The Litigation Consulting Report

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.

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.

We have have created courtroom presentations in banking cases almost since our very beginning nearly 17 years ago. From savings and loan litigation in the 1990s to IPO litigation stemming from the 2001 dotcom meltdown to ongoing banking fraud and bankruptcy litigation connected with the 2008 financial crisis, we have helped jurors understand complicated financial concepts that are at the heart of most banking litigation. We have discussed earlier this year how a good trial consultant can make complex financial concepts comprehensible to jurors by using courtroom presentations that relate to a juror’s basic understanding of life and personal experience. See our discussions of collateralized debt obligations and of securities litigation. The same can apply to courtroom presentations for seemingly complex banking litigation. Since nearly all jurors have bank accounts and have used ATM’s, they have a basic sense of what banks do. So it often is not a long stretch for them to have an intuitive notion that banks are involved in complex ATM networks, that they sell profitable investment products to clients, or that they manage and move large sums of money. What is more difficult is explaining the details of how these things work. In a straightforward courtroom presentation graphic below, we showed that the total revenue of a bank far exceeded the gross national product of Guatemala. We used a supermarket scale and money bags – a basic concept that any juror can follow – to make an indelible impression on the jurors. In another very straightforward courtroom presentation graphic, we showed people sitting around a conference table as a partner in a major accounting firm told them about a highly questionable tax shelter that the firm was marketing. The “shady characters” are shown in shadow to emphasize the dubious nature of what they are doing. In another courtroom presentation illustration for the same case, we portrayed this complicated financial transaction with an illustrated flow chart with seven steps, beginning with “Taxpayer realized Capital Gain” and ending with “Taxpayer Reports Loss to IRS.” Even if a juror does not fully understand the transaction on the same level as those who devised it, he or she certainly understands that somehow a “Capital Gain” was transformed into a “Loss” for the IRS. The juror has paid taxes and has never been able to convert a gain into a loss, we can be assured. We also graphically portrayed how a worldwide ATM network functions. At the bottom of the courtroom presentation chart are the individual bank customers, who are faced with the possibility of paying a “foreign fee” and a “surcharge.” Finally, for litigation involving the BCCI bank scandal of the 1980s, we created a similar chart that showed the flow of money from various entities in that case to BCCI. This case represented our first billion dollar win. We've had hundreds since.

Very often, trial lawyers face what feels like an impossible dilemma. The case that they want to present is extremely complex, intensely tedious or worse yet, both.

Demonstratives can frequently be used very effectively in product liability litigation, in which the issue is whether a product was manufactured negligently, causing harm – or in some cases, whether a product that was manufactured and used properly still caused harm to a consumer that leads to liability on the part of the manufacturer or seller.

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.

Electronic presentation tools such as PowerPoint and Trial Director have changed the way in which lawyers and trial consultants present evidence to juries. These programs and others like them are so flexible and helpful in presenting numerical data, timelines, biological processes, the workings of machinery, and other information that in many ways they have displaced the old-fashioned methods such as printing words and graphics on foam core trial boards.