The Litigation Consulting Report

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.

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 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.