Ideas

Bloomberg Securities Litigation and Enforcement Report

July 2010

Presumed Guilty: Accounting Defendants and the Burden of Persuasion

When auditors enter the courtroom charged with professional malpractice, they bring with them a heavy burden of persuasion. If you are the defendant in an accounting malpractice case, it is a safe bet that most of your jurors will think you knew about your audit client's fraudulent conduct—even before they have heard any evidence.

That's because no matter how much the judge emphasizes that plaintiff has the burden of proof, jurors almost always put the onus on accountant defendants to show that their audit work was competent. The burden shifting happens because jurors typically have little or no experience with accounting and auditing, so they assume that audits are like a criminal investigation and that auditors are the detectives.

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Managing Intellectual Property
February 2009

Why US juries are pro-plaintiff?
Corporate defendants face an uphill battle in patent infringement cases - but not for the reasons their lawyers usually cite. Chuck Kauffman and Casey Anderson explain

Statistics show that juries are particularly pro-plaintiff with respect to deciding patent infringement disputes. While some observers attribute this to a simple lack of technical understanding, there are other factors defendants should consider when developing their litigation strategies in such cases. For instance, jurors tend to have high regard for inventors, patents and the patent system, while their views of the typical corporate patent defendant are decidedly negative. By understanding this perspective and taking time to teach the jury their own invention stories, defendants can markedly improve their chances of success.

A recent PriceWaterhouseCoopers study shows that plaintiffs won more than 63% of patent infringement cases tried to a verdict. This finding comes as little surprise to patent lawyers, who often express frustration with the difficulty of explaining cutting-edge science to jurors lacking the technical experience to evaluate scientific evidence.

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Legal Times
February 19, 2007

The Air Force Is Hiding the UFOs in Roswell?
When jurors are prone to believe conspiracy theories, trial lawyers had best be ready to rebut.

"Most attorneys understand the need to adapt their arguments to the jury, but few appreciate the size of the gap between their own experiences and attitudes and those of the people they need to persuade. Lawyers ignore this gap at their peril."
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• Charles Kauffman and Casey Anderson, “Corporate Defendants Face an Uphill Battle in Patent Infringement Cases, But Not for the Reasons Their Lawyers Usually Cite,” Managing Intellectual Property (February 1, 2009)
• Joshua Horwitz and Casey Anderson, Guns, Democracy, and the Insurrectionist Idea, (University of Michigan Press 2009).
• Joshua Horwitz and Casey Anderson, “Taking Gun Rights Seriously: The Insurrectionist Idea and Its Consequences,” Albany Government Law Review, Volume 1, Issue 2 (2008), pp. 496-515.