by Ken Lopez Quite often, the subject matter at issue in a major trial is very complex and technical and is not intuitively obvious for a jury composed of laypersons, or even a judge, to understand. In fact, that’s why trial consulting companies like us emerged in the early 1990s – to help lawyers explain in a clear visual manner what’s at stake in a case, so that judges and jurors will be able to understand the facts and make a well reasoned decision. As a Texas trial lawyer has written, “The typical jury has a 14th-grade education, a 12th-grade comprehension level, and a 9th grade attention span. The implications of this are important in presenting scientific or technical information to a jury. For one thing, it means you cannot assume the jury will have any pre-existing knowledge or understanding of the information you are trying to convey, particularly if it involves a scientific or technical matter.” In cases involving product liability, patents, the environment, antitrust, and other areas of law, courtroom presentations ranging from the most basic photograph or chart to the most complex computer-generated presentation have been a staple for sophisticated litigators for decades.

Litigation graphics can be especially useful in aviation cases. Nearly every juror has been an airline passenger at some point, and jurors know that while most flights are uneventful, mistakes committed by airline employees or others can result in serious injury or death. A good trial exhibit will illustrate exactly what happened on the flight and will properly evoke people’s concerns about flying, without being improperly inflammatory. For example, in two high-profile airline trials in the 1990s, using only the technology that was available at that time, we produced highly persuasive trial animations and other litigation graphics.

Presenting securities cases to juries can involve difficult problems. Many jurors may have investments in the stock market or in mutual funds, directly or through their retirement plans, and may have some sense of how securities markets work. Some jurors, on the other hand, find all financial matters to be daunting. Furthermore, even fairly sophisticated jurors don’t have a good knowledge of accounting terms or of securities law concepts such as “causation” and “fraud,” which may have quite different shades of meaning in the law from their meanings in everyday life. Thus, it is extremely important to present securities cases, which may involve issues of insider trading, fraud, or self-dealing, in ways that a jury can understand based on their basic knowledge of how a market works and their day-to-day sense of fairness.

In a trial in which harm to the environment is at issue, the major challenge for any litigator is to present complex scientific information in a way that is easy for an average person to understand. For our litigation graphics consultants, this is true whether we are helping to represent an alleged polluter against a landowner or other person who alleges environmental damage, or whether it’s an insurance coverage case in which our client is asking an insurer to cover a claim under a business insurance policy. In many cases, the task is further complicated by the fact that environmental harm occurs over a period of years or even decades. In such situations, it is crucial to show not only how the damage occurred initially but how it became more serious, or less serious, over a period of time.

When a major company is the target of a purported class action filed by consumers who say that they are representative of a large group that have common claims against the company, the issue of class certification becomes a crucial one. The viability of the case often stands or falls on the issue of certification.

Construction cases are among the most difficult for even the most experienced litigator to present to a jury. As Gary Greenberg, a professional engineer and frequent expert witness in construction cases, has written on a construction blog, trials involving construction defects, failures to perform up to specifications, scheduling problems, and similar issues create many practical problems for trial lawyers. Greenberg notes that jurors often become lost in technical jargon, don’t understand the sequence of activities required to complete a construction project or the relationships and responsibilities of the various parties, and fail to see why every major construction project is truly unique and cannot be compared to producing widgets in a factory. Greenberg, who works for Arcadis, a well-known consulting firm, writes that in one case in which he testified, a jury found that a design professional violated the standard of care, caused a six-month delay to the opening of a new hospital wing, and was responsible for the need to rework various essential systems, but was assessed only one dollar in damages by the jury.

The passage of the Drug Price Competition and Patent Term Restoration Act in 1984 and its subsequent amendments (collectively the Hatch-Waxman Act) gave rise to more competition in the pharmaceutical industry and a new era of litigation. The act itself provides a mechanism for generic drug companies to quickly gain approval to sell a generic version of an existing brand name drug. The application that begins the FDA approval process for the generic firm is called an Abbreviated New Drug Application (ANDA). Brand name drug manufacturers have an understandable incentive to delay approval of the ANDA. Simply, if the ANDA approval is delayed, the brand name firm continues to enjoy the lawful ability to sell their brand name drug without a lower priced generic equivalent in the market. One lawful mechanism brand name manufacturers use that may have the effect of delaying the approval of an ANDA is the filing of a Citizen Petition with the FDA. The Citizen Petition filed by a brand name firm would typically allege that the proposed generic drug is not equivalent and thus should not be approved for sale. Should the Citizen Petition be deemed only a mechanism for delaying approval of the ANDA/generic drug rather than one filed with the public's health interest at heart, the brand name firm would be liable for antitrust violations. Such was the question our firm faced when working on behalf of a brand name pharmaceutical firm recently. A Citizen Petition had been filed and a jury was going to be asked whether it had been lawfully filed. Were the jury to find that the Citizen Petition had been unlawfully filed with the intent to simply delay approval of the generic drug, they could possibly award hundreds of millions of dollars in damages. One quirk in this case that proved advantageous was the fact that it was not the generic drug firm suing the brand name firm, but instead it was the middleman or drug wholesaler who was alleging antitrust violations. Our challenge in creating an effective trial presentation was to create trial exhibits that both taught the jury and persuaded the jury simultaneously. The trial exhibits shown below were part of an opening PowerPoint presentation that explained who was involved in the case (i.e. the typical parties/players trial exhibit) and who was not involved. We sought to emphasize that the brand name firm was being sued not by the generic drug manufacturer but instead the wholesaler who we painted as the delivery guys in these opening trial exhibits. The story told is this: Brand name firms seek approval for a new drug from the FDA; Brand name firms distribute their product through wholesalers who then sell them to pharmacies; Generic firms receive approval to sell through an ANDA; The brand name firm here is BrandName Pharma, generics will be mentioned and then there are the wholesalers. In this case HatchWax Wholesale Drug; One would think the generics are involved, but they are not. Only the wholesalers or the delivery guys are suing. What business do they have suing? Who is HatchWax Wholesale Drug? They are professional antitrust plaintiffs.

Still think PowerPoint is a trial presentation tool primarily for bullet points and text? Allow me to show you otherwise! Like a good salad, PowerPoint is all about the ingredients you put into it. Bad ingredients (e.g. text only, bullet points, clip art, poor color choice, etc.) equal bad PowerPoint trial graphics. Good ingredients (e.g. technical illustration, well-designed backgrounds, quality transitions between slides, animation, etc.) equal winning trial graphics. Since the introduction of the 2003 version, PowerPoint has been a go-to tool for patent litigators in claim construction hearings, tutorials, at the ITC and in patent infringement trials. Out of the box, PowerPoint is simply a blank canvas that allows text, clip art and basic shapes to be combined on a slide. However, in the hands of an information designer at a trial consulting firm, it is a powerful tool indeed. Like a master painter with high quality paints, skill and experience, the blank canvas of PowerPoint can be filled with true works of information art in the hands of a skilled information designer. The movie below contains four examples of patent infringement trial graphics created by Animators at Law. Three of the four examples were created for jury trials or Markman hearings. One example was built for a §337 ITC hearing. All examples combine technical illustration and PowerPoint animation in a clever way. The examples are: