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.
The choice of a trial graphics firm is one of the most important decisions that a trial lawyer can make. Since experts widely agree that about two-thirds of jurors and many judges prefer to learn visually, it can literally make the difference between winning and losing your case. However, many lawyers still use the wrong approach to the selection of a trial graphics consultant. For example, they may choose a provider based on familiarity (“I know someone who does graphics . . .”), price (“the client has a tight budget . . . “), or proximity (“they’re right around the corner . . . “). There are better ways to choose a consultant. Think of hiring a trial graphics provider as similar to the hiring of an expert witness. If you are hiring an expert witness, you are delegating a portion of the case to someone who has specialized knowledge and experience that you may not. You would hire an electrical engineering expert witness to discuss the workings of a patented device. Similarly, you should hire a trial graphics provider, who is an expert in the field of information design, to create effective trial graphics for your case.
by Ken Lopez As litigation consultants, jury consultants, trial technology consultants and litigation graphics consultants, we have the opportunity to share our decades of experience in over 10,000 cases, working with litigators from all major law firms, with our litigation clients every day. Clearly, this is a valuable service, and I believe great litigators become better litigators for having worked with our firm.
One of the most important jobs of the trial lawyer and of the litigation consultant is to make highly complex and technical issues understandable to the average juror who does not have a scientific, engineering or technical background. In technology cases, especially patent cases, using demonstrative evidence is normally a good tactic. Here's why. The trial lawyer has spent months or probably years delving into every aspect of the case, and by the time it gets to trial, even the most arcane subjects can appear simple to him or her. Of course, that doesn’t mean they are easily understood by the general population of which the men and women in the jury box are a representative sample. Think of the challenge as needing to explain a complicated subject to a kid or to your grandparent; it takes creativity (and visual presentations - e.g. demonstrative evidence) to make the concept digestible to all audiences.
Labor law is a highly diverse and complex area. It can involve everything from claims for overtime pay to computer fraud and abuse act cases (CFAA) involving swindling employees to trials involving the allegedly illegal firing of an employee to complicated pension benefits issues. As labor and employment cases get more complex, the use of computer graphics during trial is also on the rise. A recent description of an academic program in labor and employment studies notes that “the field of labor and employment law has never been more dynamic and challenging than it is at the beginning of the 21st century. Over the past forty years, sweeping changes in the interplay between the American work place and the law have affected the everyday lives of nearly all members of society.” Labor cases often go to trial these days, and especially in cases that involve large numbers of employees, lawyers on both sides of a labor law case will often find courtroom graphics extremely useful to show trends, patterns, events that took place over a long period of time, or the real-life impact of a company’s policy or practice. For example, overtime cases involving hundreds or thousands of employees are finding their way to court. These usually involve summarizing lots of wage and hour data on just a few courtroom graphics. This is what happened in this PowerPoint set of scenarios (below) involving a company’s employees and the hours that they worked over a period of years.
We have have created courtroom presentations in banking cases almost since our very beginning nearly 17 years ago. From savings and loan litigation in the 1990s to IPO litigation stemming from the 2001 dotcom meltdown to ongoing banking fraud and bankruptcy litigation connected with the 2008 financial crisis, we have helped jurors understand complicated financial concepts that are at the heart of most banking litigation. We have discussed earlier this year how a good trial consultant can make complex financial concepts comprehensible to jurors by using courtroom presentations that relate to a juror’s basic understanding of life and personal experience. See our discussions of collateralized debt obligations and of securities litigation. The same can apply to courtroom presentations for seemingly complex banking litigation. Since nearly all jurors have bank accounts and have used ATM’s, they have a basic sense of what banks do. So it often is not a long stretch for them to have an intuitive notion that banks are involved in complex ATM networks, that they sell profitable investment products to clients, or that they manage and move large sums of money. What is more difficult is explaining the details of how these things work. In a straightforward courtroom presentation graphic below, we showed that the total revenue of a bank far exceeded the gross national product of Guatemala. We used a supermarket scale and money bags – a basic concept that any juror can follow – to make an indelible impression on the jurors.
Very often, trial lawyers face what feels like an impossible dilemma. The case that they want to present is extremely complex, intensely tedious or worse yet, both.
Demonstratives can frequently be used very effectively in product liability litigation, in which the issue is whether a product was manufactured negligently, causing harm – or in some cases, whether a product that was manufactured and used properly still caused harm to a consumer that leads to liability on the part of the manufacturer or seller.
Many litigators have developed the excellent practice, while preparing to try a major case, of running all or some their case before a mock jury and then debriefing the jury to see what worked and what didn’t, and to fine-tune their trial presentation accordingly. A mock trial is an excellent investment of money and time when the matter is large and significant enough to permit it. Not only can you test mock jurors’ reactions to alternative arguments and themes but also their reactions to the trial graphics you are considering for trial. As we found in a now well-known three-year study about the differences in the way litigators and jurors naturally communicate, more than two-thirds of jurors prefer to learn visually, and only a very small percentage prefer to learn by only listening. Until recently however, most mock trials tested only arguments, themes and sometimes some rudimentary demonstrative graphics. Increasingly however, we are setting up mock trials, testing alternative arguments and themes, AND we are creating sophisticated trial-ready litigation graphics for BOTH sides of the case. For the right case, this approach offers a more accurate predication of how the entire trial presentation will be received. It is a mock trial best-practice.
Most people, when they think of trial graphics, focus on exhibits to be used at trial. But graphics can also be used in motions and briefs presented to judges, even if jurors will never see them. After all, if you are using graphics to make your argument or tell your story at trial, why not use them at an earlier stage to make your argument convincingly in your brief?
Electronic presentation tools such as PowerPoint and Trial Director have changed the way in which lawyers and trial consultants present evidence to juries. These programs and others like them are so flexible and helpful in presenting numerical data, timelines, biological processes, the workings of machinery, and other information that in many ways they have displaced the old-fashioned methods such as printing words and graphics on foam core trial boards.
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.
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