by Laurie R. Kuslansky Expert Jury Consultant
by Laurie R. Kuslansky Expert Jury Consultant
In 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.
We have have created courtroom presentations in banking cases almost since our very beginning nearly 17 years ago. From savings and loan litigation in the 1990s to IPO litigation stemming from the 2001 dotcom meltdown to ongoing banking fraud and bankruptcy litigation connected with the 2008 financial crisis, we have helped jurors understand complicated financial concepts that are at the heart of most banking litigation. We have discussed earlier this year how a good trial consultant can make complex financial concepts comprehensible to jurors by using courtroom presentations that relate to a juror’s basic understanding of life and personal experience. See our discussions of collateralized debt obligations and of securities litigation. The same can apply to courtroom presentations for seemingly complex banking litigation. Since nearly all jurors have bank accounts and have used ATM’s, they have a basic sense of what banks do. So it often is not a long stretch for them to have an intuitive notion that banks are involved in complex ATM networks, that they sell profitable investment products to clients, or that they manage and move large sums of money. What is more difficult is explaining the details of how these things work. In a straightforward courtroom presentation graphic below, we showed that the total revenue of a bank far exceeded the gross national product of Guatemala. We used a supermarket scale and money bags – a basic concept that any juror can follow – to make an indelible impression on the jurors. In another very straightforward courtroom presentation graphic, we showed people sitting around a conference table as a partner in a major accounting firm told them about a highly questionable tax shelter that the firm was marketing. The “shady characters” are shown in shadow to emphasize the dubious nature of what they are doing. In another courtroom presentation illustration for the same case, we portrayed this complicated financial transaction with an illustrated flow chart with seven steps, beginning with “Taxpayer realized Capital Gain” and ending with “Taxpayer Reports Loss to IRS.” Even if a juror does not fully understand the transaction on the same level as those who devised it, he or she certainly understands that somehow a “Capital Gain” was transformed into a “Loss” for the IRS. The juror has paid taxes and has never been able to convert a gain into a loss, we can be assured. We also graphically portrayed how a worldwide ATM network functions. At the bottom of the courtroom presentation chart are the individual bank customers, who are faced with the possibility of paying a “foreign fee” and a “surcharge.” Finally, for litigation involving the BCCI bank scandal of the 1980s, we created a similar chart that showed the flow of money from various entities in that case to BCCI. This case represented our first billion dollar win. We've had hundreds since.
Most people, when they think of trial graphics, focus on exhibits to be used at trial. But graphics can also be used in motions and briefs presented to judges, even if jurors will never see them. After all, if you are using 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?
by Ken Lopez Quite often, the subject matter at issue in a major trial is very complex and technical and is not intuitively obvious for a jury composed of laypersons, or even a judge, to understand. In fact, that’s why trial consulting companies like us emerged in the early 1990s – to help lawyers explain in a clear visual manner what’s at stake in a case, so that judges and jurors will be able to understand the facts and make a well reasoned decision. As a Texas trial lawyer has written, “The typical jury has a 14th-grade education, a 12th-grade comprehension level, and a 9th grade attention span. The implications of this are important in presenting scientific or technical information to a jury. For one thing, it means you cannot assume the jury will have any pre-existing knowledge or understanding of the information you are trying to convey, particularly if it involves a scientific or technical matter.” In cases involving product liability, patents, the environment, antitrust, and other areas of law, courtroom presentations ranging from the most basic photograph or chart to the most complex computer-generated presentation have been a staple for sophisticated litigators for decades.
Presenting securities cases to juries can involve difficult problems. Many jurors may have investments in the stock market or in mutual funds, directly or through their retirement plans, and may have some sense of how securities markets work. Some jurors, on the other hand, find all financial matters to be daunting. Furthermore, even fairly sophisticated jurors don’t have a good knowledge of accounting terms or of securities law concepts such as “causation” and “fraud,” which may have quite different shades of meaning in the law from their meanings in everyday life. Thus, it is extremely important to present securities cases, which may involve issues of insider trading, fraud, or self-dealing, in ways that a jury can understand based on their basic knowledge of how a market works and their day-to-day sense of fairness.