ADR and the Art of High-Speed Trial Presentation

Recent involvement in a large Construction Mediation, followed by a series of 2-day Chrysler Bankruptcy Arbitrations have served to remind me (along with a couple of my clients, and our opponents) of the true value of thorough preparation, coupled with the absolute necessity of delivering the most efficient and effective trial presentation possible.

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

Today’s economy has certainly had an effect on decisions to pursue traditional litigation, versus various forms of Alternative Dispute Resolution (ADR), which are typically perceived as shorter and less costly. While the latter is debatable, the former is generally true. That stated, showing up for a two or three-day proceeding and expecting everyone to follow along while searching for exhibits in boxes, or jumping quickly from binder-to-binder can be a recipe for disaster.

Although the fact-finder may indeed wish to mark up a copy for reference, having the ability to quickly show the “hot spots” on the exhibits is important. Zooming in on a paragraph and highlighting the key text with TrialDirector gives visual cues and direction as to what is important to your case. While you may argue that it is all important, you will likely find the Judge encouraging you to make sure and point out the real important stuff. Failure to do so may be failure to get your message heard and understood.

Preparation for this type of proceeding should not differ from traditional trial preparation. Many cases heard in ADR are of no less value than similar matters heard in court. Just because ADR is chosen as the venue does not mean that preparation should be compromised. In fact, given the shortened time in which the entire case must be presented, it is more important than ever to have everything ready to go. In ADR, a win is still a win, and a loss is still a loss.

Except in perhaps the smallest of matters, it is never a prudent idea to attempt to “save your client some money” by not taking all necessary steps for trial prep, such as scanning of exhibits, videotaping depositions or having demonstrative exhibits created. Neither is it a good idea to attempt to handle this and the trial presentation yourself, unless this is something you do on a regular basis. In any event, while you may have less people billing on the matter, the real value to the case may be compromised. There is a significant difference between someone who does something only occasionally and an expert who does the same thing regularly. Trial presentation is certainly easier these days, but unless you’re doing this full-time, you are at a disadvantage (and risk).

Along the same line, cost does not always equal value. In other words, attempting to again “save your client some money” either by doing things yourself or hiring the “cheapest” service provider available can bring a negative result. In many cases, hiring “the best” you can find brings in another level of professionalism to your trial team. In most cases in which I’ve been retained, I have been able to objectively view the case from a different perspective – more like that of a juror – and have been able to offer valuable insight, contributing to case strategy. You won’t always find this same level of service by shopping for the lowest hourly rate or by working with a large company without knowing the level of experience and qualifications of the individual(s) actually assigned to your case. If you value your client and your own reputation, don’t risk doing them a “favor” by saving a few bucks at the expense of the trial.

ADR can be likened to an Opening Statement and Closing Argument all built into one. That stated, be fully-prepared to deliver your message quickly and clearly. Don’t hesitate to engage the services of others in your firm or to bring in outside consultants when necessary. It is rarely in the best interest of your client to compromise by taking the path of least resistance or lowest cost, while potentially risking the outcome of your case. This reminds me of an old saying…

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

Ted Brooks, President
Litigation-Tech LLC
"Enhancing the Art of Communication" Member, American Society of Trial Consultants
Certified inData TrialDirector Trainer
415-291-9900  San Francisco

213-798-6608 Los Angeles
www.litigationtech.com
tbrooks@litigationtech.com

http://trial-technology.blogspot.com/
WINNER: LAW TECHNOLOGY NEWS AWARD FOR MOST INNOVATIVE USE OF TECHNOLOGY DURING A TRIAL

Electronic Trial Exhibit Management and Production

Preparation and Production of the Trial Exhibit Set

As the trial date approaches, the exhibits must be prepared to hand over to opposing counsel and the court. Frequently, there are last-minute changes to expert reports, exhibits are added or removed, or other issues arise, resulting in a frenzy of work to update all of the binders, remove and replace exhibit stickers, and ensure that every set is exactly the same. A judge will fail to find humor in any of these “little mix-ups” that arise during trial.

Electronic exhibit management

Regardless of whether or not you have a document database (such as Summation or Concordance) prior to trial, it can be time saved and money well-spent to bring in a Trial Consultant to assist in the production of the trial exhibit set. This will have even greater value if you are planning on presenting your evidence using technology such as a TrialDirector database, since the efforts will not have to be duplicated. The trial exhibit database can be utilized for both production and presentation of the trial exhibits.

Identifying the Exhibits

Most firms work with a tabbed binder set to separate and organize the exhibits. In cases in which this has already been done with the hard-copy set, this same system will typically be incorporated into the trial database. In other words, if you have exhibit tabs ranging from 1 to 500, the database will also reflect that convention. If the wheel exists, there is no need to reinvent it.

In cases where this has not yet taken place, exhibits are often organized chronologically and/or by issue. This is also easy to deal with, simply assigning sequential exhibit numbers in the order desired. 

Assigning Exhibit Numbers

The trend of the courts today is leaning toward pre-marking of exhibits. That is to say that rather than automatically assigning the first exhibit identified during trial as “Exhibit 1,” the actual exhibit number will have been pre-determined according to its assigned number in the trial binders. This can also be encouraged by a “Meet and Confer,” with both parties agreeing upon a numerical range of numbering.

Generally, the Plaintiff’s exhibits will begin with number 1, and should leave plenty of room for additional exhibits to be added. Often, there is undue concern with which exhibit will be assigned number 1, as if the jury will think it is more important than the rest. This has caused more than one re-shuffling of the entire exhibit set.

The Defendant’s exhibits should leave a sufficient gap at the beginning of their numbering. I would also discourage using letters, as this gets extremely confusing to everyone – especially the jurors. It is difficult to distinguish between a “C” and a “Z” for the listeners. Not to mention, there are a couple letter combinations I’ve heard in court that I’m sure were later regretted.

Final Trial Exhibit Preparation

When working with a database, although changing a range of exhibit numbers does take some work, it does not require nearly the amount of labor it would take to shuffle and print several new binder sets.

One advantage over the hard-copy method is the ability to “brand” the page (Bates) number onto each page for production. This enables everyone to quickly get to the proper page of an exhibit, as opposed to instructing a witness to “turn in about 30 pages or so, and look for the paragraph I’m showing you here.”

Another advantage when exhibits are pre-marked is the addition of electronic exhibit stickers. Once the exhibit list has been finalized, these “stickers” can be applied to the first page of each exhibit. Then, a pdf set can be generated and sent to a print vendor for binder assembly. A benefit of the electronic sticker, aside from the fact that nobody has to stick them all onto the exhibits is that they do not add any width to the page. So, your exhibit binders won’t gain thickness in the bottom right corner where all of the stickers are.

Summary

Handling exhibits electronically can save a great deal of time not only during the trial itself, but also in the preparation process. I recently had a client (an attorney) tell me that in many years of litigating, he has never before felt as well-prepared and confident prior to trial as a result of managing everything electronically. In another matter, a paralegal shared her observations on how the trial preparation process is much more efficient when handling exhibits electronically, as opposed to printed binders (as a result of having to renumber the entire set within a week of trial). When comparing electronic to hard copy exhibit management, the difference in the level of efficiency can save a lot of time and money.

This type of trial exhibit management may require the services of someone with strong qualifications and experience, but the time and money saved will more than make up any difference in cost. Make sure to check and verify the background and trial experience of the person who will actually be with you in trial – an off-site project manager or sales person can be of little or no value at 1:00 in the morning. When it comes to trial support, there can be a significant difference between cost and value.

Ted Brooks, President
Litigation-Tech LLC
"Enhancing the Art of Communication"
Member, American Society of Trial Consultants
Certified inData TrialDirector Trainer
415-291-9900  San Francisco

213-798-6608 Los Angeles
http://www.litigationtech.com/
tbrooks@litigationtech.com

WINNER: LAW TECHNOLOGY NEWS AWARD FOR MOST INNOVATIVE USE OF TECHNOLOGY DURING A TRIAL

First Review: TrialDirector 6

First Review: TrialDirector 6
By Ted Brooks

If you’ve never before used trial presentation software in your practice, now is the time to consider it. If you’ve used previous versions of TrialDirector or other trial presentation software, now is the time to consider springing for the upgrade.

Note: Since this remains a popular article, I will add that TrialDirector  6.2, build 900 is the current version, released 12/16/2010, and that several things have been upgraded and even some great new features have been added. I also anticipate another release within a few days to fix a PDF issue. With such a major overhaul of the program required to work with Windows 7, these past few months have allowed the folks at inData time to get the "real world" feedback necessary to make sure that it continues to maintain its reputation as the "Gold Standard" in trial presentation software. It is comforting to know that they are driven to continue developing and improving the program by listening to those who actually use it daily. Hope you enjoy the review.

Four years in the making (version 5 was released on 5/1/2006), TrialDirector 6 brings together all of best features from previous versions, and includes many feature requests by current users. This shows they are listening. 

I have been running version 6 for several months now (going through Alpha and a few Beta versions), and unlike many new software releases I’ve worked with, this one is now stable and ready for prime-time. As a disclaimer, I will say that I have used TrialDirector for many years and have a close working relationship with inData, the makers of TrialDirector. I have not been compensated by inData for this or any other reviews or mention of their products, nor have I submitted this article to them for their review, approval, editing or modification. I have also used other trial presentation software with good results. Competitive products such as Visionary and Sanction are also excellent platforms for trial presentation. That stated, while I may admittedly be a bit partial, I will do my best to offer an objective analysis of TrialDirector 6 in this brief review. For purposes of this review, I will not attempt to cover every feature of the software, nor those features which were already in version 5. For more info on version 5 (and some features in common with version 6), please refer to my review (http://trial-technology.blogspot.com/2010/04/review-revisited-trialdirector.html), or to the inData website (http://www.indatacorp.com/) for additional product information, including a very helpful new set of online tutorials.

At First Glance

Upon launching the program for the first time, everything looks familiar. The Case Library view looks like version 5.

From here, we will take a look at a few of the major changes – the first being something I have been asking inData to implement over the past 4 years – the return of the Grid View. The Document Manager tab now brings back the fully functional, editable and sortable database view, reminiscent of version 3 and 4. For the occasional user, this may not be a big deal, but for those who must build and manage large databases, and many of them at one time, this is a critical feature. It simply allows another perspective (albeit somewhat geeky), that enables quick editing of any column. So, instead of having to right-click on a document in the Case Library to display properties, or use the F2 shortcut to get a one-line editable row, you can now see all of them at once.

This is not actually a “new” feature, but rather an improved version of something dating back to version 4 that simply makes sense to those who use it. Not everyone will appreciate this feature, but for those who will use it, it’s one of the best parts of version 6. Sometimes, older is better. Also, the Coding tab at the bottom is essentially the same database as in previous versions. There is nothing monumental to report here in the way of updates. It works great, and does everything a basic coding database should do.

Transcript Manager

The Transcript Manager also looks familiar when you click the tab on the bottom – but it has been totally revamped. Being a long-time user of TrialDirector, I had become accustomed to creating clips by selecting the desired text and then listening to “edit,” or trim the beginning and ending of the excerpt.

Can you simply input the page:line designation start and end to create a clip? Yes.
Can you select the desired text to create a clip? Yes.
Can you use the clip wizard to assemble clips? Yes.
Can you use the segment editor to create and assemble clips? Yes.

Can you still edit clips by selecting text and then listening to make your adjustments as in version 3-5? No, not really.

I’ll be honest, I haven’t been a real fan of “visually” creating clips, even though it has been out for several years in version 5. There was just something missing for me, be it accuracy, the speed in which I could get the clips created and edited, or who knows what. In TrialDirector 6, you will need to decide which of these methods works for you. Some will like the option to just type in the page and line numbers. Others, like me, will likely develop their own “hybrid” method. I find that it is fastest for me to select the text manually, and then go to the visual and audio display to trim the excerpt. One reason this works for me is that by selecting the text, I automatically assign it an ID, based on my desired settings, found in “View,” “Options.”

So, instead of having to manually name the clip, it is already named and sorted for me. You can also choose something like “Clip 1,” “Clip 2,” etc., but then you don’t bring any descriptive information into the database. This method also enables me to view the text, making sure it makes sense, and isn’t starting or ending in the middle of a question or answer.

Frankly, I was amazed at the accuracy of the clips when dealing with the visual display waveform editor. Maybe my sync was dead-on accurate, but the start points were almost always perfect – something that would rarely happen when using only the audio (tape deck or VCR-inspired controls) for editing – regardless of sync accuracy. As a result, clip creation and editing speed are now much faster and more precise.

It’s All About Presentation

Perhaps the most important thing TrialDirector or any trial presentation software can do is present evidence to a jury and/or judge. Of course, without a proper system and method of data management, it wouldn’t be much better than PowerPoint. That stated, if you’re looking for bells and whistles and/or cool new features, there are plenty to be found in the presentation and what I will refer to as the “pre-presentation” areas.

When in dual screen mode (one showing the database, the other the trial presentation), there is a new “Mirror Mode” feature which allows the user to zoom, highlight and/or otherwise work with a document in the “Preview” screen and have the results displayed “live” on the presentation screen. So, rather than display the cursor or other annotation tools in front of the jury, you can simply have your work “appear” on the presentation, while you are working in the preview screen. A real benefit of all of this is that although you are able to display only the results, you are still able to view and work in the database, and if you need to move the cursor over to the presentation to point something out, you still can do that. So, you now have the option of setting something up in Preview and then presenting it, or doing the whole thing “live,” in addition the typing in an exhibit number, using barcodes, or the improved document explorer in the Presentation screen.

The toolbar has a nice “auto-hide” option, in addition to improved settings which may be saved. The presentation also offers some very flashy (read: glitzy) display options, such as a mirror and backlight effect, which are probably a bit over the top for actual trial presentation. They can be used for other types of presentations, however, as in a recent matter in which I provided a recap of the trial in a PowerPoint presentation. For that, I was able to take advantage of some of these effects.

The Bottom Line
If you already own TrialDirector, I would say the decision to upgrade is a no-brainer. If you are current with your TrialDirector 5 annual maintenance, the price of the upgrade is offered at a 50% discount. If you are purchasing without a qualified upgrade, the list price is $695 for the software, plus $139 for annual maintenance, keeping it in line with other competitive programs.

The upgrade from version 3 to 4 was dramatic, 4 to 5 introduced many new features, and now TrialDirector 6 has really brought it all together. In my opinion, inData’s TrialDirector has once again raised the bar, which will likely help it remain the market leader in trial presentation software.

Additional resources:
Court and Trial Technology Blog
LinkedIn Trial Technology Group
Trial Technology Yahoo Group
LinkedIn: Ted Brooks
Twitter: litigationtech

Ted Brooks, President
Litigation-Tech LLC
"Enhancing the Art of Communication" Member, American Society of Trial Consultants
Certified inData TrialDirector Trainer
415-291-9900  San Francisco

213-798-6608 Los Angeles
http://www.litigationtech.com/
tbrooks@litigationtech.com

http://trial-technology.blogspot.com/
WINNER: LAW TECHNOLOGY NEWS AWARD FOR MOST INNOVATIVE USE OF TECHNOLOGY DURING A TRIAL