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:
I have had the great pleasure of working closely with hundreds of world's best litigators since 1995. One common theme they communicate is that they see simplifying their case, prior to walking into the courtroom, as part of their job. Today, I am writing to share about a 'new' tool designed quite precisely for this purpose. The new tool is a modern software version of a decades-old technique modeled on centuries-old principles. In general this tool facilitates the visualization of complex and interrelated ideas. Specifically, I am talking about a process called mind mapping. Mind mapping is a 60s-era-sounding term for an activity that seems, at first glance, like it must have certainly been born on the left-coast. In a sense, both of those things are true. It was in fact developed in the era between the 50s and 70s, and it was born on a left coast of sorts. However, this 'left coast' is really the western suburbs of London. Regardless of mind mapping's nonconformist origins, I believe it has a place in the toolkit of the modern litigator. After all, many thought-leading litigation trends were born in California or places like it (e.g. demonstrative evidence, jury research, courtroom animation, etc.). A small version of a 30 inch x 90 inch litigation mind map is shown below. I encourage you to download a full-sized .pdf version of the actual chart to get a feel for how it is laid out. This sample mind map is based on a group of cases where we have used mind mapping as a system for quickly understanding a complex case in a short period of time, brainstorming a trial presentation approach and laying out specific exhibits. In this chart, green circles represent likely demonstrative exhibits, red boxes represent problems with our case that require additional strategic attention and the yellow boxes contain the background information on the case, trial team and strategy. The same approach we take for trial graphics development can easily be taken by a trial team organizing a complex case with many experts, theories and potential trial strategies. In addition to the obvious organizational benefits, the beauty of using this approach is just how easily one can pick up where one left off. I have gone a month or more between deeply complicated meetings and been able to start precisely where we left off without spending time trying to re-teach the team everything that was discussed weeks or months before. This is one of those benefits that I think one has to experience to believe. While litigation-specific tools do exist that offer a some of the features in today's mind mapping software, I prefer using a flexible tool that works very well. I have used two products: 1) Tony Buzan's iMindMap (he is considered the father of modern mind mapping); and 2) Mindjet's MindManager. I prefer the latter, as I find it to be a bit more business-oriented. When working with our firm on trial presentation strategy, we will likely be using mind mapping either internally or overtly. However, we are interested in testing this approach with a trial team at the front-end of a case rather than within the time period we are more typically consulting with the trial team (6 months prior to trial). If you would be interested in testing this technique with your trial team, we are willing to do so gratis for a limited number of trial teams working complicated cases with at least $10 million at stake. The output will be a wall chart for your team that you can refer to on an ongoing basis.
The world is watching in shock as a nuclear drama unfolds in northeastern Japan. In only a few days, most of us have somehow come to accept that there are degrees of a nuclear meltdown and that explosions at a nuclear power plant may not always point to a cataclysmic outcome. A week ago, those beliefs would have been unthinkable. Then, nuclear power was a binary condition: it was either safe, clean and efficient, or it was Chernobyl, with no in between. Even in the safest of times, generating power through nuclear energy presents major challenges. One of the key challenges is handling the inevitable nuclear waste, primarily spent nuclear fuel. After conducting extensive studies in the late 1970s and early 1980s, the U.S. Government thought it had found an answer. In 1983, the U.S. Government contracted with operators of nuclear power plants to begin picking up nuclear waste starting in 1998 and storing it in a central facility. The U.S. Government had then agreed to become the primary shipping and storage mechanism for the nuclear power industry. The plan was to store nuclear waste at the now defunct Yucca Mountain storage facility located about 100 miles from Las Vegas. Ultimately, fears of geologic instability at the site combined with election-year politics doomed the project. So, instead of one underground facility located on the site where 904 atomic bomb tests have already been conducted, America is left with more than 100 storage sites around the country where nuclear waste is stored in pools or barrels. When the U.S. Government breached their agreement to pick up the nuclear waste, operators of nuclear power plants sued. In this line of cases, the question is not whether a breach has occurred, but rather how much it will cost the facility to store the waste if that is even possible. Animators at Law has been involved in quite a number of these spent fuel cases typically heard in the U.S. Court of Federal Claims. Below are some litigation graphics from these cases. The animation below shows the removal of a reactor pressure vessel. When a plant must be closed due to age or due to an inability to store more waste, the reactor pressure vessel may be removed. The boiling water reactors at Japan's Fukushima nuclear power plant use a similar reactor pressure vessel. Originally created in PowerPoint using dozens of technical illustrations played in succession, this litigation animation shows two methods of removing the reactor pressure vessel that contains the plant's nuclear core. The trial exhibits below are shown as a screen capture of some PowerPoint litigation graphics. These trial exhibits analogize the problem an automobile service station would have if its used oil collection stopped to the spent nuclear fuel storage problem faced by nuclear power plant operators. Further, it helps make the case that costs do not stop with storage (as the U.S. Government contends) but also include indirect and overhead costs related to storage (e.g. security, accounting and management). Animators at Law has helped its clients recover hundreds of millions of dollars in spent nuclear fuel litigation cases, and effective litigation graphics have been key to this success. For more on how nuclear power works: http://en.wikipedia.org/wiki/Nuclear_Power To learn more about the crisis in Japan or to make a donation: http://www.google.com/crisisresponse/japanquake2011.html
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.
After the introduction of PowerPoint 2003, PowerPoint became the dominant trial presentation tool used by litigators. It has largely replaced printed large format trial exhibit boards in most high stakes cases. However, PowerPoint also introduced a problem that deserves our attention. Instead of graphic designers creating well-designed printed trial boards, litigators and their support staff could now create exhibits on their own. Some did create great presentations, however the vast majority of trial and corporate presentations came to be dominated by the dreaded bullet point and text-heavy slides. Comedian Don McMillan covers this and other PowerPoint-related topic best: What is problematic about the bullet point and text-heavy slides in PowerPoint trial presentations is not what you might first think. Yes, bullet points almost surely lead to boredom. Sure, they are not a particularly effective technique for emphasizing key messages. Worse, as Don McMillan notes, it can be excruciating when someone reads their bullet points and text. However, worst of all is something called the redundancy effect. This scientifically validated concept is the true enemy of the effective litigator deploying legal graphics.
by Ken Lopez The term information design is less than fifty years old. The use of specialty trial graphics in the courtroom started less than thirty years ago. Only very recently have the terms been used in the same sentence. That is, only recently have individual practitioners of both arts emerged. Wikipedia describes information design as "the skill and practice of preparing information so people can use it with efficiency and effectiveness. Where the data is complex or unstructured, a visual representation can express its meaning more clearly to the viewer." I would call it simply the effective and efficient presentation of information. Applied to the litigation graphics consulting industry of which I am a member, I would add the word persuasive. This is true since the job of the modern litigation graphics consultant is to persuade not merely to present information.
Whether a $5 million trial or litigation involving hundreds of billions of dollars, Persuadius (formerly A2L) almost always uses document call-out trial exhibits as part of its trial presentation. They are a time-tested and effective tool for highlighting key portions of a document in evidence. Sometimes, these call-outs are done on the fly by the Trial Director by our on-site trial technicians, and sometimes, these are created using PowerPoint. Regardless of the tool used, care should be taken to consider the most persuasive design for the point a litigator is trying to make. All too often, stock designs that highlight black text in electronic yellow highlighter or faux-torn paper tear-outs are used to emphasize key text. Sometimes, these approaches are adequate. Other times, you are missing out on a key opportunity to persuade. Persuadius (formerly A2L) was hired by The U.S. Department of Justice to produce a group of trial exhibits to defend against injury claims in a rescue helicopter landing. One key case theme required us to emphasize that it was the duty of the hospital to stop traffic rather than anyone on the helicopter or at air traffic control. We arranged the key call-out language inside a stop sign shape to make this point. When combined with emphasis by the litigator, I believe the message of "STOP" was unforgettable. Articles related to practice, trial preparation and trial presentation that you may also like include:
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