Working with Juries in U.S. Intellectual Property Litigation
Unofficial English translation
April 2009
This article explains the role of a jury in resolving U.S. intellectual property disputes, including patent and trademark litigation. The article focuses on the skills that American lawyers must develop to effectively present a case to a jury. It will also explore the role of the jury from a lawyer’s point of view, including how lawyers make strategic decisions related to the jurors, how lawyers package issues for presentation to jurors, and special considerations for lawyers handling a jury trial that involves intellectual property issues. There is no guarantee that a judge in a complex intellectual property case will have a technical background or any expertise with intellectual property issues. Similarly, it is even less likely that the jurors who will ultimately decide the issues have any knowledge or experience relevant to the case.
The strategic considerations related to a jury trial differ greatly from those related to a bench trial. Most important, the lawyers presenting the case to a jury must simplify the case and assume that the jurors have no knowledge of the applicable law or technical matters that are relevant to the case.
In the U.S., jurors are responsible for evaluating all of the facts presented and will decide the ultimate issue of infringement. In making its decision, the jury will evaluate the credibility of each witness and the evidence presented. Attorneys must therefore plan appropriately so that the presentation of evidence and witness testimony will support their case.
The selection of a jury, also known as “voir dire,” takes place at the very beginning of a trial. Most adults living in the geographic district around the court are eligible for jury service. Residents of the jurisdiction in which the trial will take place are randomly selected for jury duty, typically from voter registration and/or driver’s license records. The court will summon a number of these potential jurors to the courthouse when it is time to select a jury for a case. Potential jurors for each particular case are selected out of this group, known as the “jury pool.” People summoned to jury duty must report to the courthouse on the designated date or contact the court to postpone their required jury service to a future date. Failure to attend jury duty is a crime and may result in a fine.
Lawyers and the judge seek to select a group of fair and impartial jurors from the jury pool. It is important for the lawyers and the judge to determine whether any of the potential jurors have any bias that would prevent them from deciding the case fairly. Potential jurors typically complete a questionnaire providing personal background information, including prior jury or litigation experience. During voir dire, the judge and/or lawyers from both parties may question the potential jurors to select a group of twelve jurors (with several alternate jurors) to serve on the jury. The ability to question potential jurors directly differs by judge and jurisdiction. Some judges will question the jurors, while other judges will allow the lawyers to ask questions. Jurors may also be questioned by the judge or lawyers on a variety of matters, including very personal matters. Lawyers will not only consider the actual answers provided by each potential juror, but also will analyze nonverbal responses during the voir dire process, in order to assess whether the juror will be an appropriate choice for the jury panel.
The process tends to focus less on the selection of jurors and more on the rejection of certain potential jurors who may have a bias against one of the parties. Lawyers have the ability to challenge the selection of a particular juror for cause, such as a particular bias that would prevent the potential juror from reaching a fair and impartial decision on the outcome of the case. Lawyers also have a limited number of peremptory challenges, which allow a lawyer to reject a potential juror without articulating a specific reason. In addition to selecting the jury itself, the lawyers will also choose several alternate jurors to join the jury pool. These alternate jurors will observe the same parts of the trial as the impaneled jury and can take the place of a juror, if necessary.
Although the jury selection itself typically takes place on the first day of a trial, the preparation necessary to effectively present a case to a jury begins many months before the trial. Lawyers typically conduct and review extensive research on the jurisdiction to learn as much about the potential jury pool as possible.
Lawyers also begin drafting jury instructions well before the start of a jury trial. Jury instructions are the guidelines given to the jury at the end of the trial to help jurors make a final decision. Preparing jury instructions is useful to help lawyers focus the concepts and themes that the jury needs to understand. Form jury instructions are available as a starting point for lawyers in many jurisdictions and for many types of intellectual property matters. Lawyers can supplement and revise these instructions, as necessary, depending on the case.
During the discovery period, lawyers must carefully prepare witnesses for depositions, especially if the depositions will be videotaped for use at trial. It is important that these deposition witnesses effectively communicate in a manner that the jury will understand, even though a jury is not present at each deposition.
Lawyers work carefully to prepare trial witnesses so that the witnesses’ best images are presented to the jury. The best witnesses are good teachers who can help the jury understand the complex issues in the case. Many witnesses, particularly in complex intellectual property litigation, are experts in their fields but may not have experience teaching or explaining their expertise to others who have little to no background knowledge in the relevant field. Lawyers must prepare the witnesses to provide the necessary foundation to the jury so that each juror can understand the issues in the case. For example, the lawyers will work with the witness to make sure that his or her testimony and presentation is professional, simple, clear, and concise. In addition, demonstrative exhibits may be more prevalent in a jury trial to assist the jury. Witnesses can use demonstrative evidence, including time lines and animated tutorial presentations, to explain important issues to the jurors.
The lawyers must focus their trial strategy on how to best present evidence to the jury. At the start of the trial, lawyers must realize that the jurors are not familiar with the case. It may be difficult to effectively present complex technical information to a jury. With good preparation, however, including clear demonstrative exhibits and witness testimony, lawyers can successfully communicate with a jury. Often times, lawyers hire jury consultants to assist with this preparation.
Jury consultants frequently help lawyers prepare for complex intellectual property litigation. Consultants assist lawyers with selecting a jury and developing appropriate strategies to communicate with the jury. At an early stage in the case, these consultants can provide guidance to lawyers to assist with strategic planning and learn as much as possible about the jury pool. Consultants will research detailed demographic information on the potential jurors in a jurisdiction, such as the average levels of education, major industries and employers in the jurisdiction, average ages of potential jurors, and the ethnic background of potential jurors in the jurisdiction. This demographic information will teach the lawyers how to appeal to and communicate with jurors.
Hiring jury consultants involves a number of considerations. Cost is certainly a factor, and many consultants offer a variety of services with a range of prices. Educational background is also important; many jury consultants have degrees in communications, psychology and/or law. Other considerations include a consultant’s professional experience in a particular jurisdiction or personal connections to that jurisdiction. It may be helpful to use a consultant who is proficient in the relevant technology or who has prior trial consulting experience with the technology at issue. Given the many nuances in intellectual property law, it is imperative that a consultant for intellectual property litigation have experience in the relevant field (trademarks, patents, etc.).
Consultants may also conduct focus groups or surveys to test particular issues in a case. For example, the consultants may use a telephone survey to assess how a certain portion of the jury-eligible population view certain issues that may be important to the case. Consultants may also have a group of jury-eligible participants listen to a mock trial and comment on the effectiveness of the lawyers and various strategic issues in the case. The mock trial process can be very helpful to the lawyers working on the matter. After the lawyers present their arguments to the mock jurors, the jurors are sent to deliberate and decide on certain issues in the case. Many mock juries also include detailed questionnaires to assess how jurors perceive a wide range of matters in the case, including certain facts, witnesses, strategies and demonstrative exhibits.
Results from these mock trials can be invaluable to lawyers in the strategic planning stages of the trial. For example, a mock trial may reveal that the jurors did not understand the demonstrative exhibits used by the lawyers to explain complex technology in a patent infringement case. The questionnaires and follow-up interviews conducted by the jury consultant will assist the lawyers in revising the materials in preparation for trial. Similarly, the lawyers may change how they communicate based on comments from the jurors in a mock trial. Most jury consultants have observed hundreds of lawyers and can offer constructive criticism and coaching so that the lawyers communicate to the jury in the most effective manner.
The strategy and preparation for a jury trial differ from that of a bench trial, but with early planning and the assistance of outside consultants, lawyers can effectively communicate with jurors.
