Part 2 of 2 ( go to part 1) I will begin by reiterating key elements of the first post in this this two part series. More than 20 years ago, the Justice Department began filing lawsuits against a large number of coal fired power plants based on a Clean Air Act provision called New Source Review (NSR). The NSR process calls on power plant operators to seek EPA review and approval before making modifications to their power plant that would significantly increase emissions. An exception exists routine maintenance. Since Congress neglected to define routine and significant, litigation has followed over these definitions. Animators at Law has worked on many of these cases and created trial graphics and legal animations. I want to share portions of a 13-minute animation used in the opening of an NSR bench trial in 2003. We worked on behalf of the power plant owner in this matter. We faced multiple challenges such as: conveying the scale of the plant; explaining the plant's operation; showing how the projects in question were not large; showing how these projects were in fact routine maintenance; showing how none of the projects increased emissions. After the Justice Department opened its case with an animation that compared the size of parts changed during routine maintenance to elephants, houses and semi-trucks, we had to make the point that while large parts were changed, they are relatively small in the context of such a large facility. With billions of dollars at stake, Animators at Law prepared a large number of trial boards and legal animations for the case. In part one of this post, I shared how Animators at Law compared the size of the facility to Busch Stadium using legal animations. Below is an example of how we combined technical illustration with a legal animation overlay to provide an overview of the plant, to explain how the plant worked and to again emphasize scale. Below is a trial exhibit used in an NSR trial that effectively compared the routine maintenance of the bridge to the routine maintenance at a coal fired power plant. We think it was a very effective analogy and a leading environmental publication agreed and remarked on its use. Below is another legal animation showing some highly skilled 3-D modeling and animation used in another New Source Review Case. The 3-D model was used in other legal animations and graphics to explain the unique geography of the plant.
Part 1 of 2 (go to part 2) In the 1990's the DOJ/EPA initiated litigation against a large number of coal-fired power plants based on the New Source Review (NSR) process under the Clean Air Act. Among other things, the NSR process requires operators of coal-fired power plants to seek EPA review and approval to make modifications to their plant that would increase emissions. Exceptions exist for routine maintenance at the plant and any emission increase must also be significant. Unfortunately, Congress neglected to define routine and significant. Animators at Law has been called upon to create legal animations and other information design focused trial graphics in a number of these cases. These cases typically have billions of dollars at stake, and the more EPA-friendly the current presidential administration, the more cases get filed. In this two-part post, I want to share portions of a 13-minute animation created for use in opening in one of these NSR bench trials. We worked on behalf of the power plant operator in this matter, and we faced a Government trial team who came armed with their own legal animation. Throughout the history of NSR cases, the Government has taken the position that any big change at the plant requires EPA approval. This includes large parts that are changed routinely. It turns out, however, that most parts in a plant this size are large, and the government argues that by maintaining the plant, one is extending its operating life thus increasing emissions. The Government opened its case with an animation that compared the size of parts changed during routine maintenance to elephants, houses and semi-trucks. Our challenge was to make the point that while large parts were changed, they are relatively small in the context of such a large facility. We knew two things that were helpful in this bench trial. First, the government was comparing our parts to semi-trucks. Second, the judge was known to visit the old Busch Stadium where the St. Louis Cardinals played and where semi-trucks were often parked outside. The message delivered by the clip below in opening was: yes, we changed big parts, but everything at our plant is big, thus we must ask, big compared to what? Is a semi-truck really that big compared to not one Busch Stadium but twenty? I think this legal animation reflects a good use of information design to convey scale when billions of dollars where at stake.
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.
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
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