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.