Trial Presentation Consultant/Trainer Cheryl Evans recently posted a question regarding taxable costs for trial presentation consultants. Just to make sure everyone knows what we are talking about here, the term “taxable” as used here refers to recoverable costs by the prevailing party in a trial. To further explain, these costs are to be added as a reimbursement for expenses of certain things, in addition to the award per the verdict.
There is some discretion as to interpretation, and the Circuits differ in this as well. In short, if Counsel can prepare a compelling motion regarding the benefits realized and the necessity for these services or products, recovery may be granted. I have routinely seen the prep and development phase covered, and have also heard that even the presentation has been covered in some cases.
Federal Rules of Civil Procedure 54(d)(1) and 28 U.S.C. § 1920 relate to taxation of costs, but allow for a degree of interpretation of what is “reasonably necessary in the prosecution or defense of the lawsuit…”
I generally suggest that my clients handle it the same as they would with demonstrative graphics.
There are several cases cited in Modern Visual Evidence, by Gregory P. Joseph. This book is a very helpful reference and a valuable resource to those in this profession.
Here are a few case citations – the first two from the above-mentioned reference and the third shared by Cheryl Evans and Michael Arkfeld, regarding exemplification as explained by the Seventh Circuit:
“… as permitting an award of the reasonable expense of preparing maps, charts, graphs, photographs, motion pictures, photostats, and kindred materials,” including graphics services and multi-media evidence display systems.
-- Cefalu v. Village of Elk Grove, 211 F.3d 416, 427-428 (7th Cir. 2000)
-- BASF Corp. v. Old World Trading Company, No. 86 C 5602, 1992 U.S. Dist.
-- Transamerica Life Ins. Co. v. Lincoln Nat'l Life Ins. Co., 2009 U.S. Dist. LEXIS 72572, 34-36 (N.D. Iowa Aug. 17, 2009). The Court awarded costs for the consultant time and equipment costs in presenting a "multimedia" trial presentation pursuant to 28 U.S.C. § 1920.
Bottom line – get the book.
By the way, today is the first anniversary of this blawg!
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
ADR and the Art of High-Speed Trial Presentation
10:49 AM
indigo
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
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
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
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
WINNER: LAW TECHNOLOGY NEWS AWARD FOR MOST INNOVATIVE USE OF TECHNOLOGY DURING A TRIAL
Electronic Trial Exhibit Management and Production
9:22 PM
indigo
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.
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
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://www.litigationtech.com/
tbrooks@litigationtech.com
