THE FALSE DICHOTOMY IN COMPLEX LITIGATION

Mike ran his fingers through his thinning grey hair. “I have to explain the patent and the claims in opening, or the jury won’t know what our case is about.”

“That won’t work,” said Eileen, Mike’s co-counsel, as she shook her head. “You have to tell our story first; they won’t understand the patent stuff anyway, so we might as well leave that for the experts.”

The trial team began to take sides, some feeling that without an explanation of the patent the jury wouldn’t have any basis for understanding the claims, while others agreed with Eileen that in order to win the jurors’ hearts and minds the narrative needed to take priority. They turned to ask what I thought, their frustration with the situation clear.

It would be easy to say, “It depends.” However, the truth is that the choice is a false dichotomy. That’s the logical fallacy at work here, and people love the black and whiteness of it. However, as Obi Wan Kenobi said in Star Wars episode III, “Only a Sith deals in absolutes.” That holds true here as well.

The issue of narrative versus technical applies to any case that involves complex concepts that are unfamiliar to a jury. It could be a patent case, it could involve securities, or it could be a toxic tort. No matter what it is, the jury needs a framework to make sense of the case even though the underlying concepts and technology may be completely unfamiliar.

If you think of your case as a puzzle, in opening you need to show the jurors the cover picture so that as they get the evidence during trial they understand what the image is that the “pieces” have to make. Starting your patent case by explaining the claim language is like handing the jurors random puzzle pieces and hoping they’ll know what to do with them. Avoiding the claim language altogether (as some suggest because, “The jury will never understand it anyway…”) is also a mistake because then you’re leaving out some of the important jig saw pieces they’ll need to finish the puzzle’s picture.

So what do you do?

1. The jury only has to understand enough about the technology to be an advocate for you in deliberations. Overloading them with too many facts and explanations can crowd out the important data, and make it hard for them to find anything useful in their notes. Condense down the information so that it makes sense without cluttering up their minds with minutia that doesn’t matter.

2. Select a point within your opening to introduce the key language into your narrative so that the jury can see how this fits into your story and why it’s important.

In mock juries we see what happens when this strategy has been pushed too far one way or the other. If all the jury receives is the story, they may not be able to make sense of the verdict form, or understand how the questions they have to answer relate to what they’ve heard. While without the context surrounding the technical issues, jurors reach into their own experience of the world and make decisions that can appear ridiculous, harmful, or simply dumb.

An example of this was shown in a breach of contract case involving construction where the solution propounded by a mock juror was, “It had to be a material breach. The building was made of cement, and cement is a material.”

While there’s an automatic reaction to blame this kind of misunderstanding on the juror, it’s the attorney’s job to make sure that this kind of confusion doesn’t occur, and to put the narrative structure in place that will include both the human story and the basic tech explanation.

So the real question the trial team should be asking is not, “Should opening include the claims language or just be about the narrative?” but, “Where does the tutorial fit best in our story?”