Ted’s Top Ten from 2011

Here are a few of my most popular and favorite articles fromthe past year. Thanks for reading and sharing this blog!

JANUARY 12, 2011 – This article offered the firsthead-to-head comparison of the first two trial presentation apps for iPad, andquickly found itself at the top position for all-time most popular articles,where it remains today. There are now others, including ExhibitA and ExhibitView for iPad, which I will be reviewing very soon.

JANUARY 24, 2011 – What is it about those iPad app reviews?Readership on this blog increased exponentially in 2011, largely attributed to themany iPad app reviews I’ve written. This article explores several apps for juryselection and monitoring, and is comfortably in the second position forall-time most popular articles.

MAY 3, 2011 – Often, litigators make certain assumptionsabout the Judge and jury, which are not always on the mark. One such assumptionis that Judges don’t care for the use of technology in court. Here are a fewnoteworthy quotes for the doubters.

MAY 18, 2011 – I’ve never really used a device just becauseit’s the cool thing to do. I do love my iPad, but I don’t believe it is a truelaptop replacement – regardless of what others might say. Same goes for myphone. I did my homework, and found that the Google phone would be a bettertool than the iPhone, and on a better network (Sprint) that still features anunlimited data plan. This particular article was also very popular in thenon-legal tech channels.

JULY 5, 2011 – It’s hard to believe this happen this pastyear – it already seems so long ago. Our justice system was put to the test, aswas our perception of trial coverage by the media. Whether you agree or not,the verdict stands.  This article wasvery popular in both the legal and non-legal audience.

SEPTEMBER 6, 2011 – Written for CAOC Forum Magazine, thisarticle was mentioned as one of the most-read posts on LinkedIn. While thebasics of trial preparation are similar, you’d better have everything ready togo in an abbreviated trial.

SEPTEMBER 21, 2011 – This was perhaps the saddest article I’veever written. Regardless of your position on capital punishment, we must notallow our judicial system to be manipulated in the interest of convenience orto satisfy public rage.

NOVEMBER 7, 2011 – Due diligence should go beyond thestorefront. Make sure the person who will actually be working with you isqualified. Don’t just accept the sales pitch.

NOVEMBER 20, 2011 – Hmm, looks like I was on a roll here. Ifyou are considering bringing in an outside vendor to assist with your nexttrial, this article offers another check-list of qualifications you should belooking for.

DECEMBER 4, 2011 – You can’t accuse me of tooting my ownhorn with this one. In fact, I’ve listed several of my favorite sources oflegal and technology information. In less than a month, it has found a home onmy all-time most popular articles, at number 3. Readers have added several oftheir own suggestions. Feel free to add yours.

Mobile Living: Life on the Road

No, I’m not talking about hitting the road in an RV. I’mtalking about the out-of-town trial, and a few things you might not otherwisethink about until you need them – which would then be too late. I’ll offer afew thoughts here, and feel free to add yours at the end of the article.

Internet Connection– Honestly, I can’t imagine being without a decent connection these days, whenonly a few years ago, it was a pure luxury. In most courthouses in majorcities, you can get a decent cell-phone signal. If you can do that, and if youhave a smart phone that doubles as a Wi-Fi Hotspot, you’re set for providingaccess to several laptops, iPads, or other devices. There are also servicessuch as Courtroom Connect in many courtrooms, in addition to a free publicservice in some (usually intended for jurors). All due cautions apply to each.

Printing, Scanning,Copying – These common, simple daily functions must not be overlooked, andideally, you will be able to do a decent job of each in both the war room andthe court room. While the war room should have equipment available to handlethe expected volume, you should also be able to scan or print something in thecourtroom, if necessary. There are a number of portable scanners and printerson the market, and mine fit into my carry-on bag which I take to court with meeach day. I’d rather not print 10 copies of 12 different exhibits in a bighurry, but I can handle the occasional (or frequent) emergency.
With that, you might also consider using 3-hole pre-drilledpaper if you’re putting everything into binders, so you don’t have to worryabout punching the pages. One more tip is to bring along a high-capacitystapler, since many exhibits are too thick for a standard staple (over about 20pages). You should also check out local resources for vendors.

Redundancy – You shouldalways have a current backup of your trial database available. When you’re athome, this may be simple, but when you’re on the road, although dealing with the“blue screen of death” is no longer a routine issue, problems still occur. Irecommend have a second laptop of the same make, model and configuration, inaddition to a full copy on an external hard drive, which may be used totransfer from one to the other (leaving a third copy on the drive itself). I’mnot a big fan of data sync software either, and I have seen it fail. There’snothing quite like the feeling you get when you realize something has gonewrong. At least if you’re handling it manually, you will know what you did, andlikely have a quick recovery available. Also, over-writing database files doesn’talways go as expected, so I will first delete the old set, and then copy over theupdated set. Thumb drives and cloud services such as Dropboxcan also be helpful.

Other Devices –iPads, Tablets and other devices can also help to make your life a bit morecomfortable. If you have one, you know what I mean. If you don’t, you probablywon’t understand until you get one. Although there are even apps for trialpresentation which I’ve reviewed here, such as TrialPad,ExhibitA, Evidence,and now ExhibitView (currently onsale for $29.99, which I’ll be reviewing soon), most of the cases I handle arefar too complex for the capabilities of the iPad. On smaller matters, however,using the iPad in trial could be fun. I have successfully used mine in severalCLE presentations.

Use Caution With RoomServices – If you’re looking for an easy way of upsetting an otherwisehappy client, go ahead and turn in your expense report with a long list of topmovies, fine dining, cocktails, and sending out all of your suits you’ve beenmeaning to get dry-cleaned. Just because you’re living in a hotel doesn’t meanyou’re on vacation. Although your extravagant indulgences may be strategically distributedthroughout the duration of your stay, think of how it’s going to look on paper –one right after another.

Okay, off to court. Have a great day!

12 Top Legal Sites You Should Check Out

Many of us have our own short-list of web sites we checkfrequently to keep current on topics of interest. Whether you found your way tothis site through a web search, clicked on a Twitter, Facebook or LinkedIn link,I appreciate that you’re reading the Court Technology and TrialPresentation Blawg. Of course, I also greatly appreciate those who sharethis site with others. Web traffic and readership are pure motivation tobloggers, as are comments and compliments.

I am going to share a few of my favorite blogs which I enjoyreading regularly. I hope you’ll enjoy my list, which will focus on legaltechnology, jury selection, graphics and trial presentation. Feel free to addsome of your favorites in the comments area.

1.    Law Technology News-- The mother of all legal technology sites, this site is a Law.com publication,headed up by Monica Bay, a household name in legal technology. Articles areoriginal, fresh and timely, and they also have a print publication available. Authorsinclude a staff of excellent writers, and LTN features many familiar names inthe profession.

2.     The RedWell -- This site features a directory and preview links to currentarticles provided by a select group of bloggers. Topics include Jury Selection,Litigation Graphics, Trial Presentation, and Communication for Lawyers.

3.      The JuryExpert -- This site is not actually a blog, but rather a veryhighly-regarded monthly collection of articles, provided by members of theAmerican Society of Trial Consultants. Authors vary monthly.

4.     LinkedInTrial Technology -- With nearly 2000 members, this is the largest online groupfocusing on the intersection of law, technology, and visual communication.

5.      LawyerTech Review -- This site features a bi-lingual (English and Spanish) collectionof articles covering all the latest tech-toys a lawyer could want. A favoriteis the App Friday series, where legal luminaries are asked about the apps theyuse. Attorney Geri Dreiling is the Editor, with Enrique Serrano providing theSpanish version of the site.

6.      BowTie Law -- Attorney Josh Gilland explores legal technology and itsapplication in case law, and covers e-discovery frequently.

7.    Deliberations -- The “official”blog of the American Society of Trial Consultants features articles by JuryConsultant Matt McCusker.

8.    CogentLegal Blog -- Morgan Smith and company offer a great deal of insight on howto communicate visually, using graphics and animations. Smith, an attorney, isthe primary author, with contributions from others.

9.    TheLitigation Consulting Report -- Ken Lopez features helpful topics focusingon using graphics to speak to jurors. Some great ideas.

10.  igetlit.comInformation Graphics & Litigation -- Jason Barnes offers great insight on visualcommunication techniques based on his years of experience in the profession.

11. LitigationPostScript -- Dr. Ken Broda-Bahm provides perspectives of a Jury Consultant.Lots of great “how-to” info on jury selection and analysis.

12.  Litigation SupportTechnology & News -- Joseph Bartolo and Frank Canterino scour the netfor you to offer a collection of summaries of current articles found on manypopular blogs.

I’dgladly recommend any or all of these sites to those who are interested in themodern practice of law. Of course, there are many more, and feel free to addyour own in the comments section, and use the Twitter, Facebook, Google+ andother social media buttons to share this collection. As a disclaimer, I willmention that I have contributed to numbers 1, 2, 3, 4, 5 and 12 listed above.

Ten Qualities of Top Trial Presentation Professionals

Dr. Conrad Murray, Michael Jackson Trial (see video below)

Back in the day, when I was the firm-wide in-house TrialConsultant for Brobeck, trial presentation software and technology wereactually quite similar to what we use today – at least with respect to the waythe exhibits are organized and presented in trial. Sure, computers and softwarehave come a long way, but the biggest difference is the fact that more lawyersare using it. So, what are a few of the key qualities that seem to be a commonthread among the nation’s leaders in trial presentation? I think you’ll findthat many of these are also the traits shared by successful litigators.

1.      TrialExperience
There is a reason this profession is often referred to as the “hot-seat.” There is nowhere to turn, or nobody else toblame when (not if) something goeswrong, and only experience can help develop the knowledge of how toimmediately correct most any issue, and in such a manner than nobody else evenrealizes there was a problem.

2.      Confidence
This comes naturally with actual trial experience, as noted in #1 above. Ifthere is a lack of experience, there will also be a lack of confidence.Typically, a lack of confidence is easy to spot, and often, the reasons forthis shortcoming become apparent in trial. A truly confident trial presentationprofessional will appear cool and calm, even when they’re under a great deal ofpressure.

3.      Obsessiveness
In addition to trial experience, there is nothing like preparation to bringpeace of mind to the trial team. During trial prep and the trial itself, thereare no adequate excuses for not getting something ready in time. If this meansworking 16+ hour days, and not going to sleep until everything is ready for thenext day, then so be it.

4.      Makes itLook Easy
Maybe you’ve seen at attorney working with a trial professional, and notedhow it appeared as if every step was rehearsed – almost as if they both knewexactly what to do, and when. On the other hand, perhaps you’ve witnessed (orbeen part of) of a trial presentation meltdown, where exhibits weren’t presentedin a timely manner, and frustration was apparent on the part of the attorneyand trial presenter – not to mention the Judge and jury. The best trialpresentation professionals are able to anticipate where the next callout orhighlight should be, and will just make it happen.

5.      Above-averageWork Ethic
One thing I have learned in my years working with some truly greatattorneys is that you must be willing to work harder than opposing counsel.While hard work won’t turn a bad case into a good one and win, laziness can makeyou lose. Great attorneys are relentless. So are their trial teams. GerrySchwartzbach once told me quite simply, “We will out-work them.” David Boiesonce asked his weary trial team, “Do you want to sleep, or do you want to win?”

6.      DataManagement Expert
One problem with those who find that trial presentation software isactually pretty easy to learn (at least the basics), is that it doesn’t makeyou a file management expert. Unless you are capable of organizing tens ofthousands of pages, you shouldn’t attempt to do so. One of the most commoncauses for problems in trial presentation is poor data management.

7.      Computerand Software Expert
While nobody can know everything, an experienced trial presentationprofessional will be familiar with most programs used by law firms, including litigationsupport applications. They will also be able to assist with computer problems,spreadsheets, and graphics. They will certainly be intimately familiar withtheir trial presentation software, and will know how to make the most of allfeatures. Paralegal skills and experience can also be a plus.

8.      Resources
One life-lesson I learned many years ago was that the smartest people arenot necessarily those who have all of the answers – but rather, those who knowwhere to find the answers. Whether that means knowing where and how to searchthe Internet, or having a list of fellow professionals handy, there shouldrarely be a situation that cannot be resolved. It can also mean finding a wayto get 3 copies of 20 exhibits scanned and printed at 2:00 AM.

9.      IT Expert
One quality that is often overlooked is the ability to simply “make thingswork.” This can mean installing and wiring an entire courtroom, setting up theremote war room, or getting everyone connected to the network. When working outof town in a remote war room, chances are you didn’t bring along your ITdepartment with you. There is far more to this business than putting exhibits upon a screen.

10.   Top Firms and Cases
Never hesitate to check the background of your provider. If you’ve neverheard of them, and/or if they don’t have an impressive list of clients and cases,chance are they don’t have the experience necessary to support your trial. Unless you’re willing to provide trainingwheels, don’t waste your time with someone who is just getting into thisbusiness.

Here’s an example of a total FAIL in the recent MichaelJackson trial of Dr. Conrad Murray, as described in #4 above, courtesy of ChrisBallard, of Video and the Law.

A Day in Trial

There is an increasing interest in using trial presentationsoftware to help persuade jurors in litigation of all types. Once considered the domain of themega-firms with their billion-dollar clients, trial presentation technology hasnow trickled down to the point that it can be used in most any matter. Thedecision is no longer whether or not to use it, but how to get the most out ofit, while staying within the budget. There are a few common options.

You may want to have an attorney handle it. At first glance,this appears to be a perfect match. Another attorney billing on the case, andthey are already familiar with the exhibits and the case. From a client’sperspective, however, the billing rate is likely quite a bit higher than thatof a trial technician, but even more importantly, it takes a great deal of timeto manage the database, prepare exhibits and deposition clips, and present theevidence. If the assigned attorney has little else to do, it could work. Ifthere are other “normal” trial responsibilities, adding a menu of tasks thatrequire constant attention and maintenance may not be a good fit.

Another way to staff your trial presentation is to pull aparalegal and have them do it. However, as in the example above, chances areyou’ve already assigned a full day’s workload on your paralegals, and unlessyou’re able to relieve them of all of their other chores during trial, burnoutmay be on the near horizon. It is notrealistic to expect anyone to work two full-time jobs, and that is about whatit amounts to.

Other considerations are familiarity with the software,protocols, and the case itself. Trial presentation software is not unlike manyother specialized programs that unless you use them regularly, you are notreally comfortable or familiar with the features. In trial, you don’t have time to search the Help Menu for solutions,or call for support when you have a problem. It’s all on you, and if youcannot make it work in a matter of seconds, you may find yourself using the hardcopy exhibits.

Whether in-house oroutsourced, a full-time trial presentation technician or consultant isgenerally going to be the best option available. Someone whose solefunction is to ensure that every exhibit is accessible, and presented to thejury as needed. The more experience they have in this role, the better thingswill flow, and the trial presentation database should be their primaryfunction. All other tasks should take secondary roles, as it often requires14-16 hours per day or more during trial to keep everything rolling smoothly. Oncecounsel is finished preparing for the next day’s witnesses and retires for theevening, the trial tech goes to work, getting all exhibits and testimony readyto go, backing up the database, and adding new documents. They will also befamiliar with the courtroom presentation equipment, and how to deal with theCourt staff.

Although it may seemcounter-intuitive to bring in someone who isn’t already familiar with yourcase, this can actually be one of the greatest assets of a consultant. Itis true that they don’t know the case, or how you view things. Neither willyour jurors, and if you have someone willing to share an objective “outsider’s”perspective, that’s the closest you can get to the mind of your jurors. Don’texpect (or ask) them to see it your way, and don’t attempt to convince them. Youdon’t need another pat on the back or a “yes-man.” Just ask for their feedback,and take advantage of any insight they have to offer.

Ten Questions to Ask Your “Hot Seat” Provider

First, I’ll define the term “Hot Seat.” In litigation, thisis used to describe the role of the trial presentation technician or consultant– the one responsible for managing and presenting the evidence to Judge andJury. Any delay in presenting the requested exhibit can seem like an eternity. One miscue on their part, such as bringingup the wrong exhibit, can immediately result in a mistrial – hence the term, “hotseat.”

1.      How much will it cost?
Make sure to get the “real numbers” in any estimates you receive, and see ifthere are hidden extras, such as overtime, travel, equipment, weekend orholiday charges, project management fees, etc.

2.      How much do you personally make?
Cost does not always equal value, and hourly rates do not necessarily indicatethe level of competency of the individual actually providing the services. Thismay be a very personal question, but if the hourly rate is $250, and yourhot-seat tech is making $25 of that, there’s a problem.

3.      How many actual court trials have you personallyhandled the “hot seat” in?
This should be a realistic number, and is not the same question as, “How manycases have you worked on in any capacity?”

4.      Have you ever been involved in a trial similarto this?
Your “hot seat” person will be comfortable, and thus more effective, infamiliar surroundings. Although it would be unrealistic to expect experiencewith the exact case type, things like the size and value of the matter, venuetype, data formats, and general type of litigation are all helpful qualities.

5.      What extra value do you have to offer the trialteam?
In some cases, the answer may be zero, and that is fine. In others, similarcase experience, case feedback, jury monitoring, or other extras may help makethe decision whether or not to hire.

6.      May I see your bio?
Don’t expect to see a résumé, as you’re not hiring an employee. However, youhave every right to request a bio of the person(s) who will be assigned to yourcase. Make sure you’re getting what you pay for.

7.      How long have you been doing this type of work?
A few years can be a reasonable amount of time to master most of this. Unless you’re knowingly hiring a trainee(can you spell m-a-l-p-r-a-c-t-i-c-e?), make sure they’re not learning on yourdime, and at the expense of your case.

8.      Can you assist with Opening Statement andClosing Arguments?
Depending on the case, it can often be helpful to have another set of eyes lookingat things, and offering ideas on how to tell the story visually. This may ormay not be something you need or are willing to pay for in your case.

9.      Are you capable of producing on-site graphics?
Any hot-seat technician should be able to make at least minor changes on thefly as needed. There’s simply not always time to engage the “graphics team,” regardlessof wherever they may be located.

10.  What sets you apart from your competitors?
This can apply both to the company, and the individual(s) assigned. However, hiringa well-known company does not necessarily mean that the person they will assignis the best for you. Make sure it’s a good fit from top to bottom.

Trial Presentation: Greatest Hits Volume 3

As I have explained in the past, this blog is my passion and hobby, but not my profession. As a result, you will periodically see uneven posting schedules at times, when professional demands require more time. Even so, although the level of traffic during the longer gaps decreases somewhat, it still remains strong. The best compliment I can get on my blog is that people read, enjoy, and share. Thanks for your ongoing support! 

Here are few of the most popular articles recently on Court Technology and Trial Presentation. If you're interested in a topic you don't see here, try the Search feature. If it has to do with trial presentation and technology, chances are you'll find something on your topic.

Courtroom Projectors, Screens, and MonitorsA few tips on what works in the courtroom, and what doesn’t. Should you rent or buy? Do courtrooms already have everything you need? 

Presenting Evidence in Trial - The Belli SeminarThis article features the importance of visual evidence presentation. The best in the profession seem to share a common thread. Comments like “It looks too flashy,” or “I want the jury to focus on me” just don’t make much sense these days. 

iPad Apps for Lawyers: iJuror, JuryTracker, Jury DutyA few top apps for voir dire and jury monitoring are covered here. There is a great deal of interest in bringing the iPad to trial, and it weighs less than a box of books and legal pads. 

Can't See the Forest For the TreesDuring preparation for trial, a team learns the fine details and strengths of a case. What is often overlooked during trial is that jurors may not understand even the most basic elements of the case. To make assumptions in this regard may lead to disaster. 

Comparison of TrialDirector, Sanction, and VisionaryI am often asked which is better, or which do I prefer. Although my personal preference is TrialDirector, I am always happy to use whatever the client needs. Trial presentation software is a tool, and is only as good as the person working with it.

Presenting Evidence in Trial - The Belli Seminar

I had the honor last week of speaking at the Belli Seminar,an event organized by the Santa Clara Trial Lawyers Association, held at the Lincoln Law School, in San Jose. A day-longcollection of non-stop 10-minute presentations, the seminar was moderated bynone other than Melvin Belli Jr., and featured many well-known speakers,including Mark Geragos, Jury Consultants Amy Singer and Tammy Metzger, Tommy (Princeof Torts) Malone, Gerry Spence Trial Lawyers College President Jude Basile, andseveral top Plaintiff’s attorneys from California, Washington, Texas and NewYork. I can honestly say that this was one of the best and most educationalevents I’ve ever attended.

While any of the faculty could have easily covered the entire dayon their own, the unique part of this program was that it truly forced eachpresenter to give the “best of their best,” since we all had only 10 minutesfor each presentation, followed by five minutes for questions. My notes and “take-homes”are likely nearly identical to what they’d have been, had each speaker coveredan hour or more.

What was interesting to me was that many of the presentationscovered similar topics, but each showed a unique approach to the same end goal.Some used no technology at all, while others did. One interesting point broughtout by one of the speakers was the desire to put an “image” into your jurors’minds. I helped to demonstrate how to do that, and how to make sure it’s theright image, and that they all have the same image in mind. Carefully-craftedwords often cannot replace a visual display of the evidence.

Image by LegalVision, San Francisco

Jury Consultant Tammy Metzger covered the Reptilian Brainand reading micro-expressions. This was fascinating stuff that you may not even notice – even though you can “feel”the emotions of others around you.

Jury Consultant Amy Singer discussed the Casey Anthonytrial, and how she directed the analysis of over 40,000 social media followers.She also shared a demonstration on how to do it even on smaller or low profile cases.

The program wrapped up with a brief Voir Dire of 8 jurors. Thiswas a great learning experience, as was the discussion afterward.

I’ve never seen this type of program presented before, butleave it to Silicon Valley to drive the innovation. For the record, I was theonly one presenting from my iPad (using TrialPad). When I asked, well over halfof the attendees raised their hands, claiming to own an iPad. The Silicon Valley Plaintiffs Bar is certainly ahead of some other groups I've presented to. Thanks to EdVasquez for putting this together and inviting me. After a long week in trial,it was time well spent.

Just received a nice thank-you note John Shepardson, Belli Seminar Chairman:

Thankyou so much for presenting at the seminar.  The visuals are huge in whatwe do, andMel Belli was a pioneer in Demonstrative Evidence.  Please keep in touch. The feedback fromour members has been hugely positive.

Courtroom Projectors, Screens, and Monitors

Many courtrooms today are set up with nearly everything you’llneed to simply plug in to the system and present your evidence. Judgesgenerally encourage and appreciate the use of technology, since it tends tospeed up the trial process, and has the added benefit of making the evidenceeasier to follow and understand for the jury. Although it is sometimes assumedthat jurors will think electronic trial presentation looks too flashy, or that your client has spent a lot of money, post-trialsurveys prove that this is not the case.

A popular article I’ve written covers one simple item: BestProjectors for Courtroom Presentations. I discussed there that you wouldneed a minimum of 3000 lumens in a well-lit courtroom, and that you shouldavoid anything with DLP technology, since it will turn your nice yellowdocument highlighting to a pea-soup green color. There is no point in usinginferior equipment when the exhibits cannot be clearly viewed by the entirejury.

Another issue today would be whether to purchase awide-screen or standard projector. Although it would appear that thewide-screen, or 16:9 format already dominates the television market, it’s notquite there when it comes to available screens. Most screens you’ll find arestandard (or 4:3) format, meaning you’ll end up with a blank band on top of andbelow your exhibits. Fortunately, there are some models that will accommodate either.I would recommend considering one of those.

Also, you might want to consider a short-throw lens. Someprojectors come with them, and some have optional extra lenses which may beused. The benefit here is that the projector may be placed only a few feet fromthe screen, making it less likely that you will continually be walking betweenthe screen and projector. Although you probably won’t notice when part of the imageis on your suit, others will, and it is very distracting.

Many courtrooms have a screen installed. Some are largeenough, and some were apparently installed by the lowest bidder, regardless ofsize. Generally, you’ll want at least a 7 or 8 foot screen in a courtroom. Onemodel I like is the InstaTheater, by DaLite. It stores in a tube, and does notrequire a tripod, so it fits well in a congested courtroom. It may also beplaced on top of a table, if necessary.

Large Plasma or LCDMonitors
Another option you will find installed in some courtrooms isa large monitor, instead of a projector and screen. While they may be adequatefor watching the news, sports, or movies at home, when you consider that theyare only about half as large as a standard screen, you will likely find thatthey’re not really the ideal solution for trial presentation to a largeaudience. You can use more than one, but you also lose the effect of having onecommon focal point for all to view, and you can forget about using a laserpointer on it. Some cases require the color and clarity that only this type ofmonitor can provide.

Individual Monitors
You may want to install separate monitors for the Judge,witness, and each counsel table. This will allow everyone to view an exhibitright in front of them, which is necessary in some courtrooms, where noteveryone will have a clear view of the screen. The added benefit is that thissystem may be used to preview evidence before it has been admitted intoevidence, leaving the projector off. Once an exhibit has been admitted, theprojector is then turned on for the jury.

Audio System
Don’t forget this critical detail if you have anything thatyou want others to hear. One example that is frequently overlooked is thevideotaped deposition. Unless you have a decent speaker set connected, nobodywill hear the audio from your laptop.

In order to control which party has access to the courtroomsystem, some sort of switching device must be installed. A matrix switch orswitchable distribution amplifier may be used for this purpose. Some judgeswill also want their own “kill switch,” in order that the might disable theprojector if necessary, although this was more common several years ago, whenthe use of technology was new and untested.

Gaffer’s Tape
Don’t even dream about using anything but professionalgaffer’s tape to secure all of your electrical, video, and audio cables. Gaffer’stape is designed to not leave any residue, nor to pull the fabric from thecourt’s carpeting. Duct tape will certainly hold the cables in place, but youmight find yourself replacing the carpeting if you try using it.

Equipment Rental orPurchase
Most Trial Presentation Consulting firms have all of thisavailable, which means that you don’t have to ship the equipment, install thesystem in the courtroom, tape cables, and make sure that everything is in goodworking order. You can also purchase and handle of this yourself, if you’reso-inclined. No matter whether you rent or purchase, make sure you install andtest it before trial. You and your client do not want the Judge to tell you thatif you can’t make it work, you’ll not be able to use it.

Related Articles

Can't See the Forest For the Trees

As a trial team develops a case, going through discovery,depositions, and possibly several attempts at settlement, each step in theprocess takes them deeper into the fine details of the matter. Mock Trials,Focus Groups, Settlement Conferences, Mediation, and other forms of AlternativeDispute Resolution can all be helpful in further sharpening the level ofunderstanding and knowledge of the case. By the time a case is ready for trial,the entire team will know the case inside-out, and will likely be familiar withits technical aspects, events which may be plotted onto a timeline, and whichwitnesses will be most helpful to your case. You should also have a good ideawhich witnesses are good candidates to be set up for impeachment, and will havetheir depo testimony excerpts ready to attack their credibility.

You might also have a series of demonstrative graphics, andmaybe even an animation to help convince your jurors that yours is the"right" side in this case. All of this preparation and review canmake you so familiar and knowledgeable about the case that you may evenunderstand it better than your client. One thing is certain -- you will view itdifferently than your client, since you also understand how everything fitsinto the litigation process, and what is permissible in court. As part of atrial team, you are also likely to view things a bit more objectively.

Can't See the Forest For the Trees

If you have retained a Trial Presentation Consultant, youwill have the advantage of working with someone who is extremely familiar andcomfortable with stress, the trial process, and handling many different tasksat once. Unlike many attorneys or other in-house legal professionals who are intrial only once or twice a year, a professional Trial Presentation Consultant isinvolved in many trials each year. The high stress of trial is something theydeal with on a daily basis, and this too can be valuable to the team. So is itworth spending the extra money on a consultant who bills as much as someattorneys? Do they bring so much knowledge to the case that they are criticalto the efficient presentation of the evidence?

While I would love to try and convince you that I am sosmart and know so much that I can guarantee you will win your case if you hireme, the truth is, one of my greatest assets to your client and trial team isnot what I know. Rather, it is what I don't know. I bring no assumptions of thebasic facts, no knowledge of what is important in the case, and no biasedperspectives. A good Trial Presentation Consultant brings a fresh pair of eyes-- not yet tainted by months or even years of preparation. They can be theclosest thing you have to a juror, and in fact, will generally offer dailyfeedback during trial, from the perspective of a shadow juror.

If you do bring in an outside consultant, you should providethem with a set of trial briefs -- but not only from your side. In order tohelp identify issues which might be overlooked, or to help spot holes in thecase, it is helpful for an objective observer to see what the other side has tosay, as well. A good consultant comes in with a fresh perspective, and theiropinion should not be taken lightly.

In addition to trial preparation, graphics, war roomsupport, and trial presentation in the courtroom, a good Trial PresentationConsultant can act as a thirteenth juror. Even with all that, the realvalue-added service is often not as a result of what they know -- it's whatthey don't know.

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I Am Troy Davis

Update 9/21/2011 11:08 PM EST RIP Troy Davis. In his final statement, he stated he was sorry for McPhail family loss, but that he did not do it. He encouraged the family to dig deeper and find out who actually did it. Unfortunately, case closed - nothing more will be done. They say they got their man. This is one sad day in the history of this country. This is not how this article was supposed to end.

Update 9/21/2011 10:21 PM EST Supreme Court has refused to stay the execution of Troy Davis.

I am Troy Davis. You are Troy Davis. Someone you know is Troy Davis.

RIP Troy Davis - Executed 9/21/2011

In the event you’re not aware who Troy Davis is, I willbriefly share that he is a man who has just received a reprieve from executionin Georgia. How long that is for is unknown at this point, but it is not a stay.It can mean only a matter of hours or days.  Troy is an African-American man, accused andconvicted of killing a white police officer, and without any physical evidence. 

An email form which appeared on DeathPenalty Focus provides a summary:

To the Board ofPardons and Paroles and District Attorney Larry Chisolm:

I am writing you todayto ask you to reconsider the decision to deny clemency for Troy Davis. There isa severe lack of physical evidence. Seven of nine witnesses have recanted orchanged their testimony. Multiple jurors who originally voted in favor of thedeath penalty have asked that Troy not be executed.

The execution of a mandespite serious doubts about his guilt undermines the credibility of theGeorgia justice system, and is a risk that should not be tolerated.

Please do the rightthing and stop the execution of Troy Davis.

Larry Chisolm, the District Attorney, washed his own handsby simply stating, "We appreciate the outpouring of interest in this case;however, this matter is beyond our control."

"He has had ample time to prove his innocence,"said MacPhail's widow, Joan MacPhail-Harris. "And he is notinnocent." This struck me as absolutely contrary to our judicial system –the fact that one had to prove innocence, rather than being presumed innocent.

AmnestyInternational offers further insight:

The high court set atough standard for Davis to exonerate himself, ruling that his attorneys must"clearly establish" Davis' innocence — a higher bar to meet thanprosecutors having to prove guilt.

The case against himconsisted entirely of witness testimony which contained inconsistencies even atthe time of the trial. Since then, all but two of the state'snon-police witnesses from the trial have recanted or contradicted theirtestimony.

Many of thesewitnesses have stated in swornaffidavits that they were pressured or coerced by police intotestifying or signing statements against Troy Davis.

One of the twowitnesses who has not recanted his testimony is Sylvester "Red" Coles— the principle alternative suspect, according to the defense, against whomthere is new evidence implicating him as the gunman. Nine individualshave signed affidavits implicating Sylvester Coles.

For me, I was riveted to the Twitter feed, as that seemed tobe the best source for live coverage. I then discovered Democracy Now! as a result of readingeverything I could, and Amy Goodman tirelessly provided the only live feed thatI could find.

CNN seemed to be a bit slow with their updates (at leastcompared to Twitter), and Fox News correspondent John Roberts reportedly claimedto be “inside,” awaiting the death announcement, and then apparently reportedthe execution at 7:11 EST. White Supremacist James Byrd was executed in Texasat 7:21, so maybe he just got confused?

Regardless of your position on the Death Penalty, all wouldagree that no innocent person should ever be executed. If there is even a slimchance that an error has taken place with the prosecution and conviction ofTroy Davis, it must be explored.

In any event, this story does not end here. ApparentlyJustice Clarence Thomas will determine the next move, but one thing is certain-- there is no room for this type of injustice in America. Many will now knowwho Troy Davis is, and perhaps more importantly, that something needs to be donewith the judicial system in Georgia.

He Who Is His Own Lawyer Has a Fool for a Client

"He Who Is His Own LawyerHas a Fool for a Client"

This proverb is based on the opinion thatself-representation in court is likely to end badly. As with many proverbs, itis difficult to determine a precise origin, but this expression first beganappearing in print in the early 1900’s. An early example appears in 1814, in The flowers of wit, or a choice collection ofbon mots, by Henry Kett, wherein the eminent lawyer states, "I hesitatenot to pronounce, that every man who is his own lawyer, has a fool for aclient.”

This phrase remains relevant today, as it was nearly 200years ago, successfully standing against the test of time. It makes a clear andsimple statement to one who might think they are smart enough and know thefacts of their case well enough that they might save several thousand dollarsby handling their own legal affairs. While handling your case Pro Se mightactually work in some instances, the odds are against it.

In a recent article on Lawyers.com (GoingPro Se: Handling Legal Problems on Your Own), David Baarlaer explains that you can indeed win a Pro Se case, but alsoshares that statistics seem to indicate that those who “lawyer up” stand abetter chance at achieving a favorable outcome. Even though youmight be able to represent yourself, you would, in effect, be knowingly andintentionally taking unnecessary risks in the litigation of your case.

Sharpen Your Focus
Does this old saying apply to lawyers too? Today’s economicclimate encourages attorneys to do everything they can possibly do themselves,or keep the work in-house, in order to keep working (billing) on a matter.While this approach will increase your billable hours, it can also upset your clients.A quick search on alternative fee arrangements or the billable hour will show thatlegal fees are a hot topic. LarryBodine shared an interesting article about AFA’s (alternative fee arrangements),in which he points out that those who don’t get it right will see clients startwalking and talking to other firms to take on their work. Corporate counsel andother clients are all under pressure to reduce costs, and legal fees are at thetop of their list. Just because you have the ability to purchase some softwareor other new toy, spend time to learn it, and then do something with it doesnot mean that you should. If you insist on doing everything yourself, in theshort term, you might make more money per client. In the long term, you’re likelyto end up with fewer clients.

Experts are Experts
Most clients won’t appreciate that special talent you bringto the table which allows you to personally do things that others can docheaper, faster, or even better. If you’re trying a case, you shouldn’t beconcerned with how the technology works (or doesn’t work). If your case andclient are valuable to you (not to mention your reputation), there are not manygood reasons left to do everything by yourself. You might be retained to “getit done,” but that doesn’t necessarily mean you were retained to do ityourself.

I have seen a growing trend of cases coming in that are economicallydriven, in that lawyers are hired to try the case, while my firm is hired bycounsel to assist with trial preparation and presentation. No, the law firmsare not marking our services up for a profit, but the clients are happy withthe lower costs, and the fact that these services are being handled byexperts. While there are certainly exceptions, the lawyer who insists on doingeverything, in addition to practicing law, may not be too far removed from theclient who represents himself.

Please feel free to add your thoughts and comments on this topic.

Blawgs: Quality or Quantity?

First, I would like to thank everyone who has ever read anyof my articles. Many of you have also offered words of gratitude and helpfulcomments. You have no idea how motivational it is to receive an email, commenton a post, or a tweet, commenting how something was helpful or appreciated. Ijust happened to be checking my stats this morning (something us bloggers do inorder to make sure we’re serving up the right stuff), and I noticed a linkfrom the LinkedIn Blog (the actual Blog written and published by LinkedIn),meaning that there was a link leading to my blog from there. I was (verypleasantly) surprised to find my blog listed as one of the top blogs on all ofLinkedIn, according to LinkedIn traffic and reads.

While I wasn’t actually upthere with Mashable or TechCrunch (two major commercially-producedweb sites), this blog was listed in the “Other top-shared stories you may havemissed” category as the lone representative for the legal community. Appearingsecond in a list of three, along with a design professionals article, and aWall Street Journal article which was popular among Recruiters and ITprofessionals this blog was mentioned:

Lawyers took to “TryingYour Case in 3 Hours: California’s Expedited Civil Jury Trials Act” (TheCourt Technology and Trial Presentation Blawg), which discussed how to wage afast-paced trial in a new method being proposed in California.

For that, I must again say, “Thank you.”

We all have a finite amount of time each day in which wehave a chance to go online to catch up on news, articles, social media, orother items of interest. Given that we do have limits on how much time we havefor this, we must often make choices on what we’re going to read. Whether it’sthe latest local or world news, recreational reading or professional articles,we’ve all found our preferred sources that we tend to go back and visitregularly. Why? Often, it is because we know what to expect when we get there.We’ve enjoyed it in the past, and expect more of the same. It is often unique,original content, rather than a re-post of someone else’s articles (althoughthere are a few decent sites that offer a summary along with an article ofinterest, which was written by someone esle). That is a good definition ofquality content.

I wish I had enough time to write a new article every day,but that’s simply not the case. Sometimes, I barely have enough time to sleep,during trial. I’ve opted for quality, rather than quantity. I don’t really wantto just slap something up there to keep some fresh content to drive moretraffic. I’d rather spend the time it takes to do it right. Apparently, you whoread this must appreciate this – at least you’re reading it. And, your commentsare always welcome. Again, thank you. 

Trying Your Case in 3 Hours: California’s Expedited Civil Jury Trials Act

Note: This article was mentioned by LinkedIn as one of its most-shared for the first week of September. That (at least in my opinion), is a huge distinction. Thanks for reading and sharing! See Blawgs: Quality or Quantity? 

This article was originally published in Forum, a publication of the Consumer Attorneys of California.

AB 2284, California’s new Expedited Civil Jury Trials Act, is gaining momentum -- as is the U.S. District Court's version, under General Order No. 64. With only 3 hours to present and argue your case, 8 or fewer jurors with only 3 peremptory challenges, and no right to appeal, you’d better be prepared to move quickly through the evidence when you appear for trial. This new law might be a great opportunity for those desiring to gain trial experience, or possibly enabling the veteran trial lawyer to offer a greater number of clients their “day in court.” It appears poised to be an effective alternative to other forms of ADR (alternative dispute resolution) as well. One thing is certain – both plaintiff and defense firms have a great deal of interest in this, and the “slam-dunk” settlement in many cases may soon become a thing of the past. 

The ideal case for AB 2284 may be a smaller or less complex matter (although there is no maximum case value limit), and an optional over-under verdict agreement might ensure that a plaintiff gets something, but also sets a cap on that amount. This is, in effect, a form of settlement in itself. The Expedited Civil Jury Trials Act should dramatically reduce the cost of going to trial – at least that’s the intent.

So, what is the best way to make sure you are able to get your story to the jury within the 3-hour time limit? In addition to a good set of motions and stipulations to help prevent unnecessary delays during the trial, you’ll benefit by preparing in the same manner as you would for a scripted and rehearsed opening statement or closing argument. Most witnesses should be presented via tightly-edited portions of videotaped deposition testimony. One or two expert witnesses on the stand could easily drain a lot of precious trial time. Trying an expedited case will require nearly the same level of preparation (if not more) as a standard trial, and a method of quickly getting the evidence before the jury is essential. Stipulations should address the time-consuming evidence-authentication process, similar to a bench trial. You won’t have the luxury of time to allow digging through binders to locate an exhibit, passing hard-copy exhibits to the jurors for review, or frantically searching a transcript for that critical piece of deposition testimony. With all that in mind, here are a few ideas to help you prepare and present the expedited trial. These suggestions could also be applied to mediations, settlement conferences, and other forms of ADR.

Get Digitized
In order to have immediate access to all of your exhibits, photographs, demonstratives, and other evidence, you will need to have an electronic version of everything. This includes all of your discovery, deposition exhibits, transcripts, and demonstratives.

The PDF (portable document format) document is one of the most common formats used in law offices today. A PDF can be created by scanning exhibits, photographs, or other hard-copy exhibits. It will handle color, as well as black & white images. If you have ESI (electronically stored information) native files (i.e., e-mail messages, Word documents, PowerPoint, etc.), these may also be converted directly to PDF format. It may also be necessary to have the native files available for display in court.

Depositions should all be videotaped and synchronized with the transcripts. Witnesses should be presented to the jury via carefully selected designations. Objections should be avoided by meeting and conferring with opposing counsel regarding these designations, so a witness testifies with both parties’ designations at the same time, rather than confusing the jury with each party attempting to present only their own side of the case. This is the same format that is used in “normal” trials, and is usually what the court requires. A stipulation may be helpful here, stating that the length of each party’s designation shall be charged against its trial time, rather than charging it to one party or dividing it equally. Trial presentation software, such as TrialDirector, enables calculating the designations and charging them to the proper party.

Get Organized
Exhibits should be assigned a unique identifier, such as a Bates number, at the time of scanning. This will enable the organization of many exhibits. A numbering system might include a two or three letter prefix, followed by a series of numbers, padded with enough digits to prevent computer-sorting (i.e., 1, 10, 11, etc.). If this is all too geeky for you, speak with someone who can assist, rather than handing over a mess that can take longer to fix than to do over.

Trial exhibits should normally be pre-marked, rather than wasting time in court. While this is the trend of most courts today anyway, it should be agreed upon that this is necessary, in order to maintain the “expedited” aspect of the trial. There is no need (nor time) to wait for the clerk to mark an exhibit as “next in order.” Trial presentation software allows you to apply an electronic exhibit sticker, which may be displayed or printed. Bear in mind that even though the evidence will be displayed on screen, a hard copy set will still be required for the court and jury. There may come a time where we submit a CD or DVD with all of the admitted evidence for deliberations, but we’re not there yet.

Get Prepared
A trial presentation database will be your evidence storage, management, retrieval, and presentation system. Several applications are available, including TrialDirector, Sanction, and Visionary (the top 3 in market share). There are even a few iPad apps which are very cool (TrialPad, Evidence, Exhibit A) for trial presentation, but they’re not ready for prime-time, in my opinion. I’ve reviewed them all on my Court Technology and Trial Presentation blog. Unless looking “cool” while using your iPad for trial presentation is more important to you than connecting with your jury and getting the most out of your evidence, you may want to avoid bringing a spork to a gunfight. When handled properly, one of the best parts of incorporating technology into trial is that it can be an invisible transition for you. You can handle your evidence in any manner you wish, and someone else can worry about the database.

As mentioned above, videotaped deposition designations should be made, countered, and ruled upon prior to trial. Trial presentation software will enable you to designate a section of the transcript, and identify whose designation it is. A report can then be generated from the database, showing the total time, and breaking it down by designating party. Needless to say, hours of testimony must be refined to only a few minutes.
Demonstrative exhibits should be prepared, in two versions – one for opening statement and possible use with a witness, and another with an argumentative title added for closing argument. One simple, but effective demonstrative can include an image of each videotaped deponent, thus “introducing” them to the jury.

Don’t forget about the courtroom presentation equipment. It would be a simple, but tragic, error to show up in court, ready for trial, only to realize that the court didn’t have any presentation equipment, or that you had no idea how to use it. Again, a good trial presentation consultant can just “make it happen” for you.

Get Rehearsed
You should not enter the trial courtroom without having a plan, and having rehearsed that plan to check timing and flow of everything. It would be a bit of a disappointment to realize you hadn’t yet covered damages, with only 3 minutes remaining. I’m guessing that the courts are going to be pretty strict on timing for this type of trial. You will probably want a very brief opening, followed by your case, and then concluding with your closing argument. You should decide how much time to allow for each, and closely monitor your progress. You may want to rehearse the entire trial, giving you a good idea of how much time you’ll actually need to spend on each issue. This won’t be the forum for slow, condescending explanations. You’re going to have to trust your jury to put it all together for you – making the shortened voir dire process even more important.

Get a Jury
Parties are encouraged to file a Joint Form Questionnaire, to help expedite the voir dire process. You may want to have a jury consultant prepare this for you, in addition to getting some assistance during your selection process. Reviewing the questionnaires, in addition to checking social media profiles can be very helpful. You have a total of one hour for voir dire, with 15 minutes specifically allotted to the judge, and 15 minutes for each party. There are only 3 peremptory challenges allowed to select a jury of 8 or fewer jurors, with a verdict requiring 75% of the panel. You won’t have time to spend asking each prospective juror questions like, “Can you be fair?”

Get a Verdict
With no appeal allowed, you get only one bite at this apple. If you’ve done all of the prep correctly, and are ready to try your entire case in 3 hours, you’ve done your best. If you’ve taken shortcuts, or attempted to work with too many live witnesses or hard-copy exhibits, you might walk away wondering why you only covered half of your material.

It is crucial to keep your jury engaged, and the best way to do that is the keep their minds active. Simply narrating or reading from bullet-point slides won’t cut it. You will need to use trial presentation software, specifically designed for presenting randomly-accessed evidence to the fact finders. Since you will be dealing with documents and deposition video excerpts, you will want keep the flow moving along quickly enough to tell your entire story, yet not so fast as to make it impossible for the jury to piece together. Every document page or deposition excerpt should be clearly identified for the record, and quickly zooming on a key paragraph, highlighting the critical text within the paragraph. This is the stuff note-takers are following. General descriptions and too much information can tend to become “noise” to jurors. You may be able to stipulate that highlighted versions of the exhibits be admitted into evidence. Although this is often considered demonstrative evidence, I have seen it happen. It could be extremely helpful for the jury during deliberations, especially in this setting. This is easily done with the trial presentation software. Note that while time limits are set for the trial, there are none for the jury to reach their verdict.

If you’ve seen a trial presentation that looked easy, it’s because the attorney and trial presentation consultant both knew what they were doing. While you may feel that you might save yourself and your client some money by handling the trial presentation yourself (never recommended), or even having someone in your firm do it, unless this individual does trial presentation regularly, a one-day trial does not justify the risk – especially under the rigid time constraints. Not that a longer trial of greater value really does either, but that’s another topic. Trial is no time for training.

Ted Brooks is a Trial Presentation Consultant, with offices in Los Angeles and San Francisco.

Related Articles:

Five Steps to Creating a Compelling Mediation Presentation DVD

How to Prepare for Shortened Litigation: Mediation, Settlement Conferences, and Expedited Trials

AB 2284, The Expedited Civil Jury Trials Act

ADR and the Art of High-Speed Trial Presentation

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