by Ken Lopez The task of a trial lawyer is to convince a judge or jury to believe in the truth of a client’s case. However, in many complex trials, the underlying facts are not as easily understood by the fact-finder as they would be in, say, a murder case or a traffic accident. A case, especially the type of litigation that we are involved in, often turns on complex issues of science, medicine, engineering, or some other subject that jurors and many judges are not well versed in.
In most trial presentations, the trial timeline is often the single most critical demonstrative exhibit used at trial. Much like an effective opening statement, the trial timeline: Orients the viewer; Provides a framework around which facts can be organized; Allows for easy comparison of events occurring in sequence or simultaneously; Builds trust and credibility by sharing a believable story; and even persuades when built correctly.
Pharmaceutical companies can be embroiled in many types of litigation. Very often, because of the length of time and the tremendous investment of money that it takes to develop a new drug and bring it to market, these cases can be crucial to the company’s continuing financial health.
White-collar criminal litigation is one area in which practitioners have not been as quick to adopt the use of litigation graphics as in other litigation areas such as intellectual property, environmental litigation, or products liability.
Because of the continuing high value to society of minerals that are mined from the earth, mining litigation, when it occurs, often involves very high stakes. This is all the more true in our high-tech era, in which a wide variety of minerals have found new, very valuable uses in cutting-edge scientific and industrial applications.
Expert witnesses can be an extremely valuable portion of your case. If they are well-prepared, convincing and convey a clear, uncomplicated message to the jury, their testimony can lead directly to a verdict in your favor. If they are unconvincing and don’t communicate well, they are at best useless and at worst damaging to the case. The essential problem is that expert witnesses – whether they are testifying on engineering, scientific, financial, or other issues – tend to be very intelligent and knowledgeable. At the same time, however, they are prone to using terms that are well above the jury’s experience and educational levels and thus these experts are prone to be dismissed by some jurors as ivory-tower types who have nothing useful to say. We believe our firm plays several important roles helping expert witnesses get prepped for trial. Since our goal is winning by telling a clear and convincing story, the value of expert testimony must be maximized in each case. Expert witnesses are an essential piece of the litigation persuasion puzzle. Here are our seven tips for preparing expert witnesses and expert testimony to the best effect possible:
by Ken Lopez Trials are structured in familar segments – opening statements, direct examination, cross-examination and closing arguments. Of those events, I believe that opening statements deserve more emphasis than any other portion of the case.
Trademark cases are one type of case that lends itself well to the use of graphics. That may seem obvious since in most such cases, the object under dispute is a trademark – something that is itself often an item of graphic design, or at the very least a word or phrase that is easy to visualize. So one would expect that courtroom visuals would help jurors a great deal in trademark cases.
One type of litigation consulting that is underused is the planning and conducting of a mock trial. A good litigation consultant can put together a mock trial that is every bit as real in appearance and challenges the litigation team as much as an actual trial.
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.
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.
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. In an unusual labor law case involving federal government lawyers as employees, we helped a law firm establish a class of U.S. Department of Justice employees who were unlawfully denied pay for millions of hours of overtime pay. A judge in the U.S. Court of Federal Claims found that the highest officials of DOJ knew that the employees were working overtime and maintained two sets of books – one to include the overtime and one to exclude it. This was the first-ever class action web site that facilitated online opting in, and we designed the website. In another series of courtroom graphics (below), we showed graphically how a seemingly complex special-employer fund worked, with employers and employees making contributions and funds being withdrawn throughout the year. We used financial metaphors that any juror would understand, such as checkbooks and piggy banks, to illustrate the concepts. We used a funnel to show the number of employees who started out eligible for the retirement benefits and then the number who remained eligible after other qualifying criteria were used. Similar to securities cases, labor and employment litigation has lagged other types of litigation (e.g. patent litigation and antitrust litigation) in the adoption of courtroom graphics. Now that labor cases are no longer a simple battle of he said, she said and computer forensics are routinely revealing playing a larger role, it is essential to use courtroom graphics to help a jury understand and appreciate your client's position.
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