trial strategy - 2/5 - Cogent Legal Blog

The Litigation Graphics Lesson in the “Wealth Inequality in America” Video

March 4, 2024 By Morgan Smith Leave a Comment

I always like to share examples of what I consider powerful graphics to give attorneys ideas on what’s possible to create for use in litigation. This morning, I was struck by a video going viral that describes economic inequality in the United States.

Regardless of your politics, and whether you believe that the widening gulf between the poor and super-rich is a serious problem or mere propaganda of the Occupy Movement, I hope you’ll watch this video because it’s a fantastic example of how to show data in an effective and engaging way. In particular, if you’re an attorney who presents cases with large amounts of economic facts and figures, you’ll want to see how this video combines storytelling with clean, simple and powerful data visualization techniques.

One thing I appreciated immediately is the power of the narrator, enhanced by the pacing that he uses. His technique is similar to that of a good attorney giving a closing statement. [Read more...]

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...]

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...]

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...]

Lessons from ABOTA Masters in Trial: Cutting-Edge Techniques for 21st Century Evidentiary Issues

October 30, 2023 By Morgan Smith Leave a Comment

This post is by Martha Pettit
Design & Administration Associate

We are in the midst of a big data explosion. E-discovery, metadata, black box data, cell phone records, social media … the list goes on and on. Last Friday at the American Board of Trial Advocates (ABOTA) Masters in Trial in San Francisco, I learned how trial lawyers are navigating and harnessing this brave new world of big data (or as they refer to it, evidence) to their advantage with demonstrative aids and expert testimonies. As a bona fide data visualization geek and ex-debater, my day in a room full of lawyers talking data was quite a treat.

Some of the key takeaways from the ABOTA masters that can benefit all trial attorneys: [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...]

Interactive Tutorial / Markman Presentations: The Essential IP Attorney Tool

September 27, 2023 By Morgan Smith 1 Comment

This post is by Dave Nugent, Senior Producer at Cogent Legal

Early in my career as a Litigation Media Producer, I supported an attorney’s tutorial and Markman presentation in a Federal District Court patent matter. The case was assigned a studious, no-nonsense IP judge. For the tutorial, she often would enter the courtroom nearly as well versed on the case and technology as anyone in the room. She would use the tutorial hearing as an opportunity to fill any potential holes in her understanding of the case and technology at issue.

Our lead attorney, however, wanted to prepare his tutorial in a style he was most comfortable with—a linear step-by-step PowerPoint overview of the industry background, prior art, and the problems or needs that the invention addressed.

When our attorney launched straight into his linear presentation with his recitation of the invention’s background and prior art, the judge showed immediate impatience, and abruptly waved the flustered attorney off with a terse, “I read all that in your brief, counsel. I have some questions for you.”

Rattled and fairly embarrassed before the assembled court, the attorney tried to answer the questions while associates were trying to hunt through the PowerPoint in working mode, to find relevant sections that were buried deep in the rigidly sequential PowerPoint. This process was slow, cumbersome, disruptive and added further irritation to the judge’s patience and poor assessment of our legal team’s perceived preparedness!

It was a bad day in court.

[Read more...]

IP Attorneys: A Guide to Effective, Engaging Graphics for Patent Litigation

September 18, 2023 By Morgan Smith Leave a Comment

Apple’s recent victory over Samsung in their patent infringement case had to be one of the most closely watched intellectual property cases ever, and trial graphics played a decisive role in shaping juror and public opinion. In fact, juror post-trial interviews revealed that two key Apple demonstratives, out of many weeks of trial argument and testimony, are what impacted and swayed the jury.

Whereas the Apple case involved primarily a “look and feel” that is not terribly difficult for laypeople to reach their own conclusions about, IP cases generally involve extreme technical detail and subjects that can be exceedingly difficult for a nonexpert to understand. For this reason, litigation graphics are needed and developed for patent and other IP matters more than almost any other field of law.

Cogent Legal has produced an interactive guide to show our approach and share our ideas for developing litigation graphics for intellectual property cases. In today’s information-saturated world, jurors and others expect to obtain information visually and interactively. Graphics, such as the samples you’ll find in this guide, enhance oral and written arguments so attorneys can present information in the most effective and engaging way possible.

Click here or on the image below to view the guide. (Note: it must be viewed on a Flash-enabled computer or mobile device.)

At Cogent Legal, we offer the experience of Senior Producer Dave Nugent, who has developed graphics for patent cases for over a decade. Dave was one of the pioneers of using interactive, web-like navigation to create compelling multimedia presentations for the judge at the tutorial and Markman phases of litigation. Introducing graphics at the tutorial and claims construction phases of an IP case helps to visually shape the argument for subsequent hearings and trial. When the tutorial and Markman presentation are done in an interactive and navigable format—as shown in a sample embedded in the guide—it is also well suited to handing off to the court for reference and review.

I hope you’ll check out our online guide to intellectual property litigation graphics, and I’d welcome your feedback on it in the comments below or contact me.

How to Use Technology Effectively in Mediation

September 14, 2023 By Morgan Smith Leave a Comment

[UPDATE: We uploaded the webinar on SlideShare and embedded it below so you can watch the whole thing if you like.]

Yesterday, I co-presented a CLE webinar on “Technology for Better Mediation” along with two San Francisco trial attorneys, Miles Cooper of Rouda Feder Tietjen & McGuinn, and Jeff Smith of Abramson Smith Waldsmith. One of the things I admire about both Miles and Jeff is their forward-thinking use of technology and graphics in litigation—not just for trial, but also for briefing and mediation. Since both Miles and Jeff specialize in high-end personal injury and wrongful death litigation, these type of cases were the focus of this discussion. This post summarizes the practical take-aways we shared, which we hope will help attorneys get the best results possible for their clients.

When we talk about “technology for mediation,” we’re often really talking about ways to create visualizations of the case; that is, ways to show your case in an understandable, engaging way. You might be asking yourself, “Why is this something I should bother with for mediation?” [Read more...]

Graphics to Help You Better Build Your Construction Case

September 10, 2023 By Morgan Smith Leave a Comment

When it comes to construction issues, I feel like the actor in that old ad on TV who says, “I’m not a doctor, but I play one on TV.” I’m not in the construction field, but I litigated construction cases for over a decade and consequently couldn’t help but develop an expertise in construction standards and practices. In a similar way, some med-mal attorneys I know have a better understanding of proper standard of care than even doctors do. When you have to prosecute or defend a case that revolves around highly technical issues, you’re sure to learn the subject inside and out.

With this in mind, making the transition from litigating construction-related cases to developing graphics for those types of cases has been a natural fit for me personally and for Cogent Legal as a firm. We strengthened our foundation in this area, so to speak, by bringing two architects onto the Cogent Legal team, whom I’ll tell you about below.

One construction attorney I know mentioned to me that he hesitates to use graphic design firms for litigation since he has to spend so much time explaining what he needs and what the case is about, which is frustrating. This is a shame since there are few other areas outside of patent law cases that virtually require the use of well-done graphics to present the case, since the cases are highly technical and lend themselves to visuals that show what caused problems, what the standards of care are and other issues.

To give attorneys ideas about how they can build and present their construction cases with timelines, animations and other interactive informational graphics, I asked my office to prepare an online brochure (click here or on image below; note, it must be viewed on a Flash-enabled computer or mobile device). [Read more...]