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I’ve been watching the baby powder/talc trials closely for the past several years. They feature some of the world’s best lawyers, and they are pushing the boundaries of scientific evidence. For anyone in the litigation business, the talc trials, as well as the trials involving the alleged cancer-causing properties of Monsanto’s herbicide Roundup, form a fascinating window into how big-ticket cases are being tried right now. In both lines of cases, plaintiffs are showing early dominance, and I think the defense accordingly needs to adjust both how it handles demonstrative evidence and how it deals with scientific evidence. Interestingly, both of these types of trials can be watched on the Courtroom View Network (CVN). I have long advocated that trial attorneys should be watching other trial attorneys on CVN because there’s almost no other way to see today’s great lawyers in action. In the most recent talc trial, famed plaintiffs lawyer Mark Lanier of Houston took on Johnson & Johnson, which makes talcum powder products. He asserted that his clients, 22 women who used the products, were exposed to asbestos found in talc and that this exposure caused them to contract ovarian cancer. The case is notable for many reasons. The result was certainly remarkable as this past July, plaintiffs were awarded nearly $4.7 billion in damages by a jury in a Missouri state court. The case is also one of the most high-profile cases to utilize genetic evidence. And that aspect was particularly interesting to me as this is an area that A2L and its partners at Innovative Science Solutions have been discussing for the last couple of years. We even held a conference on the topic of the use of genetic evidence in civil litigation. So let me discuss two aspects of this case. First, while I am not an expert in analyzing genetic evidence in civil cases, I do understand how to use it and how to present it. In this case, the defense was clearly reluctant to use genetic evidence, and it only lightly cross-examined plaintiffs’ genetics expert. I don’t know for sure, but I’ll speculate that like other defendants, Johnson & Johnson may have feared that by presenting genetic evidence as a defendant it would position the plaintiffs as a so-called eggshell plaintiffs, making liability easier for plaintiffs to prove. See takeaway #6 in this article where we discuss why this thinking is specious. Whether or not defendants were concerned about the role of genetics in conveying to the jury that these may be eggshell plaintiffs, Lanier appeared to adopt this approach anyway. He utilized genetics to affirmatively allege that the plaintiffs were especially vulnerable to the effects of talc. This highlights an apparent growing trend of the plaintiff utilizing genetics to demonstrate plaintiff susceptibility to alleged toxins and a need for the defense to effectively address and rebut this assertion. I haven’t seen that tactic before. and similarly situated defendants must get ready for this tactic in other cases. A good place to start would be talking to my friend and frequent collaborator Dr. David Schwartz at Innovative Science Solutions who is doing pioneering work with the group ToxicoGenomica. The second element of this trial that I found fascinating was Lanier’s use of demonstrative evidence. In most big-ticket litigation demonstrative evidence is exchanged a day or so before it is used, to allow for objections to be made. Clearly, Lanier has figured out a workaround by drawing (or having his colleague draw) a highly prejudicial demonstrative that for whatever reason the defense did get excluded. It's the featured picture in this article, but let me show you what I mean in this clickable video clip and transcript below from our friends at CVN. Here Mark Lanier perfectly combines the eggshell plaintiff approach with an objectionable piece of demonstrative evidence to powerfully drive a point home. His message is that some people are genetically more susceptible to cancer-causing agents like asbestos and that Johnson and Johnson and their baby powder products pushed plaintiffs over the cliff where cancer happens. Other free A2L Consulting resources related to genetics in civil litigation, litigation graphics, and demonstrative evidence include: With So Few Trials, Where Do You Find Trial Experience Now? 7 Key Takeaways from the Genetics in Civil Law Conference Free slide decks from the Genetics in Civil Law Conference Free E-Book: The Litigator's Guide to Combating Junk Science - 2nd Edition Repelling the Reptile Trial Strategy as Defense Counsel - Part 3 - Understanding the Bad Science The Importance of Litigation Graphics in Toxic Tort Litigation 10 Key Expert Witness Areas to Consider in Your Next Toxic Tort Case Free Download: Using Science to Prevail at Trial or As an Advocate 7 Reasons the Consulting Expert is Crucial in Science-Based Litigation Using Trial Graphics & Statistics to Win 12 Questions to Ask When Hiring a Trial Graphics Consultant Repelling the Reptile Trial Strategy as Defense Counsel - Part 1 Teaching Science to a Jury: A Trial Consulting Challenge 5 Valuable (and Free) Complex or Science-Focused Litigation Resources Winning BEFORE Trial - Part 3 - Storytelling for Lawyers

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It seems to me that a good many sophisticated people, including a lot of lawyers, don’t fully understand the role of storyboards in developing an animation. A storyboard has been defined as a graphic organizer in the form of illustrations or images displayed in sequence for the purpose of pre-visualizing a motion picture, animation, motion graphic or interactive media sequence. The first story boards were used by the Walt Disney animation team in the early 1930s, and at A2L, we use storyboards in exactly the same way – to pre-visualize an animation that we are intending to use at a trial. As longtime readers of this blog may know, I came to this business about 25 years ago, just after my law school graduation. I knew a good deal about computer animation in the Toy Story era, and I originally envisioned A2L as a trial animation company for attorneys, focusing in the intellectual property area. A2L has grown to become a leading trial consulting firm and a top provider of litigation graphics and jury research, but I’ve always had a special fondness for litigation animation. Animation remains a very vibrant part of trial practice, especially now that common tools like PowerPoint provide a basic animation function as a standard offering. It’s no longer necessary to bring in a specialized designer to provide animation for trial. We’ve written about this in articles like Legal Animation: Learn About the Four Types Used in the Courtroom, What Does Litigation Animation Cost? (Includes Animation Examples), and Patent Comes Alive! Turning Patent Drawings into Trial Presentations.

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by Ken Lopez Founder/CEO A2L Consulting We recently had the opportunity to co-host a conference focused on the use of genetics in the courtroom. The conference was entitled Genetics in Civil Law: Litigation, Regulation, Business Opportunities, and Risks. A2L was joined in hosting by three science-focused expert firms that are pioneers in the law and genetics field. For me, the real pleasure of participating in the conference was how much I learned. That's kind of unusual for a conference, right? There are just a handful of valuable takeaways at most conferences I attend. Here, there were dozens of them, simply because of the nature of the material and the state of the art. The work being done by the speakers, the hosts, and many of the participants is genuinely pioneering -- both as it applies inside the courtroom and outside. Here are seven key takeaways that highlight some of the most valuable aspects of attending the conference. Please note that number 7 is your ability to download the slides for free from the key speakers without further obligation of any kind.  The use of DNA evidence in the courtroom is relatively new. From watching TV, from the OJ case, and from our practices, we're all generally familiar with how DNA evidence is used in criminal cases. Many people are surprised to learn that its use as evidence in the courtroom dates only to the mid-1980s. That's right, in the courtroom, DNA evidence is just 25 years old. The use of genetic evidence in civil cases is just beginning. For trial lawyers involved in big-ticket litigation, the present is the equivalent of the mid-1980s for criminal lawyers. Genetics and DNA evidence are being used by plaintiffs and defendants in big cases. Genetics have been successfully used in many big cases. Not many cases of this sort have made it to trial, but some have. The cases thus far have been related to exposure to substances like benzene, asbestos, and tobacco. Companies have found a successful defense with the use of genetics. We can expect to see such a defense in talc litigation and other emerging pattern litigation soon.  Genetics can be used to establish an alternative cause. Genetic profiling can not only be used to question or prove causation, but it can also be used to establish an alternative cause, because exposure to certain substances leaves a genetic trace and certain cancers have unique genetic profiles. The science is accepted. There is ample precedent for the use of genetic evidence at trial. Indeed, there is 25 years of precedent.  The eggshell plaintiff worry is just a worry. Defense lawyers know that they have to accept plaintiffs as they find them. That is, if a plaintiff is extra-sensitive to a chemical exposure, that extra sensitivity might provide the plaintiff with extra ammunition. So, the worry I've heard expressed is that if we genetically profile a plaintiff and find that he or she is indeed extra sensitive, we help make the plaintiffs case. However, I learned at this conference that one can assess a case and make a decision about whether genetic analysis will be worthwhile without doing the work and potentially find valuable and powerful alternative cause defenses. Click here to download an e-book containing the slide decks from the conference for free.

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by Tony Klapper Managing Director, Litigation Consulting A2L Consulting If anyone thought the era of toxic tort litigation was coming to an end, they were wrong. The Environmental Protection Agency recently announced its priority list of 10 chemicals, including asbestos, that it is considering banning under the Frank R. Lautenberg Chemical Safety for the 21st Century Act. Although it remains an open question how aggressive the Trump administration will be with safety regulations, the reality is that regulatory lists like this, and the inevitable studies that follow, often become a treasure trove of “support” for a plaintiffs’ bar eager to add scientific credibility to their legal claims. This presents challenges for defense lawyers – especially given the continued currency of quasi-scientific principles or principles that are fine for regulators to rely on, but have no place in today’s courtroom, such as the “precautionary principle.” This is most evident with the mantra of “no safe dose” that asbestos lawyers and some environmental groups trumpet as justifying liability for even the most meager and infrequent of chemical exposures. Of course, toxicology, epidemiology and other scientific disciplines have exposed the fallacy of principles like “no safe dose” (after all, Paracelsus teaches us that “dose makes the poison – more about this later). But the appeal of the seemingly aphoristic “no safe dose” is tough to counter in court when an effective advocate plays to a jury’s fears and is buttressed by governmental pronouncements that, albeit for different reasons, embrace the notion that there is some theoretical, modeled risk from exposure to virtually any chemical. So the task for the defense bar is how to convince juries to reject these and other fallacious concepts that serve as easy, digestible substitutes for the more complex elements of true causation.

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SPICE Is the Key to Persuasion

by Alex Brown Director of Operations A2L Consulting

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by Tony B. Klapper, Managing Director, Litigation Consulting & GC, A2L Consulting and David H. Schwartz, Ph.D., Co-Founder, Innovative Science Solutions 

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by Laurie R. Kuslansky, Ph.D. Managing Director, Jury & Trial Consulting A2L Consulting If you deal with the public, and you wish to influence them, it makes sense to know your audience, who they are and what they believe and don’t believe. A recent report by Pew Research highlights “striking findings” from the past year. Here, we cover those most relevant to litigation and take them a step further, by exploring the implications for trial. 1. Most people (81%) do not trust the federal government “most or all of the time,” the lowest rating in 50 years. Do you represent a federal agency or quasi-governmental one? While specific areas of government are viewed as competent, such as in protecting public safety, the federal government does not make the grade when it comes to immigration or helping the poor or senior citizens. Those in public office (a.k.a., politicians) are largely seen as self-serving, lacking the “public” aspect of public service. Hence, wrapping yourself in the American flag may not help your case if your issues overlap those in which the government is most distrusted and rated worst. For details, see: http://www.people-press.org/2015/11/23/beyond-distrust-how-americans-view-their-government 2. The middle class is no longer the economic majority in America.  The biggest shift is that the rich got richer, while the middle class fell even further behind. In dollars, “middle class” now refers in 2014 dollars to a household income of $42,000 to $126,000 annually for a household of three. Half the U.S. population is upper or lower class (21% and 29%, respectively); half is middle class (50%) (See http://www.pewresearch.org/fact-tank/2015/12/10/5-takeaways-about-the-american-middle-class/). How will that impact jurors who missed that gravy train? Strife and resentment are likely to motivate jurors who, in 2016, are judging clients who have enjoyed privilege. Specifically, since 1971, some have done better than others financially: Who’s doing better? Older Americans (aged ≥65) African Americans Married Women more than men Who’s doing worse? Lacking a college degree Young adults (aged 18 to 29) Hispanics (driven by the increasing number of Hispanic immigrants) If your or your client’s household income exceeds $126,000 per year, consider whether you really understand the jury or they will understand you or your client. What are the differences in lifestyle, understanding of financial concepts, points of reference and experiences that may not overlap with about 80% of people on a jury, if not more (since affluent and educated jurors tend to be able to get off juries, especially on trials that last more than a few days). If the income of your jurors is an important consideration, do whatever you can to shorten the trial (for affluent, white collar, educated jurors) or lengthen the trial (for less educated, impoverished or blue-collar jurors). Also consider calendar issues when presented with options on scheduling the trial: what other events are popular during certain times and do they help or hurt you? For example, tax season, hurricane season for cruising, holiday season, summer vacation for teachers, etc., can all impact the makeup of a jury.

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