by Ken Lopez In the courtroom, the attorney who has the best chance of winning a case is generally the one who is the best storyteller. The trial lawyer who makes the audience care, who is believable, who most clearly explains the case, who develops compelling narrative and who communicates the facts in the most memorable way builds trust and credibility.
Pharmaceutical companies can be embroiled in many types of litigation. Very often, because of the length of time and the tremendous investment of money that it takes to develop a new drug and bring it to market, these cases can be crucial to the company’s continuing financial health.
Litigation involving architecture usually involves some failure in the construction process, a dispute over lease terms like sight lines or common areas, an insurance claim involving an allegedly negligent design, or the responsibility for a building damaged in a natural disaster. Since most jurors are familiar with architecture to some degree, what usually has to be explained is the legal meaning of seemingly everyday terms, the process of design and construction, or the common customs of the architectural and construction businesses. That's where legal graphics often enter the picture.
White-collar criminal litigation is one area in which practitioners have not been as quick to adopt the use of litigation graphics as in other litigation areas such as intellectual property, environmental litigation, or products liability.
Because of the continuing high value to society of minerals that are mined from the earth, mining litigation, when it occurs, often involves very high stakes. This is all the more true in our high-tech era, in which a wide variety of minerals have found new, very valuable uses in cutting-edge scientific and industrial applications.
Expert witnesses can be an extremely valuable portion of your case. If they are well-prepared, convincing and convey a clear, uncomplicated message to the jury, their testimony can lead directly to a verdict in your favor. If they are unconvincing and don’t communicate well, they are at best useless and at worst damaging to the case. The essential problem is that expert witnesses – whether they are testifying on engineering, scientific, financial, or other issues – tend to be very intelligent and knowledgeable. At the same time, however, they are prone to using terms that are well above the jury’s experience and educational levels and thus these experts are prone to be dismissed by some jurors as ivory-tower types who have nothing useful to say. We believe our firm plays several important roles helping expert witnesses get prepped for trial. Since our goal is winning by telling a clear and convincing story, the value of expert testimony must be maximized in each case. Expert witnesses are an essential piece of the litigation persuasion puzzle. Here are our seven tips for preparing expert witnesses and expert testimony to the best effect possible:
by Ken Lopez Trials are structured in familar segments – opening statements, direct examination, cross-examination and closing arguments. Of those events, I believe that opening statements deserve more emphasis than any other portion of the case.
Trademark cases are one type of case that lends itself well to the use of graphics. That may seem obvious since in most such cases, the object under dispute is a trademark – something that is itself often an item of graphic design, or at the very least a word or phrase that is easy to visualize. So one would expect that courtroom visuals would help jurors a great deal in trademark cases.
U.S. district court judges often lack the scientific or engineering background to fully understand the issues in highly technical patent cases without outside assistance. And ever since the Supreme Court’s Markman ruling in 1996 finding that claim construction – the interpretation of the words of a patent claim – is a task given over to the judge, it has been more important than ever for judges to get a solid working knowledge of the subject matter of a case. Judges now routinely convene so-called Markman hearings, also known as claim construction hearings, before trial to help them in their task of claim construction, which is at the core of many patent disputes. Many patent lawyers say the Markman hearing has become second in importance only to the trial itself. In a Markman hearing, judges must resolve all the disputes about the interpretation of a patent and must construe the claims for trial. The Markman hearing is therefore a key opportunity for both parties to guide the judge through the thicket of the evidence and to help him or her understand the case.
Discovery disputes have always been a staple of litigation. And now that electronic discovery has pretty much supplanted the old-fashioned discovery of paper documents, the disputes have only become more complicated and more bitter. As a result, our firm is increasingly called upon to create courtroom presentations for discovery dispute hearings. In the past ten years, e-discovery consulting firms have come to dominate the litigation support field, providing their expertise in a rapidly changing and highly technical field. That is not the only new development in this field. First, many law firms that are representing clients in document-heavy pieces of litigation have begun to hire “discovery counsel,” law firms that specialize in discovery alone and don’t promote their expertise in other areas of law. One such firm says on its website that it devotes “all of our resources to the successful execution of document collections, reviews, and productions.”
The choice of a trial graphics firm is one of the most important decisions that a trial lawyer can make. Since experts widely agree that about two-thirds of jurors and many judges prefer to learn visually, it can literally make the difference between winning and losing your case. However, many lawyers still use the wrong approach to the selection of a trial graphics consultant. For example, they may choose a provider based on familiarity (“I know someone who does graphics . . .”), price (“the client has a tight budget . . . “), or proximity (“they’re right around the corner . . . “). There are better ways to choose a consultant. Think of hiring a trial graphics provider as similar to the hiring of an expert witness. If you are hiring an expert witness, you are delegating a portion of the case to someone who has specialized knowledge and experience that you may not. You would hire an electrical engineering expert witness to discuss the workings of a patented device. Similarly, you should hire a trial graphics provider, who is an expert in the field of information design, to create effective trial graphics for your case.
by Ken Lopez As litigation consultants, jury consultants, trial technology consultants and litigation graphics consultants, we have the opportunity to share our decades of experience in over 10,000 cases, working with litigators from all major law firms, with our litigation clients every day. Clearly, this is a valuable service, and I believe great litigators become better litigators for having worked with our firm.
One of the most important jobs of the trial lawyer and of the litigation consultant is to make highly complex and technical issues understandable to the average juror who does not have a scientific, engineering or technical background. In technology cases, especially patent cases, using demonstrative evidence is normally a good tactic. Here's why. The trial lawyer has spent months or probably years delving into every aspect of the case, and by the time it gets to trial, even the most arcane subjects can appear simple to him or her. Of course, that doesn’t mean they are easily understood by the general population of which the men and women in the jury box are a representative sample. Think of the challenge as needing to explain a complicated subject to a kid or to your grandparent; it takes creativity (and visual presentations - e.g. demonstrative evidence) to make the concept digestible to all audiences.
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