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19 Prac. Litig. 3 (2008)

handle is hein.ali/practlit0019 and id is 1 raw text is: The Practical Litigator volume 19 I number 1 1 January2008 Making The Most Of Focus Group And Mock Trial Research Richard Gabriel 7 Trial consulting, like many of the social sciences, has evolved considerably and advances in research methodologies reveal how jurors (and judges) arrive at their ultimate verdict by constructing a cohesive case story out of each side's evidence, the legal instructions, and their own personal experiences, beliefs, and world views. In this article, Richard Gabriel explains how to plan effective jury research, and examines the specific uses of focus groups (comprehension, values, advocacy, liability, theme and story development, witness reaction, and demonstrative evidence research) and mock trials (opening and closing arguments, witness presentations, voir dire, and large group research) and provides questions both to help identify the major issues in the case and structure the research. The Lawyer's Evolving Role As...IT Specialist? Joseph J. Ortego and Scott P Eisenberg 21 Let there be no mistake: under the revised Federal Rules of Civil Procedure, lawyers need to know about electronically stored information (ES)-how it is generated, how it is shared, and how it is stored-if they hope to comply with their discovery and disclosure obligations. This article by Joseph J. Ortego and Scott P. Eisenberg provides an overview of the revisions and provides tips on how to avoid sanctions (or worse) by learning from IT personnel, preparing in advance-and being ready to re-learn everything in 18 months. Understanding And Using Statistical And Scientific Evidence (With Model Cross- Examination) Malcolm A. Misuraca 27 There is a clear distinction between statistical evidence and hard scientific evidence, right? No, not really. In this article, Malcom A. Misuraca explains how statistical evidence arises in civil litigation, the basics of bell curves and distributions, means and averages, and how statistics apply in the class action context. He also explains how to get the statistical evidence in front of the judge, giving the judge the basic tools to understand and assess the evidence, breaking down the evidence into manageable sections, why you shouldn't substitute the median for the mean, the standard deviation and variance. Finally, the author provides a model cross- examination designed to show weaknesses in the statistical basics. Patents: Will eBay's Rationale Be Applied To Preliminary Injunctions? Caroline A. H. Sayers 45 In patent infringement actions, it used to be a matter of course that once the infringement of a valid patent was established the court would issue an injunction against further infringement by the defendant. The case of eBay Inc. v. MercExchange, L.L.C., 126 S. Ct. 1837 (2006), eliminated this presumption, at least with respect to permanent injunctions. But what about preliminary injunctions? As Caroline A. H. Sayers explains, although the presumption may be alive and well for preliminary injunctions, the wise course is to be prepared to prove irreparable harm. The Art Of War For Litigators Robert F. Bettler, Jr. and Elizabeth R. Spievak 51 Given the nature of litigation, it should come as no surprise that the lessons from Sun Tzu's Art of War can be of use to the litigator. In this article, Robert F. Bettler, Jr. and Elizabeth R. Spievak discuss the Tao (the psychological side of the case), heaven (the legal side of the case), earth (the facts of the case), the generals (the judge and counsel), and organization (management and logistics of the case). Use Of The Deposition At Trial Howard B. Klein 59 In this excerpt from Howard B. Klein's new Deposition Guidebook (ALI-ABA 2007), the author explains how a deposition can be used at trial, and demonstrates it through model lines of questioning. The Law of the Litigator To purchase the online version of this issue, go to www.ali-aba.org and click on Periodicals Back issues, individual articles, and forms are also available there.

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