The Litigation Consulting Report

Why the Color of a Dress Matters to Litigators and Litigation Graphics

Posted by Ryan Flax on Fri, Feb 27, 2015 @ 11:20 AM

color-litigation-graphics-litigators-dress-blue-goldby Ryan H. Flax
Managing Director of Litigation Consulting
A2L Consulting

Today, the internet is abuzz over what color this dress is:

The online debate was whether the dress is white and gold or blue and black. There is a right answer, by the way, and I’ll get to that below.

The debate has raged for hours and hours and has been widely, globally reported (at, e.g., NBC Today, CNN, NPR, BuzzFeed, Independent (UK), Reddit, and hundreds of other places) – just search “what color is the dress” on Google right now if you haven’t yet heard of this dress.

Celebrities like Ellen DeGeneres, Kim and Kanye, Taylor Swift, and Matt Lauer have all weighed in. BuzzFeed.com alone has reported over 21 Million views of this dress. Wired.com has even gone to the length of engaging an expert to analyze the image and assign real color values to the dress’s various parts – who said it is blue and black. Even after this expert photo analysis and knowing of it, NPR’s David Greene still swore it was white and gold and told Renee Montagne she was “wrong” for believing it to be blue and black.

I’ve been staring at the photo above for many, many minutes now and I must admit that I see it as pale blue with gold stripy-trim. I’m crazy (holy cow – before I got to the end of writing this article I looked back at the photo above and see it as blue and black now!).

So, why does this matter to you as a litigator?

It matters because THERE IS A CORRECT ANSWER HERE, but millions of people seeing actual, real evidence (the photo above) have divergent and strongly held opinions on the issue and are willing to take time out of their day to argue it. NPR’s David Greene told his coworker she was wrong about it. Folks on Gawker are insulting one another in comments debating the issue. These people are your potential jurors, and this blip on the internet’s timeline shows you that sometimes the facts are less important than perception and impression.

color-trial-graphics-litigators-dress-blue-gold-whiteI’m sure you can imagine a jury arguing over what is and what is not “reasonable” or whether a patent’s claim limitation is infringed by some plastic, flexible component of an accused windshield wiper blade product in a similar fashion to the folks on Gawker.com arguing with one another over a dress’s hue. This dress shows how scary this reality can be when your client’s case, life, company, and/or money is on the line.

Well guess what – here’s a photo of the dress in a different light:

It’s pretty clear now, isn’t it, that the dress really is blue and black. How can there be any debate?

What is this photo to the right? Is it actual evidence of the color of the dress above, the one the whole world is consumed with? No, it is not.

what-color-is-the-dress-litigation-graphics-litigators-dress-blue-gold-whiteWhat we have here in the photo to the right is demonstrative evidence. We are using it to illustrate that a similar dress, from the same company, designed in the same way as our dress-at-issue, but photographed differently, shows our dress’s actual colors. Here, it’s the only “proof” we’ll get, and this shows the critical impact demonstrative evidence (litigation graphics, scale models, animations, etc.) can have on an audience you’re trying to persuade.

Whether this is real evidence or demonstrative evidence matters not to jurors according to the top jury researcher in the country (Dr. Laurie Kuslansky). Jurors simply don’t distinguish between actual evidence and what you show in litigation graphics to demonstrate your points – it’s all just “evidence” to them.

Are you now convinced that the real dress is blue and black? I am (however, I just looked at the real dress photo one more time and it looks blue and gold to me again).

Other A2L Consulting articles related to litigation graphics, color theory and persuasion during opening statements:

Maximize Persuasion During Opening Statements

Tags: Trial Graphics, Litigation Graphics, Demonstrative Evidence, Juries, Psychology, Color Theory, Persuasive Graphics, Visual Persuasion, Opening

[New Webinar] 5 Ways to Maximize Persuasion During Opening Statements

Posted by Ken Lopez on Wed, Feb 25, 2015 @ 08:24 AM

 

opening-statements-webinar-cta-tallby Ken Lopez
Founder/CEO
A2L Consulting

If you can win the battle of opening statements, you'll likely win your trial. Up to eighty-percent of jurors will make up their minds about your case during opening statements. In this webinar you'll learn the top-five ways to maximize persuasiveness during opening statements.

From how to tell compelling stories to visually supporting your key arguments, this one-hour will reveal the best secrets from courtroom persuasion experts. Ryan H. Flax, Esq., A2L's Managing Director of Litigation Consulting is an accomplished litigator who helps trial teams perfect their trial story and trial presentation using the latest persuasion science.

Even if you can't make it to the live event, you'll receive access to the recorded version just for registering.

WEBINAR TOPICS:

  1. Why and how to frame your case as a story
  2. What NOT to do when introducing your case to jurors
  3. Why and how to support your opening statement with images and graphics
  4. Pitfalls and the dangers of poor visuals

Here are the details of the free webinar:

What: 5 Ways to Maximize Persuasion During Opening Statements
When: Tuesday, March 24, 2015 at 1:30pm ET How long: 45 minutes + 15 minute Q&A
Where: Online, once registered you will receive a personal login link
How much: Free
Why: Understand how to best persuade fact-finders during opening statements.
Who: Led by veteran litigator, Ryan H. Flax, Esq, A2L Consulting's Managing Director of Litigation Consulting.
How: Click here or on the button below to register for the complimentary webinar.

Whether you are in-house counsel, outside counsel, or litigation support, this 45-minute webinar will prove valuable and reveal secrets learned by one of the world's top persuasion experts.

Maximize Persuasion During Opening Statements

Tags: Trial Consultants, Litigation Graphics, Litigation Consulting, Webinar, Juries, Jury Consultants, Storytelling, Opening, Persuasion

Do I Need a Local Jury Consultant? Maybe. Here are 7 Considerations.

Posted by Ken Lopez on Thu, Feb 12, 2015 @ 08:50 AM

 

local-jury-consultant-ny-chicago-florida-nj-atlanta-california-dc-va-mdby Ken Lopez
Founder/CEO
A2L Consulting

Do I really need a local jury consultant? It's a question that I hear our clients struggle with frequently. The answer is maybe you do, maybe you don't.

The gut instincts of many are that a jury consultant who regularly works in the jurisdiction will provide special insights that trial counsel, often admitted pro hoc vice for purposes of trial, could use to persuade the jury more effectively and have first-hand knowledge that will help in jury selection because of specific, local nuances. I understand the instinct, since - when going to trial - you naturally want every single advantage, and it's natural to fear that there are some things you just don't know about your potential jurors, your judge, the courthouse or the local community.

While I understand the rationale, both emotional and logical, I've come to believe that such beliefs are now outdated and reflect pre-Internet thinking. Much like the need for 8-glasses of water a day, waiting an hour after eating to swim, or humans using 10% of their brains, I think these beliefs about local jury consultants are mostly stubborn old wives' tales.

The reality is that human beings make decisions following the same principles, regardless of where they may live, and the psychology of persuasion, as well as individual and group decision-making does not need to be reinvented from place to place. What you need and can rely on is the best consultant with the best skills, regardless of their location.

I'd like to offer seven ways of working through this challenge with a solution for you, whether you believe a local jury consultant helps or whether you believe hiring the best jury consultant is best for your case.

  1. 99 times out of 100, a local jury consultant is not actually going to add anything you need to win. I'm not saying there won't be good trivia, a story about your judge or the added knowledge of the best local diner. They will provide that. I ask though, will these things and related wisdom really help you persuade better compared to all the other bits of preparation that you could do? Furthermore, is there anything you can't figure out with a few minutes of Internet research and a conversation with local counsel that your neighborhood jury consultant might otherwise provide? You could easily learn about demographics (which are historically the least relevant to verdict preferences), insider details about your trial judge, the best local dineran iconic local landmark, or topical issues and local news using very basic Internet search skills. You have to ask yourself, is getting local color and flavor worth it to choose to not use the very best consultant you can find? If your answer is yes, fast-forward to solution number 7.

  2. No jury consulting firms, good or bad, have high-quality jury consultants in all the places you need them. I encourage you to ask the same question as above, "would I rather hire a very reputable jury consultant and firm whose brand depends on repeat business, good reviews and positive social comments or do I want to gain some small benefit and bet on a one-off relationship with little real accountability?" See, 5 Surprising Areas Where Geography No Longer Matters in Trial Support

    mock jury webinar a2l kuslansky

  3. It's the data, not the consultant, that matters most. In the old-style of jury consulting, one would often see a jury consultant tell trial counsel to act a particular way, because they say so. The experience and opinion of the jury consultant was what was relied upon, especially in an unregulated industry where there were no barriers to entry. For the most part, I think this was a lot of hooey, sprung from an era where Dr. Phil, yes, that one, was one of the top jury consultants. This era, let's call it the guru era, has long since passed. Now, top jury consultants let the data speak, and work very hard to make sure an appropriate jury pool is represented and opinions are effectively substantiated by facts. That said, the data are not enough. Different abilities to interpret and apply the data set great consultants apart from the rest. See 12 Things Every Mock Juror Ever Has Said webinar.

  4. It's science, not magic. You need a great scientist, not a great TV personality, and great scientists are hard to find! The leader of A2L's jury consulting group has more than 30 years of experience, has overseen more than 400 mock trials, has a Ph.D. from Columbia University and lost count of the number of litigation engagements she's been involved in somewhere after 1,000. See, 6 Secrets of the Jury Consulting Business You Should Know

  5. Local counsel is probably all the advantage you need. It's not to say that local insights aren't valuable. They are. Most of the time, local counsel or a local colleague can provide everything you need to maximize persuasiviness, however, especially when combined with the resources I listed in item 1 above.

  6. Hiring the best matters. Not all jury consultants are created equal. If you were going to build an iconic billion dollar building in your city, you wouldn't hire the best local architect. You'd hire the best architect. Well, we routinely deal in cases with a billion dollars at stake. But even for a case with tens of millions at stake, you wouldn't want to hire anyone but the best expert witnesses, and you wouldn't think local. Why would you do so for someone with arguably more impact on the outcome of the case like a jury consultant? It's the same reason that clients hire lead counsel in addition to local counsel. The best may not be based in the trial venue, but are worth importing into it. See, A2L Voted Best Jury Consultants and Best Trial Graphics Firm by the Readers of LegalTimes.

  7. But, If you really think local is critical for your case or the client is adamant about it, and that's 100% okay with us, here's how we get you the best of both worlds. Every mock trial where a larger group of jurors is broken down into smaller groups for deliberations requires the use of more than one consultant to serve as moderators for the separate panels. We can simply engage a local resource to be a part of the team and work with them to integrate local advice. It's a good compromise approach that gets you the right quarterback and coach plus the right player to match your opposition and local challenge. Fortunately, our reputation attracts such professionals and their collaboration.

Other articles related to jury consulting, local trial consulting resources and litigation consulting on A2L Consulting's website include:

jury consulting trial consulting jury research

Tags: Trial Consultants, Jury Consulting, Litigation Consulting, Trial Consulting, Jury Consultants, Jury Selection, Psychology, Persuasion

Is Litigation Coming for Major Retailers of Herbal Supplements?

Posted by Ken Lopez on Fri, Feb 6, 2015 @ 10:04 AM

 

herbal-supplement-retailers-litigation-fraud-product-liabilityby Ken Lopez
Founder/CEO
A2L Consulting

In case you missed it, the New York Attorney General's Office dropped a bombshell this week. They have accused major retailers including Wal-Mart, Target, Walgreen's and GNC of knowingly selling supplements that contain either none of what is advertised (an incredible 80% of the time) or something else entirely.

The herbal supplement industry is estimated to have close to $100 billion in annual sales. That's about five times the revenue of all AmLaw 200 law firms combined.

Once I saw the New York Times piece reporting on this issue, I wanted to learn more about what this might mean for litigators. Fortunately, I knew exactly who to speak with.

Below is an interview with Dr. David Schwartz, head of scientific support to counsel at Innovative Science Solutions. He describes his role as something of a scientific detective, regularly helping ISS’s clients defend and support pharmaceuticals, industrial chemicals, medical devices, foods, and dietary supplements in the courts, the regulatory arena, and the market place.

In this six-minute interview, Dr. Schwartz shares his outlook for how this issue might unfold in the courts.

Dr. Schwartz and I have had the pleasure of collaborating on litigation issues ranging from tobacco, to fracking to cell phone caused brain cancer. If you've not read his Science & Law blog, I highly recommend it.

Other resources on A2L Consulting's site related to science, complex litigation and helping fact-finders work through difficult issues at trial include:

expert witnesses and complex cases webinar

Tags: Litigation Consulting, Litigation Support, Science, Expert Witness, Press, New York, Dietary Supplements, Fraud

How PowerPoint Failures in Demonstrative Evidence Can Sink a Case

Posted by Ryan Flax on Mon, Feb 2, 2015 @ 04:28 PM

 

demonstrative-evidence-powerpoint-warning-cautionby Ryan H. Flax
Managing Director, Litigation Consulting
A2L Consulting

We strongly advocate that counsel must use a visual presentation to support his or her oral argument at trial (and anywhere they need to be persuasive). This most commonly happens during opening statements and closing arguments at trial and the dominant format for such presentations is PowerPoint – a very good tool. However, like cutting your own hair or doing your own dental work, we must again caution you that you must really know what you’re doing because your case may depend on it.

On January 22, 2015, the Supreme Court of the State of Washington published its opinion in State v. Walker, overturning the State Prosecutor’s conviction of an accused murderer because the attorney went too far with his demonstrative evidence in closing. A murderer has potentially been freed because, in the Court’s view, counsel was inflammatory in his presentation and “appealed to passion and prejudice” of the jury.

Certainly as zealous advocates we do want to appeal to the passion of jurors on some level. We need their emotions to be in sync with the law and evidence, but what might be too much so as to prejudice the proceedings? Let’s explore the Washington Supreme Court’s opinion to see.

What Did the Prosecutor Do?

defendant-walker-guilty-of-premeditated-murderI’ll preface these notes with the fact that based on the Court’s findings of facts, the evidence was pretty overwhelming against the defendant, and he appeared to be a cold-blooded killer. The prosecution proved its case.

During closing arguments the prosecutor used a PowerPoint presentation of approximately 250 slides – that’s a lot of slides. Over 100 of those 250 were titled “DEFENDANT WALKER GUILTY OF PREMEDITATED MURDER.” They also included a slide with the defendant’s face and the text “GUILTY BEYOND A REASONABLE DOUBT” superimposed thereover in bright red letters. As you see in the slides reproduced above, the prosecutor argued (visually at least) that the defendant was guilty because he spent the stolen money on toys, safes, and a lobster dinner.

The prosecutor showed slides composed of trial exhibits – photographs – with the prosecutions take on the significance. For example, one slide showed a table littered with stolen money – real evidence – captioned with “MONEY IS MORE IMPORTANT THAN HUMAN LIFE,” which was not a statement in evidence. Another showed a photograph of the murder victim in life, captioned with “DEFENDANT’S GREED AND CALLOUS DISREGARD FOR HUMAN LIFE.”

During the prosecution’s closing, defense counsel objected unsuccessfully to the prosecution’s discussion of premeditaiton and a slide analogizing it to stopping at a railroad crossing, but never objected to the PowerPoint slides mentioned above.

Why Did the Court Find It Wrong?

rule-404-demonstrative-evidence-powerpoint-warning-problemsThe Court indicated that “[t]he primary question in th[e] case [was] whether those [accomplice to first degree murder, first degree assault, first degree robbery, solicitation, and conspiracy] convictions must be reversed in light of the PowerPoint presentation the prosecuting attorney used during closing argument.”

The Court held that “prosecutorial misconduct violated Walker’s right to a fair trial” because of the prosecution’s PowerPoint presentation. Why?

The real reason is that a prosecutor represents the state and the judiciary and must be impartial so as to act only in the interest of justice. According to Washington, “advocacy has its limits, and a prosecutor has the duty to ‘subdue courtroom zeal,’ not add to it.”

The Court professed to have had “no difficulty” holding that the prosecutor’s PowerPoint presentation was “egregious misconduct.” Why?

The Court felt that the prosecutor had presented “altered versions of admitted evidence” and “derogatory depictions of the defendant.” [recall, this defendant is pretty much, absolutely a murderer – his also-guilty girlfriend testified to it]. The Court took offense to the inflammatory nature of the PowerPoint slides – the superimposing of text and captions that suggested the defendant “should be convicted because he is a callous and greedy person who spent the robbery proceeds on video games and lobster.” The Court indicated that the presentation “plainly juxtaposed photographs of the victim with photographs of [the defendant] and his family, some altered with racially inflammatory text.” Finally, the prosecution’s slides “repeatedly and emphatically expressed a personal opinion on [the defendant’s] guilt.”

The Court found all this a “clear effort[] to distract the jury from its proper function as a rational decision-maker.” It held that “[t]he voluminous number of slides depicting statements of the prosecutor’s believe as to defendant’s guilt . . . is presumptively prejudicial and may in fact be difficult to overcome, even with an instruction.”

mock jury webinar a2l kuslansky

Finally, the Court suggested that there is a “serious need to curb abuses of such visual presentations” and encouraged “trial court judges to intervene and to preview such slides before they are shown to a jury.”

How to Navigate the Minefield.

This all seem a bit crazy to me, but I do get it from the perspective of the State needing to exert control over itself as it’s represented in the judicial system. State prosecutors are held to a higher standard than other lawyers in the courtroom. I suspect that had the defense used a similar counter-point PowerPoint presentation in its own closing arguments, it would not have been misconduct or even close thereto. But, the State is supposed to be more even-handed and tempered.

I’m fairly certain that the prosecutor made his own PowerPoint presentation and had absolutely no guidance from anyone that knew how such a presentation should be made – this is fairly clear from the examples of slides above. First, regardless of how long the closing argument was, there is simply no reason that there should have been 250 slides. I cannot imagine what all these slides presented and how each one could be needed to tell the simple story of how very bad this bad guy was. So, the fact that there were 100 or so slides that expressed the prosecution’s flaming belief that the defendant was guilty of premeditated murder is, to say the least, excessive.

If I could get into my time machine and travel back in time to help this prosecutor, my advice would have been to tighten up the presentation as a whole, to use more well-crafted and less over-the-top graphics, and to make his hard-hitting, prosecutorial-belief slides just those at the very beginning and very end of the presentation (which would reduce the “inflammatory” slides from 100 to maybe 4 or 5). I can imagine prosecution counsel pounding on the lectern and shouting during closing arguments, too – my advice: don’t (the facts are on his side). I would advise counsel to have a tight and reasonable story, to develop well-composed slides that fit with this story and show the evidence, and to summarize the evidence only at the beginning and end with the thematic, “Defendant is Guilty – Defendant is a Callous Murderer – Defendant Put No Value A Real Man’s Life” slide. I suspect with this advice, the murder stays in prison and the prosecution is saved embarrassment.

In non-criminal cases and cases outside of Washington, I suspect this case and the sentiment of Washington’s Supreme Court are mostly irrelevant. It is our goal as litigators to zealously advocate for our clients and when we don’t work for the state, we probably have a lot more leeway to do so. It is imperative that we use strong and reasonable stories, themes, and well-crafted, supporting visuals to evoke sympathetic and empathetic emotions in jurors. As a professional litigation consultant, I help identify ways to do this that are not so heavy handed as Washington’s state attorneys’ tactics.

Other articles and resources related to problems with trial graphics, litigation graphics and demonstrative evidence from A2L Consulting:

litigation consulting graphics jury trial technology

Tags: Trial Graphics, Litigation Graphics, Litigation Consulting, Litigation Technology, Demonstrative Evidence, Trial Technology, Advocacy Graphics, PowerPoint, Criminal

5 Tips For Inter Partes Review Hearing Presentations at the PTO

Posted by Ryan Flax on Thu, Jan 29, 2015 @ 03:57 PM

 

inter-partes-review-presentation-graphics-patent-office-ptoby Ryan H. Flax
Managing Director, Litigation Consulting
A2L Consulting

Inter Partes Review, or IPR, has drastically changed the way we litigate patent infringement in the U.S. In big-budget patent cases, it is now almost inevitable that an IPR will be requested (and likely granted). The process is supposed to take no longer than a year to complete, but under current case law that’s a year’s delay in the district court case. Moreover, the odds are that any patent that enters IPR will not leave it unscathed.

So, whether you need to win an IPR to save your client’s patent’s claims or to insure your client against infringement allegations, the bottom line is that it’s critically important. And, you need to win.

Here are what I believe to be five important tips for improving your chances of victory once you get to the oral argument stage at the end of an IPR. At that point, you’ll need to convince Administrative Patent Judges that you’re the most reasonable person in the room and what you’ve said throughout the IPR “just makes sense.”

alexandria-inter-partes-review-presentation-graphics-patent-office-pto1. Always Support Your Argument With Visuals

As in any situation where you need to be persuasive in a presentation, there are steps you must take to be as persuasive as possible. The use of visual support for your argument is essential. Studies show with scientific certainty that it will make you more persuasive, all things being equal.

Moreover, other studies establish that it does you no good to merely make some PowerPoint slides and show them just “when you need them.” It has been confirmed that you must support the entirety of your oral argument with visuals in an immersive way – always give your audience something to see while you speak. This is the only presentation style that provides a significant improvement in persuasiveness over pure oral argument alone.

The PTAB itself (read the APJs that will be hearing your oral argument) wants you to use visual support for your argument and provides you the means to do so. As explained at the USPTO website:

[a]t the Alexandria hearing rooms, the Board has an easel, an Elmo projector, a laptop projector, and a screen, which may be requested for oral arguments. For Microsoft PowerPoint and other computer-based presentations, the party must provide its own laptop. Animation and video demonstratives cannot be presented at a hearing without specific prior authorization. The hearing rooms do not have Internet access capabilities – all information must be stored on the party’s laptop (e.g., a hard drive, flash drive, or CD).

So, use the tools available to you and follow these rules and get the permissions you need. But, the bottom line is that you must do more than explain why the claims at issue are or are not patentable – you must show the judges why it’s so and do so in an engaging way.

2. Keep Your PowerPoint Presentation Crisp And Clean

IPR-patent-litigation-crisp-clean-presentationIn both your argument and your visual support thereof, get right to the point. The Board doesn’t want any hyperbole, nonsense, or fluff.

The USPTO guidelines request that counsel begin their “conversation” with the Board with the critical issues, not extensive background. So, first explain the main reasons (each of them – I always suggest having 3) why you should win and show these reasons in your first slide. This presentation style sets a clean agenda for your oral argument and one you can return to as you move through your presentation. The APJs will know what to expect from you and will be able to work in their questions a little more on your schedule this way – if they have questions they brought to the hearing they can ask them at the appropriate time if they know you’re going to hit on that subject. This helps you make the points you want to make with less interruption.

You want to make the APJs’ jobs easier for them. Help them understand the technology as you see it, the facts as you see them, the claim language as you understand it, and the prior art as you know it. This help to the Board will come in the form of pinpointing and highlighting the special things about the technology and claim language that might not be clear enough from the papers alone. Point out the things, and do so visually, that seem to have been or might be overlooked by the APJs.

patent litigation webinar free litigation graphics demonstrative Use graphics to establish why your interpretation of things is the MOST REASONABLE one. When what you’re saying and showing can only be responded to with, “that seems to make sense,” you’re on the right track. The first step here is to separate the wheat from the chaff and made things more, not less, clear.

Likewise, your graphics should be clear and unembellished. Make them easy to see, easy to read, easy to interpret, and memorable. Don’t use unnecessary animations – control the urge to go “PowerPoint crazy.” But make your graphics look professional and make them well composed.

3. Simplify The Complex

patent-trademark-office-alexandria-litigation-trial-support-graphicsTechnology is, by its nature, complicated. Throw in claim language written by a patent prosecutor with little time and a penchant for using less than standard-everyday-English, a thick stack of prior art, and the nuances of Sections 102 and 103 and you’ve got the recipe for confusion. APJs are human beings and, so, they will appreciate you distilling the facts, science, and law for them into a more easily digestible pill. Doing so will make you more persuasive.

Always ask yourself the question, “why are we really here” or “what is this really about” when beginning to develop your oral argument and accompanying graphics. If you can explain in words and images what claim language really means or what a prior art references fails to disclose and why, simply and clearly, you are certainly ahead of the game.

This is not so easy and many patent attorneys find it difficult to simplify the complex. Using graphics and, actually, planning the development of the graphics you’ll use, makes this job easier. You’ll have to determine how to economically tell your story in images and doing that will help you cull the key facts and storylines from fluff and extraneous details.

4. Minimize Text

Beyond helping litigation counsel develop their case so they are the “most reasonable person in the room” come time for argument, my most important job is often forcing attorneys to reduce the amount of text they want to include in their visual support for oral argument. A text-heavy PowerPoint presentation is a barrier to connecting with your audience, a barrier to good communication, and a barrier to persuasiveness.

pto-alexandria-litigation-trial-support-graphicsIf you are asking (aka, forcing) your judges to read your argument while you’re also making it orally, you’re not connecting with them on a human level and you’re not engaging them. You want your hearing graphics to support what you’re saying and to make it more readily understandable and memorable. You don’t need or want to be redundant.

Incorporating too much text in your visual presentation introduces several potential problems. It increases the chance that you’ll use PowerPoint as a crutch and will base what you say on what you’ve written into your slides. Besides being boring, this presents another problem – that of the “redundancy effect,” where you simultaneously say what you show in text on the slide and thereby turn off your audience’s brains. Finally, as much as most attorneys love them, having too much text probably means you’ve includes lots of bullet-point lists in your presentation, which is a presentation killer for many reasons.

Use your opportunity to show graphics to pinpoint the important evidence for the Board and highlight language and facts that you want to stand out. Compare the language of your claims to the disclosure or non-disclosure of the prior art visually. Don’t simply show your briefing in PowerPoint form.

best of the national law journal A2L Consulting

5. Develop A Related, But Different Leave-Behind Document

If you’ve followed my tips above, you’re using a graphics presentation, but you’ve significantly reduced the text content of your graphics and doing so has probably caused you some heartburn. Do not dismay. My last suggestion is to save all that text you wanted to put into your PowerPoint slides, e.g., your oral argument script, and combine it with the graphics you ultimately did use in the hearing. This will be your hand-out and leave-behind for the Board.

As discussed at the USPTO website:

For AIA trials, unless otherwise directed, demonstrative exhibits must be served on opposing counsel at least five business days before the oral argument and a copy served electronically at the Board no later than the time of the oral argument. 37 CFR § 42.70(b).
***
Parties are advised to bear in mind that some judges may appear remotely from other locations. It is incumbent on the parties to ensure that any demonstratives used during an oral hearing are visible and available to all judges on the panel. For example, demonstrative exhibits displayed on an easel or via a projector may not be able to be seen by judges participating remotely. Those remote judges will refer to the electronic copy of the demonstrative exhibit provided by the party in advance or to a copy of the relevant document as it appears in the record. As such, parties should also clearly identify during the oral hearing any demonstrative exhibit to which they are referring to enable all judges participating in the hearing to follow along with the argument being presented.

patent-litigation-inter-parties-review-ptoAs the USPTO suggests, make sure all the judges have access to your demonstratives. This leave-behind is a good way to do that. It will combine the memorable and engaging graphics you used at your oral argument with what is essentially that same, scripted argument (uninterrupted by questions) in the notes associated with those graphics. Package it nicely so the APJs can refer back to your demonstratives and recall how they relate to your argument (the document can also easily be in PDF format to email remote judges).

Other patent litigation-related resources on A2L Consulting's site:

patent litigation toolkit 3rd edition free ebook

Tags: Patent Tutorial, Trial Graphics, Litigation Graphics, Demonstrative Evidence, Patent Litigation, PowerPoint, PTO, Alexandria, Inter Partes Review

21 Ways Trial Can Be Like a Blizzard - But It Never Has to Be

Posted by Ken Lopez on Mon, Jan 26, 2015 @ 01:17 PM

 

percentage-population-megalopolis-snow-trial-preparationby Ken Lopez
Founder/CEO
A2L Consulting

We East Coasters have a love-hate relationship with snow, and the snow moving into the Northeast today may be one for the record books - particularly around Boston. It will dominate the news for days - and it probably should.

An incredibly large number of people will be impacted by this particular storm. Under or next to that red line on the map where the storm is forecast to hit, you'll find roughly 20% of the U.S. population living on roughly 3% of the country's land, half of the hedge funds, one third of the headquarters of Fortune 500 firms and — in the states under the red line, about 35% of the country's and, hard as it may be to believe, about 25% of the world's lawyers!

A blizzard disrupts our lives. It can feel tedious, it creates confusion, and it generates a lot of hard work — sort of like a trial. Not all trials are blizzard-like, but some surely are. Here are 21 ways some trials are like a blizzard and how to avoid white-out conditions in your courtroom.

  1. The dialogue is often boring. Similar to the neighborhood small talk that surrounds a snow storm, many trials are boring for judges and juries. I know federal judges who frequently fall asleep, and I have seen plenty of jurors do the same. However, I have always asserted that trial counsel have a duty to entertain a jury. See, Lights! Camera! Action! Verdict! A Trial Team's Responsibility to Visually Entertain and 12 Things Every Mock Juror Ever Has Said - Watch Anytime

  2. Too much, too fast. Judges are pushing for faster and faster trials and many lawyers are failing to use presentation techniques that can speed up a trial dramatically and save time. You don't want your judge and jury to feel like they can't see where you and they are going together. See, 5 Ways to Apply Active Teaching Methods for Better Persuasion and  Will Being Folksy and Low-Tech Help You Win a Case?

  3. Poor planning is dangerous. If there is a lot at stake, one needs to test one's approach in advance. Governments spend years planning their responses to a blizzard, and if your case warrants it, you should spend a considerable amount of time testing themes, testing witnesses, testing litigation graphics and testing arguments in a mock trial setting. See, 12 Astute Tips for Meaningful Mock Trials and 10 Suggestions for Conducting Mock Bench Trial Consulting Exercises.

  4. There are bad drivers everywhere. Like the ubiquitous Toyota Camry inexplicably on the roads in a snow storm, you have to be careful to avoid those who pose a threat during trial preparation. See, No Advice is Better Than Bad Advice in Litigation

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  5. Travel and everything else require massive planning. I often quote one of my favorite trial lawyer clients who said, "I never sleep better than when I am at trial, as I know how well prepared I am." He had a habit of being successful. If you need to get to the trial site early, you should. Last minute is very last century. See, The 13 Biggest Reasons to Avoid Last-Minute Trial Preparation

  6. It's hard to see. If your projector and your trial technology are not well planned for, like in a blizzard, you end up with a washed out image on screen where colors are hard to make out. See, 24 Mistakes That Make For a DeMONSTERative Evidence Nightmare

  7. Practice is essential. You wouldn't want a snowplow driver to make their first run during a blizzard any more than you would want to articulate an opening statement for the first time during trial. See, 3 Ways to Force Yourself to Practice Your Trial Presentation and Practice, Say Jury Consultants, is Why Movie Lawyers Perform So Well

  8. Going it alone is a bad idea. We are in an era where litigators from top firms try very few cases. In-house counsel understand this dilemma. Now, more than ever, litigation consultants are mandatory for a trial with more than a few million dollars at stake. See, 9 Things In-House Counsel Say About Outside Litigation Counsel and Accepting Litigation Consulting is the New Hurdle for Litigators

  9. IT support is critical. I think many of us would sooner go without water at home during a blizzard than go without Internet. Trial is not dissimilar. You need your technology to work. Trial technicians can be an incredible asset to make sure things go smoothly in the warroom and at trial. It is an expensive and avoidable nightmare when something goes wrong during a mock, the night before trial, or, worst of all, during trial. See, 12 Ways to Avoid a Trial Technology Superbowl-style Courtroom Blackout

  10. Anticipate the worst and prepare for it. Whether it is a motion in limine going the wrong way, an expert being disqualified, an exhibit being excluded, good trial teams discuss the worst that can happen and prepare for it just as good governments do before blizzard conditions exist. See, The 14 Most Preventable Trial Preparation Mistakes

  11. Know your environment. If you fail to properly map out your courtroom well in advance of trial, you'll end up feeling as lost as a snowplow driver without a GPS. Your technology won't serve the very people you designed it for. See, 21 Ingenious Ways to Research Your Judge

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  12. Pick and prepare the right experts. There are experts who help pick expert witnesses. I find that a lot of litigators fail to rely on this resource and regret it later. Once you have an expert, they must be prepared. Just as you would not want to see an everyday weather geek opine sophomorically about storm conditions, you must work on your experts so they can work for you. Otherwise, you'll be shoveling more than snow. See, Witness Preparation: Hit or Myth? and 7 Smart Ways for Expert Witnesses to Give Better Testimony.

  13. Know how much science your audience can take. Many fact-finders will glaze over with the presentation of too much science, so a balance must be struck between good trial presentation and making a good record. Most of us want to hear Jim Cantore explain the story simply, not go into the detailed science. See, 5 Valuable (and Free) Complex or Science-Focused Litigation Resources and Teaching Science to Juries

  14. Tell a story. Everyone comes out of a blizzard with a good story, but a good story poorly told is not really that good. Trial is the same way. Stories engage people, but you have to do it right. See, Free Webinar - Watch Anytime - Storytelling as a Persuasion Tool and Storytelling for Litigators E-Book 3rd Ed.

  15. Make sure your story is compelling. Nobody likes someone who tells a long chronological story and bores everyone to death. There are good rules of thumb for telling a story that people care about. See, Don't Be Just Another Timeline Trial Lawyer and 5 Essential Elements of Storytelling and Persuasion and 14 Differences Between a Theme and a Story in Litigation

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  16. Don't under-budget. In-house counsel or your client want you to win, but you need to ask for the budget you need to win. Similarly, in-house counsel need to do a better job of arming trial teams for battle by making sure they feel confident in asking for budget. After all, what happens to a mayor who does not budget enough for the blizzard and a city breaks down? See, In-House Counsel Should Make Outside Litigation Counsel Feel Safe

  17. Use the right visuals. Just because you use a PowerPoint at trial does not mean you are more persuasive. In fact, you could hurt your persuasiviness if you use the wrong approach to visuals. Think about all the work that is going to go into reporting on this blizzard and watch the visuals that are used. The science behind what visuals people need to see to be entertained and persuaded is vastly more complex than most people know. See, 10 Things Litigators Can Learn From Newscasters and 6 Studies That Support Litigation Graphics in Courtroom Presentations and Good-Looking Graphic Design ≠ Good-Working Visual Persuasion

  18. Make sure your words compliment your visuals. Just as you can quickly tell the difference between a national newscast and one from a small town, good and well-prepared presenters are obvious to everyone. See, 12 Ways to SUCCESSFULLY Combine Oral and Visual Presentations and 10 Things Litigators Can Learn From Newscasters

  19. Don't overdo it. Knowing when the pressures of trial are too much is just as critical as knowing when not to shovel that large driveway. See, 10 Signs the Pressure is Getting to You and What to Do About It

  20. Make sure you have the right audience. If you are saying the wrong things to the wrong people, no one will get behind your message. Unlike an elected politician or a newscaster, litigators have some choice about who their audience is - make the most of that opportunity during voir dire. See, New and Free E-Book: The Voir Dire Handbook

  21. At the appropriate time, and if it's right for you, a cocktail will probably help.

Other articles and resources related to trial preparation, thoughtful mock trial testing, persuasive litigation graphics and trial technology considerations from A2L Consulting:

A2L Consulting Voir Dire Consultants Handbook

Tags: Trial Graphics, Litigation Graphics, Trial Technology, Jury Consultants, Trial Preparation, Opening, Newscasts, New York, Boston

9 Things In-House Counsel Say About Outside Litigation Counsel

Posted by Ken Lopez on Wed, Jan 21, 2015 @ 03:27 PM

 

what-inhouse-counsel-says-about-outside-counselby Ken Lopez
Founder/CEO
A2L Consulting

One month ago I wrote an article titled 9 Things Outside Litigation Counsel Say About In-house Counsel, and we recently included it in our free In-House Counsel Litigation Toolkit e-book. It is a popular piece read by several thousand people so far. Today's article looks at what is being said by in-house counsel about outside litigation counsel.

I've spent a lot of time talking with in-house counsel from large companies over the past two months. They have a lot to say about outside litigation counsel that I don't normally see reported in the popular press.

I expected to hear that outside counsel need to learn to manage budget and find ways to save money, since that's what I mostly read in legal publications. I heard some of that, but the feedback is more nuanced than simple price pressure, and the feedback speaks to a desire for more creativity from outside litigation counsel.

Of course, since I am most often talking to in-house counsel about jury consulting, litigation consulting and litigation graphics consulting, most of their comments relate to those subjects. With that in mind, here are nine things I've heard in-house counsel say about outside litigation counsel recently:

  1. "We have to stop deluding ourselves. At trial, the law is background noise." Big companies are frustrated with having the law on their side and still losing jury trials. As one in-house lawyer said to me, "it is clear that having a good story is important, as one can be right on the facts and the law and still lose." I agree completely, and we have made this point many times in our Storytelling for Litigators ebook and Storytelling for Litigators webinar. More and more, getting the story right is the focus of what A2L Consulting is hired to do as litigation consultants.

  2. Opposing counsel is often more trial-savvy than our outside litigation counsel. Defense-focused litigators from large law firms rarely go to trial, whereas their opposition in many types of cases like product liability, employment, securities and other case types, go to trial quite often. Plaintiff's counsel are quite comfortable relating to a jury, because they do it so often. Their experience comes across in their body language. Defense counsel must make up for this shortcoming with more frequent and repeated practice. Litigation consultants have an obvious role to play here in conducting structured practice, whether in front of a mock jury or more simply, in front of litigation consultants.
    mock jury webinar a2l kuslansky

  3. Gone are the days when one law firm would manage a relationship for the company, so some cost efficiencies get lost as a result. This includes how the company story is told from case to case and understanding the business well enough so that problems are avoided during litigation that might cause much bigger problems elsewhere (e.g. with investor relations or with marketing).

  4. In-house counsel want to hear outside counsel articulate a persuasive story for the case early, not only close to trial. You can add "the client is tired of it" to my list of The 13 Biggest Reasons to Avoid Last-Minute Trial Preparation, because they are. Last minute trial prep makes bills higher not lower, and in-house counsel gets it. See, In-House Counsel Should Make Outside Litigation Counsel Feel Safe

  5. In-house wants to understand how persuasive the opposition's story is. Too often it seems, the strength of the opposition's case is not well described, internalized or properly assessed early enough. See 7 Reasons In-House Counsel Should Want a Mock Trial.

  6. "If a trial team says it has all the answers, it's time to find new outside litigation counsel." Working with litigation consultants makes sense for many reasons but particularly because of the rarity of trial for most litigators vs. the incredible frequency of trials for litigation consultants. In-house understands this point much more so than I imagined before interviewing so many recently. See Accepting Litigation Consulting is the New Hurdle for Litigators.

  7. In-house counsel wants to offer input on the story told at trial. Too often, in-house counsel gives feedback but, as one said to me, "some words may change, but the book stays the same." The benefit of practice with in-house included early is something I've heard over and over.

  8. Most litigators get locked into their approach, and what won cases thirty years ago, may not work today. We like trusted advisors who help us win, but they must prove that they change with the times. See, 19 Ways in Which the World Has Changed Since 1995.

  9. Litigation budgets are often best addressed through early case assessment. By analyzing whether a case should advance toward trial early on, money can be saved by settling early. Creativity here is especially important and is often hard to find. I think the work of author Dan Pink describing the role of creativity in the modern workforce is especially relevant here. See, Daniel Pink, Conceptual Thinking and Trial Consulting.

Other articles and resources related to the work in-house counsel, outside litigation counsel and litigation consultants do together from A2L Consulting include:

in-house counsel litigation toolkit e-book free download

Tags: Litigation Graphics, Mock Trial, Litigation Consulting, Jury Consultants, Trial Preparation, Pricing, Storytelling, Practice, In-House Counsel

Join the Jury - NLJ's 2015 Best of Survey is Now Accepting Votes

Posted by Ken Lopez on Tue, Jan 20, 2015 @ 10:38 AM

 

best-of-the-national-law-journalby Ken Lopez
Founder/CEO
A2L Consulting

There are many annual surveys that help rank law firms, specialty legal training programs and legal vendors and consultants. The annual Best of The National Law Journal is the crown jewel of these surveys.

A2L Consulting is honored to have been nominated and voted best litigation graphics provider and best jury consultants in this and other polls many times before. By voting in such surveys, I believe we make our industry better by acknowledging those who contribute to it the most.

While I would certainly be thrilled, honored, and grateful it if you would vote for A2L on questions #58 and #61 in the categories of Best Demonstrative Evidence Provider and Best Jury Consultants, I think simply voting is very valuable for all of us. Here is a link to the survey that is only open for a little bit more time. Note, not all questions have to be answered, but you do have to click the "Done" button at the end. https://www.surveymonkey.com/s/2015BestofNLJ

These ALM polls are quite credible since they are reader-driven and since gmail and other free email services are usually excluded from voting. Thus, you get very good insight from your peers regarding who is the best of the best.

Just a couple of months ago, A2L was voted #1 or #2 in all three of our primary service categories - jury consulting, litigation graphics consulting and courtroom technology/hot seat consulting - by the readers of LegalTimes, a sister publication of the NLJ.

Categories being voted on this year are quite diverse and include not only those areas where A2L works but also other areas like crisis management, lawyer business development coaches, litigation valuation, cloud-based practice management, ADR providers and more.

On the national stage of big ticket trials, we only routinely bump into our competitors FTI Consulting, TrialGraphix (recently sold again and collapsed into RLM) and DecisionQuest. I'm glad to see these good firms are nominated along with a host of others. I have to confess that despite being in the industry for 20 years, I've not heard of many of the others, but I do wish everyone good luck.

A2L Consulting is nominated in 5 categories this year - vote now!:

  • Best Jury Consultants (#58)
  • Best Demonstrative Evidence Provider (#61)
  • Best Trial Technology "Hot Seat" Provider (#62)
  • Best Intellectual Property Consultants (#15)
  • Best End to End Litigation Consultants (#11)

I'm really focused on winning in the jury consulting and demonstrative evidence categories as these are the most important categories to our customers. Here is what the questions #58 and #61 look like (click the image to go to the survey now). The whole survey should take no more than 10 minutes.

best-of-the-national-law-journal-best-jury-consultants

best-of-the-national-law-journal-best-demonstrative-evidence-providers

Thanks for voting everyone. It makes the entire legal industry better in the process.

best of the national law journal A2L Consulting  

Tags: Trial Graphics, Litigation Graphics, Jury Consulting, Litigation Consulting, Demonstrative Evidence, Hot Seat Operators, Trial Technology, Jury Consultants, Survey

Boston, a Bomb of a Trial

Posted by Laurie Kuslansky on Thu, Jan 15, 2015 @ 11:46 AM

 

boston-bomber-dzhokhar-tsarnaev-trialby Laurie R. Kuslansky, Ph.D.
Managing Director, Jury & Trial Consulting
A2L Consulting

Want a change of venue? Think again. Judge O’Toole and the U.S. Court of Appeals for the First Circuit turned down the defense’s attempts to change the venue. Even though Boston is where the horrifying Boston Marathon Bombing happened, that is where the jury pool will come from to judge the surviving Tsarnaev brother, Dzhokhar.

Will there be enough jurors? Here, 1200 prospective jurors will complete a jury questionnaire of 100 questions to seat a jury of 12 jurors plus 6 alternates who, if left, deliberate as full jurors in federal court.

It is disconcerting that there are only 6 alternates for such a long trial, in flu season and the Boston winter, when jurors often get sick and/or drop out for other reasons in lengthy trials. It will likely take weeks to review the questionnaire responses and voir dire the pool. Then there’s the matter of how long the trial is expected to take (months), which is likely to take many out of consideration as they simply cannot afford that much time away from their lives. Those who are willing to serve that long are not likely pro-defense, but rather, folks who want to send a message. And last, but not least, they must be willing to consider the death penalty, if (read “when”) the defendant loses. It will be interesting to learn what, if any reason, prospective jurors give to show that they are neutral and have not pre-judged the case, especially since the community was on lockdown and glued to the news at the time for their own safety. It would seem that the better part of the U.S. – and certainly New England – has nothing but contempt for the defendant.

boston-bomber-dzhokhar-tsarnaev-trial-jury-trialDefense blunder #1:  It is presumed that the defense will try to assert that the younger Tsarnaev brother was misled by his older brother, Tamerlan, but one does not sport a goatee to appear young and powerless, nor show up in court with the hair of a madman to garner sympathy to defeat the death penalty. What a difference 21 months make.

With the stakes so high, the venue so personally affected, emotions so deep, eyewitness and video evidence so strongly favoring the prosecution, there is no room for the defense to lose an inch, but an inch is already lost. Add to that the apparent limit in control the defense counsel seems to have over its client.  

This is not a case of winning, but of who will lose the most.

Other articles related to jury selection, voir dire and jury questionaires on A2L Consulting's site:

A2L Consulting Voir Dire Consultants Handbook

Tags: Jury Questionnaire, Trial Consultants, Jury Consultants, Voir Dire, Jury Selection, Criminal, White Collar, Boston

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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.


ryanflax blog litigation consultant 

Ryan H. Flax, Esq., Managing Director, Litigation Consulting, joined A2L Consulting on the heels of practicing Intellectual Property (IP) law as part of the Intellectual Property team at Dickstein Shapiro LLP, a national law firm based in Washington, DC.  Over the course of his career, Ryan has obtained jury verdicts totaling well over $1 billion in damages on behalf of his clients and has helped clients navigate the turbulent waters of their competitors’ patents.  Ryan can be reached at flax@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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