CaseSight

It was a dreaded "uh-oh" moment

Four months before trial, a litigation team was discussing strategy in a case involving a claim that their company’s product infringed a competitor’s patent.

The team members – an in-house lawyer, in-house engineer, expert witness and outside trial counsel – each sketched out their understanding of what the patent claim actually looked like and what it covered. It quickly became apparent they all had different understandings of the precise meaning of the patent claim.

Here it was, four months before trial and the team members had four different views on what proof was necessary to attain a “non-infringement” decision.

That is not a good thing.

If stakeholders in important litigation on the eve of trial do not share a common understanding of the case, time and money have been wasted, important strategic advantages may have been lost, and the trial team has to scramble like mad to get ready for trial.

An emerging trend in high-stakes litigation is the development and use of visual tools earlier in the litigation life cycle than ever before – sometimes even before a lawsuit is filed.

Lawyers are recognizing the strategic advantages of developing visuals for internal team use well before critical junctures in a case, be it an important deposition, a summary judgment motion, an arbitration hearing, or trial.

Earlier and better outcomes can result from deploying visual tools strategically throughout a case. Lawyers who wait until the eve of trial to call in a visual expert will lose those advantages created by early case visualizations.

Visual tools are effective in all types of cases, including intellectual property, products liability, securities litigation, and complex commercial cases.

The visuals – such as sophisticated interactive media and animation, as well as PowerPoint presentations – are shaped by the burden of proof in a case, as well as the relevant documents and forensics.

A primary benefit of this approach and these tools is that it facilitates a process of visualizing a case in context. For example, in a patent infringement lawsuit, that context includes the claims, the specification, case law, interrogatories, and all information related to the alleged infringing product.

As discovery proceeds, expert reports, depositions transcripts, and other pertinent material can be added. The evidence and its impact can be seen and evaluated by itself, or as part of the collective whole.

» Back to the top

At The Outset Of A Case

Early case visualization is a vital teaching tool. It helps litigators, their clients and expert witnesses all have a common understanding of the legal and technical elements of a case. Visualization is the common denominator.

The value of this can’t be overstated. When litigation participants have a wide array of technological understanding and vocabulary, as well as work backgrounds and experiences, it’s inevitable that each will have a different understanding of the case.

Visuals help the trial team evaluate a case with precision and at a highly technical level, both pre-suit and early in a lawsuit. Time isn’t wasted on clearing up misperception and misunderstandings later in the litigation life-cycle.

Visuals also help team members identify important elements of the case in the context of the opposing party’s claim or defense, as well as the strengths and weaknesses of their own case.

As equally important to this common understanding, visual tools also enhance collaboration among the stakeholders in litigation by facilitating effective dialogue among inside and outside counsel, as well as fact and expert witnesses.

» Back to the top

Discovery

Case visualization is a dynamic, evolving process. As litigation unfolds, new evidence uncovered in discovery can be added to the case presentation. The visual tools help the litigation team in the ongoing process of honing its legal arguments and refining the essential theme of the case.

Visuals are also extremely helpful in preparing fact and expert witnesses for depositions, while also giving legal arguments and overall case presentation a “trial run” before they are seen by an opponent or used in the courtroom. The case visuals also identify information to be discovered at depositions that otherwise go undetected.

» Back to the top

Motions And Hearings

At important junctures, such as a summary judgment motion or a pre-trial settlement conference, a visual depiction demonstrating the strength of a case and legal arguments can persuade the other side to settle on terms favorable to your client.

The ongoing development of case visuals also produces effective demonstrative evidence for use in arbitration or at important hearings in court. Rather than just coming up with something on short notice that looks good, developing and refining early case visualizations during the course of litigation instills a more persuasive effect to the graphics used at motion hearings.

The nature of the audience – technically sophisticated or elementary – drives the content and presentation of the information. Early in a patent case, for example, the content might be highly technical because the audience of engineers, experts and veteran patent counsel (who usually have a technical background) can process the information at a sophisticated level. The goal is for the litigation team to have a precise, common understanding of the facts and legal issues.

In contrast, a visual tool can be modified to match a lay audience’s ability to understand what’s at stake. Let’s say you’re involved in a trademark infringement action involving complex financial and commercial facts related to competing banks. A judge is set to hear arguments on the admissibility of the testimony of your opponent’s expert witnesses.

You’ve already developed an effective case presentation strategy to simplify the complexities of the case, and clarify the financial and business stakes involved. This has helped you to refine and sharpen your bank client’s arguments.

Building on the case visuals already in place, you use an interactive presentation to clearly present layers of complex data to the judge, such as market penetration statistics, media coverage, branch locations, and a comparative analysis of the banking market.

The judge excludes the testimony because the presentation discredits the testimony of the other side’s expert witnesses by demonstrating the flaws in the assumptions and results presented by the experts.

» Back to the top

Trial Preparation

During the critical time period devoted to trial preparation, previously developed case visuals can help the litigation team refine, revise and rehearse the case. Demonstratives used at trial will be less effective if the litigation team – because it waited too long to get started – only has the time to make a couple of revisions.

To sharpen the final draft of a legal brief, lawyers realize it needs to go through several revisions. They are increasingly applying a similar level of review to case visuals.

Integrating case visuals with case development means less risk of error and more thorough preparation. Ultimately, this will mean greater confidence in the case, better witness performance and the overall effectiveness of presentation at trial.

A derivative of the case visualization process is that graphics used at trial explain complicated concepts and vividly illustrate the case theme, helping the jury better understand your client’s arguments.

» Back to the top

Meeting Of The Minds

Outside lawyers often wonder if their clients are willing to invest in the case visualization process. And in-house counsel are uncertain if their outside trial lawyers will be receptive to it.

Case visualizations benefit inside and outside counsel by helping them do their jobs more effectively. These visual tools can eliminate wasted time and effort, which means in-house counsel are holding the line on litigation costs, and outside trial lawyers are staying razor-focused on developing the facts and legal arguments to bolster the case.

A case presentation tool is an efficient way for in-house counsel and outside counsel to communicate during the course of case. For example, instead of outside counsel spending days (and billable hours) preparing a presentation for a quarterly update/strategy meeting with inhouse counsel, they use the case visuals already in place as the primary communications vehicle.

This means the outside lawyers are efficiently devoting their time to fine-tuning the legal and evidentiary elements of the case, rather than feverishly putting together another PowerPoint presentation.

And if outside counsel changes for whatever reason, an ongoing case visualization process is an efficient way to quickly bring the new trial lawyers up to speed about a case, again saving time and money.

In sum, business litigation is ultimately about achieving a favorable outcome at a tolerable cost. Effectively using case visuals helps lead to that result.

» Back to the top