Blog

Jury Selection in Intellectual Property Cases0

George Speckart, Ph.D. George Speckart, Ph.D.
gspeckart@courtroomsciences.com
15 April 2015

In the early days of patent litigation – when real inventors were suing corporations (Kearns v. Ford Motor Company) or corporations were suing each other (Procter & Gamble v. Kimberly Clark, a.k.a “diaper wars” or Dow v. Exxon Chemical) -- the scientific approach that was taken in developing juror profiles for patent cases was cumbersome and complex.  It was posited that two different sets of profile characteristics were needed to reliably identify plaintiff and defendant juror types:  Those who would tend to find (non)infringement and those who would tend to find (in)validity.  Moreover, it was believed that these two sets of juror profile characteristics would not necessarily have attributes or components in common with each other. 

Thus, for example, statistical analyses found that those in highly analytical job positions (lab technicians, machinists, engineers, architects) tended to find for defendants on infringement because they had highly refined perceptual or cognitive categories – they did not “lump things together” but rather used fine levels of differentiation between types or classifications of components, devices or processes, increasing the likelihood that things would look different from each other and therefore that the accused device would appear dissimilar to patent claim elements.  As another example, the analyses revealed that (past or current) workers from government offices tended to find for defendants on invalidity, since they were very aware of the cut corners and neglect that occurs in such government offices, and therefore skeptical of patent examiner performance.  Thus, markers or profile characteristics in the two domains of juror characteristics bore little resemblance or correspondence between each other, and two sets of such markers or characteristics needed to be used in tandem to implement an effective jury selection strategy. 

Eventually the challenge became how to integrate these two sets of profile characteristics into a useful jury selection strategy on the courtroom floor.  What happens, for instance, when a juror is “good” in one domain but not the other?  Does a litigant “bank” on one set of profile characteristics or the other, or does that party try to satisfy them both in selecting jurors for a case?

A Pragmatic Approach 

A pragmatic approach was surely required, and the basis for formulating such an approach rested on the fact that, for defendants at least, all that was needed was to win in one of the two domains – (non)infringement or (in)validity.  In other words, for defendants, finding a juror who was likely to render a favorable result in either one of the two domains was sufficient, since plaintiffs need to prevail in both to collect damages.  Thus, for example, having a government worker who believes that mistakes tend to be made in administrative offices would satisfy the necessary criteria, regardless of how he tended to come down on infringement issues, since an invalidity judgment by the jury would be a satisfactory outcome (defense verdict) overall.  Similar considerations applied for (non)infringement.  For purposes of discussion, we later refer to this initial framework for juror profiling as the “2-dimensional” approach. 

Nonetheless, the problem persisted for plaintiffs, who need to prevail in both domains:  A juror could not be a favorable one unless he/she would find both for infringement andagainst invalidity.  Thus, in our example, such a juror would have to be both trusting of government offices and hold more simplistic, less refined cognitive categories for judging the accused device vis a vis the patent claim elements.

Application of scientific methods

 The decision was made to look for commonalities across dozens of IP cases from California to Delaware, taking a psychological measurement approach using a “scorched earth” procedure:  By compiling dozens of IP cases across the country, significant progress was realized that had initially been sought in completing and refining juror profile characteristics using smaller, more localized databases.  We say “scorched earth” since no assumptions were made regarding profile characteristics -- all of the IP cases were lumped together and treated like any other case, using a generalized approach wherein all possible profile characteristics were analyzed as though the cases had come from any category (product liability, employment, toxic tort, antitrust, etc.). 

 Analyses were also guided by information gleaned from Focus Groups.  Interestingly, comments from jurors regarding their problem-solving methodologies in patent litigation revealed that they were generally construing these cases as misappropriation casesessentially corporate theft – and the question posed by jurors was essentially “Did they (defendants) steal it (the accused device)”?  Decisions in this regard were driven mostly by perceptions of conduct issues – for example, if defendants had acted as though they wanted or needed the technology, and/or if their conduct was sinister or malevolent in some way, the inference would be made that the technology must have not only been valuable (and therefore the patent must be valid) but also that the defendants had likely needed, and managed to get their hands on the intellectual property (and therefore that the patent had been infringed).   So jurors were boiling down IP disputes into unidimensional issues connected with misappropriation or corporate theft, making inferences connected with (in)validity and (non)infringement based on the manner in which the litigants behaved in connection with the accused technology

What had previously been two distinct dimensions of the verdict decision – (in)validity and (non)infringement – was therefore merging into one (misappropriation).  Behavioral, conduct and other aspects of the case fact scenario – not the least of which was witness performance, especially in the nonverbal realm (facial expressions, eye contact, fidgeting etc.) – were being used by jurors to ascertain the likelihood of misappropriation, and from there, other perceptions and judgments of the case (infringement, invalidity) subsequently fell in line with those judgments.  The more likely theft seemed to be, the more likely it was that the plaintiff’s theory of the case was true, whereas the less likely theft seemed to be, the more likely it was that defendant’s theory of the case was true.

While this “one-dimensional” view of how IP cases are problem-solved by jurors held appeal, and provided considerable explanatory power in reconciling verdict results rendered by jurors in the research database, it was still not complete.  Indeed there were exceptions, such as cases where perceptions of inequitable conduct rendered patents invalid (especially in the days before this decision was relegated to the bench); alternatively, on some occasions, on-sale bar and inventorship arguments, when effective, would often carry the day for defendants as well (more so than obviousness, anticipation, indefiniteness, etc.).  Decisions regulated by these exceptions had the effect of superseding the “theft” issue in selected cases.  

Nonetheless, most IP cases were still being construed in terms of theft, and therefore, in searching for precursors (predictors) of beliefs pertaining to misappropriation, the search was on – what kinds of juror characteristics make it more likely that a person will find theft?  Identifying these characteristics would fill a sizeable gap in juror profiling for IP cases that had previously been unaddressed in jury selection strategy. 

Cynicism 

To large extent, we already had our answer from other cases.  Cynicism, as a stable temperament dimension, refers to a person’s tendency to view the world as inherently predatory, sinister or malevolent (it should not be confused with skepticism, which is defined as a person’s need for unambiguous proof of a statement, principle or proposition).  People with above average levels of cynicism are more likely to view corporate conduct as oriented toward targeting less powerful businesses or seizing an opportunity to steal something of value. 

 More generally, if there is a fact pattern that suggests the possibility of greedy or rapacious conduct, a cynical person will relentlessly adhere to an ominous interpretation of it.  Thus people with high levels of cynicism tend to “resonate” with a complaint, and are found in disproportionately high percentages among plaintiff jurors across a wide variety of cases, including antitrust, fraud, employment cases, toxic cases – and intellectual property.  In short, one of the leading predictors of plaintiff verdicts and high damages that had been noted in other types of cases was now being confirmed in patent cases as well – because these cases were being construed as misappropriation (theft) disputes.

Completing the Picture

 Elements of the initial research using the 2-dimensional framework described at the outset were considered for their applicability in finalizing juror profiles.  It was considered particularly important to account for cognitive sophistication, namely the extent to which jurors used fine detail in categorizing perceptual experiences – a juror characteristic that had been identified early in the game as being highly relevant to IP litigation.  Psychologists refer to this cognitive trait generally as “information need:”  That is, how much data, evidence and information do people generally need in order to make a decision or come to a conclusion?  

Prior research in a number of different types of cases has revealed that plaintiff jurors tend to be low in information need, and to reach decisions comparatively quickly, resulting in more extreme or strongly committed response patterns.  This tendency exists not only in their reactions to Juror Questionnaire items (they tend to check the endpoints of measurement scale items) but also in their reactions to the case itself (which explains why such individuals tend to “shut down” during the plaintiff case-in-chief and adhere to decisions made in the early phases of trial, before the defendant gets a chance to put on its case).   

Defense jurors, on the other hand, typically give more neutral or equivocal (“It depends…”) type responses, and are less committed to their opinions and attitudes, because they tend to need more information before they can finalize a firm decision or position on a matter.  These are also the types of jurors that are still listening when the defense case-in-chief begins later, midway through trial – because they need more information.

 Using specially designed measurements of cynicism and information need in Supplemental Juror Questionnaires during jury selection has demonstrably improved outcomes in cases.  In a sample of fourteen trials in the Eastern Division of Texas, working for defendants, seven defense verdicts were obtained, with average damages of $1.2 million for the group as a whole.  It is important to note, however, that specific items need to be built into the Supplemental Juror Questionnaires in advance in order to effectively use research results associated with the previously described analyses.  This requires a proactive approach well before the trial date in formulating and advocating Juror Questionnaire items with the Court and opposing counsel.

Conclusion

At the outset it was stated that initial cases were considered in which inventors sued defendants or alternatively, corporations were suing corporations.  Later cases involved NPE’s (non-practicing entities, or “patent trolls”) as plaintiffs – but this shift did not have an effect on the previously considered juror profile dynamic related to misappropriation.  Plaintiff jurors tended to interpret the cases in terms of misappropriation even when the plaintiff itself was not an inventor or manufacturer – at least until very recently. 

In small, rural venues in which patent cases have been repeatedly filed over a period of decades by “tolls,” the populace has started to become aware of the trend and the result has been a growing skepticism toward NPE’s that was previously non-existent.  This growing skepticism in the population in turn has further altered the dynamic in identifying effective juror profiles, such that individuals who are wary of excessive litigation become stronger defense jurors.  By the same token, the flip side of the coin is that some people (plaintiff jurors) believe that “litigation is necessary to keep corporations honest.”

Thus, sociological and historical changes in the litigation arena and society more generally will continue to shape and alter juror profiling characteristics.  It is therefore necessary to continually adjust juror profiling databases through ongoing research efforts in order to have a maximally effective jury selection strategy – and associated measurement instruments in the form of Supplemental Juror Questionnaires.

Courtroom Sciences, Inc. provides litigation support services to outside counsel and corporate legal departments. CSI offers a comprehensive suite of services which assists legal counsels in managing the lifecycle of litigation. Call or email us today for more information.


The Reptile Cometh…. Prevent the Psychological Manipulation

Courtroom Sciences, Inc. Courtroom Sciences, Inc.
info@courtroomsciences.com
12 February 2015

On February 19th and 20th the founders of the Plaintiff’s Reptile movement will be holding a seminar in Dallas TX, teaching plaintiffs to employ a new level of sophisticated psychological manipulation on defense counsel, witnesses, and jurors,  Reptilian tactics have produced plaintiff verdicts and settlements totaling more than $6.2 billion since 2009.  Called “the greatest advance in the plaintiff bar in the last 100 years,” Reptile tactics have proven a substantial threat across a wide swath of litigation practice areas: med-mal, nursing home, transportation (train, trucking and delivery), product liability, construction, employment, and pharmaceuticals.  Much of the Reptile’s success derives from the plaintiff’s focus upon extra-legal questioning related to “safety rules” and “community endangerment,” along with the strategic deployment of psychological and communicative manipulation techniques.  The extra-legal focus and psychological manipulation by Reptile trained attorneys typically exceeds the purview and training of most defense attorneys.  For an extensive discussion of the Reptile movement, we would encourage you to review our articles.

The Reptile’s growing presence within DFW means that the Defense community must be prepared to face the challenges presented by Reptile attorneys, particularly at the deposition stage.  The Reptile’s success relies heavily on an attorney’s ability to psychologically destabilize and emotionally or cognitively discredit witnesses during video recorded depositions.  Discrediting a witness, through either the admission of negligence or poor communication/behavior captured on video, increases settlement leverage for the Reptile attorney and ensures damaging testimony at trial.  Even if a witness receives training in preparation of trial testimony, the witness will likely face impeachment clips which will raise credibility questions for jurors.  CSI is the only litigation consulting firm with a proven scientific methodology that IS preventing Reptile tactics from taking hold. 

Although the Reptile attorney may be employing psychologically manipulative questioning, we firmly believe defendants have the advantage in defeating the Reptile.  While the Plaintiff’s bar has raised the level of sophistication in their practice, the Defense Bar must answer in equal or greater sophistication.  Gone are the days of a lawyer training a witness the day before a deposition or simply telling the witness to “listen to the question,” “say as little as possible,” and “remain polite.”  Training a witness to withstand a skillful Reptile deposition requires a sophisticated operant conditioning system to address cognitive, emotional, and behavioral challenges, in addition to case related questioning.  Your witness needs to be able to answer:

  • “Is safety your top priority?”

  • “Do you follow safety rules when performing your job?”

  • “You would agree with me that you would never want to needlessly endanger others, right?

  • “If you could avoid a dangerous decision you should always do so, correct?”

  • “What authoritative texts, sources, or journals do you use in your position?”

Virtually every witness will answer “Yes” to these questions without understanding the strategic nature of the questioning.  If you or your colleagues answered “yes” to these questions then we would invite you to contact us for a CLE presentation addressing the dangers and offering suggestions to defeat Reptile questioning at the deposition stage.  Answering “yes” to these questions puts your witness’ testimony in significant jeopardy, and begins to lay the foundation for the Reptile at trial.

In addition to training witnesses, we also conduct seminars for defense attorneys, insurance companies, and large corporations who may be exposed to these litigation tactics.  Depending upon where we are in the country, our audience will have a variety of levels of experience and knowledge about Reptile tactics.  Corporations and defense attorneys continue to lack an awareness of the Reptile movement or an understanding of the movement’s techniques.  Prevent the spread of the Reptile movement.  If your firm or client would benefit from learning more about Reptile tactics, then we would be happy to schedule a CLE or training seminar.  If you have a witness who may benefit from our training system or a case that may be vulnerable to Reptile tactics then please contact us to discuss the case issues. 


Recent Articles

Rehabilitating the Defendant in the Reptilian Era: A Neurocognitive Approach - Cross-examination of defendant witnesses often represents the most stressful, vulnerable time of a trial for both witnes...

Blog

Jury Selection in Intellectual Property Cases
It is necessary to implement and adjust ongoing research efforts through juror profiling and supplemental jury questionaires in order to have a maximally effective jury selection strategy.

News

Outsmarting the Trucking Reptile at Trial - The DRI Trucking Law Committee is presenting an advanced workshop led by the foremost trucking defense trial lawyers and world-renowned Reptile Expert Bill Kanasky, Jr., Ph.D., of Courtroom Sciences, Inc.