How Jury Consultants Assist with Counterfeiting Defenses

How Jury Consultants Assist with Counterfeiting Defenses

Understanding the Jury Pool

One of the first things a jury consultant will do is conduct research on the demographics and psychographics of the jury pool. This includes gathering data on age, gender, race, education level, occupation, and interests. The consultant will look for trends and commonalities within the pool that may sway jurors one way or the other. For example, a pool with a high number of artists or designers may be more sympathetic to trademark claims, while a blue-collar pool may take a more pragmatic view.

In-depth questionnaires and interviews are often used to gain additional insights into the backgrounds, values, and attitudes of potential jurors. All this data helps the defense team understand the type of messaging that will resonate with the jury.

Questioning Jurors

During voir dire, consultants will assist with developing juror questionnaires and structuring oral questioning. The goal is to elicit information related to the attitudes, beliefs, and experiences that may influence jurors’ perceptions in a trademark case. Defense attorneys can then exercise challenges to strike problematic jurors or develop targeted strategies to address biases.

For example, jurors who place a high value on creativity may have trouble accepting that common shapes and symbols can be protected trademarks. Those with backgrounds in marketing or law enforcement may take a harder line on counterfeiting. Consultants help craft questions to draw out these leanings without appearing heavy-handed.

Preparing Witnesses

Consultants are often brought in to help prepare defense witnesses for deposition and trial testimony. They may conduct mock cross-examinations to identify potential pitfalls and opportunities. Training focuses on developing simple, credible explanations for complex legal concepts like genericide and secondary meaning. The goal is to have witnesses appear trustworthy, likable and confident before the jury.

For expert witnesses, consultants help streamline technical testimony into easy-to-grasp language. They make sure experts avoid unnecessarily complex jargon and keep explanations brief yet impactful. This prevents losing or confusing the jury on key technical points.

Crafting Opening Statements

The defense’s opening statement is a crucial opportunity to frame the issues in your favor right out of the gate. Experienced consultants will work with the legal team to craft a compelling story targeted to the specific jury. The statement should lay out an alternative narrative that resonates with closely held beliefs and attitudes uncovered during jury selection.

For example, if the jury pool includes many free-market proponents, the opening might focus on the importance of healthy competition and consumer choice. Or if it skews older, emphasizing generational differences in symbols and branding could help sway opinion. The consultant’s in-depth jury research makes it possible to tailor a powerful opening.

Preparing Cross-Examination

One of the defense’s main goals is to undermine the credibility of the plaintiff’s witnesses. Consultants dig deep into deposition transcripts to identify potential vulnerabilities for each witness. They look for inconsistencies, bias, exaggerations or conclusions that outpace the data. The defense team can then develop a meticulous cross-examination to cast doubt on the witness’s account.

Consultants also think about the witnesses’ differing personalities and communication styles. Some may be confident bordering on arrogant, while others are more cautious. Cross-examination strategies are tailored to capitalize on each witness’s individual weaknesses and blind spots. Their testimony can often make or break the plaintiff’s case.

Crafting a Closing Argument

The closing argument represents the last chance to bring the jury around to the defense’s point of view. Consultants will again leverage their jury research to craft a closing that plays to the specific makeup of the panel. It should tap into the attitudes, emotions and experiences most likely to resonate. The language and framing choices are designed to sway jurors leaning in the other direction.

For example, if the jury seems to favor the underdog, the defense might position their small client as the victim of trademark bullying. If the jury favors order, the defense can warn of the chaos that would ensue if generic symbols could be monopolized. Consultants rely on their depth of jury insight to make the strongest closing pitch.

Interpreting Jury Reactions

Throughout the trial, consultants closely observe juror reactions to witnesses, testimony, and attorney arguments. They take note of body language, facial expressions, and other unspoken cues. Are they nodding along or do they seem skeptical? Did a particular point provoke raised eyebrows or frowns? This feedback allows the defense team to pivot and adjust their approach if needed.

Consultants may advise redirecting questioning if jurors appear bored or impatient with a witness. Or emphasizing certain themes or evidence that seems to resonate. Their insights help reveal how the jury is receiving each element of the defense case as it unfolds.

Polling After a Verdict

If the defense loses at trial, consultants may arrange confidential juror interviews or surveys afterwards. The goal is to understand why the jury ruled against them despite their best efforts. This provides valuable insight to improve strategy for future cases. Perhaps a key witness backfired or a theme fell flat. Feedback from the actual jurors reveals what the defense could have done differently for a better outcome.

Post-trial research can also validate effective strategies that should be repeated. For example, jurors may confirm that a particular defense theme or key witness helped persuade them. The more data collected on what works, the stronger future counterfeiting defenses can become.

Conclusion

Jury consultants are invaluable strategic partners in building a targeted, insight-driven defense in counterfeiting and trademark infringement cases. Their research, analysis, and guidance help craft the most persuasive narratives tailored to the jury pool. Consultants also provide critical feedback on how jurors are responding at each phase of the trial. Their specialized expertise in understanding and communicating with juries can often make the difference between winning and losing.

Sources:

The Use of Jury Consultants in Understanding Juror Bias in Trademark Litigation

Winning a Trademark Case: Insights from Jury Consulting

Trademark Infringement Cases | Jury Consultants | Trial Consultants