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There is an Italian phrase that succinctly expresses the problem of translation: “traduttore traditore,” literally “translator traitor.” No translation can completely transfer the subtleties and nuances of the original language. Thus, the translator is always, to some extent, a traitor to the original. Patent litigators are necessarily thrust into the role of the traitorous translator. They translate the technology and the law so that their client’s story can be understood by the judge and the jury. While it may be impossible to do a “perfect” translation, the task is worth the effort. The lawyer who does the better translation usually wins. All trials present communication problems, but patent trials present particularly difficult problems. These trials commonly hinge on complex scientific principles that most judges and jurors last touched in high school, if ever. Not only are the concepts difficult, they often bring with them a completely new vocabulary. The lawyers and their clients often speak a language unknown to the judge and jury. The scientist witnesses often throw around so many complicated scientific terms, the jury may think that they are speaking Latin. And the problem is not limited to scientific jargon. Patent lawyers have an imposing vocabulary all their own. Common patent law terms such as “prior art,” “enablement,” “specification,” “continuation-in-part,” “doctrine of equivalents” and the like are completely foreign to most jurors and need to be explained. Jury research confirms what trial lawyers have long surmised. Jurors tend to be unfamiliar with, and uninterested in, scientific and technical topics. Most potential jurors say that they would feel “uncomfortable” serving as a juror in a case involving scientific or technological issues. Typical jurors did not particularly like math or science in high school and have had scant training in these areas since then. They come to court with little scientific background and the preconceived notions they do carry with them are almost always uninformed. In order to become an effective advocate in a patent case, the lawyer must overcome these obstacles by translating the client’s experience and legal contentions into language that is both understandable and persuasive to the judge and jurors. How is this done? The lawyer must become a teacher and a translator. He must find the client’s story, edit that story and then tell the story to the judge and jury. Finding the story Unlike the translator of a literary work, the patent litigator does not have a story already written for him or her. Rather, the patent litigator must first find the story that he or she will later tell to the jury. This process is critical, but it is far from easy. The facts do not come neatly packaged. Rather, they are found in incomplete, contradictory and confusing fragments. Each witness has his or her unique and perhaps distorted perspective on what happened. And the documents are often no clearer, reflecting as they do the limitations of their authors. Out of this jumble of information the lawyer must find a story that shows why his client is right and the other side is wrong. Finding the client’s story is difficult in all cases, but it can be particularly difficult in patent cases. The client will often be unable to articulate his or her own story. The clients in patent cases are commonly scientists and engineers, individuals of extraordinary intelligence and years of training. But the same education and ability that gave them the tools to make the invention often make them ill-equipped to articulate a story that will be understandable, much less captivating, to a lay audience. They are so deeply immersed in the culture of scientific research that they literally speak a different language, and they are often far more interested in irrelevant scientific details than the facts most laypeople would find significant. Unfortunately, the client witnesses often fall into two unhelpful camps � the boastful and the bashful. The boastful exaggerate the significance of the invention and the damages to the business (or the opposite when accused of infringement). The bashful stray just as far from the truth in the other direction. The self-effacing inventor will give the impression that the invention was no big deal and that the defendant’s infringement has a minimal effect on the business. The patent litigator, however, must get beyond the personalities to the facts. Thus, in some cases, depositions of opposing witnesses reveal the client’s story better than the client’s own witnesses. Penetrating the numerous obstacles to get to the facts is not enough. The facts do not speak for themselves. The lawyer’s job is to find a story that will organize, prioritize and explain the facts so that the judge or the jury will want to find for the client. The story must address the legal issues in dispute and must also be a compelling tale of common human experiences. This does not mean, however, that the patent litigator is free to create a story. Such unmoored creativity is a prescription for disaster. The story might sound good when told by the lawyer, but the witnesses will not be able to back it up. Opposing counsel will be able to expose this disconnect and strip the lawyer of his most important asset � his credibility. Thus, while the patent litigator must not limit himself to the story as initially told by the client witnesses, he must listen closely to it. Ultimately, the voice of these individuals must come through. The effective patent litigator must be able to articulate a simple human story that the scientists and engineers will be able to recognize and defend as their own. Editing the story In many ways, the challenge before a patent litigator is like the challenge before a director charged with bringing a story from a novel to the big screen. There is always too much material in the novel. Some parts of the story must be left on the cutting room floor for fear of boring or confusing the audience. Similarly, although the client often feels the need to explain everything to the judge and jury, the litigator must rein in this impulse for overexplanation. It will only cause confusion, and possibly lead to resentment. This is not to say that the science should be left out or “dumbed down.” To the contrary, jurors are offended by condescension. Many judges and jurors like to learn the science that is necessary to decide the case. But this affinity for learning will soon turn to antipathy if the science is not actually necessary for the decision in the case. The essential science should not be edited out for another, more important, reason. Giving the jurors an understanding of the basic scientific principles that support the argument helps persuade them and keep them persuaded. Once they understand these key scientific concepts, they have the ability to reason toward the desired conclusion independently. The rationale for the desired verdict is no longer merely a lawyer’s argument, but the juror’s own conviction. A juror with an independent understanding of the essential scientific principles can become an effective advocate in the jury room and less susceptible to counterarguments by the other jurors. How much science should be left in? How much should be left out? The touchstone should be a person with good practical common sense but no technical training. Until the righteousness of the client’s cause is easily apparent to one’s mother (or brother, or cab driver, etc.), the story needs work. Further, the editing process applies not only to technical details but also to legal theories. Too often, patent litigators cling to every legal theory that can be asserted on the facts. This approach is short-sighted. A trial is a contest for credibility. If the parties did not disagree on the facts, there would be no reason for the trial. When deciding which side to believe, the jury can and does consider all the evidence. Thus, a loss of credibility on a marginal claim may nonetheless be very important because it affects the believability of the client and the lawyer on a key claim. For example, a claim of willful infringement can be a liability if it allows one’s opponent the opportunity to introduce additional arguments for invalidity or noninfringement. On the other hand, even a weak willfulness case may be worthwhile if it brings in evidence that fits other helpful themes. Thus, when considering which legal theories to keep and which to cut, patent litigators should think about the evidence the theories make relevant and the story they allow to be told, not merely the remedy that they make possible. Telling the story In translations, as in litigation, the desire for perfection is often the enemy. Certain shades of meaning are always “lost in translation.” No two languages correspond precisely and completely. Translators are always faced with words and phrases that simply do not have a corresponding word or phrase in the other language. What do they do then? A good translator will focus on the ultimate goal of the translation � to convey the message of the original. He or she will not go into lengthy explanations to try to deal with the subtleties of an untranslatable double-meaning in the original. A good translator will accept the limitations of the languages while being true to the message of the author. The patent litigator must do the same. He must not be discouraged by the fact that some of the intricacies of the science cannot be explained easily in simple lay language. He must focus on making sure that the essential message is conveyed. The words “generally” and “usually” can provide great assistance in this effort. Scientists and engineers who have spent years learning and explaining the often unexpected ways the world works often feel compelled to dispute any generalities and explain all the exceptions to the general rules. Sometimes these exceptions are important, and when they are, they should be explained thoroughly. But often the exceptions do not affect the issue before the court, and in those instances a simple statement of the general rule is most effective. Often, the best way to avoid the inherent limitations of language is to use pictures. At a time when more and more jurors were raised on television and the Internet, jurors need to “see” what the litigator means. Good graphics can win a case; bad graphics can lose it. And when considering graphics to make a point, the opponent’s graphics should not be forgotten. Often an opponent’s graphics can be used to make the point and make it more effectively. By using an opponent’s graphics, litigators can avoid the jury’s lingering assumption that the litigators’ own graphics may be slanted. The use of an opponent’s graphics can create the effect of an admission, as the opponent’s exhibit “testifies” in favor of the litigator’s client. The importance of visual aids does not diminish the importance of words. Words caption pictures; they explain what the image means. Metaphors and analogies do with words what demonstrative exhibits do with pictures and diagrams. A good metaphor works both to explain an idea and to establish an attitude toward that idea. The right words can be worth a thousand pictures. And when choosing words, litigators should stay away from technical and legal jargon. If it sounds like Latin, they should find a simpler word. A patent litigator is necessarily thrust into the role of translator and teacher. He needs to be able to present to the judge or jury a compelling story showing that his client is right. By embracing this role and recognizing the inherent limitations in it, the patent litigator can present the client’s position in the most persuasive manner possible. Although a translator may always be a traitor to some of the details and nuances of the original, the patent litigator must take on the job in order to make the client’s story understandable and persuasive to the judge and jury. Michael Padden is an intellectual property partner in Howrey’s Chicago office.

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