His youngest son immediately suggested, “Dad, you know what you need? You need a catchy slogan!”
“A slogan? Like what?” asked my friend.
“I know,” said his son, “Your slogan should be ‘Our trial lawyers make your version the TRUTH! “‘
“Our trial lawyers make your version the TRUTH!” You can look, but you are not likely to find a better or more intuitive description of what trial lawyers seek to accomplish each time they walk into the courtroom. Making the client’s version the TRUTH does not occur by your distorting the facts until someone finds them believable. Instead, it involves the process of finding ways to persuade jurors to select your client’s particular version of the facts from among the multitude of differing perspectives that inevitably swirl around disputed events.
“Pictures” are an important tool in this persuasion process. Before going any farther, we need to emphasize that, while this paper focuses on trial graphics, many (if not all) of the same basic principles discussed herein apply to the process of creating and using a variety of learning tools such as analogies, metaphors, stories, themes, and other teaching devices that allow finders of fact to “see” (with their actual eyes or their mind’s eye) what you are saying and why this information is important to them..
A picture is worth a thousand words; we all know that. Unfortunately, what many patent trial lawyers do not realize is that the process of creating these pictures is worth far, far more. Patent trial lawyers need to stop thinking of their trial graphics as merely “pretty pictures” (i.e., just end products such as charts and graphs) and, instead, focus on the benefits associated with the process of creating those tools. For most jurors, the majority of pictures from patents are neither pretty nor helpful. Adding color to a patent diagram does not make the image any more helpful, educational, or persuasive.
If the lawyer does it right, the process of converting a legal or factual concept into a picture should provide far-ranging benefits that begin accumulating long before the case goes to court; the benefits extend through the Markman Hearing, into opening statement and continue on past closing argument, all the way to the end of jury deliberations.
The process of illustrating key aspects of your patent case forces you to organize your presentation in a more logical, understandable, and persuasive manner. The more complex a case (and patent cases are often among the most complicated) the more important it is for trial lawyers to use this process in order to clarify their own thinking and the jury’s understanding.
All great patent trial graphics begin the same way. Each started with a story the lawyer needed to tell, a handful of colored pens, and a blank sheet of paper. Don’t be fooled by its apparent simplicity; a blank sheet of paper is a powerful tool – powerful precisely because it has a limited amount of space upon which you cannot possibly put all of your facts.
You can let limitations work to your advantage. Restrictions often trick the brain into being more creative, not less. You should use the artificial limitations imposed by the four comers of a sheet of paper to enhance rather than stifle your creativity. In order to get your case to “fit,” you must eliminate excess, limit your “picture” to what really matters, and find the simplest way possible to display what’s left to the jury.
The most highly successful graphics in patent cases all share four basic characteristics. Specifically, they are: (1) simple and rely on every day language/concepts; (2) based on a concept already familiar to the judge and jurors; (3) memorable; and (4) create a “buzz.”
The Need for Trial Graphics in Patent Cases
The Brain in Retreat
Cognitive psychology has demonstrated that human beings are capable of processing three chunks of information, plus or minus two. In order for humans to be able to absorb and process a large amount of new information, they must be able to sort it into chunks. When the brain is overloaded, the individual stops processing information and the person’s mental processing retreats. The more incomprehensible the material, the deeper the brain’s retreat. This creates special problems in complicated disputes, such as patent cases, where the underlying facts and technology are almost inevitably new and complex.
Often this mental retreat begins the moment jurors are confronted with complicated information. Before the jurors can analyze anything, their brains trigger the “Yikes! Alarm.” This is the name of the physical reaction typified by a sudden inhalation of breath and the thought “Yikes, there is way too much information here!” Or, “Yikes, I don’t know about this!” As soon as this happens, you as the trial lawyer lose because the jurors are not processing the substance of what you are trying to convey to them.
Using Graphics to Help the Brain Cope
There are ways to reduce the severity of the Yikes! Alarm and the degree of the resulting mental retreat. Jurors, like all human beings, have developed a two-stage coping process to help them understand that which is otherwise not initially understandable.
In the first stage, the jurors found ways to overcome this insecurity so that they can start the learning/understanding process. They do so by connecting some of the unfamiliar facts, which they are hearing at trial, to familiar facts, concepts, or emotions which they have comfortably dealt with for years. In other words, jurors begin to sort the information into known chunks or categories to be able to understand. Well-developed themes can provide the known categories into which jurors can sort the information. Once they are able to do so, jurors progress to the second stage of learning. In this second stage, the jurors develop their understanding incrementally, by way of a series of baby steps that lead outward from familiar concepts to and through unfamiliar information.
There are a number of ways to visualize this two-stage learning process. It is sometimes describe as “building a mosaic,” where the plaster mastic connects the familiar facts to those which are new. Others explain the process relying on the analogy of a garden latticework, where plants (the new facts) are strapped to and eventually grow onto an already existing framework (the familiar facts, concepts, or emotions). Still others might liken the process to the way that pearls are cultured, where layers of new material are deposited onto and eventually become indistinguishable from the original “seed” planted in the oyster.
We deliberately use these three descriptions in the previous paragraph because each creates a picture (in this instance verbal, but all could easily be represented graphically). These familiar pictures are the kind of tools that you should be using to help educate your jurors, especially at the beginning of any complicated matter.
An Example From a Patent Case
Many jurors, judges, and lawyers have a hard time grasping the patent law concept of “equivalency.” Admittedly, sometimes lawyers for alleged patent infringers foster this confusion by suggesting that two items must be identical in order for them to be equivalent.
How do you get a jury to see that this is not the case? How do you show (not tell, show) jurors that there is a difference?
Many lawyers would simply go to the dictionary or to the jury instructions, blow-up the written definition for b’equivalent” and for “identical,” and place these typed words next to one another so that the jurors can read that the two terms are not the same.
While better than nothing, any long-term benefit from this approach will be limited. Why? Because the lawyer is trying to use the problem to solve the problem; that is, the lawyer is trying to use words (written and spoken) to solve a problem created by words. A more effective way to show the difference to the jurors would be to use a simple analogy displayed by way of a graphic.
Does an object have to be identical in order to be equivalent? The answer is no. In fact, you can use the analogy of two keys, just like you might find at your home or in your pocket. These keys are not identical; the grips are different. However, for the part of the keys that matters – the stem, the part that goes into the lock – these two keys are the same. They will both unlock the same lock. They will both open the same door. These two keys are not identical but they are equivalent.
The Process of Creating Powerful Graphics
The most successful trial lawyers are advocates who take the time (and we will warn you right now – it usually takes much longer than most lawyers anticipate) to pursue this highly effective four-step process of case preparation. Unfortunately, less experienced and less successful trial lawyers either ignore the process entirely or wait until just before the Markrnan Hearing or trial to start it. By this time, the patent lawyer’s options are severely restricted and the results are often far from ideal. Put into context, this strategy is like waiting until you are in your sixties to begin thinking of retirement and then wondering why there are so few options starting at age 63 to retire comfortably.
The process of creating effective trial graphics (and thereby substantially improve your overall patent case) involves four interconnected steps: (1) developing understanding perspective; (2) engaging in mental mining; (3) simplifying the case; and (4) using the basic principles of information architecture.
Completing these four steps is not a simple linear process. Instead, the process is better conceived of as a path represented by two connected circles. Each step is represented on a segment of one of the circles. As you progress, you may have to go through one or more of these steps several times. You are likely going to need to circle back on more than one occasion. In rare instances, you may be able jump ahead one or two segments, only then having to loop back again when necessary to a different part of
one of the two circles.
Only inexperienced trial lawyers find this back and forth process frustrating. The more successful ones recognize it as an integral part of preparing for a patent trial.
Step One: Developing Understanding and Perspective About Your Patent Case
During the summer and fall of 1957, Thelonius Monk and John Coltrane played jazz together in New York City. Ira Gitler, the jazz critic, observed that during this time Coltrane underwent an important artistic transformation. According to Gitler, Monk had taught Coltrane a better way to understand and maintain perspective about music. Specifically, Coltrane had learned how to concentrate on a single note while always thinking ahead in “sheets of sound.”
“What,” you may ask, “does this have to do with successfully trying a patent case?” Surprisingly, the answer is, “Everything!”
Developing the ability to concentrate on a single note while thinking ahead in sheets of sound is a perfect way of describing the perspective understanding that successful trial lawyers must maintain when preparing for and trying any case – particularly a complex patent case where it is so easy to for the lawyer and the jurors to get lost. Said differently, the first step requires that the trial lawyer find ways to pay close attention to immediate details, while constantly keeping a broader, overall perspective squarely in mind.
Successful trial lawyers do this by learning to appreciate their case from two perspectives – one over and one under. Specifically, they develop an understanding of the underlying facts, while maintaining an overview of the overall case. These lawyers can simultaneously see the trees and the forest. They know the individual facts of the case and revel in this level of detail. At the same time, they never lose sight of what they want the final, overall picture of their case to look like. By maintaining these two perspectives, the trial lawyer knows, among other things, specifically which of the facts are most important and which
battles are really worth fighting in order to best convince the jurors.
Patent trial lawyers such as these absorb detail and are fascinated – but never overwhelmed – by it. They instinctively separate that which is important from that which is not, until what remains is a comprehensive, overall picture of their case that they seemed to have known was there all along. Successful trial lawyers then use these pictures to educate their jurors, motivating them to move past being neutral finders of fact to becoming active advocates for one party over the other.
Understanding the Underlying Facts
There is difference between learning the facts and using those facts effectively. Learning the facts involves memorization. It requires that the lawyer develop the ability to recall detail. This is the skill that allows you to locate a key document and find a specific topic or phrase within that document.
The process of learning the facts (previously referred to as understanding the underlying facts) usually occurs on more or less a mechanical level. Referring to this process as L’mechanical,” does not in any way trivialize its importance. It is crucial that you learn, really learn, the underlying facts in your case. Unless you do so, your ability to perform any of the other steps in this process will be severely limited, if not impossible.
Acquiring all of this necessary raw data can be a daunting task – so much so that some lawyers think that once they learn the facts they can stop analyzing their case. You should not be so shortsighted.
If the only thing trial lawyers have to offer is a list of facts, then the best that they can do is provide a dry chronology to the jury. This is the functional equivalent of a train schedule listing a variety of stops. While a train schedule is necessary to get you where you want to go, very few jurors are likely to get excited by it and there is definitely no motivation to find for the side that produces the schedule. Certainly few are going to find such information sufficient to motivate them to find that you have proven invalidity of a patent (or some other complex patent issue) by clear and convincing evidence. If you are going to reach this destination, you must provide them with more.
Developing and Maintaining an Overview of the Overall Case
As noted above, the underlying facts are of only limited value unless you know how to use them. You can not fully use them until after you develop “perspective.” This is what I refer to as maintaining an overview of the overall case or thinking in “sheets of sound.” Perspective requires that you determine which of the facts matter and then find ways to show (once again, you need to show, not tell) the jury what these facts are, how these facts are connected, and why the jurors should care.
It is not uncommon when we do jury research that we end up helping the trial counsel develop an overview, or what we refer to as “looking at the case from 30,000 feet.” Juror feedback can certainly help counsel get that overall perspective. It is not uncommon to find that abpet theme, theory, or fact is ignored or trivialized by jurors.
Perspective allows you to appreciate and use nuance, to understand the thematic glue that hold the facts together, and to perceive and articulate what really motivated the key players to do whatever it was that they did. If information is power, then the types of information you obtain by developing and maintaining perspective are amount the most powerful.
Step Two: Mental Mining
What is Mental Mining?
From the very beginning of the preparation of their patent cases, highly persuasive advocates make time to engage in a process called “mental mining.” This process uncovers the stories, analogies, and other images readily understandable by jurors. These patent lawyers then find ways to explain key and or complicated points to the jury using these already familiar images.
More specifically, mental mining is the conscious effort to dislodge, bring forth, and examine the subconscious understanding that you have developed about a topic – in this instance, your case. Unless you make the conscious effort to bring forth this unconscious understanding, it will generally remain hidden and be of little use to you.
When you are learning the basics about your case, two things are happening simultaneously. First (and most obviously), you are consciously memorizing such vital information as names, dates, places, etc. Second (and less obviously – at least until you start actively mentally mining), your subconscious is finding ways to deal with all of the new facts with which you are inundating it. The subconscious often accomplishes this by (1) arranging the facts into a story and (2) more or less simultaneously comparing this newly created story to various other guideposts or bits of information with which the subconscious is already familiar.
This latter step is the beginning of the development of themes which are familiar concepts that allow the information to be organized, placed in memory, and retrieved by the jurors. To rephrase the original definition above, mental mining is the conscious effort to bring forth the underlying stories and the related guideposts that your subconscious has developed to help your conscious mind make sense of the other-wise overwhelming facts in your case. Once you uncover these stories and guideposts, your conscious mind can refine and develop them as ways to help you explain and the jury understand what happened.
Usually, what comes out of this process includes:
- A better-articulated understanding of what is really in dispute – this is often your case theme.
- A better understanding of what really inspired the key players – this is the key element of “motive.”
- One or more basic links between the lawyers’ particular and unique case and various analogies, expressions, and the metaphors commonly understood by potential jurors – these are your key educational tools.
A list of areas in the story that are unclear and need more work in order to be better understand by the lawyer and, eventually, the jury – these are your “problem spots,” places were no mental pictures arise in the listener’s mind.
How to Mentally Mine
In patent cases, mental mining works best when at least two types of people participate: (1) the lawyers, who are very familiar with the case, and (2) one or more Critical Listeners, who are less familiar with the case.
Critical Listeners are crucial. To be effective, the Critical Listener must be someone who is able to do at least four things at the same time. First, the Critical Listener must be able to listen, really listen, to the lawyer’s story. This is not passive or polite listening. It is critical listening, paying close attention to what the lawyer is saying directly and what he is saying indirectly by way of inference. This is a special skill much like what one finds in a good therapist.
Second, while carefully listening, the Critical Listener must be willing (without any hesitation) to interrupt the lawyer. When something does not make sense or when the lawyer’s description leaves the Critical Listener with no mental picture, the Critical Listener must feel free to say so immediately. When there is a question, the Critical Listener must not be afraid to ask it. This requires that the Critical Listener feel free, without fearing any adverse consequences, torepeatedly look the lawyer in the eye and say, “I have no idea what the heck you were just trying to say. Go back and explain it again.”
Third, the Critical Listener needs to be able to record any images, analogies, or other pictures that the lawyer spontaneously offers while telling his story. To me, this is actually one of the most interesting aspects of the mental mining process. There is rarely a session where the lawyer during the middle of telling his story doesn’t say something like: “What happened here reminds me of the time that. . .,” or ‘This case proves the adage. . . .” These comments are verbal pictures. The Critical Listener must, first be able to write all of them down regardless of whether they initially seem helpful or not and, second, follow up with probing questions, such as “What do you mean by that?’
Finally, the Critical Listener needs to record any verbal pictures that come to mind while listening to the lawyer’s story.
The best mental mining sessions are those where no one holds back; where no idea is too silly to be raised; where multiple ideas are being simultaneously tossed out for consideration. Participants should be encouraged to take risks. If they have comments, they make them. Many people perceive the mental mining process as being entirely spontaneous, loud, and rambunctious. Perhaps this is because that is the way most people perceive trial lawyers and the way that many of us perceive ourselves. There is, however, a very important part of the process that substantially benefits from careful pre-planning and structure; that is, the preparation leading up to the mental mining session itself. Before the session, you need to provide your Critical Listeners with enough information to start the mentalcomposting process, but not so much information that their thinking becomes fixed.
Rather than distributing material that is unbiased or entirely neutral, it may be more helpful to hand out adversarial material that promotes the parties’ positions (a settlement conference statement, the factual section of a summary judgment motion, a trial brief, etc.). You want your Critical Listeners to start thinking like advocates.
Providing material to your Critical Listeners before the mental mining session serves two very valuable functions, depending on the personality type of the participant. Some of your Critical Listeners will review the material very quickly and then not consciously think much more about it again until just before the mental mining session begins. For these people, even a brief preview will get the idea-composting process unconsciously going, the results of which will rapidly surface during the mental mining session itself.
Other Critical Listeners will likely take your material, go somewhere by themselves, review it repeatedly, and consciously think about how best to provide you with the ideas that you requested. At the mental mining session, these people will come prepared with ideas and likely present them to you in a very organized and coherent manner. These carefully reasoned ideas are likely to be every bit as helpful as those that are conceived during the session itself.
Examples in Patent Cases
Let’s take a moment to examine two actual examples that came from a mental mining session in a patent case. In the first, one of the experts needed to explain “bit allocation” and “bit swapping” to a relatively unsophisticated jury. Rather than putting complex computer diagrams up that would likely have confused the jurors, the witness after a mental mining session decided to start with an analogy familiar to any adult who drives. The witness used two graphics. The first showed a red traffic light with a group of cars (which represented bits of information) stopped and all lined up in several different lanes (which represented sub-channels). In the second graphic, the witness continued with this automobile traffic analogy to illustrate how the technology would effectively direct bits of information away from subchannels that were in a bad condition (represented by blocked traffic lanes) into those that were better capable of allowing a quicker traffic flow. (See Appendix A, Illustrations 12-5 and 12-6.)
In the second case, the patent holder, which was a very large biotechnology company, took two contradictory positions with respect to whether it needed to include reference to certain antibodies in its patent applications. Some of its witnesses claimed that it was excused from having to do so because 20 years earlier the science was so new that no one knew that such antibodies even existed. Other of the witnesses suggested that the company did not need to explain how to make the antibodies in any of the applications because everyone was so familiar with the antibodies that the company did not need to describe how to enable them. Because the trial stretched on for so long, this contradiction was not immediately recognized by the jury.
Mental mining sessions had gone on for months. During the last one, just before closing, one of the lawyer indicated that the other side’s actions reminded him of a trick his brother used to play on him. The brother would flip a coin and say, “Heads I win; tails, you lose!” This simple comment became the basis for a very powerful graphic and argument that eventually convinced the jury to invalidate the patent.
Step Three: Simplification
If there is one characteristic that unites all patent trials, it is that they are all complex. In such situations, highly persuasive advocates take the time to make their cases simpler, not even more complex. Over time, these lawyers’ trial estimates get shorter, not longer; their witness listshave fewer names, not more; the number of their exhibits decreases not increases. How hard can it be to eliminate excess ideas, testimony, documents, or arguments? The answer is, “Harder than you may initially think.” Coming up with new ideas is usually easier than getting rid of the old ones. Unfortunately, eliminating material, even the long-held ideas that you have grown to love, is often what you must do.
Why all of this chopping and hacking away of excess material? Because anything that does not help you hurts you by obscuring the jurors’ view of what really matters. The jury will miss important facts that are buried in muck. Your chances of persuading the jury increases when you take the time to reduce the dispute down to its essence and pursue only those issues that really matter. This means having the confidence to let go of certain claims, ideas, and approaches (even potentially winning ones) in order to maximize your overall chances of convincing the jury to find in your client’s favor.
How do you determine what to eliminate? Well, the very first thing you have to do is to reformulate the last question. You should not ask yourself, “How do you determine what to eliminate?” instead, the proper question is, “How do you determine what to keep?’ Thedifference between the two questions is significant. The first presumes that material remains unless it needs to be eliminate. The second presumes that material is eliminated unless you find a reason to retain it.
This is where jury research can be tremendously useful. First, such research requires the trial team to be able to present the key issues that are being tested in a one or two day format. This requires focus. Second, jurors will fill in gaps with their own understanding and point out where the team needs to make sure that parts of the story are filled in. Third, jury research provides feedback on the themes and issues tested and will tell counsel which theories fall flat, and which need more development. The process helps hone the story and critical issues and cleans out the ones that jurors reject or do not respond well to.
Abraham Lincoln once advised: “In law, it is good policy to never plead what you need not, lest you obligate yourself to prove what you cannot.” This advice is as valuable today in modem patent trials as it was in the 1850’s. Throw out your weak positions, no matter how clever. Throw out theories or causes of action that impose too great a burden of proof on you.
Another place to cut back is in the details. Patent litigation, by virtue of the fact that it is complex, is full of details. Some of these details are necessary; others are not. Often the unnecessary detail results from a lawyer’s failure to take the time to think critically about his case. In such cases, it is easier just to leave the information in rather than take it out. This is an incredibly shortsighted strategy and a major mistake. Take the time to determine what really matters.
Step Four: Information Architecture
For several decades, a small (but fortunately expanding) group of professionals have devoted considerable talent to finding and developing ways to convey complex information to a target audience in as simple a manner as possible. Trial lawyers have a lot to learn from these information architects who have made “explaining how to explain” their careers. Optimal learning (or anything approaching it) requires engagement – engagement between the person offering the information and the person receivinglprocessing it. Information architecture is all about reducing barriers, making the information easier to understand, and thereby increasing engagement.
Even a cursory review of the most basic principles of information architecture is beyond the scope of this paper. For an introduction to this topic, see Ritter, G. Christopher, Creating Winning Trial Strategies and Graphics, American Bar Association, 2004.
For present purposes, suffice it to say that information architects understand that time and space are the two most scarce (and thus precious) elements at trial. Time is precious because the judge and jury will only give you so much of it before they rapidly lose interest, get bored, and stop listening to you. Space is limited because on any graphic there is only so much of it that you cannot go beyond. It is the information architect’s job to deal with these limitations and: (1) to turn them to your advantage; (2) to allocate those scarce resources effectively to what really matters; and (3) to overcome these limitations whenever possible.
One of the issues that trial counsel sometimes womes about is using too much technology to present visuals or other aspects of the case. Our experience interviewing jurors is that they expect attorneys to use technology and present the case clearly and quickly. Jurors are used to receiving information in sound bites. Thus, they want, except, and hope for a fast-paced presentation. Using technology speeds up the presentation and makes it a visual trial, which is easier for them to grasp.
Characteristics and Examples of Effective Graphics in Patent Cases
The Graphics Must Be Based Upon and Rely on Everyday, Real-World Language and Concepts
In order for your graphics or other teaching tools to be effective in a patent case, they must generally share four characteristics. First, the graphics must be based upon and rely on everyday, real-world languages and concepts. I am not advocating that you dumb down your graphics. Instead, remember that learning something new is easier for judges and jurors if you keep your concepts as simple as possible. You get months to understand the important part of your cases; the jury does not.
By way of an example, we were recently involved in a Markman Hearing against Microsoft, which was alleged to have infringed upon the patent of a much smaller computer software company. Microsoft came to the hearing with elaborate and highly technical graphics.
Our client recognized that, while computer experts would immediately relate to such a presentation, the judge in our case would not. Instead, our client came to the hearing with a large magnetic board and a set of magnetic pieces each representing in the shape of common objects.For example, there was a key, a policeman directing traffic, and other objects that could be used to metaphorically relate to certain key aspects of the patent.
Our client explained its entire patent with this simple and common objects. Shortly after the hearing, the District Court Judge, who we knew would appreciate this simplicity, granted virtually everything our client sought by way of the Markman Hearing.
The Graphic Needs to Relate to Something With Which the Jurors Are Already Familiar
You need to make sure that your graphic relates to something with which the jurors are already familiar. Jurors can relate to and understand something new only if they can compare it to something with which they are already familiar. You need to be able to relate important facts to the jurors by comparing the new facts to things that the jurors already understand.
Let’s look at an example from a recent trial where the concept of “enablement” was disputed. In patent law, coming up with a good idea is not enough. You cannot get a patent for merely having thought about something, sketching possible ideas, or coming up with models that do not work. In order to successfully patent an invention, the inventor must do more, including “enable” the idea.
“So,” a juror might ask, “what does enablement look like? How will we know it if we see it?”
One way to answer that question is to provide a long explanation involving definitions. This is not likely to hold the juror’s attention. Another more effective way would be to give the jurors an illustrated example of
enablement and help them understand why the concept makes sense and is important. You might start of by explaining that having an idea is the same as “enabling” an idea. Lots of people have ideas that they either never pursue or are never able to get to work. The United States Patent and Trademark Office is not going to let these people get patents on these technological dead-ends. In order to patent something, inventors must do more.
They must successfully enable the idea, that is, make the idea actually work. You can then offer an example known by every schoolchild. You can talk about how people tried for centuries to figure out how to fly. In the late 1400s, even the genius Leonardo da Vinci spent considerable time sketching possible ways to create a flying machine – all to no avail.
More recently, thousands of people tried all kinds of crazy designs; in fact, a good number of these people died trying to make a flying machine – again to no avail. Undoubtedly, many of the jurors have seen historical filmed footage of people trying to get all kinds of inventions off the ground; all to no avail and often with disastrous results.
None of these “inventors” including Leonardo, could have received a patent on their work because none of them had successfully enabled the idea.
All of this changed on December 17, 1903, when brothers Orville and Wilber Wright were the first to build and successfully fly the first airplane. Unlike everyone before them, these two Ohio bicycle makers successfully enabled the idea by making a machine that actually flew – it was on a few seconds, but it flew. As a result the United States Patent Office granted the Wright brothers a patent to protect their years of hard work.
The Graphic Must Be Memorable
Third, you need to be certain that your graphic is memorable. Ideally, you will provide the jurors with tools that they will remember long after you finally sit down. Hopefully, through careful preparation for trial, you will find some fact about your case that the jurors will not only remember but also repeat at cocktail parties for years to come.
Let’s look at an example that was used in a tutorial to help jurors understand the technology used to locate defects on silicon wafers. On a very basic level, the jurors needed to understand what a micron was. Merely saying that a micron is “really, really, really small” is not going to help them.
The acknowledged dean of information architecture, Edward R. Tufte of Yale, has suggested that memorable graphics help answer a basic question – “Compared to what? ‘To help the jurors answer this question and to do so in a way that they would likely remember, we offered them a graphic analogy. Specifically, finding a 1 micron defect on a typical eight inch silicon wafer would be the equivalent of asking someone to find a soccer ball somewhere in 58,000 acres (approximately 90 square miles).
The Graphic Must Create a Buzz
Finally, you want to create graphics that buzz. Graphics that buzz are sometimes difficult to define, but you will instantly recognize them. Such tools create a palpable buzz in the jury box when you first use them. You can spot this result by looking for the lean-to effect. That is, you know that you have accomplished your goal when the jury members sit straight up and “lean to” the front of the jury box in response to a trial graphic.
Another way to know that you have created a buzz is when you see jurors chuckle after you make your point. This does not need to be a big belly laugh; although, sometimes you get this from jurors. Instead, it is more like the laugh we all make when we suddenly understand something and there is a release of emotional tension, a “thank goodness I get it” kind of laugh.
The final example comes from a patent case involving computer chips. Specifically, we needed to illustrate how heat generated by the chip could distort the size and shape of the chip by up to 20%. Many jurors have problems understanding percentages; even more have problems understanding percentage change or distortion. To illustrate a 20% distortion we showed the jury an object (the portrait of the Mona Lisa) with which they were familiar and then showed them this same object after it had been distorted 20%.
Themes That Help Persuade
Jury research is a place to test graphics and themes and to evaluate whether or not the graphics reinforce the themes that are being tested. There are three types of themes that can be highly persuasive when they are developed appropriately. The three types of themes that we find highly persuasive are counterfactuals, attribution theory, and the story model.
Counterfactuals use language to create an alternative reality. The outcome of that alternative reality would lead to a different outcome. If jurors can see that changing one small aspect would change the outcome, they will hold responsible the party that could have changed that small aspect. Counterfactual themes take the form of “if only” statements. For example, if the inventor had informed the patent office about a key piece of prior art, the patent would not have been granted. The other part of the counterfactual
is a statement that “there is nothing my client could have done differently that would have made a difference to the outcome.”
Attribution theory seeks to hold a party responsible for some bad outcome because of choices that the party made. If the jury can see that the party had a choice and chose an action that led to a bad outcome, the jury will tend to hold the party responsible for the bad outcome. For example, “the defendants chose to continue infringing the patent even though they had been informed that they infringed. Ladies and gentlemen, this is the second time that my client has had to come to court and ask jurors to stop the
defendants from making products that infringe my client’s patents. The defendants knew they infringed before and they know they infringe now. Ladies and gentlemen, hold the defendants responsible for the choices that they made and find that they willfully infringed my client’s patent.”
The theme that is most common is the story model and the one that is perhaps the most difficult to develop. This is more than a simple story arranged in chronological order. Rather it requires creating a protagonist with whom the jurors can identify. For patent litigation, this involves telling a good company story, a story that shows how the company came to be and is a story about people as well as a patent. Similarly, counsel must create another story for the opponent that focuses not only on what the opponent did but also hint at the motivation behind the actions.
Once a theme has been developed, it is critical to have the graphics support the theme. Jury research is an ideal place to test the themes and the graphics. If the themes and/or graphics do not work during jury research, they certainly will not work with real jurors in a real trial.