Attorneys say visuals are key to jury understanding
When Minneapolis attorney Mike Ciresi appeared before a jury earlier this month alleging that Wells Fargo had adopted a risky investment strategy in its securities lending practice, he knew he had to make the concept as easy as possible for his audience.
Ciresi’s method in the case, as in other matters involving complex concepts, was to put on the stand a financial expert who could tell the whole story and tell it in easily understandable language. The tactic must have worked, because the jury came back with a $29.9 million verdict for Ciresi’s client.
Attorneys who litigate securities, intellectual property and other complex cases say that one of the biggest challenges they face with juries is simplifying the concepts involved.
“It’s is an age old conundrum for trial lawyers,” Ciresi acknowledged.
Keep it simple
Attorneys say the first step in simplifying the complex is developing an easy-to-understand theme of the case.
“Most trial lawyers work hard to come up with the story that will best advance their theory of the case – the moral of the story so to speak,” said Minneapolis securities attorney Peter Carter. “Once the theme is decided, every document, every witness and every argument will touch on the theory.”
Minneapolis IP litigator David Gross said that a simple theme of right and wrong can be very effective.
Juries are looking for a story where someone did something wrong and it needs to be fixed, he said. So as the plaintiff’s attorney in a complex patent case, you need to show that the defendant took your client’s technology with no good reason and now is refusing to pay for it. As the defendant, you need to show that you didn’t take the technology, or if you did take it, that it has no value so the defendant is in the right.
“It’s almost like making an analogy to a simple case of theft or some sort of business tort,” said Gross. “Avoid the highly technical debate that is certainly going on with the experts and focus on the simple story of right and wrong.”
Gross also advised against using a lot of technical terms and concepts for the jury. He said that experienced IP attorneys almost never dive into the technology, and instead describe it using generalizations.
“The key for presenting technology to a jury and presenting a story to a jury is to hold back on defining a bunch of terms,” he said. “Talk about the technology at a high general level and then you can fill that in later in the trial.”
Seeing is believing
Carefully considered visuals are also important when presenting a complex case to a jury.
Inver Grove Heights attorney Gregory McEwen, who handles complex products liability cases, said they are difficult primarily because they almost always involve between four and eight defendants. He said he spends a fair amount of time in his opening statement going over a visual aid that identifies each defendant, indicates what it does and describes its liability in the case.
“I put that out there right away,” he said. “I make it as simple as possible with a graphic.”
Throughout the trial, McEwen continues to use visual aids as needed – often PowerPoint slides – but does try to stick to only a handful of exhibits. The more confusing the case is, the more important it is to limit the number of exhibits, he said.
Minneapolis IP attorney Alan Carlson said he almost always shows jurors a video or, more often, an animation that illustrates the moving parts inside of the object at issue and describes how the object works.
“Animation is the number one thing that really helps a jury,” he said. “[It] shows things that people could not otherwise see.”
Gross advised against using a long PowerPoint presentation with a lot of text or detail in IP cases. Instead, use just one, two or three simple demonstrative exhibits – models, animations or PowerPoint slides – to illustrate the technology at issue, he said.
But making sure the animation is understandable isn’t necessarily an easy task either.
You don’t just do a first draft and then think you’re done, said Carlson. The lawyer and the animator need to work together at length to be sure the animation shows exactly what it needs to show, he explained.
Gross said it can take months or even years in complex cases to come up with the right demonstrative exhibit. And then, when you think you’ve got a simple illustration of the technology at issue, test it with a mock jury, he suggested.
If the mock jurors are left with more questions than answers, then the exhibit is not working and the legal team needs to start over, Gross said. “You need for people to look at it and say, ‘Oh, I get it.’”
Minneapolis personal injury attorney Paul Godlewski said it’s extremely beneficial to watch a mock jury deliberate a complex case and then interview the jurors afterwards.
“It helps us really focus on the things we thought were less important and drop emphasis of things the jurors thought were less important,” he said. “That is really almost a ‘must do’ in every major case.”
If it’s not possible to employ a mock jury, attorneys say they will bounce their themes and demonstratives off co-workers, family or friends.
“Most of us have an aunt or an uncle or a cousin who lives a million miles from the legal and business world and often they will be the best barometer,” said Carter.
Expert witnesses are key to making complex concepts understandable as well. In fact, lawyers say experts are absolutely necessary to explain to jurors what they are seeing in the visuals.
“Experts provide the credibility for the demonstrative,” said Gross.
They are a check that the visual evidence is fair and reasonable. If the expert says it’s not right or it’s misleading, you’ve got to go back to the drawing board, he said.
“Once you get past those two gates – the expert and the mock jury – you know you’re in good shape,” said Gross.
Minnesota Start Tribune – June 28, 2010 – By Michelle Lore