Reaching the Jury in the High Technology Case

• Publication year: 1996
• Pages: 111
• Citation: Vol. 25 No. 11 Pg. 111

25 Colo.Law. 111 Colorado Lawyer 1996.

1996, November, Pg. 111. Reaching the Jury in the High Technology Case

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Vol. 25, No. 11, Pg. 111

Reaching the Jury in the High Technology Case

by Richard L. Grossman andEugene Crew

© 1996 Richard L. Grossman and Eugene Crew

The conventional wisdom among many intellectual property litigators is that high technology trials are about---well---high technology. That proposition appears simple enough. As a result, many litigators often devote most of their efforts toward aiding the jury in their comprehension of complex technologies and lose sight of more important elements of jury persuasion

The truth is that high technology trials are not about technology. They are about human interaction, human motivation, and human frailties---just like all other types of trials. Technology is merely the medium for those interactions. Ultimately, the jurors will care little about the intricacies of the technology itself. They will care deeply about fairness, honesty, and good faith. Hence, the key to winning a complex technology case is to put the technology in proper perspective and focus on the issues that will mean the most to the jurors.

Technology's Role in the Case

The essence of jury persuasion is the art of providing twelve conscripted people with a reason to care about the outcome of a private dispute when most of them would much rather be doing something else. Successful trial lawyers know this and focus their efforts on giving the jury something important to care about. For some reason, however, intelligent litigators often lose sight of the issues that matter the most to jurors when complex technological or economic facts obscure the trial landscape. Far too often, litigators convince themselves that jurors will acquire the same passion for chemical processes, electronic circuits, and relevant markets that the clients and experts possess. In doing so, the litigators ignore the fact that jurors are there to correct some perceived injustice and do not regard the mastery of scientific or economic minutia as their primary mission.

The key to determining what role technology should play in a high technology case is to use scientific evidence solely as a means of illustrating the human interaction at issue in the dispute---and not the other way around. The focus must be on what the parties did or did not do to each other. The technology only illustrates how or why they were doing it. In that context, the jurors will understand precisely which aspects of the scientific evidence they must comprehend in order to decide the case and will focus their attention on mastering only those details that are relevant to their decision.

Knowing that it is unrealistic to expect a jury to learn an unfamiliar scientific discipline, it is the trial lawyer's job to place the technological facts in a...