The Litigation Consulting Report

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 No trial presentation exhibit specialist can perform any better than his or her tools. Although the judge and jury aren’t usually aware of what software the trial consultant is using, the choice of presentation software is essential to the success of the consultant, and ultimately to the success of the case. Over the last decade, presenting demonstrative evidence has usually meant using PowerPoint. In the hands of an expert trial consultant, PowerPoint is an extremely flexible tool. As we said earlier this year, for talented information designers, PowerPoint is a blank canvas that can be filled with works of presentation art. Among major law firms, PowerPoint still maintains nearly a 100 percent market share. After all, if something has been shown to work over and over again, there is every reason for a trial lawyer to continue using it rather than trying something new and unproven.

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.

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.

Fifteen years ago, I was asked to write an article for Intellectual Property Today magazine on the future of litigation technology. The O.J. Simpson trial was fresh on our minds, the use of computer animation in the courtroom was still rare, trial exhibits were not often used in litigation and the Internet was just coming to life. The question I ask you is, how well did I predict the future of litigation technology? Bull's-eye, missed-the-mark, on the right track or too soon to tell? The full text of this 1996 article is reproduced below: The Future of Litigation Technology (originally published September 1996) By Kenneth J. Lopez, J.D. President & CEO Animators at Law In Ray Bradbury's futuristic short story The Veldt, a virtual reality (VR) room has replaced the television as a device for entertainment and education. The room is capable of simulating any environment that the user desires with lifelike detail. However, like any technological tool, there is a downside to the room when it is abused. By the end of the story, the rebellious children of the house use the room to bring about the deaths of their parents by seemingly fictitious lions. Although written nearly fifty years ago, the VR room described by Bradbury may offer today's attorneys a glimpse into the future of litigation and provide some important lessons about the uses of litigation technology. Virtual reality environments are the logical outgrowth of today's high tech litigation tool, computer animation. Indeed, they are essentially real-time computer animations played in every direction of the user's vision. They give the viewer the impression that they are within a computer generated world in which they are free to move about. In sophisticated VR worlds, a user may manipulate or interact with objects in the simulated environment. For example, one could pull levers on a machine or open doors in a room. Inasmuch as today's litigators benefit from efficiency and persuasive power of computer animation, the litigators of the future will likely be able to use some form of virtual reality to help them win their cases. However, the technology will have to first grow to accommodate the formal nature of the courtroom. One cannot help but laugh at the thought of twelve jurors, a federal district judge and the litigants donning virtual reality helmets in Darth Vader-like fashion. Though it may at first sound silly, the need for this technology in the courtroom may be more urgent than one might initially think. Early in the O.J. Simpson criminal case, nineteen jurors took a $114,617 bus field trip to visit the various locations discussed throughout the subsequent trial. While police helicopters buzzed over the fourteen vehicle caravan and two hundred and fifty officers regulated traffic, court personnel attempted to shield the jury's eyes from two hundred billboards proclaiming Mr. Simpson to be either guilty or innocent. The stated purpose of the trip was to give the jury a sense of the size of the space of the crime scene and other relevant locations. However, for much less than the cost of this jury's trip, a virtual reality environment could have been constructed. In this environment, what the jury would have been able to see could have been cleansed of the shouts of bystanders, the signs of protestors and a life size O.J. Simpson statue clothed in a football uniform. The VR model could have been accurately constructed to simulate the space, the lighting and the obstacles present at the scene of the crime. Uses for this type of technology by the intellectual property litigator are limitless. For example, a virtual reality environment could be used to allow a litigator, judge or juror to manipulate sophisticated machinery or look inside and around a patented device. Possible future uses in intellectual property litigation will probably mirror today's corporate and government applications of the technology. Currently, Volvo uses virtual reality in accident simulations; Matsushita uses it to accurately simulate airflow, lighting and acoustics within a structure; architects use it to allow clients to visit a building before construction begins; the Army uses it to train soldiers and Kaiser-Permanente uses it in the treatment of patients with a fear of heights. In addition to virtual reality, the future of litigation technology is being explored in Courtroom 21 at the William & Mary School of Law. In this litigation laboratory, real-time court reporting, courtroom display systems, computer animation, video conferencing and many other litigation technologies are regularly on display. Organizations like Courtroom 21 are clear leaders in pointing a direction toward the future of litigation. Perhaps, it will be in a courtroom like this where the first virtual reality simulator is installed. It could be used not only for litigation but also as a training tool for young attorneys who wish to challenge a simulated opponent in a mock trial. An important fact to remember about virtual reality, computer animation or other litigation technologies is that they are becoming less expensive every year. What cost hundreds of thousands five years ago may today cost less than ten thousand dollars. This theme has been at the core of this series of three articles and cannot be overstated. Despite consistently positive reactions by juries to computer animation and a likely positive reaction to virtual reality, a litigator must always be careful not to intimidate the jury. All presentations should be as easy to understand as possible. Just as Bradbury teaches that an entertaining room is not a replacement for good parenting, a litigator should know that litigation technology is not a replacement for skilled legal preparation. A jury can see through and ignore the most technologically adept presentation when the underlying arguments lack sound legal foundation. Regardless, when your day comes to use virtual reality or another litigation technology, one would hope that instead of Bradbury's lions, you find that you are the shark at the top of the courtroom food chain. Contact Us for a FREE strategic consulting session and conflicts check or to make a tentative reservation for a hot-seat trial technician. originally published September 1996, Intellectual Property Today Magazine

Animators at Law is now offering flat-fee pricing for both demonstrative evidence consulting services AND trial technician/courtroom hot-seat consulting services. Animators at Law pioneered flat-fee arrangements for trial graphics consulting in 2009. Now, this popular pricing model is offered coast-to-coast for trial technician/hot-seat services. Gone forever are the days of unpredictable trial technician invoices and uncomfortable conversations between inside and outside counsel. With this flat-fee pricing model, Animators at Law clients are now enjoying: