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.
Because maps are used by jurors constantly in their daily life and because they are so frequently used to represent common locations and processes, they are one of the most frequently used and most effective types of demonstrative evidence. Whenever something can be conveyed geographically, through the use of space, it is worth considering the use of a map. Even though maps don’t always represent the highest and newest technology, their importance cannot be underestimated. In the words of Ray Moses of the Center for Criminal Justice Advocacy, which was formed in Texas as a grass-roots training resource to help new lawyers in becoming competent criminal trial practitioners: “Visuals (graphics) such as time lines, charts, illustrations, maps, etc. are sufficiently important to communicating your message that you owe it to your client and yourself to learn how to incorporate visuals into your presentation.”
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.
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:
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.
One type of litigation consulting that is underused is the planning and conducting of a mock trial. A good litigation consultant can put together a mock trial that is every bit as real in appearance and challenges the litigation team as much as an actual trial.
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.”
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