Ten Lessons From Pre-Trial Research
Intellectual property cases pose special
challenges – but also special opportunities –
for both attorneys and jurors. The material is
typically complex, and often completely new to
the jurors. Attorneys and witnesses are called
upon to teach this material in a way that is
clear, engaging and persuasive. While this can
be daunting, jurors’ lack of familiarity with
the material also provides an opportunity to
shape their attitudes without having to overcome
many strong pre-existing beliefs about the
topics at hand.
In over 20 years of conducting
pre-trial research in intellectual property
cases, we have seen many commonalities in how
mock jurors and focus group respondents across
the country think about such cases. We have
learned a great deal from these research
activities, and share some of those lessons with
you here.
1. Context
Matters To Jurors
In mock trials and other pre-trial research,
mock jurors often focus on how the actions of
each party fit into historical and industry
context. While jurors are supposed to decide a
case based on the facts presented to them, the
most common questions that we hear have to do
with context – What were other companies doing
at the same time? How have the parties dealt
with other companies, compared to how they are
dealing with each other? Did others take
licenses and if so, how much did they pay for
them? Any contextual information you can
present to jurors that will bolster your case is
likely to be very powerful.
2. A Picture Is
Worth A Thousand Words
In
intellectual property cases -- perhaps more than
most others -- demonstratives can have a
tremendous impact. Mock jurors cite
demonstratives as helping them understand the
technology at hand, in ways that words alone
could not. People react most positively to
demonstratives that are uncluttered,
well-labeled, and accompanied by a simple and
clear narrative.
3. Simple Clear Ideas, Repeated
Often, Will Always Work In Your Favor
Attorneys sometimes worry that they are
oversimplifying their case, or repeating key
themes or points too often. In intellectual
property cases, over-simplification is rarely a
problem. The material is new, jurors are
learning it primarily by ear (which makes it
harder to take in), and it is complex. The more
you can simplify it, the better jurors will
understand your case. And, the more often they
hear your themes, the better they will
understand and like them.
Along the same lines, simple analogies work
well, both in presenting your themes and in
teaching your scientific material. While jurors
may have a hard time understanding complex
scientific and technical details, they latch on
to simple themes around issues of fairness, as
well as simple analogies that present parallels
from daily life.
4. Arguments And
Themes: Quality Beats Quantity
A
few powerful arguments can carry the day. While
it is sometimes tempting to use every possible
argument in your case, jurors may perceive this
as a strategy of desperation. We have heard
mock jurors suggest that one party is “throwing
out everything they have” to camouflage the
weakness of its case. Jurors are likely to
respond better to a few well-chosen strong
arguments than to a myriad of weaker ones.
It
is also useful to remember that even a complex
intellectual property case should revolve around
no more than five key themes. These themes will
provide an organizing rubric for jurors, and
allow them to understand and remember the
details of the case within this framework.
5. Jurors Take
The Burden Of Proof Seriously
Frequently, we hear mock jurors say, “I believe
the patent was infringed, but I don’t think they
proved it.” Even in mock trials – and
presumably, far more in actual trials – jurors
attend carefully to the burdens of proof and
hold each party to its burden. They are able to
distinguish between “preponderance of the
evidence” and “clear and convincing evidence,”
and apply them correctly and appropriately.
6. The Idea Of
Patent Protection Is Viewed Favorably
Most mock jurors express positive sentiments
about the general concept of patent protection.
Typically, very strong majorities (75% or more)
agree that patents are important for protecting
inventors’ rights and encouraging new
inventions. Similarly, very high numbers
disagree that patents are old-fashioned
monopolies
To
the extent that we hear anti-patent sentiment,
it tends to focus on the pharmaceutical
industry. Some, though not most, people feel
that drug companies have a moral and social
responsibility to make new drugs available and
keep costs down. They contrast this industry
with other industries, where they do not see a
moral imperative to share intellectual property.
7. The
Presumption Of Validity Is Powerful
Most mock jurors and other research participants
rely on the presumption of validity. People
generally assume that the Patent and Trademark
Office has conducted a careful review of the
patent application, and give much weight to this
review, though they acknowledge the possibility
that the PTO can “get it wrong.”
In
some of our research activities, participants
have focused on the fact that the patent is a
government-issued document, and have even
suggested that such a document cannot be
invalidated by ordinary citizens.
8. Jurors Expect
Professional Behavior
While mock
jurors (and presumably, real jurors) know that a
trial is an adversarial situation, they expect
attorneys and witnesses to conduct themselves
appropriately and professionally. Personal
attacks or “digs” at opposing counsel or
witnesses are likely to backfire; jurors are
likely to hold them against whoever is advancing
them.
9. Jurors Look For Ethical Behavior,
But Accept “Business Realities” In A Competitive
Market
At the same
time that jurors in intellectual property cases
are comparing technical specifications of
multiple products, they are also focusing on
questions of how fairly or unfairly each party
behaved in their dealings with each other.
Especially when the technology is unfamiliar
and/or difficult to understand, issues of
fairness can predominate in jury
deliberations.
Jurors look to businesses to be fair and ethical
in their dealings. However, we have observed
that mock jurors are also quite pragmatic about
each company’s drive to advance its own
self-interest, particularly in highly
competitive marketplaces. Actions that may seem
problematic at first glance – such as your
client continuing to do business with the
company that it has just sued – are often
understood by mock jurors as simply being
“business realities.” Of course, this
pragmatism will only go so far; once jurors
perceive a business as having crossed an ethical
line, they are considerably less forgiving.
10. Nothing Beats
A “Dry Run” For Enhanced Trial Preparation
One of the most
important lessons that we have learned from
pre-trial research in intellectual property
cases is how valuable a tool such research can
be. Focus groups and mock trials, in
particular, allow attorneys to test both their
themes and their strategies for teaching the
technology at issue. We have seen attorneys at
trial adopt analogies or explanations offered by
research participants, often to great effect.
Listening to mock jurors explain technologies to
each other opens up new ways of explaining your
complex case to your jury. Listening to research
participants grapple with new material,
deliberate on the arguments, and evaluate your
demonstratives is the next best thing to getting
a “dry run” with your actual jury before trial.
