The Human Elements of Persuasion

By Rob Duboff and Nancy Neufer

As originally published in Law 360.

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Law360, New York (October 23, 2008) — With the focus on presidential politics recently and the challenges facing the presidential candidates trying to get their campaign messages through to the voting public, we’re reminded of the difficulties intellectual property litigators face in communicating with jurors.

Both must deal in topics that are highly complicated and unfamiliar to most Americans – e.g., the inner workings of electronic equipment in a patent dispute, or, for McCain and Obama, the complex economic mess the world is now struggling to understand. Yet both litigators and politicians have to communicate about these types of issues in sound bites that are meaningful to the masses – the people who ultimately cast the votes, whether in the voting booth or the jury room. Politicians have learned a lot about using sound bites effectively to communicate with voters.

Lawyers have adopted the use of broad themes that can be useful, but still need to strive for punchier lines that will resonate with jurors.

We hear a lot in the media about voters trying to assess who has the best “judgment,” or demonstrates the appropriate “temperament” in order to make their decision about whether Obama or McCain would be the better choice for president.

People rely on these types of cues to make decisions, particularly when they feel ill-equipped or unmotivated to understand the more complex issues that are intertwined with and impacted by their decision.

In intellectual property cases, jurors gravitate toward similar “gut-check” issues to help them make decisions about who should prevail in court. Despite the detailed analytical testimony offered to them throughout the trial, jurors often focus on issues lawyers would perceive to be tangential at best, if not irrelevant to the legal decision to be made.

Our work with trial teams in intellectual property cases focuses on identifying which questions come up for jurors that need to be addressed to avoid a misimpression, and or capitalized upon to enhance the overall effectiveness of the communications strategy employed in a complex case.

Developing an understanding of the jury perspective is particularly important in cases involving allegations of inequitable conduct (although they are increasingly decided by trial judges to avoid potential negative influences on jurors’ perceptions of the parties) or willful infringement.

These contentions bring with them the types of evidence and arguments that jurors find easier to assess than complex claim language.

Since most jurors feel much more comfortable judging someone’s behavior rather than the technical specifications of an invention, the evidence concerning inequitable conduct and/or willful infringement can sometimes be given a lot more weight, perhaps inappropriately so, and thus litigators are wise to give them more attention than they might first believe these issues deserve based only on the legal merits of the issue.

So, how does the intellectual property litigator go about addressing the behavioral issues in their case and crafting messages that are most favorable to his or her client? Like their political counterparts striving to persuade voters, litigators must develop a credible story of their case that illustrates their client’s intent, motivations and actions to provide a framework for the jurors to rely on when evaluating the more complex and perhaps less interesting details of the case.

Establishing Credibility

In an intellectual property case, credibility is often achieved by a combination of factors, including being able to communicate the complex ideas and issues of the case in a clear and concise fashion. Jurors have to wrestle with complicated and unfamiliar topics, from PTO rules, to learning about the various parts of a patent, to trying to understand detailed claim language.

The trial team that makes this learning process most easy and comfortable for the jurors has a distinct advantage because clear communication will be seen as more trustworthy. Credibility is also achieved by telling a consistent story that illustrates that the contemporaneous human behaviors of the people involved in the dispute do not conflict with the conclusion you want jurors to draw from their review of the technical evidence. Jurors in an intellectual property case will give significant weight to what they might perceive to be corroborating evidence of which side’s story might be more reliable, because most jurors lack confidence in their ability to discern whether the claim language in a patent covers the accused product or if the prior art should invalidate that patent.

For example, side issues can take center stage when a juror is not sure what to make of the technical evidence. What may seem like a trivial fact to the trial lawyers on both sides can be a persuasive indicator to jurors trying to determine whether an accused infringer can be trusted or not.

In a recent case involving allegations that a small trucking company stole copyrighted software from one of its vendors, jurors were told that the defendant had shared a copy of the software developed by the vendor with a local computer science professor so that he could see the type of system they were using to store information.

The company was considering hiring the professor to develop the next generation of the system the company wanted to use in the future, but both the professor and the company quickly realized that having the professor design the new system was not going to be a viable option.

In fact, this decision was reached before the professor ever looked at the way the old system worked and he never had any information about the software code that made that system possible.

In the mock jury research we conducted, jurors who were having trouble deciding whether the defendant had done anything wrong latched onto the fact that the copyrighted software had been given to the professor.

They concluded that this was reckless and irresponsible and motivated some jurors to doubt the credibility of the accused infringer who otherwise had strong evidence that the software had not been copied in any way and thus the copyright holder’s right had not been violated.

By learning that jurors might be distracted by the story of the professor, the accused infringer knew to avoid mentioning this extraneous detail and/or if it came into evidence, it would be necessary to put more context around this previously believed irrelevant aspect of the case to avoid jurors drawing inaccurate conclusions from these facts.

Hearing that the defendant had shared the program with a potential consultant had motivated jurors to distrust the defendant and question its credibility on the other more important issues of whether the copyrighted software was actually used inappropriately and/or copied.

Avoiding that potential hit to its credibility allowed the defendant to shore up its case and preserve the clarity of its story to the jurors.

Emphasizing Motivations

As jurors sit in the jury box and try to make sense of technical knowledge they are acquiring, they are often striving to figure out what has motivated the parties to do what they’ve done and how to connect those motives to the decisions of infringement and validity that have to be made.

For the patent holder, jurors try to understand at a high level why the case was really filed. Have the defendants actually stolen the technology covered by the patents or, is the plaintiff perceived to be using its patents to hinder competition in the marketplace?

In our research in medical device cases, jurors often demonstrate reluctance to find that medical advancements infringe on patents for what is arguably “outdated” technology.

They worry that finding that the product offering innovation has infringed another’s patent could harm the public by limiting access to that product and stifle future medical advancements.

When presented with evidence that the accused product is actively in use, while the patented invention is not available in a commercial product, they also rely on these facts to conclude that the products must be different from the patent claims in a meaningful way, or else there would be a product on the market that embodies those claims.

A defendant in a case like this should ensure that it offers fact witnesses to corroborate the story of the defendants’ goal of advancing medicine and improving quality of life for suffering patients as a context for its own independent development story.

If at all possible, these witnesses need to provide a timeline of the advancement of technology in the field to illustrate that the invention covered by the original patent is no longer relevant, creating the impression that the patent holder is motivated to over-reach in claiming that its patent covers newer technology.

While not always easy to get into evidence, details along these line go straight to the questions that jurors will be asking themselves about the motivations of the parties in this type of dispute.

From the patent holder’s perspective, there needs to be a careful explanation of why compensation is warranted for the use of their patented technology in future generations and every effort should be made to limit the ability of their opponent to talk about their motives to create technological advances and/or to illustrate how the accused product is
unique in the marketplace.

Plaintiff witnesses need to focus on the story of how their inventions made all future success possible and, as a result, their contribution should continue to be rewarded.

Showcasing Intent

As jurors evaluate the evidence and arguments in any case, they are assessing the intentions of the parties as a measure of their “guilt” or “innocence.” But, an understanding of the intentions of the parties is particularly important in cases involving willful infringement.

For the accused infringer, the discussion of intent often needs to focus on explaining how and why their invention was designed to solve different problems in different ways from the patented invention. The more distant that story can be from knowledge of the patented technology, the better.

In contrast, the patent holder should try to capitalize on any evidence that the people who developed the accused product did not respect the contribution made by the patents – patents deemed worthy by the USPTO – and treated them casually – so much so that they copied core elements of these design.

We saw the latter phenomenon in a complex trial involving telecommunications technology; jurors were presented with compelling, yet deadly boring and complicated, evidence that the patents in suit did not cover the accused products.

It was difficult for them to be sure which side to believe. While the technical presentations created doubt about the plaintiffs’ claims, in the end, it was the evidence of intent that carried the day.

Little time was spent on it in trial, but jurors heard evidence that the inventors of the accused products were aware of the patents in-suit, but felt that they did not describe a worthwhile invention.

Defense witnesses made this claim despite the fact that copies of the patents were in their files while their invention was being designed. From their perspective, they had looked at the patents and concluded they had nothing useful to offer.

In contrast, the patent holder successfully communicated that their patents covered technology that was the foundation of a new area in telecommunications technology and was clearly relied on when the accused invention was developed because copies of the patents were found in the inventors’ files.

Jurors perceived that the defendant’s fact witnesses conveyed a dismissive attitude toward the contribution made by the patents as a means of hiding their true intent which was to copy the patented technology.

From the jurors’ perspective, they didn’t need to sift through the defendant’s complicated technical analyses (despite how compelling both sides experts and attorneys perceived them to be); clearly the accused products were developed by stealing the patented technology – what else would explain the presence of the patents in the designers’ files unless they valued the contribution made by the patents and intended to copy it?

Focusing on the Human Elements – Whether in the Political or Legal Arena – Leads to Victory

While the presidential candidates continue to strive to establish credibility and explain their motivations and intentions for their personal brand as a candidate, litigators need to remember to do the same things for their clients in the courtroom.

Both attorneys and politicians need to focus on humanizing, as well as simplifying their story to be successful in achieving their objectives. In politics, the candidate who voters report they’d most like to have a beer with often prevails.

It’s not quite the same in the courtroom, but it is similar in that if the client and attorney have connected with jurors on a human level – in their case offering words, analogies and themes that resonate – they will be much more likely to get the votes they need in the jury room.

Original article.

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