Archive for the ‘legal graphics for trial’ Category

PowerPoint Skills for Litigators Webinars: Recording and New Session on Animation, Video & Hyperlinks

Sunday, October 12th, 2014

PowerPoint Skills for Litigators I: templates, timelines and tools - recorded webinar

Free Recording Available: PowerPoint Skills for the Litigator: Templates, Timelines and Tools

Our webinar on PowerPoint Skills for Litigators last week had great attendance and enthusiastic reviews from attendees. The webinar recording is now available for viewing, and you can download the slides used in the presentation for your own use.

In this recorded webinar, Mike discusses how litigators should customize PowerPoint to their needs with templates and layouts, how to create and edit timelines, and some key PowerPoint tools that litigators should understand. Along the way, we learn how to create and edit master slides and slide layouts, how to draw and edit simple objects in PowerPoint, and how to create and use images of your evidence in your PowerPoint presentation. We’ll be submitting this webinar to the State Bar of California for approval for continuing legal education credit. Click here to register and view this free recorded webinar.

The PowerPoint template that we used in this webinar is available for free download at this link: Slides Used for PowerPoint Skills for Litigators Webinar. Feel free to download it and adapt it to your uses.

There was so much to cover that we’re going to hold another PowerPoint webinar with new content:

PowerPoint Skills for Litigators II: Animations, Video and Hyperlinks, Free Webinar, Thursday, December 11, 2014, Noon Pacific to 1:15 PM

Click here to register.

Free PowerPoint Skills for Litigators II webinar

Mike Kelleher of Cogent Legal will demonstrate a number of basic and advanced PowerPoint techniques, including animations, hyperlinked navigation systems, video, and differences between PowerPoint 2013 and PowerPoint 2010. This event will be submitted to the California State Bar for approval as one hour of California MCLE credit.

 

Tips for Better Presenting Photographs in Court

Thursday, August 28th, 2014

NikonWell-presented photographs are powerful tools for litigators. In this post, I’ll share some samples that show how we’ve helped litigators use photographs in court, along with a number of tips for getting the most from your photographs in litigation.

A Sample Blow-Up Board of PhotographsGraphics - Building Model and Photos

(Click on the images in this post to enlarge them for better viewing.)

The sample above illustrates several of our tips at once, in particular:

Tip 1: Use many photographs to tell a visual story. In planning for the use of photographs, think broadly about using many images that set a scene for the jury rather than simply focusing on photographs that are essential to the elements of your case. Images help jurors understand and retain information. If you’re talking about a company in opening, then show pictures of its offices and logo. If you refer to a machine, show a picture of that machine. These visual elements help keep your jurors engaged.

Tip 2: Accompany photographs with maps and diagrams to provide context. The board above illustrates how a site map can be used with photographs to provide important context.

Tip 3: Consider combining multiple photographs on a single blow-up or slide. To speed up a presentation or to address related images together, litigators may choose to combine two or more photographs on a slide or board. Combining photographs will reduce the size of the image shown to the audience and may not work if small details from a photograph must be shown. On the other hand, some photographs do not have enough resolution to be presented in a large size without showing grain/pixelation.

Tip 4: Add labeling and markers that help jurors understand the photographs. The labels, arrows and other text to be shown with images deserve careful consideration to ensure clarity, accuracy and avoid distracting clutter.

Map and freezer

Tip 5: Use photographs as visual labels to call attention and emphasize. In the sample above, the photograph of the freezer supplements the text label, calling attention to the freezer (which was where the fire in this particular case started).

An Example of a Series of Related Photographs

Fire photo view 1

Graphics - Building Fire - Diagram and Photos
Graphics - Building Fire - Diagram and Photos_Page_4
point of view indicator

Tip 6: Use point-of-view indicators and a diagram to orient the audience. The photographs above were all taken from different areas and different viewpoints. The icon of the eye and the rays pointing to the diagram help orient jurors as to which direction the photograph shows.

Tip 7: Tell a story with related photographs with common linking elements. The sequence of slides above uses common visual elements (slide titles, dates, the point of view indicator, the map) to show several related photographs. Once the jury understands the elements in one photograph, they can understand later photographs and they know where to look for background information. Thus, once the jury understands how the information is being presented, they can focus on the story told by the photograph and the attorney.

Tip 8: Take and produce high resolution digital images to allow enlargements and cropping. The grainy photographs above illustrate the importance of using the best images that you have. Modern cameras often produce very high resolution files that can be enlarged well. However, I have seldom seen the exchange of high resolution files in discovery, so you will often need to make do with lower-quality images or have your own photographer take the images.

Tip 9: Use witness photographs in a cast of characters and when referring to their testimony. Introducing witnesses in opening with photographs, and then using those photographs again in closing, helps jurors remember evidence and the demeanor of witnesses.

Linked Adobe file of photographs

Tip 10: Organize your photographs to establish foundation and make them easier to understand. Organizing your photographs is key to understanding them and using them. For example, in construction defect cases, there may be hundreds or thousands of photographs taken by many people over years in many locations documenting problems and corrections. At a minimum, keep track of those photographs with file names, folders and notes that help you establish the foundation. (For example, I will often name photographs with date prefix, identifier and sequence number (e.g., 2014-08-27 Office 01.jpg) rather than a less meaningful file name coming from my camera). For particularly important collections, consider creating a linked Acrobat file (see sample above) that allows browsing to photographs by location, date or other parameters as discussed in our earlier blog post, Building the Visual Foundation of Your Construction Defect Case.

Photo-with-scale

Tip 11: Show elements of scale in your photographs. When you take photographs for litigation, include scale references like the tape measure shown above. Such scale references are helpful for juries to understand sizing, and they also help if you need to illustrate or model something in your photographs.

Tip 12: Go beyond photographs to illustrations, animations and models as necessary. Sometimes, the photographs do not show information completely or clearly, and a model or illustration based on photographs will be your best choice for visual explanations to your jury. At Cogent Legal, we often use photographs and video to create illustrations or videos that explain better than the source photograph. For example, read more in our earlier blog post about creating an animation of an accident using surveillance video that did not fully capture the scene.

Tip 13: Take your graphics provider on your next photo shoot for litigation. At Cogent Legal, we often take photographs for our clients’ cases. In those photo shoots, we always find that documenting the scene helps us in creating accurate and persuasive visual explanations for the jury.

Contact us at 510-350-7616 or by email if you would like assistance incorporating photographs into your next case presentation.

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Best Courtroom Presentation Provider, Once Again

Wednesday, August 27th, 2014

Recorder Best of 2014We’re honored and thankful that The Recorder has recognized Cogent Legal as “Best Courtroom Presentation Provider” in its 2014 Annual Survey. This is the second year in a row that Cogent received the honor.

If you’re one of the people that voted for us in The Recorder’s survey, thank you. We appreciate it. We are glad that we earned your trust, and we will continue trying to deserve it.

If you haven’t worked with us yet, we hope you will consider letting us help you over the next year. We’ll do our best to get you into court with graphics and technology that enhance your ability to persuade, communicate and win.

Beautiful Graphs of Large Data Sets for Litigation

Tuesday, July 29th, 2014

Screenshot of Data in IllustratorNumbers, and the interpretation of numbers, play a big role in litigation. Presenting numerical data in court often requires a good graph of the numbers to show changes and trends in the numbers.

Litigators or litigants may be able to make simple graphs themselves using Excel. However, more complicated graphs benefit from expert tools like Adobe Illustrator. For example, the chart below shows a comparison of the performance of Apple and Microsoft stock over the last decade (click to enlarge for better viewing of the graph).Apple v. Microsoft chart

 Use of Large Data Sets for Graphing

Both Excel and Illustrator can create graphs from large data sets such as stock prices. You download a table of stock prices from various internet sites, and the graphing program uses the data set to create the graph. For example, below is a graph from Excel of the Apple and Microsoft stock prices.

Excel-chart

 

Advantages of Using Adobe Illustrator for Graphing

A comparison of the two charts shows many advantages of turning to an expert using Illustrator for graphing:

  • More control over color, scale, legends and call-outs;
  • Ability to incorporate other graphics into the image (e.g., the product photos and logos);
  • Ability to adjust the scales and use multiple views to compare data sets in various ways (necessary here because the value of Apple stock climbed so much relative to the stagnant performance of Microsoft).

Tell a Story Using the Data

The features of the Illustrator version of the chart allow a litigator to use the data to tell a story. Here, the story could be the effect of Apple’s innovative products on the value of the company. Another story could be Apple’s rise versus Microsoft’s stagnation.

After all, litigators want to present a story, not just numbers. Expertly done graphs help the litigator tell the story behind the data.


Thanks to Cogent Legal’s new Creative Director, David Filippini, for creating the graphs featured in today’s post.

Please email me to discuss if Cogent Legal might help you with graphs for your next trial or hearing.

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Step by Step Development of an Animation That Helps Settle a Case

Monday, July 21st, 2014

Screen Shot 2014-07-16 at 1.31.32 PMWe all know the power of a well-done animation in front of a jury. Such animations can help visually explain concepts in moments instead of in hours. However, they can also be instrumental in settling a case.

This fact was true in a recent case handled by Andrew Klimenko of the Choi Law Firm. Andrew hired Cogent Legal to help with a complicated multi-car automobile accident that resulted in the death of one of the occupants. The CHP officer found primary fault with the defendant driver of the cab company, who was speeding and ran into the back of decedent’s Lexus, causing it to spin and subsequently get T-boned by a Cadillac in the other lane. (See excerpts of the police report here.)

Cases sometimes start out simple and get complicated, and this is one of them. During depositions, the witnesses changed their testimony and claimed the Lexus driver actually caused the accident by spinning out of control before the cab hit it. Faced with this confusing set of facts, counsel sought an animation showing his expert’s view on how the incident really occurred based on the evidence. Admissibility would be through the People v. Duenas (2012) 55 Cal.4th 1, a decision allowing animations supporting the testimony of an expert or witness.

I am often asked how the process to create an animation works, so I wanted to take this chance to show you the steps we take at Cogent Legal:

First, we put together the most simple of cartoons to share with the attorney to show the basic movement of the vehicles as we understood the expert to believe. This was done with Keynote, moving rectangles to show each car:

 

After approval, the next step is doing a wire frame version to assure movement consistent with the expert’s opinions and to allow for any modification before final rendering. Here is what a wire frame version looks like:

 

Upon final approval, the animation is ready for rendering, an extremely computer-intensive process whereby the computer calculates frame by frame all the lighting, reflections and images. The final output is a series of single frame images that are placed together for making a final animation as shown below. The rendering for this animation took over three days of computer time due to the high level of detail.

 

In this case the expert brought the animation to his deposition and explained how it showed his opinions on the movements of the vehicles. Not liking what the animations showed against their side, the defense objected to the animation and sought to keep it out of trial by way of Motion in Limine. In a 402 evidentiary hearing before trial started, counsel for plaintiff brought in their expert to testify in support the animation, and prevailed in the ruling to allow it. The case settled shortly after the successful rulings for plaintiff at the Motions in Limine hearing.

If you have any questions about animations or admissibility issues, please do not hesitate to give me a call at (510) 350-7616 or email.

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The Need for Animations to Show Injury in PI Cases

Thursday, July 3rd, 2014

animation thumbnailAt Cogent Legal, we create graphics to visually convey concepts for business cases, patent cases, employment and more. One the most useful things we do, in my view as a former litigator who handled numerous PI cases, is create animations that show in slow motion the mechanism of injury and explain visually exactly how an incident caused the injury.

Regardless of whether liability is an issue, visually explaining to the jury precisely how an injury occurred is a crucial part of a plaintiff’s case presentation. Often, plaintiff’s attorneys begin an admitted-liability case by presenting the medical treatment the plaintiff received. In effect, this marginalizes the most dramatic aspect of the case: the incident.

Below you’ll see some sample animations Cogent Legal created that illustrate the value of animations in PI cases. 

Since the plaintiff is entitled to recover for the emotional effect of the incident itself, depicting the incident visually allows the full story—and the full measure of damage—to be presented, rather than starting the story of the case with the admission to the emergency room.

Additionally, I’ve seen plaintiff’s attorneys limit their visual presentation of the incident to a single photo of a wrecked car, for example. The problem with this single image—as opposed to, say, an animation or diagram—is it leaves it to the jury to creatively connect the dots in their minds about the relationship between inanimate objects and the injury. If causation of injury is an issue, then precisely showing how the incident created the necessary forces on the body for injury by movement of the person helps the expert meet this burden of proof.

Below is a sample animation we recently created at Cogent Legal for a case involving a painter injured in an elevator shaft. The first clip shows the movement of a basket lift being forced up by an elevator below it and jamming the plaintiff into a beam above the elevator causeway. For that case, we also created diagrams to establish liability of the parties.

Our goal was to show the mechanics of how the force caused stretching of the nerves running through the plaintiff’s neck, resulting in injury. Since the actual causation of the injury was highly disputed, being able to show the mechanics of how such an incident causes such an injury was crucial.

The remainder of the video shows short excerpts from biomechanical animations that Cogent Legal created for other cases. They’re included to give you an idea of how different incidents and injuries can be animated.

For your next case, consider developing diagrams and animations to show the actual cause of the injury. Please email me or call 510-350-7616 if you have any questions about developing animations or other visuals for your case.

***

On another note, Cogent Legal has been nominated for Best Presentation Provider in The Recorder’s annual poll of law firms and legal service providers. The poll is going on now and ends July 11. If you have a moment to participate, please go to https://www.surveymonkey.com/s/RecorderBEST2014. We are in category #29 and would greatly appreciate your support.

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iPads in the Hands of Your Judge and Jurors

Thursday, June 12th, 2014

iPad-eBriefs-SmallCivil jurors in a Los Angeles court are using special iPads to review admitted trial exhibits during the trial. A news story on KPCC, Southern California Public Radio, discusses this experiment and other advances in courtroom technology. Reporter Erika Aguilar interviewed me for the story.

As I observed in the KPCC interview, I expect to see more iPads in coming years in the hands of judges, attorneys and jurors. The iPad is a great, easy-to-use tool for presenting and consuming content (which is exactly what happens in courts).

My partner, Morgan Smith, has written many posts about iPads, and their advantages for attorneys. The iPad allows an attorney to easily control a slide presentation projected onto a courtroom screen for the judge or jury. Using an app such as TrialPad or Trial Director for iPad allows an attorney to present documents, deposition video and other evidence on the screen.

Custom iPad apps are becoming easier to build as well. The Los Angeles courtroom uses a very simple app with links to exhibits that become unlocked as the exhibit is admitted into evidence. More sophisticated apps are possible too. For example, the video below shows a proof-of-concept app that I created for navigating a patent in ways to make the patent easier to understand. In one of the sections of the iPad app, you can view labeled figures of the patent drawing placed along side scrollable text that explains the figures.

Please give us a call to discuss how an iPad or other legal technology could enhance your next court appearance.

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The Need for Graphics in a Patent Trial, and Other Insights from Judges

Wednesday, June 11th, 2014

SFIPLA squareGood graphics are critical for understanding patent cases. I mean real graphics, pictures, not just words on a PowerPoint. Seeing an illustration or an animation in a trial or a mediation is key to understanding the technology in a patent. − Hon. James Ware

After deliberations have finished, I’ve seen that the pictures were important to jurors because the whiteboards in the jury room often have the jurors’ reproductions of the pictures and diagrams that the attorneys used during trial. The juries are not writing out the long claims of the patents. Instead, they discuss the case in abstractions using those pictures from trial. − Hon. Paul Grewal

These judicial observations on graphics in patent trials came from a judges’ panel at last weekend’s Annual Meeting of the San Francisco Intellectual Property Law Association (SFIPLA) in Healdsburg, California. As usual, the annual meeting provided wonderful opportunities to learn about recent developments in intellectual property law and to network and relax with leading IP attorneys and judges.

On Saturday, the meeting featured a judges’ panel of current and former judges from the Northern District of California discussing IP litigation. The panel consisted of Senior District Judge Susan Illston, Magistrate Judge Paul Grewal and retired District Judge James Ware (now a mediator at JAMS). Michael Carlson, a patent litigator at Schnader and the Vice President of SFIPLA, guided the discussion.

The judges shared their experiences and reflections on what works and what doesn’t work in a courtroom, and how to connect with juries and judges in patent trials and hearings. In this post, I’m going to share some of those comments. [Note that while I try to be accurate here, and I scribbled notes and live-tweeted during the session, so you shouldn't consider this post or my tweets as a transcript. For the tweets from this SFIPLA meeting or future meetings, check out www.twitter.com/sfipla.]  

The Importance of Visually Explaining Technology in Patent Cases

The panelists stressed the difficulty of understanding patent cases. Judge Ware said that many times, jurors have expressed concern to him about their ability to understand complex technologies. As one way to counter this, the panelists agreed on the importance of using visual aids to help explain patents. The panel’s observations about graphics during the panel included the following:

Both static and moving litigation graphics are very helpful for explaining patents. − Hon. Susan Illston

Images of moving DNA or moving electrons are helpful to jurors to understand these technologies. When your case involves a physical product, bring it in and show the jury. People understand things by seeing them. − Hon. Susan Illston

Juries are good at comparing one physical thing to another, but not as good at comparing the language of a patent to a product or a process. You need to allow them to see it to help them understand. — Hon. James Ware

PowerPoint slides with out-of-context quotes from patent decisions are not helpful. There are so many opinions, and attorneys can find a Federal Circuit decision that say almost anything. Putting those quotes on a slide without explaining the context does not help. — Hon. Susan Illston

In addressing the varying learning styles of jurors, Judge Illston referred back to an excellent session from Michelle Galloway of Cooley LLP that opened the SFIPLA educational sessions at the meeting. Galloway had taught us about how Baby Boomers, Gen-Xers and Millennials differ in how they process and absorb information. Judge Illston picked up on this theme during the judges’ panel, cautioning attorneys, “There will likely be a mix of young and old jurors on your panel, and you need to communicate in ways that each of the jurors will understand.”

Use Tutorials Before Markman Hearings to Educate Your Judge

The judges all spoke of the importance of patent tutorials in which the parties and expert teach the judge about the technology at issue. The judges agreed that tutorials can be enjoyable and interesting for the judges if done well. Judge Grewal likened tutorials to a graduate school seminar with great professors for just one student, the judge.

The judges also cautioned practitioners not to treat judicial questions during the tutorial as positions taken by the judge. Rather, attorneys should remember that the judge is learning, and that questions along the path of learning may or may not reflect what the judge understands after the lesson.

Appreciate Your Jurors, and Minimize the Burden on Them

The system abuses jurors by long time commitments, boring them, and not letting them discuss the case until the end. − Panelist at Judges’ Panel

Each of the judges shared observations on how burdensome trials are to juries, and advised counsel to seek stipulations and other methods to shorten trials and reduce the number and complication of issues presented to jurors.

Judge Illston noted, “Jurors love time limits on patent trials—no juror has ever come up after a trial and said he or she wishes the case could have been longer. Rather, jurors commonly observe that attorneys should move along faster, and that it seemed like the attorneys kept asking the same question over and over.”

The judges emphasized how trials can be confusing to juries, and emphasized helping them understand the process. Judge Grewal noted the importance of constantly reminding jurors of how the next piece of a trial fits into the bigger picture: “Attorneys often forget how hard it is for juries to understand where in the big picture you are—the best lawyers have a map to keep bringing the audience back to how it fits in.”

The panel agreed that shorter trials are generally better, despite the challenges this puts on attorneys. Trial time limits force attorneys to choose their best arguments and evidence rather than letting attorneys fall for the temptation to include everything, no matter how cumulative.

Moreover, the judges noted that longer trials limit the pool of available jurors who can endure an interruption in their lives for the trial, and that this may affect the quality of the jury’s decision-making.

Judge Grewal mentioned psychological studies on cognitive processing, noting that there are limits to how long people are able to pay attention, and that jury attention is more likely to be lost during longer trials.

Juror Hostility to the Patent System

As Robert Stoll, former Commissioner of Patents at the USPTO, observed in another session at the SFIPLA Annual Meeting, there has been a great deal of anti-patent news coverage in recent years, particularly in the discussion of patent trolls. Judge Grewal noted that this sentiment is showing up in juror pools:

Patent juries used to be easy to pick. However, in the last couple of juries in patent cases, potential jurors have brought in very strong biases against the patent system. They have been comfortable voicing that view in court, in front of other panel members. These potential jurors did not want to hear about claims or expert opinions—they believe patents are worthless. Cultural hostility to the patent system is being voiced.

Samples of Patent and Technology Animations:

Cogent Legal was proud to be a sponsor of SFIPLA’s annual meeting. Some samples of patent animation are shown in this video that Cogent Legal displayed at its sponsor table during the SFIPLA meeting:

(Click here to view the video on YouTube if the video does not appear above.)

Support and Follow SFIPLA

SFIPLA, the San Francisco Intellectual Property Law Association, provides the Bay Area with engaging IP programs at SFIPLA’s annual meeting and throughout the year with monthly meetings offering continuing legal education (MCLE). You can connect with SFIPLA at its website, www.sfipla.com, on LinkedIn, and by following @sfipla on Twitter.

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Graphics for a Historic Copyright Case

Thursday, May 22nd, 2014

VHS and TVAs you prepare for oral argument in an important hearing, you may realize that you need quick help to create or revise graphics. Today’s blog post comes from this type of scenario, and it has the added interest of coming from a high-profile copyright dispute pending in the Supreme Court.

Cogent Legal recently helped counsel for Aereo prepare for a hearing to oppose a motion for preliminary injunction. You have probably heard of Aereo—Aereo provides a service allowing users to view broadcast television over the internet without a cable subscription. The broadcast and cable companies claim that Aereo violates copyright law, and on April 22, the Supreme Court heard arguments about Aereo’s service in the case American Broadcasting Company v. Aereo.

Aereo designed its service to comply with the “fair use” provisions of copyright law as set out in the historic Sony case which allowed personal video cassette recorders as fair use. In one of our graphics, we emphasized this similarity, recalling the look of the VCR and rabbit ears at the time of the 1984 Sony decision:

Aereo hearing graphic - why is Aereo like home equipment


Back in February, Cogent Legal helped prepare graphics for a preliminary injunction hearing as to whether to shut down Aereo’s operations in Utah.

Aereo’s counsel had some existing graphics from prior hearings, but they were not right for the approach that counsel wanted to use at the preliminary injunction hearing. The graphics needed to be turned around quickly, and I got an evening cell phone call asking if we could help. I asked counsel to email me the briefing, and the next morning, Cogent Legal’s artist and I met with counsel at a local coffee shop to plan additional graphics for the hearing.

The morning meeting was short and focused. I knew the Sony case and the controlling principles of copyright law, and we agreed with counsel that the graphics needed to bring out these historical similarities. To emphasize these similarities, we decided to draw visual comparisons between the rabbit ear antennas of the 1980s, and the modern Aereo equivalent.

That evening, we had draft graphics for counsel, and emails back with initial reactions and some edits.

The next day, we edited some more by email, including finalizing a board that set out the controlling statutory law:

17 USC 101 - public display in copyright

That afternoon, we were in contact with a print shop in Utah that had the finished boards waiting at the hotel for counsel when they arrived the night before argument.

Lessons Learned:

  • A Day or Two of Graphics Can Greatly Help: Graphics do not need to be complex, and simple graphics can be created quickly by professionals.
  • Talking to Graphics Consultants Who Are Former Litigators Helps You Move Faster on Your Graphics: When you are short on time, you cannot educate someone who does not understand the law. Our client wanted to move quickly, and my knowledge of copyright law allowed us to move faster toward graphics that helped.
  • A Hard Board (or Two) Can Be Very Effective and Is Far Better Than Nothing: Projecting your presentation to an in-court screen is often the best way to visually connect with your courtroom audience. However, projecting to in-court screens requires more advance planning and resources than you may have. At these times, think about using a printed graphics board or two. Well-designed boards (e.g., good images without too much text) can help the judge understand your argument.

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Taming the Data Beast in Litigation with Visualization

Wednesday, May 7th, 2014

Screen Shot 2014-05-01 at 11.19.03 AM-01Every day the world produces more and more data about everything. Our cars all have black boxes (whether we know it or not) that monitor key information. Our phones keep track of our locations and that data can be retrieved to show our precise movement during the day. Computer IP addresses and browser histories leave traces of our movements across the web.

All this data is increasingly finding its way into the courtroom in all different kinds of cases. While the data itself is as varied as the world from which it comes, the challenge for attorneys is precisely the same in most every case:  What am I supposed to do with all this information?

We, and correspondingly our cases, are drowning in data that must be considered, categorized and potentially explained to a jury in a straightforward yet engaging manner. Standing in front of a jury with reams of printed-out pages, or trying to cross examine a witness with pages and pages of data, is a recipe for boredom or confusion. The key to success in data-heavy litigation is developing a method to show this data in a way that effectively tells your story, ideally in a format that is interactive so the attorney can pick and choose which data they want to access and show at any particular time with any particular witness.

At Cogent Legal, making large data sets accessible and understandable is one of the most challenging aspects of what we do, and the most satisfying. In today’s post, I’ll review a recent case in which we faced this challenge and created an interactive interface for a large set of data about employee locations throughout a day.  

In this case done for the Veen Firm, we had data concerning the supposed locations of numerous different employees of a defendant on a particular day. These employees worked for a property management company and drove around to various locations throughout the day. Each of these locations had electronic swipe pads that (if the employees used their swipe cards) would register their location and time. Each of these employees also filled out timecards that identified their whereabouts. The defendant took the position in this personal injury case that none of their employees could have been involved in the unwitnessed incident, since the timecards had all the employees at locations too far from the incident location at the time of the incident.

What the attorneys for the plaintiff noticed is that the time cards often did not match the swipe records—meaning that employes would say they were at one location all day, but the swipes showed they were at multiple locations throughout that day. The challenge for the attorneys was how to make it clear to the jury in a simple manner that the timecards were not necessarily accurate,  nor were the electronic swipes since often employees simply did not swipe in anywhere all day.

The video below shows an interactive PDF that allowed the plaintiff attorneys control over a great deal of this data by simply clicking a hyperlink. This PDF would show the timecard locations, the electronic swipes, or both together for every employee. Additionally, the location of the swipe or card would appear on a map so the jury could physically see each location and see they were often very far apart in distance.

Below is an image explaining the interactive buttons, and you can download a copy of the PDF to try yourself by clicking here.

Screen Shot 2014-05-01 at 10.23.08 AM-01

While every case presents a different challenge on how to present data in a visual and persuasive manner,  the fact remains that figuring out how to do that might be one of the most important things you have to do as an attorney. Let us know if you would like to discuss the data challenges in your case with us—you can email me (morgan.smith@cogentlegal.com) by clicking here.

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The Best Strategies to Present Your Case In Mediation

Wednesday, April 30th, 2014

puzzle piece fitting inOver the last 10 years, there’s been a significant shift in the way mediations are conducted. When I first started in the field, mediation briefs would come in via fax the night before the mediation. The mediator would begin the case with a joint conference where each side would make an opening statement, similar to trial, and after these openings the mediator would often have to spend the rest of the afternoon defusing the tension created by a joint conference.

There are two important aspects of developing presentations for mediation:  (1) Communicate with the mediator before the mediation; and (2) develop a presentation that will inform but not inflame the opposing party. Remember that mediation is voluntary, and the goal is not to make the other side walk out. The goal is to get the case settled in the best way for your client.

In this blog post, I’ll cover several strategies to best present your case at mediation, including dos and don’ts for using graphics and technology to enhance your results.

It Starts with Your Brief

Nowadays, mediators need briefs at least a week in advance.  Many mediators now schedule conference calls with the parties after reviewing the briefs to ask questions and solicit settlement ideas.  This is also a good time to discuss any presentation ideas with the mediator.

Most mediators prefer that the parties exchange briefs, since it allows the other side to know where you are coming from. Good graphics—not copied photos or handwritten charts—can be a powerful addition to your brief. Seeing professional graphics and animations can let the other side know how prepared you are for mediation and trial.

Mediators often hear a different case everyday; you, on the other hand, have dealt with the same case for the last several years.  To help the mediator understand the key facts in your case, consider including charts, chronologies and accident reconstruction scenes in your brief.

For example, the sample below shows screen shots from an animation which have been incorporated with text into a mediation brief to help a judge understand how limited the invention of an asserted patent is.

Mediation Exhibit - Faxing to the Internet
Or, for example, consider this graphic below, which illustrates a mixing process. Simple illustrations such as this can be embedded in the brief and make complex processes easier to understand.

A simple illustration such as this could be pasted into a mediation brief, which would help a mediator quickly understand a process that is complicated to explain without images.

A simple illustration such as this could be pasted into a mediation brief, which would help a mediator quickly understand a process that is complicated to explain without images.

When you are in the process of setting the case, speak with the mediator’s Case Manager about the use of electronic briefs, thumb drives, etc., and the proper settings for submitting them. Asking these questions beforehand can save a lot of time, energy and expense.

Another important aspect of mediation is that sometimes, it’s not about the merits of the case.  In mediation, it’s about subtle factors such as financial needs or closure. If you want to communicate this to the mediator and not to opposing counsel, consider preparing two briefs: one brief for the mediator and opposing counsel; and a second confidential brief for the mediator.  Submitting confidential briefs can give the mediator more information about the relationships, key sticking points, etc.

Ex Parte Communication with the Mediator is a Good Thing

If you have a visual presentation  you want the other side to see, discuss it with the mediator prior to the mediation. Nobody likes surprises, and if the mediator doesn’t know or hasn’t seen the presentation, they will likely say it’s not a good idea.  This is where you have to trust the mediator’s guidance of when to do a presentation.  Most mediators don’t like opening with presentations, but that doesn’t mean you can’t use the presentation later on. Often mediators like to use presentations later in the day once a breakthrough has been made.  For example, in a personal injury case, once the liability has been established, mediators will sometimes let a party show a “day in the life” video so that the other side can see the human element.

Tailor the Presentation to Persuade Opposing Counsel and Key Decision-Makers

If you are putting together a presentation for mediation, remember the mediator is not the decider. They are a facilitator, and as such they are looking for helpful information to convince the opposing party that your case is strong.  Some presentations are prepared in the nature of a closing argument to a jury, and they have the effect of infuriating the other side that has to sit and listen to a one-sided case. This is where speaking with the mediator in advance can provide you with some direction on how to present your case to the opposing party.

The overriding idea for mediation is to use the facts and evidence of the case to argue for you. Your most powerful persuasive force is mastering and showing the facts and evidence that will support your claims in a non-argumentative manner. This is the kind of mediation presentation that leaves the other side with a pit in their stomach knowing that you can put this case together and win.

For example, it could be helpful in a large construction case to put together a PowerPoint on key sub-contractor responsibilities, visually comparing all the contracts and other evidence and showing the various scopes of work on diagrams as they are discussed. If the mediator is dealing with twenty different subs, then having a presentation on who did what could be beneficial to the mediator.

Will the key company representatives with decision-making authority be at the mediation?  If so, that is who you want to present to. For the last two to three years, the opposing counsel has been telling the company representatives how strong their case is, and this is your first opportunity to interact with those individuals. For example, in accident cases, if you were to present your theory on causation through the use of visuals, that might get the company representatives to re-think their case.

Finally, consider having a version of your presentation that you can give to the opposing counsel (protected by the mediation privilege of course) who can share it with other decision-makers who may not have been in attendance at the mediation. Having a “leave-behind” interactive PDF that allows easy access to your key evidence, with well-designed demonstratives, is a way to get authority up the line from those not present.

Organize Your Files Digitally and Prepare a Settlement Document in Advance

Having a computer at mediation with all the critical documents, timelines, etc. is critically important. I’ve seen attorneys in the hallway furiously trying to get key documents faxed over at the last minute. Why not put those documents in an electronic format? For example, what if there was a key deposition that was taken?  Sure, you can bring the transcript, but why not have the video on your computer? An important part of the mediation process is the chance to size up the opposing party; you will make an impression of being more credible and better prepared if you have everything well organized and at your fingertips on your laptop or tablet.

Also, take the time to draft a settlement document in advance of the mediation. There is nothing worse than getting a settlement at 4 p.m. and then spending the next two hours putting together a settlement document. Everyone is tired, hungry and wants to go home.  Attorneys who have prepared a document in advance have an advantage. Key terms and ideas are already there, and it decreases the chances of missing an important element of the settlement agreement.

I recommend Morgan Smith’s past post on Technology for Mediation for additional information on this topic. I’m happy to meet with attorneys one-on-one or in a group presentation to demonstrate in greater detail the graphics, apps and other resources that give attorneys an edge and are becoming more the norm than the exception in mediation. Please email me if you’re interested.

Follow-up post: Best Strategies to Present Your Case in Arbitration.

Derek Ryan, director of business development at Cogent Legal, is the former General Manager at JAMS San Francisco and Business Manager for JAMS Silicon Valley.

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Q&A with Derek Ryan on Business Development and Litigation Graphics

Tuesday, March 25th, 2014

Derek headshotIf you’re a partner at a small firm, you know that every new position that’s created and filled matters exponentially more than a single hiring at a big firm. Payroll will spike with each new addition, and everyone will work closely together. It’s therefore imperative to hire someone who can wear different hats, who’s an enthusiastic “team player” and who’s genuinely likable.

Here at our three-year-old firm, Cogent Legal, my partner Mike Kelleher and I recently created a key position. We knew we had to find the right person with that flexible skill set, enthusiasm and great personality. We found him and are excited to introduce him: Derek Ryan, Cogent’s new Director of Business Development.

Derek is truly an interesting and likable guy whose background as the longtime GM at JAMS makes him well suited to understand attorneys’ needs and to deliver services not just for trial but also for ADR—an area that has yet to embrace the potential of graphics and technology for case presentation.

We thought you’d like to meet Derek because he has some great ideas for attorneys and an unusual background. So, we hope you’ll read and enjoy these 5 Questions for Derek Ryan:

1. You’re not an attorney, but you spent 15 years working with attorneys in Alternative Dispute Resolution as General Manager for JAMS. Now you’re working closely with two attorneys— my partner Mike Kelleher and me—here at Cogent. Do people ever ask you, in a tone suggesting they feel sorry for you, “How do you like working with attorneys?” What do you say?

Derek: I get this from people who are not familiar with the legal industry as a whole. At JAMS, there were a number of attorney mediators and arbitrators whom I worked with on a daily basis. My response has always been the same: I enjoy working with attorneys! Most of the attorneys I’ve worked with have over 15 years’ experience, and I enjoy learning from them, and I’m challenged by trying to build their practices.

2.  How do you think your past work with JAMS, and your familiarity with arbitration and mediation, segues well into your new work with Cogent?

Derek: They are very similar in that the focus is on the client. At JAMS, I spent much of my time talking to clients and working to improve the services provided. For example, clients wanted to see more proactive case management. In my first week at Cogent Legal, I was able to attend a client meeting with Morgan, and it really highlighted what Cogent Legal brings to litigation graphics: a client-focused approach. The other similarity I see is that we are providing a service that helps attorneys better manage their cases.

One area where I think attorneys can improve their results is through the use of graphics and technology in mediation and arbitration. I’ve seen hundreds of cases where briefs were lacking better exhibits or where an attorney had problems presenting an argument via a PowerPoint presentation. I think talking to experts like Morgan Smith and Mike Kelleher can improve the presentation of complex problems or scenarios.

3. Until recently, you had a picture of a race car in your profile photo on LinkedIn. What was that all about? 

derek race car

Derek: My brother and I attended the Jimmy Sills Sprint Car School in Marysville, California, last year. My family has been involved in car racing for over 40 years. The car in the picture is a 410 cubic inch Winged Sprint car with over 700 horsepower. It was by far the most powerful car I’ve ever driven and could lift the front wheels off the ground when you hit the gas pedal. It was a great experience that I will never forget!

4. Did you ever think about going to law school and becoming a lawyer?

Derek: It’s funny because most people think I’m already an attorney! I’ve considered it at different times in my career, but I’m not cut out for it. I always felt like I would be a better meditator than an attorney.

5. The other day, we listened to a legal marketing webinar that posed the question, “What is your cheeseburger?” The idea is, if you’re an attorney or legal services provider, ask yourself, what is your core, basic service or product (your “cheeseburger”) that you can market but that might lead to expanded services (“would you like fries with that?”) and an ongoing relationship (a.k.a. regular customers). Here at Cogent, what would you say is our “cheeseburger”?Cheeseburger

Derek:  The “cheeseburger” idea is something that is always on my mind. How can you expand your company’s services to other areas? How can you get clients to consider using all of the other services that you offer?

At Cogent Legal, our “cheeseburgers” are timelines, animations and PowerPoints. Clients often call because they have a trial set for next week and need assistance with these types of demonstratives ASAP. I think that Cogent Legal excels in this area, but the “secret sauce” that sets our firm apart from other litigation graphics providers is the partners’ backgrounds as litigators. Morgan and Michael have over 30 years of combined experience as trial attorneys.  The “fries with your burger,” or expanded services and added value, that Cogent Legal offers is the ability to consult with Morgan and Michael about your case. This in turn provides a strategic advantage by giving thoughtful input on how to present a case to a judge or jury to get the maximum impact. The relationships that Morgan and Mike develop with their clients often leads into other areas of support, such evidence organization, e-briefs, and trial tech for hearings or trials. It’s a great full-meal deal!

Thanks, Derek, and welcome! If you’d like to talk to Derek about how Cogent can help you develop and present your case, email him or give him a call at 510-350-7616.

Derek Ryan, his wife Jules and their two daughters

Derek Ryan, his wife Jules and their two daughters

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A Visual Story About Litigation Technology

Saturday, March 15th, 2014

TrialI will be presenting some webinars soon about litigation technology (click here for info and to register), and in those webinars, I want to tell the story of litigation technology in a visual way. I hope to avoid the standard e-discovery funnel or boxes with arrows approach (see here if you don’t know what I mean). Thus, I began to play with Adobe Illustrator and Adobe Photoshop to create a GIF that would tell a story. For a diversion on the eve of the weekend, I share it below—I hope you enjoy it and have a great weekend.
email_story

Using Biomechanical Animations To Prove Your Case

Wednesday, March 12th, 2014

Screen Shot 2013-10-16 at 11.28.48 AMI’m often asked by attorneys, “Why spend the money on making any visuals showing how the incident occurred if it’s an admitted liability case?” My question back is, does the other side agree completely with the causation of all injuries, and the extent and nature of them? If you have a plaintiff or defense personal injury case, then developing visuals to show the incident for an admitted liability case may still be extremely worthwhile and should not be forgotten.

From the plaintiff perspective, an admission of liability by the defendant is only saying that he or she admits they did something wrong.  It does not rule out a claim by the defendant that they believe the plaintiff also did something wrong.  Therefore, on this point alone, you may have to deal with showing and explaining issues of comparative fault to a jury.

An accident recreation or diagram can go a long way in helping you with this. Additionally, even if nobody’s fault is at issue, and it’s simply a matter of the type and extent of injuries, the use of what I like to call a “biomechanical animation” is a powerful visual format to develop and display in conjunction with a biomechanical expert. A biomechanical expert is able to calculate the movement of the body in a vehicle (or anywhere) and determine the forces placed upon the body at any point, and whether that is consistent with an injury-causing event. They can provide a foundation for a video that goes through each injury in a slow-motion matter, so the jury can appreciate how every single injury occurred.

In the video below, such testimony of a biomechanical expert was used as the foundation for the animation showing a slow-motion head-on collision in a recent case Cogent Legal worked on:

The benefit of a video like this is that even when every injury is admitted, it can be used as a teaching tool to explain the incident, and what plaintiff suffered during the impact itself as part of his or her claim of emotional distress. If you are dealing with a disputed injury, like a brain injury that is hard to diagnose, a strong visual of how the head hit the car and the speed at which it hit goes a long way toward explaining your point of view on the case.

Alternatively, from the defense side, if there is no evidence of a correlation between an injury and the event, then visibly showing that the type of movement does not result in injury is a compelling way to explain the defense point, even in an admitted liability case.

It’s important to realize that this animation is very different from an “accident reconstruction” that seeks to explain what the vehicle did in relationship to each other and who is at fault. For comparison, a sample of a recent accident reconstruction video done for Anthony Label at the Veen Firm is here:

In this case, the defendant created the original video that showed just the plaintiff’s car going out of control, but with nothing else in the video other than the still-image photographic background with no ladder or other cars. Cogent Legal’s animators subsequently added in the ladder that defendant dropped in the road, and all the other cars that swerved around the ladder to make it a true depiction of what occurred.

In this case, we also prepared a hard board that showed the  driver’s movements, from a bio-mechanical perspective, during each swerving maneuver and how it affected the driver in an injury-producing manner.

Screen Shot 2014-03-11 at 8.40.19 AM

For your next case, I encourage you to consider not only visualizing the accident reconstruction part of your case, but the biomechanical part as well.  If you have any questions about these topics, please feel free to contact me.

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Are You Ready to Practice Law Like It’s 2014?

Tuesday, January 14th, 2014

morgan and mikeChange is always exciting, and we have an announcement to make as we transition to 2014. The big news for the start of the year is the formation of  Cogent Legal, LLC as a partnership between myself and Michael Kelleher. Mike has been consulting for Cogent Legal for the past year and blogs regularly here. This partnership makes Mike a full manager of the company, but continues with the same business focus we have had in the past of providing outstanding legal graphics for litigation.

I’m so happy to have a partner, who like myself is a former practicing litigator with a great deal of trial experience. Mike’s speciality in business litigation—he’s a former partner and head of IP practice at Folger Levin & Kahn—complements my background in class action and PI cases. (Read our press release here.)

We both became lawyers in the 1990s and have witnessed tremendous change in the practice of law over these two decades. Looking back as well as looking ahead, we felt inspired to make this short animation to show the change from 1994 to 2014, and to illustrate Cogent Legal’s role in helping attorneys keep pace with change and win cases by leveraging graphics and tech. We hope you’ll watch it and let us know what you think.

 

 

We plan to continue writing about new developments in legal technology and litigation strategy, and sharing our practical tips through this blog. We also are getting ready to host webinars on our site to provide high-quality MCLEs on a regular basis. We’ll have an announcement here on the blog about that soon, so if you haven’t already, we hope you’ll subscribe to this blog by clicking here for updates.

2013 was a great year, with a highlight being voted the 2013 Best Presentation Provider by the Recorder.  In 2014 we hope to continue to live up to that honor.  From us here at Cogent Legal, we wish you all a great 2014.

Graphics That Helped Plaintiffs Win the PG&E San Bruno Fire Case

Wednesday, January 8th, 2014

PG&E San Bruno explosionOne of Cogent Legal’s clients, Frank Pitre of the powerhouse plaintiff litigation firm Cotchett, Pitre & McCarthy, recently won the CAOC Consumer Attorney of the Year award for his tenacity in fighting PG&E on behalf of many San Bruno families who were tragically injured or killed in the 2010 gas line explosion. Frank won this award for settling the cases with PG&E with strict requirements that go above the law, requiring PG&E to do extensive testing to assure the safety of their lines in other locations.

These cases were exceedingly complex, and Frank brought in Cogent Legal to help with the visual presentation of these cases for the key motion for summary judgment brought by defendant PG&E seeking to exclude any claim for punitive damages and for the potential trial.

One thing I really respect about Frank Pitre and his firm is their realization that visual aids would be key to making their case, and their desire to bring visuals into major motions and mediations.  There is simply no excuse in today’s litigation not to plan and prepare to present your cases visually at all key stages. In this post, I’ll spotlight some of the graphics we made and explain the strategic thinking behind them.

First, some background on the case, which killed eight people and destroyed 38 homes: Defendant PG&E claimed in their moving papers that (1) the pipe was installed in 1956 by a subcontractor and PG&E had no knowledge of any defect in the pipe; (2) the pipe operated as it should for 50 years before this incident; and (3) there were no warning signs regarding this particular piece of pipe that would put them on notice of a problem, much less constitute a conscious disregard for safety. While liability was admitted, the ruling on the punitive damage motion was key to this trial and/or the settlement of the case.

A home on fire after the deadly pipeline explosion in San Bruno in 2010 (photo by Brian Carmody courtesy abclocal.go.com).

A home on fire after the deadly pipeline explosion in San Bruno in 2010 (photo by Brian Carmody courtesy abclocal.go.com).

Plaintiffs’ story was obviously far different than PG&E’s. Plaintiffs had years of evidence regarding PG&E active neglect of these lines, and more damming, of PG&E intentionally skirting or undermining any legal requirements that would have required them to check their lines for safety. So while PG&E could honestly say they did not know of this specific hazard, plaintiffs claimed that it was a conscious disregard based on intentional actions to NOT know about this problem, and to prevent any requirements that would have revealed this defect.

Glenview_pipe-covered-revised

Cogent Legal’s 3D modeling of San Bruno pipe installed in 1956 under existing homes before explosion.

From a visual presentation standpoint, our firm faced the challenge of distilling 50-plus years’ of events and documents into an understandable and persuasive graphic for the judge at the motion hearing. A lot of attorneys might automatically think to create a PowerPoint to present all this information, but we recommended an interactive linear timeline made with Adobe Flash instead (see screenshots below).

An interactive timeline has the advantage of allowing the user (the attorney or court) to click through and see detailed information on any subject they choose. Also, the information builds in parts so the viewer is not overwhelmed by seeing everything at once. The screen shot below shows the full timeline with all the chronological pieces showing. If the user clicks on one of the document icons or warning sign icons, additional background information will pop out.

We also created two large blow-up boards that covered the entire timeline so it was always in front of the judge and visible. Finally, both the interactive and printed copies were provided to the court for the court’s consideration during deliberation.

Interactive2

Double click image to see full size.

Interactive1

With visual aids and with the skill of the trial team, the motion for summary judgment was denied.

Frank Pitre said of our firm’s work,  “Simply put, I wouldn’t trust anyone else with trial graphics except Cogent Legal if you want to effectively capture key concepts of persuasion to a judge, jury or mediator. They have repeatedly proven to be creative, responsive and efficient in cases of any size or type.”

Pitre’s firm also asked Cogent to prepare some demonstratives for trial to explain the concept of the amount of pressure going through these lines at the time of the explosion. The evidence was the lines regularly ran at approximately 350 psi (pounds per square inch), but went as high as 400 on the day of the incident. In order to give reference to such numbers so the lay person could understand them, we did some simple math.

First of all, we determined the area of the diameter of the pipe to be 706 inches, and calculated that this results in 250,000 pounds to 282,000 pounds of pressure at 350 psi and 400 psi respectively. For reference, we used the analogy of a 1956 Ford truck weight to show the amount of force on this pipe. The blue trucks depict the additional force placed on the pipe on the day of the explosion when the line went to 400 psi.

008_PSI_Slide 3 v4-01

This graphic is an example of using analogies to make an abstract concept of a calculation more understandable.

We at Cogent Legal congratulate Frank Pitre and the entire trial team at Cotchett, Pitre & McCarthy on obtaining these remarkable settlements that make the state of California a safer place.

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How to Visually Present an Employee’s History of Performance (or Non-Performance)

Tuesday, January 7th, 2014

security card“I’ve had enough! You’re fired!”

An employer who says this to an employee may later need to defend the termination decision in court. In today’s post, we’ll discuss graphics (adapted from a real case) that could be used to show that an employee was terminated because she was habitually late.

In our adapted hypothetical case, the employee was a manager who was required to be at work at 8:30 a.m. for a briefing with the outgoing team, and then to take over at 9:00 a.m. The plaintiff employee used a security card to get into the building, so evidence of her entry times was available.

The employer fired the employee after she was often late over a six month period. The employee claimed that she was not fired for tardiness, but rather for discriminatory reasons. She filed age and race discrimination claims under the California Fair Employment and Housing Act (Cal. Gov. Code § 12940).

Start With the Jury Instruction

In planning an opening or closing statement (and accompanying visual aids), it often helps to look to the jury instructions as these instructions will be the jury’s guide to deciding the case. California Civil Jury Instruction “CACI” 2500 instructs the jury that our hypothetical plaintiff must prove:

“That plaintiff’s race or age was a motivating reason for defendant’s decision to discharge plaintiff.”

This “motivating reason” is a core issue for the jury—because the employer wants to prove termination due to habitual lateness, presenting the security card entry times clearly is important.

Format Decisions: Calendar or Bar Chart? One Month or Multiple Months?

Our case had six months of monthly entry times that were potentially important. Presenting such a large amount of data requires careful planning. Trying to squeeze too much into a single graphic may make the graphic unreadable and confusing. On the other hand, breaking the data into many months may make it hard to communicate the “big picture,” and many require multiple distracting transitions.

Two choices that we considered were bar charts and monthly calendars. Below are treatments of the same month in bar chart and calendar format:

Sample - Security Card Entry Time - Bar Chart March

Sample - Security Card Entry Time Calendar_Mar 12

We tried these different visual treatments and tested them with a mock jury. While many on our team preferred a bar chart (in part because we could easily present six months of data in a single chart), we found that the mock jury understood a calendar format more readily.

The Big Picture Solution—Six Months at a Time

Our mock jury’s preference for calendar format was clear, but we needed a format that would allow the attorney to address the big picture of six months at a time. Our trial tech at the mock jury came up with a solution using Trial Director. He arranged pictures of the individual months so six months were showing at a time. We later converted his approach into an interactive six month calendar like the sample shown below that would allow zooming into any individual month.

Sample - Security Card Entry Time Calendar_Nov 11-Apr 12

 For more ideas and advice on demonstratives in employment litigation, please see this earlier post  and contact us if you have any questions.

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Good News for 2014: Trial Tech Costs Can Be Easier to Recover

Friday, January 3rd, 2014

Dollar2For those of you who rely heavily on trial technicians and courtroom technology, a 2013 case on CCP Section 1033.5 is important to know about because it enhances your ability to recover trial tech costs.

Every year, technology becomes an increasingly important part of case presentations. In a piecemeal fashion, courts are steadily catching up to this 21st-century reality and beginning to recognize that tech-related trial costs are legitimately recoverable.

Any attorney who wins a case at trial and sits down to fill out his or her cost bill has likely gone through the process of realizing that the allowable costs under CCP Section 1033.5 are kind of random. This section, which specifies allowable costs following trial, allows for some costs that many attorneys have probably never heard of, much less incurred, such as “expenses of attachment including keeper’s fees,” while it excludes important items like “transcripts not ordered by the court.” However, §1033.5 has the “catch-all” provision for “items not mentioned in this section” that may be awarded in the court’s discretion.

trialsupporthero

Oftentimes, the net effect of §1033.5 is to prevent attorneys from recovering a large share of their actual costs of trial. This discrepancy has only increased in the last 20 years with a fundamental change in trial from predominately paper oriented, to predominately multimedia and visually oriented for juror understanding and engagement. While the tech in courts changes on a yearly basis, the right to recover for such tech has been lagging far behind.

In 1995, when the “World Wide Web” was but a couple of years old, the court in Science Applications was faced with a case where the prevailing party incurred over $2 million in expenses to win $1 million in damages. In traversing this thicket of expenses, the court allowed such costs for a $100,000 video and $57,000 in demonstrative graphics, but rejected the claim for the “trial tech” costs of  ”$250,000 for various document management and video editing work” (p. 1104). The Science Applications court held that none of these expenses were recoverable under  §1033.5. In particular, the court disallowed editing of video depositions, noting that “the existence of the alternative but mundane method of reading aloud strongly suggests the editing ‘was not reasonably necessary to the conduct of the litigation,’ however ‘convenient or beneficial’ it may have been. (§ 1033.5, subd. (c)(2).)”  (Id.)

Following a ruling last summer, prevailing attorneys have a much better argument to recover trial tech expenses. In Bender v. County of Los Angeles, Cal. App. 2d Dist. (July 9, 2013) , defendants argued that “based on Science Applications, the costs at issue [were] ‘explicitly nonrecoverable’ and the trial court ‘had no discretion to award them.’”  Yet again proving that telling a court they have no power to do something is not a good strategy, the trial court disagreed and awarded $24,103.75 for “Trial Video Computer, PowerPoint Presentation and Videotaped Deposition Synchronizing.” Most such costs were specifically disapproved in Science Applications.

The Court of Appeal in Bender agreed with the trial court’s award, holding:

“Almost 20 years have passed since Science Applications was decided, during which time the use of technology in the courtroom has become commonplace (including a technician to monitor the equipment and quickly resolve any glitches), and technology costs have dramatically declined. . . The costs at issue total just over $24,000, and the trial court specifically found the trial technology enhanced counsel’s advocacy and was reasonably necessary to the conduct of the litigation. The court acted well within its discretion in allowing recovery of these costs.” Bender (p. 991.)

With this decision, the Bender court removes the argument that such trial tech costs are “not recoverable as a matter of law” as claimed by the defendant. Rather, such costs are properly within the discretion of the court to award if “reasonably necessary to the conduct of the litigation.” This decision restores the balance and discretion of the trial court to examine these costs on a case by case basis and determine if they enhanced the litigation and result for the prevailing party.

The benefit of this decision is to allow prevailing attorneys a much greater chance of recovering the cost of hiring people to come in and run the trial presentation software.

Please feel free to contact me if you have any questions about this type of work or topic. If you’d like to receive updates from this blog, please click to subscribe by email

6 Helpful “How To” Lessons on Legal Tech and Litigation Graphics

Thursday, December 26th, 2013

Inspiration conceptYesterday for Christmas, I opened a box that contained my very own Google Glass, and I know I’ll spend a good chunk of time during this vacation week teaching myself how to use the device. Once I get a feel for how Glass works and how attorneys might harness its power for litigation, you can bet I’ll share what I learned here on this blog.

I truly enjoy writing “how to” posts to pass along tips that can improve case presentations and make a litigator’s life easier. These posts often describe how to troubleshoot or avoid tech snafus that can crop up before or during trial. Or, they describe how to use technology and develop visual aids to make a more powerful case presentation.

As discussed earlier (in How Lawyers Can and Must Learn Legal Tech and Social Media), attorneys who don’t learn to use technology effectively will find themselves at a competitive disadvantage. Here are six of my favorite “how to” posts from the past year that aim to help litigators use graphics and technology to build and present the best case possible for their clients:

How to Build the Visual Foundation of Your Case: Step-by-step advice on what to do before depositions, before mediation and before trial to create powerful visual aids for your case presentation, especially if your time and budget are limited.

How to Escape PowerPoint Video Hell: Tips to avoid problems such as “link not found” and over-pixelation when embedding and playing videos in a PowerPoint.

How to Guide the Jury Through the Verdict Form in Closing Argument: My partner Michael Kelleher explains how to create a graphic of a verdict form to show jurors, and then how to display it and integrate it into your closing argument.

How to Manage E-Discovery and Evidence in Litigation: Another great post by Michael Kelleher—this one outlines how to use Adobe Acrobat and CaseMap to manage e-discovery and a mountain of evidence. The post is a summary of a webinar, and the webinar slides are included for further guidance.

How to Create an Opening Statement Using Graphic Immersion: Using a case example, this post shows several graphics created for an opening that allows the attorney to persuasively convey a great deal of information in a short period of time.

How to Effectively Use Surveillance Video in Tort Cases: This post discusses potential problems with using surveillance video in litigation and gives a case example on how to use it accurately and persuasively to illustrate an incident.

Which “how to” posts related to litigation graphics and courtroom technology would you like to read in the coming year? I welcome your suggestions on blog topics in the comments below.

Happy new year!

Please feel free to contact me if you’d like advice or help on any of the topics discussed above. If you’d like to receive updates from this blog, please click to subscribe by email

Trial Presentations: What Jurors Expect from Both David and Goliath

Monday, December 16th, 2013

lady justice w: borderWe trial graphics consultants often get the question, “Are we digging a Goliath hole for ourselves here with this presentation?” This question arises when attorneys fear that a sophisticated visual presentation could impress the jury as deep pockets bullying of a smaller party. Fourteen years ago, when I first began preparing courtroom presentations in an era of Elmos and flip charts, this concern may have had some merit. Today, the concern has little merit.

I posed the David and Goliath question to Sarah Murray, a Fulbright scholar social/cultural anthropologist and founder, president and senior consultant at Trial Craft, Inc. I have had the great pleasure to work with Sarah on cases from small contract disputes to antitrust matters with international scope.

Through Sarah’s quantitative and qualitative jury research, Sarah has evolved a conviction that the David & Goliath fear is a fading myth, and contrary to the metrics of fact. As Sarah puts it:

“It’s 2013, and it’s hard to walk down the street in San Francisco without having someone bump into you because their eyes are glued to their iPhone. Students in my stepson’s high school no longer submit written reports in most classes; they deliver PowerPoint presentations. Airports, bars, hotel lobbies, waiting rooms in hospitals and doctor’s offices, sport LCD screens that are on all the time, 24/7. Most new cars come with TV screens built in.

Yet, still, I hear business clients say, ‘We don’t want to roll into town with fancy graphics and seem like the big, fat company against the little guy! We know that opposing counsel is going to use just flip charts and markers. We don’t want jurors to see us as the deep pockets with money to burn on things like graphics!’

This kind of comment reflects lawyers’ anxieties and biases—not the reality of what jurors expect or how they respond to sophisticated visual presentations in today’s courtroom. In my 15 years as a trial and jury consultant, I’ve worked on hundreds of mock trials and focus groups and dozens of trials. Time and time again, I’ve seen well-crafted graphics make the difference in a mock trial or trial outcome. I’ve talked to thousands of mock and real jurors. Again and again, I’ve heard jurors say things like this: ‘Well, the other side just didn’t seem as prepared. They didn’t have any good graphics; the lawyer was just shuffling around with a lot of papers and putting documents up. It was really boring and hard to follow.’”

Sarah’s research and experience is reinforced by two recent studies on the effects of visual presentations in a legal setting. My colleague, Michael Kelleher, reviewed one of these studies in his post Statistical Proof that Legal Visuals Work to Persuade Jurors. Both the Park & Feigenson study “Effects of a Visual Technology on Mock Juror Decision Making” and the Persuasion Strategies Visual Persuasion Study found that opening argument visuals improved persuasion, jury recall and, most significant to this discussion, juror perception of the presenting attorney as being better prepared. But most notably, the Park & Feigenson study revealed a juror perception of the media-supported attorney as being “more competent” and “more credible”.

Jurors now expect visual representation. Sarah Murray explains further,

“Jurors today—old and young—expect sophisticated visuals in the courtroom because they consume them every day in the rest of their lives—on TV news, on the Web, in business meetings and conferences and conventions, on YouTube and in the movies. If only one party has good graphics, they don’t judge that party to be wealthier and worthy of punishing; they judge that party to be better prepared, more respectful of jurors’ time than the other side.

The average juror has no idea what trial graphics cost—and rarely do they speculate about it. (They spend a lot of time, however, speculating about how much the attorneys are getting paid. If trial attorneys who are worried about paying for graphics really believe their fears, they should stay home from court and send a paralegal in their stead).”

Today we have a new, visually literate and even media-demanding jury. Researchers at Ball State University’s Center for Media Design reported in 2009 that adults in the US are exposed to media screens of one kind or another on average about 8.5 hours per day! According to a 1998 Mind Tools study, a significant 65% of all people are visual learners.

In conclusion, Sarah counsels,

“Jurors are thirsty for good information to help them make what are typically difficult and complex decisions. Good graphics, like good trial themes and arguments, are like water. Thirsty jurors drink them and feel quenched. Unless given an explicit reason to do so, they do not attend to the source of the water or the cost of the drink.”

And for the attorney, whoever offers the more accessible and helpful presentation gains the advantage of being perceived as the more “credible” side—the juror expects both David and Goliath to come prepared.

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Statistical Proof that Legal Visuals Work to Persuade Jurors

Wednesday, December 11th, 2013

Powerpoint and speakerLegal visuals work. We thought so, and now we have the statistical rigor of a controlled experiment to prove it.

In a study comparing opening arguments delivered with and without simple PowerPoint visuals, mock jurors were persuaded more often when the slides were used. The study found effects on persuading jurors, recollection of evidence and perceptions of the advocates. With respect to persuading jurors, the study’s authors wrote in the summary:

“In general, defendant’s responsibility was judged to be greater when plaintiffs used PowerPoint slides than when they did not and less when defendant used PowerPoint slides than when it did not. Furthermore, PowerPoint’s impact was greatest when its use was unequal [only one side using PowerPoint].”

Below, we’ll look more closely at the study and what it teaches us about using visuals in court.

The Study

The study is “Effects of a Visual Technology on Mock Juror Decision Making,” 2013, Applied Cognitive Psychology, 27, 235-246,” published by a professor of psychology at Baruch College, Jaihyun Park, and a professor of law at Quinnipiac University, Neal Feigenson.

Using a discrimination case modeled on a real case, the professors videotaped oral arguments with and without PowerPoint slides, and presented those videotaped arguments to mock jurors drawn from undergraduates at a university. Park_Feigenson_slide1
The slides used in the study were very simple: six slides per side (4 slides presenting statistical evidence and 2 illustrating other arguments). One of the slides is shown, and the remaining slides used and sections of the accompanying spoken argument can be viewed in the study appendix, which is available on Professor Park’s biography page here.

After the jurors viewed the presentation, they were asked to decide if defendant was liable or not. The jurors were also asked other questions such as the degree of defendant’s responsibility, their assessments of counsel, and their recall of details from the arguments.

The Slides Persuaded Jurors, Improved Evidence Recall and Improved Perception of Advocates

The slides gave an advantage to the side using the visuals. For example, the study found:

  • “The percentage of participants who found the defendant liable was the highest (48%) when the plaintiffs used visuals but the defendant did not, and the lowest (26%) when the plaintiffs did not use visuals but the defendant did.” (Study at 237).
  • Use of slides by the defendant helped the jurors recall the defendant’s statistical evidence correctly.(Study at 238).
  • “When defendant used visuals, the defendant’s lawyer was judged better prepared, more competent and more credible than when defendant did not use them.” (Study at 238, internal statistical summaries omitted).

Not every test yielded statistically significant results, and sometimes the results showed results favoring one side without a measurable effect on the other. For example, as noted above, defendant’s use of visuals enhanced perception of the preparedness of defendant’s attorney. However, plaintiff’s use of visuals did not have a measurable effect on perception of the plaintiff’s attorney.

Exploration of How the Visuals Persuaded Jurors

The study went beyond looking for evidence of persuasion, and additionally analyzed how and why jurors were persuaded. Specifically, the study analyzed the results using the Elaboration Likelihood Model of persuasion, which posits that a message can succeed in convincing a listener by one of two paths—a cognitive path (the user is persuaded as she thinks about, processes and evaluates the message); and a peripheral path (the user is persuaded without cognitive processing of an argument’s merits, e.g., through perceptions that the speaker is credible and/or attractive).

The study concluded that visuals persuaded jurors in both ways: (1) helping them think through the arguments (a cognitive path under the Elaboration Likelihood Model) and (2) by providing cues that persuaded without involved thinking through of the message (a peripheral path under the Elaboration Likelihood Model). For example, the study found that the visuals helped the jurors recall details about evidence, and that this effect contributed to persuasion on a cognitive path. The visuals also persuaded by peripheral cues such as convincing jurors that the attorney was more credible.

Some Thoughts and Take-Aways from the Study

A few closing thoughts about the study:

  • It is difficult to study persuasion scientifically. The study goes to great lengths to set up a controlled experiment, and then to measure and analyze the results statistically. It is not surprising that most evidence about visual aids and other persuasive techniques is anecdotal.
  • A scientific study about persuasion is difficult for a lay reader to understand.  The study is not easy reading. I took statistics many years ago, and even a partial understanding of this study took me many visits to Wikipedia entries to remind myself of terminology. Here is a link to my statistics notes should they be helpful to you.
  • Your results will vary. As an attorney specializing in litigation graphics, I immediately began to think about how the visuals and arguments used could have been improved. (As noted above, those visuals and arguments are in the study appendix here.) The study’s authors also note that their results came from “relatively few slides of mostly simple design” and that “[s]tronger effects might well be created by more extensive displays.” (Study at 244.)

For ideas on how to create effective PowerPoint slides and other visuals for your case, I suggest you read this earlier post, Five Essential PowerPoint Tips for Attorneys, and browse our portfolio of sample graphics.

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How to Help Jurors Understand Spatial Relationships

Tuesday, November 19th, 2013

Screen Shot 2013-10-16 at 11.28.48 AMGood visual presentations enhance juror attention, cognition and retention in the courtroom. By providing comparisons and reference points familiar to the juror, demonstratives can help communicate difficult concepts and data. Understanding of spatial information (e.g., positions, sizes and movement) particularly benefits from graphical representation.

In today’s blog post, we’ll explore a diagram from NASA’s Apollo 11 Lunar Landing program and then discuss takeaway lessons for litigators planning trial graphics.

“That’s one small step for man, one giant leap for mankind,” said Neil Armstrong as he became the first human to walk on the earth’s moon. Neil travelled 240,000 miles to then step out onto the lunar surface and walk. But how far did he walk? Though we all saw the images of Neil’s moonwalk, viewer orientation was poor. The scope of that walk, in distance covered and range, is vague.

But thanks to the smart (and fun) spatial-comparative graphic made by John Mark Boling of the US Geological Survey Department, Neil Armstrong’s (and fellow astronaut Buzz Aldrin’s) range of moon-pedestrian traipsing can be quickly understood. Mr. Boling layered a typical baseball field, to scale, beneath a mapping of Armstrong and Aldrin’s landing site for viewer-familiar, contextual orientation. It’s an “ah-hah!” moment. We immediately understand that the astronauts’ trekking was extensive, but contained to the rough equivalency of a baseball diamond infield, with one long foray to center field and back.

A11vsMLB

The beauty of this graphic is in its conveyance of significant factors with simple immediacy of recognition, where only a moonscape would leave the viewer with no means or markers from which to understand scope and distance.

Equally so, trial and ADR demonstratives need to bring argument points and data into the realm of the familiar or easily comprehensible for the juror.

The Fourteen Seconds Before an Accident

 Map- Accident diagram copy

The above accident scene graphic was used by the expert and attorney to make “real” an otherwise complex algorithm of speed, distance, placement and direction for two moving autos which eventually collided. On the far left, the diagram shows a point of impact in red. To the right, the positions of the two vehicles involved are traced over the 14 second time frame before the accident. Imagine trying to orally convey this information to a jury, even with the help of a table of data. The significance of the space + time information would be lost on most jurors without this visual rendering.

Distance and Risk of Asbestos Mapped

 

AsbestosMiningExposureMap

This airborne asbestos contamination/migration map was a vital expert visual aid. It gave jurors an understanding of distances and changing terrain between an asbestos mining operation and claimed points of contamination. Importantly, the map also provides exposure risk levels associated with each increase in that distance. “Risk” is mapped for the jurors in a tangible, spatial realm.

Understanding the Microscopic Realm

TransistorSize_Synopsys

The microscopic world presents challenges to understanding too. For a past patent infringement matter, an important question that needed to be answered was, “compared to what?” Spatial comparisons help provide convincing familiar context from which the juror can better apprehend the content, relative to his or her known world, and thereby help guide the juror to contextually informed judgments.

Here, the industry was microchip development. Understanding how micro is a transistor allowed jurors to better grasp the engineering issues at hand to make informed decisions. This screen grab from our animation revealed that transistors today are a fraction of the width of a human hair or red blood cell.

Like the diagram of the baseball field under the moonwalk, these litigation examples provide visual context for scale, position and movement. We’d like to hear what you think—are these visuals effective? Do you have your own stories of spatial diagrams to share? Please let us know in the comments.

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How to Guide the Jury Through the Verdict Form in Closing Argument

Tuesday, November 12th, 2013

layersIn closing argument, it can be effective to show the jury the verdict form and tell them how you hope they fill it out. This technique is particularly important when the jury will face a complicated, multi-page special verdict form—introducing the jury to the form may avoid errors that will be costly to clarify later.

Below is a sample verdict form for a trade secret case (adapted from the General Verdict form VF-5001 in the Judicial Council of California Civil Jury Instructions (“CACI”):completed verdict form for trade secret

In this post, I’ll provide an example of what an attorney might be saying as this graphic builds during closing argument. For the tech-lovers among our readers, I’ll also talk a bit about the use of Adobe Illustrator to create the graphic.

Tell the Jurors What You Need Them to Do

When the jurors leave the courtroom to begin deliberations, there should be no confusion as to what they need to do to decide in favor of your client. When the jury’s decision will be reflected on a verdict form, teaching the jury to fill out the form correctly is often worth an advocate’s time in closing.

Lead the Jurors Step By Step

Once you decide to show the jury a verdict form, you need to decide how to display it and integrate it into your closing argument. Options include:

  • Writing on a Pre-Printed Board on an Easel—some attorneys prefer physical boards and interacting with those boards with markers. For these attorneys, displaying the verdict form on an easel and filling it in for the jury with a marker can be effective.
  • Display of the Completed Form—an attorney might also display the completed form as shown above in the graphic. A disadvantage of this approach is that the jury is likely to read ahead and then quit listening to the argument.
  • Sequential Display of the Blank Form Followed By the Filled Form Fields—our recommended approach is to lead the jury step by step through the needed entries on the verdict form. Intuitively, one might expect that this approach would be more engaging and less boring. There is evidence supporting this view too: a large study has shown that linking an immersive, continuous flow of visuals with your oral argument is more effective than occasional isolated images.

A Video Example of a Segment of Closing Argument With a Verdict Form

Below is a short video showing a step-by-step progression of an argument incorporating a verdict form. The argument is rough—it could use both a better introduction following from another topic, and a stronger finish, but it should nevertheless give you an idea of how the argument could accompany filling in of the form.

Tech Tips: Adobe Illustrator Techniques Used for This Graphic

If you follow my Twitter feed (www.twitter.com/lawnuke), you will see that I am spending some of my spare time learning Adobe design software and reading Edward Tufte’s design books. I’m not planning to become an artist myself, but I like to understand how things work and to be able to tinker with them as necessary. I made my own graphics for this post, so here, for the propeller-heads in the audience, a bit of how I did it in Adobe Illustrator:

    •  Separate layers for the form and the filled-in fields Separating design elements with Adobe’s “layers” can allow easier editing of a graphic, and can also allow easy creation of multiple alternate versions of the graphic. For example, here the blank form is the bottom layer, the “x” indicating the finding of liability is a second layer, and the $42 million amount is a third layer. Because the layers are separate, multiple versions of the graphic can be made quickly by making the data entries either visible or invisible. The layers panel from Illustrator for this graphic is shown below. You can read more about layers on Adobe’s web site.

layers

    • Handwriting: I captured my sloppy handwriting using Illustrator’s “paintbrush” tool and a Wacom Intuos Pro tablet that lets you control Illustrator with a pen interface. handwriting captureAn alternate approach without the Wacom would have been writing on paper and scanning an image, but that would perhaps become pixelated as it was enlarged.

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A Great Opportunity to Learn Litigation Tech and Presentation Skills

Thursday, October 31st, 2013

visual litigation and logosIf you’re reading this blog, chances are you have an interest in legal tech and litigation graphics. You likely know they’re important for any 21st-century case presentation. But you know less about how to get trouble-free and top-quality tech, demonstratives and litigation support. Maybe it feels too time consuming, too expensive or simply too overwhelming to sharpen your skills and knowledge in this area.

Fear not, a 90-minute webinar coming up will teach you how to leverage the latest trial technologies for stronger, less stressful presentations.

On Friday, Nov. 22, 10 a.m. Pacific/1p.m. Eastern, I’ll co-present this webinar with Ted Brooks, an expert in trial technology and courtroom presentations. We’re going to give a practical, concise overview on the use of technology in litigation, full of case examples and tips you can use.

First, we’ll teach you about the wired courtroom and the risks and benefits of using legal tech. 

wired courtroom

Then, we’ll show why visual aids are important and how to use them. For example, graphics can be designed to focus attention on specific facts of the case or aspects of an attorney’s argument.

focus attention on causes

 Finally, we’ll review the pros and cons of three levels of support (do-it-yourself, partial support and full support) and three styles of presentation (old school, middle tech and high tech).

I hope you’ll log on and join Ted and me for this webinar, for which you can receive CLE credit. To enroll, click this link and use the code V6837293 when registering to receive a 50% discount off the fee of $199.

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Simplify and Emphasize in Litigation Graphics

Monday, October 28th, 2013

Rendering dropwise addition photoIn oral argument, a litigator has very limited time—she needs to hit the high points and move on. She must communicate enough information to convince the judge or jury of her argument, yet must avoid getting mired in details that will only confuse.

Good litigation graphics can counter this time crunch by allowing an attorney to communicate clearly and quickly. The adage “a picture is worth a thousand words” reflects the truth that our brains quickly process and understand images.

To support an argument, graphics should be tightly tied to the key points of the advocate’s message. At Cogent Legal, we start the design of a litigation graphic by understanding the messages the litigator wants to convey. Our experience as trial attorneys often helps in this process—we understand legal briefing and can work with our clients to transform written arguments into oral and visual presentation. Often, we help the attorneys simplify their arguments and hone in on the most important points.

Today’s blog post reviews this design process for a hypothetical animation of a chemical synthesis for defendant’s opening argument in a patent infringement case (the case is based on a real case, but in this hypothetical, we have changed some details to protect the identity of the parties and the confidential information in that case).

Dropwise addition screen shot

 

The Argument and Evidence

The starting point for a litigation graphic is the message that it needs to convey. In our hypothetical case, the patent covered a pharmaceutical compound delivered in tablets. Our hypothetical client wanted to prove that the compound could be synthesized by following the procedure described in an article published years before the filing of the patent application (i.e., the article was “prior art”). This proof, that the pharmaceutical compound could be made by following the procedure in the prior art article, would make the patent invalid.

The evidence was that an expert had twice performed the synthesis described in the prior art article. In the first run, the expert had added a reactant rapidly, and had achieved a yield of 7% for the desired pharmaceutical compound. On the second run, the expert added the reactant slowly over 30 minutes (slow addition of reactants is a well-known technique to increase the yield of a synthesis). This second run resulted in a yield of 76% of the desired pharmaceutical compound.

The briefing and expert report contained many details about the two performances of the synthesis described in the prior art article (e.g., 250 milliliters of solution, 45 degrees centigrade, filtration and extraction procedures, etc.). In working with our client, we decided to simplify the argument by omitting much of this detail. Our client wanted to emphasize two key points in the argument:

  • both syntheses (rapid or drop-by-drop addition) created the patented pharmaceutical compound; and
  • a simple change of adding the reactant by drops over half an hour increased the yield of the compound.

Just Say No to Bullet Points

Unfortunately, some litigators would just put up a slide with two text bullet points of these two arguments, and read from the slides in court. DO NOT DO THIS. Bullet points bore the audience (who can read faster than you speak), and a slide of text cannot communicate as much information as a good illustration or animation can.

Choices in the Animation

Here, we created a short, simple animation to show the two experiments side by side. Some of the design considerations were:

  • Simplified images of lab equipment: We included images of common laboratory equipment to convey the idea of a lab experiment, but we omitted many details that would have complicated the illustration. (For example, the real experiment used a “syringe pump” that allows addition of the reagent over 30 minutes—our animation replaced that unfamiliar equipment with an illustration of an easily recognized syringe.)
  • Successful results in the two runs: To convey the idea that both syntheses (rapid or drop-by-drop addition) created the patented pharmaceutical compound, we put a prominent banner showing the percentage yield.
  • Simple procedure of drop-wise addition: Recall that there was also expert testimony that adding the reactants slowly to increase yield was a well-known technique. To convey the simplicity of this change, we showed drop by drop addition from a syringe as a clock runs in the background.

The Animation

The picture above shows a single frame from the animation. Below is the full animation:

In the comments, please let us know what you think. Did we visually convey the two points of this argument effectively?

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How to Build the Visual Foundation of Your Case

Wednesday, October 16th, 2013

Screen Shot 2013-10-16 at 11.28.48 AMWe all know by now that we live in a world in which information is delivered visually, and that people learn best when they have visual aids. Attorneys who head to court with demonstratives to show as well as tell their case are at a distinct advantage over attorneys who lack graphics that make their oral and written presentation more understandable and engaging. The question for trial attorneys is, how best can you create visuals for a powerful case presentation—especially if your time and budget are limited?

Last week, I answered that question and showed a three-step plan for creating simple yet effective graphics at a presentation for the Melvin Belli seminar on trial practices, hosted by the Santa Clara County Trial Lawyers Association. This blog post will summarize some of my key points and show a few images as examples. This presentation focused on PI cases, since most of the attorneys in attendance specialized in personal injury, but the steps below can apply to almost any type of case.

The expression of legal issues in a visual manner is open to endless creative possibilities, with the primary goal being to impart information and enhance understanding. Let’s take a look at ways you can make some basic graphics for a typical case involving an incident with injury. My plan involves (1) what to do before depositions, (2) what to do before mediation, and (3) what to do before trial. Each step builds on the prior work done and results in powerful, admissible demonstratives for trial.

1. Before Deposition

Start creating graphics to build the visual foundation of your case before the first depo is taken, so that you can go to depositions with a basic to-scale visual diagram of the incident scene. Then witnesses and experts can add in details.

You may find yourself starting to develop the case with a police report and hard-to-decipher location sketch. You might be able to pull an image of the incident location off Google (see prior post for tips on using Google Maps and Google Earth for your case). But you probably won’t want to use these police sketches and grainy Google images to present your case, because they are full of confusing information and simply look bad.

Here’s an example of a police sketch laid over an enlarged Google Earth image (i.e., an example of a less than optimal way of showing these images):rough sketch and google image

By comparison, here is a simple, affordable to-scale diagram created as vector art that can be displayed in different sizes, on screen or printed for 2D display (i.e. a better way to show the incident):

to-scale diagram example

Once you have this diagram, you can use it in depositions for all experts and witnesses to work off of and mark up. You can then make an overlay showing each witness’s details about what he or she remembered about the incident.

using the diagram in depo

2. Before Mediation

Now that the key depos are done with the aid of this first visual, you’ve made your expert’s job much easier because you have developed a consistent and to-scale diagram showing what each key witness location testimony is. Experts may then use a program such as PC Crash to input data and create a simulation of the incident.

expert making a simulation

You can overlay the PC Crash simulation outputs with the location diagram you’ve made and give it to the expert to confirm that it’s accurate, to scale and matches the expert’s opinion. Then, you can use this for mediation on screen or on a poster board, assured that it is accurate and has foundation.

Another good visual tool to develop for mediation are storyboards, which visually summarize complex depo testimony and show through pictures what happened or should have happened (see prior post on how to create storyboards for your case).

Simulations and storyboards will help the mediator understand your argument and show all sides involved that you are ready to go to trial if necessary. If you don’t settle your case, the good news is you’re really ready for trial because you’ve developed this visual foundation that will be effective in front of a judge and jury.

Belli Presentation copy.017

3. Before Trial

Once you have these diagrams and storyboards done, and once the experts have done their work, you can go the extra step and create a 3D animation based on the data and images accumulated so far. (Click here to watch the animation pictured in the still image below.)

vehicle animation sample

Visualizing the injury is also important for your case, to enhance juror understanding of what happened anatomically. Given that MRIs and X-rays are very difficult to understand, it’s a good idea to graphically enhance these raw medical images with labels, colors and other treatment to make them more comprehensible to the lay person:

med illustration sample

Finally, you may want to create a timeline for trial that shows the chronology of the incident and medical treatment:

PI case timeline sample

You can watch my full 10-minute presentation below. I’m available to make this presentation—and modify it to focus on litigation graphics in other areas of the law—for groups of attorneys at law firms or bar associations; please contact me if you’re interested.

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Analogy, Illustration, Animation and Simplicity: A Lesson for Trial Graphics

Thursday, October 10th, 2013

higgs_itselfGreat graphics make difficult concepts understandable, and such graphics are what we aspire to each day at Cogent Legal. Today’s blog entry will dissect a graphic from the New York Times and think about what makes it work.

The October 8, 2013, edition of the New York Times included a great graphic in its report on the award of the Nobel Prize in physics for the prediction of the Higgs Boson. The interactive graphic entitled “What is the Higgs?” tackles the difficult task of explaining a particle so fundamental that it has been called the “God Particle.”

The Higgs graphic exemplifies four tools for litigators: analogy, illustration, animation and simplicity. Below, I’ll discuss each of these tools briefly and conclude with some litigation examples.

Analogize

Our brains categorize and compare things to understand them. For example, automobiles were once compared to horseless carriages. As another example, the animations below compare internet data flow and bandwidth to the water flow in a pipeline.

Illustrate

Visual input helps our brains process and retain concepts. As set out in a Department of Labor study on effective presentations, combining oral and visual information increases audience retention significantly. Department of Labor study

Animate

Animating your illustrations can help explain change or the passage of time, and movement grabs and holds audience attention.

Simplify

Once you have your analogies and an idea of how to illustrate/animate, consider how simple you can be. Simple graphics can save money and time, and more importantly, they may avoid extraneous distracting details. On the other hand, judges and juries see sophisticated graphics every day on television, and graphics that are too simple may be dismissed as “cartoonish.” We balance these considerations daily in planning and executing graphics.

Samples

Below are a couple of samples that exemplify these principles along with short captions.

Sample—the Internet Pipe


This animation analogizes bandwidth (the rate of data flow on an internet connection) to water flow in pipes. To illustrate the completion of a download, the animation uses the analogy of a bathtub filling up. The animation also illustrates the passage of time with a clock graphic that advances.

Sample—the Mixing Process

Sample Diagram - Mixing Process-01We used a simple drawing like this to help in the examination of a witness as to a mixing process. We made the original drawing in just a couple of hours based upon the witness’s hand-drawn sketch, keeping the simplicity but greatly improving the clarity and readability of the concepts.

What do you think of the Higgs graphic? Did it help you understand the Higgs Boson? What about the internet pipe and mixing process samples? Let us know in the comments.

The Value of Trial Graphics Recognized

Monday, October 7th, 2013

Timeline showing litigation events As former trial attorneys here at Cogent Legal, we know the value of good trial graphics. Our clients appreciate and understand the need for high-quality in-court presentation too.

Recently, a judge in Nevada joined the chorus appreciating the worth of trial graphics. As reported in the Las Vegas Review Journal on September 25, 2013, Clark County District Judge Rob Bare awarded costs of over $1 million to a successful plaintiff, including costs for slides that explained the case, video depositions synchronized with the transcripts, and a trial technician who displayed evidence in a six week trial.

As Judge Bare observed, “I think members of a jury, most likely, are going to respect a more high-tech approach. … I think they will connect with it. … (It) is more than necessary in today’s modern climate. I think the judiciary should encourage this type of professional, high-caliber type of presentation.”

In reaching his ruling, Judge Bare agreed with plaintiff’s attorney that displaying documents and depositions on screen saved time at trial, and rejected defense arguments that the expenses were not “reasonable and necessary” under the applicable Nevada law standard.

The case was Suen v. Las Vegas Sands Corp. (LVS), 04A493744, Nevada District Court, Clark County.

At Cogent Legal, we provide trial graphics and in-court trial presentation technicians like those Judge Bare just endorsed. We wholeheartedly agree with Judge Bare that this sophisticated type of presentation helps litigators connect with juries. In the past, we’ve blogged about why it makes sense to develop your presentation as early as possible in the litigation process. Instead of waiting to create graphics in a piecemeal fashion after a case is worked up, integrate the development of graphics into the case as soon as possible. Let us know if we can help you with your next in-court presentation.

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Navigating Your Courtroom Presentation

Tuesday, October 1st, 2013

litigationworld-200This article won the LitigationWorld Pick of the Week award. The editors of LitigationWorld, a free weekly email newsletter for litigators and others who work in litigation, give this award to one article every week that they feel is a must-read for this audience.

“Good on her feet”—you’ll often hear that phrase used to describe skilled trial lawyers. The phrase reflects the reality that success in court requires the ability to adapt quickly. While you can and should plan thoroughly for hearings and trial, you must also realize that you are not in complete control. The judge may interrupt you in the middle of your carefully crafted argument, asking you to address another issue instead. Opposing counsel may derail your questions with an objection that is sustained. An attorney must be ready to change direction at any time.

When an attorney uses a presentation in court, the presentation must allow the attorney to navigate smoothly when circumstances in court require a change in direction. You need something better than advancing through 20 slides of your presentation, looking for the next section. In this post, we’ll show you a hyperlinked navigation system for a PowerPoint, and discuss how you can build your own in PowerPoint (or in Keynote if you are a Mac user).  

A Menu of Topics

Patent nav slide 1
A hyperlinked menu of topics forms the basis of most navigation systems for in-court presentations. The sample menu shown above has just three choices, but menus for complicated hearings can go over multiple pages. For example, in a recent hearing on patent claim construction and cross-motions for summary judgment, we prepared a deck with over 400 slides accessed by main and sub-menus (luckily for the audience, not all the slides were needed for the hearing, but our litigation team was ready with them anyway!).

The Back Button When You Need to Beat a Hasty Retreat

Timeline with back button

“Beam me up Scotty.” In a presentation, when you need to escape like Captain Kirk, you’ll often want a hyperlinked ”back” button that goes back to the safety of your navigation menu.

Of course, as the complexity of your presentation increases, so must the sophistication of your escape systems. For example, when you have multiple menus and/or submenus, your back buttons need to go back to the right menu or submenu. Color-coding back buttons that go to different areas (e.g., blue goes to the summary judgment navigation menu, and white goes to the claim construction menu) will help you keep it all straight as slides are edited and rearranged just before the hearing.

Inserting and Editing Your Hyperlinks

Edit Hyperlink Window in PowerPoint

Hyperlinks are not hard to edit once you get used to them. Text and objects can be hyperlinked in PowerPoint. Below, I have reproduced the help topic instruction on creating hyperlinks from PowerPoint’s help menu, and the dialog box is shown above.

Instructions for linking to a slide in the same presentation 1.In Normal view, select the text or the object that you want to use as a hyperlink. 2.On the Insert tab, in the Links group, click Hyperlink. 3.Under Link to, click Place in This Document. 4.Do one of the following: … Link to a slide in the current presentation: Under Select a place in this document, click the slide that you want to use as the hyperlink destination.

If you are a Keynote user on a Mac, you can find the instructions for inserting hyperlinks here.

A Sample Navigation System In Action

Here’s a short video showing a navigation system of a PowerPoint in action.

You can also download the PowerPoint file itself and play with it by clicking on this link.

Do you have questions or comments about navigation? Let us know in the comments.

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Sipping From the Fire Hose: Techniques for Managing E-Discovery and Evidence in Litigation

Wednesday, September 25th, 2013

Fee-Time-LineOn Tuesday, October 1, 2013 at noon Pacific Time, I will present a webinar for SFTLA entitled “Sipping From the Fire Hose: Techniques for Managing E-Discovery and Evidence in Litigation.” If you are reading this post before that time, and you’d like to attend the webinar, please click here to register. In this post, I’ll share the slides from the webinar and I’ll preview a couple of the tips that I will be discussing.

Surviving and Winning in Litigation

Litigation can sometimes feel out of control and all-consuming—there is too much information, too much to do and not enough time to do everything. In this presentation, I’ll discuss tools and approaches for ”sipping from the fire hose”—getting the evidence you need efficiently, organizing it, and then presenting it at trial.

Have a Plan for E-Discovery

California E-Discovery Book picture

In the webinar, I’ll be sharing and discussing a copy of the e-discovery checklist from the LexisNexis book, Matthew Bender® Practice Guide: California E-Discovery and Evidence (I serve as the consulting editor on the book).

E-discovery is a big topic, so I’ll limit myself to one big-picture piece of advice:  Have a plan to get in and out of e-discovery without getting mired in it. This plan will require you to think early about electronically stored information (“ESI”) and how important it could be to your case. Once you understand what ESI is likely to exist, develop a targeted and reasonable plan to preserve and get that electronic data.

Once you have your e-discovery, you need to organize it, understand it and present it at trial. The rest of the webinar and this post will deal with those issues.

The Many Uses of Adobe Acrobat

Some litigators like paper binders—I don’t. While a paper binder is sometimes useful, I almost always prefer to have my documents in an easy-to-use electronic form that I can search, organize, annotate and incorporate into my pleadings or other work product. Moreover, I feel good when I save a tree from being made into a binder.

Adobe Acrobat is the primary tool that I use for my electronic documents. With Acrobat (the full version, not just the free reader), the litigator can do many things:

  • Use scanned versions of paper documents;
  • Capture electronic documents such as web pages or emails in a convenient PDF form;
  • Combine individual documents into electronic “binders,” complete with bookmarks and annotations if you wish;
  • Extract individual pages out of PDFs and save them as new files;
  • Bates label;
  • Redact;
  • Comment and mark-up documents;
  • Create hyperlinked e-briefs;
  • and more….

The Big Fat PDF
In the webinar, I’m going to discuss these features of Acrobat, and some tricks for how to use Acrobat. For example, in the slide pictured in this section, I discuss the “Big Fat PDF”—my name for the technique of scanning entire notebooks or boxes of documents into single PDFs. Reasons to do this are speed and lower cost; if you don’t have to break the scanned collection into individual documents, you don’t have to worry about instructing someone on how to do this segregation (or unitization).

For example, in the PeopleSoft v. Oracle litigation, we received three fat binders of “key documents” from another law firm with perhaps 150 tabs of key collected emails. The first night we had the binders, I sent them out to a copy service that gave me back PDFs named with tab number. Thus, the next day, I had a collection of documents called KeyDoc001 (the document at tab 1), KeyDoc002 (the document at tab 2), etc. I then ran optical character recognition on this set, and set up a combined PDF document that had all three binders with bookmarks for each tabbed document. This gave me a searchable collection that helped us quickly master the factual background of the case.

CaseMap – Linking It All Together

Once you have all the documents at your fingertips, you are still going to need to read them, understand them, put them in context, and plan for using them.

Send to CaseMapFor example, in reviewing your key documents, perhaps for a wrongful termination case, you may read that two witnesses discussed an employment start date in January. As you read that document, you want to remember to ask the two witnesses about that conversation in their depositions. You may want to add the January start date to a chronology. You may want to ask another witness about his or her recollection of that meeting. Et cetera, et cetera. You need a way to connect all these facts, people, documents and issues.

CaseMap is the tool that I use to make these connections. CaseMap is a litigation database from LexisNexis.  Although it is extremely powerful, it is also much easier to use than many databases. For example, pictured in the slide in this section is the “Send to CaseMap” plug-in for Adobe Acrobat. The “Send to CaseMap” plug-in allows a great work flow—you read a document on screen and immediately add it to your database. Say you decide you want to make a note about the document, for example, the January start date mentioned above. You highlight the text and hit “Send to CaseMap.”  CaseMap then presents screens allowing you to make notes about the document and the event, and link it to the witnesses, issues and other evidence in your case. You can even add questions or follow-up about the document.  (Similar plug-ins are also available for Microsoft Word, Outlook, LiveNote, Concordance and other common programs.)

Once you have information in CaseMap, it is also easy to get it out in useful forms. You can create a summary report for the entire case (see a sample here). You can create a chronology, a witness list, a deposition exhibit list—almost any type of report you will need.

I use CaseMap from the first day I get a case all the way through discovery, motions, trial and appeal.

Presenting Your Evidence in Compelling Ways

Of course, even when you have found and organized the evidence, you still need to present it to the judge or jury in a convincing way. We write about these issues regularly in the blog, and in the webinar, I’m going to discuss three examples discussed in other blog posts. For this blog post, I’ll just give you the pictures hyperlinked to the blog posts, and let you click on the picture if  you want more information.

Fee-Time-Line

Motorcycle 4 panel

Data chart v1x5

The Webinar Slides

Here is a Slide Share version of the entire slide set:
You can also download a copy here.

Do you have tips to share on how to survive big litigation? If so, please let us know in the comments.

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Animating the Hypothetical Negotiation of a Reasonable Royalty in Patent Litigation

Wednesday, September 11th, 2013

Animation sample - Percentage of value in reasonable royaltyGood litigation graphics convey a message quickly and clearly. The example animation in today’s post supports an argument that plaintiff’s claim for a “reasonable royalty” in a patent case was unreasonable because the claim equaled the full value of the defendant company at the time of the “hypothetical negotiation” back in 2008.

Here is a short (18-second) version of the animation with audio of how an attorney might argue the point to a jury.

Later in this post, you can see the “director’s cut,” which has a longer version of a sample argument ending in the animation.

When someone has infringed a patent, how does the jury determine damages? The relevant statute, 35 U.S.C. § 284, provides that the patent holder is entitled to “damages adequate to compensate for the infringement, but in no event less than a reasonable royalty for the use made of the invention by the infringer, ….”

The “Hypothetical Negotiation” in Patent Law

One way to prove damages under the statute is to become a time traveler, somewhat like Ebenezer Scrooge in ”A Christmas Carol.” In the jury’s ”time travel” for patent damages, the jury must imagine going back to a time just before infringement began, and listen in on a hypothetical negotiation for a ”reasonable royalty” between the patent holder and the defendant. As the Federal Circuit has said, “the basic question posed in a hypothetical negotiation is: if, on the eve of infringement, a willing licensor and licensee had entered into an agreement instead of allowing infringement of the patent to take place, what would that agreement be?” LaserDynamics, Inc. v. Quanta Computer, Inc., 694 F.3d 51, 76 (Fed. Cir. 2012).

The Plaintiff’s Claim for $10 Million

The legal background should suffice to introduce our animation. The animation is modeled after a recent case in which we helped a patent defendant (the names, dates and amounts have been changed for this post). In our model situation:

  • The defendant, DefCo, has been accused of starting to infringe the patent in 2008;
  • The plaintiff, PatentCo, is seeking $10 million, which plaintiff claims is a reasonable royalty from a hypothetical negotiation in 2008;
  • The defendant’s valuation in 2008 was $10 million.

The killer fact for defendant here is the comparison of plaintiff’s claim for $10 million versus the $10 million valuation of DefCo. DefCo’s argument is that it would never have agreed to pay all or nearly all of the value of its company for a license to PatentCo’s patent—this could not have been the result of the hypothetical negotiation.

Below is a longer version of a sample argument ending in the animation. The animation poses the rhetorical question, “What percentage of DefCo would it have paid to PatentCo?” The answer, of course, is something much less than the full value of DefCo.

 

In the comments, let us know what you think—does this animation work for you? Do you have other patent infringement war stories to share?

Going From “Start Up” to “Best Of”

Friday, August 30th, 2013

recorder best logoI have some great news to announce that makes me very proud: Cogent Legal was voted “the best presentation provider” in Northern California for 2013 in The Recorder’s annual poll of law firms and legal services. It’s truly an honor to receive recognition like this when it feels like we’re just getting out of start-up mode. The award made me think about how Cogent has grown since its start in January 2011, which is a bit like watching a child grow into an interesting and independent person. (I used to think the idea that a corporation is a person under the eyes of the law was sort of silly, but when you see your own corporation grow, it’s not so silly.)

It only seems like a few months ago, not two-and-a-half years, that I was moving into our office space after spending several months at home developing my idea for a litigation graphics firm. Those first months were pretty lonely and anxiety-producing; I had left my previous law firm partnership, and all the people I cared about there, to try something completely different and potentially a lot less lucrative. What in the world was I thinking? But as more people came on board to work at the firm and Cogent’s client list grew, the new business took on a life of its own and finally started to seem more smart than crazy.

Starting a business in any field is not easy, and you definitely start with a feeling of “playing business” for quite a while as you’re extremely busy planning and taking the first steps of your business, but not spending much time on real paying work. When I helped found the Arns Law Firm with my partner and mentor Bob Arns in 1997, we had two major advantages I did not have with Cogent Legal: (1) we had a huge base of cases that came with us from the old firm; and (2) we were doing the same work—litigating cases—that Bob had done for 20 years and I had done for three.

By contrast, with Cogent Legal, I jumped into something much different from the basic practice of law, and much closer to a traditional design firm. I knew that my background in trying cases would allow me to help attorneys bridge the gap between their left-brain thinking and right-brain creative side in a way that would be hard for non-litigators to do. However, I had to learn and teach myself all about the production design process, and specifically how it applies to the litigation schedule. I certainly started off as the chief, cook and bottle washer, and I learned a great deal along the way.

If you’re an attorney who’s thinking of branching out, there is no doubt that leaving a firm and going out on your own, whether to continue to practice law or to do something different, is probably one of the hardest choices you’ll ever make. You’ll worry about whether you’ll like your new role, whether it will be a success, whether you’ll fail miserably, or simply barely get by for years in a sort of purgatory limbo.

The great thing about starting a new business is that you have total control over all the decisions that you make. The scariest thing about starting a new business is that you alone have total control over all the mistakes you might make along the way. Needless to say, you will make many mistakes and try many things that may not work as planned.  A key part of starting any new business is continually trying new things, not getting attached to any one idea, and maintaining determination to keep trying in spite of setbacks.

One of the best things is finding and hiring great employees who can do things better than you can do yourself.  They are what makes the company grow and thrive beyond what any chief, cook and bottle washer could ever accomplish singlehandedly. At Cogent Legal, we now have patent attorney Mike Kelleher coming on full time to meet the needs our clients who have business and IP cases. Perhaps you’ve read some of Mike’s recent blog posts here. He litigated IP and other complex business cases for 16 years and brings a deep understanding of the nuances involved in them.

The thing that makes me so proud of receiving The Recorder’s “Best Of” award is the validation that I made a great choice in starting Cogent. I know we will continue to grow and be more successful. It’s nice to let go of some of those start-up fears and to be recognized by our peers as doing a good job.

You can read the full list of The Recorder’s winners and runners-up hereI want to say a special thanks to Ted Brooks of  Litigation Tech, whom I respect greatly and who was recognized as runner-up for this award. Ted’s company  is masterful at providing litigation support and “hot-seat” operators to run all the courtroom tech in trial. At Cogent our main focus has always been on preparing the presentation graphics themselves, which is where our strength lies. Although both Cogent and Litigation Tech are under the same category for this award, we really specialize in different aspects of courtroom presentation.  For in-court presentation work, I highly recommend Litigation Tech and often contact Ted for this work.

As always, if you have any questions about how Cogent could help you with your case, or if you just want to talk about starting a firm, please feel free to contact me.

Displaying Patent Language in Patent Litigation

Thursday, August 22nd, 2013

030 cover pageAs lawyers, we are always arguing about documents, and we often need to display those documents in court. In patent cases, displaying documents is particularly important because the patent’s language describes the invention. In today’s post, I’ll talk about how to display this language in an understandable, readable and trustworthy form for the judge or jury.

Importance of the Patent’s Language

The primacy of a patent’s language comes from the patent statutes. For example, 35 U.S.C. § 112 requires that inventors describe their inventions fully and clearly, and that they point out their invention in the claims:

The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, ….

The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention. …

35 U.S.C. § 112 (emphasis added).

In light of the key role of patent language, patent litigators often need to display patent language in court to argue about the meaning of the language.

The Three Requirements: Understandable, Readable and Trustworthy

Whenever you display document language in court, you must make sure that (1) the audience understands what is being shown; (2) the language is readable; and (3) that the judge and/or jury trusts that you are displaying the language accurately.

Displaying Your Patent Language: Slides vs. Live Presentation

How do we recommend presenting patent language? First, you need to decide if you will be presenting prepared slides, or showing magnified documents live on Trial Director, Sanction, an Elmo, a poster board or another live display technology in court. There are advantages to both approaches. In this post, I’ll assume that you have decided to use pre-prepared slides of patent language, and save for another day the discussion of Trial Director or Sanction versus prepared slides.

A Sample Slide Displaying Patent Language

Below is a sample slide displaying some language from a patent:Patent Language Display Sample

Features of the Sample

We often use the format above for displaying patent language because it meets the three requirements outlined above. In particular:

  • Understandable: The format shown in the sample helps the jury or judge understand the context of the quoted language. By showing the patent in the background with yellow highlighting on the quoted paragraph, the sample visually reminds the viewer of the source patent document.
  • Readable:  The text box on the right allows us to display the key language in a clear, crisp font that can be sized for easy reading in court.
  • Trustworthy:  A slide displaying language without context can be misinterpreted as argument rather than evidence. By putting the source patent pages in the background with highlighting for the source text, the slide  implicitly communicates the authenticity of the quote.

Please let us know your experience on displaying documents in the comments.

Ideas and Advice for Demonstratives In Employment Litigation

Tuesday, August 20th, 2013

Screen Shot 2013-08-20 at 12.06.37 PMI recently had the pleasure of giving a presentation on demonstrative graphics for the State Bar of California’s Employment Law Division in San Francisco. In giving this presentation, I wanted to make sure it was not simply an ad for Cogent Legal, but that it gave practical and strategic advice for all the participants. This post shares some of the advice I gave on this subject, and at the end you’ll find the SlideShare of the whole presentation.

Organizational Chart

I started with the basic advice that an org chart is generally important in any employment case. It is very easy for attorneys to forget how hard it is to keep names and companies straight for jurors when they have not lived with a case for years on end. A simple chart that shows all the key players, preferably with a photo of each of them for the benefit of the jury, is a great simple graphic. I also recommend making a blow-up board of the graphic to have in front of the jury for the jury’s reference during every witness’s testimony.

Screen Shot 2013-08-19 at 10.45.33 AM

 

Timelines

Timelines remain the most important and common demonstrative for an employment case, whether for plaintiff or defense. Employment cases are all about what happened at which time. Being able to lay out a chronology that develops your story is absolutely critical for jury understanding. While there is an unlimited number of ways in which to create a timeline, I gave a couple of main examples that attorneys should consider.

First, there’s the type of timeline that “builds,” adding entries and layering information step by step as you go until you have a full timeline:

Screen Shot 2013-08-19 at 10.51.32 AM

 

The key with this type of timeline is not to show the end result until you have “stepped” through each entry.  This type of timeline can overwhelm a jury if the information is presented all at once rather than building. However, if you go entry by entry to build the timeline in opening, it is often a great idea to make the final timeline into a blow-up board to reference with the jury as witnesses testify. (See also our recent post on Timeline Designs for Litigation, for more information on static timelines.) Since the jury has already been exposed to the timeline in a step-by-step process, they can use the blow-up timeline as a reference to place testimony in context to other events.

The second main type of timeline to consider is where each entry simply appears as you move along the chronology and disappears when the next entry arrives. The benefit of this style is it allows for larger, easy-to-read entries, and you can often include key documents with the entries since you have room on your slide to do so. It’s also easier to add and subtract entries at anytime, unlike a static timeline that may require re-design.

The third type of timeline is the more complex and dynamic interactive timeline. With this type, the attorney can control what is seen by the jury at any time; include documents that “pop-out” upon command; and, can effectively build a case for an opening statement. I used this sample interactive timeline from a real estate case since it shows nicely the potential functionality of a timeline (with no confidential documents). You can click to open and view the timeline on any Adobe Flash-enabled device. (See also my prior post How Interactive Timelines Build and Strengthen Opening Statements.)

Screen Shot 2013-03-13 at 7.49.25 AM

Regardless of the timeline style, I recommend that attorneys consider the process of making a written chronology as follows to organize their thoughts, highlight key points, and provide a basis to make a timeline or to hand it off to a professional company to do the same:

Screen Shot 2013-08-19 at 11.01.16 AM

The process of creating this written chronology is often extremely valuable to the attorney to help focus the case and organize the elements.

Admissibility

I really enjoy presentations with a good interaction with the audience, and this was one of those presentations. One of the biggest questions was how to deal with objections to any demonstratives you may have. This is a very good question and, obviously, extremely important. I gave them an answer similar to this entry in a prior blog post:

“If you plan to do an electronic opening statement (such as with PowerPoint and/or Keynote), make sure to provide all slides that have exhibits, diagrams or pictures to the other side long before the opening. When I was trying cases frequently, it was usually my practice to file a motion in limine (see sample here) that asked for a ruling that all the attached diagrams, exhibits and evidence be allowed for use in Opening; then, I would attach all the opening statement slides to the motion.” (For more advice on the subject read Litigation Tip: The Best Way To Get Demonstrative Evidence Admitted at Trial.)

Here is the SlideShare version of what I presented to the state bar Employment Law Division, which includes more samples of graphics and summaries of key advice:

State Bar Employment Presentation from Cogent Legal

If you have any questions about employment law demonstratives or other litigation graphics, please do not hesitate to contact me.

Timeline Design for Litigation: When to Use a Static Timeline

Monday, July 22nd, 2013

timeline image“I need a timeline.” This is how litigators often start in asking for legal graphics. This start to the graphics conversation makes sense because timelines are perhaps the most common type of legal graphic, and the most familiar to many litigators. This starting point also makes sense in light of a litigator’s goal—a litigator needs to tell a cohesive story, and the relative timing of various events can help the litigator knit those events into a pattern.

To design a timeline, we need to understand how the litigator will use the timeline to tell his or her story. In this blog post, I’ll introduce some of the design questions we use at Cogent Legal to help litigators think about their timelines.

To assist in this discussion, below is a “static” timeline illustrating events in two related pieces of patent litigation, one in the ITC (the International Trade Commission), and one in district court:

Timeline

Timeline Design Questions

In designing a timeline here at Cogent Legal, we will start by asking some questions:

  1. What is the story that you want the timeline to communicate?
  2. How will the timeline be used in court to tell the story? For example, how long will you want to dwell upon each event in a timeline? Will you have control over the order of the presentation and the telling of the story (e.g., as in a closing argument), or might you need to jump around to different parts of the story out of order (e.g., as in responding to questions from a judge)?
  3. Will the timeline be used just once, or will it be used many times (e.g., in opening, in witness examinations, and in closing)?
  4. For a given event on the timeline, what level of detail will be helpful to present?
  5. Are there relationships or groupings of facts/events that will help tell the story? For example, a timeline could show events in multiple locations—color, position or other indicators might help the viewer see and understand these locations. Another common example is that a timeline can be used to contrast what was being said and what was being done.
  6. How important is the story told by the timeline relative to the overall litigation goals?
  7. How long will the audience have to view the timeline? Will the audience have an opportunity to view the timeline in more detail later?
  8. How will the timeline be displayed? Will it be projected on screens? Printed and given to the audience, perhaps in a brief or an exhibit? Printed on a large poster board for display on an easel? Will the timeline be perhaps presented on more than one of these display means? In light of the display means, what design elements are necessary to make the timeline readable and understandable (e.g., size of font)?

In future posts, we are going to explore some of these timeline design questions further, but for now, let’s talk a bit about the graphic above and how it relates to the design questions just introduced.

The Static Timeline: Limited, But It Has Its Uses

The sample graphic in this post, a timeline of litigation events in the ITC and district court, is what we refer to as a “static timeline.”

This timeline is “static” as opposed to dynamic or interactive:

  • The timeline does not build (i.e., all information on the timeline is revealed at once rather than over time as the presentation progresses).
  • There is no ability to “drill down” or click on an entry to get more information or detail.

Static timelines often suffer from information overload. Because there is only one non-building version of the graphic, it is tempting to put too much into the graphic,  making it unreadable and/or confusing in the amount of time given to the graphic during the presentation.

As we have written elsewhere in this blog, these limitations of static timelines cause many attorneys to prefer interactive timelines.

Nevertheless, static timelines have their uses. When are static timelines a good idea?

Some situations to consider using a static timeline:

  • The timeline will be used in printed format, perhaps as an exhibit to a brief or on an easel in court.
  • You want the audience to be able to refer back to and/or study the timeline. (In one trade secret trial, we left a large timeline of events up on an easel at every opportunity so the jury could be reminded of all the evidence of misappropriation.)
  • You will not be spending much time in the presentation on the timeline.
  • The underlying details of the timeline are not important for your audience to understand. For example, you may want to display a timeline of due diligence events to communicate the message that your client conducted due diligence, even though you do not want to spend the time talking about each event.

There is more I could say about timeline formats, but I’ll save it for future posts. You can see other examples of static and interactive timelines in our portfolio. Please share your thoughts, experiences and comments about timeline design with us in the comments.

Do you like Cogent Legal Blog? Please consider nominating it and other favorite law blogs before Aug. 9 for the ABA’s annual list of Top 100 law-related blogs, or “blawgs.” Submit your nominations through this link

Try E-Briefs As Part of Your Hearing or Trial Presentation

Tuesday, July 16th, 2013

e-briefFor your next trial or important hearing, you should seriously consider using an e-brief to help the judge (and the judge’s clerk) navigate and understand your argument. Cogent Legal recently helped a team of patent litigators prepare for and present at a combined summary judgment and claim construction hearing. E-briefs were an important part of that presentation to the court.

If you’ve ever tried to read a 4-foot stack of summary judgment briefing in paper form, you may appreciate the utility of an easy-to-use electronic copy on your computer that lets you jump back and forth between argument, evidence and authority. Giving the judge and the clerk the ability to easily explore and understand your argument in chambers using your e-brief can be the key to success (particularly when your e-brief is submitted with an electronic copy of your hearing presentation).

In this post, I’ll share a sample e-brief and review a couple of tips for e-brief success from our recent experiences.

What do we mean by “e-brief”?

An “e-brief” or “electronic brief” is an electronic copy of the argument, evidence and authorities submitted for a motion or trial. While the argument for a motion may be limited to 25 or so pages, the evidence and cases cited in an argument can fill many boxes. The e-brief takes those boxes of evidence and authorities, and hyperlinks them to the argument in an easy-to-access digital format.

An e-brief is an electronic file typically given to the judge or clerk on a CD (the e-brief file can also be transferred using a file sharing service such as DropBox).  When the CD is opened on a computer, the e-brief allows the reader to read the briefing with links that allow the user to review cited evidence or authority (for example, a citation to page 25 of a case would be hyperlinked to open a view of the case at page 25).

A sample e-brief:

Here’s a sample e-brief to review (click here) that will give you an idea of one possible e-brief experience. It will open in a new window; please download and view it in Adobe Reader for best viewing, as the links will not work in your browser. I say “one possible e-brief experience” because e-briefs are quite flexible, and you can provide other forms of experience depending upon your goals and what you want to communicate.  (Thanks to the Electronic Frontier Foundation for allowing us to use a copy of their amicus brief in the CLS Bank case to create this sample.)

Tip 1: Provide a Simple User Experience.

In order to succeed, the e-brief needs to be really, really simple to use. You want the judge or clerk to just pop in the CD and immediately start reading and understanding your argument. If the judge or clerk instead gets an error message and/or does not understand what they see on the screen, your e-brief is likely to go unread.

How do we provide a simple user experience for an e-brief? For one thing, we think a lot about what could go wrong, and we try to help the user avoid those dead-ends. For example, we run our e-briefs on standard software (e.g., Adobe Acrobat Reader) that judges are likely to already have on their computers. As another example, we provide web-like navigation so that users are not surprised or disoriented when they click on a link. Overall, our goal is to get the judge and clerk into reading and understanding your argument rather than have them caught on the shoals of some technical glitch.

Tip 2:  Preparing an E-Brief Improves the Overall Presentation.

Just as an e-brief helps the judge or the clerk understand your argument, it also helps us at Cogent Legal better understand your argument, and this improved understanding allows us to help you present your argument more effectively. When we prepare an e-brief, we see the evidence, the cases and the statutes you rely upon to win. When we have that source material at our fingertips as we prepare graphics, we can find and present these sources accurately and consistently with your argument.

What are your experiences with e-briefs? How could they be improved?  Let us know. And contact us if you’d like more information about how Cogent Legal creates e-briefs and visual presentations.

Q&A: Talking About Legal Tech, Litigation Graphics, Apps and Why I Do What I Do

Thursday, July 11th, 2013

Recently, the GCResearchClub.com, a UK-based networking group for in-house lawyers, interviewed me about litigation graphics and case presentation. I excerpted some of the Q&A here. Many thanks to William Barns-Graham, content manager at the GC Research Club, for the interview.

Q: How important is visual presentation for a GC?

A: In the area of patents in particular, it’s huge…. GCs are often involved in the determination of which graphic firms are used for their companies because there is a lot of concern with getting up to speed with complicated cases. There are often numerous people and cases involved, so it makes sense to have the same graphics firm involved because it reduces the time it takes for people to learn the case. It creates time for them to understand the case inside and out so they can be real experts in explaining what needs to be explained for that particular client. The choice of a graphics firm is one area where it is very important for the GC to have input or control in who is used.

Q: How has technology changed the GC’s role?

A: One example that I give, is for those attorneys who have kids that are between the ages of 5 and 12, all of them are generally in class being asked to put together presentations themselves either with PowerPoint or Keynote. I’m often amazed by how well they do in terms of putting together good visual presentations with images, photos and words.

What I tell attorneys is, “You do not want to be shown up in a courtroom with graphics that are worse than everybody knows their 5 to 12-year-olds can do.” Sadly, attorneys at times are  bringing in things that kids can do better. It doesn’t work anymore to say, “I don’t care about that technology—it doesn’t affect me” because it does—it’s the way people are looking at things.

Q: What is your favorite app and how can it help lawyers?

A: Keynote Remote. I like it with either the iPad or iPhone. I personally find the iPhone better as it’s easier to hold—it allows you to be able to use your phone as a controlling device to be able to control the presentation that you’re giving, and you can also have your presenter notes on your phone which is key because the most important thing with every presentation is to get rid of bullet points. Get words off of your screen as much as you possibly can—if you want bullet points, put them on your speaker notes, on your phone, but do not simply stand there reading what the audience is already seeing up on the screen—that is really frustrating for the audience. Keynote Remote is a great way of having your notes right there allowing you to have much more imagery on screen, which is great whether it’s a jury, your partners in a meeting or to potential clients.

Q: What other apps are you finding useful at the moment?

A: Bill 4 Time. It’s a fantastic program for billing, creating invoices, tracking time spent. It ties in with my iPhone, or any other phones with apps now, so when you’re out on the road you can easily add in your times and do invoices. That’s a great app. I’ve used it for two years and I’m very happy with it.

One that I use all the time on all of my devices is One Password, which allows you to have one very strong password in order to get into the program, and then it keeps track of all of your logins for all of the different websites on all your different devices. It can sync through Dropbox so that all of your passwords are up to date, and when you change your password on one device it automatically goes to all the others. In today’s world where everyone has 50-100 different logins, this allows you to keep track of them all. I use that every single day and would really recommend that anyone use it.

I'd be lost without the apps on my iPhone!

I’d be lost without the apps on my iPhone!

Q: You’ve gone from being a full-time litigator to a legal graphics and presentation specialist. What brought this about?

A: It was a number of years coming; I made the decision that I didn’t want to do litigation for the rest of my life a few years before actually making the jump.  Litigation takes its toll on people. I took a trip around the world with my family for a year to decide what I wanted to do. Along the way I decided I just didn’t want to go back to litigation. That left open the question of what I was then going to do.

Sometimes as an attorney you look around and your options are somewhat limited in terms of going into other areas without doing more schooling, which I wasn’t terribly interested in. I realized that one of the things I enjoyed most about litigation was when I was doing trials and I’d do all of my own exhibits and create my own graphics for trial. I realized that I loved doing that work. It was this creative aspect of the law that interested me, so I decided to make a company that could do that for others and do the part of litigation I really enjoy.

Please vote for your favorite law firms and legal services providers in The Recorder’s 2013 “Best Of” poll before July 15. Cogent Legal is nominated in category #30, “Best Courtroom Presentation Provider,” and we’d appreciate your vote.

How to Create an Opening Statement Using Graphic Immersion

Wednesday, July 3rd, 2013

square_airbrakeI recently  had the pleasure of doing a presentation for the San Francisco Trial Lawyers Association on technology in the courtroom. My co-presenters (Miles Cooper of Rouda, Feder, Tietjen & McGuinn and Jeff Smith from Abramson Smith Waldsmith, LLP) and I decided it would be more fun and inspiring to show the final results of a well-put-together visual case presentation using trial technology, rather than a step-by-step explanation of how to use that technology. That way we could show the power of the end result rather than the more technical steps to get there.

My part in the presentation concerned opening statements, and I wanted to share a highly graphically immersive style of opening that allows an attorney to persuasively convey a great deal of information in a short period of time. Since the focus of the presentation was partly on short matters like one-day trials or arbitration, the use of graphics in such settings can be tremendously valuable and helpful to the finder of fact.

I started my presentation by addressing the legitimate question, why use graphics at trial at all? The answer is because study after study has concluded that after three days, people only retain about 10% of what they hear, 35% of what they see, but 65% of what they see and hear together. Combining the powerful oral skills of a good attorney with a visual backing that constantly re-enforces the attorney’s points is the best way to ensure that the information gets through and sticks with your audience.

The example I used was actually for a few cases melded together to create one opening. In this sample composite case, the plaintiff claimed the defendant truck driver was driving too fast and hydroplaned in the rain, causing the defendant to lose control and strike plaintiff’s truck, which caused a brain injury.  The defense to the case is that plaintiff caused the accident by pulling out onto the highway from a small side road directly in front of the defendant’s truck, causing defendant to lose control of his truck, brake hard and hydroplane into the plaintiff.

The graphics—shown below in screen shots and in a video that presents them all together—give a tutorial for the jury on the nature of hydroplaning and its causes. I also included an expert’s re-creation showing diagrams of the truck movements starting 4 seconds from the impact to visualize movements of the vehicle.

Screen Shot 2013-07-02 at 10.00.42 AM

Screen Shot 2013-07-02 at 10.03.21 AM

We also created several short animations, such as this one explaining the physics of hydroplaning:

Finally, I hope you’ll watch the video below because it provides a good example of how we suggest attorneys put together the graphics for a powerful visual opening. What’s missing from the video, of course, is the attorney’s oral opening (the video has no sound or captions), so you’ll have to use your imagination and view the graphics as if an attorney were delivering his or her argument in court with the graphics displayed in the background.

 

Please vote for your favorite law firms and legal services providers in The Recorder’s 2013 “Best Of” poll before July 15. Cogent Legal is nominated in category #30, “Best Courtroom Presentation Provider,” and we’d appreciate your vote.

How to Escape PowerPoint Video Hell

Wednesday, June 19th, 2013

Screen Shot 2013-06-19 at 11.02.01 AMI’ve been thinking a great deal about PowerPoint recently, and not in a good way. At Cogent Legal, we have been working hard on a number of cases that involve extensive use of PowerPoint for the client, and I often feel that getting PowerPoint to do anything involving multimedia is like trying to make a car into a boat: You can do it, but it’s a lot of work, and there will be lots of problems.

On the one hand, you can look at PowerPoint as a rich and “powerful” program in that it allegedly allows you to do so many things. The problem is that it often only purportedly does them, or it does them but not very well. This is especially true when you try to create PowerPoints that include videos. Having learned the hard way a number of lessons on the PowerPoint multimedia front, I thought I’d share them with you all so you don’t have to get caught in PowerPoint Hell—or if you do, you’ll know how to get out of it.

One reason Keynote is great: One of the things I love about Keynote (Apple’s alternative to PowerPoint) is that for videos, you pretty much drag them onto the slide from your browser and choose “play automatically” in the animation section. Keynote supports MP4 videos, which have the best quality for the compression, and it seamlessly moves from one animation slide to the next without skipping, blacking out or other annoying things. Keynote also automatically embeds all videos in the file so all you have to do is transfer that file to anyone, and all the videos work and play just fine.

Screen Shot 2013-06-19 at 10.26.38 AMThe problem with videos in PowerPoint: PowerPoint, on the other hand, has a history of problems with multimedia. Up until a few years ago, PowerPoint did not “embed” any of the videos or sounds you put into the presentation. This meant your presentation would work just fine on your office computer that “links” to the video. But, we’ve all seen people giving presentations and stammering that “they don’t know why the video is not working,” and they discover that the laptop they are using for the presentation does not have any of the video files that were “linked” but not “embedded” in the PowerPoint.  The user would need to do a special kind of “save presentation” function to make a separate file with all the videos that would have to be transferred together with the PowerPoint file, or else it would not work.  Needless to say, this often gets screwed up.

An extreme example of Windows Media Pixelation

Screenshot of an extreme example of WMV format pixelation

Supported Video Formats: With the introduction of PowerPoint 2010 and the new 2013 for PC, so long as you save your video in the ppxt format (which is the default), it will now embed the video. You might say, “Problem solved!” right? The answer would be, “not by a long shot.” The main problem now relates to this supported video format. PowerPoint 2010 and 2013 for PC now do support MP4 videos (so long as you download the Apple Quicktime plugin), which is good, but the versions of 2007 and earlier do not at all. PowerPoint has its own video code, which means that any video must be supported by that version of PowerPoint. For 2007 and before it really only supports Windows Media and AVI files.  WMV (Windows Media Video) files are simply awful quality and look bad, and AVI files are huge (and I mean really huge) video files that are not compressed at all, which are simply too big for anything but the smallest clip.

Having spent numerous hours trying to get WMV to play correctly, I personally have given up on that format completely. Our office has had nothing but trouble with it being jumpy, bad quality and other problems. So you might say, “I should just buy PowerPoint 2013 and use MP4, right?” So here is the issue: You can make a PowerPoint using 2013 and use nice-playing MP4 videos, but when you get to the conference, the supplied laptop might be running 2007. None of your videos will play.  So be sure to bring your own laptop to use, or if you must use someone else’s, then test out your presentation on it beforehand.

Placing a video in PowerPoint: Using PowerPoint 2013, you can simply drag a video file into the slide and it will now embed the file (so long as you save in ppxt). However, you will often (but for some odd reason not always) see a sound icon and no picture. If you go to the animations panel and choose “play automatically,” you will see the sound icon flash at the start of each slide, and then the movie starts. It is really not good looking. If you see this, you must go to the movie settings (which you can get to by double clicking on the movie itself), and make a “poster” of the first frame.  This will show in the slide instead of the icon.

In animations panel under the “Start” menu you can choose “play with previous,” which means that it will start automatically when you go to the slide; or you can choose “on click” that starts when you click the button again. On click can be useful if you want to see the poster view first to introduce the video before playing. You can also choose “after previous” if you want the slide to do some other animated function before playing the video. You can use the delay field to indicate that you want any type of animation, including playing a video, to be delayed any period of time before starting.

Practice, practice:  Now after all this work setting your video up to play correctly, I strongly suggest the following: Put your file on a thumb drive and try it on another computer! It’s very important to know if you have correctly embedded the files since you never know what might go wrong with a presentation and you might need to put it on someone else’s computer.

What computer should I use to present?: Just so this post does not come off like a screed against Microsoft, I have to mention something that I really like. I recently purchased the Lenovo Yoga 11.6 inch laptop with the I5 Processor, Windows 8 and PowerPoint 2013. Having not used Windows 8 before, I was pleasantly surprised by how much I liked the interface. However, what I loved was the touch screen with PowerPoint 2013. With this combination, we could embed the high quality MP4s and make nice use of hyperlinks to navigate throughout the presentations. With the touchscreen, the presenter can simply touch the navigation with their finger and go right to the pointed location. It has all the best function for a presentation of my iPad with the touch screen, but also the full Windows 8 for everything else you want a computer for. I like the way you can make a “tent” of the Yoga so the presenter can easily see and use the computer while presenting.  I also like the 3 pound weight and very small size for ease of travel (it is obviously a very small screen, but I don’t mind that since you can generally set your computer up right next to you). In short, for those who present and want a small laptop with Windows 8, I highly recommend it.

Give Keynote on your iPad a try: If only more of the legal profession would make the switch. If you haven’t tried Keynote yet, I invite you to check out my earlier blog post, “Keynote for Attorneys: Tips to Try this Alternative to PowerPoint for Case Presentation.”

If you have any other PowerPoint multimedia problems, and/or solutions you have found to working with multimedia elements in PowerPoint, I would love to hear them in the comments below.

Please vote for your favorite law firms and legal services providers in The Recorder’s 2013 “Best Of” poll before July 15. Cogent Legal is nominated in category #30, “Best Courtroom Presentation Provider,” and we’d appreciate your vote.

Case In Point: How Animations Helped Attorneys in Patent Litigation

Wednesday, May 22nd, 2013

Screen Shot 2013-05-21 at 12.58.41 PMOur firm recently worked on a patent case between two Internet software companies that required illustration of the various inner workings of the Internet. While most people use the Internet on a regular (if not constant) basis, far fewer actually know what goes on “behind the scenes,” so to speak. What actually happens when you open your browser and type in a web address? These animations provided the attorneys with visual aids to explain the step-by-step process—an example of how to visually explain complex, technical ideas to jurors in a way they can comprehend.

Here are a few of the Flash animations we made for the trial. One reason I’m sharing them here is to show how we recommend breaking down a process into parts to explain to a jury.  This can involve static images or animations or a combination of both. The key is to take the complex and walk the viewer through the process.

This first animation illustrates how a web browser reads HTML code and translates that code into a webpage. HTML (HyperText Markup Language) is the language used to create most webpages. Keep in mind that when these animations are shown in court, the attorney will provide commentary; that is, they are meant to visually guide the attorney’s oral presentation on the topic, not to be viewed on their own (as you will see them below). Also, the low-res version embedded in the blog is not as sharp in quality as what the attorneys actually used. Nonetheless, I hope you get the idea and see how they can bolster case presentation.

The next animation illustrates the difference between two servers when you navigate to a webpage. The first server is responsible for displaying the website on your browser, and the second one sends back a local advertisement embedded in the webpage.

The next animation illustrates the idea of bandwidth data flow by comparing a server sending data to a home computer with a bathtub filling up with water—an example of how analogies can enhance understanding.

The graphics we created for this case were a great tool for the attorneys to use because they illustrated the technical back-end workings of the Internet in terms that anyone can understand.

If you are involved with business litigation and would like to discuss how animations or other types of graphics might help your case, please don’t hesitate to contact me.

The Stories Behind Outstanding Verdicts: SFTLA Trial Lawyer of the Year 2013

Friday, April 26th, 2013

NewLast night I attended the Trial Lawyer of the Year Gala hosted by the San Francisco Trial Lawyers Association (SFTLA),  and as always, it was fun to reconnect with so many great attorneys. I always enjoy this event not only because it showcases outstanding legal advocacy, but also because I volunteer to create the video that introduces the nominees and their cases.

This assignment to produce SFTLA’s video feels really gratifying since it gives me a chance to delve into the cases and summarize them by interviewing the nominees for Trial Lawyer of the Year. While I don’t try cases anymore—having done so for many years—I still have a litigator’s mindset, and I find the tactical issues that arise out of difficult cases intriguing.

What is notable to me is the great lawyering that occurred on all four cases that were up for the big award. I hope you’ll watch this video that features the attorneys talking about the challenges they overcame on the way to successful verdicts. 

Steven Brady received over $1 million in verdict on a case that many would have settled for under $10,000 (and was handled by two other firms before he took over). There was no issue of liability, only whether the plaintiff suffered any injury in a slow-speed rear-end accident.  This was not an easy case and could have gone either way.  What’s impressive is trying the case with the great danger of losing and putting your all into obtaining that kind of result.

Craig Peters and Anoush Lancaster were a trial team nominated for two cases tried within one week of each other. The first was a motor vehicle accident with good liability against one defendant, but extremely difficult liability against the one with the insurance, and a client that the defense claimed was uninjured. The second was a products liability cases against Caterpillar for a rollover accident that killed a fire fighter while driving their equipment. Not only did they obtain top dollar for both cases, but the logistics of having to finish one case, do all the expert depositions for the second case in the week before trial, and then try a complicated products case is daunting to say the least. Getting through that situation, and prevailing so strongly in both cases, is an amazing accomplishment they should be very proud of.

Chuck Geerhart and Tom Paoli also should feel proud of the great result they received on a case where their client swallowed part of a chicken bone while eating pizza at a Roundtable restaurant. Since a chicken bone is naturally occurring  under California case law, they could not make a claim for strict product liability. That means they had to prove that Roundtable was negligent and Foster Farms, which supplied the chicken, was negligent as well. To try this case, they had to become experts on all aspects of the chicken meat process (which probably wasn’t easy to stomach). I love how this case typifies what being a good attorney so often boils down to: Becoming an expert on an esoteric thing so that you know the issues inside and out for the duration of the case. It is a steep and constant learning curve to understand the issues better than the expert hired by the other side, and it’s what leads to great results like Chuck and Tom got on this case.

The Rick Simons case is truly exceptional—and for that, Rick received the honor of the 2013 Trial Lawyer of the Year award. This case, involving the Jehovah’s Witnesses, was originally referred to Rick by my good friend and pretty much the first client of Cogent Legal ever, Ed Casey. Ed referred the case since Rick had done a number of church molestation cases in the past, and there are issues with those cases that make them difficult. Number one among them is how to handle the huge anger that a jury will feel against the actual perpetrator of the crime, and how to focus that anger on the actions of an organization that was in the best position to stop such crimes. It may sound easy, but it’s not. Rick received the highest verdict ever, $28,000,001, for a single plaintiff, thanks to his hard work, empathy and ability to tell the story of his client and the defendant.

All these finalists really do represent the best about the legal profession when it comes to trial work, which always will be more of an art than a science.  My congratulations to these artists.

How Graphics Helped a Trial Team Show Complex Data and Win

Friday, April 12th, 2013

Screen Shot 2013-04-11 at 11.55.29 AMI love hearing the news that one of our clients had a great result using the work we did for them. The most recent big win I’m happy to report is Manatt, Phelps & Phillips, LLP, won a major lender liability/wrongful foreclosure action, obtaining a complete defense verdict in favor of its clients. Cogent Legal was hired to assist the Manatt trial team by creating graphics that helped bring order and understanding to this complex case.

The case involved Rincon Towers in San Francisco, which coincidentally is where I used to work; that’s where The Arns Law Firm set up shop when Bob Arns and I opened the firm in 1997. In 2007 Rincon Towers was purchased by the plaintiff in the case, who ultimately lost the property in foreclosure and sued multiple parties, seeking the property back and $40 million in damages. The case was a complex one involving many layers of parties, accountings on the properties and events over time. (For details on the case and the defense victory, read Manatt’s press release here).

Any complex transactional case such as this, which involves a great deal of accounting, lends itself to Excel spreadsheets that, by themselves, are not very helpful and make one’s eyes glaze over. We needed to help the trial team show a chronology of events and economic data based on the facts of the case and the experts’ opinions, so that the team could make their case to the judge as understandable and persuasive as possible. This was a bench trial, not a jury trial, which lends itself to more sophisticated or complex graphics, which are handed off to the judge and clerks so they can refer to them later as they’re writing the opinion.

Below are a few “sanitized” samples in which we changed the names of the witnesses and case information for the purpose of this blog post, but the samples illustrate the nature of the work Cogent Legal did on the case.

The first chart outlines the cash flow in the case. Its purpose was to make clear the order of funding to show no harm could have occurred as claimed by plaintiff. It’s an example of how a basic flow chart can be more understandable and visually appealing with the use of icons and colors. Also, generally speaking, the process of creating a graphic such as this can be an extremely helpful exercise for the trial team to undertake insofar as it aids them in organizing the case and resolving inconsistencies.

cash management-01

The following graphic is a pretty basic bar chart, but it manages to include a good amount of data and to illustrate the relations between the actual data and the projection. I’m including this sample to show how a set of data can be more visually appealing when it’s designed to go with the style of the other visual aids.

Sample_Op Expense

The final sample below is an example of a very effective scatter chart on a timeline. It shows an objective valuation of the property in 2007 before the market crash, and then a cluster of third-party valuations of the property after the crash. Up top, at the red star, it shows the plaintiff’s valuation of the property—which is literally “off the chart” and even higher than the pre-crash valuation.

003_ScatterChart_Sample

We at Cogent are very happy for the success of the Manatt team. If you are involved with business litigation and would like to discuss how graphics might help your case, please don’t hesitate to contact me.

A “Recovering Lawyer” on Creating Good Presentations and Being a Good Attorney

Tuesday, March 26th, 2013

outsidetheboxIn my continuing effort to point out effective presentations that attorneys can learn lessons from for case presentations, I came across one that teaches on two different fronts. I saw a Slideshare presentation by Matt Homann, the founder of LexThink, which is a firm dedicated to helping attorneys collaborate and work better. Matt is a self-described “recovering attorney” who gives presentations for a living, and it shows.

His presentation, embedded below, covers “Ten Ways to Build a Better Firm.” Thanks to the images and selective use of text,  it’s both inspirational and practical, conveying so much more than words alone could.

In the first place, I love the humor that comes across. However, the main take-away is the simple concept of lots of pictures and only a few words per slide. While graphics for trial obviously have to be a bit less humorous and more staid, the example of using full-frame photos with a partially transparent bar on the bottom for the titles is a good lesson to learn. If you cannot fit your thought on the slide in that small of a space, then you either need another slide, or need to figure out how to edit your concept down. The fact that this presentation has 77 slides means that he would be moving through slides at more than one per minute, which helps keep an audience’s attention.

Think real BIG: Building an Innovative Law Firm. from Matthew Homann

Secondly, I like the message for attorneys on how to make their practices more innovative by networking, finding mentors and recognizing the inherent stresses of the legal life. I recommend checking it out.

Do you have a Slideshare presentation you’d recommend for attorneys? Please let me know through email or in a comment below because I’d like to spotlight more of them.

Getting a Brain Injury Animation Admitted the Hard Way

Wednesday, March 20th, 2013

brain-injury-125x125The great thing about trials is you never know what’s going to happen. I certainly never heard of an attorney offering to place herself into potential physical harm in order to get an animation admitted into trial, but that’s exactly how Julie K. Parker got an animation done by this office into her recent trial Hoopfer v. Fry’s Electronics.

First, a little bit of background information on this case: Ms. Parker of La Mesa (San Diego County) and her co-counsel Cassandra Thorson represented Kevin Hoopfer who shoplifted a $35 item from a Fry’s Electronic Store in San Diego. When the security personal saw his shoplifting, one of them followed him out of the store, confronted him and manhandled him to the ground. The defense argued the security guard did nothing more than his job by stopping Mr. Hoopfer and using the force necessary to subdue him when he tried to walk away. However, according to Mr. Hoopfer, he suffered brain damage by the security guard flipping him upside down and smashing his face into the ground.

As a result of the head injury, Mr. Hoopfer has no memory of the incident itself. Luckily for the plaintiff, there was a witness who described the movement of the guard in deposition. Ms. Parker called our office to help with an animation to show this movement.

This animation was extremely difficult to get right in terms of the movement of the two persons to match the perception of the eyewitness. However, once the video was done to the satisfaction of the eyewitness, he confirmed it showed  the movement of the two people properly and would testify under oath at trial that it was an accurate description. Below is the animation that shows a regular-speed view and a slow-motion view, and a view of how Mr. Hoopfer’s brain would hit his skull causing brain injury in the frontal lobe.

At trial, Ms. Parker had a difficult situation with a number of rulings from the bench that were very much in favor of the defense. In particular, the judge was not inclined to allow the animation to come into evidence, even though it simply visualized how the key eyewitness said the incident occurred. (For a legal discussion on getting animations admitted in trial, see my prior post Animation v. Simulation.)

Ms. Parker was not one to give up, however. While the eyewitness was on the stand, Ms. Parker told the judge that if you do not let in the animation, then she wanted to have the 6-foot, 6-inch witness demonstrate  on her what the security guard did by flipping her upside down (and hopefully not hurting her) in open court. The judge relented and let in the above animation.

Ms. Parker told me that the jury literally gasped when they saw the animation, which ultimately had an even stronger impact because the defense had been objecting to showing it throughout the trial in front of the jury, so the jury really wanted to see it.

Ms. Parker said, “Your animation was so very helpful, and I could not have been happier with the efficacy of the animation with the jury.” She added that when you “put a scene in motion like this, people believe it and it becomes the image of the incident that the jury takes back with them during deliberation.”

This case settled after Ms. Parker and Ms. Thorson obtained a finding of liability in the first phase, and a finding of entitled to punitive damages against Fry’s Electronics in the second phase. In speaking with the jury after the settlement, jurors said “the animation was extremely helpful in understanding how this incident occurred and the severity of the impact.”

This case really is an example of “you have to see it to believe it.” My congratulations to Ms. Parker and Ms. Thorson for an amazing result in this case.

I invite you to click on the following links to our portfolio, which contain other examples of animations involving injuries, construction, products, vehicles and more. Please contact me if you have questions about developing an animation for a case.

How Interactive Timelines Build and Strengthen Opening Statements

Thursday, March 14th, 2013

Screen Shot 2013-03-14 at 9.13.59 AMTimelines are probably one of the most common things we create at Cogent Legal for clients in all types of cases. Employment, business and personal injury cases are ideally suited for laying out the facts in chronological order to enhance jury understanding. When discussing the various options of timelines with clients, there are basically two main types to consider: Static and Interactive.

A static timeline can be done on a blow-up board and shown to the jury during any key moment of the case. The downside of a static timeline is that, unless it is really simple with only a few entries, you risk overwhelming the audience with so much information at once that it can be hard for them to understand.

For this reason, we generally recommend attorneys start with an interactive timeline that shows events one at a time so that the jury focuses on a single point as the attorney makes it. The interactive format also allows for document treatments so you can choose a button to reveal key documents that relate to the timeline entry. The following example is from a case (where all the names and dates were modified), and it shows the strong functionality possible with the interactive format. My clients realized that when we finished the timeline with all the dates, entries and documents, not only did they have an engaging, effective tool to present their case; they also had their entire opening statement finished! They could simply go through each entry with the jury in opening and discuss the issues. 

Click the screen shot below, and it will open a separate window to view the interactive Flash timeline. As you click the arrows at the top right-hand corner, you will notice certain entries have a magnifying glass icon. Be sure to click on these, too, to open additional information on that entry, such as document call-outs.

This sample case arises out of a real estate dispute where it was alleged that a buyer of property continued to add numerous expensive extra items to the house he was purchasing, and then tried to back out of the deal after they were built. The bar at the bottom tracked the total cost of upgrades as time went on.

The good thing about this is, it’s built in Flash. The bad thing about it is, it’s built in Flash. What does this mean? Adobe’s Flash allows for unlimited creativity and interactivity—which is great. But, it’s not supported by Apple, so it won’t play on iPads or iPhones—which is frustrating. Therefore, I ask that you view this on your Flash-enabled desktop or device.

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Click on image to open separate screen to view Flash Interactive Timeline (must view on Flash-enabled device).

This sample is a great example of the flexibility that a well-designed timeline can give a litigator in most any business, employment, real estate or other case. Click the following links to see another example of an interactive employment timeline and an interactive construction defect timeline.

 If you would like more information on how a timeline can help your case, please do not hesitate to contact me.

A PowerPoint Sample for Business Trial Lawyers

Wednesday, March 6th, 2013

PPt slide of attyThe Association of Business Trial Lawyers asked Cogent Legal to prepare the graphics for a presentation last night on mock trials. The panel consisted of some of the best jury consultants in the country exploring the factors that make successful and worthwhile mock trials. Beth Bonora, Karen Jo Koonan, Andy Sheldon and Ron Beaton all touched on some of the key issues that attorneys should keep in mind regarding the proper use of mock trials in developing your case.

The presentation had three parts, with the first part handled by Karen Jo discussing what type of focus group or mock trial you may need depending on what information you seek to obtain. Beth and Andy then followed up with a discussion on issues of confidentiality and how to keep any process as confidential as possible. Lastly, Ron and Andy shared insights on how you take the information you learned from the mock trial and apply it to the actual trial. Attorney Doug Young did a great job moderating.

This terrific panel discussion gave my firm a chance to do a fun slide-based presentation for the jury consultants, which is often not possible in the serious world of litigation. While this presentation (embedded below) was intended to be playful, it provides a good example of some of the techniques I blog about concerning do’s and don’ts for PowerPoint or Keynote presentations.

If you scroll through the presentation slides below (uploaded using a tool I recommend, Slideshare), first you will notice that there are very few words overall. We mainly used pictures, not text, that relate to the topic of discussion. The primary cause of dreaded “death by PowerPoint” is bullet points that the presenter simply reads to the audience as the points show up on the screen. Secondly, audience members appreciate a template style they have not seen before. The background on this slide presentation was custom made in Adobe inDesign so it would look fresh to the viewers. Thirdly, the images chosen are big, clean and immediately understandable without explanation. These three guidelines almost always will guarantee a nicely done presentation that an audience will respond to. (For more advice on creating effective slide-based presentations, please see my post “Five Essential PowerPoint Tips for Attorneys“).

Mock Trial Presentation for the Association of Business Trial Lawyers from Cogent Legal

Now, it’s certainly true that litigation presents more circumscribed parameters on what you can present, but each one of the factors above can be used to increase the power and persuasiveness of a visual presentation for mediation or trial.

Please don’t hesitate to contact me if you’d like to learn more about how Cogent Legal creates multimedia slide-based presentations for attorneys.

The Litigation Graphics Lesson in the “Wealth Inequality in America” Video

Monday, March 4th, 2013

100 dollar billsI always like to share examples of what I consider powerful graphics to give attorneys ideas on what’s possible to create for use in litigation. This morning, I was struck by a video going viral that describes economic inequality in the United States.

Regardless of your politics, and whether you believe that the widening gulf between the poor and super-rich is a serious problem or mere propaganda of the Occupy Movement, I hope you’ll watch this video because it’s a fantastic example of how to show data in an effective and engaging way. In particular, if you’re an attorney who presents cases with large amounts of economic facts and figures, you’ll want to see how this video combines storytelling with clean, simple and powerful data visualization techniques.

One thing I appreciated immediately is the power of the narrator, enhanced by the pacing that he uses. His technique is similar to that of a good attorney giving a closing statement. His speaking is well paced and a creates appropriate tension in that you want to know what he is going to talk about next. The narrator starts with a discussion on the perceived state of income distribution in the United States. If you have not seen the video before reading this, below is the graphic that summarizes the findings, but you might find the summary difficult to understand. This is a terrific example of why in litigation graphics, you want to “build” your argument by revealing information one step at a time, as this video does, until you reach the conclusion; otherwise, you risk confusing your audience.

Rather than hit the viewer with a lot of information all at once, the video starts out with statistics on what people in the U.S. think the distribution of wealth is, and then compares that to what people believe it should be. The narrator shows this with a graph that dynamically slides the percentages to match the new data. Using tools like Adobe Flash, this type of dynamic movement is visually engaging and relatively easy to accomplish.

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This “building” of information also sets up a conflict between appearance and reality, since the entire point of the graphic only becomes apparent when he reveals the actual distribution of wealth and compares it to the first two sets of data (what people think it is, and what they believe it should be, as shown in the above screenshot). The effect convinces the viewer that the distribution is much more unequal than most anyone actually imagines. If the above chart were a static board rather than an animated presentation, the tension of appearance vs. reality would be lost because you would immediately see the answer. Additionally, you would risk confusing the audience by having too much information that needs explanation all in one place.

The video then uses essentially the same data, but with different visuals to drive home the same point. It starts out by presenting the total yearly wealth of the U.S. and showing its distribution under the “ideal” scenario.

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The video then graphically compares that ideal to the actual distribution of wealth.

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By using animation to move from one graphic to the other, the viewer can literally see the changes to the various groups as the numbers change. The video also takes advantage of the fact that numbers at the higher end of the spectrum literally go off the page by pointing this fact out, and then making a separate category to account for the top 1% of income earnings in the United States (where you see the person in the screen shot below on the far right with 40% of the total income for the country).

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While people can debate ad nauseam whether this income distribution is good, bad, accurate or exaggerated, there’s no denying that this video does a great job of graphically laying out the facts as a good advocate or trial attorney should do. Imagine trying to follow, understand and remember all of this data if you had your eyes closed and  just listened to the narrator, without watching the video. It would be a lot harder—and less interesting—to follow, wouldn’t it? The same is true when attorneys present fact- and  number-heavy arguments to jurors. Without visual aids, the jurors have a more difficult time following along. Visual aids—especially dynamic, clean graphics that build an engaging narrative—help the attorney hold the jury’s attention and drive the point home.

Your opponent will always have ways to respond to your arguments, but starting with a great presentation that visually guides the viewer through your facts is a powerful way to present your case.

What Litigators Can Learn From Some of the Coolest Graphics in Construction

Thursday, February 28th, 2013

construction graphic thumbnailI am constantly amazed at how the world of litigation has changed so much in such a short period of time since I started practicing almost 20 years ago. OK, I accept that some of you don’t think 20 years is a short period of time, but it sure seems like it to me. As I have mentioned in this blog before, the ability to make powerful, high-quality trial graphics was extremely limited by the software available in the early 1990s. I was reminded of how far we’ve come in the area of visualization and modeling when I recently had dinner with Mike McTeer, who made a similar career shift as I did, but in a different field. Mike has a background in construction, and a few years ago, he decided to start a firm that specializes in 3D visualizations of construction.

His firm specializes in “Construction Visualization Integration and Building Information Modeling,” which basically means he visualizes and creates models of projects so builders more fully understand the process of the project, discover better ways to build it, and identify problems before they occur. When I saw his work, I was struck by what a great tool this is for the construction industry. This type of computer modeling was impossible only a few years ago, and Mike says that a number of larger clients now require it for any job before the work starts.

You might ask, what does this have to do with litigation?  Well, just like Mike’s clients who never used this process before then realized they cannot do a project without it, attorneys who discover how a case can be visualized and strengthened with graphics at an early stage begin to view litigation graphics as a de facto requirement for case preparation and presentation.

One of Mike’s recent projects provided a great example of how this type of visualization can be vital to a safe work site by showing hazards and errors ahead of time so they can be resolved.

With the 3D modeling capability that is possible now, Mike can create all the models of a crane with the proper length, angles and swings. Therefore, he can determine the lifting capacity at any given location and the exact specifications that will be needed at any point, and see if hazards exist to the workers or the equipment.

In another example, Mike visualized the entire process of installing the temporary shoring on a project, so that all problems could be identified ahead of time.

One of the things I have learned over the years is that to draw something, you have to really understand it. When you have detailed scaled drawings and/or 3D models done for a case early on, you often identify issues that you never would have considered without those visual aids.

For example, seeing a 3D model allows you to see what any person would have seen from their vantage point, and the model can be used in deposition to help cross-examine witnesses. Also, preparing an animation of a process of construction or failure often exposes subtle weaknesses in your theory when it has to be explained in a such precise visual detail.

By developing graphics early in a case, and working on them throughout the litigation, attorneys can avoid major problems, just as construction companies can avoid injuries and costly errors in their work by creating these drawings and models in advance. By developing graphics for mediation and trial, you can help the mediator or jury see your point and understand the case much better.

If you’d like to learn how Cogent Legal can help you with your litigation graphic needs—and help you early on to avoid problems in litigation later—please contact me.

How Graphics Help the President Persuade and Can Help Attorneys Too

Monday, February 18th, 2013

SOTU thumbnailLast week, Ken Broda-Bahm wrote a great piece about the recent State of the Union Address (“Check Your Alignment in Multiparty Litigation“), commenting on how the dueling responses by the Republican Party (Mark Rubio) and the Tea Party (Rand Paul) exposed the similar difficulties co-defendants in a trial face while trying to keep message control in front of a jury. Ken’s examination of the State of the Union Address through the lens of trial issues also reminded me of the post last year by Ken Lopez on the use of graphics in the State of the Union Address (“Presentation Graphics: Why the President is Better than You“), which related a number of great tips and showed why attorneys should look at the White House use of graphics in presentation, since they are certainly well done.

Better late than never, I figure it’s time for me to put in my two cents on the topic and show some examples from the State of the Union Address that might help attorneys improve their own use of charts and graphs in litigation. Visualizing and presenting data in an engaging, persuasive way is critically important for numbers-heavy cases involving financial transactions and economic data. I’ve seen attorneys present graphs and spreadsheets that are about as interesting as watching paint dry. The president’s team, by contrast, created graphs that hold the viewers’ attention and strengthen the points he makes orally.

The day after I watched the address live on TV, I looked at the online “enhanced” version at whitehouse.gov. I am obviously biased, but in particular I admire the president’s address because I really do love seeing graphics used effectively and well. It’s like being a football fan and watching a great football game when everything is done just right.  One thing I like in particular is a point that Ken Lopez made very well: that every slide is “simple enough to understand in a moment or two.”  All of the graphics are simple, yet carry a strong message. They are not intended to be objective, but rather to be like a closing statement when graphics are used to sway the viewer to your point of view.

Let’s look at a couple of ways these graphics use effective techniques to push their point of view fairly but persuasively.

One of my favorite examples shows the job loss that started to end when Obama took office, and the recovery we are in now. It’s even more interesting to look at the differences between the 2013 version and the 2012 version.  Here is the 2013 version of the graphic:

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And here is the 2012 version of this graphic:

2012

There are at least two key differences that greatly increase the effectiveness of this graphic in 2013 (besides additional data showing continuing job gains). First of all, the use of the red color in the job loss section (red, of course, being associated with Republicans) makes the overall graphic much more powerful, and the inclusion of the colored font for “Losses” and “Gains” allows for clear understanding of the color use without a key. I also like the use of red, white and blue, which gives a patriotic feel to the entire chart.

The second big difference between the two is a change in the vertical axis. In the 2012 graphic, you can see the very bottom of the chart showing a monthly loss of approximately 800. In the 2013 version, you can see the major loss lines are literally going off the page. Why is that visually important? One, it allows the overall distances between the bottom loss and the highest job gains to be longer and therefore more accentuated in the room available for the graphic. Also, the visual impact of having the major losses go off the page suggests how bad the losses were (almost incalculable).

The following example shows another effective use of color, but it also makes a compelling visual statement by stretching the vertical axis and shrinking the horizontal axis. Compare it with the second graph below, which displays the same data. Because the years in the second graph are included in the horizontal axis and it is much longer, the second graph emphasizes how long the stock market recovery has taken, as opposed to the president’s that emphasizes the fact that it has actually occurred.

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 While this post focuses on a couple of economic charts shown during the address, the White House also presented a continuous, effective array of graphics using text and photos to create visual immersion. As the 2011 Persuasion Strategies Visual Persuasion Study by Broda-Bahm’s research team found, graphics used continuously, so that imagery is shown throughout the presentation, has many advantages. I encourage you to view more samples in the enhanced version of the State of the Union Address for ideas and inspiration that you can use in your next case presentation.

A Graphics War Story: How a Big Board Showed Market Manipulation

Wednesday, January 30th, 2013

silverbullionIn this blog, we occasionally like to share stories of how legal graphics can change the course of litigation. The following war story comes courtesy of Roger Mead, an accomplished litigator at Folger Levin LLP in San Francisco.

The story involves civil litigation against the Hunt brothers in the 1980s claiming silver price manipulation. As the accompanying graphic illustrates, silver prices spiked in 1979 and 1980 and then collapsed. In 1979, the price for silver jumped from $6 per troy ounce ($0.193/g) to a record high of $48.70 per troy ounce ($1.566/g), an increase of 712%. The billionaire brothers Nelson Bunker Hunt and William Herbert Hunt were accused of causing the spike and collapse and conspiring to manipulate the silver market. After six months of testimony in a trial in federal district court in New York before Judge Lasker, a jury found for plaintiffs (see Hunts Are Ruled Part Of A Scheme To Control Silver, NY Times, Aug. 21, 1988).

For the trial, plaintiffs had created a graphic showing the rise and fall of silver prices, and they mounted it on a long board. Judge Lasker gave the plaintiffs permission to hang the board from the ceiling of the courtroom across from the jury box. The board hung there for the entire trial.

Using the data, we created a graphic to illustrate how a blow-up chart might be designed today for this case. Whereas in the early 1980s they may have spent a great deal of time creating a hand-drawn diagram, we used Adobe Illustrator to produce this easily:

silvergraph

To make the timeline chart even more effective with today’s technology, we created another interactive version of it in Flash, which would allow the attorney to display the data incrementally, year by year, rather than showing it all at once. To see this interactive version, click here (must be viewed on a Flash-enabled device).

Roger believes the silver price graph hanging in the courtroom played a large role in convincing the jury to rule for plaintiffs. As Roger says, “a plaintiff needs to prove two things: that something happened, and that defendant caused it.”  That graphic of the silver price spike was a daily reminder for the jury that something had happened—a major part of plaintiff’s burden.

Some take-aways for litigators from this story:

  • Identify the visual images that will help you prove your case, and get them in front of the judge and jury.
  • Images mounted on boards can be effective tools, particularly if the jury can see the boards multiple times during the trial—the boards can be great reminders for the jury of earlier portions of the trial.
  • As a litigator, look around the courtroom, and think about what the jury is seeing. Do not acquiesce in allowing your opponent’s visuals to remain in front of the jury longer than necessary.

If you have war stories to share with us that we might feature in a future blog post, please let us know.