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, Tickets.com, Ticketnetwork.com, 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.

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!

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

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.

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. It will lead, in criminal trials, to the forfeiture of a fundamental right of the accused: the right to confront each and every witness in open court. The authors propose a lengthy instruction which addresses the issue, but then proceed to throw up their hands and tell jurors, in effect, go ahead an surf the internet for information – just don’t give it as much weight as you would information delivered in court.

Yes, a better instruction is warranted and presents the easiest step towards ameliorating the problem, but could a warning ever be sufficient? If information on the internet, as a body, is inherently unreliable, then giving it any weight in the formal arena of a courtroom is a dangerous proposition.

Where does that leave us? If “just say no” does not work; if extrinsic evidence is unreliable and likely to violate a defendant’s Constitutional rights, How do we deal with jurors’ when we know they have a driving need to know? I think the authors hit upon the answers in this paragraph from their article but fail to recognize them for what they are:

“Jurors are not the same as they used to be.  The current jury system is premised on a model of jurors as largely passive until the moment of deliberations. They listen in silence to what is presented to them. They cannot ask questions in real time (and only rarely can they raise questions that the judge might ask at the end of a specified portion of the trial) and are often discouraged by the judge from note-taking. They rely on the information they receive in the courtroom to inform their thinking, and they are wholly dependent on attorneys and judges to determine what information they can and cannot hear.”

The thing that drives jurors to the web is their need to have their questions answered. Satisfy that need and the problem can be largely eliminated. Of course, it would be folly to believe that any strategy could totally eliminate the problem. But, we can craft a strategy that could reduce the problem to systemically acceptable levels.

Strategy to Satisfy a Juror’s Need to Know:

Though

1. Jurors must be allowed to take and rely on notes: Jurors are subject to the worst learning environment we can possibly imagine: forced to sit for hours listening to things they have no interest in presented in a tedious question-and-answer format peppered with objections and interruptions. What information they do get is often incomplete and/or irrelevant to the questions they must answer. Many times, we tie their hands by discouraging note-taking. Even when they are allowed to take notes, they are frequently told to rely on their memories, not their notes. In long trials, lasting weeks or even months, the chance that jurors, even as a group, can accurately remember evidence from early in the trial without notes is vanishingly small.

The practice of discouraging note taking and subsequent reliance on those notes is absurd. It is well established that the very act of taking notes encourages participation, attentiveness, and the formation of memories, what most of us call ”learning.” In deliberations, a memory backed up by a contemporaneous note is of far more value than a memory alone. It is odd that jurors are instructed to evaluate their own credibility differently from the credibility of a witness. For example, all other things being equal, who should be considered more credible: (a) an eye witness relying only on her memory, or (b) an eyewitness with contemporaneous notes of the event?

2. Jurors must be allowed to ask questions during the trial: Worse than the note taking policy or the inability to access the transcript, is the fact that jurors have questions they cannot ask. They cannot ask their fellow jurors. They cannot ask their spouses. They cannot ask the judge or the attorneys or, most importantly, the witness. Is it any wonder jurors turn to the internet? While it is apparent to most of us that speaking of the trial to people outside the courtroom is a bad idea, as is any research on the internet, questions asked within the controlled environment of the courtroom ought to be allowed and even encouraged. We believe that satisfying the jurors’ need to have their questions answered is the surest way to keep them off the internet – and out of trouble with the court.

We have been in several trials in which jurors have been allowed to pose questions that were then presented to the witness. We observed jurors who were significantly more engaged, both intellectually and emotionally. We cannot say that none of them went home and Googled some information. But, it is logical to believe that  jurors who get their questions answered in court don’t have to go outside of court for those answers.

Of course, the mechanics of juror questions are difficult, but not insurmountable. Judges must still fulfill their role as gatekeepers and interpreters of the law, and attorneys must still act as advocates. Here are a few suggestions and examples:

Questions to Witnesses: At the end of attorney questioning, but prior to releasing the witness, jurors should be allowed to pass forward written questions to the judge. The judge and counsel should meet at sidebar to discuss the question and to hear objections. If the question can be answered as is or with a slight paraphrasing by the judge, then let the witness answer. If the question is improper, the judge ought to be prepared to answer simply and directly, and without room for debate with the jury, why the question is improper. Simply denying the question without explanation would leave the juror even more frustrated and apt to do the very thing we are trying to prevent: independent research.

Questions to the Court: In conducting mock trials, jurors frequently have questions concerning the law. It is fair to believe, therefore that real jurors have the same questions. While hearing evidence, jurors need a framework of understanding to synthesize what they are hearing into a coherent whole. If a juror has a question on the elements of fraud, for example, why not provide an opportunity, or several, during the day for those kinds of questions? A legal question like that is fundamental to the task set before the jury and, as it concerns the law, not the evidence, is not prejudicial.

This story, published March 10, 2011, concerns a juror who looked up the definitions of murder and manslaughter during a murder trial. The juror was found out and a mistrial was declared. Now, the defense is seeking contempt charges and a $25,000 fine which they want to be used to defray the cost of another trial for the defendant. At the time of writing, the judge has not made any decisions on how to proceed. However, it is easy to see that, had the juror been given the opportunity to ask questions of the Court, there would have been no need to seek answers on the internet and all of this could have been avoided.

Questions to Counsel: At several trials, we have employed shadow jurors. Their most valuable contributions were not always their daily impressions, but often were the questions they would pose to the attorneys about specific details or whole lines of questioning they felt would help to clarify the evidence going forward. Their concerns led us to modify our plans to include many of their questions in our plans for the rest of trial. Wouldn’t it be nice to know what information the jurors were still wondering about? Any questions submitted under this plan would not be read aloud but, instead, simply presented to both sides for their consideration. There is certainly no way to have the attorneys answer directly in the normal course of trial with the possible exception of interim arguments if allowed.

3. Jurors must be given access to transcripts during deliberations: The problem of not having notes is amplified in most courts where the jurors do not have access to the transcript. Every other party to the trial is allowed access to the transcript. It is the official record of the Court. It is documentary evidence of what transpired. True, the transcript, if not “final,” may have misspellings or strange words generated by the phonetic nature of transcription. However, in my experience, when read fully, it rarely has material errors such as a witness answering a question “No” when the real answer was “Yes.” Even if that did happen, many of the jurors would instantly recognize the error and the surrounding context would reveal the true nature of the testimony.

Of course, simply plunking down a printed copy of the transcript in front of each juror is impractical for a number of reasons. Instead, we would propose that jurors could request any specific portion of the transcript that they needed. For instance, they may ask to see the plaintiff’s cross examination testimony. That is certainly specific enough and could be quickly produced. The only thing that would need to be removed would be any sidebars in that block of testimony.

Conclusion:

As it stands, we have hamstrung jurors in their decision making. We would never ask students to take a final exam having never been allowed to ask a question, take a note, done a practice problem, completed a homework assignment, or reading a text book. But that is exactly what we force jurors to do!

Given these opportunities to be heard and, in most cases, receive a reply, the jury’s collective curiosity might be satisfied to the point that an inspiring instruction, coupled with the threat of a fine, might just keep them off the web. Just Say No has never worked. The threat of punishment or intrusive monitoring of online activities is bad public policy – and may even be unconstitutional. Education, in the form of a good instruction, and a way to get their questions answered in a controlled way is the correct answer.

Jason Barnes,
Barnes & Roberts, LLC

UPDATE: After this post was written, an article was published (N.J. Court Endorses Video Playback) about the N.J. state Supreme Court ruling concerning the right of a jury to request and review video recordings of the trial proceedings. The Court concluded that if the jury needed to have their memory refreshed, the video was the best evidence of what happened during trial and was not prejudicial in and of itself. While this poses some problems in practice, we believe this is forward step and will greatly aid a jury’s decision making.

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.

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