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.
by Ken Lopez The courtroom is a forum where issue advocacy is enhanced by persuasive litigation graphics. However, other settings exist where attorneys, consultants, politicians, lobbyists and advocacy organizations must persuade skeptical audiences. This article focuses on the creation of advocacy graphics for a particular issue: hydraulic fracturing, better known as fracking. Advocacy or lobbying graphics are especially valuable as the material may be used to educate a potential jury pool, to persuade and inform government officials and to support settlement negotiations. These advocacy presentations may be distributed via PowerPoint, YouTube or even delivered in person from an iPad®.
In trial presentation graphics, a great deal can depend on the quantity of data that is presented to the jury and on the way in which it is presented. For example, it has become conventional wisdom that humans generate pollution in the form of carbon dioxide, that carbon dioxide and other pollutants cause a greenhouse effect on the planet, and that this effect noticeably raises global temperatures and/or causes climate change. Al Gore's movie, An Inconvenient Truth, cemented this belief in the minds of the public and future jurors, largely through the use of effective visual presentations. The U.S. Government chart below captures the conventional wisdom well. As large quantities of carbon dioxide entered the atmosphere with rapid industrialization in the past 100 years or so, global temperatures went up, it shows.
Timelines can be extremely helpful in many types of trials. Whenever the order in which events occurred is a significant issue, or a jury or judge needs to understand how a story began and ended, a timeline is appropriate. As Texas attorney and legal technology expert Jeffrey S. Lisson has written [pdf], “Timelines are the most effective way to give a judge or jury a sense of who did what, when, and to whom. Just as bar charts and graphs help the uninitiated make sense out of a sea of facts and figures, timelines show the relationship between events. Timelines generally show events laid out on a horizontal, constant chronological scale. Events – the writing of a memo, the reading of an x-ray, or the shooting of a gun – are listed in the order they occurred. While tables of dates and facts require effort to understand, timelines are instantly clear.”
A picture is worth a thousand words, and when it comes to effective storytelling, no statement more aptly applies. One of the biggest challenges attorneys have when telling their story is conveying to their audience the complex ideas and legal concepts in their case in a manner in which the information will be understood. Leading up to trial, an attorney is frequently faced with this question: how do I get my audience to understand information imperative to my case and how do I make it memorable? One of the key roles an attorney takes on when faced with a legal proceeding is that of a teacher. One must teach the fact-finders the facts and the laws that apply to the case and why the stated interpretation of the facts and the laws is the correct one. That is where trial graphics and other trial presentation techniques come in – taking complex case themes and legal concepts and turning them into simplified visual models that are more easily understood and digestible to the average fact finder. With this requirement of effective communication of case facts being ever present, graphics and animations have become vital tools in the modern litigator’s arsenal. I dare say there are few attorneys these days that go to court without some type of demonstrative evidence or technology; whether it is graphics or documents loaded into a trial presentation database. Many areas of law lend themselves particularly well to the use of graphics. For example, patent litigation virtually requires the inclusion of memorable trial graphics. The technology in a patent can be (and often is) very complex. For the non-expert the content is difficult to understand and even more challenging to explain to the average person who may not have a scientific or technical background. Sometimes the ability to show a process or a function of a patent - how something works -- as opposed to trying to explain it with words and documents – makes the difference between winning and losing. Such was the case recently where our firm helped a trial team obtain the 6th largest patent verdict in history. Illustrative of such visual presentation ideas, I have included a sample PowerPoint Markman claim construction hearing trial graphic below that portrays a creative use of animation in PowerPoint. This case involved a patent infringement claim where the plaintiff claimed the defendants were infringing their patent for automated systems for selecting and delivering packages to fill prescription drug orders. The intent of this demonstrative was to reproduce the function of the machine at issue in PowerPoint in order to visually show how the machine worked as opposed to using documents and the patent to explain how the machine works. At Animators at Law, we provide demonstratives that are communicative and educational while also being stimulating enough to keep the jury engaged. We do this by creating trial graphics that clearly explain the concepts a trial team is conveying to the jury so that they will understand the facts and legal arguments of the case through the use of memorable demonstratives that resonate with the jury or fact finder.
The art and science of animated trial graphics has evolved dramatically over the past 10 years. Animation used to refer only to 3-D animations that were produced with programs such as Autodesk Maya or Autodesk 3ds Max, formerly 3D Studio MAX. Now a much broader array of animation tools is available to the courtroom animator, and each one has its own niche and its own strong points. We are able to provide animations of all of these varieties in-house, and we work with our clients to select the one that is best in terms of persuasive power, applicability to the problem at hand, and cost. We have done this since 1995. PowerPoint Animation
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.
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:
The world is watching in shock as a nuclear drama unfolds in northeastern Japan. In only a few days, most of us have somehow come to accept that there are degrees of a nuclear meltdown and that explosions at a nuclear power plant may not always point to a cataclysmic outcome. A week ago, those beliefs would have been unthinkable. Then, nuclear power was a binary condition: it was either safe, clean and efficient, or it was Chernobyl, with no in between. Even in the safest of times, generating power through nuclear energy presents major challenges. One of the key challenges is handling the inevitable nuclear waste, primarily spent nuclear fuel. After conducting extensive studies in the late 1970s and early 1980s, the U.S. Government thought it had found an answer. In 1983, the U.S. Government contracted with operators of nuclear power plants to begin picking up nuclear waste starting in 1998 and storing it in a central facility. The U.S. Government had then agreed to become the primary shipping and storage mechanism for the nuclear power industry. The plan was to store nuclear waste at the now defunct Yucca Mountain storage facility located about 100 miles from Las Vegas. Ultimately, fears of geologic instability at the site combined with election-year politics doomed the project. So, instead of one underground facility located on the site where 904 atomic bomb tests have already been conducted, America is left with more than 100 storage sites around the country where nuclear waste is stored in pools or barrels. When the U.S. Government breached their agreement to pick up the nuclear waste, operators of nuclear power plants sued. In this line of cases, the question is not whether a breach has occurred, but rather how much it will cost the facility to store the waste if that is even possible. Animators at Law has been involved in quite a number of these spent fuel cases typically heard in the U.S. Court of Federal Claims. Below are some litigation graphics from these cases. The animation below shows the removal of a reactor pressure vessel. When a plant must be closed due to age or due to an inability to store more waste, the reactor pressure vessel may be removed. The boiling water reactors at Japan's Fukushima nuclear power plant use a similar reactor pressure vessel. Originally created in PowerPoint using dozens of technical illustrations played in succession, this litigation animation shows two methods of removing the reactor pressure vessel that contains the plant's nuclear core. The trial exhibits below are shown as a screen capture of some PowerPoint litigation graphics. These trial exhibits analogize the problem an automobile service station would have if its used oil collection stopped to the spent nuclear fuel storage problem faced by nuclear power plant operators. Further, it helps make the case that costs do not stop with storage (as the U.S. Government contends) but also include indirect and overhead costs related to storage (e.g. security, accounting and management). Animators at Law has helped its clients recover hundreds of millions of dollars in spent nuclear fuel litigation cases, and effective litigation graphics have been key to this success. For more on how nuclear power works: http://en.wikipedia.org/wiki/Nuclear_Power To learn more about the crisis in Japan or to make a donation: http://www.google.com/crisisresponse/japanquake2011.html
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.
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.
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