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Simple Jury Persuasion: When to hand exhibits to the jurors and when to keep them away!

Friday, November 4, 2011
posted by Douglas Keene

We do a lot of patent work wherein a major goal is to show how two things are the same or different. It’s a question jurors are often comfortable with since it is one we’ve all thought about. The stakes for plaintiffs and defendants are much higher than they were on Sesame Street though and we are always looking for a bit of an edge.

Pretrial research is always useful in these large and often very technical cases. And those wily academics have given us new information to apply to our efforts, and to yours.

Researchers recently discovered that our ability to learn and to remember information depends on what we do with our hands while we are learning!  According to their findings, there are differences in what you process and ‘see’ depending on whether something is in your hands!

While the researchers describe these findings from an evolutionary psychology perspective, we don’t care so much why they think it works as that it does seem to work!

If you hold something in your hand, you notice differences among objects more effectively.

If you look at something from a distance (not near your hands), you are more likely to note similarities and consistencies between those things.

The implications for patent and IP cases are pretty straightforward. If you are defending an infringement charge, you want to give jurors the opportunity to hold prototypes in their hands. If you are bringing an infringement charge, you want jurors looking at the prototypes from a distance.

It’s an interesting idea. We were in North Carolina earlier this year on an infringement case and the prototype invention was a very heavy industrial device.  Not huge, just heavy. And we saw this exact phenomenon in real life. Because of how heavy the prototype was, it was on the table in front of me as the focus group facilitator. I described the similarities and the differences in appearance and function. Jurors focused on appearance and how the two items ‘looked’ the same.

As the group prepared for a break, jurors were told they could approach and examine the objects. They did. And as we listened in to their reactions from behind the mirrored glass we saw them poking and hefting and examining the prototypes and exclaiming they could now ‘see’ differences between the two prototypes.

The researchers say this all began when we had to tell poisonous berries from non-poisonous berries and we cannot say with certainty that they are wrong. But for us, the knowledge that there are different processes involved in close-up examination and observation from a moderate distance is a game-changer.

Most IP litigation involves claims of infringement (these two things are the same) and validity (this is different than what has come before).  The more physical the contact they can have with the exhibits, the stronger their belief in the correctness of their decisions.  If the patent dispute is over highly abstract inventions (biotech compounds or organisms, software, or high-tech generally), that same value attaches to analogous materials that they might have encountered in their lives.

Make it familiar through touch, and the point can become more persuasive.

Davoli CC, Brockmole JR, & Goujon A (2011). A bias to detail: how hand position modulates visual learning and visual memory. Memory & Cognition PMID: 21968875

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