I love what we can do with data at A2L, particularly when we couple well-chosen words with well-designed litigation graphics. I think this area of our litigation consulting work is one place we add tremendous value. We can overplay a threat, or we can make something seem harmless. The latter is MUCH harder to do. Today, I'll focus on how one can use language and data to either inflame or calm your audience selectively. Why would you want to do this? Frankly, it's one thing trial lawyers and trial consultants do every day. Litigants on both sides of a case work with highly creative people who find ways to message the truth in a way that favors the client. Virtually every type of case benefits from this kind of statistical messaging. Fear is the best lever we have to motivate decision-making. We've written about this sort of thing before in articles like: 6 Ways to Convey Size and Scale to a Jury 5 Demonstrative Evidence Tricks and Cheats to Watch Out For What Trial Lawyers Can Learn From Russian Facebook Ads Trial Presentation Graphics: Questioning Climate Change in Litigation Using Trial Graphics & Statistics to Win or Defend Your Case Numbers in Litigation Graphics Do Not Lie, People Do The coronavirus is no joke, and I don't intend to be lighthearted or flippant about it. But, most of us are talking about every day now, right? And, the cacophony of those discussions will only get louder over the next month. It's an accessible and relevant example to use to make a point, and this article might even give you a talking point or two. As you read this article, remember, the point of this post is to point out how easy it is to use (arguably) accurate data to influence decision-making, not to use false data to make your point. Anyone can do that. So, should you be scared of the coronavirus? Presented below are two sets of five talking points, and all of them are true. As you read through them all, ask yourself, which side won out? Fear or peace. 5 Reasons to Be Terrified of the Coronavirus It's everywhere, and there is no cure. COVID-19 is probably very widespread already, and more frighteningly, we just don't know how widespread. We've all heard that testing in the U.S. was flubbed very badly. Source. So, given that we've only seen 135 cases in the United States, why might we worry that it is everywhere? Well, the old lily pad adage explains why worrying about the spread is well-founded. If you know a pond will be fully covered by lily pads after 48 days, and that lily pads will double in coverage every day (as the coronavirus does), how many days will it take before the pond is half covered? Our readers are some of the smartest, most educated people in the world, so I bet you figured that one out. It's day, forty-seven. But, the point of this example is the troubling follow-up question: at what point would you really notice the lily pad coverage? The answer is somewhat scarily, maybe, day forty-three, forty-four, or day forty-five when coverage is around 5-10%. So, we only may be at day five or so in this metaphor, which is why we don't really notice the virus close to us yet. The incubation time before symptoms show up may be weeks, and many never show symptoms. Maybe we will understand how widespread it is once actual testing starts in a week. One expert believes there may already be 100,000 cases in the U.S. Source. Brain damage. Announced yesterday, it can cause brain damage. Source.
Dr. David Schwartz is a founding partner of Innovative Science Solutions, LLC (ISS), a scientific consulting firm specializing in helping legal teams prevail in high-stakes litigation involving complex scientific principles. Dr. Schwartz has served as a consulting scientist to the legal industry for over 25 years and has provided support to cases involving environmental and occupational exposures, radiation, drugs, medical devices, dietary supplements, cosmetics, industrial chemicals. But over the course of the past several years, Dr. Schwartz has focused on the role of genetics as an alternative cause in toxic tort litigation. As part of a strategic alliance, ToxicoGenomica, Dr. Schwartz and other ISS consultants have been providing consulting support on asbestos and talc cases focusing on genetic evidence as an alternative cause of mesothelioma and ovarian cancer. In 2017, Dr. Schwartz (ISS), myself (A2L), and others co-hosted a pioneering conference on the subject of the role of genetics in civil litigation. Now two years later, I sat down with Dr. Schwartz to get a better understanding of how genetic science has evolved since then and how it is likely to change the way toxic tort cases will be litigated in the near future, specifically in talc and asbestos cases. Q: Give us a quick summary as to how genomic science will change toxic tort litigation. A: Modern medicine is advancing from broad-based treatment based on randomized controlled clinical trials to “precision medicine” where treatment is tailored to individual patients based on their genetic profile. Similarly, toxic tort litigation has been based on so-called black-box epidemiology studying large groups of people and trying to determine risk. We are bringing the field up to date by applying the tools of precision medicine to evaluate risk in toxic tort litigation. With genomics, we can directly ask if a person was born with genes that predispose them to develop a disease (like mesothelioma) instead of relying on statistical inferences from large populations. This is a watershed moment in toxic tort litigation. Q: Talc litigation is heating up. Last I read, there were 14,000 claims filed related to talc. Do you think genetic science has a role in talc litigation? A: Absolutely! Genetics provides a medically sound alternative cause argument no matter what the alleged injury: mesothelioma, lung cancer, ovarian cancer, lymphoma, autism. These conditions are all known to have well-established genetic underpinnings. If a defense lawyer can demonstrate that a plaintiff had a specific set of genetic factors, then it is legitimate to make the argument that the condition was caused by those factors. Q: What is a genetic mutation? A: A mutation, also referred to as a variant, is an error in the sequence of a gene that could drive specific types of cancer. A gene can have hundreds or thousands of different types of mutations. Some mutations have no known effect on a person’s life, while others will drive the onset of cancer. Q: If genomic testing is already being used in precision medicine, has that information ever been used for litigation purposes? A: Yes. Sometimes the genetic analysis at a hospital can be very informative. That’s especially true for cancer treatment at excellent cancer hospitals. Having the capability to review plaintiffs’ medical records for relevant genetic evidence will be a core skill set moving forward.
I’ve been watching the baby powder/talc trials closely for the past several years. They feature some of the world’s best lawyers, and they are pushing the boundaries of scientific evidence. For anyone in the litigation business, the talc trials, as well as the trials involving the alleged cancer-causing properties of Monsanto’s herbicide Roundup, form a fascinating window into how big-ticket cases are being tried right now. In both lines of cases, plaintiffs are showing early dominance, and I think the defense accordingly needs to adjust both how it handles demonstrative evidence and how it deals with scientific evidence. Interestingly, both of these types of trials can be watched on the Courtroom View Network (CVN). I have long advocated that trial attorneys should be watching other trial attorneys on CVN because there’s almost no other way to see today’s great lawyers in action. In the most recent talc trial, famed plaintiffs lawyer Mark Lanier of Houston took on Johnson & Johnson, which makes talcum powder products. He asserted that his clients, 22 women who used the products, were exposed to asbestos found in talc and that this exposure caused them to contract ovarian cancer. The case is notable for many reasons. The result was certainly remarkable as this past July, plaintiffs were awarded nearly $4.7 billion in damages by a jury in a Missouri state court. The case is also one of the most high-profile cases to utilize genetic evidence. And that aspect was particularly interesting to me as this is an area that A2L and its partners at Innovative Science Solutions have been discussing for the last couple of years. We even held a conference on the topic of the use of genetic evidence in civil litigation. So let me discuss two aspects of this case. First, while I am not an expert in analyzing genetic evidence in civil cases, I do understand how to use it and how to present it. In this case, the defense was clearly reluctant to use genetic evidence, and it only lightly cross-examined plaintiffs’ genetics expert. I don’t know for sure, but I’ll speculate that like other defendants, Johnson & Johnson may have feared that by presenting genetic evidence as a defendant it would position the plaintiffs as a so-called eggshell plaintiffs, making liability easier for plaintiffs to prove. See takeaway #6 in this article where we discuss why this thinking is specious. Whether or not defendants were concerned about the role of genetics in conveying to the jury that these may be eggshell plaintiffs, Lanier appeared to adopt this approach anyway. He utilized genetics to affirmatively allege that the plaintiffs were especially vulnerable to the effects of talc. This highlights an apparent growing trend of the plaintiff utilizing genetics to demonstrate plaintiff susceptibility to alleged toxins and a need for the defense to effectively address and rebut this assertion. I haven’t seen that tactic before. and similarly situated defendants must get ready for this tactic in other cases. A good place to start would be talking to my friend and frequent collaborator Dr. David Schwartz at Innovative Science Solutions who is doing pioneering work with the group ToxicoGenomica. The second element of this trial that I found fascinating was Lanier’s use of demonstrative evidence. In most big-ticket litigation demonstrative evidence is exchanged a day or so before it is used, to allow for objections to be made. Clearly, Lanier has figured out a workaround by drawing (or having his colleague draw) a highly prejudicial demonstrative that for whatever reason the defense did get excluded. It's the featured picture in this article, but let me show you what I mean in this clickable video clip and transcript below from our friends at CVN. Here Mark Lanier perfectly combines the eggshell plaintiff approach with an objectionable piece of demonstrative evidence to powerfully drive a point home. His message is that some people are genetically more susceptible to cancer-causing agents like asbestos and that Johnson and Johnson and their baby powder products pushed plaintiffs over the cliff where cancer happens. Other free A2L Consulting resources related to genetics in civil litigation, litigation graphics, and demonstrative evidence include: With So Few Trials, Where Do You Find Trial Experience Now? 7 Key Takeaways from the Genetics in Civil Law Conference Free slide decks from the Genetics in Civil Law Conference Free E-Book: The Litigator's Guide to Combating Junk Science - 2nd Edition Repelling the Reptile Trial Strategy as Defense Counsel - Part 3 - Understanding the Bad Science The Importance of Litigation Graphics in Toxic Tort Litigation 10 Key Expert Witness Areas to Consider in Your Next Toxic Tort Case Free Download: Using Science to Prevail at Trial or As an Advocate 7 Reasons the Consulting Expert is Crucial in Science-Based Litigation Using Trial Graphics & Statistics to Win 12 Questions to Ask When Hiring a Trial Graphics Consultant Repelling the Reptile Trial Strategy as Defense Counsel - Part 1 Teaching Science to a Jury: A Trial Consulting Challenge 5 Valuable (and Free) Complex or Science-Focused Litigation Resources Winning BEFORE Trial - Part 3 - Storytelling for Lawyers
It seems to me that a good many sophisticated people, including a lot of lawyers, don’t fully understand the role of storyboards in developing an animation. A storyboard has been defined as a graphic organizer in the form of illustrations or images displayed in sequence for the purpose of pre-visualizing a motion picture, animation, motion graphic or interactive media sequence. The first story boards were used by the Walt Disney animation team in the early 1930s, and at A2L, we use storyboards in exactly the same way – to pre-visualize an animation that we are intending to use at a trial. As longtime readers of this blog may know, I came to this business about 25 years ago, just after my law school graduation. I knew a good deal about computer animation in the Toy Story era, and I originally envisioned A2L as a trial animation company for attorneys, focusing in the intellectual property area. A2L has grown to become a leading trial consulting firm and a top provider of litigation graphics and jury research, but I’ve always had a special fondness for litigation animation. Animation remains a very vibrant part of trial practice, especially now that common tools like PowerPoint provide a basic animation function as a standard offering. It’s no longer necessary to bring in a specialized designer to provide animation for trial. We’ve written about this in articles like Legal Animation: Learn About the Four Types Used in the Courtroom, What Does Litigation Animation Cost? (Includes Animation Examples), and Patent Comes Alive! Turning Patent Drawings into Trial Presentations.
by Ken Lopez Founder/CEO A2L Consulting We recently had the opportunity to co-host a conference focused on the use of genetics in the courtroom. The conference was entitled Genetics in Civil Law: Litigation, Regulation, Business Opportunities, and Risks. A2L was joined in hosting by three science-focused expert firms that are pioneers in the law and genetics field. For me, the real pleasure of participating in the conference was how much I learned. That's kind of unusual for a conference, right? There are just a handful of valuable takeaways at most conferences I attend. Here, there were dozens of them, simply because of the nature of the material and the state of the art. The work being done by the speakers, the hosts, and many of the participants is genuinely pioneering -- both as it applies inside the courtroom and outside. Here are seven key takeaways that highlight some of the most valuable aspects of attending the conference. Please note that number 7 is your ability to download the slides for free from the key speakers without further obligation of any kind. The use of DNA evidence in the courtroom is relatively new. From watching TV, from the OJ case, and from our practices, we're all generally familiar with how DNA evidence is used in criminal cases. Many people are surprised to learn that its use as evidence in the courtroom dates only to the mid-1980s. That's right, in the courtroom, DNA evidence is just 25 years old. The use of genetic evidence in civil cases is just beginning. For trial lawyers involved in big-ticket litigation, the present is the equivalent of the mid-1980s for criminal lawyers. Genetics and DNA evidence are being used by plaintiffs and defendants in big cases. Genetics have been successfully used in many big cases. Not many cases of this sort have made it to trial, but some have. The cases thus far have been related to exposure to substances like benzene, asbestos, and tobacco. Companies have found a successful defense with the use of genetics. We can expect to see such a defense in talc litigation and other emerging pattern litigation soon. Genetics can be used to establish an alternative cause. Genetic profiling can not only be used to question or prove causation, but it can also be used to establish an alternative cause, because exposure to certain substances leaves a genetic trace and certain cancers have unique genetic profiles. The science is accepted. There is ample precedent for the use of genetic evidence at trial. Indeed, there is 25 years of precedent. The eggshell plaintiff worry is just a worry. Defense lawyers know that they have to accept plaintiffs as they find them. That is, if a plaintiff is extra-sensitive to a chemical exposure, that extra sensitivity might provide the plaintiff with extra ammunition. So, the worry I've heard expressed is that if we genetically profile a plaintiff and find that he or she is indeed extra sensitive, we help make the plaintiffs case. However, I learned at this conference that one can assess a case and make a decision about whether genetic analysis will be worthwhile without doing the work and potentially find valuable and powerful alternative cause defenses. Click here to download an e-book containing the slide decks from the conference for free.
by Tony Klapper Managing Director, Litigation Consulting A2L Consulting If anyone thought the era of toxic tort litigation was coming to an end, they were wrong. The Environmental Protection Agency recently announced its priority list of 10 chemicals, including asbestos, that it is considering banning under the Frank R. Lautenberg Chemical Safety for the 21st Century Act. Although it remains an open question how aggressive the Trump administration will be with safety regulations, the reality is that regulatory lists like this, and the inevitable studies that follow, often become a treasure trove of “support” for a plaintiffs’ bar eager to add scientific credibility to their legal claims. This presents challenges for defense lawyers – especially given the continued currency of quasi-scientific principles or principles that are fine for regulators to rely on, but have no place in today’s courtroom, such as the “precautionary principle.” This is most evident with the mantra of “no safe dose” that asbestos lawyers and some environmental groups trumpet as justifying liability for even the most meager and infrequent of chemical exposures. Of course, toxicology, epidemiology and other scientific disciplines have exposed the fallacy of principles like “no safe dose” (after all, Paracelsus teaches us that “dose makes the poison – more about this later). But the appeal of the seemingly aphoristic “no safe dose” is tough to counter in court when an effective advocate plays to a jury’s fears and is buttressed by governmental pronouncements that, albeit for different reasons, embrace the notion that there is some theoretical, modeled risk from exposure to virtually any chemical. So the task for the defense bar is how to convince juries to reject these and other fallacious concepts that serve as easy, digestible substitutes for the more complex elements of true causation.
by Alex Brown Director of Operations A2L Consulting
by Tony B. Klapper, (former) Managing Director, Litigation Consulting & GC, A2L Consulting and David H. Schwartz, Ph.D., Co-Founder, Innovative Science Solutions
In today's rapidly evolving society, the composition of juries is constantly changing, mirroring the shifts in social dynamics. The advent of social media and its pervasive influence on our daily lives has brought about significant transformations in both jury selection and the conduct of voir dire.
by Ken Lopez Founder/CEO A2L Consulting We have long participated in a joint publishing effort with Innovative Science Solutions (ISS), a company that provides strategic consulting services designed to ensure that you are prepared and knowledgeable about scientific and technical issues relevant to your case. A2L has partnered with ISS for the benefit of many law firms and corporations. We have already had the pleasure of working together on everything from tobacco litigation to hydraulic fracturing to alleged health effects of cell phones. Along the way, we have learned, often by overcoming enormous challenges, how to make science your ally -- whether inside or outside the courtroom. Today, A2L and ISS have just published the new and revised second edition of their e-book, The Litigator’s Guide to Combating Junk Science. The book is built on the following important concepts:
by Ken Lopez Founder/CEO A2L Consulting In case you missed it, the New York Attorney General's Office dropped a bombshell this week. They have accused major retailers including Wal-Mart, Target, Walgreen's and GNC of knowingly selling supplements that contain either none of what is advertised (an incredible 80% of the time) or something else entirely. The herbal supplement industry is estimated to have close to $100 billion in annual sales. That's about five times the revenue of all AmLaw 200 law firms combined. Once I saw the New York Times piece reporting on this issue, I wanted to learn more about what this might mean for litigators. Fortunately, I knew exactly who to speak with. Below is an interview with Dr. David Schwartz, head of scientific support to counsel at Innovative Science Solutions. He describes his role as something of a scientific detective, regularly helping ISS’s clients defend and support pharmaceuticals, industrial chemicals, medical devices, foods, and dietary supplements in the courts, the regulatory arena, and the market place. In this six-minute interview, Dr. Schwartz shares his outlook for how this issue might unfold in the courts.
by Ken Lopez Founder/CEO A2L Consulting Not every page, blog article, webinar or e-book on A2L Consulting's site is right for everyone. As the saying goes, what is everyone's favorite radio station? WII – FM, of course. Otherwise known as "what's in it for me?" With hundreds of articles, dozens of e-books and hundreds of other pages, A2L's website has over 2,500 pages of valuable content. Sometimes, finding materials that are specific to your litigation practice area or need can be a challenge with all the available options. You can search A2L's site or even browse by topic area using a topic list in the sidebar of every blog post. In spite of this, I still hear from a lot of people who wonder whether we have experience working in their specific practice area or where they can find useful information related to their practice. I wrote this article to highlight some very useful information organized by practice area below. I've broken down the practice areas into 14 topics that cover most of the work we do. The alphabetical list with links under each topic should prove helpful when looking for the information most relevant to you.
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