The Litigation Consulting Report

At Animators at Law, roughly 60% of our work involves patent litigation graphics. These patent cases run the gambit from light bulbs to software to semiconductors to drug eluting stents. Since a jury is often called upon to decide the key issues in the litigation they must understand the underlying technology. There is no substitute for well-crafted graphics in a patent jury trial involving technology. Our firm has been creating litigation graphics in intellectual property litigation since 1995 often utilizing our former patent litigators has graphics consultants. While our delivery medium is often PowerPoint, the underlying graphics or animation are usually created in a more sophisticated illustration software tool. We routinely use visual analogies as a teaching and persuasion technique. Specifically, we use analogies that relate complex subject matter to something familiar or easily grasped by the fact-finder. We have used stadiums to relate scale in a bench trial where the federal judge was a season ticket holder, the Statue of Liberty to convey the severity of the turbulence and an out of business service station to explain expenses involving the storage of nuclear waste. In the patent litigation graphic below, our challenge was to explain a protection MOSFET or metal–oxide–semiconductor field-effect transistor. In non-technical jargon, a MOSFET is a switch used to control the flow of electronic signals. We ultimately needed the jury to achieve a much deeper understanding than this definition, however, and this meant starting with a basic understanding of how a MOSFET works. In the movie, you can see that we have used PowerPoint animation and a plumbing analogy to lay the foundation for an understanding of a MOSFET, transistors and semiconductors. After all, like a valve attached to your sink, a MOSFET is simply used to control flow.

Daniel Pink's 2005 bestseller A Whole New Mind changed the way business leaders thought about the future. His futurist thinking of six years ago presciently describes the current economic transition the U.S. is facing. He also gave business strategists a vocabulary to discuss the emerging conceptual economy, and he inspired young business minds to focus less on traditional and easily outsourced MBA studies and focus more on deeper problem-solving business pursuits. Most importantly, he highlighted our firm, Animators at Law (now A2L Consulting), as an example of one of those companies already living in the conceptual economy.

After the introduction of PowerPoint 2003, PowerPoint became the dominant trial presentation tool used by litigators. It has largely replaced printed large format trial exhibit boards in most high stakes cases. However, PowerPoint also introduced a problem that deserves our attention. Instead of graphic designers creating well-designed printed trial boards, litigators and their support staff could now create exhibits on their own. Some did create great presentations, however the vast majority of trial and corporate presentations came to be dominated by the dreaded bullet point and text-heavy slides. Comedian Don McMillan covers this and other PowerPoint-related topic best: What is problematic about the bullet point and text-heavy slides in PowerPoint trial presentations is not what you might first think. Yes, bullet points almost surely lead to boredom. Sure, they are not a particularly effective technique for emphasizing key messages. Worse, as Don McMillan notes, it can be excruciating when someone reads their bullet points and text. However, worst of all is something called the redundancy effect. This scientifically validated concept is the true enemy of the effective litigator deploying legal graphics.

Fifteen years ago, I was asked to write an article for Intellectual Property Today magazine on the future of litigation technology. The O.J. Simpson trial was fresh on our minds, the use of computer animation in the courtroom was still rare, trial exhibits were not often used in litigation and the Internet was just coming to life. The question I ask you is, how well did I predict the future of litigation technology? Bull's-eye, missed-the-mark, on the right track or too soon to tell? The full text of this 1996 article is reproduced below: The Future of Litigation Technology (originally published September 1996) By Kenneth J. Lopez, J.D. President & CEO Animators at Law In Ray Bradbury's futuristic short story The Veldt, a virtual reality (VR) room has replaced the television as a device for entertainment and education. The room is capable of simulating any environment that the user desires with lifelike detail. However, like any technological tool, there is a downside to the room when it is abused. By the end of the story, the rebellious children of the house use the room to bring about the deaths of their parents by seemingly fictitious lions. Although written nearly fifty years ago, the VR room described by Bradbury may offer today's attorneys a glimpse into the future of litigation and provide some important lessons about the uses of litigation technology. Virtual reality environments are the logical outgrowth of today's high tech litigation tool, computer animation. Indeed, they are essentially real-time computer animations played in every direction of the user's vision. They give the viewer the impression that they are within a computer generated world in which they are free to move about. In sophisticated VR worlds, a user may manipulate or interact with objects in the simulated environment. For example, one could pull levers on a machine or open doors in a room. Inasmuch as today's litigators benefit from efficiency and persuasive power of computer animation, the litigators of the future will likely be able to use some form of virtual reality to help them win their cases. However, the technology will have to first grow to accommodate the formal nature of the courtroom. One cannot help but laugh at the thought of twelve jurors, a federal district judge and the litigants donning virtual reality helmets in Darth Vader-like fashion. Though it may at first sound silly, the need for this technology in the courtroom may be more urgent than one might initially think. Early in the O.J. Simpson criminal case, nineteen jurors took a $114,617 bus field trip to visit the various locations discussed throughout the subsequent trial. While police helicopters buzzed over the fourteen vehicle caravan and two hundred and fifty officers regulated traffic, court personnel attempted to shield the jury's eyes from two hundred billboards proclaiming Mr. Simpson to be either guilty or innocent. The stated purpose of the trip was to give the jury a sense of the size of the space of the crime scene and other relevant locations. However, for much less than the cost of this jury's trip, a virtual reality environment could have been constructed. In this environment, what the jury would have been able to see could have been cleansed of the shouts of bystanders, the signs of protestors and a life size O.J. Simpson statue clothed in a football uniform. The VR model could have been accurately constructed to simulate the space, the lighting and the obstacles present at the scene of the crime. Uses for this type of technology by the intellectual property litigator are limitless. For example, a virtual reality environment could be used to allow a litigator, judge or juror to manipulate sophisticated machinery or look inside and around a patented device. Possible future uses in intellectual property litigation will probably mirror today's corporate and government applications of the technology. Currently, Volvo uses virtual reality in accident simulations; Matsushita uses it to accurately simulate airflow, lighting and acoustics within a structure; architects use it to allow clients to visit a building before construction begins; the Army uses it to train soldiers and Kaiser-Permanente uses it in the treatment of patients with a fear of heights. In addition to virtual reality, the future of litigation technology is being explored in Courtroom 21 at the William & Mary School of Law. In this litigation laboratory, real-time court reporting, courtroom display systems, computer animation, video conferencing and many other litigation technologies are regularly on display. Organizations like Courtroom 21 are clear leaders in pointing a direction toward the future of litigation. Perhaps, it will be in a courtroom like this where the first virtual reality simulator is installed. It could be used not only for litigation but also as a training tool for young attorneys who wish to challenge a simulated opponent in a mock trial. An important fact to remember about virtual reality, computer animation or other litigation technologies is that they are becoming less expensive every year. What cost hundreds of thousands five years ago may today cost less than ten thousand dollars. This theme has been at the core of this series of three articles and cannot be overstated. Despite consistently positive reactions by juries to computer animation and a likely positive reaction to virtual reality, a litigator must always be careful not to intimidate the jury. All presentations should be as easy to understand as possible. Just as Bradbury teaches that an entertaining room is not a replacement for good parenting, a litigator should know that litigation technology is not a replacement for skilled legal preparation. A jury can see through and ignore the most technologically adept presentation when the underlying arguments lack sound legal foundation. Regardless, when your day comes to use virtual reality or another litigation technology, one would hope that instead of Bradbury's lions, you find that you are the shark at the top of the courtroom food chain. Contact Us for a FREE strategic consulting session and conflicts check or to make a tentative reservation for a hot-seat trial technician. originally published September 1996, Intellectual Property Today Magazine

by Ken Lopez The term information design is less than fifty years old. The use of specialty trial graphics in the courtroom started less than thirty years ago. Only very recently have the terms been used in the same sentence. That is, only recently have individual practitioners of both arts emerged. Wikipedia describes information design as "the skill and practice of preparing information so people can use it with efficiency and effectiveness. Where the data is complex or unstructured, a visual representation can express its meaning more clearly to the viewer." I would call it simply the effective and efficient presentation of information. Applied to the litigation graphics consulting industry of which I am a member, I would add the word persuasive. This is true since the job of the modern litigation graphics consultant is to persuade not merely to present information.

Whether a $5 million trial or litigation involving hundreds of billions of dollars, Persuadius (formerly A2L) almost always uses document call-out trial exhibits as part of its trial presentation. They are a time-tested and effective tool for highlighting key portions of a document in evidence. Sometimes, these call-outs are done on the fly by the Trial Director by our on-site trial technicians, and sometimes, these are created using PowerPoint. Regardless of the tool used, care should be taken to consider the most persuasive design for the point a litigator is trying to make. All too often, stock designs that highlight black text in electronic yellow highlighter or faux-torn paper tear-outs are used to emphasize key text. Sometimes, these approaches are adequate. Other times, you are missing out on a key opportunity to persuade. Persuadius (formerly A2L) was hired by The U.S. Department of Justice to produce a group of trial exhibits to defend against injury claims in a rescue helicopter landing. One key case theme required us to emphasize that it was the duty of the hospital to stop traffic rather than anyone on the helicopter or at air traffic control. We arranged the key call-out language inside a stop sign shape to make this point. When combined with emphasis by the litigator, I believe the message of "STOP" was unforgettable. Articles related to practice, trial preparation and trial presentation that you may also like include:

Animators at Law spent three years studying how attorneys and the general public prefer to communicate and learn (visual, auditory or kinesthetic). The study results were surprising. It turns out that practicing attorneys and the general public actually prefer to learn and communicate differently. For litigators, the impact is enormous. As a result of this scientifically valid study and our 16 years of experience as an industry pioneer, we believe trial exhibits are essentially a requirement and not an mere communication enhancement for any high-stakes litigation. You can download the FREE study results here or by clicking the button below. In this study you will learn:

Animators at Law is now offering flat-fee pricing for both demonstrative evidence consulting services AND trial technician/courtroom hot-seat consulting services. Animators at Law pioneered flat-fee arrangements for trial graphics consulting in 2009. Now, this popular pricing model is offered coast-to-coast for trial technician/hot-seat services. Gone forever are the days of unpredictable trial technician invoices and uncomfortable conversations between inside and outside counsel. With this flat-fee pricing model, Animators at Law clients are now enjoying:

Below is an article authored by a Senior Litigation Graphics Consultant at A2L Consulting. It is set for publication in PLI's Trial by Jury book. I think it does a great job of introducing the challenge of balancing color choice and culture in trial graphics. ******** Color Choice, Culture and Demonstrative Evidence -Theresa D’Amico Villanueva, Esq. About the Author:Theresa D’Amico Villanueva is a Senior Litigation Consultant for A2L Consulting, an attorney owned and operated provider of litigation consulting, graphics and courtroom animations, and litigation technology for litigators from all of the world’s largest law firms. Prior to her tenure as a litigation consultant, Ms. Villanueva worked as an attorney focusing on discovery for MDL and international products liability and toxic tort matters, and as in-house counsel handling title insurance claims, settlements and compliance with multi-state regulations. Ms. Villanueva holds a B.S. in Textiles and Apparel Merchandising and Design, with a business minor from West Virginia University. She received her Juris Doctor from Capital University Law School, where she was awarded Order of the Barrister. She is a member of the Pennsylvania Bar. For further information, please contact Ms. Villanueva at 800.337.7697 x 115 or via email at: villanueva@A2LC.com Introduction It is long established that the use of visuals and technology in the courtroom increases understanding and retention. There are many attorneys across the country who will not even consider going to trial without being armed with creative and intuitive demonstrative exhibits to persuade and educate the jury. Color is a fundamental component of creating and developing trial graphics. Many litigators, however, still use conventional color schemes in their demonstratives. Their reluctance to change is likely because at some point the conventional wisdom became using a blue background with yellow text. Although this color scheme does work, it is no longer enough. Like an antibiotic, if it is overused, it loses its effectiveness. Similarly, this color scheme has lost its impact. As jury pools diversify, and as jurors become more sophisticated, they expect more from us. In turn, we need to become more creative if we intend to persuade our audience. We need to make our graphics relevant to those whom we are trying to persuade. We must truly consider our audience, who they are, where they live, and the environmental and cultural factors that influence their behavior, attitudes, and perceptions. Color is powerful. Studies show that color can evoke certain emotional responses: it can increase learning, grab our attention, and increase perception and focus. The right color choice, used in the right way, can influence and tilt the case in your favor. The Audience Many label Edward Tufte as the “Galileo of Graphics” and the “Leonardo da Vinci of Data.” His writings on graphics and presenting are among—if not the—most prominent of our day in regard to communicating visually to an audience. While his works do not directly relate to courtroom presentation, his ideas and theory of how to appeal to an audience are highly regarded; the underlying theme of his ideas is directly applicable to litigation presentations. According to Tufte, “The most important rule of speaking is to respect your audience.” This is certainly true when addressing a jury. Tufte argues that advocates should communicate with an audience in a clear and organized way: “Presentations largely stand or fall on the quality, relevance, and integrity of the content.” Organizing a case’s information and specifics in a clear way is not always an easy task. Furthermore, advocates also face the challenge of communicating in a way that will entice and intrigue our audience so as to keep their attention. There is a limited amount of time that we have the undivided attention of the jurors to present the facts. We need to use that time wisely and in a way that will keep the attention of our audience. Jurors today have high expectations when walking into a courtroom. Despite a jury’s expectation of technology and graphics to keep their attention, cluttering the screen with colorful—but ultimately not meaningful—graphics will likely alienate the jury. Whether verbal or visual, useless information is more likely to disengage the audience than it is to draw them in. In fact, too much information can detract from the message at hand. Once you have lost the attention of the jury, it is difficult to regain it; vital information is lost. Tufte advocates a direct presentation where the visuals supplement, rather than dominate, the presentation. Bright and even animated words on the page are not automatically relevant. Rather, a presentation is persuasive when it contains succinct and understandable arguments backed by the demonstratives that accompany the presentation. Thus, the colors and content of the visuals that you choose to represent your themes and case facts are an important factor in the development of your graphic exhibits. The use of technology and demonstratives in the courtroom is not only an integral part of a litigator’s arsenal of support, but also expected by most jurors. The modern fact finder expects much from the trial team when they walk into the jury box. We can attribute this in part to the ability of demonstratives to help the jurors understand the specifics of the case. This is also due to the ever growing use of technology in today’s television shows and their portrayal of the legal process. Television shows like Bones, C.S.I., and Law & Order give prospective jurors the impression that the intuitive officer easily solves a case with fancy technology and insightful comments. On television, viewers watch attorneys recreate the scene with computer images and simulations at trial. While these shows may depict more of the criminal legal process than the civil side of litigation, the expectation of drama and glamour in the courtroom remains. Thus, the legal profession faces the challenge of reaching its audience—the fact finders—in a way that will meet their expectations, hold their attention, and speak to the person as an individual. Jurors have high expectations. The use of graphics and technology has evolved such that we need to look for new and innovative ways to reach jurors. We know that repetition via auditory and visual techniques increases retention and comprehension. We are both visual and auditory learners. Studies show that jurors retain more information when they see and hear the evidence. One particularly well-known study—the Weiss-McGrath report—found "a one-hundred percent increase in juror retention of visual over oral presentations and a six-hundred percent increase in juror retention of combined visual and oral presentations over oral presentations alone." The report also showed that subjects who only heard information had a seventy percent retention rate after three hours and only a ten percent retention rate after 72 hours. Likewise, in subjects who only saw information there was a 72 percent retention rate after three hours and a twenty percent retention rate after 72 hours. However, when you compare these results to the results of the subjects who both saw and heard the same information, there was an 85 percent retention rate after three hours and a 65 retention rate after 72 hours. Retention is good. We want our jurors to remember our argument, and deliberate over our words. We also want to be able to reach the fact finder on a deeper subconscious level that melds with their understanding and perceptions in a way that persuades them to reach the conclusion we are seeking through our presentation. Color is an effective avenue for achieving this level of understanding.