafe.

booster seat demonstratives

The demonstrative below arranges preferred scientific tests in descending order of accuracy. We used a vertical printed trial board format to emphasize the preeminence of epidemiological testing in this case. While plaintiffs attempted to make the case that laboratory and animal testing were sufficient, the epidemiological science favored our defense position.

demonstratives epidemiology science
When complexity must be simplified and laypersons are called upon to decide whether a product has caused harm, demonstratives are a must.  Simple is best.  Fewer is more. However, getting to simple and arriving at fewer almost always requires lots of hard work and creativity which takes time. Often the demonstratives presented at trial are just the tip of the iceberg compared to what was prepared. This reflects effective litigation consulting.

 

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Tags: Trial Graphics, Litigation Graphics, Trial Presentation, Science, Automobile Litigation, Product Liability, Information Design

Automobile Litigation: Patent Infringement and Product Liability

Posted by Ken Lopez on Mon, Sep 19, 2011 @ 01:37 PM

As one can imagine, automobiles are the subject of a good deal of complex litigation these days -- whether the case has to do with the validity of a patent for use in the manufacture of an automobile, the possible liability of an auto manufacturer for an accident, a class action claiming a design defect in a certain model of car, or another legal issue.

Automobiles present interesting challenges for the trial graphics consultant. On the one hand, nearly everyone has driven a car, and many people think of themselves as fairly knowledgeable in auto mechanics (while they would not fancy themselves as computer or jet-engine experts, for example). On the other hand, today’s vehicles are incredibly complicated items with sophisticated computer systems and electronics. 

Click me


In 2010, for example, IBM wrote in a press release that due to the “exponential growth in the automotive electronics industry, owning a modern vehicle is equivalent to operating thirty or more computers on wheels,” and that “the average automobile now has several millions of lines of code -- more than a space shuttle.”

So jurors do need considerable education about a seemingly basic item like a car.

Since 1995, many of our cases have involved patent disputes about items such as brake parts, valve stems, engines, wheel parts, window glass, and many other parts of the automobile.

In fact, patent litigation in the automotive industry is as old as the industry itself. A recent article in the Legal Intelligencer noted that “patent litigation in the auto industry dates back to the first days of cars” and discussed patent attorney George Selden, who sued all the early auto makers, including Henry Ford, for infringing on his patent, which was granted in 1895.

Patent litigation and automobile product liability litigation is very much alive in the industry. The exhibit below shows the evolution of seatbelts from their introduction as mandatory features in 1964 to the introduction of emergency locking retractors (ELRs) in the 1970s and 1980s.  It was used in a major product liability case.

seat belt product liability

In a case involving litigation over an automotive patent for a valve stem transmission device, we showed in a brief motion picture (just over one minute) how the device works, using a sensor.



In another patent case, we showed how two sensors work in tandem to activate air bags and how they respond to frontal, side, and oblique collisions.



In this Flash interactive exhibit, our information designers created a simple interface that allowed trial counsel in yet another patent infringement matter to illustrate how an engine and engine braking system works.



This type of litigation, as old as the automobile itself, is a mainstay of our work.

Tags: Trial Graphics, Litigation Graphics, Trial Presentation, Courtroom Presentations, Animation, Patent Litigation, PowerPoint, Automobile Litigation, Product Liability

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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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