The first four articles in this series discussed the importance of the initial casting of the IP litigation team and the first steps in laying the groundwork to ensure that ongoing litigation expenses are controllable and predictable. This article provides some ideas for trial that can significantly reduce litigation costs.
Fewer days spent at trial means a significant reduction in attorney hours both during trial and in preparation for it. Accordingly, the most fundamental rule for saving money at trial is to shorten the trial itself. The judge and jury also will appreciate the respect of their time.
Attorneys frequently make the mistake of wanting to present every possible claim, witness and remotely relevant piece of evidence. The first step in shortening the trial is to critically assess the necessity of these elements.
Begin with a simple theme
As many trial attorneys will advise, the most effective trials are those with a clear, concise theme. Prior to trial preparation, counsel should already have a clear idea of their trial theme and begin thinking about what evidence and witnesses fit best within the theme. Keeping this theme in mind should assist in streamlining the presentation of facts and witnesses. Some common themes for intellectual property cases include “David v. Goliath” and “Thou Shalt not Steal,” although many other simple themes may also work well.
Drop weak claims and defenses
Every claim and defense requires the presentation of evidence and witnesses. By minimizing the number of claims or defenses, the quantity of proof is limited and costs therefore decrease. Moreover, the existence of weak arguments could dilute the strongest argument in the eyes of the jury.
Seek bifurcation where appropriate
As fully explored in the third article in this series, bifurcation allows for the separation of the issues of liability and damages. By Fed.R.Civ.P. 42(b), courts may order such bifurcation in cases when it is “in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy.” Damages evidence in intellectual property cases typically involves experts, numerous documents, and lots of visual aids. By eliminating testimony relating to damages, counsel should be able not only to cut several days off of a trial, but also to tack on savings relating to expert witnesses, demonstratives and attorney preparation time.
Work with opposing counsel
In the weeks prior to trial and throughout the trial itself, petty disagreements can significantly increase costs. On the other hand, if common ground can be reached, it can save the parties tremendous expense. For example, use the pretrial conference and order to find as much uncontested ground as possible. Having both parties stipulate to basic information not only will save time and money, but also will provide a clearer record on appeal. The pretrial conference is also a good time to work with opposing counsel to stipulate to the admissibility of documents, and preferably, to create a joint exhibit list that can be referenced without further thought during trial.
Drop unnecessary witnesses
Counsel should critically examine each potential witness and make lists of exactly what that witness will need to say. Counsel should absolutely avoid the urge to have multiple witnesses testify to the same facts just to emphasize a particular point. Avoiding redundant witnesses can save days of trial time, and nearly all trial experts and judges agree that juries are bored, if not outright insulted, by repetitive testimony.
In the case of corporate witnesses, there is a developing body of law that would allow for corporate representatives to testify at trial under certain circumstances, in the manner of a Fed.R.Civ.P. 30(b)(6) deponent. In those instances, look for topics where a single witness might be properly informed such that she could testify as to broader topics than her personal knowledge would dictate. For example, a company’s Director of Sales might be able to competently testify regarding discrete marketing topics as well.
Give the jury credit
Judges and trial experts agree that counsel would be well-served by giving jurors more credit. Juries expect counsel to be respectful of their time and intelligence and may resent counsel for forcing a point over and over. Worse, they may start to tune out and miss critical information. For example, Judge Kimball recalled that a particular juror stopped paying attention to the cross-examination of an expert witness because the attorney spent so much time on questions regarding the expert’s compensation that the juror assumed there was no substantive basis for attacking the expert’s opinion. However, as Judge Kimball noted, “The attorney did in fact have substantive attacks to the expert’s opinion, but the juror had either tuned out by then or began to sympathize too much with the expert to recognize them.” By streamlining the trial, counsel not only will save money, but also may avoid losing the attention or respect of their most important audience.