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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.

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.

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.

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…

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.

Bullet points have been the target of much deserved criticism. By default, PowerPoint presents you with a bullet-point template – just fill in the bullets to create your outline and use your slides as a teleprompter. As we and many other critics have long held, this is a bad idea. However, in spite of the negative press, there are times when bullet points can be a useful means of communication. Knowing when and how to use bullet points can make your presentation that much more effective. Here are a few of the times when using bullet points makes sense:

1. Themes/Roadmap/Summary

The best use of bullet points is as a preview or review of the main points of your presentation. In a preview, you can clue the audience in on what they are about to see and hear, so they can keep the bigger picture in mind while you present the details. In a review of your key points, you can explain the relationship between the different parts of what your audience has seen, tying your story together.

2. Simple List

A list is the most basic form of bullet point. Whether you use numbers, letters, or bullets, at the core they are the same: a group of things, arranged and enumerated. While there may be more artful ways of presenting a list of things than actually showing a list, sometimes a list is just a list.

3. Checklist

A checklist can be used to demonstrate that each item on a list is, or is not, accounted for. This can be a checklist that occurs within the case narrative, such as to demonstrate that a client performed all the steps necessary to fulfill their duty, or you could use it outside the narrative, for example to show how opposing counsel has failed to meet their burden of proof.

4. Steps in a Process/Logical Steps

An ordered list demonstrates the logic or chronology of steps, like a recipe. Numbers or letters, as opposed to graphic bullets, are required when creating these lists, because in a process the order of the steps is key.

Tips:

In most cases, it is a good idea to limit each bullet point to a short phrase in the active voice – complete sentences are not required. Language should be parallel and each bullet point should be relatively the same length, i.e., one line each or two lines each.

Limit the number of bullet points on a slide so that you don’t overwhelm your audience with words. Many “rules” have been proposed but don’t pay too much attention to them. The point is, there is no rule for every situation. Let your intuition be your guide. We find that three is the perfect number as our language uses three items as the basis for many kinds of lists: 1, 2, 3; A, B, C; or this, that and the other thing; or motive, means and opportunity. Bullet points in the middle of a longer list are apt to get little notice.

Assume that while your audience is reading they will not be listening to you speak, so limiting the words on a slide is essential. Sum up your point on the slide, and expand on it while speaking to better engage the audience.

Don’t use too many bullet point slides, and don’t use bullet point slides one after another.

There is no such thing as a single bullet point. If you have only one idea, simply state it. Bullet points connote a list and one item does not a list make.

Avoid sub-bullets in a jury presentation. Use sub-bullets with discretion within presentations to the Court. We should recognize that the audience matters. The Court, as compared to the jury, may find sub-bullets that define the logical structure of your argument to be helpful. However, acknowledging this fact should not be construed as license to run wild with sub-bullets. If it is important enough to demand lots of words, it is important enough to deserve it’s own slide. The best arguments, the best structures, are the simplest and require the least support in terms of text on the slide. Judges are people too – present them with dense, boring bullet point slides at your own risk.

Have a question about bullet points? Drop us a note at jbarnes@barnesandroberts.com or bpatterson@barnesandroberts.com.

A new study, published in the journal Cognition, reports on a phenomenon the authors call “the weak evidence effect” wherein subjects presented with an assertion supported by weak evidence were less likely to believe that assertion than subjects presented with no evidence. In other words, weak evidence was considered less convincing than no evidence. How could this illogical result be true?

The thrust of the argument is this: People presented with weak evidence will focus on that weak evidence as the only evidence. Since the evidence is weak, they don’t trust it. Conversely, people presented with the same proposition with no evidentiary support will fill in the blanks for themselves, providing their own evidence to support the proposition. Since evidence originating within the subject is inherently more believable, people favor the proposition at higher rates.

The lesson for litigators is clear. If you have only weak evidence to support a proposition in your case, it is best to leave it out. Make the assertion and leave it to the jurors to supply their own reasons why it is true. The corollary to that is the situation in which your opponent has some weak evidence supporting their position. If the study is correct, it may be a good idea to focus jurors on that evidence and its weak nature.

- Jason Barnes

Barnes & Roberts, LLC
www.barnesandroberts.com

Last week, the Pew Research foundation released a survey results including this graph describing Americans’ changing opinions on gun control/gun rights.

Pew: "Fair and Balanced" is too much detail and not enough advocacy.

While the graph is certainly accurate and offers much data to the user, There are some things I just don’t like about it:

More…

Last week, the Federal Circuit left  the “25% rule of thumb ” for calculating infringement damages lying on the kitchen table when it declared this oft used, but little substantiated, theory to be “fundamentally flawed” and “inadmissible.” The ruling also places further restrictions on admissibility of  the entire market value of a product without a clear showing that the accused feature creates the basis for demand. This should come as a great relief to many defendants.

Here’s the full ruling from CAFC: Uniloc_v_MS