News, views and tips on litigation graphics, trial strategy and the law. By Morgan C. Smith
Judicial opinions, even unpublished ones, can teach us about using animations and demonstratives in court. Today, I’ll review decisions from a murder trial that illustrate three important lessons for visual aids:
(1) Tie animations or other visual aids tightly to the evidence in the case;
(2) Use simple visual aids to help jurors understand and track the evidence; and
(3) Design visual aids that communicate your themes to the jury.
Going to trial requires planning and attention to detail. Jurors may not see the details of your plan, but they will appreciate attorneys who move quickly in trial and show respect for the jurors’ valuable time and attention.
Good pre-trial planning should include preparing trial exhibits for display and use in trial with consistent format, naming and labeling conventions. In trial, I want digital copies of the exhibits on my trial laptop that I can easily search, share, display and use to incorporate exhibits into outlines for opening, closing and witness examinations. In this post, I’ll share my tips for digitally organizing trial exhibits.
I 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.
Morgan and I are hosting webinars on Wednesday, March 5, and Thursday, March 6, that we hope attorneys will find helpful for everyday practice and for trial.
The first is “Technology Tips for Using Databases to Understand, Develop and Control Your Case,” which I’m presenting for the Law Practice Management and Technology Section of the California State Bar. The other is “iPads and Trial Technology in Litigation and Trial Practice,” which Morgan is hosting here at Cogent Legal to launch a new series of webinars we’ll do in-house. Both are eligible for MCLE credit, and both will be archived and available to view afterward if you cannot make the date of the live presentations. This post will give you the info and links to register. [Read more...]
At Cogent, we often work with experts and trial counsel to prepare graphics illustrating and explaining expert opinions. Thus, a new Ninth Circuit decision about the scope of expert discovery in federal court caught our attention. The decision in Republic of Ecuador v. Mackay, No. 12-15572 (9th Cir. Jan. 31, 2014) poses the question: where the expert has served both as a confidential advisor to counsel and as a testifying expert, may counsel withhold documents shared with the expert by asserting an opinion work product objection? The short answer is no—documents from testifying experts must be produced unless protected by Federal Rule of Civil Procedure 26(b)(4). [Read more...]
A version of this article was first published in the January 2014 LexisNexis e-discovery brief.
A central case database where litigators track issues, witnesses, events, documents, to-do items and more is a vital tool for making e-discovery and litigation more efficient.
While electronically stored information (ESI) is important, ESI rarely takes center stage in a closing argument. Rather, the attorneys will be telling the jury a story in closing argument—a story about the parties, what happened to bring those parties into court, and how the evidence before the jury supports the story. Although e-discovery may not be the star of the closing argument, it plays an important supporting role: the stories of closing will often be woven from threads first identified in e-discovery. [Read more...]
Litigation would be much easier if you could work on just one case at a time, and if each case moved quickly to a conclusion. Unfortunately, litigators don’t have that luxury. Litigators need to jump from case to case, putting out fires in one, then jumping to the next. Because litigation can span years, litigators often need to return to information and analysis done weeks, months or even years ago.
In years of litigating big, complicated cases with these challenges, I’ve used a number of tricks to put key information and documents a couple of clicks away. In today’s blog post, I’ll share a few of those tips in the context of a patent case (for non-patent litigators, you may still find some of these tips of value).
[Read more...]
“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.
Legal 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. [Read more...]
Professor Edward Tufte, the guru of information graphic design, advises his students to study the design of popular websites to learn techniques for conveying information quickly and efficiently. In today’s post, I’ll take Tufte’s advice and look at some of the techniques that NPR’s Planet Money reporting team used in creating an engaging page about the making of a T-shirt.
(By the way, Professor Tufte will be in the Bay Area next week, Dec. 9 - 11, teaching his great one-day course in Presenting Data and Information—a highly recommended course for those interested in conveying information in graphics—see Tufte’s website here for information and to register.)
Think about how in litigation, especially business litigation, you sometimes have to make a seemingly dull or boring topic interesting. Few people ever think about T-shirts, yet Planet Money manages to tell many engaging stories about shirts, in large part through the use of data visualization and other graphics. If the story of a T-shirt can be made interesting, it gives hope that one should be able to make the stories of many legal disputes interesting with informational graphics. [Read more...]
This blog shares real-world advice about trial graphics, case presentations, legal tech and litigation strategy. We blog to help attorneys make their case and manage their practice in the most effective and least stressful way possible. Who are we? Litigators like you.
Morgan C. Smith, president and founder of Cogent Legal, is a Bay Area attorney who litigated complex, high-value cases for almost two decades. 
Michael Kelleher, a registered patent attorney and a partner of Cogent Legal, was formerly a litigation partner at the San Francisco firm of Folger Levin & Kahn where he litigated IP and other complex business cases for 16 years.
Read more about Cogent Legal.
Michael Kelleher is an IP litigator and tech attorney who consults with Cogent Legal on strategy and graphics for cases involving patent, copyright, trademark, trade secret and unfair competition law. Throughout his career, he has worked at the intersection of technology and law. Michael was a longtime partner at Folger Levin & Kahn and served as general counsel for an advertising tech startup (DS-IQ). He also is an expert in e-discovery and authored a practice guide on California e-discovery and evidence. For Cogent Legal’s team, Michael provides invaluable direction on the most effective and persuasive ways to understand, visualize and present the complexities and nuances of an IP case.
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