Expert Trial Consulting Knowledge for the New Year

Jury Expert January 2013

The January/February 2013 issue of The Jury Expert is up, and filled with lots of new information.

  1. Avoiding Jury Duty: Psychological and Legal Perspectives by David M. Sams, Tess M.S. Neal, and Stanley L. Brodsky
  2. Out of Your Head, Into the Cloud with Evernote by Brian Patterson (THE Brian Patterson)
  3. Questioning Child Witnesses by Nicholas Scurich
  4. Assessing the Readability of Capital Pattern Jury Instructions Rachel Small, Judith Platania, and Brian Cutler
  5. Values, Priorities, and Decision-Making: Intergenerational Law Offices, Intergenerational Juries by Douglas L. Keene and Rita R. Handrich
  6. Favorite Thing: Pocket by Brian Patterson
  7. Our Top Ten Most Accessed Articles for 2012! by Rita R. Handrich
  8. Forensic Mental Health Evaluations: Reliability, Validity, Quality, and Other Minor Details by W. Neil Gowensmith, Daniel Murrie, and Marcus T. Boccaccini
  9. Note from the Editor by Rita R. Handrich

In addition to the pieces on Evernote and Pocket, we did all the editorial graphics and redesigned and created the downloadable PDF version of the site. Go check it out!

Storytelling and The Eastern District

Sheri Qualters on addresses recent defense verdicts in the Eastern District of Texas, which is generally thought to be more plaintiff friendly. (Barnes & Roberts consulted and created presentations for the defense in four of the five verdicts mentioned in the article.)

Interestingly, several people in the article credit improved storytelling as part of the reason the defenses have been faring better.  The article quotes Judge Leonard Davis:

“[In] some of the defense cases that I’ve seen, the defense lawyers are getting much better at putting together a story and a defense that is not just technically right but appeals to an average lay juror’s sense of right and wrong,” Davis said. “I think they’re making it simpler and doing a good job of communicating with the jury.”

As we’ve been writing over at The Jury Expert, effective communication with the jury involves finding the balance between telling the jury a good story and presenting your evidence clearly. It’s not an either/or thing, you’ve really got to do both well. Creating a good narrative structure for your presentation, backed by well designed visuals, gives you the best chance at persuading a jury. 

Oops, They Did It Again

Another East Texas jury has invalidated a patent, or four, actually. Jurors in the Ceats, Inc. vs. Continental Airlines Inc, et al., trial in Tyler found that the four claims asserted by the plaintiff were infringed, but were also invalid. Read more about it here.

While we had friends and clients on the Plaintiff’s side in this case, we are proud of our team and of the work we did for the Defendants.

Congratulations to Continental Airlines,,, Airtran Airways, Alaska Airlines & Horizon Air, and Jet Blue.

And Congratulations to their trial teams: from Fish & Richardson, Tom Melsheimer, Neil McNaby, Carl Bruce, Lauren Pringle, and Renee Skinner; from Thomson and Knight, Max Ciccarelli, James Heinlen, and Gary Sorden; from Goldman Ismail, Alan Littmann; from Robinson & Cole, Ronald Zdrojeski and Benjamin Jensen; from Klemchuk Kubasta, Darin Klemchuk, Casey Griffith, and Kirby Drake; from Parker, Bunt & Ainsworth, Christopher Bunt; from Ward & Smith, Wesley Hill; and from Wilson Robertson & Cornelius, Jennifer Ainsworth and Bill Cornelius.

Obvious Technology Is Obvious, Jury Finds

In Judge Leonard Davis’s courtroom in Tyler, after a short deliberation, the jury in the Eolas vs. Adobe et al., trial has found that Eolas’s U.S. Patent 5,838,906 and U.S. Patent 7,599,985 are invalid. This is a huge development in the software patent wars, as Eolas basically claimed that they owned the Web and had sued several dozen companies so far, presumably with more lawsuits coming had the patents held up.

Congratulations to the Defendants: Google, Amazon, Adobe, Yahoo, CDW, JCPenney, Staples, and You Tube.

And the to the trial teams: Jennifer Doan and Haltom & Doan; Doug Lumish and Kasowitz Benson Torres & Friedman; Jason Woff and Fish & Richardson; Doug McClellen and Weil Gotshal & Manges; and all the other members of the teams from the firms Ireland Carroll & Kelley, Ropes & Gray, King & Spalding, Potter Minton, and Buether Joe & Carpenter.

We at Barnes & Roberts are happy to have been a part of the team!

Happy Holidays From Barnes & Roberts!

Barnes & Roberts Holiday Greeting 2011 from Barnes & Roberts LLC on Vimeo.

Is PowerPoint Evil?

Book pp cover

We have a new article up at the Jury Expert: “A Necessary Evil: Edward Tufte and Making the Best of PowerPoint“. It’s the second in our series on popular theories of presentation design, and how they relate to the courtroom.

In this article, we discuss Information Design guru Edward Tufte’s writings against many presenters’ favorite tool, PowerPoint. We try to examine the applicable and non-applicable in Tufte’s work, and offer suggestions for how to apply his principles in front of a jury.


The Patent Wars

I began working in litigation graphics in 1998. We did all the standard stuff: medical malpractice, contract disputes, employment issues, environmental problems, construction, intellectual property—a little bit of everything. In 2002/2003, I started working on my first software patent infringement case, Kodak vs. Sun.

It was the first time I’d worked on a technical tutorial, the first time I remember working on a Markman hearing. We worked on the case for around two years, and in the end, our client, Kodak, won. I didn’t really understand the significance of what was going on at the time, but it’s clear now that this was part of the early stage of what could be called the software patent wars.

Not long after that case concluded, I left litigation graphics for awhile. When I returned it was 2007, and patent infringement, the majority of it software patents, had exploded. The Patent Wars were escalating.

This week’s episode of This American Life, called, “When Patents Attack!” attempts to illuminate the controversial issue of software patent litigation, interviewing software engineers, patent holders and attorneys. They travel to the Baxter Building in Marshall, Texas to the “corridor of silent, empty offices” where many patent holders have offices but no employees. They talk to the person who coined the term “patent troll” while working at Intel, who now works for what one interviewee calls, “a troll on steroids.” It’s an entertaining hour and gives a nice overview of how this started and where it might be leading.

As a companion piece, you might also watch “Patent Absurdity: How Software Patents Broke the System,” which offers a more slanted view of the problem, but also offers some possible ways out.


Yahoo! Does Not Infringe

Congratulations to Yahoo! and their counsel at McDermott Will & Emery and Haltom & Doan!  Barnes & Roberts is proud to have been a part of the trial team that successfully proved Yahoo! does not infringe U.S. Patent 5,893,120. The jury returned a unanimous verdict of non-infringement in just 50 minutes, deciding that the accused code in the Linux operating system used by Yahoo! is not covered by the ‘120 Patent.

Read more about the case here.

Internet Jurors


The “Google-Mistrial”

A new article in The Jury Expert, Let’s Talk: Addressing the Challenges of Internet-Era Jurors by Julie Blackman, Ph.D. and Ellen Brickman, Ph.D, raises an interesting an important point: Can we keep jurors from using the internet? And even if we could, should we? Here’s an excerpt:

“Jurors are accustomed to integrating the Internet into their pursuits of knowledge, understanding and accuracy.  To exclude the Internet from the sources of information upon which jurors may rely may be simply impossible.  The question then would become not how best to forbid it, but how best to allow it – to give it its proper, acknowledged, and carefully constructed place.  At the very least, we believe that a conversation about the place of the Internet in the courtroom is in order.”

They recognize that it is impossible to guarantee jurors will not seek information outside of the courtroom and that any attempt to police jurors’ internet activity leads inevitably to draconian measures that will swiftly run afoul of the Constitution:

“One of the open questions is whether these jurors can be stopped by more stringent judicial instructions or the threat of sanctions.  Another question about jurors’ privacy rights is waiting to be addressed as courts consider asking jurors for their online ID’s and the chance to track their internet activity.”

But the proposal to allow jurors to access extrinsic information is, in our opinion, wrong. More…

Beyond Bullet Points: Hits and Misses

Join us for a discussion of the Good, the Bad and the Just Plain Crazy advice about using PowerPoint in trial.

Our review of the book and method, Beyond Bullet Points, was published today at the Jury Expert, an excellent resource for all trial attorneys seeking to enhance their practice skills. This article is the first in a series to examine the spectra of methodologies or schools of thought on designing presentation materials. The series will be comprised of:


1) Beyond Bullet Points: Strong on style but light on evidence with strict adherence to a template;

2) Ed Tufte and the SuperGraphic: Laser-like focus on evidence and data at the expense of style and story; and

3) Assertion+Evidence Model: Flexible with a few simple rules to blend style and substance in a meaningful way.