The Litigation Consulting Report

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:

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.

I am happy to report that Animators at Law has seen one of its strongest quarters for litigation wins since our 1995 founding. Q1 is not yet over, and we have already helped clients achieve favorable outcomes in the hundreds of millions of dollars. We expect that total to exceed $1 billion in favorable 2011 results in the next few weeks. Please join me in congratulating these Q1 high-achievers: Paul Taskier, Esq., Ken Brothers, Esq., James Brady, Esq., Eric Albritton, Esq., Danny Williams, Esq., Matthew Rodgers, Esq., Gary Hoffman, Esq., Ryan Flax, Esq., Jeremy Cubert, Esq., and the rest of the Dickstein Shapiro/Williams Morgan/Albritton litigation team representing Dr. Bruce Saffran in Saffran, M.D., Ph.D., v. Johnson & Johnson et al. This patent infringement matter was tried over seven trial days in January in the Eastern District of Texas using litigation graphics and litigation consulting from Animators at Law. After only two hours of deliberations, the jury reached a $482 million verdict for Dr. Saffran and included a finding of willful infringement. Judge Ward is expected to soon rule on enhanced damages. Animators at Law has worked with teams from Dickstein Shapiro since 1996. David Kiernan, Esq., John Hall, Jr., Esq., Samson Wu, Esq. and the rest of the litigation team from the Williams & Connolly/Hall Booth team for their representation of Georgetown University in Iacangelo v.Georgetown University et al. tried in the U.S. District Court for the District of Columbia. After a fifteen day jury trial, a defense verdict was reached. Animators at Law has worked with teams from Williams & Connolly since 1998. Animators at Law provided litigation graphics, litigation consulting and courtroom trial tech personnel. Alan Briggs, Esq., Rebecca Worthington, Esq. and the rest of the team from Squire Sanders' Washington, DC Office for their representation of Trident Enterprises in Trident v. Airtronic USA. The case was tried before a jury in the U.S. District Court for the Eastern District of Virginia. After a three day trial, the jury returned a million dollar verdict. Animators at Law provided litigation graphics, litigation consulting and pre-trial technology services. Other firms we have worked with recently include: Baker McKenzie Paul Hastings Skadden Orrick Foley Boies Schiller Dickinson Wright Hughes Hubbard The U.S. Department of Justice NAACP Legal Defense Fund Hogan Lovells K&L Gates If you would like to discuss using our graphics consulting or hot-seat personnel for an upcoming trial or hearing (Markman, class cert., PI, SJ, §337, etc.), please contact Alex Brown, Director of Sales and Operations, at 800.337.7697 /brown@a2lc.com.

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.

Daniel Pink's 2005 bestseller A Whole New Mind changed the way business leaders thought about the future. His futurist thinking of six years ago presciently describes the current economic transition the U.S. is facing. He also gave business strategists a vocabulary to discuss the emerging conceptual economy, and he inspired young business minds to focus less on traditional and easily outsourced MBA studies and focus more on deeper problem-solving business pursuits. Most importantly, he highlighted our firm, Animators at Law (now A2L Consulting), as an example of one of those companies already living in the conceptual economy.

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.