The Litigation Consulting Report

Because maps are used by jurors constantly in their daily life and because they are so frequently used to represent common locations and processes, they are one of the most frequently used and most effective types of demonstrative evidence. Whenever something can be conveyed geographically, through the use of space, it is worth considering the use of a map. Even though maps don’t always represent the highest and newest technology, their importance cannot be underestimated. In the words of Ray Moses of the Center for Criminal Justice Advocacy, which was formed in Texas as a grass-roots training resource to help new lawyers in becoming competent criminal trial practitioners: “Visuals (graphics) such as time lines, charts, illustrations, maps, etc. are sufficiently important to communicating your message that you owe it to your client and yourself to learn how to incorporate visuals into your presentation.”

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.

We often hear from clients or prospective clients that it won’t help them if they look like a big company that is attempting to overwhelm or dazzle its opponents with technology. Jurors won’t buy that sort of stuff, we are told, even from a litigant that is actually a large company.

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.

Litigation involving architecture usually involves some failure in the construction process, a dispute over lease terms like sight lines or common areas, an insurance claim involving an allegedly negligent design, or the responsibility for a building damaged in a natural disaster. Since most jurors are familiar with architecture to some degree, what usually has to be explained is the legal meaning of seemingly everyday terms, the process of design and construction, or the common customs of the architectural and construction businesses. That's where legal graphics often enter the picture.

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.

by Nina Doherty

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:

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.

Discovery disputes have always been a staple of litigation. And now that electronic discovery has pretty much supplanted the old-fashioned discovery of paper documents, the disputes have only become more complicated and more bitter. As a result, our firm is increasingly called upon to create courtroom presentations for discovery dispute hearings. In the past ten years, e-discovery consulting firms have come to dominate the litigation support field, providing their expertise in a rapidly changing and highly technical field. That is not the only new development in this field. First, many law firms that are representing clients in document-heavy pieces of litigation have begun to hire “discovery counsel,” law firms that specialize in discovery alone and don’t promote their expertise in other areas of law. One such firm says on its website that it devotes “all of our resources to the successful execution of document collections, reviews, and productions.”

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.

One of the most important jobs of the trial lawyer and of the litigation consultant is to make highly complex and technical issues understandable to the average juror who does not have a scientific, engineering or technical background. In technology cases, especially patent cases, using demonstrative evidence is normally a good tactic. Here's why. The trial lawyer has spent months or probably years delving into every aspect of the case, and by the time it gets to trial, even the most arcane subjects can appear simple to him or her. Of course, that doesn’t mean they are easily understood by the general population of which the men and women in the jury box are a representative sample. Think of the challenge as needing to explain a complicated subject to a kid or to your grandparent; it takes creativity (and visual presentations - e.g. demonstrative evidence) to make the concept digestible to all audiences.