The choice of a trial graphics firm is one of the most important decisions that a trial lawyer can make. Since experts widely agree that about two-thirds of jurors and many judges prefer to learn visually, it can literally make the difference between winning and losing your case. However, many lawyers still use the wrong approach to the selection of a trial graphics consultant. For example, they may choose a provider based on familiarity (“I know someone who does graphics . . .”), price (“the client has a tight budget . . . “), or proximity (“they’re right around the corner . . . “). There are better ways to choose a consultant. Think of hiring a trial graphics provider as similar to the hiring of an expert witness. If you are hiring an expert witness, you are delegating a portion of the case to someone who has specialized knowledge and experience that you may not. You would hire an electrical engineering expert witness to discuss the workings of a patented device. Similarly, you should hire a trial graphics provider, who is an expert in the field of information design, to create effective trial graphics for your case.
by Ken Lopez As litigation consultants, jury consultants, trial technology consultants and litigation graphics consultants, we have the opportunity to share our decades of experience in over 10,000 cases, working with litigators from all major law firms, with our litigation clients every day. Clearly, this is a valuable service, and I believe great litigators become better litigators for having worked with our firm.
Since most complex trials deal with issues and subjects that are well outside the ordinary person’s experience, a trial lawyer’s job, and by extension that of a litigation consultant, is to help the jurors understand these topics. One of the best ways of doing this is by using analogy and metaphor courtroom exhibits – in other words, by showing how the complicated scientific or legal concepts in the trial are similar to things that a juror sees every day.
by Daniel Carey, Senior Trial Technician, A2L Consulting I'm in Chicago and halfway through a one-month arbitration. Seated across from me is opposing counsel. Steve Jobs would have been proud. In the conference room where the arbitration is being held, four out of five attorneys are using iPads, propped in both landscape and portrait, all with Bluetooth keyboards. A Bluetooth keyboard is a wireless keyboard, either similar to a normal wireless keyboard or a pocket-size device that projects a full-size keyboard through infrared technology onto any flat surface. In my last case, in Fairfax, Va., our counsel placed his iPad upon the ELMO (a device normally used to digitally project hard copy documents). The judge asked on the record, "Do you have an app for that?" There is an app for nearly everything these days. The world has changed, and so has my work as a trial technician. As you probably know, a trial technician (sometimes called trial consultant, trial tech or hot-seat operator) goes from trial to trial (or arbitration or hearing) providing litigation support services to the trial team. Specifically, I am normally responsible for: building the exhibit and document database prior to trial; cutting deposition clips and syncing them with a transcript; working with counsel to prep witnesses to work with an electronic presentation; setting up the war room and courtroom with electronics; working to finalize the documentary and demonstrative presentations; running the electronics in the courtroom so that any piece of evidence is accessible instantly; making on-the-fly demonstratives to be used with a witness on cross; running the demonstrative and documentary evidence presentation; All of these tasks ordinarily need to be done on little sleep, and in the trial technician profession, we are not allowed to show stress – ever. In fact, our jobs as trial technicians are to absorb stress. The same is true for technological change in our business. It is inevitable, and it is something that we must absorb. The iPad is bringing rapid change just as PowerPoint once did. It will not be long before jurors are given iPads to use throughout trial (Facebook-disabled, of course). As Peter Summerill, a Utah attorney and author of the MacLitigator blog, has written, “At trial, the iPad really shines. Trial technology should be transparent. This means that it should not appear to the jury as (1) overly flashy; or, (2) a complete headache and a distraction to the attorney. Apple has created a product which facilitates presentation of evidence without getting in the way and does so in a completely unassuming fashion.” Over the last year our technology team has pioneered ways to publish ebriefs on an iPad and to view all case documents and proposed demonstrative exhibits via an iPad app. Now I am seeing iPads spread quickly into courtrooms and arbitration rooms around the country. It is an exciting time, and it is a great time to be a trial technician and a great time to try cases.
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.
Most people, when they think of trial graphics, focus on exhibits to be used at trial. But graphics can also be used in motions and briefs presented to judges, even if jurors will never see them. After all, if you are using graphics to make your argument or tell your story at trial, why not use them at an earlier stage to make your argument convincingly in your brief?
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.
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.
[See updated 2013 article by clicking here: 21 Ingenious Ways to Research Your Judge]
As litigation has become more complex and technology has advanced over the years, a new profession has emerged – that of trial technician. This profession is relatively new in the legal marketplace, so much so that the title still varies considerably: These individuals can be called trial consultant, courtroom technology specialist, hot seat operator or simply trial tech. By any name, trial technicians perform three key litigation tasks: Organizing and preparing documents, video and other evidence to be used at trial. Setting up the war room and courtroom electronics consistent with local court rules. Running the trial presentation software and equipment during trial so that trial counsel can see any document, video or exhibit on a momentʼs notice and so that the presentation runs so flawlessly that the fact-finder focuses only on the evidence, not the method of presentation. Excellent trial technicians are not easy to find and are rarely available on short notice. Animators at Law has offered trial technician services to litigation teams around the world since the mid-1990s. This article summarizes some of what we have learned in 16 years, but, for a more comprehensive 20-point pre-engagement checklist, I encourage you to download our free whitepaper: 20 Things You Must Know Before Engaging Your Next Trial Technician, Trial Consultant or Hot Seat Operator. There are several key considerations to appreciate when hiring a trial tech for your next litigation matter. First, quality varies widely, as does price. One should expect to pay between $125 and $400 per hour with an average rate of $200 per hour. Hours worked per day will usually be between 10 and 20 during trial. To help trial teams manage cost predictably, our firm recently pioneered flat rate pricing for trial technician services. In selecting a trial tech, there is no substitute for real courtroom experience. Experienced trial techs have survived technology failures, power failures and weather-related failures many times over. Great trial technicians have successfully run dozens or hundreds of trials and hearings and can provide the names of those cases and names of the attorneys involved. When interviewing, as you would for any vendor, check at least three references. Great trial technicians are often in the center of the court but are never the center of attention. Part of the trial tech’s skill set must be an ability to comfortably disappear into the background. When he or she is doing the job right, no one is looking at him or her. Outstanding trial technicians must be true Renaissance technology people. Not only must they be able to authoritatively run the latest versions of trial presentation software like Sanction or Trial Director, they must be able to sort out complex versioning issues with PowerPoint, diagnose hard drive problems, mass-rename files, handle unheard-of image formats and much more. Again, experience makes the difference. For more information about this emerging profession and a pre-engagement hiring discussion checklist, see our free downloadable article offering a 20 point trial technician skill set and trait guide. Trial technicians add an enormously disproportionate amount of value to a trial team with the budget to hire one. Instead of focusing on the availability of documents and evidence, the proper functioning of courtroom and war room technology and overcoming technological hiccups in real time, litigators can focus on careful strategic trial preparation of arguments, experts and witnesses. With some carefully planned discussions, litigation teams evaluating the addition of a trial technician to the courtroom support team can virtually guarantee success.
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.
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.
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