by Ryan H. Flax (Former) 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.
Ryan Flax
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by Ryan H. Flax (Former) 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.”
by Ryan H. Flax, Esq. (Former) Managing Director, Litigation Consulting A2L Consulting It is well known and generally accepted by the top performers in the litigation community that you need to use demonstrative evidence, including litigation graphics, to be persuasive at trial. As a scientific certainty, using visual support to back up your key points and arguments is critical to maximizing persuasiveness. As a litigator, I’ve personally created and used graphics, and developed litigation graphics for others, to use at trial, at Markman (patent claim construction) hearings, and for other presentations. As a litigation consultant, I’ve seen countless terrific litigators both understand that they do need graphics and at the same time misunderstand how they should be using litigation graphics in these and similar settings.
by Ryan H. Flax, Esq. (Former) Managing Director, Litigation Consulting A2L Consulting A2L has a wonderful partnership with Courtroom View Network (cvn.com), which is a warehouse of video footage of courtroom presentations of all kinds and should be a valued resource for attorneys and law school students wishing to educate themselves on the “to-dos” and “not-to-dos” of litigation argument. I have been browsing the intellectual property video footage at cvn.com and wanted to provide you two examples of different presentation styles in patent litigations: one using no graphics and one using graphics. I compare and contrast these presentations below.
by Ryan H. Flax, Esq. (Former) Managing Director, Litigation Consulting A2L Consulting
by Ryan H. Flax, Esq. (Former) Managing Director, Litigation Consulting A2L Consulting
Ryan H. Flax (Former) Managing Director, Litigation Consulting A2L Consulting
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