litigation - 3/6 - Cogent Legal Blog

What Litigators Can Learn From Some of the Coolest Graphics in Construction

February 28, 2024 By Morgan Smith Leave a Comment

I am constantly amazed at how the world of litigation has changed so much in such a short period of time since I started practicing almost 20 years ago. OK, I accept that some of you don’t think 20 years is a short period of time, but it sure seems like it to me. As I have mentioned in this blog before, the ability to make powerful, high-quality trial graphics was extremely limited by the software available in the early 1990s. I was reminded of how far we’ve come in the area of visualization and modeling when I recently had dinner with Mike McTeer, who made a similar career shift as I did, but in a different field. Mike has a background in construction, and a few years ago, he decided to start a firm that specializes in 3D visualizations of construction.

His firm specializes in “Construction Visualization Integration and Building Information Modeling,” which basically means he visualizes and creates models of projects so builders more fully understand the process of the project, discover better ways to build it, and identify problems before they occur. When I saw his work, I was struck by what a great tool this is for the construction industry. This type of computer modeling was impossible only a few years ago, and Mike says that a number of larger clients now require it for any job before the work starts.

You might ask, what does this have to do with litigation? Well, just like Mike’s clients who never used this process before then realized they cannot do a project without it, attorneys who discover how a case can be visualized and strengthened with graphics at an early stage begin to view litigation graphics as a de facto requirement for case preparation and presentation. [Read more...]

How Graphics Help the President Persuade and Can Help Attorneys Too

February 19, 2024 By Morgan Smith Leave a Comment

Last week, Ken Broda-Bahm wrote a great piece about the recent State of the Union Address (“Check Your Alignment in Multiparty Litigation“), commenting on how the dueling responses by the Republican Party (Mark Rubio) and the Tea Party (Rand Paul) exposed the similar difficulties co-defendants in a trial face while trying to keep message control in front of a jury. Ken’s examination of the State of the Union Address through the lens of trial issues also reminded me of the post last year by Ken Lopez on the use of graphics in the State of the Union Address (“Presentation Graphics: Why the President is Better than You“), which related a number of great tips and showed why attorneys should look at the White House use of graphics in presentation, since they are certainly well done.

Better late than never, I figure it’s time for me to put in my two cents on the topic and show some examples from the State of the Union Address that might help attorneys improve their own use of charts and graphs in litigation. Visualizing and presenting data in an engaging, persuasive way is critically important for numbers-heavy cases involving financial transactions and economic data. I’ve seen attorneys present graphs and spreadsheets that are about as interesting as watching paint dry. The president’s team, by contrast, created graphs that hold the viewers’ attention and strengthen the points he makes orally.

The day after I watched the address live on TV, I looked at the online “enhanced” version at whitehouse.gov. I am obviously biased, but in particular I admire the president’s address because I really do love seeing graphics used effectively and well. It’s like being a football fan and watching a great football game when everything is done just right. One thing I like in particular is a point that Ken Lopez made very well: that every slide is “simple enough to understand in a moment or two.” All of the graphics are simple, yet carry a strong message. They are not intended to be objective, but rather to be like a closing statement when graphics are used to sway the viewer to your point of view.

Let’s look at a couple of ways these graphics use effective techniques to push their point of view fairly but persuasively. [Read more...]

A Graphics War Story: How a Big Board Showed Market Manipulation

January 30, 2024 By Michael Kelleher Leave a Comment

In this blog, we occasionally like to share stories of how legal graphics can change the course of litigation. The following war story comes courtesy of Roger Mead, an accomplished litigator at Folger Levin LLP in San Francisco.

The story involves civil litigation against the Hunt brothers in the 1980s claiming silver price manipulation. As the accompanying graphic illustrates, silver prices spiked in 1979 and 1980 and then collapsed. In 1979, the price for silver jumped from $6 per troy ounce ($0.193/g) to a record high of $48.70 per troy ounce ($1.566/g), an increase of 712%. The billionaire brothers Nelson Bunker Hunt and William Herbert Hunt were accused of causing the spike and collapse and conspiring to manipulate the silver market. After six months of testimony in a trial in federal district court in New York before Judge Lasker, a jury found for plaintiffs (see Hunts Are Ruled Part Of A Scheme To Control Silver, NY Times, Aug. 21, 1988).

For the trial, plaintiffs had created a graphic showing the rise and fall of silver prices, and they mounted it on a long board. Judge Lasker gave the plaintiffs permission to hang the board from the ceiling of the courtroom across from the jury box. The board hung there for the entire trial.

Using the data, we created a graphic to illustrate how a blow-up chart might be designed today for this case. Whereas in the early 1980s they may have spent a great deal of time creating a hand-drawn diagram, we used Adobe Illustrator to produce this easily: [Read more...]

How to Effectively Use Surveillance Video in Tort Cases

January 23, 2024 By Morgan Smith Leave a Comment

One of the things that has changed the most since I started practicing law two decades ago is the prevalence of surveillance video in tort cases. Twenty years ago, surveillance was still primarily captured on videotape and was expensive and difficult to use and store as evidence. It was unusual for our litigation team to obtain any surveillance video for cases, and on the rare occasion we did get it, it never showed anything useful because it tended to be shot from a single camera pointed at an unhelpful angle.

However, with the growth of digital recording equipment and affordable disk space on computers, surveillance video and its use in court has skyrocketed. Now, not only is it common to have surveillance video available for a lawsuit, it’s also very likely to have the incident shown from more than one view. Videos from taxis, buses, buildings and street intersections often all combine to give multiple views of an incident.

Given the prevalence of surveillance video and its influence on litigation, it’s important for both plaintiffs and defendants to understand its limitations and how it can lead to misunderstanding rather than illumination of the incident. There is no question that surveillance video can be absolutely key evidence used by both sides to try to prove their case. It cannot be ignored by either side, and what the jury believes the video shows can determine how they decide the case.

One potential problem with using surveillance video as evidence is the simple fact that it generally does not capture “normal” time views. [Read more...]

Go Beyond Google Maps: Powerful Ways to Illustrate Location in Your Case

January 4, 2024 By Morgan Smith Leave a Comment

One of the most common items attorneys will put into a brief or a case presentation is an overhead map of the relevant area. Since the dawn of Google, attorneys have grown accustomed to copying and pasting the image of a Google map into a document or a PowerPoint presentation. I, too, am a big fan of using Google Maps, Google Earth, and all the street views and archival images available through them (see my earlier post on how to get the most out of using Google Maps and Google Earth for case presentation).

But don’t stop there, because so much more can be done with design tools to make a powerful visual impact if you go beyond Google. While Google Maps are easy to obtain and often enough to get the point across to a jury, they also can be confusing, cluttered, and fail to help the attorney visually communicate the main points of a case. Let’s look at some examples of standard Google Maps and alternatives created for presenting a case at mediation or trial. [Read more...]

Words, Numbers and Pictures: Why Attorneys Need All Three

December 11, 2023 By Michael Kelleher Leave a Comment

This post is written by Michael Kelleher, Esq.

Before I recently joined as a litigation consultant here at Cogent Legal, “Words” was my nickname at a previous job. Ironic, isn’t it, that “Words” is now working at a legal graphics provider?

I earned the nickname because I often dealt with long and complicated patents and contracts that caused many eyes to glaze over. I was general counsel at DS-IQ, a start-up company providing advertising and marketing software—fun work with a really talented team in an entrepreneurial, fast-moving environment. I wasn’t the only team member with a nickname; I worked with “Pictures” (our CEO) and “Numbers” (our VP of Finance).

“Pictures” lives and breathes PowerPoint because a big part of his job is presenting to customers and other groups. He knows how to get and hold attention in a meeting with images, and he would frequently substitute words in a slide with a diagram or photograph. “Numbers” is a wizard with Excel—in every situation, “Numbers” has models and scenarios whizzing around in the cells of spreadsheets.

“Pictures,” “Numbers” and I (“Words”) often collaborated on presentations, each preparing a set of draft slides for the others to review. We would then look at our draft slides together and talk about the upcoming presentation, and in the process would refine the slides by thinking through our message, our audience and how the meeting would flow. Some of the questions we’d ask each other: [Read more...]

Adding to Our Arsenal in IP and Business Litigation

December 3, 2023 By Morgan Smith Leave a Comment

I never expected to work with a former nuclear submarine officer in the litigation field, but it turns out that we’re bringing such a person “on board” at Cogent Legal. I’m pleased to announce that attorney Michael Kelleher is joining our firm as an intellectual property and business litigation consultant. Not only did Mike spend several years in the Navy on the aforementioned submarine (hence his twitter handle, @lawnuke), he also practiced more than 16 years as a litigator of patent, trade secret, trademark, unfair competition and other complex cases.

Mike’s time on that sub taught him science and engineering skills, leadership and level-headedness, which served him well as an IP litigator. At Cogent Legal, he’ll collaborate with our clients and graphic designers to develop strategy and visual aids for cases in the IP and business fields. [Read more...]

iPhones and iPads, the Undisputed New Champions at Law Firms

November 27, 2023 By Morgan Smith Leave a Comment

I remember distinctly the day I got my first-generation iPhone in 2007. I was the first in my law office to get one, and when I figured out how the phone’s email system worked with our internal system, then I realized I could have my assistant send documents to me so I could review them on the phone and forward them to others. The iPhone quickly became an indispensable part of my legal practice.

I thought of how my relationship to this device has evolved and strengthened over the five-year period while reading a recent post on iPhoneJD.com, “AmLaw 2012 Survey Shows Strong iPhone, iPad Support at the Most Profitable Law Firms.” It reported on the AmLaw study finding that in 2008 only 5% of the most profitable firms in the US supported the iPhone, which increased to 99% in 2012. This is a remarkable sea change in the legal field where Blackberrys (aka Crackberrys) had almost 100% of the market prior to 2007 in larger firms. [Read more...]

My Day as a Torts Professor Teaching Real-World Litigation at Law School

November 7, 2023 By Morgan Smith 1 Comment

I recently had the opportunity to do something quite fun. My torts professor from law school asked me to teach a class on “the real practice” of tort law. I got the opportunity to lecture, to show some examples of demonstrative evidence to prove a case, and to call on the unsuspecting students. This all stemmed in part from last year’s New York Times article What They Don’t Teach Law Students: Lawyering. My great torts teacher, Larry Levine at Pacific McGeorge School of Law, had been wanting for some time to introduce a much more practical aspect of practicing law into his classroom. That article prompted our discussion, and I was happy to try and share what I can about practicing litigation.

Bringing real-world training to law school is a big topic facing the profession, especially now when jobs are scarce for debt-ridden law grads (see, for example, this Washington Post article from a week ago). Our profession traditionally has been adverse to teaching students how to do the types of things they will actually spend most of their time doing when they become lawyers, such as depositions, case evaluations, discovery, motions and other rather mundane but vital practices. Larry and I wanted to expose his students to more of the issues and tasks they may encounter in prosecuting or defending tort actions.

The class was studying res ipsa loquitur, standards of care and negligence per se. I wanted to show how to work up some of the cases from their book and tackle practical issues about how to evaluate the case, what to ask for in discovery and so forth. Additionally, I demonstrated the benefit of developing visual aids. As the graphics below illustrate, demonstratives significantly enhance the understanding and retention of information for a case presentation at mediation or trial.

[Read more...]

One of the Most Important Steps In Any Construction or Injury Case

October 19, 2023 By Morgan Smith Leave a Comment

Yesterday was one of those days that reminded me of the value of visiting a site for a construction-related case to see and feel firsthand what is involved. Couldn’t I simply hire a photographer to take pictures of it for me instead? Perhaps, but that’s a poor substitute. It’s much more effective to tour the scene with the lead attorney and experts, as well as with our firm’s in-house architect to tap into his expertise about the building’s design and standard construction practices.

During my years of litigation, and equally so now in the field of litigation graphics, I became convinced of the importance of inspecting whatever items and locations that a case revolves around in order to visualize and then build a persuasive argument. As an attorney, it’s vital to inspect sites, accident scenes or any other type of location involving your client, and to use your eyes and other senses to become intimately familiar with the location and circumstances. Equally important is hiring experts and consultants who are willing to leave their desks for a site inspection too. This will help you individually and as a team develop your case as effectively as possible.

At Cogent Legal, our job of creating litigation graphics, and helping attorneys make their best case possible, involves simplifying complex information to make it more understandable and, ideally, to tell a compelling story about what happened. In construction cases (and often personal injury or product defect cases), it’s my experience that a case file ends up with hundreds, if not thousands, of photographs of whatever is allegedly defective or caused the accident. What tends to be missing from reams of photographs is a context that gives meaning to those images. A site inspection gives context and meaning to a case, ultimately aiding in the development of a better presentation that combines visual aids with oral and written arguments. [Read more...]