The Litigation Consulting Report

Although checklists are not as dramatic as other types of litigation graphics such as three-dimensional animations or interactive PowerPoint timelines, they can be very effective in persuading juries on key issues and in making it easier for them to recall the important elements of a case.

Litigation graphics can be especially useful in aviation cases. Nearly every juror has been an airline passenger at some point, and jurors know that while most flights are uneventful, mistakes committed by airline employees or others can result in serious injury or death. A good trial exhibit will illustrate exactly what happened on the flight and will properly evoke people’s concerns about flying, without being improperly inflammatory. For example, in two high-profile airline trials in the 1990s, using only the technology that was available at that time, we produced highly persuasive trial animations and other litigation graphics.

Courtroom animation is often indispensable for the purpose of showing jurors how technical processes work, how scientific principles come into play in a case, or how a legal concept applies in practice. In addition, by applying trial consulting principles, litigation animation can also be used to keep a jury engaged and interested. Too often, when a case involves complicated technical issues, the jurors’ attention will wander, and even an excellent set of witnesses or a brilliant closing argument will not win the case, because the jurors just haven’t been focusing all along. Ray Moses of the South Texas College of Law made this point well in a comprehensive online guide to prospective criminal defense attorneys. “Modern day jurors - most of 'em are either geeks or baby boomers - receive and process information through increasingly sophisticated visual media. Every trial lawyer, particularly defenders, must learn how to use technology to engage the jury. The persuasive force and eloquent power derived from using visual and aural displays of information in electronic form, e.g., computer-generated exhibits, at trial simply cannot be ignored,” Moses wrote for the Center for Criminal Justice Advocacy. An excellent example is the highly complex legal concept of reinsurance. Not every lawyer knows what reinsurance is, and certainly most lay persons on juries have no idea. (It is insurance purchased by an insurance company from another insurance company as a means of transferring risk from the first company to the second company.) A juror, hearing the term “reinsurance” being bandied about at the trial, can easily conclude that this is something he or she can’t understand or make a judgment about and can thus close himself out to a lawyer’s arguments. Clearly, trial lawyers need a way to keep jurors engaged and involved when complicated financial transactions involving reinsurance are at issue in the courtroom. These cases can be worth hundreds of millions or even billions of dollars to the client. At Animators at Law, we developed a PowerPoint for a trial that helped make a specific reinsurance transaction easier to understand and that was intended to engage a jury’s interest. In this case, we wanted to show that “Washto,” a reinsurance company, had created a subsidiary into which it had placed many of its bad investments. It then transferred those bad investments to “Greek Re,” which had acquired Washto, thus saddling Greek Re with the bad investments.

Presenting securities cases to juries can involve difficult problems. Many jurors may have investments in the stock market or in mutual funds, directly or through their retirement plans, and may have some sense of how securities markets work. Some jurors, on the other hand, find all financial matters to be daunting. Furthermore, even fairly sophisticated jurors don’t have a good knowledge of accounting terms or of securities law concepts such as “causation” and “fraud,” which may have quite different shades of meaning in the law from their meanings in everyday life. Thus, it is extremely important to present securities cases, which may involve issues of insider trading, fraud, or self-dealing, in ways that a jury can understand based on their basic knowledge of how a market works and their day-to-day sense of fairness.

In a trial in which harm to the environment is at issue, the major challenge for any litigator is to present complex scientific information in a way that is easy for an average person to understand. For our litigation graphics consultants, this is true whether we are helping to represent an alleged polluter against a landowner or other person who alleges environmental damage, or whether it’s an insurance coverage case in which our client is asking an insurer to cover a claim under a business insurance policy. In many cases, the task is further complicated by the fact that environmental harm occurs over a period of years or even decades. In such situations, it is crucial to show not only how the damage occurred initially but how it became more serious, or less serious, over a period of time.

When a major company is the target of a purported class action filed by consumers who say that they are representative of a large group that have common claims against the company, the issue of class certification becomes a crucial one. The viability of the case often stands or falls on the issue of certification.

Construction cases are among the most difficult for even the most experienced litigator to present to a jury. As Gary Greenberg, a professional engineer and frequent expert witness in construction cases, has written on a construction blog, trials involving construction defects, failures to perform up to specifications, scheduling problems, and similar issues create many practical problems for trial lawyers. Greenberg notes that jurors often become lost in technical jargon, don’t understand the sequence of activities required to complete a construction project or the relationships and responsibilities of the various parties, and fail to see why every major construction project is truly unique and cannot be compared to producing widgets in a factory. Greenberg, who works for Arcadis, a well-known consulting firm, writes that in one case in which he testified, a jury found that a design professional violated the standard of care, caused a six-month delay to the opening of a new hospital wing, and was responsible for the need to rework various essential systems, but was assessed only one dollar in damages by the jury.

The passage of the Drug Price Competition and Patent Term Restoration Act in 1984 and its subsequent amendments (collectively the Hatch-Waxman Act) gave rise to more competition in the pharmaceutical industry and a new era of litigation. The act itself provides a mechanism for generic drug companies to quickly gain approval to sell a generic version of an existing brand name drug. The application that begins the FDA approval process for the generic firm is called an Abbreviated New Drug Application (ANDA). Brand name drug manufacturers have an understandable incentive to delay approval of the ANDA. Simply, if the ANDA approval is delayed, the brand name firm continues to enjoy the lawful ability to sell their brand name drug without a lower priced generic equivalent in the market. One lawful mechanism brand name manufacturers use that may have the effect of delaying the approval of an ANDA is the filing of a Citizen Petition with the FDA. The Citizen Petition filed by a brand name firm would typically allege that the proposed generic drug is not equivalent and thus should not be approved for sale. Should the Citizen Petition be deemed only a mechanism for delaying approval of the ANDA/generic drug rather than one filed with the public's health interest at heart, the brand name firm would be liable for antitrust violations. Such was the question our firm faced when working on behalf of a brand name pharmaceutical firm recently. A Citizen Petition had been filed and a jury was going to be asked whether it had been lawfully filed. Were the jury to find that the Citizen Petition had been unlawfully filed with the intent to simply delay approval of the generic drug, they could possibly award hundreds of millions of dollars in damages. One quirk in this case that proved advantageous was the fact that it was not the generic drug firm suing the brand name firm, but instead it was the middleman or drug wholesaler who was alleging antitrust violations. Our challenge in creating an effective trial presentation was to create trial exhibits that both taught the jury and persuaded the jury simultaneously. The trial exhibits shown below were part of an opening PowerPoint presentation that explained who was involved in the case (i.e. the typical parties/players trial exhibit) and who was not involved. We sought to emphasize that the brand name firm was being sued not by the generic drug manufacturer but instead the wholesaler who we painted as the delivery guys in these opening trial exhibits. The story told is this: Brand name firms seek approval for a new drug from the FDA; Brand name firms distribute their product through wholesalers who then sell them to pharmacies; Generic firms receive approval to sell through an ANDA; The brand name firm here is BrandName Pharma, generics will be mentioned and then there are the wholesalers. In this case HatchWax Wholesale Drug; One would think the generics are involved, but they are not. Only the wholesalers or the delivery guys are suing. What business do they have suing? Who is HatchWax Wholesale Drug? They are professional antitrust plaintiffs.