LawyersUSA

They are complicated, they are impersonal, they are unsexy – and most of all they are rare. Intellectual property trials present a variety of challenges for attorneys, not the least of which is explaining a complex issues to twelve men and women off the street.

For fifteen years, Dennis V. Thompson, a litigation consultant for Dallas-based TrialLab, has helped IP attorneys prepare cases for trial. He has worked with a number of Fortune 500 companies and five of the top 25 privately held corporations in the U.S., according to the TrialLab website (www.triallab.com).

Mr. Thompson recently spoke with Lawyers USA and shared some of his strategies for contending with jurors when IP cases go to trial.

What are the main challenges facing IP lawyers?

"There is a technical nature to each case. Typically, IP lawyers have technical backgrounds. The expert witnesses have technical backgrounds. Also, IP lawyers don't have as much trial experience as other litigators, because the cases don't often go to trial. It can be very difficult for them to communicate at a jury level.

Jurors are pretty predictable. First, they size up both parties. They ask, 'Who are these people?' They try to figure out what the motives are on both sides – observe them in their actions in courtroom and what they're saying. Who has values more closely aligned to their own values?

What are the first steps for an IP lawyer to take before a case?

"Find somebody like me, a litigation consultant. You're going to need somebody who's not a member of the trial team and is also not necessarily a technical person. If you can't explain the case at a Level I understanding, the jurors are not going to understand."

These cases are fairly impersonal compared to an employment or personal injury case. How do you make your case appeal to the jury?

"In patent cases, jurors often see the trial as two big companies fighting each other. The jury thinks, 'So what? There is no real victim.' So you have to personalize the side you're on. Personalize the company with the expert witnesses. Make those people real jury-friendly.

When I meet [experts] for the first time, I just talk to them and see how they relate in carrying on a typical conversation. If they don't relate well, then you have a bigger hill to climb. The testimony should just be a conversation with the jury. The problem with expert witnesses is they all have a technical background. That works fine for lawyers; they are both talking at a [high] level. Sometimes, particularly if you're on the defense and you have a limited time to make your case, you should hold off on your own experts and try to win the case using the other side's experts. Do tougher cross-examination on them."

Which side typically faces the biggest difficulty?

"Most lawyers say about 80 percent of jurors presume a defendant has done something wrong or else the case would not be in court. There must be some validity to the plaintiff's case; otherwise the case would have settled or gone away by summary judgment. It's guilt by accusation."

How should IP lawyers approach the opening statement?

"They must define their duties almost immediately. If they are on the plaintiff's side, did they fulfill their duties as it relates to the case? If it's for the defendant, what due diligence did they do if it's something they manufactured to make sure they didn't infringe? Were they put on notice after they [allegedly] were infringing? What did they do after they were put on notice? If the lawyers don't define this, the jurors will decide for themselves."

What is the best way to simplify a case for a jury?

"It helps if you're dealing with a technology that lends itself to animation, such as a mechanical process. One case I [consulted on] involved a machine that wraps individual slices of cheese. We took the defendant's machine and we animated it to show how that machine worked, then compared [its functions] with the infringement complaint."

What if a case doesn't lend itself to animation?

"Storyboards are always very beneficial. In one case, there was a machine that takes the paint dust from spray paint and heats it up to the point where it pulverizes the paint dust so there is no pollution. We created a storyboard that color-coded certain parts of the machine. If a part infringed the patent, that was a certain color. The jurors didn't even really have to understand it, but they could read it and see.

Also, jurors always want to see a timeline. They have trouble visualizing when specific events happen. In every single mock trial I've done, if there is not a timeline, they always criticize the lawyers for it. They want to know what happened to who and when.

In addition to all of the technical terms that usually go along with these cases, the lawyers and expert witnesses often tend to use a number of acronyms. I always suggest that the lawyers create a board graphic that lists all of the acronyms and what they mean. I often recommend that they also consider creating a board that diagrams out who the parties are in the case if there are more than two parties involved. I always suggest the lawyers try to leave these boards standing some place where the jury can refer to them while the case is being tried. I also suggest that if there are terms that need definitions.

The important point is to make the case as visual as you can, using as many different types of presentation media as you can in order to keep it interesting for the jurors. Whoever presents the most jury-friendly case often wins – in spite of the facts."

Questions or comments can be directed to the writer at justin.rebello@lawyersusaonline.com