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.

Related Articles:

TheStress of Trial

TrialPresentation in Large and Complex Cases

EffectiveUse of Exhibits in Closing Argument Helps Win $12.2 Million Verdict

Isit worth the risk not hiring a Trial Presentation Consultant?

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