Winning the Incomprehensible Patent Case - Part 1

CSI - Courtroom Sciences Inc

The case that jurors see is not the one that you see. It differs in at least two ways. First, for the jurors, the case is modified in a qualitative manner – it is different compared to the case seen by the litigator – in part because of jurors’ differing criteria of meaningfulness. These criteria arise from their perceptual and cognitive styles that assign  meaning to the various aspects of the case, based on what is significant to them as a function of their knowledge base, experience, biases and even temperament. Differences in meaningfulness between what the litigator sees and what jurors see translate to a morphing of the case into something else, involving different points of contention and varying dispositive elements.

Secondly, jurors truncate the case by slicing it down into fewer and simpler components compared to the case conceived by the litigator. This truncation is purely a function of the limits in information processing imposed by jurors, who lack the necessary technical acumen, memory faculties, and the time and resources (e.g., access to documents and other educational materials) to fully assimilate the issues within the fact scenario.

These two factors, “morphing” and “truncation”, mean that the unprepared litigator, left to his own devices, will be trying a different case than the one considered by the jury – a scary thought for the trial  attorney who cares about winning.

This multi-part article seeks to equip trial teams  in patent litigation with the strategic insights required to optimally present their cases, the present one having a focus primarily on the issue of comprehension. In this context, two fundamental elements of concern emerge. The first is the desirability of comprehension as a means of fulfilling the need of the communicator to know that the jury clearly understands the subject matter of interest. We will refer to this as the ‘inherent motive goal’.

The second issue of concern is entirely pragmatic and is exclusively linked to the goal of winning. Do we care that jurors truly understand the case or do we want them to process information in such a manner that leads them to a favorable trial outcome, regardless of whether such information processing is accurate or faithful to the actual characteristics of the underlying subject matter? We will refer to this concern as the ‘pragmatic goal’.

What is the goal?

As the patent litigation landscape continues to change, the technologies at issue tend to more and more frequently be inaccessible to jurors as content domains involve wireless, digital, software and similar technologies. Litigators struggle to deal with the question of how to tactically position points of contention that jurors do not – and in principle cannot – even understand.

One prevailing viewpoint is that in some cases, jurors will never understand elements of patent litigation arguments, no matter how lucid the graphics; how artful the explanations; and how long the case takes. Others adapt the position that jurors understand more in actual trials compared to research projects (“mock trials”) because of the extended time available in actual trials for the material to ‘sink in’.

However, even those with the latter perspective do not deny that in some cases there are facets of the evidence that jurors simply will never understand, at which point the obvious question arises, “What is the best approach for the litigator?” if all other avenues for inducing comprehension (inspired graphics, communicative experts, ingenious  metaphors) have been exhausted.

Before tackling this question, one might do well to ponder the issue of whether indeed the effective litigator should be striving to induce jurors to understand at all. The short answer to, “Is it necessary that jurors understand?” might arguably be, “No, it is necessary that they vote for you in the jury box.” In other words, comprehension is not the target – winning is.

This pragmatic approach has significant implications for trial preparation, because the emphasis on winning means that the concern for comprehension becomes displaced by two different issues:

• Which aspects or types of miscomprehension are harmful or militate against a favorable verdict?

• Which aspects or types of miscomprehension are in fact helpful and facilitate a favorable verdict?

One interesting aspect of studying jurors’ reactions to, and construal  of, IP cases is the extent to which their misinterpretations or other inaccurate perceptual foibles can actually be strategically beneficial.

Thus, one effective approach in preparing for trial is to re-design research presentations after an unsatisfactory result in a mock trial to identify an alternative strategic position that is more effective, causing the former “loser” to “win” (or at least do better) in the next iteration of research. This approach shines a bright light on the specific cognitive processes among jurors that are regulating the verdict outcome, so the processes can be experimentally manipulated.

In fact, some notable actual trial verdicts in IP cases have been successfully engineered in this way i.e., by “doing it over and over until you get it right” in the mock trials. Here, the research paradigms honed  in on areas of miscomprehension that were found to be resistant to remedy; when the miscomprehension proved to be unusually persistent, the pragmatic approach was adopted – that is, it was found to be far more effective to simply harness areas of miscomprehension that were beneficial, and counteract those that were harmful, in contrast to “educating the jury” so that they “understand it all”.

Here then, a different approach is conceptualized from the outset in which the litigator expressly accepts the notion that miscomprehension is an inevitable fact of life in patent litigation, and that maximizing comprehension among jurors is not necessarily the goal. Instead the goal is identifying the patterns of miscomprehension and working within those patterns to portray the case in the most tactically beneficial means.

Continues in part 2 next week.

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