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Grasping Complex Issues: Do Jurors Get It?

posted by Sandra Donaldson, Ph.D. and Linda Driscoll, MA
Tuesday, June 11th, 2005 at 8:45am

Litigating trademark, patent and copyright cases has traditionally been difficult because of the complexity of the issues involved. Establishing proof of ownership is one thing. Establishing proof of such things as infringement, validity of claims or dilution is quite another. There are the actions of the authorizing body to explain, whether the Defendant had access to the protected product, and whether the perceived violation stems from direct or indirect actions on the part of the Defendant. And they have to be explained to a group of people who are largely unfamiliar with the patent, copyright, or trademark process in general, much less the intricacies of the violation and parties involved. For this reason, attorneys must function as both litigator and educator. They need to step back from the case at hand and educate jurors about the copyright, trademark, or patent process, and the technology involved so jurors will understand the framework into which they can fit the presented evidence.

Litigating trademark, patent and copyright cases
Judge or jury trial? The decision to push for a bench or jury trial is debatable. Some experts believe that bench trials are preferable to jury trials when the case:
1. Is technically complex
- or -
2. Involves unlikable or hard to believe witnesses
While there is certain empirical support for this assertion, it is ultimately rooted in an overgeneralization about judges in general: that they are more intelligent, and can therefore grasp more high-level legal information, than the average juror. Perhaps this is the case in some instances. But our research suggests that jurors are both willing and able to grasp the evidence and render a fair verdict if they are properly educated and presented a clear, concise and compelling story.

Juror Attitudes
Jurors, for the most part, view their task as an important one. They want to make the right decision so that, at the end of the day, they can feel good about themselves and walk away from the experience with a clear conscience. The attorney's job is to help them achieve this goal by presenting the evidence in such a way that it is easily understood and incorporated into the framework of the case. This can be a challenge in cases that are highly complex or technical because if jurors do not understand what is presented, they will tend to fill in the blanks with information from their own background, information that will then be used as the basis for their decision. For example, our research suggests that Plaintiff-oriented jurors were more likely than Defense prone jurors to believe that "a company will often copy another company's invention and change it just a bit so that it does not violate any patents." Needless to say, such preconceived notions, if used in the decision-making process, would be very advantageous to the Plaintiff but detrimental to the Defense. This is why pre-existing attitudes can and do make a difference; especially in cases that are particularly complex.

Our experience suggests that even in complex patent, trademark or copyright cases, jurors are willing to grasp the evidence and render a fair verdict. Their ability to do so however, depends on whether the attorney has done a good job of educating them about the basics of the case before introducing their arguments. In our experience, the best way for attorneys to approach these cases is to think of themselves as teachers, the case as a story that needs to be told in its entirety, and the jurors as students. Doing so gives jurors the information they need to do their job.

Some interesting information we have gathered in copyright, patent, and trademark cases suggests that jurors:

Are typically unfamiliar with anyone who works in the patent, trademark or copyright industry.
Are typically exposed to patent, trademark, or copyright processes only through their employer's involvement in patent litigation.
Tend to recognize that because the US Patent Office is a government agency, if they issue a patent, the patent must be valid. At the same time, the US Patent Office is recognized as fallible because it is a government agency.
Tend to believe that it should be almost impossible to rescind a patent once it has been awarded.
Tend to believe that it is the patent applicant's responsibility to submit any existing previous and relevant technology along with their application.
Tend to believe that patent holders deserve to be paid by anyone making a product similar to the patented product but that in order to violate patent laws their product must be identical to the protected product.
Tend to believe that applicants who fail to follow the rules for patenting a product should not be awarded a patent.
Tend to believe that patent owners are unlikely to sue for infringement unless they have a good case.

Whether a bench trial or jury trial, you are still dealing with a human being that needs to understand the framework into which he/she can fit the presented evidence. Presenting a clear, concise and compelling story is the key to successfully litigating a complex case. Using a reputable consultant, who is familiar with complex cases, and their impact on jurors' decision making, will help the trial team to prepare a winnable case.

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