In Part 1 of this article, we discussed how to use litigation consultants to win a case when there are no budget constraints. Here in Part 2, we tackle the opposite end of the budget spectrum: how to best use litigation consultants when budget is severely constrained. The good news is that in any case that has more than $1 million at stake or is a possible example of pattern litigation, there is a litigation consulting strategy that can fit the budget and deliver high value, regardless of budget. While every case has different needs, and there is a big difference between bench and jury trials, here is a prescription for utilizing litigation consultants in a tight budget. The primary cost difference between a small litigation budget and a large litigation budget will be the amount of time spent on testing and varying strategic approaches to the case. In a tight budget scenario, rather than relying on feedback from mock jurors and judges to help guide which themes to emphasize and the best ways to explain elements of the case, you will likely have to rely heavily on gut instinct. Of course, that is not always a bad thing.
These days, only a very few cases can be said to have an unlimited litigation budget, but some still do. As the amount at stake in toxic tort, technology patent and product liability cases soars into the billions of dollars, we do hear from clients that they must win at all costs. Indeed, at A2L Consulting, it is common for us to work on multi-billion dollar disputes. Thus far in 2012, we have already consulted on cases with over $30 billion at stake. In this two-part series, we share the menu of options available to a law firm and its client in situations at the opposite ends of the litigation consulting budget spectrum. What is possible when budget is not an issue, and what is possible when budget is severely constrained? By far the biggest difference between unlimited budget cases and limited budget cases is the amount of time that can be devoted to the discussion and testing of alternative strategies. There are three key areas of trial and pre-trial work: trial consulting, litigation graphics and courtroom technology support. A high-budget case can involve several trial consultants, a dozen or more artists, hundreds of demonstrative exhibits, several mock trials, months of work and an overall onsite litigation consulting and trial technology team with between four and 12 people.
At A2L, we have the privilege of working with experts in many diverse and highly technical fields, such as software patents, polymer patents, semiconductor patents, medical device design, environmental remediation, construction, financial disclosure, economic damages, transportation safety, corporate management and many more.
by Ryan H. Flax, Esq. (Former) Managing Director, Litigation Consulting A2L Consulting Ryan Flax joins A2L Consulting on the heels of practicing Intellectual Property (IP) law as part of the Intellectual Property team at Dickstein Shapiro LLP, a national law firm based in Washington, DC. Over the course of his career, Ryan has obtained jury verdicts totaling well over $1 billion in damages on behalf of his clients and has helped clients navigate the turbulent waters of their competitors’ patents. He has leveraged his significant experience in cases related to a wide array of technologies, including medical devices and systems, semiconductors, biotechnology, chemical engineering, mechanical engineering, software, and more. Most recently, Ryan was part of the Dickstein Shapiro team that brought 2011’s largest patent verdict totaling (so far) close to $600 million, which is also the 6th largest patent verdict in history (Bruce Saffran, MD, Ph.D. v. Johnson & Johnson et al.). It was during this experience that Ryan realized the excellent fit between his considerable expertise and skill sets as a patent law specialist, and his penchant for designing highly effective trial presentation materials through his collaboration with A2L Consulting. Ryan made the move to A2L Consulting to become A2L’s Managing Director, Litigation Consulting. Ryan earned his Bachelor of Science degree in Biology from Wake Forest University and his Juris Doctor degree from Southern Methodist University Dedman School of Law. Between his undergraduate studies and law school, Ryan was a Laboratory Scientist conducting DNA research at the R.J. Reynolds Tobacco Company.
There is an old expression that a camel is a horse designed by committee.
Whenever a litigation team presents a document in a graphic way to the jury or other fact-finder at trial, there is an occasion for a document call-out. A “document call-out” is a term of art that means taking a document that is in evidence at trial and highlighting some key portion of it for easy reading and to draw the viewer's attention to the key language.
We have previously discussed how valuable timelines used as legal graphics can be in the presentation of facts at trial. As we have noted, most cases involve the placing of events along some sort of time sequence, and timelines, if they are well designed, can give jurors a straightforward introduction to the facts of a case. In fact, we recently released an e-book describing best practices for the use of timelines and legal graphics at trial.
Indata's Trial Director has become the dominant trial presentation specialty software, second only to PowerPoint in courtroom use. It is a powerful tool that is available to trial lawyers and to litigation consultants and represents the state of the art.
A recent study about the best use of litigation graphics during trial reveals some new insights. This study was conducted by Persuasion Strategies, a litigation consulting firm that is part of Holland & Hart, a law firm. The study team was led by Ken Broda-Bahm, a leader in the art of visual presentation in the courtroom. With a doctorate in speech communication that emphasizes rhetoric and legal communication, Dr. Broda-Bahm is a genuine expert in jury consulting.
by Ken Lopez The task of a trial lawyer is to convince a judge or jury to believe in the truth of a client’s case. However, in many complex trials, the underlying facts are not as easily understood by the fact-finder as they would be in, say, a murder case or a traffic accident. A case, especially the type of litigation that we are involved in, often turns on complex issues of science, medicine, engineering, or some other subject that jurors and many judges are not well versed in.
In most trial presentations, the trial timeline is often the single most critical demonstrative exhibit used at trial. Much like an effective opening statement, the trial timeline: Orients the viewer; Provides a framework around which facts can be organized; Allows for easy comparison of events occurring in sequence or simultaneously; Builds trust and credibility by sharing a believable story; and even persuades when built correctly.
We often hear from clients or prospective clients that it won’t help them if they look like a big company that is attempting to overwhelm or dazzle its opponents with technology. Jurors won’t buy that sort of stuff, we are told, even from a litigant that is actually a large company.
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.
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