The Litigation Consulting Report

Download the NLJ's Best of 2012 Guide Here - Complimentary Copy

Ken Lopez — Tue, 29 May 2012 14:15:00 GMT

I want our readers to be among the first to hear some good news and download a free copy of a useful guidebook. A2L Consulting was voted a Best Demonstrative Evidence Provider by the readers of the National Law Journal. We are very proud.

It's the second time in less than a year we have been honored with a similar distinction. At the end of 2011, the readers of LegalTimes also voted and named A2L the Best Demonstrative Evidence provider.

I believe that this guide just published by the National Law Journal is a valuable one to keep. We all know one thing about litigation: you only get one shot to get it right, and thus it is critical to hire the right support team. The NLJ's best of guide is a good guidebook for anyone looking to hire a litigation support firm or other legal services firm. Frankly, it's a credible reader-driven survey that's been missing for a long time.

I think the NLJ's work is especially reliable and useful since over 450 companies were nominated and votes were only tallied for known members of the legal industry.

Below is a link to download the guidebook. I hope you'll take a moment to leave a comment below or ask a question. Thank you for your support of A2L Consulting and The Litigation Consulting Report.

Additional Resources on the A2L Consulting Site:

21 Secrets for Using Litigation Consultants on a Tight Budget

Ken Lopez — Wed, 23 May 2012 15:15:00 GMT

In Part 1 of this article, we discussed how to use litigation consultants to win a case when there are no budget constraints. Here in Part 2, we tackle the opposite end of the budget spectrum: how to best use litigation consultants when budget is severely constrained.

The good news is that in any case that has more than $1 million at stake or is a possible example of pattern litigation, there is a litigation consulting strategy that can fit the budget and deliver high value, regardless of budget. While every case has different needs, and there is a big difference between bench and jury trials, here is a prescription for utilizing litigation consultants in a tight budget.

The primary cost difference between a small litigation budget and a large litigation budget will be the amount of time spent on testing and varying strategic approaches to the case. In a tight budget scenario, rather than relying on feedback from mock jurors and judges to help guide which themes to emphasize and the best ways to explain elements of the case, you will likely have to rely heavily on gut instinct. Of course, that is not always a bad thing.

Looking at the three primary types of services that litigation consultants provide -- trial consulting, litigation graphics and courtroom technology support -- our general recommendation would be to spend your money where you most need to. In the majority of cases, the money is best spent on litigation graphics. A small budget generally rules out meaningful trial or jury consulting. Further, you can ask your litigation graphics firm to create your graphics primarily in PowerPoint to avoid the need for specialty trial presentation software or personnel. Here's our specific recipe of do's and don'ts on a limited budget:

Don't conduct any formal mock trial work whether online, in person or otherwise
Don't use courtroom technology support or hot-seat operators
Do use the court's technology when possible
Do split technology costs with opposing counsel when possible
Do use your own laptop in court with a rented projector and screen if necessary
Do bring a 2^nd (backup) laptop with a copy of your presentation(s)
Do work with highly experienced litigation graphics experts and ask their advice
Do expect the highly experienced litigation graphics experts to provide added value by virtue of their extensive litigation graphics previous experiences
Do provide a refined list of trial graphics you are hoping to use
Do prioritize the trial graphics that are most important
Don’t be afraid to hand draw a rough version of any image that you want if you feel so inclined
Do give your graphics firm the latitude to add new graphics that they may come up with, as much as 25 percent more of them (as long as costs were discussed up front)
Do insist on a fixed price for the work
Do ask your client to consider an alternative fee arrangement with the graphics firm (i.e. contingencies, success fees)
Do work with a firm that is highly recommended
Do work with a firm that will provide ideas not just pretty pictures
Do insist that everything be created in PowerPoint
Do insist that all text subject to potential changes is in modifiable form versus pictures of text that requires the litigation graphic provider’s intervention for editing
Do update your system to the latest version of PowerPoint
Do provide high quality / high resolution documents whenever possible for the litigation artists to use
Do prepare an outline for the litigation graphics firm to work from

By following this advice, you will almost certainly get the best results for a relatively small dollar investment.

Victory at Any Cost! Using Litigation Consultants to Dominate

Ken Lopez — Mon, 21 May 2012 17:22:00 GMT

These days, only a very few cases can be said to have an unlimited litigation budget, but some still do. As the amount at stake in toxic tort, technology patent and product liability cases soars into the billions of dollars, we do hear from clients that they must win at all costs. Indeed, at A2L Consulting, it is common for us to work on multi-billion dollar disputes. Thus far in 2012, we have already consulted on cases with over $30 billion at stake.

In this two-part series, we share the menu of options available to a law firm and its client in situations at the opposite ends of the litigation consulting budget spectrum. What is possible when budget is not an issue, and what is possible when budget is severely constrained?

By far the biggest difference between unlimited budget cases and limited budget cases is the amount of time that can be devoted to the discussion and testing of alternative strategies.

There are three key areas of trial and pre-trial work: trial consulting, litigation graphics and courtroom technology support. A high-budget case can involve several trial consultants, a dozen or more artists, hundreds of demonstrative exhibits, several mock trials, months of work and an overall onsite litigation consulting and trial technology team with between four and 12 people.

TRIAL CONSULTING

In trial consulting, the goal is to try to reach a successful result in a trial by testing and refining various components of the case to see what works and what does not. The core of this work is usually the mock trial. Most mock trial exercises involve either one or more retired judges or 30 to 40 mock jurors. In an unlimited budget case, we might perform the following services:

Early case and theme assessment with production of a wall-sized litigation mind map
Assistance in the development of mock openings and the preparation of mock trial graphics for both sides of the case
An actual mock trial with “jurors” from the trial venue representative of the jury pool who will hear the evidence and come up with a “verdict”; this can be repeated several times
A mock voir dire, showing attorneys how to pick the best jury
A juror questionnaire (if approved by the judge) to test attitudes in the potential jury pool
Work with expert witnesses to help them with their presentation and evaluate it with video and develop “jury friendly” graphics for complex concepts supporting these expert witness’ testimony (while experts often bring their own visuals, these are not typically suited to a trial environment where lay people are expected to learn from what is presented)
Background research on selected jury pool to determine potential influences and any ongoing or prior influential commentary occurring through social media
A shadow jury or shadow judge during the trial itself, providing nightly feedback to help adjust the presentation and guide the development of the case

LITIGATION GRAPHICS

For litigation graphics, in an unlimited budget case, we would obtain ideas for graphic presentations not only from the trial team and from our own resources but also from the feedback of mock jurors or judges. This can take months. Graphics should ideally be tested in front of a mock jury, and when they are, very likely new ideas for graphics will be generated. When winning at all costs is a requirement, the litigation graphics approach should allows for the greatest volume of test graphics:

With time and budget allowance, litigation graphics can be created by the hundreds and refined down to the most effective possible – a no holds barred approach to creativity leveraging the significant trial experiences of our litigation consultants and litigation graphic artists
Development of sophisticated printed trial boards– with layered / interactive additions that potentially can be taken into the deliberation room and in the hands of the jury.
Create physical models that can be handled and manipulated by the jurors

COURTROOM TECHNOLOGY SUPPORT

For courtroom technology support, in a major case it is common to have two or more hot-seat operators working on our team. Before trial, these operators and others will:

Set up a secure war room for effective operation while on site for trial
Assure effective equipment set up and configuration (often involving a pretrial site survey well in advance of trial)
Help witnesses work through their direct testimony
Build the trial database so that one of a million documents, video clips and accompanying transcripts can be displayed on a moment's notice
Cut 30-second deposition clips from days long video depositions
Develop new exhibits for cross and closing statements

Obviously, a level of service like this costs six if not seven figures, and only a few firms in the world are capable of it. It is not appropriate for every case, but when it is appropriate, even these seemingly high levels of expense can be very cost-effective in forestalling a verdict in the nine or even ten figures.

Additional Related A2L Consulting Resources:

Explaining Patent Claim Language in Patent Litigation

Ryan Flax — Fri, 18 May 2012 15:37:00 GMT

Quick, tell me what this patent claim language means:

Unless you’re a patent geek like me, you probably haven’t the foggiest idea how to interpret this language. But if you are an attorney in a patent infringement litigation, your job is not only to explain to a judge and jury what claim language means, but do so in a convincing and persuasive manner. If the fact finder remains as perplexed after your presentation as you were on first reading of these words, you are unlikely to win your case.

Would it help you understand this claim language – from U.S. Patent 7,657,849 – if I showed you one of the drawings from the patent? I suspect it will, so here’s one to the right.

So what have you learned now? Now you know what the claim probably means by “a touch-sensitive display” because this figure says right on it that you’re looking at a “Touch screen.” Still, what does the claim language cover, specifically? What sort of product might infringe this claim? Here’s a big hint: This patent is owned by Apple Inc. I’m sure you’ve guessed it now – this patent is written to cover this product below.

Seeing the iPhone, as in the image to the left, makes most of the claim language pretty clear. This is the now-famous Apple “slide-to-unlock” patent that covers the way users unlock the screen on an iPhone or iPad to use the device. Hasn’t the language become so much clearer now that you have the graphical information I’ve provided by showing you an iPhone?

People, including judges and jurors, are usually combination learners, and visual information is an important component of teaching and being persuasive. Now that you’ve seen the iPhone, it’s probably pretty clear to you what the claim term “display an unlock image” means. Also, it’s probably equally clear what the claim means by “transition the device to a user-interface unlock state if the detected contact corresponds to moving the unlock image along a predefined displayed path” – it means that the device senses that you’ve slid your finger along the arrow I added to the iPhone picture. Pretty clear now, isn’t it?

Now, what other products might infringe this Apple patent? What other products might use this type of unlocking feature? What about this one?

Wow, HTC's new phone looks pretty similar, doesn’t it? Are you convinced? Maybe not completely yet, but you cannot deny that the similarities in this comparison are compelling. This is a simple example of why trial graphics are so important, particularly in patent litigation when explaining claim language.

Additional Patent Litigation Resources on A2L Consulting's site:

Free E-Book: The Patent Litigation Trial Presentation Toolkit

Ryan Flax: 5 Surprises Transitioning from Patent Litigator to Litigation Consultant

20+ Articles About Patent Litigation from A2L

Free Subscription to the A2L Blog

Making Patent Drawings Come Alive!

Perfect Patent Tutorials for Your Judge

Creating a Presentation for an ITC 337 Hearing

3 Ways to Handle a Presentation-Challenged Expert Witness

Ken Lopez — Thu, 10 May 2012 10:58:00 GMT

At A2L, we have the privilege of working with experts in many diverse and highly technical fields, such as software patents, polymer patents, semiconductor patents, medical device design, environmental remediation, construction, financial disclosure, economic damages, transportation safety, corporate management and many more.

When we work with these highly educated and often brilliant specialists – people whose testimony can often make the difference between victory and defeat for our clients – our task is, quite simply, to help them be as effective as possible. We achieve this primarily by helping the attorneys painstakingly prepare them for their deposition testimony before trial and for their direct testimony during trial, including the development of visual presentations that track their testimony. Experts must not only be well prepared for their own set testimony, but even more so for every possible attack by cross-examination, which is really where the case can be won or lost.

In general, experts fall into two camps when it comes to their ability to use visual aids to support and even explain their testimony. Some welcome the help from trial graphics consultants so that their highly technical presentation will be better understood by a jury of laymen (and even the judge, who may not be technically savvy), but some are already quite certain that they will be well understood by judges and juries and don't think “charts” are going to help.

This article provides tips for how a litigator can deal with the latter, more difficult, type.

Twenty years ago, many trial lawyers believed that trial graphics were unnecessary to help them be persuasive to juries and judges. But now we have studies showing the overwhelming benefit of using visual tools in the courtroom, and especially because the pace at which people (remember, judges and juries are people) expect to receive information is ever increasing, these old-school views are no longer valid.

So how does one convince an expert witness who is a specialist on his or her subject matter and often testifies about it in court that he or she should accept some help at being understood?

I suggest three possible strategies.

Appeal to the expert’s ego. Tell the expert that most jurors and many judges are just not as smart as the expert, so they need the visual tools to help them understand it. A useful quote may inspire a willingness to accept the need to communicate more effectively. Machiavelli said, “Before all else, be armed.” But, be armed with the right tool and the understanding that the typical juror may not have a college degree and is most used to learning by watching television.
Video-test the expert. If the expert has shown any interest in improving the quality of his or her testimony, there is no better way to begin than using repeat video tests. This can be done with or without a live mock jury or an online evaluation service. In the world of performing, there is a cliché that is equally useful for the courtroom: A bad dress rehearsal means a great performance.
Give up. Why try to force someone into a situation that he or she is not ready for? The expert, whom you need to look as confident as possible, will simply register discomfort on the stand. And in expert testimony, persuasion is 20% what you know and 80% how you feel about what you know. The reality is that, if the suggestions above have failed, this is probably the wrong expert, and next time, you should shop around. As a litigator, you should no more have to explain the need for thoughtfully developed visual aids to an expert any more than a client should have to explain this to you. After all, one cannot after all expect to solve today’s problems with yesterday’s tools.

5 Top Litigation Consulting Report Articles from Q1

Ken Lopez — Tue, 08 May 2012 16:06:00 GMT

After a year of providing expert commentary on trials, litigation graphics, jury research, courtroom hot seat best practices and similar topics, I think it’s time to take stock.

In the past year, the A2L Consulting blog, The Litigation Consulting Report, has gone from zero subscribers to nearly one thousand. There have been more than two thousand downloads from our popular litigation e-book series. We have given away four iPads, a prize we give each quarter to one randomly chosen subscriber. And more than anything else, I am very excited that there have been more than 20,000 visits to our litigation-focused blog, making it one of the most popular litigation blogs.

Below are snippets of the most read articles in our blog for the first quarter of 2012 and the most read articles from the past year.

5 Surprises in Going from IP Litigator to Litigation Consultant

Ryan Flax — Thu, 03 May 2012 11:30:00 GMT

by Ryan H. Flax, Esq.
Managing Director, Litigation Consulting
A2L Consulting

Ryan Flax joins A2L Consulting on the heels of practicing Intellectual Property (IP) law as part of the Intellectual Property team at Dickstein Shapiro LLP, a national law firm based in Washington, DC. Over the course of his career, Ryan has obtained jury verdicts totaling well over $1 billion in damages on behalf of his clients and has helped clients navigate the turbulent waters of their competitors’ patents. He has leveraged his significant experience in cases related to a wide array of technologies, including medical devices and systems, semiconductors, biotechnology, chemical engineering, mechanical engineering, software, and more. Most recently, Ryan was part of the Dickstein Shapiro team that brought 2011’s largest patent verdict totaling (so far) close to $600 million, which is also the 6^th largest patent verdict in history (Bruce Saffran, MD, Ph.D. v. Johnson & Johnson et al.). It was during this experience that Ryan realized the excellent fit between his considerable expertise and skill sets as a patent law specialist, and his penchant for designing highly effective trial presentation materials through his collaboration with A2L Consulting. Ryan made the move to A2L Consulting to become A2L’s Managing Director, Litigation Consulting. Ryan earned his Bachelor of Science degree in Biology from Wake Forest University and his Juris Doctor degree from Southern Methodist University Dedman School of Law. Between his undergraduate studies and law school, Ryan was a Laboratory Scientist conducting DNA research at the R.J. Reynolds Tobacco Company.

As a seasoned litigator and IP law specialist, over the last decade I saw the discipline of trial presentation evolve into a sophisticated art form of balanced science and persuasion. It is no longer good enough to take the complex and make it simple, but, to be effective, litigators must do this in a way that skillfully and persuasively communicates the facts and themes of the case. Litigation graphics, especially those presented in opening statements (and at claim construction in patent matters), can literally turn the tide for or against your case.

I have had the opportunity to practice this “art” in my role as a litigator and collaborate with some great litigation graphics specialists and it is my great pleasure to announce my latest collaboration. I have moved from a position as a practicing litigator at a prominent national law firm with a vibrant IP practice to an exciting new role as the Managing Director, Litigation Consulting at A2L Consulting.

Although my new position and my old one have many things in common, they are quite different in a number of ways: one of the most interesting distinctions stems from the fact that, as a trial lawyer, I was keenly aware that relevant and determinative facts often emerge from literally millions of pages of documents. It’s all too easy to get lost in the details as you try to sort out your case and find the best pieces of evidence for each point that can and must be proved at trial. And this propensity for detail can be compounded when one is obliged to respond to an opposing counsel's case.

In such situations it can easily become difficult to see the forest for the trees as you begin looking at each individual proverbial tree under a magnifying glass to identify its species and recognize its characteristics. There are almost always a lot of details to get lost in, yet it must never be forgotten that jury cases are ultimately about the forest. Eventually, a trial lawyer needs to step back and regain perspective. This is where a litigation consulting firm becomes essential.

The litigation consulting firm is unlikely to get bogged down in details and can maintain the perspective needed to develop a winning trial strategy. The earlier a law firm engages a litigation consultant, the better. One crucial role that a litigation consultant can play is to develop (and help develop) a working story for the client’s position early in the case. This will necessarily be a flexible story that can be adapted to the facts as they are revealed in discovery, to the way the case progresses procedurally before the court, and in response to the opposing party’s positions. Because A2L expertly utilizes seasoned attorneys as litigation consultants that support multiple trials every month (and hundreds over the years), our ability to add significant value to your litigation team cannot be overstated.

With all this in mind, as I make my transition from law firm litigator to litigation consultant, I have encountered a few surprises. Here are my top 5, in no particular order:

Attorneys have a surprisingly wide variety of styles in developing and litigating their cases. Some prep early. Some prep late. Some 1^st chair litigators do not get involved in a case until a couple of weeks before trial, while others tend to micromanage from the start. Some take advice from dozens of collaborators. Others work alone. And, when it comes to trial graphics, some litigation teams like to sit down and collaborate with their consultant team to develop the graphics while others prefer the electronic (email) “tennis-style” back-and-forth volley of graphics and edits from consultants to litigators.
Many trial lawyers delay a longer time than I would have expected in developing a coherent theme and story of their case. At my former law firm, I had the privilege of working with some of the best in the business. Most of the trials I have seen had themes and stories worked out many months (or literally years) in advance of trial. However, I also see effective trial attorneys now doing this work on the eve of trial.
Even I, an experienced and veteran litigator, can be swayed (surprisingly easily) to either of the opposing positions of a case depending on how well they are presented. I have been so used to living in and believing one side of a case for so long, I am amazed by the power of a good presentation to convince me that an argument is correct.
Few things are more valuable than brainstorming the key issues, but it is surprising how long this can take even for the simplest of issues. If you’ve ever wondered what a litigation consulting firm looks like behind the scenes, think of the popular A&E show Madmen. Smart and experienced people combine experience and intellect to develop the best approach to presenting a case or an argument within a case. The brainstorming goes on for hours and is repeated over days, weeks, and months (if available) and produces amazing results.
I wish I had utilized litigation consulting firms to their full potential when I was litigating cases. As an insider, I now see the value of getting the outside perspective of people who spend all of their time either working in court or preparing others for it.

Armed with my “aha moments” and lessons learned in my first few days here at A2L Consulting, I am looking forward to achieving great things in my new position and to helping A2L Consulting’s clients do likewise in the courtroom.

I invite you to contact me, download A2L’s complimentary Patent Litigation Trial Presentation Toolkit and subscribe to this blog, to which I will be contributing frequently.

In Trial Presentation - A Camel is a Horse Designed by Committee

Ken Lopez — Fri, 27 Apr 2012 19:17:00 GMT

There is an old expression that a camel is a horse designed by committee.

The expression means that when many individuals design something as a group, every imaginable feature will go into the finished product – and it will end up with many important features. But the product will have lost its beauty – and sometimes will have lost some of its usefulness as a complete entity.

Working with trial teams to create a trial presentation can sometimes feel a bit like designing a horse and ending up with a camel. Many people provide lots of input on a particular presentation and sometimes, it ends up that too many features have been added to a single trial presentation. Unless a strong leader seizes control and dictates the final content, the project can go in any number of directions at once, and it may fail to be as outstanding a product as it can be.

An easy business comparison is Apple. There, great design is at the core of the company's success and has made it the most valuable company in the world. Since the 1990s, the man behind this great design is London-born designer Jonathan Ive. Ive, Apple’s senior vice president of industrial design, has been responsible since 1996 for leading a design team widely regarded as one of the world’s best. Ive has been said to have “the obsessive desire to create products that are meaningful to people.”

Ive is ultimately responsible for the design of the iMac, the iPod, the iPhone and the iPad. It was he who brought the great designs to Steve Jobs for his consideration. Jobs would pick among Ive’s proposed designs. Fortunately for us, Jobs was right most of the time. What we never see from Apple, however, are all the rejected designs.

At A2L, we see ourselves as the Jonathan Ive of a trial team, constantly bringing great trial presentation ideas and prototypes forward with the hope that the first chair litigator will see something that he or she likes. In my experience, the stronger the leader, the more likely it is that a good trial presentation design approach will be selected and the camel-like result avoided.

Our recommended approach when lots of individuals need to provide input on a project is simple. Everyone has a voice, but only one person has a vote.

Explaining a Complicated Process Using Trial Graphics

Ken Lopez — Tue, 24 Apr 2012 16:12:00 GMT

In our work as trial graphics specialists, many cases require us to prepare a demonstrative exhibit that simplifies a complex process. This could be a scientific or technical matter such as how environmental remediation is conducted, how surgical mesh is used, or how data backups are migrated, or it could be a business or governmental matter such as how a form of bond obligation is created and sold or how a government contract is bid and awarded.

The key to making a successful process chart or flow chart is to create a simple trial graphic that anyone can quickly understand. It does not have to spell out every last detail of the science, technology, business concept, or governmental action involved; it merely has to discuss it accurately and in a way that will help the judge or jury understand what is at issue in the case.

Here are some examples of process chart trial graphics that we have used and that we thought were effective.

In this video below, we use PowerPoint to explain how video playback and freeze frames are handled through the use of tagging technology. This was a very valuable trial graphic in a patent case.

In the presentation below, we explain, in schematic form, the hydraulic fracturing (fracking) process that is used to extract natural gas from rock. The presentation shows how far below the earth’s surface fracking occurs and the industry’s routine use of cement and steel casings to protect groundwater from the tools and substances used in the fracking process.

In the presentation below, we show in graphic form the process in which collateralized debt obligations are created by investment banks. Through the use of Prezi presentation software, we were able to make this highly technical and complex matter comprehensible to a fact finder by introducing the concept of an “investment” and then showing how CDO’s are simply a type of investment.

In the trial graphics, we explain the drug development process in the United States and the process for regulatory approval of new drugs by the Food and Drug Administration. This PowerPoint demonstration helped a jury understand the length of time that the process can take, why it can take so long to bring a drug to market, and all the steps involved.

Below, we introduce a jury to the process of creating a FLIP (Foreign Leveraged Investment Program). By numbering the steps in the process and creating arrows from the taxpayer to other entities, we were able to show how this tax shelter unfolds.

The PowerPoint trial graphics below, created for a patent trial, shows how a coal conversion process occurs.

3 Styles of Document Call-outs Used at Trial

Ken Lopez — Fri, 13 Apr 2012 15:35:00 GMT

Whenever a litigation team presents a document in a graphic way to the jury or other fact-finder at trial, there is an occasion for a document call-out. A “document call-out” is a term of art that means taking a document that is in evidence at trial and highlighting some key portion of it for easy reading and to draw the viewer's attention to the key language.

There are three usual ways to perform a document call-out: With trial presentation software such as TrialDirector, with a static exhibit with something highlighted, and with a PowerPoint presentation.

Each of these techniques has its pluses and minuses, and within each of these options there are various styles. Here is a summary of the pros and cons.

1. Within Trial Director, there are a variety of tools for creating document call-outs, either in advance or live, on the fly. In this video, you can see the screen of one of our hot seat trial technicians as he makes document call-outs on the fly during a televised arbitration. Here, certain key accounting figures are highlighted through the use of color, the use of a moving cursor, and the use of a zooming-in technique to make certain numbers more prominent.

2. In a static exhibit, when used as the old-fashioned printed foam core trial exhibit board or on a slide, the document call-out becomes quite powerful. In today's cases, where most exhibits are presented on screen, a printed board of the key document in a case can be a great tool.

Further, sometimes the document call-out can provide something more. In the below document, the message we wanted to convey to the jury was that the failure to follow procedures on the ground (to STOP traffic) was what led to the accident, not air traffic control. The octagonal red area functions both as a document call-out, to highlight the established policy on the ground when there is an incoming helicopter, and also as a strong visual reminder that it was necessary to stop traffic and that this was not done.

The call-out below emphasizes the crucial language of an insurance policy defining the important term “accident.”

3. In PowerPoint slides, there are various techniques for calling out document text culled from various courtroom presentations. In this series of slides captured from a variety of PowerPoint presentations, we illustrate a number of common document call-out techniques.

The Best Ways to Use Calendars in Legal Graphics

Ken Lopez — Tue, 10 Apr 2012 13:28:00 GMT

We have previously discussed how valuable timelines used as legal graphics can be in the presentation of facts at trial. As we have noted, most cases involve the placing of events along some sort of time sequence, and timelines, if they are well designed, can give jurors a straightforward introduction to the facts of a case. In fact, we recently released an e-book describing best practices for the use of timelines and legal graphics at trial.

Like timelines, calendars are also an intuitive way to organize facts and events that occur in a time sequence. In fact, they are even more intuitive because everyone is familiar with them and because they help everyone organize information on a day-to-day basis. Calendars can be especially helpful at trial when there is a lot of data that must be conveyed quickly and understandably, and when that data must be understood as a time sequence. This could involve conversations, meetings, appointments, dates of official events (such as the signing of a will or a contract), and the like.

In What You Didn’t Learn In Law School About Trial Practice (2008), longtime Indiana trial lawyer Charles Bruess wrote: “In an employment discrimination case in which the defendant company maintained plaintiff was discharged for excessive absenteeism, an issue was what days plaintiff worked or did not work. Counsel brought large monthly calendars, placed them on an easel, and, as the witness testified as to the days worked or not worked, the dates were marked accordingly on the calendars. The calendars were marked as exhibits and were introduced into evidence.”

Below, to cite another legal graphics example, we used a calendar to illustrate key dates in the RFP process for a government contract, starting with the date on which the compressed RFP was issued by the Department of Defense.

In this series of legal graphics we show, in a partnership dispute, the dates on which the defendant was in the office and the dates on which he received calls or faxes from the plaintiff.

In an employment case, we used this ordinary calendar legal graphic to illustrate the dates on which a plaintiff took days off from work for various reasons. A simple color-coding technique made it easy for the jury to understand the sequence.

Next, in a medical treatment calendar legal graphic, we showed the dates of key surgeries, office visits, and hospital stays, again accompanied by a simple color-coding technique.

Finally, we used a calendar legal graphic to show key dates in the development of an invention that was at issue in a patent trial.

5 Tips for Using TrialDirector and Trial Technicians Effectively

Ken Lopez — Thu, 05 Apr 2012 11:35:00 GMT

Indata's Trial Director has become the dominant trial presentation specialty software, second only to PowerPoint in courtroom use. It is a powerful tool that is available to trial lawyers and to litigation consultants and represents the state of the art.

A trial lawyer has written: “Trial Director is predominantly a program used for viewing documents, photographs, videos, animations and other visual media from a computer. In my case, Trial Director made sense for two reasons: first, as a document display mechanism for trial preparation and as a reference tool; and second, during the litigation at the time of trial for "demonstrative" purposes. One of the key features of Trial Director is its ability to project documents, photographs and other media to a large monitor or screen for viewing by judge and or jury. A busy trial attorney will appreciate that preparation in advance of trial is the key to success.”

Here are the top five tips for the effective use of Trial Director from our 6 trial technicians or “hot-seat operators,” who are so called because these people who run the software are responsible for what the judge and jury see in the courtroom. One bad mistake -- and the credibility of the lawyer and case could be called into question. This is a service area where perfection is a job requirement.

PREPARE ANNOTATIONS EARLY: When possible, make annotations in advance. In a jury trial, it is always a good idea to ask the judge in advance about this.
DON'T LOOK TOO CANNED: On the other hand, always be prepared to do some things on the fly – to locate pieces of prior testimony or exhibits that will work well at the moment and couldn’t have been anticipated. This can help keep the jury’s attention and ensure that the case doesn’t look “canned” but is developing before the jury’s eyes.
ADVANCE CODING IS A PLUS: Coding a database in advance with Bates and exhibit numbers can make it a breeze to find exhibits and documents when you need them.
PREP DEPO CLIPS WELL IN ADVANCE: Create video clips in advance to remove objections and long pauses. It’s very important to respect the jurors’ time and their public service rather than bogging them down with slow-developing clips.
TRIAL TECHS ARE TRUSTED ADVISORS: Attorneys should see trial technicians – the “hot seat” operators – as invaluable members of the team, not just as computer jocks or IT types. A seasoned trial tech has been "in the room" many times before, probably more often than most attorneys, and the trial tech’s experience should carry some weight. It doesn't hurt to ask their advice.

Related material on A2L Consulting's site:

6 Tips for Effectively Using Video Depositions at Trial

Ken Lopez — Mon, 02 Apr 2012 18:52:00 GMT

The old-fashioned deposition, with the court reporter recording every word and producing a written transcript, is giving way to the video deposition, which permits a jury and judge to actually see the witness and get a feeling for his or her style and credibility that can’t be obtained by looking at a printed page. In addition, the witness’s body language, which was completely opaque in a written deposition, is now available to the jury.

Video depositions are now used in most large trials – and as much as the rules of evidence will allow, they are used both in direct testimony and on cross-examination. As a legal employment website notes, “With the prevalence of multimedia technology, video depositions are now preferred over simple transcript.”

We polled our six national trial technicians at A2L Consulting with more than 500 courtroom appearances between them for their tips on using video depositions at trial and using TrialDirector most effectively at trial.

Here are six good tips to follow:

PREPARE DEPO CLIPS EARLY: Daniel Carey, our lead “hot seat” trial technician, suggests that it’s always important to leave a lot of lead time for preparation, if there’s some possibility that an opposing witness will say something at trial that contradicts his or her deposition testimony. Possible impeachment clips need to be created in advance, then reviewed and saved in such a way that they are able to be pulled up on the fly in the rare occasion that they are actually used in court -- usually with a witness that wasn't prepped to the best of opposing counsel's abilities.
KEEP DEPO CLIPS SHORT: Keep deposition videos short and sweet. You run the risk of losing jurors if they are too lengthy. This especially holds true if you play them after lunch, when everyone’s attention tends to flag.
USE THE SCROLLING TRANSCRIPT SELECTIVILY: Some attorneys think that subtitling (placing the witness’s words on the screen and scrolling down as he or she speaks) can be distracting, but, like much in the law, it depends. Seeing and hearing the words simultaneously can cause memory retention problems due to the redundancy effect. We recommend using the text only when the sound quality in the courtroom is poor, the sound quality on the recording is poor or the accent of the deponent is unfamiliar to the jury panel.
AVOID COURTROOM OBJECTIONS: Try to get advance agreement from all parties on any depositions to be played in place of live testimony and any objections ruled on by the court before trial begins.
LIMIT THE NUMBER OF DEPO CLIPS USED: Using video depositions for impeachment can have a powerful effect, but using the transcript for most answers is sufficient. By saving the most powerful clips for video, they do not become routine. Quality is better than quantity.
MAKE GOOD DEPOSITION VIDEOS IN THE FIRST PLACE: Train your witness to move forward in his or her chair rather than leaning back or slouching. This form of body language has been shown to provide greater credibility and authority.

New Study: A Graphically Immersive Trial Presentation Works Best

Ken Lopez — Thu, 29 Mar 2012 13:25:00 GMT

A recent study about the best use of litigation graphics during trial reveals some new insights. This study was conducted by Persuasion Strategies, a litigation consulting firm that is part of Holland & Hart, a law firm.

The study team was led by Ken Broda-Bahm, a leader in the art of visual presentation in the courtroom. With a doctorate in speech communication that emphasizes rhetoric and legal communication, Dr. Broda-Bahm is a genuine expert in jury consulting.

In the Visual Persuasion Study, Dr. Broda-Bahm and his team conducted extensive research about the best approach to trial presentation in the courtroom. Their experience, which remains the topic of continued research, reveals that a graphically immersive approach to trial presentation gets the best results with jurors.

In a project that compared various uses of graphics and their effects on potential jurors, Dr. Broda-Bahm wrote, he and his team learned something very important: “The occasional use of graphics is not enough.”

The study looked at 1375 mock jurors and tested five different ways of presenting a defense case: (1) no litigation graphics; (2) flip chart graphics created live; (3) static graphics; (4) animation; and (5) an immersion style of presentation in which animated and static graphics were in constant use.

The team found that in order to obtain the full benefits of visual persuasion, attorneys should be using a continuous approach, giving the jury something to look at in a constant manner, at all times. Instead of following the practice of most attorneys of only using the screen periodically to show a document or image when a particular need presents itself, effective attorneys use graphic immersion -- an approach relying on continuous imagery to reinforce all parts of the message. This approach turns out to be most effective of all the graphic modes that were tested.

Graphic immersion, Dr. Broda-Bahm’s test results concluded, greatly enhanced positive juror response, beyond the results that came from occasional use of static graphics or animation. It is possible that this result springs from the fact that when something is both shown and told to jurors, they engage two separate sensory processing areas of their brain – the auditory cortex and the visual cortex -- thus sharing the cognitive load and making it easy for the brain to process the information.

Dr. Broda-Bahm told me that the study has convinced him that “attorneys should be using PowerPoint throughout opening and closing and the same is true while experts are speaking.”

We believe that as the disciplines of jury consulting and litigation graphics become increasingly intertwined, more study is needed on what are the most effective techniques throughout the trial presentation.

Who Are the Best Demonstrative Evidence Firms?

Ken Lopez — Mon, 26 Mar 2012 12:38:00 GMT

The National Law Journal is currently running a contest entitled “The Best of NLJ” to select the top providers of services to law firms nationwide. Everyone at A2L Consulting and I would, of course, like your vote, but more important than anything, please do vote.

Last year, A2L Consulting was voted the best demonstrative evidence provider in the Washington, D.C., area – our home base.

We are hoping to win the national honor this year. Voting is open through March 31, 2012.

I’m very excited about this contest not only because we were nominated, but also because it indicates that the demonstrative evidence industry is fully understood and accepted in the legal community and is here to stay.

Our type of service – using psychology and technology of all varieties to help trial lawyers present evidence in a clear and convincing way – is barely 25 years old. When A2L Consulting opened its doors, as Animators at Law, in 1995, we spent more time selling the need for our service than selling our firm. Now, most large cases go to trial with at least two demonstrative evidence firms involved.

It turns out that it is quite difficult to make the complex simple. It takes time and expertise to do it well. With firms like ours going to trial all the time – far more frequently than even a top litigation law firm – we have a great deal of experience. As technology and change accelerate, cases have become more complex, and the need for demonstrative evidence firms has never been greater.

It is really quite amazing what we do – advise some of the nation’s best communicators about how to communicate more effectively.

As a finalist in the NLJ competition, we are in good company with other national firms such as TrialGraphix and DecisionQuest. We are proud to be in the same category as firms like these, which helped create our industry. DOAR, formed in 1989, helped bring technology to courtrooms in the 1990s. DecisionQuest popularized jury consulting on a national scale, and TrialGraphix helped give one element of our service a name.

I believe our unique approach to litigation consulting, using visually oriented attorneys and former litigators to lead our project teams, has profoundly improved the way top litigators try cases.

We would like your vote. Just go to https://www.surveymonkey.com/s/NLJBest2012, and

Fill in your name and other information.
Locate the question about the BEST DEMONSTRATIVE EVIDENCE PROVIDER. The 60 or so questions are presented in random order.
You may respond to the other questions as well but you need not do so. Then click through to the end of the questionnaire to “Done.”

We hope that this contest is just another step in the recognition of A2L Consulting as an industry leader.

5 Inspiring Information Design/Data Visualization Sites for Lawyers

Ken Lopez — Fri, 23 Mar 2012 13:48:00 GMT

When a litigator engages a trial graphics consultant, he or she will most likely be getting more than anticipated - an expert in information design.

Information design, a field that is less than 50 years old, has been defined as a process that is “concerned with transforming data into information, making the complex easier to understand and to use. It is a rapidly growing discipline that draws on typography, graphic design, applied linguistics, applied psychology, applied ergonomics, computing, and other fields. It emerged as a response to people's need to understand and use such things as forms, legal documents, computer interfaces and technical information.”

Less than 30 years ago, the parallel field of trial graphics emerged – and trial graphics specialists can learn a great deal from the art and science of information design, and can contribute to the growth of that field as well.

After all, lawyers engage in information design and data visualization all the time, and demonstrative evidence firms such as ours provide litigators with the skills and specialized resources to provide information in a way that is not only easier to understand but also persuasive to a judge, jury, or other fact-finder.

In the courtroom, of course, the demands on the provider of information design are even more intense than in the normal situation, where the designer creates a map, chart, or similar graphic for travelers or viewers to understand. In the courtroom, the stakes are higher: the fact finder must quickly and almost intuitively come to an understanding of the subject matter and must find it convincing.

So it’s not surprising that the best demonstrative evidence firms look to some of the best information design web sites and blogs for ideas and inspiration. Here's where the designers at A2L Consulting go for inspiration:

Flowing Data is an excellent site with years worth of curated information design graphics including one here to illustrate the relative odds of each team winning the NCAA men’s basketball tournament.
Cool Infographics shares a unique style of info graphics including how the iPad can replace any number of other devices and actually save money for its users.
Information is Beautiful focuses on data visualization, often a difficult and important task in litigation. Most will find this info graphic showing the true size of Africa surprising.
Information Aesthetics is best for viewers with an interest in "big data" visualizations like the entire corporate history of GE via an interactive graphic. We often are tasked with describing decades of corporate history, and a simplified version of this chart would be suitable for courtroom use.
The New York Times is also an outstanding source of excellent data presentation. Here, the designers present the President’s proposed 2013 budget. In this fascinating graphic, they display information about how Americans spend a typical day – eating, sleeping, working, engaging in recreation, and the like.

There is almost no limit to what creative designers can accomplish – whether building a subway map or an exhibit in a patent infringement case.

Lists of Analogies, Metaphors and Idioms for Lawyers

Ken Lopez — Fri, 16 Mar 2012 17:03:00 GMT

How does a lawyer move from the arcane to the everyday and get jurors to follow along? Enter the metaphor, simile, or idiom.

We use these “figures of speech” all the time in conversation, often without realizing we are doing so. Whenever we say we need to “level the playing field” or “push the envelope” or “draw a line in the sand,” we are using a metaphor. When we say something is “as dull as dishwater” or “as slow as molasses,” we are using a simile. When we tell a friend to “break a leg” for good luck, we are using an idiom.

Briefly, a metaphor is a figure of speech that uses one thing to refer to another as a means of making a comparison between the two. A simile actually makes the comparison between two dissimilar things directly with the use of the word “like” or “as.” An idiom is an expression that is more than the sum of its parts (think “raining cats and dogs” or “spill the beans”); it is usually based on a metaphor, though the metaphor may be a bit “buried” after centuries of use. These figures of speech have one thing in common: They are all used as analogies, to compare one thing to another.

In a trial, a lawyer can use a metaphor to show the jury how something works or how an event occurred, based on an analogy to another thing or process that jurors know well from their everyday lives. For example, in an antitrust case, when describing how a group of competitors squeezed another company out of the market by denying it the opportunity to buy a needed product, the lawyer might tell the jury that the conspirators choked the life out of the other company as if they had denied it the air it needed to breathe.

Ray Moses of the Center for Criminal Justice Advocacy, a Texas-based nonpartisan, grassroots training resource that helps lawyers become competent criminal trial practitioners, writes well about analogies and metaphors.

“Jurors remember facts and concepts that are familiar to them or that can be analogized to familiar subjects,” Moses writes. “Those who aspire to be effective communicators and persuaders must learn to argue by analogy and to explain by stories. This is particularly true when we are seeking to clarify and tie together complex facts, abstract ideas, or legal concepts. If facts or legal issues become overcomplicated, jurors become overwhelmed. It is here that an appropriate analogy may assist the jury in comprehending the import of the evidence that has been dished out during testimony, assessing the credibility of the sources of evidence, and/or understanding the application of law to facts that are found to be true.”

Below are a number of websites that are useful in finding the best analogy, metaphor, similie or idiom to use in your case:

Metaphors & Similies
[pdf] A Downloadable Metaphor List
An interesting book for lawyers on the topic
A list of idioms
A second list of idioms
A third idiom list
A list of similies
Have another List? Please leave the link in the comments!!!

Below are some additional resources on the A2L Consulting site:

What others have had to say about this topic:

Demonstrative Evidence: Using Maps as Courtroom Exhibits

Ken Lopez — Mon, 12 Mar 2012 12:02:00 GMT

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.”

We have used maps in any number of ways as demonstrative evidence to help make our clients’ cases understandable to juries and judges. Here are a few of them.

The demonstrative exhibit below is a screen capture of a PowerPoint interactive trial presentation developed to show that an area was not actually a wetland. Specific spots on the map are pegged to portions of a video that show that there is no water channel in the affected area.

The below animated demonstrative map is a screen capture of a PowerPoint interactive demonstration developed to show how New York City gets its water supply. The demonstrative graphic successfully combines the known geography of the New York State region with the actual flow of water from the reservoirs.

The next demonstrative exhibit, below, is a screen capture of a PowerPoint trial presentation developed to show how a conflict of interest was vetted in a government contracting False Claims Act dispute. This map is an excellent example of demonstrative evidence. It shows the entire United States and the locations in which vetting officers were located.

The final piece of demonstrative evidence is a map of the United States showing where various air taxi helicopter accidents occurred, to show that they are a very small percentage of all general aviation accidents.

[Free E-Book] Designing the Perfect Trial Timeline for Your Case

Ken Lopez — Tue, 06 Mar 2012 18:12:00 GMT

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.

At A2L Consulting, we have built thousands of different types of trial timelines since our founding in the 1990s. Back then, all timelines were printed, enlarged and mounted on foam core. Today, trial timeline graphics are usually electronic and have some type of interactive features.

Drawn from decades of experience with all major law firms, today we release our latest e-book from the A2L litigation series: The Litigator and Litigation Support Professional's Guide to Timelines.

Inside this valuable e-book, you will find:

25 reference trial timelines to help you overcome common trial timeline dilemmas;
Learn A2L's Top 5 Trial Timeline Tips;
and much more in this complimentary e-book.

Say Goodbye to the David vs. Goliath Courtroom Myth

Ken Lopez — Fri, 02 Mar 2012 13:17:00 GMT

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.

But although some may think that if the other side can present a “David vs. Goliath” story line, a major corporation will end up in danger of losing its case, research suggests that this is not so. In the first place, jurors have a pretty good idea about which corporations are large ones, and it won’t help to “hide the ball.”

In the second place, this sort of argument made more sense a decade or more in the past, when technology was just getting a foothold in America. Now, technology is simply a fact of daily existence, and jurors expect to see it.

In 2011, 78 percent of Americans used the Internet regularly, and just over 50 percent of Americans used Facebook. Forty-four percent of Americans owned a smartphone, up all the way from 18 percent just two years before. And these numbers are only going to go up.

Dr. Lou Genevie, a voir dire and trial consulting expert and founder of Litstrat, noted, "In our research, big companies that try to play small often pay a high price in a further erosion of their credibility. Finding the visual porridge for a big company that feels and looks 'just right' is a challenging process, very case specific, and the reason for testing the visual case long before rolling it out at the actual trial."

Trial consultant David Davis, a founder of R&D Strategic Solutions in Lexington, Mass., recalls: “In an agricultural area of Oklahoma, we worked for a client who was concerned about how their exhibits would be received by the jury and whether it would make the client appear to be slick and wealthy. In post-trial juror interviews we found there had been no problem. One juror commented, ‘I see better things on my computer every day.’ ”

Trial Behavior Consulting's Sarah Murray, a social and cultural anthropologist recognized for her expertise in trial strategy, jury selection, witness preparation and visual communication, says, “My research and experience over the years consistently show that jurors like well-executed graphics and that a "David vs. Goliath" scenario is not a problem. The problem is when a team has not well thought out its graphics or graphic communication strategy and has a lot of graphics that go nowhere but show that a lot of money has been thrown at the case.”

In a similar vein, a litigation support specialist for a United States Attorney’s office has written in the United States Attorneys’ Bulletin [pdf] “There is always some concern that using technology … will make the government look too slick or fuel the argument from defense counsel of the ‘vast resources of the federal government.’ In reality, the jury expects the government to be prepared and smooth in presenting the case to them. They already know that the government has resources.”

Thus, this supposed David versus Goliath issue ultimately doesn’t appear to us to be as significant as it once might have been, for either the David who is considering using its status to its advantage, or the Goliath who is concerned about appearing a giant. High quality preparation, irespective of stature, is what today's judges and juries are looking for and expecting.

See also: Trial Presentation Too Slick? Here's Why You Can Stop Worrying

10 Videos to Help Litigators Become Better at Storytelling

Ken Lopez — Mon, 27 Feb 2012 13:11:00 GMT

If you follow some basic storytelling and speech making principles as a litigator, you will obtain better courtroom results. Often these storytelling techniques are used in the opening statement.

But what’s the right way to do this? In law school, some of us were taught to begin our openings in a manner that often started with the phrase, "This is a case about . . . ." In speech making courses, we are taught to begin with a clever quip or to state one's belief, as I did in the opening line of this article. Some experts in persuasive communications suggest organizing content in the order of Belief - Action – Benefit, while yet other experts say to use the format of as Why - How - What.

So, which is the best way to go? The simple answer is that the science on the topic is far from settled. In view of that, here are ten 10 videos that will help a litigator tell better stories in opening and become a better storyteller.

Simon Sinek is loved by marketers, raconteurs and persuasion experts for this simple and incredibly compelling TED Talk. It has changed the way I present information, whether in opening statement, a corporate speech or a blog article. For litigators, the lesson to follow is to consider his golden circle when preparing an opening.

Organize your speech on the basis of why, how, what, not what, how, why. Don't say, for example, “I represent XYZ pharma company, a great company that is more than 100 years old. XYZ stands here accused of price-fixing. I am asking you today to not reward the plaintiffs because they are simply greedy and serial plaintiffs.”

Instead say, “The plaintiff is asking you to believe the unbelievable. To find for the plaintiff, you would have to buy the notion that a dozen highly paid executives from a dozen companies and their accountants and their lawyers and their bankers all engaged knowingly in a conspiracy in which they stood to gain very little. Today, I am here representing XYZ pharma company, and I am asking you to stop plaintiffs from tarnishing our good name and put an end to plaintiff's greed."
A Chicago DUI attorney reminds us of the importance of telling a story that is different from your opponent. All too often I see accomplished defense counsel spending the majority of their case explaining why their opponent's case is wrong rather than telling a different story.
Harvard Law School's Steven Stark introduces his lecture on storytelling.
Ira Glass discusses the building blocks of storytelling. While he is discussing the elements of a journalistic style, his ideas are equally applicable to the courtroom.
A UNC Professor lectures on the topic of storytelling and provides three examples of effective storytelling.
In this Harvard Business Review interview, Peter Guber discusses the art of purposeful storytelling. He reminds us of the value of not reading from a script. Memorably, he reminds us that we are in the emotional transportation business.
In this helpful video, litigator Mitch Jackson reminds us of how to share stories with a jury.
Litigator Jeff Parsons discusses how to tell a story and one key to successful storytelling: knowing your audience.
Attorney Jeffrey Kroll moderates a panel on the Power of Persuasive Storytelling.
In 4 minutes, this TED Talk humorously but effectively shows the power of combining a visual presentation, here from an iPad, with an oral presentation.

Below are some additional resources on our site and off our site that you may find useful:

Making the Complex Understandable in Pharmaceutical Cases

Ken Lopez — Fri, 17 Feb 2012 17:54:00 GMT

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.

For this reason, it is crucial that a litigator make these often complex cases understandable for the fact-finder, whether judge or jury. Once understanding is achieved, persuasive graphics and argument can be layered on top of that understanding.

Among the types of cases that pharma companies can frequently encounter are:

Products liability cases. Often, plaintiffs and their lawyers use pharma cases as attempts to develop new theories of liability and to establish new theories of causation of harm. The defendant drug companies and their law firms need to explain to jurors, who are likely to be suspicious of big pharma companies, why the company should not be held liable. Making complex information understandable in these cases is essential.
False Claims Act cases. Under the False Claims Act, someone who believes that the government has been defrauded can bring a case that the Department of Justice has the option of joining. These cases can include charges of billing fraud, kickbacks, violations of good manufacturing practices, wrongdoing in clinical research, and other allegations.
Antitrust litigation. As is true of many industries with only a few large participants, the pharma industry is often the target of antitrust cases. These can be either civil or criminal in nature and can be brought either by the government or by private parties. They can include allegations of monopolization of the market for a drug, charges that a merger is illegal, or allegations of illegal collusion among competitors.
Patent litigation. This type of litigation has become common because of the passage of the Hatch-Waxman Act in 1984. The act provides a mechanism for generic drug companies to quickly gain approval to sell a generic version of an existing brand name drug. Here, the complexities of the process can be a struggle for a jury. Thus, the use of litigation graphics is essential to make complex information understandable.

For example, under Hatch-Waxman, 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. If that approval is delayed, the brand name firm continues to be able to lawfully sell its brand name drug without a lower priced generic equivalent in the market. One lawful mechanism that brand name companies can use that may have the effect of delaying the approval of an ANDA is the filing of a Citizen Petition with the FDA.

A Citizen Petition filed by a brand name firm would typically allege that the proposed generic drug is not equivalent to the brand name drug and thus should not be approved for sale. Should the Citizen Petition be deemed only a mechanism for delaying approval of the generic drug rather than one filed with the public's health interest at heart, the brand name firm would be liable for antitrust violations.

In a case of this type, our challenge in creating an effective trial presentation was to create trial exhibits that taught the jury and persuaded the jury simultaneously. The trial exhibits (below) were part of a PowerPoint presentation that explained how differently Citizen Petitions and ANDAs are handled at the FDA.

Similarly, in the “Hatch Waxman ANDA Bioequivalency Exhibit” (below), the straightforward area graphs show a jury how the proposed generic drug has a different concentration level and is thus not bioequivalent. This exhibit helped lead to a complete defense verdict for our client, a major pharmaceutical company.

Often pharmaceutical litigation involves topics at the microscopic level, and it is in such instances that making complex information understandable becomes especially critical. In the short animation below, we demonstrate how an impenetrable layer is created by a polymer. This explanation was critical to a jury's understanding in patent litigation worth hundreds of millions of dollars.

Paraphrasing Mark Twain, if litigators had more time to prepare, they would usually make a shorter presentation that is easy to understand. The key to a shorter, more efficient presentation is taking the necessary time to make complex information easy to understand or hiring an effective demonstrative evidence/litigation consulting firm. Like many aspects of A2L Consulting's work, making the complex understandable is simple but not at all easy.

Learn more about A2L Consulting's work:

Legal Graphics in Cases Involving Architecture

Ken Lopez — Fri, 10 Feb 2012 14:38:00 GMT

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.

Architecture-related litigation, especially when major damage has occurred, can involve high stakes. As a law firm that works in the area has written [pdf],

The goriest photos, the most damning letters from the builder, the contract specifications, juxtaposed with the defense expert's field notes stating that some critical element is missing and noting damage. That's what the attorney begins assembling, and in some logical, meaningful manner, if possible.

* * *

As the trial date approaches, court-imposed deadlines for exchange of motions become the new reality. Trial briefs, responses and replies on legal issues; motions seeking to prevent introduction of evidence (also called motions in limine); exhibit lists, witness lists and a myriad of other tasks are due. The exhibit and jury consultants must be summoned to assist in creating oversize photos, boards, demonstrative exhibits, models, flow charts, and any other visual aid that might help in keeping the jury focused on the facts, and on "our" side of the case.

We have had considerable experience creating legal graphics in many types of litigation that center around architecture and design. For example, when buildings are damaged as a result of a natural disaster such as a hurricane or tornado, litigation often follows. In the legal graphic presentation below, we created an interactive PowerPoint map of a building to show the damage from many perspectives.

In a very different kind of matter, we are frequently involved in disputes involving commercial leases in which millions of dollars are at stake. Below, a simple legal graphics site tour comes to life with interactive photos of the office areas in question linked to the floor plan. This presentation made an otherwise dry exhibit much more gripping.

In the case below, the issue in a landlord-tenant commercial dispute was whether the architectural sight lines permitted a retailer’s branding to be clearly seen. The planned new plaza would introduce new sight lines and possibly breach the lease. Our courtroom legal graphics showed how that occurred.

With careful planning, legal graphics can help any architecture related dispute be understandable and those same legal graphics can help persuade the fact-finder that your position is correct based on the facts and law. This is true whether the architectural dispute relates to design, construction, landlord-tenant issues, insurance coverage, environmental issues or a dispute over a contract.

Other useful resources on A2L Consulting's site related to architecture litigation:

How to Pick a Litigation Consulting Firm (Jury, Graphics or Tech)

Nina Doherty — Mon, 30 Jan 2012 15:53:00 GMT

A2L has been around since 1995 and can work on hundreds or even thousands of cases in a given year. With that experience, we have seen a great many law firms and in-house departments go through the process of finding a litigation consulting firm for litigation services such as trial consulting, litigation graphics and trial technician support.

Here is our suggested approach to an effective vetting process for a law firm considering litigation consulting services. As you will see, we think the process works best when it is structured and when each potential vendor is asked to provide the same information. Always make sure that you cover the following questions in interviewing the potential provider:

Experience and Process. How long has the firm been in the litigation consulting business – specifically, how long has it been doing litigation graphics, trial technology and jury research? Does the firm have a project management process? Will the law firm need to deal with multiple support groups, or will there be a single point of contact for the project? Does the firm have lawyers and Ph.D. consultants on staff, or is it one that focuses mostly on art or courtroom technology?

Capabilities and Work Product. What are some good examples of the firm’s litigation graphics work, its ability to create a hyperlinked e-brief, and its juror survey and jury consulting approach? Has the firm supported cases of a similar size to the one that is now before you? Has the firm received any industry awards or won similar accolades for its work? Can the firm provide on-site graphics support, in addition to trial technology?

Systems and Infrastructure. Does the firm require that you use their proprietary trial presentation software or are they able to work with Trial Director and Sanction? Do they have enough people to get the job done in a timely and effective manner? On average, how many cases do their trial technicians support at any given time? What method does the firm use to create demonstrative deliverables: Can the lawyers modify the text created by the vendor in the PowerPoint slides? Can the firm produce large boards and in what time frame? Can they make their e-briefs iPad accessible? What processes do they support for file delivery and exchange – email only, web-based, or ftp transfer?

Pricing Options. Does the firm have flexible pricing arrangements? Will it consider a fixed fee? How does the firm work to manage or avoid cost overruns? Can the firm estimate expenses in advance to develop a budget, and stick to that budget?

A law firm that consistently uses this approach is likely to find a litigation consulting firm that it will be pleased with. We sincerely wish you the best in your search!

Some other resources you may find helpful on our site:

Litigation Graphics in White Collar Cases

Ken Lopez — Thu, 26 Jan 2012 13:58:00 GMT

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.

However, we are seeing more white-collar work at A2L Consulting than ever before. It seems that defense lawyers are realizing that these days, many federal criminal laws, and alleged violations thereof, can be just as complex as a patent dispute or a commercial case.

Our white-collar criminal work usually involves helping an individual accused of a crime avoid indictment or in aiding in the defense at trial. More often than not, the allegations relate to some financial fraud and our work over the years, either for the prosecution or defense, has involved WorldCom, Enron, Celebrities, Polititions and even Usama Bin Laden (our UBL-related work was on the prosecution side).

In a fascinating article published last year in a legal periodical, Kerri Ruttenberg, a litigation partner at Jones Day, summarized a white-collar criminal case in which she used litigation graphics to illustrate the complex issues:

I often use a flow chart or timeline to condense large amounts of testimony or other evidence into a single visual exhibit to facilitate the jury's assimilation of that information. I build the chart or timeline gradually in front of the jury to control the jurors' intake of the information, and I use other design elements to reinforce key themes. For instance, during a complex white collar trial in federal court that lasted nearly four months, the evidence established that three individuals took many actions to further an accounting fraud. But my client had no knowledge of and did not participate in those activities, despite the government's allegations to the contrary. I designed the closing argument so that all of the visuals distinguished between my client (with blue slides), and the other individuals (with red slides). Later in the closing, a timeline was an effective tool for assimilating all of the incidents alleged by the government, and the blue and the red came together to graphically reinforce a key defense theme - that others (in red) consistently took unlawful actions while my client (in blue) was engaged elsewhere. Even if the jurors failed to remember each incident depicted on the timeline, they would recall the red and blue distinction and therefore would recall this important, overarching defense theme.

Ruttenberg also wrote that she uses high technology when needed but that she found a low-tech solution helpful in a white-collar case when a surveillance video was at issue:

I tested the video using a laptop, projector and large screen, but the image was too dark. So, for my closing argument, I abandoned technology entirely and instead used a large foam board to display stills from the videos arranged like a film strip. The images were clear and bright, and I held them up for the jury as I walked from one end of the jury box to the other, pointing out the important details. The jurors had a great view and were clearly engaged in the presentation, leaning forward and taking notes.

Our litigation graphics experience has been similar in white collar cases. At A2L, when a celebrity was accused of a crime, we sprung into action working 24/7 to arrange a team of artists who could help demonstrate to prosecutors, through illustration and through a group of posed actors, that the alleged crime could not have occurred as described.

In a fraud case, working for the prosecution, we developed litigation graphics, such as the PowerPoint closing below that incorporated several classic demonstrative elements cleverly into one chart. In effect, it is a players chart, a timeline and an elements/verdict form demonstrative exhibit all in one litigation graphic.

In another case where we assisted in the defense of a public official, we used a common technique during closing litigation graphics to show how many counts could not be proved and also emphasized the standard of proof.

Recall always the fundamental reason that litigation graphics emerged as an industry 25 years ago. Almost two-thirds of the population prefers to take in information visually, and on average, only 2 jurors in a 12 person jury prefer to learn by listening. If you are not supplementing a well crafted argument with litigation graphics that are more than just words on a slide, you are likely to be misunderstood by most jurors and many judges.