Webinar - Porter Hedges LLP · 2015-02-24 · Tower brick Ex. 316 Jan. 2008 Start tower brick level...

Education Services | 1

EXPLAINING COMPLEXITYHow to Improve Your Presentation of Technical Information in Arbitration

WebinarFebruary 24, 2015

EDUCATION SERVICES

Education Services |

Disclaimer

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This presentation is © 2015 American Arbitration Association, Inc. All rights reserved. No part of this document may be reproduced, transmitted or otherwise distributed in any form or by any means, electronic or mechanical, including by photocopying, facsimile transmission, recording, rekeying or using any information storage and retrieval system, without written permission from the American Arbitration Association, Inc. Any reproduction, transmission or distribution of this form or any of the material herein is prohibited and is in violation of US and international law. American Arbitration Association, Inc. expressly disclaims any liability in connection with use of this presentation or its contents by any third party.

The views expressed by panelists in this webcast are not necessarily those of the American Arbitration Association, Inc. The American Arbitration Association, Inc. assumes no responsibility for the content and materials presented by speakers during the webcast.


Speakers

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Laura A. Kaster Laura A. Kaster LLCPrinceton, [email protected]

Harrie Samaras ADR Office of Harrie Samaras

West Chester, [email protected]

Allison J. Snyder Porter Hedges LLPHouston, [email protected]


Why this topic?

• Even with a “technical” panel, advocates should clearly and persuasively present technical evidence and information that is unique and integral to their case.

• Arbitrators do not want their deliberations plagued by a misunderstanding or lack of understanding of important technical evidence.

• Advocates can be more persuasive if arbitrators are comfortable with technical evidence and understand key definitions.

• Flexibility and informality of arbitration provides unique options – when and how - to present and explain technical information and evidence.

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Audience Polling Question

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What is your primaryprofession?

A. NeutralB. In-house counselC. Outside counselD. Neutral and outside counselE. Other


Goals

• We are going to talk about the stages of an arbitration --WHEN you might give the panel help on the technology -- by highlighting those stages here.

• We are going to talk about HOW at each stage you can provide the help and again, we will try to highlight that information.

• A word about examples or illustrations in this webinar . . . . they are just that. We are not the scientific, technical or graphics experts who will assist you in creating the excellent and accessible information you will need to present to your panel. We are trying to illustrate a few of the ideas we are suggesting.

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“When” – Opportunities to Educate and Persuade

• Technical issue evaluation

• Pre-hearing submissions• Pre-hearing technology tutorial• Evidentiary hearing• Post evidentiary hearing

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“When” – Technical Issue Evaluation

• Mock Arbitration– Give portions of your technical presentation (e.g., opening

statement, closing argument, portion of direct testimony).– Use someone outside of your hearing team or an

independent arbitrator.– The person(s) should have a technical background similar

to the panel, if possible.

• CaseXplorer Arbitration– An online case evaluation tool where a panel of evaluative

arbitrators provide their views and perceptions about facts and legal arguments presented to them.

– Services provided by DecisionQuest using AAA arbitrators.http://www.casexplorerarbitration.com

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If you have a “technical” panel, advocates need not clearly present technical evidence and information that is unique and integral to their case.

A. TrueB. False


“How” – Pre-hearing Submissions

• Prime the Pump – attune the Panel to technical proofs it will hear at the hearing (broad and/or specific concepts).

• Paint a backstory or theme that includes key technical points and their legal relevance.

• Introduce explanations of key technical terms or explanations (this might include a glossary).

• Roadmap key technical evidence.

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“How” – Pre-hearing Submissions

• Explain key tests, experiments, measurements, metrics.

• Use witness list to alert Panel to witnesses giving technical testimony and their background:

“Dr. X has been head of research and development for ABC Company for 15 years. He will explain and testify about the tests the company performed to obtain FDA approval of ‘Druglera’”.

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“How” – Roadmap/Timeline

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“How” – Pre-hearing Tutorial

• Include in pre-hearing submission or as a stand alone presentation with slides and handouts.

• Might be presented by outside or in-house technical expert, or counsel with technical background.

• May be an agreed upon by counsel.

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“How” – Pre-hearing Tutorial

• Focus on the technical issues the panel wants explained.

• A tutorial ≠ an opening statement or focused on a party’s legal position, but . . . .

• . . . an advocate might seek guidance from the panel about linking the tutorial to the disputed claims without too much advocacy about a party’s position on legal issues.

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The following are ways that advocates might present technical issues to the panel before the evidentiary hearing:

A. Introduce definitions of technical terms in prehearing submissions and/or tutorial.

B. Explain key tests, experiments, measurements, metrics.

C. Use witness list to alert panel to witnesses giving technical testimony.

D. All of the above.E. None of the above.


“How” – Opening Statement

• “Make it real”.

• Use opening to roadmap key (technical) evidence and identify who will present it.

• Explain linkages between the technical evidence and the elements of disputed claims.

• Use the opening to define or redefine important technical terms:

“You will hear testimony from Dr. X, a dedicated employee of Acme Pharmaceuticals for 30 years, who will explain the procedures for formulating and testing on animals and humans `Druglera’. He will explain what drug formulation is – the process in which different chemical substances, including the active drug, are combined to produce a final medicinal product.”

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“How” – Daily Hearing Updates

• “We introduced the concept drug efficacy in our pre-hearing submission at pages 3 to 4 and explained it during the tutorial in slides 9-10. Tomorrow, you will hear testimony about the efficacy problems ‘Druglera” had from Dr. X (an FDA expert) and Ms. Y (an expert in clinical trials).

• “Today, you will hear from Ms. Y an expert in the field of building materials who will testify about the materials used in the beams of the collapsed building and why the building collapsed.”

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• The SARS graphic describes the causal mechanisms of disease transmission- uncertain transmission routes are dotted lines.

• It includes molecular, clinical and epidemiological sources.

• It distinguishes more and less certain links.

• It annotates links and nouns.

• No cartoons and no PowerPoint “chartjunk”.

• It provides reasons to believe.

• GET EXPERT HELP, check out Tufte’s Beautiful Evidence.

“How” – Communicating Complex Information

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“How” – Credible and Informative Graphics

• Charts and visual evidence – graphics – can condense and explain key pieces of information.

• Show causality.

• Identify multiple sources and levels of data.

• Annotate linkages.

• Annotate nouns.

• Illustrate efficiency of design.

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Opening statements should not be used to present technical information to the panel because it will be repetitive of what they will hear at the evidentiary hearing and during closing argument.

A. TrueB. False


“How” – Mapping


• Mapping tells why the image matters.

• What are mapped pictures?– Annotations on images– Credible– Quantified– Contextualized– Clear Scale

• Well designed, thoughtfully mapped images combine:– Direct visual evidence + Power of diagrams.

• Most explanatory and evidential images should be mapped.

“How” – Mapping


“How” – Direct Examination

• Use fact/expert witness to explain technical information:

“Mr. Smith, I would like to ask you some questions about how ‘Druglera’ was formulated. Can you first explain to the Panel, what it means to formulate a drug? [Answer]

Did you test the safety and efficacy of the drug to obtain FDA approval? Yes.

Can you explain for the Panel what it means for a drug to be “safe”?

Can you next explain for the Panel what it means for a drug to be “efficacious”?

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Subcontractor’s Contract vs Actual Schedule

CONTRACT Schedule for Tower Completion

Jul. 30, 2008

Handrail install to start

Task 84

Aug. 19, 2008 Tower brick to be

complete Task 223

Dec. 3, 2007 Aug. 26, 2008

Tower brick to start Handrails to be

Task 192 complete Task 84

Oct. 14, 2008 Tower brick clean down including mast climber removal to be complete Task 224

Feb. 23, 2009 Occupancy begins Task 1054

2007 2010 2009 2008

Dec. 2007 Brick/mast climber installation

Jun. 3, 2008 Tower cast stone

Aug. 2008 Installed

Feb. 2008 Start tower

Subcontractorcontinues to complete Aug. 13, 2009

Ex. 13 handrails on lower levels

Jan. 2009 Installed vast

majority of hand rails Tower

clean down complete project in other areas

on tower begins

brick level 10 Ex. 14 Ex. 8 Apr. 3, 2009 Tower brick Ex. 316

Jan. 2008 Start tower brick level 9

Mar. 2009 Occupancy begins

Ex. 8

Feb. 26, 2008 Tower brick Ex. 28

ACTUAL Schedule for Tower Completion Feb. 7, 2009 Mast climber removal complete Ex. 108

Subcontractor’s Contract vs Actual Schedule

CONTRACT Schedule for Tower Completion

Jul. 30, 2008

Handrail install to start Task 84

Aug. 19, 2008 Tower brick to be

complete Task 223

Dec. 3, 2007 Aug. 26, 2008 Tower brick to start Handrails to be

Task 192 complete Task 84

Oct. 14, 2008 Tower brick clean down including mast climber removal to be complete Task 224

Feb. 23, 2009 Occupancy begins Task 1054

2007 2010 2009 2008

Dec. 2007 Brick/mast climber installation

Jun. 3, 2008 Tower cast stone

Aug. 2008 Installed

Feb. 2008 Start tower

Subcontractorcontinues to complete Aug. 13, 2009

Ex. 13 handrails on lower levels

Jan. 2009 Installed vast

majority of hand rails Tower clean

down complete project in other areas

on tower begins

brick level 10 Ex. 14 Ex. 8 Apr. 3, 2009 Tower brick Ex. 316

Jan. 2008 Start tower brick level 9

Mar. 2009 Occupancy begins

Ex. 8 Feb. 26, 2008 Tower brick Ex. 28

ACTUAL Schedule for Tower Completion Feb. 7, 2009 Mast climber removal complete Ex. 108


“How” – Post-Hearing Submissions

• If a roadmap was not prepared earlier consider presenting one in the post-hearing submission (e.g., development and testing of a drug, FDA approval process, design and construction of a building).‒ Tie events on roadmap to testimony about the same (that they

occurred, when they occurred).‒ Tie the information on the roadmap to the support or proof for the

disputed claims.

• If there was testimony about a test and the results, explain what you want the panel to understand about the test and the results as it supports proof of your claims.

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“How” – Post-Hearing Closing Arguments

• Use copies of slides and/or handouts that arbitrators can take for deliberations and writing the award.

• Explain what the technical evidence demonstrated and how, including providing testimonial references.

• Provide a roadmap of key technical evidence/events (product development and/or testing, design/construction of building).

• Link technical evidence to proof of the elements of disputed claims.

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In post hearing briefs or closing argument, linking technical evidence to the proof of the elements of your disputed claims should not be done because that is solely within the province of the panel.

A. TrueB. False


Concluding Remarks


Questions


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Webinar - Porter Hedges LLP · 2015-02-24 · Tower brick Ex. 316 Jan. 2008 Start tower brick level...

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