In the 6-3 ABC v. Aereo decision, the Supreme Court made a mess of copyright law and sowed uncertainty for technology companies by trying to plug a loophole. As Justice Scalia put it in his dissent, the Court put in place “an improvised standard (‘looks-like-cable-TV’) that will sow confusion for years to come.” This post presents an annotated e-brief style version of the opinion with my notes.
This post provides an annotated “e-brief” style hyperlinked copy of annotations on the Supreme Court decision in Alice Corp. v. CLS Bank. In the decision, the Court held that the claims were not patentable subject matter under 35 U.S.C. section 101 because they claimed abstract ideas, and did not include an inventive concept beyond the abstract idea.
I recommend Dragon voice recognition software for attorneys because it is so useful and so inexpensive ($101.03 today on Amazon for Premium version 12 for Windows). This blog post how I use dictation software for litigation, and show a video demonstration of how I get good results just using my laptop’s built-in microphone (no headset)!
Civil jurors in a Los Angeles court are using special iPads to review admitted trial exhibits during the trial. As I observed in a KPCC interview about iPads in court, I expect to see more iPads in coming years in the hands of judges, attorneys and jurors. The iPad is a great, easy-to-use tool for presenting and consuming content (which is exactly what happens in courts). This post includes a demonstration of a custom-made iPad app made to illustrate a patent.
My partner, Morgan Smith, has written many posts about iPads, and their advantages for attorneys. The iPad allows an attorney to easily control a slide presentation projected onto a courtroom screen for the judge or jury. Using an app such as TrialPad or Trial Director for iPad allows an attorney to present documents, deposition video and other evidence on the screen.
At the 2014 annual meeting of the San Francisco Intellectual Property Law Association, SFIPLA, a panel of judges shared their experiences and reflections on what works and what doesn’t work in a courtroom, and how to connect with juries and judges in patent trials and hearings.
To master the presentation of numbers, attorneys should learn some basic skills in Microsoft Excel, the computer program most often used in business for calculations. Numerical evidence in litigation often appears in Excel spreadsheets because witnesses often use Excel to record data and perform calculations. Attorneys who understand Excel will be able to obtain, manipulate and use this evidence to prove their case.
In this post, I’ll discuss some of why native Excel files are important, and provide a simplified video reenactment showing how Excel was used in a cross-examination of a witness in which the goal was to establish the results of an Excel calculation.
This post tells the story of quick turn-around graphics used in copyright litigation.
Arbitrations are a great forum for the use of the graphics, animations and trial technologies. Depending on the arbitrator(s)’ familiarity with technologies, attorneys can often submit briefs, exhibit lists and other critical documents electronically. Because arbitrations are usually held in small meeting rooms, the more you can digitize and display this material electronically, the better. This post walks you through steps that will help you prepare and succeed at arbitration.
The key to success in data-heavy litigation is developing a method to show the data in a way that effectively tells your story, ideally in a format that is interactive so the attorney can pick and choose which data they want to access and show at any particular time with any particular witness.
At Cogent Legal, making large data sets accessible and understandable is one of the most challenging aspects of what we do, and the most satisfying. In today’s post, I’ll review a recent case in which we faced this challenge and created an interactive interface for a large set of data about employee locations throughout a day.
Graphics can be an important part of a successful mediation. Most mediators prefer that the parties exchange briefs, since it allows the other side to know where you are coming from. Good graphics—not copied photos or handwritten charts—can be a powerful addition to your brief. Seeing professional graphics and animations can let the other side know how prepared you are for mediation and trial. Mediators often hear a different case everyday; you, on the other hand, have dealt with the same case for the last several years. To help the mediator understand the key facts in your case, consider including charts, chronologies and accident reconstruction scenes in your brief.
In my work at Cogent Legal, I have the opportunity to help attorneys develop their presentations and to create visuals that will help inform and persuade. In this post, I’ll share some insights that I’ve gathered from going to court myself and from helping other litigators get ready for court.
Trials are never, ever easy. They rarely go as planned, and they require the most amazing dexterity of knowing when to hold tight to your positions, and when to completely drop Plan A and go another course mid-trial as evidence comes in. The best trial attorneys do all the above on a regular basis, and the key is to always have backup plans and be able to think on your feet no matter what happens so you can keep going and not give up.
Tips for managing electronic data in litigation effectively, including capturing fields from email or other electronic source, and using those fields in privilege logs.
Looking through the Yahoo news feed yesterday, I came upon an article about a misleading graph used by a major news organization. With a little bit of additional research, I found many additional examples of news graphs and charts that are intentionally misleading, and I realized this is something that’s worth bringing to the attention of trial attorneys. If you are an attorney who deals with graphs and charts presented by opposing counsel, then understanding the basic ways in which these graphics can mislead is the foundation of being able to properly object and have them thrown out.
Additionally, these examples taken from the news can help you determine when one side’s advocacy verges on misleading a jury. Some commentators believe that attorneys have an ethical obligation not to use “truthiness” in visuals that unfairly advocate one point of view (see this article for a discussion, The Truthiness of Visual Evidence). I look at the issue from a more practical standpoint within the framework of the advocacy system: that is, the big risk for any attorneys who use misleading visuals is a potential loss of credibility from the jury when opposing counsel calls them out on the misleading nature of the graph.
When you copy text from a scanned Acrobat PDF, it often comes with hard returns. This post shows how to remove the hard returns using Microsoft Word.
Morgan C. Smith, president and founder of Cogent Legal, is an attorney who litigated complex, high-value cases for almost two decades.
Michael Kelleher is a registered patent attorney and former partner at the firm of Folger Levin & Kahn where he litigated IP and complex business cases for 16 years.
Andrew Walker is the Co-Executive Director of the Sacramento office, and an attorney with many years' experience in mock trial work.
Deep Athwal is Co-Executive Director in Sacramento, and also an attorney with extensive mock trial experience.
Please note: Cogent Legal provides litigation consulting services to attorneys. We are not a law firm and do not provide legal advice on any matters.
