ACC Focus on the New Jersey Chapter - 12/09/2011 (Plain Text Version)
Theater Tips For Patent Jury Trials: A View From The Trenches
Michael A. Nicodema
Q: What's more boring than jury duty? A: Jury duty for a patent infringement case. If you agree, you have to read this article.
The trial of a patent infringement case before a federal jury is just like the trial of any other case -- it’s about the story and the people. Of course, there are considerations and events in patent cases that set them apart from other commercial cases -- like claim construction proceedings, the arcane and sometimes contradictory nature of the Patent Law, the heavy reliance upon summary judgment motions to either end the case after claim construction or at least to narrow the issues for trial, and the critical importance of expert witness testimony.
Yet, when you get right down to it, even after all the quirks, twists and turns, and complexities of patent cases are taken into account, a patent jury trial is still a morality play -- right versus wrong, fair versus unfair, big versus small, and good versus bad. In this way, a patent jury trial is no different than a dramatic theatrical event or movie. A good director will weave the elements of theme, time, place, and purpose into a movie or theater presentation to engage her audience. A good trial lawyer will weave those same elements into her trial presentation to engage and persuade the jury.
Just the way a movie or Broadway show has parts or acts, a jury trial also has parts -- jury selection, the opening statement, witness testimony, and the closing argument. The trial lawyer’s job is to engage and persuade the jury during each part of the trial. Now, you could talk to ten different trial lawyers, and they will probably give different opinions on what they consider to be the most important parts of a trial, and how they go about the art of engaging and persuading the jury. The good news is that none of them would be wrong. Trial advocacy is an art, not a science, and we all bring our unique personalities to the game. In short, just like jurors, we are all different people, and practice our craft in our own unique ways. But however we do it, the ultimate goal should be to entice the jury to watch the whole movie, and not disengage by flipping through channels -- or worse, check out and leave the theater altogether.
In this article, I provide some recommendations for easing the boredom and drudgery endemic to patent jury trials by imparting a sense of theater to the process. I have grouped them based on the different parts or “acts” of a trial -- jury selection, opening statement, witness testimony, and closing argument. But don’t worry, there will be no car chases, explosions, plot twists or surprise endings. Rather, my recommendations are borne out of the realities of human communication. They have served me well over the years in trying patent cases and other types of complex commercial cases, and I hope you find them both informative and useful.
1. It All Starts With Jury Selection
I know what you’re thinking -- nobody gets to pick juries anymore, the judge does it. Not exactly true. While attorney participation in jury selection may be more prevalent in state court than in federal court these days, many federal judges still provide the attorneys opportunity to question jurors during voir dire -- usually between 15 minutes and ½ hour, and sometimes as much as an hour depending upon the case. Jury selection is the part of the trial that many lawyers fear, when in fact, they should embrace it. It is your very first chance to engage and connect with your potential jurors. You should never waste the opportunity, because here’s where the art of persuasion and infusion of theatrical elements into your case begins.
The Short “Opening”.
Many judges will give each side the chance to make a short opening statement about their case during jury selection -- usually 5 minutes. Embrace it. While you can’t “argue” your case in jury selection, you can and should get close. The patent owner may want to talk about the revolutionary nature of the invention, the dreams of the inventor, how the inventor made the invention in his garage, etc. The defense may want to talk about how they independently developed the accused product, how they are a leading scientific and research organization with tons of patents, and the key ways in which their product is different. In short, plant the “story” seeds early and quickly, and give the jurors a taste of things to come.
Use Elements Of Good Communication.
Hand gesturing, voice modulation, eye contact, and effective movement are vitally important to any good speech. Nobody will engage with a lawyer that remains landlocked to the podium like a bump on a pickle, with his hands gripping the sides, and speaking monotone. Move around, even its only an arm’s length or two from the podium. The venire will be set up with usually 8 prospective in the jury box and the rest in the gallery. Try your best to look at all of them when speaking and asking general questions.
Use Short Sleeve English And Don’t Interrogate.
Even if the jurors have filled out questionaires before jury selection, there are still things you will not know and need to follow up on. It’s hard enough for most people to open up in a room full of other people, and you will only make it worse for yourself if you conduct the voir dire like a deposition. Ask them how they feel and what they think about certain issues, and show interest in them in a way that is friendly and will get them to talk. Remember, they will have your client’s fate in their hands and they know it. Most jurors take their jobs very seriously, as they should, and you must always show them the proper respect. Talk to the venire like you would talk to your friends and relatives, and use regular people words, not lawyer words. Something as simple as using the word “before” instead of the phrase “prior to” will go a long way. A well placed joke here and there, showing ability to laugh at yourself, and showing common courtesy to everyone in the room -- including your opposing counsel -- will ease the tension and have a dramatic effect. The right tone, the right words, and showing the proper respect and interest will help you to identify potential challenges for cause, and to use your preemptory challenges more effectively.
Use Of Visuals.
Show the patented product and accused product to give the jurors a sense of what’s involved. In this setting, a picture is truly worth a thousand words. If the products are something you can hold, so much the better. The real thing will have much more impact and resonance than a picture on a power point slide. Seeing the real products may give potential jurors a better sense of how to respond to voir dire questions, and open up on relevant real life experiences. Like effective questioning, strategic use of visuals will also help you identify potential challenges for cause, and use your preemptories more effectively.1
2. The Opening: The Lawyer As Movie Narrator
Okay, so what if you don’t get a chance to significantly participate in jury selection, and if you do, what if you don’t get a chance to give a short opening and show some props? Not to worry, because there is always the traditional opening statement that comes right after jury selection. If you get both a short voir dire opening and the traditional opening statement thereafter, you’re golden, because you’ve now had two chances to connect with and engage the jurors before the testimony even begins. Think of an opening statement as being similar to the narration at the beginning of a movie or play, where the narrator sets the stage by giving the audience a sense of time, place, purpose, and events to come. During opening, you are the narrator, and all the elements of theatrical communication come into play. Some tips:
“Move, animate, resonate”.
Once again, take any chance you get to move. Ask the judge during pre-trial if you can move from the podium during opening and how far. Most judges will be accommodating. Better yet, see if you can get permission to stand in front of the jury box and move at an un-intrusive distance while you are speaking. Getting this kind of access to the jury is the trial lawyer’s dream -- or should be. Hand gesturing and voice modulation are always keys to effective communication and resonance. Well placed pauses are also dramatic, because they signal that something is different, and cause jurors to re-focus their attention. Also, avoid reading your opening at all costs. It makes you look dispassionate and unprepared, and the jury will surely disengage. I’m sure very few people would have remained glued to the screen or stage during Hamlet’s famous soliloquy if he spoke in a monotone voice, continuously rambled on without taking a breath, read a script of his most heart-felt thoughts, showed no emotion, and stood rigidly in one place with his hands at his side.
The “Theme” -- aka The “Grabber”.
As John Travolta’s character famously remarked in A Civil Action, “The jury is expecting to hear a human drama”. Truer words were never spoken. They have that expectation, even in a patent infringement trial. What is the invention? How did the inventor do it? Did the Defendant steal it? Start your opening with your case theme -- “This is a case about. . .” Your theme should contain traditional notions of common experience -- right and wrong, responsibility, broken promises, etc. Starting your opening by saying something like “This is a patent case”, will guarantee that the jury will leave the theater quickly. Many attorneys will begin their opening by introducing themselves and thanking the jury for their service. Well, the judge has already thanked them in her opening remarks, and you want to get off to a fast start with a “grabber” -- that is, a concise statement of your theme that will “grab” the jurors and wet their appetites for more. I’m a fan of the delayed introduction -- after I get my theme out, I’ll introduce myself, my team, and my key witnesses. When you introduce your corporate representative or inventor, consider standing next to them, putting your hand on their shoulder, and telling the jury how proud you are to represent them. After all, the trial is about people, and this gives you another chance to move and gesture in a dramatic way.
Speak In Story-Like Fashion.
A good movie or play narration tells a story. The most effective way we learn and remember is through story-telling. I try to avoid telling the jury what each witness will testify to for two reasons -- its boring and nobody will remember it, and you never know how the testimony will actually come out. You are better off sprinkling in phrases like “the evidence will show”, “you will learn”, and “you come to know”. It is less disruptive to the story line. You goal should always be to build the jury’s anticipation and thirst for more. Many patent trials -- especially ones involving Internet technology -- involve events that took place 10 years ago or more. Juries like and appreciate time lines, and you can strategically use them in opening with dramatic effect to put the case in the proper historical perspective. Technology has changed dramatically since the dawn of the Internet and World Wide Web, and it may be important for you to give the jury a proper sense of time and place. You may need to get them to place themselves in the time period at issue, and not mistakenly think that the events all occurred only a short time ago. Building a time line using power point or other visual means to show what the world was like then and now is an effective way to do it. However, as discussed in the next point, there are certain cautions in using such technology to keep in mind.
Use Of Visuals And Props.
By all means show the products at issue if you can, and use power point to show a key exhibit or two, or a compelling piece of deposition testimony. It can be particularly effective for the patent owner’s counsel to hold up the ribbon copy of the patent. But like all good things, technology is subject to overuse -- timelines are no exception. All too often, trial counsel use too many power point slides and other visuals during opening (and closing) that contain way too much information and detail. You are not trying your case in opening, you are previewing it. Without hearing a bit of evidence, there is no way a jury will connect with a large and overly detailed deck of slides. You should want your visuals to complement your oral presentation, not overwhelm it. You as the orator should be center stage, and the overuse of technology will only serve to draw the jury’s attention from you, and reduce the dramatic effect of your presentation. When we sit down at a coffee table or around a crackling fire and tell our friends or loved ones about interesting events in our day, most of us have the natural ability to tell the story in a flowing and engaging way, without using too many props. We rarely use power point to do it. Trust yourself and your natural powers of persuasion.
3. Witness Testimony: Who Is The Star?
The mechanics of direct and cross examination are well known to even junior trial lawyers -- open-ended “reporter-type” questions on direct (who, what, when where, and why), short leading questions on cross. But what about the dramatic and persuasive effect of the examination? Did you or the witness make the points you wanted in a memorable way? Do your cross and direct themes resonate with the jury? Have you personalized your witnesses in a way that makes the jury like both them and you? Have you added a little drama to the equation so that the jury doesn’t begin flipping channels or leave the theater? Some tips:
a. Direct Examination: The Witness Is The Star
On direct, your job is to act as the facilitator, and not overwhelm the witness. It is their testimony, not yours. That’s why you ask open-ended questions and not leading ones. As with the opening statement, the strategic use of visuals can be effective, so long as they are not overwhelming to the point that the testimony behind them becomes white noise.
Personalizing the witness and setting their place in the story in the first few questions of the examination are key. You don’t want the jury wondering too long why the witness is here, because they may lose interest before your examination really gets started. Find something interesting and appealing about your witness to bring out right away on direct. Try to draw on experiences that your jury research shows are common in the community where the case is being tried. This is the same as character development in a movie or play. Movies where key characters are not sufficiently developed often leave us feeling flat. For example, if the case is being tried in a state where the jury pool is selected from a lot of small towns, if may be good to bring up that your witness lives in a small town too, or even a smaller town. Family, marriage and kids are also good topics to bring up. Maybe they have an interesting hobby or are working on an interesting project that will resonate with the people in the community from where the jury pool is chosen. You want to show the jury that your witnesses (both fact witness and experts alike) are just like them. Especially with your corporate representative or the inventor, if there is some family obligation or event that is being missed, you want to bring that out to show the jury how important this trial is to them. But like all things, overuse of personalization can detract from, rather than enhance, the persuasive effect of your direct examination. You and your witness don’t want to sound like you are pandering to the jury, so make the personalizing points quickly and efficiently, and then move on to the substance of the examination.
Expert testimony can be particularly dry and boring, so you need all the help you can get. There is nothing that will suck the dramatic life out of a patent jury trial more than an expert witness who gives hours of testimony from the stand without ever moving. The tendency here is to overuse visuals to spice up the examination, but as discussed, that can have its own drawbacks. One approach I have found effective is to give the expert a “teaching moment” on direct. As you and your expert are preparing the direct examination, try to incorporate a segment in which the expert gets up on her feet in front of the jury box and “teaches” the jury on an important issue. The expert can and should use all the techniques for persuasive and dramatic speaking that you should use -- hand gesturing, voice modulation, strategic movement, and more. If there are products involved that the expert can hold up to point out important features, so much the better. Sketching a drawing or two on an easel can be particularly effective, because, unlike speaking from a power point slide, drawing on an easel looks more extemporaneous and gives more of a class room feeling. And, its much more personal and engaging than if the expert is locked to the witness stand. Of course, before you consider doing any of this at trial, practice the routine extensively with your expert, and get permission from the Court during pre-trial or during the examination. Judges are always concerned, as they should be, about the jury’s personal space. However, you should have a good chance of having the request for a “teaching moment” granted so long as the highest respect for the Court, the proceedings, and the jurors is maintained.
b. Cross Examination: You Are The Star
Who can forget Tom Cruise’s “I want the truth” line during his cross examination of Jack Nicholson in A Few Good Men, or Joe Pesci’s “magic grits”, “tale of the tape”, and “crud-covered bushes” crosses in My Cousin Vinny? While these were just movies, art often accurately imitates real life, and these movies provide good examples of how to add drama and theater to your cross examinations. Remember, unlike direct examination where your witness is the star, on cross the roles are reversed -- Now, the spotlight is shining directly on you!!
We teach our young trial lawyers that “cross doesn’t have to be cross”, and that you must take your witnesses as you find them. But one thing is for sure, most jurors have seen trials dramatized on television and in the movies. As a result, they believe that its time to perk up when cross examination begins, because that’s when the action starts. Cross examination is a golden opportunity to add a little zest to your case, build momentum, and keep the jury focused. The bonus of an effective and memorable cross examination is two-fold: (1) it gives you important points to make in your closing argument; and (2) it will score you points with the jury, because they will be thinking -- “Hey, if I ever need a lawyer, I want one just like her.”
Just like in other parts of a trial, strategic movement, voice modulation and appropriate gesturing are keys to an effective cross. Don’t read the questions to the witness, and don’t be a slave to a script. You need to pay attention to the witness’ answers and be nimble, otherwise you may miss opportunities do make big points for your side, or miss a good opportunity for impeachment. Reading questions makes you look unconfident and unprepared -- and, it’s not engaging or dramatic. Tom Cruise and Joe Pesci didn’t do it, and neither should you.
Expert witnesses provide two good avenues for drama and theater on cross -- they often give non-responsive speeches in response to direct questions, and you can use their own visuals against them. Conventional wisdom suggests making a motion to strike a non-responsive answer, but I like to approach it differently. First, there is no guarantee the objection will be sustained, and some judges routinely overrule the objection because they like to let it all hang out. Second, many jurors think the lawyer has an advantage over the witness going into the cross, and making “non-responsive” objections makes you look weak and lacking in confidence. I much prefer the following approach: I will take responsibility for the question by suggesting that my question was unclear (even though it was simple and straight-forward), and then re-ask the same question. By the third time, the expert (or any witness for that matter) will usually come to a crossroads: he has to decide whether to give a responsive answer, or continue to evade the question. In the former case, you have gotten the answer you deserve, and you win “style” points with the jury for being dogged. In the latter case, the witness loses credibility, because he won’t answer a simple and straight-forward question. Either way, there is more theater and drama in this approach, because the jury is waiting to see what the witness is going to do at the crossroads.
Lastly, there is nothing better than using an expert’s own visuals against him. Typically, you will have a preview of the expert’s demonstrative exhibits the day before he takes the stand. Study them carefully to find holes and errors. There usually are some. Carefully prepare a cross examination that exposes the problems in the exhibits. A well-executed cross examination on an expert’s own trial exhibits is a dramatic way to expose weaknesses in the expert’s opinion, and give the jury the feeling that the expert is sloppy and poorly prepared. However, make sure that the error or omission in the expert’s exhibits is a significant one to cross examine on. Otherwise, you will be perceived as being petty, and you will be the one to lose points with the jury.
4. Closing Argument: “Buckles And Bows”
Now for the final act -- closing argument. Here’s where you let it all hang out, and can actually argue the evidence and tie things together. Some lawyers believe that juries decide cases in closing argument, because now the lawyers get to tell them why all the evidence they have been listening to is important. At the other end of the spectrum, some lawyers believe the closing has limited value, because the jury has already made up its mind, and is tired of listening. While I cannot say that either point of view is meritless, I’m more of the school that believes that a trial is an integrated series of performances -- each having its own purpose, and each vitally important to a successful outcome. Regardless of your school of thought, an effective closing argument can build the case to its final crescendo -- much like the plot turn or final scenes in a good Hollywood drama. Simply put, there is still plenty of theater and drama to be had in a good closing argument-- so don’t waste this last opportunity to connect with jurors and persuade.
First, many of the points discussed above that add drama and persuasiveness to your opening statement will have the same effect in closing argument. To summarize:
Second, you can try adding a little theater by re-counting a key piece of testimony in a dramatic way. Something like this: “Now, remember when Mr. Smith, XYZ’s President, testified? He took that witness stand (gesturing) and swore an oath to tell the truth. When P’s attorney was asking him questions, he told us that____________. But is that what really happened ladies and gentlemen? Is that how it really happened? Do you remember the cross examination, when I asked him __________. And how did he answer? How did he answer? He said ______________. That’s what really happened folks, that’s what really happened.” The same type of approach can be used with a key document or key physical exhibit. And, if you are really lucky, and have one or two particularly engaged jurors, you may get an appropriate nod or head shake to one of your rhetorical questions. It doesn’t get much better than that.
Finally, try blowing up the verdict form in either power point or on a board. You can also blow up key segments of the jury instructions. When you walk the jury through the evidence as it relates to each cause of action, guide them on how you believe the verdict form should be filled out. Even a simple verdict form in a patent case can confuse jurors, and you will win points for being a helpful advisor. Walking through the verdict form also adds an element of theater to the closing, because you can fill in the blanks for the jurors in a commanding voice (“No”, or “Yes”, or dollar amount as the case may be); and it gives jurors a sense of reality by putting before them the very instrument they must use to decide the case.
The signals you send through your speeches, examinations, and interactions with jurors (passion, apathy, persistence, nervousness, etc.) will inform the jury’s impression of you, your client, and your client’s case. These same signals will determine whether the jurors stick around to hear the whole story. It is difficult to “bring back” a juror who has either checked out completely, or has prematurely reached a verdict when only a small portion of the evidence is in. The best dramatic movies and plays touch us in a personal way, and build anticipation and momentum from the very beginning. A patent trial should also be about the people and the story, and the human experiences that go along with it.
Incorporating into your trial plan the approaches discussed in this article will help you execute your plan in a more engaging way, and add a sense of theater to the process that will entice the jury to stay tuned in through the final act.
1. As any experienced trial lawyer or jury consultant will tell you, the art and “science” of jury selection is a topic unto itself.