Both judges and juries are often bewildered by the complexities of IP litigation. Nonetheless, when called upon to make a decision, the trier-of-fact must make a decision. This is true regardless of whether the evidence is accurately comprehended or not. IP trial counsel are therefore in the distinctly challenging position of striking the most effective balance between education and persuasion. ThemeVisions trial consultants routinely work with corporations and their outside counsel to develop strategies for effectively and persuasively communicating the complexities of IP litigation to judges and juries.
Where potentially dispositive issues will be heard by the court, such as Markman hearings or inequitable conduct hearings, ThemeVisions trial consultants carefully recruit a sample of former, and sometimes senior status, federal judges or other appropriate surrogates to serve as focus groups for briefing and oral arguments. Like mock jurors, the mock judges receive key class certification information in a controlled, systematic, and unbiased manner. Their reactions and decisions are then precisely recorded, quantified, analyzed, and reported using appropriate social science methodologies. The result is a telling glimpse into the minds of the judiciary and a chance for the trial team to hone the arguments, and exhibits most likely to resonate with a judge.
Where IP issues will be tried to a jury, ThemeVision employs a variety of social science methodologies (including focus groups, mock trials, jury simulation studies, telephone surveys, internet surveys, and other methods) to assist trial teams with developing effective themes, arguments, demonstrative evidence, and jury selection strategies.