Visual Persuasion^TM Blog View Archive

Litigation technology tutorials transition learners quickly from a high-level industry overview to very specific technical content. Master level tutorials exploit proven visual communication principles, focusing learners on need-to-know information and persuading them to perceive subjects just as the presenter wants.

Jurists and mediators have long appreciated tutorials because they impart the crucial technical information needed to do their job. The late Hon. Rudi Brewster, when he was senior judge of the Southern District of California, said:

“I have a real problem with some technology.  I never had high school chemistry, and I have a real ‘hole in my head’ when it comes to that kind of technology…. If I can’t explain the technology successfully to my 12-year old granddaughter, I know I don’t understand the technology fully myself.”[1]

Well-produced tutorials save time otherwise spent digesting written briefs, and a concentrated 30-minute technology tutorial might save an hour or more of precious courtroom time otherwise consumed by start-and-stop expert testimony.

While there are as many ways to produce a tutorial as there are producers, informed consumers like you should know the production process and what it takes to elevate tutorials to master level. This series of three posts will impart some of the hard lessons I learned in over 100 technology tutorial productions.

Mastering the Art of Technology Tutorials

Some time ago I met with counsel and experts to kickstart a communications patent technology tutorial for a Markman hearing about a month before the submission deadline. The scheduled one-day meeting lasted a week while we grappled with the beginning of a script. 34 sleep-deprived days and over 2,000 production hours later I hand-delivered the master DVDs of a 40-minute mostly animated tutorial five hours before the deadline.

Had the trial team known how to create a tutorial in advance, we could have saved a couple hundred hours and a lot of stress. This experience prompted me to write a manual for litigators who commission technology tutorials. Now in its 6^th edition, “Mastering the Art of Technology Tutorials” (hereafter called the “Manual”) describes the behind-the-scenes work to produce technology tutorials, including the techniques described in this series.

1. Expect the unexpected

“Doesn’t expecting the unexpected make the unexpected expected?” – Bob Dylan

Scheduling

Knowing when to start a tutorial is not always easy. Discovery cutoff might be too close for comfort or settlement by one party is just over the horizon. There is always a point you can wait no longer. The hard reality is despite the conditions affecting your decision, the longer you wait to initiate production the fewer options will be available to complete your script, explore creative solutions, experiment with different visuals, and resolve knotty production issues.

The time allotted to production will determine success to a great degree. Depending on project scope, your production calendar could appear adequate at the beginning but due to unforeseen circumstances could force you to make uncomfortable concessions to meet the deadline. There are precautions you can take to avoid that situation.

Script development is crucial and almost always takes more time than contemplated, both to initiate and complete.

In a complex patent software case with an aggressive 60-day schedule to meet a mid-January deadline, the script was delayed weeks for no apparent reason than counsel was very busy, but then a key client technical adviser’s extended family holiday followed. What we hoped was an easy schedule turned into a frantic two-week production.

Other interference factors can be urgent unexpected needs by other clients and cases, spotty availability of stakeholders, and a workforce dispersed by the global pandemic.

In one memorable high-stakes production, I stalled waiting days for a decision from the technical attorney. Finally, the lawyer explained,

“I know you’ve been circling forever but other planes ahead of you are running on fumes and they have to land before you. Sorry.”

That didn’t resolve the issue, but it won points for creative response. On this call I heard another zinger:

“Can’t you just press the animation button?”

Budgeting

Technology tutorials are not inexpensive and convincing your client to spend thousands of dollars for a single production might rely on your value proposition. Here are some ideas:

• Even tone-neutral technology tutorials are prime opportunities to tell a complete uninterrupted story of how and why your interpretation of the evidence should prevail
• Tutorials can be enormously persuasive in framing the boundaries of the litigation playing field (e.g., patent claim construction)
• Tutorials demonstrate precise context for liability and damages (e.g., product defects)

Technology tutorials are the gift that keeps giving:

• Content produced for pre-trial tutorials (e.g., Markman hearing) is easily and inexpensively repurposed for trial
• The jury will be suitably impressed you created informative materials for their benefit
• Serial litigation content (e.g., product liability) can be repurposed case to case with little if any modification

Realistic budgets are based on predictable scope, which may be unsettled until script completion (see #7, part 2). But estimated case value/exposure might provide suitable guidance.

Other factors include money already spent (e.g., attorney fees), the likelihood of settlement before or after submission, and your desired production value (i.e., quality; see #8, part 2).

Phased budgeting might be a viable option. Start with an estimate for script development and as the scope expands (or creeps) increase as needed.

For sample budgets starting at $5,000, please refer to the Manual.

2. Engage stakeholders early and continuously

Because stakeholders make myriad production decisions, they should be accessible daily to review work in progress. But sometimes it is unavoidable a key player in not available, so your team should have a contingency plan.

As a producer, I like to proactively send status reports and budget burn rates to stakeholders daily because they are essential when needed and easy to ignore if not. Direct inquiries should be reserved for need-to-know information the normal chain of command cannot answer.

For lead counsel, please be polite. Fortunately, yellers and screamers are rare, but I remember one memorable client over 20 years ago who declared matter-of-factly during our kickoff meeting he was an unapologetic “jerk” (to put it euphemistically). He was true to his word.

3. Employ war room best practices

Teamwork is essential for smooth production. Prevent duplicate or contradictory effort by assigning a dedicated law firm gatekeeper responsible for all producer communications, and establish protocols for proofing work in progress, issuing change orders, and granting approvals.

Gatekeeping works both ways and producer communication varies by provider. Some will allow or even encourage direct communication between artists and lawyers, but others strictly enforce hierarchal access through the producer or an account executive. This is not necessarily the most efficient scheme for a boutique provider but is necessary in larger productions and when artist personalities are best shielded from clients.

Intense productions might require a war room-type effort even if conducted remotely: dedicated personnel, extended operations hours, multiple time zone availability, and priority Internet exchanges of source materials, instructions, and work in progress. Proper gatekeeping is essential to ensure nothing falls through the cracks.

In back-to-back cases for different clients, good war room discipline paid off. To fast-track graphics production in the first case, lead counsel assigned one associate per artist. But when signals crossed and an order appeared to have been dropped, proper version control caught the error in time. In the next case, we directed counsel to give instructions only to the person in our space wearing the loud Hawaiian shirt. Everything ran smoothly.

A star team works efficiently, saves your client money, and makes you look good.

Part 2 will cover expectation management, advocacy, scripting, and production values in technology tutorials.

Endnote

[1] Judicial panel discussion on patent infringement litigation presented by the San Diego Intellectual Property Lawyers Association at California Western Law School, 1 March 2006.

© 2020, Legal Arts, Inc. For more information or help with your next tutorial, please contact Jim Gripp at 619.239.1101 or jgripp@legalarts.com