Patent cases are perhaps the most challenging cases to try to a jury, especially from a Defendant’s point of view. As a Plaintiff, stories involving tales of stolen property, hard work, sweat equity, greed and Goliath taking advantage of David are usually well accepted by jurors.
However, the legal defenses of non-infringement and invalidity are often interpreted by jurors as meaning, “We didn’t do it. But even if we did, it doesn’t matter.” This does little to convince jurors that the Defendant is a good actor in the story.
Merely using technical terms to explain the concept of a patent is not the same as telling a story. And make no mistake: storytelling is critical in patent cases, especially for Defendants.
Oftentimes, my initial query with Defense counsel goes something like this:
Me: What story will you tell jurors about the patents?
Counsel: Story? Well, our story is that the sleeve is not movably connected to the cylinder.
Eventually, we work together and develop a story that we hope will not only resonate with jurors, but one that also weaves in our legal defenses without alienating jurors. Typically, we conduct focus groups and/or mock trials to test our overall strategy: our ability to simplify the patents, whether jurors accept our themes, and whether our graphics help punctuate our critical points. The process helps us ready for trial, and most importantly, affords us the privilege of learning how real people view the issues in our case. Mock jurors basically tell us how best to tell our story and how to communicate more effectively. And guess what? Good communication and storytelling in patent cases works.
The National Law Journal recently featured a piece titled, “Patent Defense Strikes Back in Texas” (subscription required). The article focuses on the patent world in the Eastern District of Texas. A hotbed for patent cases, the tide in the Eastern District seems to be changing.
Why? One reason is that patent defendants are becoming better storytellers. According to Judge Leonard Davis,
…Defense teams are more focused on telling a good story. [In] some of the defense cases that I’ve seen, the defense lawyers are getting much better at putting together a story and a defense that is not just technically right but appeals to an average lay juror’s sense of right and wrong. I think they’re making it simpler and doing a good job of communicating with the jury.
Talmage Boston, Dallas attorney and author, was recently interviewed in the Dallas Morning News and shared his thoughts on the importance of storytelling.
Every trial lawyer knows that regardless of how complicated the facts of a case are, he or she had better present them in an intelligible, engaging story, if they aspire to have the jury connect with the presentation.
Developing a story in any case– let alone a patent case– does not happen overnight, and it’s not easy. But the rewards are far worth the time and dollar investment.