ABA Section of Litigation 2012 Section Annual Conference April 18-20, 2012: Trying a Complex Case in a Sound Bite World

Trying a Complex Case in a Sound Bite World Chris Ritter The Focal Point LLC Oakland, CA Laura Foggan Wiley Rein LLP Washington, DC Michael Jones Kirkland & Ellis LLP Washington, DC Todd Lester Navigant Austin, TX

An expression becomes a proverb only when it is true and the concept it espouses has widespread

applicability. So, when the French tell us, “the more things change, the more they stay the same!” we

should listen. In fact, those who try complex cases in this increasingly sound bite world should listen very

carefully.

Why do I say that? On the one hand, without question, much is changing when it comes to trying complex

cases before an increasingly impatient and jaded jury pool. On the other hand, much remains the same. In

fact, in our new world of sound bites and flashing imagery, much of what we may consider "old

fashioned" is even more important if we are to have any hope of convincing twelve strangers that our

version of the case is the one they should endorse.

The chief challenge in today's litigation is to find a way of reconciling these differences. Put another way,

the goal -- to borrow from another proverb many of us learned as children -- is to: "make new friends but

keep the old," because "one is silver and the other gold." The good news is that this can be done and it can

be done effectively.

How Things Have Changed

In the 30 years since I graduated from law school, much in the world of court trials has changed. For the

purpose of this paper, I would like to focus on six things that are different in terms of trial preparation.

First, the subject matter of complex cases is becoming increasingly more difficult. Often, in fact, it is not

even remotely within the ordinary working knowledge of your jurors. For example, we may ask twelve

lay jurors to spend months listening to complex patent claims. Or we may charge them with deciding how

much a class that consists of thousands of plaintiffs should receive from a score of defendants, each of

whom claims that, while the other 19 defendants may be at fault, he certainly is not.

Obviously not all trials are this complex and the vast majority of all cases end up being settled. But when

large cases do actually go to trial, the subject matters are often far more complex than they were a couple

of decades ago. That being said, this increasing complexity of subject matter should not mean that the

juror’s job must also become more difficult. Instead, as I argue below, it means that a lawyer must work

even harder to keep things understandable for the average jury.

2

Second, available trial display technology is constantly changing. For example, I just completed a case

that included literally millions of documents; dozens of witnesses (both percipient and expert); highly

rendered 3-D animations; video depositions that could be searched in real time during cross-examination;

even interactive timelines that enabled a witness on the stand to click a cursor on a particular date, pull up

a menu, and then navigate through all of the evidence related to a particular event. Where was all of this

material stored? On a single computer that connected to a projector and a dozen or so monitors spread

throughout the courtroom.

While this seems like light years from the stacks of banker's boxes, as well as the chalk and blackboards,

that were ubiquitous in courtrooms 30 years ago, in many ways it is not. As discussed below in greater

detail: (1) the attorneys in this case still needed to put forth a good old-fashioned effort to clarify and

simplify the case before any material was digitized and loaded into the computer; and (2) even with the

availability of sophisticated databases and trial technology, often the old technology (what I call

"acoustic" technology, because it does not use electricity) still works best.

Third, jurors do increasingly expect trial lawyers to use some form of electronic technology in the

courtroom. Gone are the days when such technology was viewed as “too slick” or the exclusive domain

of the party with the deeper pockets. Instead, these electronic displays are increasingly seen as standard,

the hallmark of a trial lawyer who is both prepared and desires not to waste the jury’s time.

Fourth, jurors (and judges) are increasingly unforgiving when a lawyer does waste their time during trial.

This is completely understandable. After all, we ask a lot of our jurors. We require them to put their

increasingly busy lives on hold, often for progressively longer periods of time, to resolve disputes in

which they have no personal stake between two people with whom the jurors have no prior connection

and will likely never see again once the case is resolved. It is a very real credit to our citizenry that the

jury system not only works, but generally works very well.

3

Fifth, jurors want more than ever “to see your point.” Said differently, many trial lawyers and their

jurors are from different planets and the distance between these two planets is widening. Trial lawyers are

residents of “Wordland” – an orderly place where inhabitants rely heavily on words, logic, and checklists

to analyze and resolve issues in an unemotional manner. Like it or not, an increasing number of jurors do

not live in Wordland and are not always comfortable when they are forced to venture there. Instead, they

depend primarily on tools other than words and linear thinking in order to learn, persuade, and be

persuaded – including graphics, videos, and animations. Attorneys may not love this change in our

populace's learning habits, but they have to pay attention to it or they risk being unable to truly connect

with their jurors -- a fact noted by Ella Fitzgerald when she sang to any trial lawyer who would bother to

listen, “Never in my wordland could there be ways to reveal in a phrase how I feel.”

Finally – and likely because of the five prior changes – the use of trial graphics is increasingly important

in order to capture attention, educate, and ultimately persuade the judge and jury. Graphics have always

been important; of course. As the adage says, “A picture is worth a thousand words.” What many

lawyers fail to appreciate, however, is that it is not just the picture that is important. The process of

creating that picture, of forcing oneself to think visually and out of Wordland, is just as (if not more)

important. That is because if done right, thinking visually forces you to simplify and make the complex

increasingly easy to understand.1

How Things Stay the Same

Nothing that I have said so far should be seen as requiring trial lawyers to abandon time-honored ways of

researching, preparing, and presenting their cases. Quite the opposite is true. Much remains the same

about trials. In fact, some of those time-honored methods are even more important in this age of

complexity, images, and, yes, shortened attention spans. For instance, we are still required to get twelve

individuals who start off knowing nothing about the subject matter of the dispute to agree on a verdict.

                                                            1 I have attached some basic guidelines and examples for creating effective graphics as an appendix to this paper.

4

We still require that the trial lawyers persuade the jury by telling a story of what happened. We still

require that this story be told through a series of disjointed questions and answers, limited by the esoteric

rules of evidence.

Perhaps, most importantly, we still consistently see that the best trial lawyer is the one who takes the time

and finds the ways to effectively teach his jurors. The most effective lawyer is still the one who advocates

and ultimately convinces jurors by taking complex issues and making them easier to understand. The best

lawyer is still the one that helps jurors relate concepts with which they are already familiar to issues these

finders of fact are confronting for the first time at trial. And the most successful trial lawyer is still the one

who can articulate a single believable factual theory of what happened and then weave one or more

themes into that factual theory in a way that motivates jurors to conclude his client should prevail.

Reconciling Change and Constancy: Preparing for Trial

How can this be done? After more than two decades of helping attorneys hone and present their cases, I

have come to believe the most effective and talented attorneys prepare for trial through a five-step process

that integrates traditional ways of appealing to jurors with more modern ways.

These five steps include:

Developing an understanding of the details and an overall perspective on the case.

Going through a process of brainstorming (or, as I prefer to call it "mental mining") to develop

concepts and teaching tools to help the jurors also understand the case.

Simplifying the case to make sure it is easy for jurors to follow.

Using design principles so that what really matters is emphasized at trial.

Figuring out what technology to use to enhance, rather than constrain how they present their

message.

5

Let me be clear on one important point: of these five trial preparation steps, only one has changed in

recent years, the one having to do with technology. The first four have been crucial since long before

computers, even mimeograph machines, were invented.

Developing an Understanding of Your Case

No matter how much things change, trial lawyers need to understand – really understand – their cases.

They need to do so from two different vantage points. First, they need to understand the details. Second,

they need to develop an overall perspective based on those details.

Most lawyers are pretty good at learning the details of their case. They know they need to identify who

the parties are, what is in the documents, and the general chronology of the events. Unfortunately, many

lawyers stop their analysis after they have mastered these details. But merely knowing the facts is never

enough to piece together a powerful case. In order to do this, you need to develop a second level of

understanding; you need to develop perspective.

Perspective is the tool that helps you identify which parts of your case are important, how these parts are

interconnected, why these parts matter, and why your jurors should care. Perspective is the tool that lets

highly effective trial lawyers make their cases simpler, not more complex. Over time, these lawyers’ trial

estimates become shorter, not longer; their witness lists have fewer names, not more; and the number of

their exhibits decreases, rather than increases.

Mental Mining Your Case

When the brain is inundated with new data, it does two things simultaneously. On a conscious level, the

brain begins to memorize the details. At the same time, the subconscious does its best to put all of these

details into some kind of understandable order. The most obvious ways that the subconscious does this is

by associating the new material with items with which the person doing the learning is already familiar.

6

By placing these new facts into existing categories, or “buckets,” as I like to call them, the subconscious

mind begins the process of connecting the unfamiliar with something already familiar. This is important

because, as noted above, learning cannot take place in a vacuum. The student (here the juror) cannot

begin to understand something until she can first compare it to something with which she is already

familiar. This already familiar information provides the “toehold” from which a juror can begin to

understand and, as such, often serves as the foundation for the entire learning process at trial. So for

instance the story of ordinary consumers being lured by too-good-to-be-true mortgage offers may remind

you of the story of Hansel and Gretel. The size of a cargo ship may need to be described in terms of

football fields. Or the fact that a loyal employee decided not to blow the whistle on what were clearly

safety defects in a product can be explained with a simple "sometimes good people make bad decisions."

Oops – looks like graphic is covering some text here?

7

"Mental mining" is the process of consciously finding these links, dislodging them from the

subconscious, and bringing them into the conscious mind, where they can be examined to see if they

provide the toeholds necessary for the jurors to understand the new and potentially complex facts of your

case.

Mental mining often requires that you set aside an extended period of uninterrupted time to analyze your

case. Often this is best done with someone I call a Critical Listener who listens to you. That is, you need

to sit down and tell the story of your case. What happened? Why did it happen? What were the motives

of those involved? As you tell the story, the Critical Listener should write down any images or analogies

that you use or that occur to her as she's listening. The Critical Listener also has to be willing to

challenge you whenever you say something that does not make sense or whenever you shift away from

telling the story to merely listing facts or causes of action.

What do you want to get out of this process? Most obviously, you should get a better understanding of

what happened and be more comfortable of describing that in a simple and understandable way. In

addition, you want to be able to:

Identify basic themes or shorthand ways of adding credibility or moral force to your story.

Identify potential persuasion tools that can be used during trial, including stories, analogies,

arguments, and graphics.

Identify areas that are unclear and need more work in order to be more understandable.

Identify and be able to explain motive, which needs to be addressed in every single case, even when it

is not a necessary element to establish a prima facie cause of action.

Simplifying Your Case

How hard it is to simplify your case? The answer is, “Harder than you may think.” Coming up with new

ideas is usually easier than getting rid of old ones. Unfortunately, eliminating material, even the long-held

ideas that you have grown to love, is exactly what you have to do. That's because, anything that does not

8

help make your case more clear obscures what really matters. The jury will miss important facts that are

buried in the muck of details. Your chances of persuading the jury increase when you take the time to

reduce the dispute down to its essence and pursue only those issues that really matter.

Along the same lines, we constantly remind our clients to “pass up the good for the great.” That is, every

case has one or two great facts and often hundreds of good facts. Go after and emphasize the great facts,

even if it means ignoring or passing up some of the good ones. Great facts do the most good when they

are allowed to shine on their own. Great facts generally do not get better when they are surrounded by or

buried by lots of good ones.

This "weeding" process not only makes your case easier to understand; it reduces your work load. As that

old-fashioned hero 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.” In other words, throw out your weak

positions, no matter how clever. And throw out theories or causes of action that impose too great a burden

of proof on you.

Designing Your Case

The two most limited (and therefore precious) elements in any trial are time and space. Time is limited

because the judge and jury will only give you so much of it before they tell you to move on or completely

lose attention. Space is limited because you can only put so much information into your case before it

becomes so overwhelming that judges and jurors become hopelessly confused.

As with any scarce resource, you need to allocate time and space carefully. Facing such restrictions

affects people in two ways. Some people shut down in the face of such limitations, assume that the

restrictions make creativity impossible, and ignore them. Others are motivated by such restrictions and

use them to be increasingly creative.

9

To illustrate this second approach (the approach I hope you will adopt), I often refer clients to the concept

of a haiku. When it comes to time and space, the rules of Japanese haiku are exact and unbending. The

first line must have five syllables, the second line seven, and the third line five. It is hard to imagine a

more restrictive medium. Yet for centuries, these limitations have actually encouraged writers to create an

amazing collection of poetry – works that capture an event in an instant or an emotion in its simplest

form.

What does this have to do with "designing" your case? The Focal Point's approach to graphics has always

been that they need to be clean, clear, memorable, and easily understood. Just as we encourage clients to

eliminate the "muck of details" in their case narratives, we also specialize in creating graphics that are

free of "chart junk," –words, icons, colors, or numbers that are either irrelevant or confusing. The point of

your graphics should always be to teach your jurors well, not illustrate how unbearably, confusingly

complex your case is. In other words, if a graphic is not memorable or does not make something else

memorable, then you are wasting not only your time, but even worse, the court and jury’s time.

What Has Changed – The Fifth Step: Using Technology

About ten years ago, I had two different but related conversations. The first was with one of the best

known trial lawyers in the San Francisco Bay Area. He commented that he had seen a fundamental shift if

the way that jurors were responding to the use of technology in the courtroom. Noting that he had long

been reluctant to use high-tech presentation equipment because (1) he believed that it distracted jurors;

and (2) he was afraid that it made him look too slick. He admitted that he was changing his mind.

Specifically, he had come to the conclusion that jurors of all ages not only benefited from the use of such

technology, but had come to expect it.

Jurors are not the only ones who expect better trial technology in the courtroom. A retired judge once told

us that he "hated" the fact that juries got all the "fun stuff.” He went on to explain that he didn't

understand why attorneys will give a jury the full audio visual treatment (especially during opening and

10

closing), but seem to assume that such presentation techniques would be out of place in a bench trial or

hearing, thereby forcing judges to rely only on verbal arguments.

The retired judge pointed out that some attorneys unfortunately forget – “judges are people too.” By this

he meant that judges want to find the fastest way to get a full understanding of the issues (factual and

legal). And judges, like everyone else in the courtroom, want evidence to be displayed in an efficient,

focused and professional manner.

The fact that your audience (jurors and judges) are more comfortable with high tech displays, however,

does not mean you should therefore automatically and always use these forms of display. Technology

comes in two forms: (1) electric – those display tools that plug into the wall and include projectors,

computers, and monitors; and (2) what we affectionately call “acoustic” – those “old fashioned” display

tools such as flipcharts, foam backed boards, and blackboards with chalk.

In choosing the technology for your case, in turn, you need to keep two rules firmly in mind. First, as I

noted earlier, the message should drive your choice of media, not the other way around. And second, don't

choose just one. People get tired when everything is displayed the same way. Don’t be afraid to use

electronic displays for certain things and then go up to the chalk board and write out summaries or other

information by hand.

Implementing This Five-Step Process

As you probably have figured out, this Five Step Process takes time. It is an iterative process, one that

involves considerable amounts of mental composting, letting things sit for a while between spurts of

intense thought and effort. It is a process that begins and is maintained from before you even file your

initial pleading all the way through to the verdict.

11

Theory of the Rings

In my mind’s eye, I see this five-step process as a series of three rings, two of which are joined together

and located in the foreground. The third ring sits alone in the background, but is no less important. The

two connected rings partially overlap to form four connecting parts, which I have labeled “Understand,”

“Mental Mining,” “Simplify,” and “Design.” I have labeled the third ring, the one that is not connected to

the first two as “Present.”

The three rings look like this:

At the outset, you should note four important aspects of this diagram:

The first two rings, the ones that are interconnected, reflect the things that stay the same over the

years. In many ways these reflect the lawyer’s craft. They are the creative process. They are the steps

that every good lawyer goes through to make sure that her case is as easy as possible for the jury to

understand. In the broadest sense, I would characterize these steps to collectively be associated with

designing the “message." That message is the “what,” as in "what you are going to say to the jury?"

12

The third ring, the one I have labeled “Present,” symbolizes the increasing options available in the

courtroom to display your case to the jury. As we will see later, this circle includes both the latest

and greatest electronic display technology AND some old and familiar persuasion tools, such as

flipcharts of newsprint paper, foam boards, and whiteboards. I would characterize this step as the

“media.” That media is the “how,” as in "how are you going to present your message to the jury?"

As you can see, the path represented by creative process, the four steps in the front two circles, is not

linear. That is, you never start at "Understand" and work your way right through to "Present."

Instead, the process of refining the content of your case involves forward motion, then backwards,

then forward again. So, you might start by working on developing an understanding of your case.

Then you would proceed to mental mining (described in more detail below), but in the course of that,

you might have to go backwards to working on your understanding of the case again, which will also

push you to do more mental mining.

13

The third ring, the one labeled “Present,” is disconnected from the first two rings and placed slightly

in back of them. This is not in any way meant to deemphasize the importance of this step. Instead it

indicates an important concept: Your choice of media should always be one of your last decisions

because you cannot choose your media until you know – and have refined -- your message. Put

another way, no matter how much you want to use an interactive animation in your presentation, if

your message would be better presented via chalk on a chalkboard, that's the media you should use.

Of course, you may have to practice your handwriting to use a blackboard effectively. But therein lies my

central point: Even in this age of digitized evidence, interactive animations, and texting from the gallery,

some old fashioned skills – like being able to understand and simplify a case, or the value of having good

handwriting – never change.

14

Appendix – Some Basic Characteristics of Good Adversarial Graphics

This is a BAD graphic; unfortunately, it is something we all see often in the courtroom.

The person who used this graphic lost over $150 million dollars and I will hasten to add, that our client

was the one who WON the $150 million. Did the graphic alone cause the defendant to lose this case? Of

course not. But the graphic is evidence that the lawyer did not take the time (or did not care to)

understand the material and then figure out a way to make it understandable to the jury. A teacher who

cared about his students would not use this graphic. Why should a lawyer?

15

Let me give you four helpful hints for creating great graphics.

First Hint: Your graphics need to use every day, real world languages or concepts.

Assume your opposing counsel represents a defendant who claims that there is nothing wrong with

paying a group of male workers more than he pays similarly-situation female workers because the two

groups do not do “identical” work. You point out to the jury that the appropriate standard is not whether

the work was “identical,” but whether it was “equivalent.”

So what is the difference between “identical” and equivalent?” More importantly, how do you get your

jurors to see this difference? To the casual observer, these two words may be easily—but mistakenly—

substituted one for the other (something which your opponent is hoping the jurors will do in this case). If

you are going to win this point, you need to show the jurors that two things do not have to be identical (a

stricter standard) in order to be equivalent (a less strict standard).

One way to do it would be to use only words. This is a Wordland solution and, unfortunately it is the one

most lawyers would likely use. Specifically, they would go to the dictionary, look up the two words, and

read and/or display the definitions to the jury. Here is the best that one could expect from this approach:

16

This graphic is okay. It is certainly better than nothing. But it shows nothing to the jury. It fights the

problem with the problem. That is, it uses words to try and solve a problem created by words. A more

effective way to impart this information would be to show the jurors the difference with a graphic and

explanation like this:

17

Plaintiff’s Counsel: “Ladies and Gentlemen, defendant suggests that two things must be identical in order

for them to be equivalent. That is not the case. Look at these keys. These two keys are not identical; the

head of each key, that’s the part you hold on to, is different. But these two keys open the same doors;

they do the same work. These two keys are not identical, but they are equivalent. As you can see, two

things do not need to be identical to be equivalent.”

Second Hint: Your graphic has to rely on something that is already familiar.

Learning cannot take place in the abstract. In order for it to happen, the student (here the juror) must first

be able to relate something he is hearing for the first time in the courtroom to something that is already

familiar. Once this toehold is established (and it must be for you to be successful) you can then teach new

things to the juror. The best graphics start by incorporating concepts that are already familiar to the jury.

18

Let’s assume you have to discuss a micron-sized defect on an 8-inch silicon wafer. This is not something

that most jurors know anything about. You can start by saying that a micron is “very very small” or that

it is a “millionth of a meter.” Neither of these descriptions helps. Alternatively, you can show them that

finding a micron sized defect on an 8-inch silicon wafer is like finding a soccer ball in a 58,000 acre piece

of land; which, as you can see in this graphic would be like finding the ball in an area that would include

all of San Francisco, parts of Marin County, parts of the Bay, and a small part of Oakland.

19

Third Hint: Your graphic needs to be memorable.

If your graphic is not memorable, you are wasting your time and (more importantly) the jury’s. Ideally,

your graphic will provoke a “double take” – it will cause the viewer to not only look once but also then

come back for confirmation. Let me show you an example dealing with a patent claim involving an

integrated circuit. Here is a startling (and almost unbelievable) fact. A single integrated circuit – a tiny

thing that can easily fit on the end of your finger – contains more than a mile of wiring. When most

people hear this, they are caught off guard. This graphic captures the fact and helps make it

unforgettable.

20