The Litigation Consulting Report

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 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.

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

by Ken Lopez The term information design is less than fifty years old. The use of specialty trial graphics in the courtroom started less than thirty years ago. Only very recently have the terms been used in the same sentence. That is, only recently have individual practitioners of both arts emerged. Wikipedia describes information design as "the skill and practice of preparing information so people can use it with efficiency and effectiveness. Where the data is complex or unstructured, a visual representation can express its meaning more clearly to the viewer." I would call it simply the effective and efficient presentation of information. Applied to the litigation graphics consulting industry of which I am a member, I would add the word persuasive. This is true since the job of the modern litigation graphics consultant is to persuade not merely to present information.