The few patent jury trials that were able to take place in 2020 had some of the largest verdicts of the past decade. Magna’s National Managing Director of Jury Consulting, Rachel York Colangelo, Ph.D., spoke with Law360 about the tendency of juries “to slap the defendant in a way that gets their attention” when they believe corporations have intentionally acted unethically.
In her article, published on 12/22/2020, Law360’s Dani Kass wrote:
The COVID-19 pandemic saw patent trial after patent trial delayed and ultimately pushed into 2021, but the few jury trials that did go forward across the nation had some of the largest verdicts of the last decade.
This year featured three jury verdicts that surpassed $500 million, along with a nearly $2 billion judgment from a bench trial. On top of that, Apple paid off a judgment worth nearly a half-billion dollars, and a $752 million verdict against Kite Pharma from 2019 surpassed $1 billion when final judgment was entered in April.
Law.com covered a great webinar that aired live last week, hosted by Magna Legal Services and Winston & Strawn.
“I felt like I learned more about IP trial strategy in one hour Wednesday from Alan Albright, Tom Melsheimer, Matt Powers and Rachel York Colangelo than I did during the rest of 2020″, Law.com reporter, Scott Graham stated.
“Maybe it was Winston & Strawn partner Mike Tomasulo‘s easygoing style of moderating, or maybe it was Tensegrity Law partner Matt Powers‘ tranquil Zoom background. Whatever it was, Winston and Magna Legal Services‘ webinar, “Effectively Communicating With Jurors in a Patent Case,” had the feel of IP trial veterans sharing tricks of the trade over cocktails—with some jury research science thrown in for good measure.”
Moderated by: – Michael A Tomasulo, Partner, Winston & Strawn
Panelists include: – Judge Alan D Albright, District Court Judge, Western District of Texas – Tom Melsheimer, Dallas Managing Partner, Winston & Strawn – Matt Powers, Partner, Tensegrity Law Group – Rachel York Colangelo, Ph.D., National Managing Director Jury Consulting, Magna Legal Services
Hosted by: – Peter Hecht, Partner & Executive Vice President of Sales, Magna Legal Services – Meredith Cherry, Business Development Manager, Magna Legal Services
Joe Glenn is a Bucknell University alumnus, holding a Bachelor of Science degree in Business Administration. After 5 years of working for Chicago’s leading trial consulting firm, Creative Counsel, he joined Magna’s Chicago team when Magna acquired his company in 2015. There, Joe demonstrated his ability to assist clients with reducing litigation spend and designing custom programs to secure more successful case outcomes.
Conference rooms for hosting depositions are available at the Magna’s Colorado location at no extra charge when used with a Magna LS court reporter. Additionally, Magna is still providing complimentary use of their virtual deposition platform with a Magna court reporter, which includes free tech support monitoring & user training (limited time during COVID-crisis).
About Magna: Magna Legal Services provides end-to-end legal support services with 100% remote capabilities to law firms, corporations and governmental agencies throughout the nation. With a mission to deliver legal support in a high-quality, reliable and responsive manner, Magna provides strategic advantages to clients at every stage of the litigation cycle, including:
In preparation for an upcoming patent infringement matter in the United States District Court, Central District of California, the Honorable Judge Josephine L. Station presiding, Magna Legal Services (“Magna”) conducted both a mock trial and hourly consulting services as the case moved towards trial. Legal counsel from the firm Russ August & Kabat represented Pavo Solutions, LLC, a South Korean company that manufactures USB flash drives. Ben Wang, lead counsel with Russ August & Kabat, represented Pavo.
Over the course of the trial, Magna acted in the capacity of a strategic litigation consulting firm, through one of its senior jury consultants, Dr. John Gilleland. Strategic litigation consulting involves a systematic approach to optimizing the jury selection process and helps to refine the trial presentation themes and strategy of one’s case. The jury consultant frequently draws on the information gathered in the pre-trial research effort for additional follow-up consultation, which in this case, included both witness communication training and voir dire/jury selection assistance.
Trial Background and Specifics
Pavo manufactures a USB flash drive with a patented swivel cover. The suit alleged that Kingston Technology manufactured and sold a product with identical, patented elements.
The Mock Trial Process
Magna conducted a mock trial on behalf of Russ August & Kabat utilizing three (3) separate panels of deliberating jurors. These panels followed a full trial format in which they heard opening statements, key evidence including witness testimony and then closing arguments from each of the respective parties.
The detailed feedback from each of the three deliberation panels helped to guide Mr. Wang’s trial team in the refinement of their case structure and trial presentation strategies. The Magna research team made recommendations ranging from: high-level structural issues for the various trial arguments, down to suggestions for simplification of key witness testimony. If left uncorrected, even the smallest of these issues could have a material impact on the actual trial.
After the mock trial, Mr. Wang said, “This mock trial was particularly helpful; feedback and issues were spotted all the way down to the team’s organization. The feedback at the mock trial turned out to be (identify) a key issue at trial and we were prepared for it, so we managed to keep it out. Having it come up in the mock and forcing us to prepare our response to it, got the judge to say “no-go”. If we had to do it on the fly, we might not have had the same result.”
Through the mock trial process, Mr. Wang was able to anticipate challenges ahead of time, giving him and his client a distinct advantage in the actual trial setting.
Focus on Voir Dire
Dr. Gilleland’s recommendations regarding voir dire topics were of particular importance when it came to the actual trial. Through the mock trial process, Dr. Gilleland was able to formulate and refine specific questions, which were likely to help identify each jurors’ probable verdict orientation. Mr. Wang was able to take these questions and apply them to the actual trial, resulting in a positive impact on the eventual decision. “It was helpful to have Dr. Gilleland here to provide a first draft of questions for the jurors,” said Mr. Wang following the completion of the trial.
Magna specializes in end-to-end litigation consulting. Through Magna’s consulting process, we help clients set the stage for any of their litigation needs, including: scheduling depositions, language services, medical record retrieval, social media surveillance, graphics/demonstratives, trial technology and jury/bench/arbitration research and consulting. To learn more about our jury consulting process, request a free copy of The Ultimate Guide to Jury Consulting, from our website or contact our offices to schedule a free case consultation of your own.
“In-person civil proceedings may be making a comeback in a few parts of the country, but virtual litigation is going to remain the order of the day for awhile longer.”
Law.com covered a great webinar that took place last week, “Strategies for Successful Virtual Courtroom Proceedings”, presented by the Washington Area Women Trial Attorneys and hosted by Magna’s own Canby B. Wood, Esq.
In May 2020, a Texas court held the nation’s first jury trial via Zoom. WAWTA’s webinar featured Judge Miskel, who presided over that case, as well as U.S. District Judge Paul Grimm, and other expert panelists. Watch the full webinar recording above to hear the panelists as discuss the future of remote courtroom proceedings in a COVID-19 world and new litigation strategies, including best practices for virtual hearings, trials, and motion arguments.
Law.com journalist Scott Graham wrote:
Texas state court Judge Emily Miskel was the star of the 90-minute webinar. Miskel presided over the nation’s first remote jury trial in May, and it sounded as if virtual proceedings have become second nature for her. “I finished up a bench trial today at lunchtime and we had about 24 people watching on YouTube,” she said.
Miskel said that four of the 12 jurors who served on her May trial had previously served on in-person juries, and reported that they could see witnesses and evidence on Zoom better than they could when seated from an angle, across a large courtroom. “I know many judges and attorneys are cautious about whether you can judge a witness’ credibility on Zoom,” she said, but the feedback from participants has been positive.
Magna Legal Services was founded in 2013, and to this day, no other company matches its range of services. Magna is the only company with organic roots providing services throughout discovery, pre-trial and trial. When clients talk, Magna listens, and that is why Magna is an ALM “Best Of” winner every year. Magna is there for their clients with 24/7 scheduling and dedicated customer service.
This year, COVID-19 forced everyone into a new virtual world. Magna was able to quickly and seamlessly transition to 100% virtual platforms for its end-to-end litigation services. Completely remotely, clients can continue to hold depositions, arbitrations, meetings, witness communication training, focus groups, mock trials, and other jury research sessions.
Magna’s online research tools, JuryConfirm and JuryEvaluator software completely changed how attorneys prepare for trial. Instead of building products to attract clients, Magna found what clients needed and developed products and methodology to fit those needs.
Everyone at Magna recognizes our client relationships have made us who we are today. We would like to thank our communities for their trust and support. For more information about this contest, and how winners are selected, please visit the Legal Intelligencer’s website.
The mock trial program is designed to help students understand the legal responsibilities of healthcare workers, malpractice cases and other legal implications of the nursing practice. Viewers will watch the case unfold as a nurse takes the stand and the prosecution and defense present their arguments.
The mock was originally planned as an in-person event, but due to COVID-19, will now be held virtually. Magna Legal Services, an end-to-end litigation support company, will be contributing its expertise and resources to host the event live using its virtual platform. “The unforeseen pandemic has cancelled classes and disrupted education throughout the nation. We are proud to sponsor this event and help ensure the nurses of tomorrow are properly prepared for their careers and ready to start caring for their communities”, stated Peter Hecht, Magna Partner & EVP of Sales.
Fully understanding the legal implications of their practice is extremely important for healthcare workers. Because mock trials give invaluable insight into the legal aspects of nursing, Tarrant County College (TCC) would previously finance their students to attend mock trials hosted by other schools. To make this opportunity further accessible to all of their students, TCC decided to host their own annual mock trials, starting with the October 9th event.
Texas A&M University (TAMU) School of Law joined TCC in hosting the mock trial, contributing their resources, expertise and esteemed personnel. Their law students, specifically those interested in health law, are encouraged to attend the mock trial.
Jim Mullen, RN, JD will play the nurse on trial, prosecuted by Colleen Carboy, RN, JD and defended by Kathleen Kearney, RN, JD. Expert witnesses include Nancy Roper Wilson, RN, JD and Patricia Blair, RN, JD. Justice Lee Gabriel will preside over the mock.
Magna Legal Services has been hosting virtual mock trials for over a decade, with even greater popularity following the start of COVID-19. TCC’s mock trial will be held on the Magna LegalVision platform, with Magna’s trial presentation consultants managing exhibit display and annotations and handling back-end tech support.
“Whether it’s a trial, hearing, arbitration, mediation or deposition, the Magna LegalVision platform has the flexibility to mimic any in-person proceeding, except with all the added benefits of going virtual” said Andrew Lunanuova, Magna’s Director of Audio, Video and Virtual Services.
Hosting the event remotely will allow for social distancing and a larger audience capacity. Virtual proceedings also prove for increased viewer attention and understanding due to:
Greater exhibit visibility— All exhibits and demonstratives will be displayed directly in front of each attendee on their devices, ensuring they can see and hear everything. In contrast, exhibits for in-person trials are usually displayed on TVs and format boards, where distance and other factors can hinder visibility.
Enhanced annotation— Magna’s virtual platform allows for seamless, real-time annotating, like highlighting and blow-ups, which will improve viewer understanding.
Speaker view— The virtual platform allows each attendee to have a front-view of each speaker, rather than the side or back-view they would normally have at an in-person trial.
Speaker identification— Viewers can better follow along with the presentation because all speaker names are clearly visible throughout the event’s duration.
The Tarrant County College & Texas A&M University Law School mock trial plans to bring in over 500 attendees including first-year TCC nursing students, TCC faculty and TAMU students focusing on health law.
To learn more about virtual proceedings and mock trials, visit MagnaLS.com.
The U.S. District Court for the District of Delaware again postponed all jury trials last week, including what would have been one of the first to be held in person in the country since the COVID-19 pandemic limited court proceedings nationwide.
Sunoco Partners Marketing & Terminals LP’s intellectual property case against energy companies Powder Springs Logistics LLC and Magellan Midstream Partners LP, which has been pending for almost three years, was scheduled to go to trial beginning August 3, with a combination of in-person appearances and remote witnesses, but has been postponed indefinitely.
U.S. District Chief Judge Leonard P. Stark of the District of Delaware issued an order July 16 stating the decision to postpone federal jury trials in Delaware at least through the end of August was made as a safety precaution in an attempt to both minimize the large gatherings that jury selection would entail and cut down on travel for those involved in court matters.
In a memorandum order issued at the beginning of the month, Stark outlined what were intended at the time to be precautions taken during the Sunoco trial, including having witnesses testify remotely and limiting the number of people permitted in the courtroom.
“This is something of an experiment,” Stark wrote in the order, which concluded by noting the possibility of a continuance. “I expect I will follow different procedures in other cases and at different times and I strongly suspect my colleagues (in the District of Delaware and elsewhere) will do things differently than I plan to do at this trial. I am entering this order as the presiding judge in this specific case, not as chief judge of the district.”
If the trial had gone forward, it would have been preceded by only a handful of in-person jury trials to have begun in the U.S. since court systems began determining individually how to address the pandemic. In April, during what may have been the first attempt at a jury trial since courts closed, jury selection for the trial of a man in Ohio ended abruptly when the defendant became short of breath and the trial was postponed.
Federal jury trials have only just begun in Texas, and New Jersey has resumed trials that were cut short months ago, though the state isn’t currently beginning new jury trials. Similar to the District of Delaware, an order was issued over the weekend pushing back jury trials in Florida, which had planned to resume jury trial proceedings Monday.
“By what I can tell and what’s been reported, they’ve all been running relatively smooth. They’ve not surprisingly had a couple technical issues,” said Dan Wolfe, senior director of jury consulting for Magna Legal Services, of the trials that have taken place recently. “In terms of just getting people in and out and things of that nature, they seem to be going fairly well, by all accounts.”
As is the case throughout most of the country, trials are also on hold in Delaware’s state courts, with in-person jury trials not to take place until the Delaware Judiciary reaches Phase 3 of its four-phase reopening plan, though trials that don’t require a jury have been underway. Currently, Delaware courts are under Phase 2 of the plan. On July 6, Chief Justice Collins J. Seitz Jr. extended the state’s judicial emergency and said it’s expected to stay in Phase 2 until Aug. 6 and likely longer.
Wolfe said, based on the trials that have proceeded so far, he’s seen two predominant factors that seem to be key in a court system’s ability to resume trials. First, he said, courts have ensured they have access to a space large enough to hold everyone needed for a trial while maintaining social distancing guidelines, whether that be a large courtroom or a location such as a gymnasium or theater.
Second, Wolfe said, the courts that have been able to successfully start jury trials have been those in judiciary systems with good communication. He said it’s expected that people will be more likely to show up for jury duty if the court system has communicated to them the procedures in place for their safety beforehand.
“People have been fairly accommodating and understanding and appreciative that the court personnel have tried to work really hard to accommodate the jurors,” Wolfe said. “Anecdotally, several people have reported everybody being ‘more patient.’”
Magna recently surveyed 500 people nationwide in an attempt to gain insight on how prospective jurors’ attitudes might have been impacted by COVID-19. While the results of the survey are still being analyzed, Wolfe said 60% of those surveyed said they would be less critical of those working in health care than they might have been prior to the pandemic, while more than 80% said they were concerned about the safety of health care workers who are dealing with the virus directly, and 23% said they, a family member or a close friend has been a first responder who has addressed COVID-19.
“Certainly, (in) cases like medical malpractice cases, it’s that notion of a halo effect,” Wolfe said. “We saw this post-9/11 for firefighters and law enforcement officials, this positive perception. So certainly, we’re seeing that here.”
Wolfe said Magna has also noted that during both mock jury trials and proceedings involving remote witnesses during actual trials, jurors reported approval of seeing people speak via video call, rather than in front of them in a courtroom.
“They actually report a more positive experience because they can see the witnesses more closely, whereas in a courtroom, they might be more distant and it might make it more difficult for them to judge facial expressions and the like,” Wolfe said.
This piece originally appeared in Delaware Law Weekly on July 22, 2020.