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. (function(){ var hsjs = document.createElement("script"); hsjs.type = "...

Have you heard about the Blomberg trial out of Houston? The case involved Andrew Blomberg– one of four ex-Houston Police Officers– who was charged with official oppression for allegedly beating a then-15-year-old suspect (Chad Holley) in 2010.   It was all caught on videotape.  Blomberg, the first of the four officers to be tried, was facing up to one year in prison.  Opening Statements were heard May 3rd, and on May 16th the jury rendered its verdict.  Not guilty.  The result?  A lot of unhappy folks in the Houston community. Why? The defendant was Caucasian. The victim was ...

Last year we blogged about a surprising study showing the recall accuracy of intoxicated witnesses. In that study, research participants who’d been drinking were just as accurate as sober research participants in describing events they had observed. New research, however, aligns more with what we expected regarding perceptual impairment from drinking. Well, sort of… What the research actually shows is that you don’t have to have been drinking at all–merely seeing billboards or other images of alcohol is enough! “Simply seeing images of alcohol, but not drinking it, influences b...

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By Dr. Ken Broda-Bahm: The Hippocratic oath also applies to doctors caught in the litigation process. In deposition, the rule is "first, do no harm" to your case. No one wins their own case in deposition. But a medical defendant might end up losing it by falling prey to some common mistakes. Depositions are taken in order to shape an adversary's case, and to be used one day by a potential fact finder. In our experience, jurors have a natural inclination to support the doctor. There is a good psychological reason for that: It is more comfortable to believe that...

The following post is by Dave Nugent, Cogent Legal’s Senior Producer At Cogent Legal, real estate and land use cases are among our favorite to support. They can offer up rich and tangible imagery to shape for jury scrutiny. We humans seem to be drawn to all things about “land.” Yet most real estate cases are really about contracts, escrows allegedly mishandled, government initiatives impacting developers, insurance coverage, or claims of fraud and breach of fiduciary duty. Not surprisingly, trial teams for such cases, on occasion, come to us focused on a document-centric visual prese...

Infographics are fabulous inventions. We can spend a long time describing the results of a study or we can simply show you a picture. In this case, it’s an infographic designed by Duke University. Yes, you saw that right. Some new research mirrors the findings of research conducted three decades ago! If you were a black criminal defendant in Florida between 2000 and 2010, with an all white jury you were convicted 81% of the time. On the other hand, if you were a white criminal defendant with an all white jury, you were only convicted 66% of the time. If, however, there were African American...

Q:    How are some doctors and lawyers able to see the right diagnosis, the right legal story? A:    They think of it before they call it. I often read At First Glance by Lisa Sanders, MD, in the NYTimes Sunday magazine.  The process of sleuthing this week's befuddling health issue to an actual diagnosis often reads like a who-done-it.  You never know what you'll uncover. Today I learned more than how to diagnose the unusual case of acromegaly in a middle-aged woman.  I learned that the process of inquiry is key.  Excerpt. ...

By Dr. Ken Broda-Bahm: Lessons for litigation sometimes come from unlikely sources. Take the recent explosion of attention to the issue of marriage equality for gays and lesbians, ignited by the President's recent statement of personal support. His evolution of opinion follows an important milestone in public support: The proportion of Americans who agree that same-sex marriages should be recognized by law has now edged barely into the majority. That has led to discussions all over the country. In one such discussion, Fox Host Shepard Smith reminded Rush Limbaugh of the public's level of suppo...

So–is it better to be ‘nice’ or ‘mean’ when it comes to salary? We’ll disclose right up front that this is not a feel good post for some of you. As it happens, if you are someone high in agreeableness, (aka ‘nice’) you are likely paid less than someone less agreeable (aka ‘nasty’). There are naturally some caveats in this research along with some (likely expected) gender differences. Most of us know that men are still  (across the board) paid more than women. That isn’t news. But the rest of these findings might be–although you probably “knew” this on an in...

According to some new research, if your case facts promote pro-religious themes or invoke pro-religious feelings, and you are plaintiff/prosecutor, you want intuitive jurors. If you are defense, you want those analytical jurors. If you weren’t thinking that far ahead, or end up with a mix of both types (the likely outcome) on your jury–you want to tailor your case narrative and case themes to resonate with both sorts (again depending on the side of the aisle). In other words, you want to encourage the analytic to be more intuitive and encourage the intuitive to embrace the analytical. ...

By Dr. Ken Broda-Bahm: It will not go down as one of the doctor's smartest Facebook updates. Returning to work at Wales General Hospital last December, Dr. Brendan O'Riordan added a note on his status: "Back and causing chaos," he wrote, "Been in theatre this week slaughtering the innocent." That stab at humor is not so smooth for a surgeon in any context, but the statement was made all the more awkward by subsequent events: Just a year later, Dr. O'Riordan would be the subject of a hospital inquiry for allegedly causing the death of a patient during surgery. Of...

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 achiev...

From Alan:  Sometimes it is important for our blog to discuss, or feature, the arts and theatre. Patsy Rodenberg’s comments here are wonderful. She talks about being authentic, telling the truth and being present. Invaluable for actors and lawyers alike. Enjoy this. TIP: Have the courage to be your authentic self and to be present.  

Facebook. Twitter. Websites. Blogs. Social media is an inexpensive, readily-available source for gauging public opinion. And it’s working its way into litigation strategy. Casey Anthony’s defense team used social media to monitor public opinion and assess reactions to the actual trial (which was available online through streaming video). The case was a hotbed of public opinion, armchair jurors and heated discussions among complete strangers. People were generally quick to voice an opinion online. And a candid one at that. By observing social media outlets, the Casey Anthony defense...

We’ve seen multiple examples of jurors being excused because they learned English as a second language (ESL) and their English is limited. But new research shows us that there may be an advantage to the juror thinking in English when it is their second language. Researchers were interested in if and how the use of a foreign language affected judgment and decision making. They tested three groups of university students: Americans, Koreans and native English-speaking students studying in Paris, France. All of the research participants had chosen a language to study at university. The research...

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 ou...

Q:    If written briefs pull the laboring oar in the judges' decision-making, what's the point of oral argument? A:     To serve as a sounding board for the judges. Time out of mind I argued the final rounds of Moot Court Competition in front of then sitting chief justices of state supreme courts. One by one each member of the panel gave the winner (me) and the runner-up (the other guy) their evaluations and suggestions for our future practice.  This one I took careful note of: "In oral argument, do not evade a judge's questions....

By Dr. Shelley Spiecker: Here in America, we could be said to have a love/hate relationship with energy. We love the energy itself, at least when it is plentiful and cheap. But we often hate the process of developing it, and by extension, those who do the developing. With the current election season drawing on populist themes, and with gas prices still high, big oil can end up being as distrusted as big government. Based on the tenor of today's public discussions, you may believe that anti-energy industry bias runs rampant in public perception. However, those of us who assist...

Wow. So much for that “post-racial society”. On the heels of the new Duke study about all white juries in Florida convicting black defendants 16% more (still) than juries with even a single black member, we also have a study out of North Carolina State University on what the authors dub “tableside racism”. In other words, if you go out to eat, are you treated differently based on race? In a word, yes. Here are two questions from a survey conducted of 200 waitstaff working at 18 full-service restaurants in 2004. “Which is the most ideal race to serve?” White: 64.7% “Which is the...

Yes, we know. You get this. Since 9-11-2001, we are all wary of Muslims and other turban-wearing people [who, after all, must be Muslim]. Regardless of the (in)accuracy of this perspective, it is prevalent and seemingly hard-wired in our brains. All the “true Islam does not condone violence” clarifications in the world do not seem to mitigate the bias. We still see 2012 surveys showing (for example) that about half the Republicans in Alabama and Mississippi believe Obama to be Muslim. We see multiple depictions of President Obama wearing a turban which we presume, are meant to incite an...

As much as I hate to admit this, I have a confession to make: When I received a jury summons in the mail a few weeks ago I let out an audible groan.  This jury consultant was a prospective juror.  Don’t get me wrong, I am a huge supporter of our jury system and feel truly blessed to live in a country that affords us the privilege of serving.  On the other hand, it really can be a royal pain. The courthouse Monday morning, I schlepped down to the courthouse with the other fortunate souls holding a summons.  Parking is a bear.  There are no signs to direct anyone anywhere.  People ...

By Dr. Ken Broda-Bahm: Not all witnesses are saints. While this is especially well-known in the realm of criminal prosecution, it applies in civil trials as well. A witness may carry some unsavory background, or the context may simply be such that their testimony - truthful or not - feels like betrayal. The same factors that apply to the stereotypical "jailhouse snitch" can also apply in a variety of situations: a whistleblower, qui tam relator, or expert witness testifying against a member of the same profession. A doctor criticizing another doctor's work, for example, may be viewed as breach...

by Ryan H. Flax, Esq.Managing Director, Litigation ConsultingA2L 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 technologie...

Things have been pretty busy at work lately, and this blog usually takes one of the first hits. As I’ve mentioned in the past, I write because I enjoy it, but it must take a back seat to trial work. That stated, even though I haven’t written a lot lately, I have been working with some exciting new apps which I plan on writing more about soon, including Courtlogger Pro (PC software for tracking timed trials), Rulebook(iPad app for Court Rules, with the ability to highlight and annotate), Legal Viewer (iPad app for reviewing eBriefs), LiveDeposition (iPad app for receiving real-time tra...

Two months ago we wrote about the “epilepsy defense”. Now we read about a teenager killing his mother in the midst of a seizure. It’s a poignant and shocking example of why the ‘epilepsy defense’ appears to be valid under certain circumstances. Karyn Kay was a 63-year-old single mom who worked as a teacher in midtown Manhattan. Her 19-year-old son (Henry Wachtel) has epilepsy. Their relationship was positive and there was no history of either abuse or violence between them. After Henry cut his arm on a cup during a seizure, Karyn had always held him in her arms when he had seizures ...

Where were you when you saw "Romeo & Juliet", the 1968 movie? I imagine one listen brings it back. What chance that the themes of young love, fighting families and war could find an audience in Iraq? Tim Arango writing for the NYTimes, "In Iraq, 'Romeo and Juliet' Portryas Montague and Capulet as Shiite and Sunni," reminds us that stories grounded in Truths with a capital "T" are indeed universal.  No matter where you go in this world, who you talk with, the stories you learn - one thing remains consistent: universal Truths apply to all places.&...

By Dr. Ken Broda-Bahm: In a new law journal article, University of Kansas law professor Melanie Wilson asks us to consider a situation in which a stranger approaches us on the street and politely asks us whether we've ever been a victim of sexual assault or abuse, whether we've ever been investigated by the police, what we think about abortion, what our sexual orientation is, what we watch on television, and what political groups we support. Portraying voir dire as a similarly unexpected intrusion on jurors' private lives, the professor advocates a fundamental change to the selection process: ...

We’ve written a number of times about atheists in the courtroom and the general lack of trust in atheists in this country. One recent study pointed out we trust atheists about as much as we trust rapists! Identifying biases that are deep-seated and seem to be permanent is one of the things we do as trial consultants. Sometimes they are unexpected. They are almost always disheartening. So we are grateful to social science researchers who sometimes identify strategies to disrupt permanent and deep-seated biases. And here’s one for disrupting biases against atheists. It’s simple, straight...

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 somet...

From Katherine: Remember when I said back in the Academy Award time of the year that I regretted not seeing Albert Nobbs? Especially not the Oscar Nominated performances of Glenn Close and Janet McTeer? What a fascinating story. Women living their lives as men in order to work and survive in 19th Century Ireland. Lives of secrecy – lives of hiding. Building prisons of “other” identities in which they feel that they must lock up their true selves – or else they will never make it. Would they? It is hard to know. What is abundantly clear is that any human being trapped in the grand pret...

Humans appear to be the only species who are willing to punish others who lie, cheat, steal or violate social norms even when they [the punisher] were personally unharmed or don’t stand to directly benefit from punishing the wrong-doer. The practice is called “third-party punishment”. Ironically, punishment itself is thought to have a foundational role in maintaining the level of cooperation in our modern societies. We obey rules and cooperate with each other to avoid punishment. New research by neuroscientists [Buckholtz & Marois, 2012] indicates that we make decisions to punish bad...

By Dr. Ken Broda-Bahm: I can remember the first time I wrote a theme for a bench trial many years ago. The trial team used the theme, and used it as themes should be used, which is to say, emphatically and repeatedly. And it worked: The judge actually included the theme in his written decision in our favor. In that case, and in many cases since, I've wondered exactly what it is that makes language memorable. It turns out that some computer scientists at Cornell University have been wondering the same thing. These researchers (Danescu-Niculescu-Mizil, Cheng, Kleinberg & Lee, 2012)...

Black women are expected to behave like white men when they have reached a higher level of leadership. That is the conclusion of new research looking at black women leaders. Traditionally, white men are expected to be assertive and even aggressive leaders, but black men and white women are often perceived negatively for those sorts of behaviors in the workplace. Researchers wondered about black women and what they found was that “one size does not fit all women” when it comes to leadership expectations. This is a surprising and counter-intuitive finding–yet, there are familiar themes...

“Social selling” takes LinkedIn Basic to new heights By: Kevin L. Nichols Originally coined at Dreamforce as “LinkedIn for Salesforce” back in August 2011, LinkedIn’s Sales Navigator is charged with arming sales professionals with an arsenal of tools to make them more successful.  In this day and age where 4.5% of all Americans (210 million [...]

This weekend, I’m heading to Monterey to give a presentation on “New Technologies for Federal Litigation” for the Northern District of California 2012 Judicial Conference. Since I’m going to discuss the use of courtroom technology while using my iPad wirelessly through an Apple TV, I prepared a handout that lists all the equipment you would need to use your iPad wirelessly or hardwired in court, including the price of the equipment and a schematic of the setups. It also lists a summary of useful apps for attorneys. If you’d like a free sneak peek of this handou...

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 t...

By Dr. Ken Broda-Bahm: For many years, the word among intellectual property defendants has been "Don't Mess With (the Eastern District of) Texas." And statistics have borne that out. According to a recent analysis in the Patent, Trademark & Copyright Journal (Pistorino & Crane, 2012), cases in the district have come down in favor of plaintiff patent owners in two out of every three cases. That fact has fostered a gold rush mentality among patent owners, and while some of that venue mojo may just be the force of self-fulfilling prophecies, it is still interesting to look at some of...

Julian Heicklen. Remember him?  He’s the 80-year retired chemistry professor who was indicted for jury tampering because he liked to pass out pamphlets on jury nullification.  On the steps of Manhattan courthouses. [Read our prior posts "Advocating Jury Nullification: Crime or Freedom of Speech?" and "More on Jury Nullification and Julian Heicklen" for more detailed background information.] Last Thursday (April 19, 2012), Judge Kimba Wood dismissed the indictment.  Her written opinion relies on a strict interpretation of the jury tampering statute, which thereby avoids any touchy ...

There’s some intriguing new research out looking at how members of different cultures respond to overt racism. Think of your stereotypes of African American women and Asian women. Now, think of which group you would predict would respond directly to racism and which group you would predict would be more likely to respond indirectly. If your stereotypes are like most, you likely concluded African American women would respond directly (be more confrontational about it) and Asian women would respond indirectly (be less confrontational, more retiring). And you would be right–at least accor...

I am a card-carrying member of the Anne Lamott fan club. No question about it. I have been insanely intimate with her books: Traveling Mercies, Bird By Bird, Plan B, and Rosie, among others.  The margins are filled with notes, the words are underlined and re-underlined.  I, like so many others, are convinced that Lamott wrote a particular book just for the reader.  Something Lamott said rings true for all writers, and especially for lawyers who write their opening statement or closing argument but so rarely read what they've written aloud.  There's a big differ...

Monty Python fans recall the optimistic pluckiness of the black knight who threatens King Arthur even after being completely de-limbed. “It’s only a flesh wound!” he chirps and asks Arthur to walk over to where the knight has fallen so he can bite King Arthur’s legs. King Arthur refers to him as a “lunatic” but also kindly agrees to call the one-sided duel “a draw” in recognition of the misguided pluck of the black knight. Many of us have been in the role of the black knight in an organization. We want to do well. We don’t want to give up. We want to see our organization and...

More often than not, litigating a case boils down to persuasively explaining your theory of what happened. You bring in experts and witnesses to testify. You show photographs, documents, charts and graphs to illustrate your point. That’s all good and important. But how do you bring all of that information together to make your case in the most clear, compelling way? The answer often is to create a 3D animation. (Some recent samples of Cogent Legal’s animations are shown in a short video below.) If your case involves the following, then it could benefit from an animation: an injur...

By Dr. Ken Broda-Bahm: The case of The United States versus John Edwards has everything: politics, sex, life, and death. The former vice-presidential and presidential candidate acquired a mistress and fathered a child during the campaign, behind the back of his cancer-stricken wife, then called upon a couple of key supporters to pay vast sums of undocumented money in order to hide mother and child from the eyes of the media. Those of us who have read The Politician, a tell-all account by former aid Andrew Young, have been waiting for the other shoe to drop, and now it has....

Did biology or free will cause Charles Whitman, the notorious University of Texas sniper, to kill 16 people in cold blood, including his wife and mother? An autopsy revealed the former Eagle Scout and Marine had a tumor in his amygdala, the center of aggression and fear. Whitman had sensed something was wrong in his brain, sought help from doctors before the killings, but could not control his murderous behavior in the end. Biology or free will? If a person’s behavior is at least partially driven by biology, how might that affect punishment and rehabilitation? Neuroscience is reshaping t...

My daughter was 11 when I agreed to take her to get her ears pierced. She desperately wanted to have it done but was afraid of the pain. So I had my ears pierced with second holes to show her it was survivable. As time has gone on, she’s added to her collection–always in my company. Second ear piercings. A cartilage piercing. And now, in the wake of her 18th birthday, she asked for my company to a tattoo parlor so she could have her rook and tragus pierced. Showing my age, I asked what part of the body these unfamiliar words were located upon and was relieved (and appalled) to discover...

By: Kevin L. Nichols Spoliation, defamation, stalking, and insurance fraud are just a few examples of issues that may require factual evidence necessary to persuade a jury at trial.  The methods of obtaining this evidence have dramatically improved over the years and many vendors are now becoming savvy at forensically collecting data from social media [...]

By Dr. Ken Broda-Bahm: For once, a social science concept that comes with an easy to understand label! "Low effort thinking" refers to a mental approach or habit that serves as a short-cut in lieu of a more systematic or careful analysis. In the spirit of full disclosure, though, the concept is sometimes dressed up in the fancier name of "heuristics" (it is a job protection for us social scientists not to make the ideas too clear). In a courtroom, though, low effort thinking can play a very clear role. Relying on a stereotype, for example, requires less effort than...

You know. Black folks. They are not as intelligent, determined or decisive. They just are not good leaders. When a black leader performs poorly–this stereotype is used to explain the poor performance. But, when a black leader performs well–this stereotype is less useful. Then, we are likely to attribute “compensatory attributes” to the exceptional black leader–”oh, he has ‘survival skills’” or “she is especially warm”–rather than attributing the individual’s success to actual leadership competence. The core competency is still not recognized by the suc...

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...