As the Washington Business Journal recently wrote, the International Trade Commission (ITC), once an obscure federal agency, has become the epicenter of high-end international patent law in recent years. Its docket is rapidly growing, and its cases can be worth sums in the hundreds of millions or billions of dollars.
One of the unusual techniques that we are using in patent litigation trial presentations is something we call Patent Comes Alive. This process begins with patent drawings and goes well beyond them. Patent drawings themselves are a unique and highly specialized form of art. Their purpose, of course, is to illustrate the item to be patented and to show exactly what it is and what the patent applicant is claiming about the invention. For nearly all patents, the Patent and Trademark Office requires the applicant to furnish drawings.
As one can imagine, automobiles are the subject of a good deal of complex litigation these days -- whether the case has to do with the validity of a patent for use in the manufacture of an automobile, the possible liability of an auto manufacturer for an accident, a class action claiming a design defect in a certain model of car, or another legal issue. Automobiles present interesting challenges for the trial graphics consultant. On the one hand, nearly everyone has driven a car, and many people think of themselves as fairly knowledgeable in auto mechanics (while they would not fancy themselves as computer or jet-engine experts, for example). On the other hand, today’s vehicles are incredibly complicated items with sophisticated computer systems and electronics.
In our 16 years in the trial presentation business, and after consulting on more than 10,000 cases, we still hear litigators concerned that their trial presentation/litigation graphics might somehow look “too slick” and will distract the jurors, or will somehow focus attention on the relative wealth of our client who is able to afford “fancy graphics.” In the early 1990s, this was a valid question. No one had used PowerPoint, no one had a cell phone – let alone a smart phone -- few people had personal computers, and most of those had black screens with green text. That is no longer the case. Technology has penetrated into every part of the United States and indeed into most of the world. A 2011 report from the Pew Research Center’s Internet and American Life Project indicates that 85 percent of U.S. adults own a cellphone, 52 percent own a laptop computer, four percent own a tablet, and only nine percent do not own any of these or other devices covered in the study. Those numbers will only increase. According to Robert Gaskins, the creator of PowerPoint, more than 500 million people worldwide use PowerPoint, with over 30 million PowerPoint presentations being made every day. Trial consultant Robb Helt, at the end of a trial in rural Arkansas, was able to talk with the jurors about the use of trial presentation technology/trial techncians in their just-completed trial. Helt found that the theory that jurors are uncomfortable with technology had been “blown away” by this “down home” jury. These jurors were not only comfortable with trial presentation technology – they expected to see it.
by Ken Lopez Very often, trial attorneys in complex cases need to explain extremely difficult and elusive scientific concepts to jurors who are not well versed in science. The lawyer’s job is to convey the science correctly to the jury so that they can make a rational decision – yet not to bury the jury under a blizzard of scientific terms and concepts that they will never understand. The answer is to use visuals in the form of photographs, schematic diagrams, animation, timelines, demonstrative evidence, document call outs or whatever is suited to the situation, and to explain them in terms that jurors who are not specialists in the scientific subject can understand.
by Ken Lopez The courtroom is a forum where issue advocacy is enhanced by persuasive litigation graphics. However, other settings exist where attorneys, consultants, politicians, lobbyists and advocacy organizations must persuade skeptical audiences. This article focuses on the creation of advocacy graphics for a particular issue: hydraulic fracturing, better known as fracking. Advocacy or lobbying graphics are especially valuable as the material may be used to educate a potential jury pool, to persuade and inform government officials and to support settlement negotiations. These advocacy presentations may be distributed via PowerPoint, YouTube or even delivered in person from an iPad®.
Although checklists are not as dramatic as other types of litigation graphics such as three-dimensional animations or interactive PowerPoint timelines, they can be very effective in persuading juries on key issues and in making it easier for them to recall the important elements of a case.
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.
In trial presentation graphics, a great deal can depend on the quantity of data that is presented to the jury and on the way in which it is presented. For example, it has become conventional wisdom that humans generate pollution in the form of carbon dioxide, that carbon dioxide and other pollutants cause a greenhouse effect on the planet, and that this effect noticeably raises global temperatures and/or causes climate change. Al Gore's movie, An Inconvenient Truth, cemented this belief in the minds of the public and future jurors, largely through the use of effective visual presentations. The U.S. Government chart below captures the conventional wisdom well. As large quantities of carbon dioxide entered the atmosphere with rapid industrialization in the past 100 years or so, global temperatures went up, it shows.
Timelines can be extremely helpful in many types of trials. Whenever the order in which events occurred is a significant issue, or a jury or judge needs to understand how a story began and ended, a timeline is appropriate. As Texas attorney and legal technology expert Jeffrey S. Lisson has written [pdf], “Timelines are the most effective way to give a judge or jury a sense of who did what, when, and to whom. Just as bar charts and graphs help the uninitiated make sense out of a sea of facts and figures, timelines show the relationship between events. Timelines generally show events laid out on a horizontal, constant chronological scale. Events – the writing of a memo, the reading of an x-ray, or the shooting of a gun – are listed in the order they occurred. While tables of dates and facts require effort to understand, timelines are instantly clear.”
A picture is worth a thousand words, and when it comes to effective storytelling, no statement more aptly applies. One of the biggest challenges attorneys have when telling their story is conveying to their audience the complex ideas and legal concepts in their case in a manner in which the information will be understood. Leading up to trial, an attorney is frequently faced with this question: how do I get my audience to understand information imperative to my case and how do I make it memorable? One of the key roles an attorney takes on when faced with a legal proceeding is that of a teacher. One must teach the fact-finders the facts and the laws that apply to the case and why the stated interpretation of the facts and the laws is the correct one. That is where trial graphics and other trial presentation techniques come in – taking complex case themes and legal concepts and turning them into simplified visual models that are more easily understood and digestible to the average fact finder. With this requirement of effective communication of case facts being ever present, graphics and animations have become vital tools in the modern litigator’s arsenal. I dare say there are few attorneys these days that go to court without some type of demonstrative evidence or technology; whether it is graphics or documents loaded into a trial presentation database. Many areas of law lend themselves particularly well to the use of graphics. For example, patent litigation virtually requires the inclusion of memorable trial graphics. The technology in a patent can be (and often is) very complex. For the non-expert the content is difficult to understand and even more challenging to explain to the average person who may not have a scientific or technical background. Sometimes the ability to show a process or a function of a patent - how something works -- as opposed to trying to explain it with words and documents – makes the difference between winning and losing. Such was the case recently where our firm helped a trial team obtain the 6th largest patent verdict in history. Illustrative of such visual presentation ideas, I have included a sample PowerPoint Markman claim construction hearing trial graphic below that portrays a creative use of animation in PowerPoint. This case involved a patent infringement claim where the plaintiff claimed the defendants were infringing their patent for automated systems for selecting and delivering packages to fill prescription drug orders. The intent of this demonstrative was to reproduce the function of the machine at issue in PowerPoint in order to visually show how the machine worked as opposed to using documents and the patent to explain how the machine works. At Animators at Law, we provide demonstratives that are communicative and educational while also being stimulating enough to keep the jury engaged. We do this by creating trial graphics that clearly explain the concepts a trial team is conveying to the jury so that they will understand the facts and legal arguments of the case through the use of memorable demonstratives that resonate with the jury or fact finder.
Courtroom animation is often indispensable for the purpose of showing jurors how technical processes work, how scientific principles come into play in a case, or how a legal concept applies in practice. In addition, by applying trial consulting principles, litigation animation can also be used to keep a jury engaged and interested. Too often, when a case involves complicated technical issues, the jurors’ attention will wander, and even an excellent set of witnesses or a brilliant closing argument will not win the case, because the jurors just haven’t been focusing all along. Ray Moses of the South Texas College of Law made this point well in a comprehensive online guide to prospective criminal defense attorneys. “Modern day jurors - most of 'em are either geeks or baby boomers - receive and process information through increasingly sophisticated visual media. Every trial lawyer, particularly defenders, must learn how to use technology to engage the jury. The persuasive force and eloquent power derived from using visual and aural displays of information in electronic form, e.g., computer-generated exhibits, at trial simply cannot be ignored,” Moses wrote for the Center for Criminal Justice Advocacy. An excellent example is the highly complex legal concept of reinsurance. Not every lawyer knows what reinsurance is, and certainly most lay persons on juries have no idea. (It is insurance purchased by an insurance company from another insurance company as a means of transferring risk from the first company to the second company.) A juror, hearing the term “reinsurance” being bandied about at the trial, can easily conclude that this is something he or she can’t understand or make a judgment about and can thus close himself out to a lawyer’s arguments. Clearly, trial lawyers need a way to keep jurors engaged and involved when complicated financial transactions involving reinsurance are at issue in the courtroom. These cases can be worth hundreds of millions or even billions of dollars to the client. At Animators at Law, we developed a PowerPoint for a trial that helped make a specific reinsurance transaction easier to understand and that was intended to engage a jury’s interest. In this case, we wanted to show that “Washto,” a reinsurance company, had created a subsidiary into which it had placed many of its bad investments. It then transferred those bad investments to “Greek Re,” which had acquired Washto, thus saddling Greek Re with the bad investments.
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