The Litigation Consulting Report

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

    best of the national law journal A2L Consulting

  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

    mock jury webinar a2l kuslansky

  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

Implications for 2015 Workplace Litigation, Voir Dire and Trial

Posted by Laurie Kuslansky on Mon, Jan 12, 2015 @ 12:22 PM

 

workplace-litigation-a2l-consulting-jury-consultantsby Laurie R. Kuslansky, Ph.D.
Managing Director, Jury & Trial Consulting
A2L Consulting

Q:  Per Glass Door’s 10 Biggest Job Likes and Gripes of Employees for year-end 2014,1 what do you think topped the lists of likes vs. gripes: co-workers or pay?

A:  Good vs. annoying co-workers topped the lists; good vs. low pay trailed in slot 5:

10 Biggest Job Likes of Employees
1. Great Co-workers
2. Work Environment
3. Good Benefits
4. Interesting Work
5. Good Pay
6. Work-Life Balance 
7. Flexible Work Schedule
8. Company Culture
9. Fast-Paced Environment
10. Smart People
 
10 Biggest Job Gripes of Employees
1. Annoying Co-workers
2. Poor Work-Life Balance
3. Poor Work Environment
4. Long hours
5. Low Pay
6. Management
7. Inflexible Work Schedule
7. Few Career Opportunities
8. Poor Company Culture
9. Few Training Opportunities
10. Little Fun

 

What are the implications for litigation involving the workplace and possible ways to avoid it? 

Can’t we all just get along?  Maybe not.

Employers may want to spend less time worrying about pay increases and pay more attention to the company their employees keep at their company. Perhaps you know that some people just don’t get along. If there isn’t a bad worker, just a personality conflict, forcing them to work it out may have been conventional wisdom, but offering alternatives may make more sense;

mock jury webinar a2l kuslansky  Who’s in the jury pool?  Everyone.

People who . . . 

  • . . . never worked outside the home
o   Students
o   Disabled
o   Homemakers
o   Stay-at-home parents
o   Dependent on others
  • . . . used to work outside the home, but don’t any more
o   Retired
o   Disabled
o   Homemakers
o   Stay-at-home parents
o   Unemployed because fired/RIF’d/quit
o   Dependent on others
  • . . . currently work full-time or part-time

Each type of potential juror has variations and potential baggage about the workplace that they bring to workplace litigation – either based on good or bad personal and direct experience or the lack of it (based merely on jaundiced or idealized beliefs). These beliefs color prospective jurors’ decision-making in trials that call upon their judgment of the workplace, the workers, the management, and events that took place there, allegedly. 

Work with Co-Worker Attitudes at Trial

Knowing how much of a premium people place on co-workers to make or break their satisfaction at work is something likely to be overlooked at trial. But knowing how prominent it is suggests exploring it. How? Remember that voir dire is for revealing detractors, not fans, so ask questions that reveal jurors likely to ally with your opponent. 

Good questions to ask in voir dire:

“Do you have any co-workers that especially ...
(defense:) annoy you?/(plaintiff:) make work more enjoyable?

Follow-up:

Without naming names, can you explain?
How do you deal with it?
What is your overall opinion of your employer and work experience?
Based on what you’ve heard so far about this case, what comes to mind from your own experience?

Jury Selection

Say a prospective juror reveals a very positive/negative co-worker experience.  Is that prospective juror worth a peremptory strike or not?  To decide, you must factor in other traits about them (e.g., are they leaders or followers? Do they have strong opinions? Do they have a souring experience in the workplace?).  They may have very good or bad co-worker experiences, but have little weight on other jurors, and thus, do not over-value that single point. 

Trial

Throughout trial, from Openings, presentation of evidence, witness examinations and Summations, counsel has the opportunity to weave the notion of co-workers into the case to their benefit, whether because of strongly positive or strongly negative workplace atmospheres, and that is likely to resonate with jurors in 2015.

Despite the fact that Pharell Williams’s song “Happy” topped the Hot 100 Charts in 2014,2 a lot caused prospective jurors to be unhappy. The place to address that unhappiness is in voir dire and trial, if it isn’t addressed in the workplace first.

A2L Consulting Voir Dire Consultants Handbook

 

[1] at http://www.glassdoor.com/blog/10-biggest-job-likes-gripes-employees/?utm_medium=email&utm_source=newsletter&utm_campaign=YearEnd2014&utm_content=YearEnd2014

 

[2] http://www.billboard.com/charts/2014/year-end

 

Tags: Jury Questionnaire, Trial Consultants, Jury Consulting, Juries, Jury Consultants, Voir Dire, Jury Selection, Labor and Employment

ICYMI: New Voir Dire E-Book, CEO Interview and 6,000 Subscribers

Posted by Ken Lopez on Fri, Jan 9, 2015 @ 04:07 PM

 

A2L_Consulting_Top_50_Articles_cta_vertby Ken Lopez
Founder/CEO
A2L Consulting

It's been quite a week at A2L Consulting, and I want to share three pieces of good news and some valuable resources with you to round out the week.

Unbelievably, we crossed the 6,000 (free) subscribers threshold this week at The Litigation Consulting Report blog. I say "unbelievably" because we only just crossed the 5,000 subscriber mark three months ago. Clearly, publishing valuable information for the litigation marketplace is both something we love doing, and the marketplace loves reading our articles, ebooks and watching our webinarsWe remain grateful that the ABA honored us as one of the top 100 blogs in the legal industry. 

To celebrate this milestone, we are re-releasing our Top-50 Articles of All Time E-Book for free with no form to fill out. Just click here or on the graphic next to this article, and you'll be able to download the book instantly. These are 50 of our best articles out of 400 that we have published so far. It's a great resource for lawyers, litigators, in-house counsel and litigation support professional alike.

I also had a chance this week to be interviewed by famed litigator Mitch Jackson as part of his Human.Social project. The interview largely focuses on why A2L produces this blog and how it simultaneously creates value for our readers and for us as a business. Here is the recorded interview below:

A2L also had its most successful e-book launch this week out of more than 20 e-books so far this week. Most books that we release take several weeks or months to reach more than 1,000 downloads. However, The Voir Dire Handbook will have more than 1,000 downloads after only a few days of being published. That's amazing. You can grab your free copy by clicking here.

I hope this information is helpful to you and your business. I hope your 2015 is off to a great start. We plan to publish close to 150 amazing articles related to litigation and persuasion this year. I hope you'll sign up to be notified, whether instantly, daily, weekly or monthly, of new articles that we publish. Here's a link to a free subscription: http://a2.lc/safe_subscribe

A2L Consulting Voir Dire Consultants Handbook

Tags: Litigation Consulting, E-Book, Articles, Voir Dire, Jury Selection

New and Free E-Book: The Voir Dire Handbook

Posted by Ken Lopez on Wed, Jan 7, 2015 @ 01:15 PM

 

a2l-consulting-voir-dire-consultants-handbook-small-ctaby Ken Lopez
Founder/CEO
A2L Consulting

Seven of the top ten web searches that lead to a visit to our website in 2014 were related to voir dire or jury selection. These are topics that we write about frequently and assist clients with often at A2L Consulting.

To respond to the obvious demand for information about voir dire, we are today releasing our latest free e-book, The Voir Dire Handbook. This 111 page book is comprised of 37 articles about jury selection, voir dire and related topics. Like our 20+ other litigation, persuasion, psychology and presentation-focused e-books, The Voir Dire Handbook is a free download with no strings attached.

Although attorney-run voir dire does not occur in every venue, some level of voir dire is almost always possible. Sometimes it's conducted by a judge. Sometimes it's run almost entirely by the lawyers. Because the composition of a jury can dramatically affect the outcome of the case, it is vitally important to get voir dire right and use whatever tools are available for doing so. Even in federal court, you often have more options available than many believe. 

This one-of-a-kind and brand-new book will be helpful to junior and veteran courtroom practitioners alike. Some of the topics covered include:

  • 7 Tips to Take Dire out of Voir Dire
  • 5 Questions to Ask in Voir Dire Always
  • 5 Voir Dire Questions to Avoid
  • Jury Selection: Should You Follow Your Instincts About a Juror
  • 10 Signs of a Good Jury Questionnaire
  • Why Do I Need A Mock Trial If There Is No Real Voir Dire
  • Jury Selection Experts: True or False?
  • 10 Ways to Spot Your Jury Foreman
  • and 29 other useful articles.

"Voir dire" refers to the process by which prospective jurors are questioned to uncover biases which may automatically require their rejection from jury service in a given trial (through strikes for "cause") or allow attorneys to deselect them from a jury (through "peremptory" challenges). The goal of voir dire is to eliminate jurors who pose the most risk to a client, whether in liability or damages. Those who are left constitute the jury.  Given how limited a client's control is over who shows up in the pool and, in some venues, the questions that can be asked, the ability to smart bomb, i.e., hone in on the worst jurors and get rid of them, is vitally important.

Proper voir dire is not something that one plans for the day before or even the morning of trial. In cases where what is at stake warrants it, months can be spent developing the best plan for jury selection through a mock trial process to learn the traits that mark adverse jurors and then ways to strategically incorporate that knowledge into the voir dire process.

The articles contained in this book share lessons my colleagues and I have learned from being engaged in thousands of trial and jury consulting engagements over careers that span many decades. We cannot tell you how many times we have observed attorneys making obvious mistakes in voir dire -- all avoidable, such as revealing their fans rather than their enemies, or talking more than listening, or asking one too many questions of good jurors. Don't be one of them.

You may download The Voir Dire Handbook by clicking here or on the image below. Your feedback and discussion are welcome and encouraged.

A2L Consulting Voir Dire Consultants Handbook

Tags: Jury Questionnaire, Trial Consultants, Litigation Consulting, E-Book, Juries, Jury Consultants, Trial Preparation, Voir Dire, Jury Selection

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

No Advice is Better Than Bad Advice in Litigation

Posted by Laurie Kuslansky on Fri, Dec 26, 2014 @ 11:27 AM

 

no-advice-better-than-bad-adviceby Laurie R. Kuslansky, Ph.D.
Managing Director, Jury & Trial Consulting
A2L Consulting

Often, celebrities and other litigants have entourages, a circle of advisors, and all kinds of ties with other people, so it is understandable that they will turn to them for advice when engaged in legal battles. The problem is that often those people have little to no experience or expertise dealing with this arena, but are chock full of advice, are motivated to jockey for attention and control, know which buttons to press with their friend/client to gain their consent for a course of action, but have trouble admitting they need help, may feel threatened to do so, and thus, misguide the litigant. We have seen this phenomenon many times with the same result . . . bad.

In an infamous criminal trial of a famous football star, the best and brightest jury consultants, armed by lots of good data, advised the prosecution and provided a solid and reliable trial strategy based on decades of experience plus case-specific mock-trial testing. Was it accepted? No. What was? The advice of a psychiatrist neighbor with no such expertise, prior (different) experience, and personal opinion. Result? Bad.

In a lesser known matter, a bookworm-style intellectual property attorney with no jury trial experience turned away mock-jury testing and the expertise of a jury consultant. He concluded they were outside his normal comfort zone of operating, and instead, replaced them with the advice of someone who saw things “his” way – i.e., ignored how real people decide these cases and what they cannot understand or use as evidence because they lack the cognitive ability, interest, or motivation to do so, and relied on dry, tedious, technical information and a deep understanding of the guiding legal principles to guide the jury’s decisions – which as warned and predicted all failed at trial. Result? Bad.

A well-known movie producer had a number of people hanging on to his coattails, enjoying the reflected glory of being in his inner circle. A new group of wannabes wanted to garner his attention and become his new entourage, replacing his old one. How? By claiming the others were mismanaging his business and that his best friend and financial supporter cheated him out of money. They knew that a great way to attract the attention of an artist is to alert them to the notion that they are being cheated out of money. And so, to no good avail, the producer sued his best friend. Result? You guessed it.

If your best friend was a dentist, and you had heart problems, you might ask your friend for a referral, but would you take their advice over a well-regarded cardiologist?! Of course not, but we see this pattern in litigation all the time. When heeding someone’s advice, make sure they are coaching you or your client based on more than your relationship, but on information, experience and expertise. If not, you may as well treat your heart with a dentist.

Other A2L Consulting articles related to high-profile clients, jury consultants and litigation consulting:

in-house counsel litigation toolkit e-book free download

Tags: Trial Consultants, Jury Consulting, Mock Trial, Litigation Consulting, Trial Consulting, Jury Consultants, White Collar, Witness Preparation

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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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