Home > Archives for 2009
Wednesday, December 2, 2009
Wednesday, November 4, 2009
The "expert" he is referring to is none other than Edward Tufte, as that is one of his favorite and most-quoted terms.
Having been one of the fortunate ones who have had the opportunity to attend Tufte's seminars and read his books, I can tell you that while he may not condone the practice of gratuitously inserting graphic illustrations into demonstrative exhibits, I do believe he would understand and agree with the principles of proper layout, color usage and contrast to bring out a particular point.
Upon checking his web site, I noticed that he is offering some seminars in the coming weeks. I would strongly encourage anyone involved or interested in visual communication to attend.
I still recall when I found out that my former law firm (Brobeck) was sending me to this course, I was a bit disappointed, not really having an interest in learning more PhotoShop or PowerPoint techniques. In retrospect, I am so glad I was able to attend, and I rely on this material in nearly every trial in which I am involved.
Saturday, October 24, 2009
That stated, it is often better to present the material in more than one manner, allowing each individual to understand the matter on their own terms, and based on their own education, life experiences and preferred methods of learning new material. This may mean reviewing documents for some, an animation or perhaps some demonstrative graphic exhibits for others. I would never recommend attempting to educate a jury on a technical subject without the use of some form of visual support.
Good article, worth reading!
Wednesday, September 30, 2009
Tuesday, September 29, 2009
Friday, September 25, 2009
Just published on the Litigation Educators web site, a timely article on things to consider when you need some assistance with trial presentation. There are many to choose from, but which is the best fit for you? How much might you expect to spend on trial support? Does less money mean less qualified, or does more money mean more qualified? How can you tell if they actually have a lot of courtroom experience, or if they are a trainee assigned to your case? What about software? All this and more is covered in this article.
Thursday, September 17, 2009
Here is my recent comment on the topic:
Additional key items to consider in this are who is providing the certification, what are their qualifications with this topic, and what is their motive. If it is simply an opportunity to profit by slapping together a quick test and possibly some training, and then sell a certification, I would be against it.
If, however, it is demonstrated that they are indeed qualified to offer the testing, verification of qualifications AND actual trial experience, perhaps even requiring a recommendation from an attorney or legal professional whom they have worked with in trial, then it may be worth the paper it is printed on.
As with any other profession, going to school, taking a test, and gettting certified, while all helpful, do not make you a qualified expert in your field. You must also serve some time in your craft, working to perfect the art.
Thursday, September 10, 2009
Monday, August 3, 2009
By Ted Brooks, originally published on ASTC (American Society of Trial Consultants)
The recent legal defense of actor Robert Blake included heavy use of trial technology. While the prosecution relied upon “old-school” trial presentation techniques, including the use of posterboard blowups, printouts of documents and photographs, criminal defense attorney M. Gerald Schwartzbach chose other alternatives. For the first time ever, he used high-tech tools in his trial presentation.
Then, in the recent high-profile criminal trial of Dr. Hootan Roozrokh, Schwartzbach once again gave jurors the opportunity to “see” the evidence by visually presenting the case in much greater detail than the prosecution. Considering common clichés such as “Seeing is believing” and “A picture is worth a thousand words”, is it possible that the outcome of a trial may be influenced by the methods used to present the evidence?
Given these two cases tried by Schwartzbach, one might expect a Los Angeles jury to be accustomed to high-tech trial presentation, but the same may not be true in San Luis Obispo, a small Central California city located about an hour and a half north of Santa Barbara. Is your next trial venue accustomed to trial technology?
Consider the case of Shropshire v. City of Walnut Creek, CA, a precedent-setting case in which an Olympic-hopeful diver was paralyzed after an accident during training in which he landed on top of a synchronized swimmer who had been training in the same pool. It was the first time that the San Francisco plaintiff’s firm Abramson Smith Waldsmith had incorporated technology into their trial presentation. It resulted in an award for “Most Innovative Use of Technology In a Trial,” not to mention an impressive $27.5 million dollar verdict. While Walnut Creek is less than an hour from San Francisco, this was one of the first times technology had been used to this extent in that courtroom.
In each of these three case examples, the jury has spoken. Each contains a valuable lesson on how technology may have helped jurors reach their verdict.
1) Use Technology for Visual Impeachment: People v. Robert Blake
Schwartzbach inherited a complex case in the murder trial of Robert Blake , and quickly realized the difficulty in managing and presenting a large collection of exhibits, photographs and recordings. His jury consultant suggested bringing in a trial technology consultant.
At the first meeting, Schwartzbach saw what could be done with trial presentation software (e.g. TrialDirector) to assist in efficiently presenting evidence. He was convinced that a tool like TrialDirector would help keep the jury focused and engaged in what would likely be a lengthy three-month trial.
Defense attorneys often face the difficult task of trying to level the playing field when many of the prosecution’s witness are sworn law enforcement officers. This case was also part of the focus of a book released just prior to the trial which could potentially have a significant impact on improving the image of the LAPD. Schwartzbach needed to be prepared for any opportunity to impeach the prosecution’s witnesses – especially any officers involved in the investigation.
This photo exhibit, taken for publication in a book shows the three detectives assigned to the Blake murder case.
At one point during the trial, Detective Steve Eguchi (above right) was being questioned about whether or not he was near or had climbed up on the dumpster in which the murder weapon was later found (after being removed from the scene, dumped and spread out for inspection at a nearby landfill). He denied having been near or on the dumpster. Schwartzbach had the photograph of the dumpster scene displayed on the big screen for the jury.
After making sure that Eguchi was sticking to his story, he zoomed in on – guess who?
Detective Eguchi quickly confessed in front of the jury, stating, “Yes, I guess I was there.” It seems that neither the LAPD nor the DA’s office had realized that Eguchi was in the photo, nor did they have the capability to show it in court. Needless to say, there were smiles on several jurors’ faces at this point. Passing a small photo in front of jurors certainly would not have had the same impact as the big screen zoom. Robert Blake was found not guilty on all counts.
2) Use Technology To Make Comparisons and Teach Visual Concepts: People v. Dr. Hootan Roozrokh
Dr. Roozrokh was charged with hastening death by over-medicating a potential organ donor in order to harvest his organs. This was an extremely important case of international interest – the first of its kind, which could have a serious impact on the future of organ donor programs.
From the opening statement, the District Attorney chose to show jurors how many bottles of morphine were allegedly used to over-medicate the donor. She placed a number of actual morphine vials on top of the witness stand – something she later repeated with a witness on the stand. It was a very slow process opening each box, placing each vial upon the table, attempting to count (and recount) each one, and occasionally knocking one over. A single 10mg morphine vial at twenty feet appears very small, and it would certainly be difficult to have a good perspective of a large number of them at a distance.
Mr. Schwartzbach wanted the jury get a clearer picture of the concept. One expert witness had testified to having knowledge of cases where as many as 5000mg were used in end-of-life situations. It certainly wasn’t an option to acquire and trot in a large case of tiny bottles to spread around the courtroom. Importantly, the case included an issue regarding 200mg of morphine.
A demonstrative exhibit was created to depict 200mg of morphine:
(20 morphine bottles)
This was a bit more helpful, allowing the jurors to see all twenty of the bottles, and getting some idea of the quantity at issue. Similar demonstratives showed different quantities of the drug. While this was helpful and far more efficient than the several episodes of bringing out the bottles, there is a better way of showing the jury how much medication was used in this case, as compared to how much had been used in other cases. A little searching on the Internet provided a compelling idea for the closing argument, comparing 200mg to 5000mg:
Fortunately, for the sake of organ transplantation programs and end-of-life care standards, Dr. Hootan Roozrokh was found not guilty on all counts.
3) Use Technology To Enhance Witness Testimony: Shropshire v. City of Walnut Creek
Olympic hopeful Scott Shropshire was practicing his diving at the Heather Farm swimming pool in Walnut Creek, California, along with his team and coach. At the same time, at the other end of the pool, the Aquanuts synchronized swimming team was rehearsing their routine, under the supervision of their coaching staff.
The Aquanuts finished and dispersed about the pool, with one member swimming underneath the diving board. Shropshire could not see her and didn’t realize she was there. He dove, and as he was about to hit the water, she launched out from the side, directly in his path. Shropshire instantly became a quadriplegic.
With the Pool Supervisor on the witness stand, attorney Bill Smith of Abramson Smith Waldsmith questioned him as to why there were no lifeguards on duty at the time, why there were no dividers in place, and where the lifeguards would have been stationed had they been present. Mr. Smith prepared graphics showing various lifeguard zones, but the witness did not agree with the zones as laid out in the prepared demonstrative. As Smith continued questioning the witness, Smith put a diagram without the zones on the witness’s monitor. The witness indicated where a zone might be, and with TrialDirector and a few drawn circles, a new demonstrative had been created on-the-fly – at the witness’ direction. The demonstrative suddenly advanced to an admissible exhibit.
While this could have been done on a sheet of paper, it was extremely compelling when presented on the big screen. Plus, as a powerful trial exhibit, it would now make the trip into the jury room for deliberations.
Plaintiff Scott Shropshire prevailed, with the jury awarding a $27.5 million verdict.
In addition to these examples, consider the following tips for making your visual case at trial.
Make It a Habit
Indeed, there was a day when using all of this technology stuff was thought of as being a bit risky – that it might be perceived by jurors as too flashy or expensive. Assuming most jurors now have a TV and/or Internet access, this is no longer a valid argument. In fact, jurors often expect to be shown the evidence, rather than just hearing about it – regardless of the venue. Numerous post-trial jury surveys and interviews have shown that judges and jurors alike appreciate the efficiency and enhanced learning experience that technology can bring to the trial. So, how can you get started?
Do It Yourself
You can purchase TrialDirector or similar software for around $600. The learning curve is not too steep – at least to master the basics (which are the functions most-often used, even by experts). There are also certified trainers available nationally to assist you in getting up to speed quickly.
While you might consider using something you already have, such as PowerPoint, you will likely find yourself at a great disadvantage during trial. The primary strength of PowerPoint is also its weakness – it is designed to present information in a pre-determined linear format. Unfortunately, trials do not always (if ever) go as planned.
Get Full Support
For less money than even the smallest of bailouts, you can try your case in much the same fashion as you always have, while someone else worries about putting a database together, cutting deposition impeachment video clips and presenting all of the evidence to the witness and jury. If you’ve ever been on the serving side of a witness getting solidly impeached via their video deposition, you know that this can be a game-changing, credibility crushing “golden moment.”
When displaying documents, as you discuss Exhibit 12, page 9, paragraph 4 with the witness, the paragraph is zoomed in, and the words “smoking gun” are highlighted for the jury.
The only real differences in working with technology, especially when someone is assisting you, are the trial preparation and the manner in which the evidence is published to the jury.
If you are interested in getting additional information on visual support options, there are a number of highly-qualified ASTC members who would be happy to assist you (see http://www.astcweb.org/public/consultants/consultant_locator.cfm).
While any of the examples shown might be produced and presented in some fashion without using trial technology software such as TrialDirector, there is simply not an easier, more efficient method of doing so. In both the Blake and Shropshire matters, the lead attorneys had never incorporated technology into their trial presentation. Each felt that their case merited having every available tool to help present their case efficiently and effectively, and were willing to try something new. Now, they won’t attempt to represent a client without it.
Ted Brooks (email@example.com) has written and presented legal technology topics for numerous organizations, including California State Judiciary, U.C. Berkeley, NITA, ABOTA, LawNet, ADC, DRI, ILTA, SFTLA, CAOC, American Lawyer Conference, Paralegal SuperConference, plus Bar Associations, Government Agencies and law firms. He has provided trial technology consulting services in numerous civil and criminal trials. Learn more at http://www.litigationtech.com.
Citation for this article: The Jury Expert, 2009, 21(3), 77-84.
Wednesday, July 29, 2009
Texas Instruments' DLP technology has invaded the shelves of Costco and other major retailers - both brick and mortar and online. They are relatively inexpensive, so most anyone can justify the cost to own one. Even a solo law firm on a shoe-string budget can now afford to own, rather than rent a projector for trial presentations - or can they?
Without going into exhaustive detail on how the technology works (you can do that by clicking the links above), I will summarize that LCD (liquid crystal display) and DLP (digital light processing) projectors have two very different methods of painting a picture on a screen.
LCD has 3 light-emitting panels, each of which can be at full brightness, or dimmed for darker colors and shadows. The lumens rating is a true indicator of the power of the projector.
DLP, on the other hand, uses a chip to emit the constant white light source, a series of mirrors (one per pixel) and a rotating color wheel, through which the light passes, thus creating the display. The downside of this is that in order to display darker colors, less light (lumens) is displayed on the screen by tilting the mirrors away from the lens. In other words, a DLP projector lumens rating is based on full-on white, and other colors may be as low as 50% of the rated lumens value of the projector. There is also a "flickering" effect which may be visible at times, due to the rotation of the color wheel.
So, which is better for courtroom use? Well, it appears there is more light available from an LCD than a DLP, meaning a brighter picture. This is critical, as most courtrooms are well-lit, many with sunshine flooding the room during the day.
More importantly, a DLP projector produces a very nasty looking highlighting feature when used with TrialDirector or Sanction trial presentation software. It actually appears to be a yellowish-green color - but certainly not the yellow that you will see on your own monitor. In my opinion, DLP is not a good choice for trial presentation, regardless of the price difference.
The projector used in court should typically be a minimum 3000 lumens, LCD technology. There is little benefit to displaying documents and other evidence if it cannot be easily and clearly viewed by the jury. An optional short-throw lens will facilitate placement of the projector nearer to the screen, and out of the way of counsel, making it less likely for you to display documents on your forehead.
While these projectors will run upward of $2000, they can also be rented, and generally the rental costs are shared between parties. Plus, you won't have to worry about lamp-life, spare bulbs, set-up and taping of cables, etc.
Tuesday, July 21, 2009
Monday, July 20, 2009
Thursday, July 16, 2009
Wal-Mart successfully defended against powerful emotional appeal with technology and Sanction: May-Carmen v. Wal-Mart bicycle trial – Marin County, CA , By Colleen O'Donnell
Up against a case rife with emotional appeal and just one night to prepare for trial, consultant Ted Brooks, founder of Litigation Tech LLC, accepted the assignment from a new client to prepare and operate courtroom technology for Wal-Mart’s defense team in a nine-plaintiff product liability suit.
Brooks spent his one pre-trial evening loading digitized evidence into Sanction, including about 20 video depositions, as well as several audio tapes, and hundreds of photos and documents. He also made extensive use of Sanction’s Presentation Folders to help organize the data for each witness.
Plaintiffs’ counsel, in contrast, did not use any technology at all in trial. “If you’re going to swordfight, don’t bring a pocket-knife,” observes Brooks of the opposing team. “We were able to effectively present our case, while the plaintiff searched.”
The plaintiffs used dozens of mounted photos of children averaging between 8 and 12 years old, whose faces were roughed up in bicycle accidents, which they alleged were caused by defective bikes sold by Wal-Mart.
Nine sets of parents had filed suit against Wal-Mart, bike importer Dynacraft and its claims processor. The parents publicized their case with the graphic website: Wal-Mart Stop Hurting Our Kids (SHOK). Their attorney, Mark Webb claimed the accidents were caused by defective quick-release devices, which are intended to secure front wheels to the bike but allow riders to easily remove them for transport. He asked the Marin County jury for $8 million in general damages for the nine families from California and other states, plus punitive damages for the defendants' alleged malice.
"Every child in this case went over the handlebars, landed on his face, and suffered severe injuries," Webb told the 12-member jury. "How do you put a price on quality of life? How do you put a price on a childhood that's been lost?"
Wal-Mart and bicycle manufacturer Dynacraft had hired a high-profile law team of four attorneys, including seasoned Joe B. Harrison of Gardere Wynne Sewell in Dallas, who retained Brooks during the eight-week trial.
The defense put forth that each of the bikes had been tampered with, neglected or improperly handled. Key to the defense were deposition videos and audio tapes. During trial preparation, Brooks created video clips from 20 depositions, as well as audio clips from insurance adjuster audio tapes. Some of the clips were played as absentee witnesses.
“In every instance, our side showed there was negligence involved with the bikes, and either kids or parents not taking measures to ensure the bikes were in working order,”explains Brooks. “We had audio tape of plaintiffs’ interviews with the insurer and we played them to the jury. All audio tapes were digitized and played through Sanction. I used Sanction in dual-screen mode, allowing me to have full access to the database while documents and video were shown to the jury.”
Audio evidence included statements from the injured children such as, “My friend loosened my wheel and said ‘drive home.’” The child did that, then had an accident the next day on the bike.
“Opposing counsel counter-designated what they wanted to play – so, there were many times I had to create clips in the courtroom, just minutes before they were to be displayed in trial. Sanction's Clip Creator made this task very quick and simple,” adds Brooks. “Another valuable feature used was converting the clips to individual files, which could be burned to a CD and submitted to the Court for the record. This was done for each absentee witness.”
Harrison said in his closing argument that there was no scientific proof that Dynacraft quick-release levers are defective. He pointed out that the defendants had attached warning tags to the bikes and sold them with instruction manuals, including directions on how to safely operate the quick-release levers. Harrison criticized the plaintiffs' key expert, metallurgist Robert Neil Anderson, who testified that the Dynacraft bikes Wal-Mart sold were like "ticking time bombs."
He said that Anderson failed to conduct sufficient tests on the bikes to prove a defect and did not study how the accident rates of Dynacraft's bikes compared to others. Harrison also said that the plaintiff's expert did not test the clamping force of Dynacraft's quick-release or conduct tests to confirm his theory that the bikes' soft-suspension system had more vibrational stress than other bikes. He also criticized the plaintiffs for not presenting an accident-reconstruction expert to explain the cause of these accidents.
He concluded that Dynacraft's own expert witness, Gerald Bredding, did extensive tests to prove that the bikes were safe. “We digitized a videotape showing the front suspension on a smooth roller, and then on a roller with bumps welded on which shook the wheels violently, and showed this test to the jury,” says Brooks. “We also showed a test with heavy weights hanging from the wheels. They never came off. Another series of test data was shown to the jury, proving that the clamping force of the Quick Releases was as strong as, and in some cases, even stronger than high-end QR's.”
"Which is better, guesswork or science?" Harrison said to the jury. "Theories are a dime a dozen. Where's the proof? Where's the data?"
A key moment in the trial came as Wal-Mart's defense attorney Rob Phillips was giving his closing argument, and the last thing the jury saw were the words: "Where's the proof?", zoomed in from a graphic, filling seven feet of projection screen in the courtroom, relates Brooks. “As he spoke to the jury, he turned to look at the screen, then realized I had zoomed in on that section, and just smiled. It was very powerful.”
Without technology, plaintiffs relied on the emotional appeal of injured children and dramatic displays such as shaking the bike. “Plaintiffs shook a bike in trial to show that the wheel falls off – but the plaintiffs had removed the brakes for dramatic effect,” explains Brooks. “We shook the bike with the wheel properly tightened and it stayed on.”
Brooks is well-known in the litigation technology community for his work with another trial presentation product, but he really liked Sanction. “Clip Creator is very easy to use and helpful. I used it a lot,” he says. “I also liked the ability to pre-select where to place a given document or photo.”
“I’m not a fan of making trial presentations like a PowerPoint. That’s the advantage of trial presentation software like Sanction. You never know what’s going to happen in trial, and with trial software, you can respond to that. Otherwise you’re stuck in a linear format.” Brooks was moderately familiar with Sanction and had used it before in the past. “Because Sanction is rather well-designed, I was able to drop in and use it easily,” he says.
The jury found against the parents and their attorney. None of the parents won any damages although one set of parents reached a confidential settlement with Wal-Mart and Dynacraft. The decision was 11 to 1 and a retrial is pending.
“Our counsel was extremely happy and pleased with the performance of Sanction in trial. It led to more business for me,” Brooks adds happily. “A couple very highly-regarded attorneys on the team had never before used technology in trial. Thanks to Sanction, I’d be surprised if they ever try another major case without it. Opposing counsel was also impressed by Sanction.”
This article is reprinted with permission from the Tech Edge Insider Vol 2, Issue 7 Verdict Systems, LLC. © 2006
Ted Brooks is the president of Litigation-Tech (www.litigationtech.com)
Litigation-Tech provided the courtroom technology in this precedent-setting litigation
2.2 Billion Reasons to Stay Tuned to Courtroom Technology
In Minority Report, an action-detective thriller set in Washington, D.C. in 2054, actor Tom Cruise plays a police investigator who uses a dazzling array of high tech video gadgetry in a "virtual courtroom" setting to convince satellite-conferenced judges to issue arrest warrants for murderers before they commit their crime. By arresting the criminals before they act, crime is effectively eliminated.
Sound far-fetched? While eliminating the "actus reus" (physical act) element from criminal prosecution is not likely to occur any time soon, the advent of high tech video gadgetry in the civil courtrooms is moving at warp speed and producing some amazing results.
Witness the recent $2.2 billion settlement in Western MacArthur Co., et al. v. U.S.F.&G., et al. The settlement, reached after nearly three months of trial in Alameda County, is one of the largest asbestos-related settlements ever made. Pursuant to the terms of the settlement, St. Paul, the successor by merger to U.S.F.&G., has agreed to pay the $2.2 billion to resolve approximately 20,000 underlying personal injury asbestos cases filed in Alameda County from approximately 1982 through present (and for additional future claims).
Plaintiffs were represented by Faricy & Roen PC, Brobeck, Phleger & Harrison LLP, and Miller, Starr & Regalia. To deal with the massive amounts of discovery and the daunting task of trial presentation, plaintiffs' counsel turned to Legal Technology Consulting and Ted Brooks.
By the time trial started, the courtroom resembled a neighborhood Good Guys store. There were twenty-three 15-inch flat panel monitors (10 in the jury box, 4 at counsel tables, 4 behind counsel tables for supporting counsel and staff, one in the witness box, and one for the judge), with kill switches to disable the jury's view for unadmitted exhibits. In addition, the parties used a 48-inch flat panel plasma display monitor behind the witness stand for reference by witnesses to documents and other evidence. Plaintiffs used Trial Director on InData Trial Server with Medea external RAID drive, which produced total 300 GB drive capacity to present several hundred exhibits, several days of deposition video and other evidence.
"The Judge (the Honorable Bonnie Lewman Sabraw) wanted to see the trial like a movie, to blend plaintiffs' and defendants' evidence in a way that was easily accessible and understandable to the jury," said Brooks, who acted as the technological maestro in the courtroom. "Since the life of the case (12 years) outlasted much of the technology that was used at the outset, it was a challenge to make all of the technology work. But in the end, we succeeded."
The behind-the-scenes "technology statistics" are staggering. They included:
• 10 trial databases (not including several testing, export, import, and case buildup databases)
• 105 GB digitized deposition video
• Combined video runtime: 13 (24 hour) days, 7 hours, 14 minutes, 44 seconds
• Combined deposition excerpt runtime: 2 (24 hour) days, 13 hours, 12 minutes, 53 seconds
• 2322 deposition excerpts (not counting several hundred used for editing purposes)
• 100 videotaped deposition transcripts (not counting many taped but not digitized)
• Nearly 900 demonstrative graphic exhibits
• 15.48 GB document data
• 164204 TIFF images (all parties, not counting hundreds of thousands in case buildup data)
Amy Matthew, a shareholder with Miller, Starr & Regalia and one of the plaintiffs' lead trial lawyers, had nothing but praise for the work performed by Brooks and the technology team. "This was a case of gargantuan proportion," Matthew said. "Our ability to effectively communicate to the jury, to show the jury a mountain of evidence in a format that they could understand and readily assimilate, was one of the keys to this trial. Without our extensive trial databases and the cutting edge technology used to communicate information to the jury, we would not have achieved the tremendous settlement that we did."
So how does one approach what Brooks described as the "Technological Mother of All Cases?" According to Brooks, the key is to work with competent counsel early on, develop a usable database and use an excellent software program, which in this case was Trial Director. "We agreed to keep a standardized system (Trial Director) following a court order that we were to combine plaintiff and defendant deposition video deposition clips, and play them at the same time, more closely resembling a live witness. This resulted in us (plaintiff) presenting approximately 80% or more of the evidence, with very few "hard copy" documents used during the entire trial. With thousands of exhibits on each side of the table, to try to manage the evidence as paper simply would not have worked in any efficient manner. The Court repeatedly complimented the efficient and effective implementation of technology in the courtroom, and noted how the jury was very focused when deposition clips or documents were shown on the monitors."
At the end of the day, the cutting edge technology used in Western MacArthur Co. may not have prevented the alleged wrongs that led to the filing of the lawsuit, but it certainly contributed to capturing a huge settlement.
By Daniel R. Miller and Ted Brooks, Article for the Daily Journal Corp. Verdicts and Settlements
Covering 3 high-profile trials, this article covers the use of technology, visual communication techniques and graphics in the courtroom.
Actually, the PDF version is a bit more entertaining to read, thanks to the nice layout work by ASTC.
Tuesday, July 14, 2009
TechnoFeature: Top Five High-Profile Trial Blunders and How to Avoid Them in Your Own Practice
By Ted Brooks
(This article is a TechnoLawyer Exclusive.)
While some of the tips listed below relate primarily to high-profile matters, a few are also worthy of consideration in preparation for any trial. Some may appear obvious — even to the point that you might doubt they could ever actually occur. I can tell you that I have dealt with every issue I've addressed below during my career as a Trial/Technology Consultant. Also, I have experience in several high-profile cases to draw upon, both criminal and civil. I will not, however, imply, indicate, or attempt to indicate in any way which trial or trials from which each point stems.
So no matter how clever you are, any assumptions you might make as to which one(s) they are related will be wrong — and even if you're right, I'll deny it.
There, got that out of the way.
1. PLAN ON THE WORST-CASE SCENARIO FROM THE OUTSET — DON'T JUST ASSUME IT WILL SETTLE
Okay, this tip probably seems obvious, and unlikely to actually happen in real life, but let me say that it does not always work that way. If it did, I would never have had several "opportunities" to work up a case in a matter of only a few short days — something that should normally take weeks to prepare. In fact, of all the items I will address in this article, this one is the most common.
How does this happen? Well, I think we all try to be optimistic, saving our client precious money whenever possible and practical. Although statistically the majority of cases do indeed settle, all it takes is one little "glitch" on the eve of trial, and you're screwed. One seemingly insignificant misunderstanding, a decimal point in the wrong place, or if you've been following current events, even a plea bargain the Court rejects.
How can you prevent this? Work toward settlement if that is the logical choice, but never assume it's over until it's over. That stated, when it comes to trial preparation, don't wait until the final settlement attempt fails the week before the trial date to get everything in order. This includes all of the demonstratives, trial evidence database, mock trials, and everything else. Although "miracles" may sometimes happen on short-notice, you should not hope to be one of the fortunate few. Rather, prepare several weeks in advance — for larger matters, several months may be preferable.
2. WORK WITH THE BEST AVAILABLE PEOPLE — DON'T TRY TO SAVE A FEW BUCKS
It is interesting that some of the best (and highest billing) law firms in the land would go bargain hunting when looking for trial preparation and litigation support assistance. While in many cases it certainly does make sense, it is probably not the best way to go in high-profile matters. Assuming your client didn't contact you just because you were the cheapest firm around, it might also be assumed that they would appreciate your efforts in securing the best assistance available as well. When viewed in perspective, costs of litigation support, trial preparation, and presentation will be relatively small.
Relatively small? How much does it cost? While I can only offer a general figure for trial preparation and support (as this is primarily what our firm provides), I can say that a "typical" (read: no real such thing as a "typical" trial) one-month trial might end up running in the $70,000 and up neighborhood.
Other oft-neglected items include videotaping of depositions, demonstrative graphics and animations, top expert witnesses, and mock trials or focus groups. Again, it just doesn't make sense in the big picture to provide the high-profile client anything less than the best you can find.
3. MAINTAIN CONTROL OF YOUR CLIENT — DON'T LET THEM MAKE STRATEGIC DECISIONS FOR YOU
I have witnessed more than one client's attempt to take control of what needs to get done, who needs to do it, how witnesses should be handled, and so on. Fortunately, I can also say that most of the attorneys I have worked with have been able to straighten things out and remind the client of their role in the matter.
This is sometimes simple, and sometimes not. It depends on the client(s) and the way they handle the pressure and stress of trial. You should not take the fact that your client has an opinion lightly, but you must also remember that their opinion is probably not the most objective. It may help to bring in a third party at times — someone to help you play "good cop/bad cop." An "objective" opinion from someone other than you can often be helpful in this type of situation.
4. MEDIA COVERAGE — DON'T ASSUME THEY WILL SEE OR REPORT IT YOUR WAY
High-profile trials make for great TV coverage. Interestingly, I have actually heard reports that truly made me wonder if they came from the same courtroom I was in all day. On the other hand, I have heard and read reports that accurately described the proceedings or the intended release of information.
Entire lengthy interviews may be reduced to only a few seconds, offering only a few points of interest. These points of interest may or may not be what you wish to communicate about your case.
If you are involved in high-profile matters, you may know reporters who will work with you to generally attempt to tell the story as you see it. Others may not. Media coverage may be beneficial, or it may be very dangerous. At any rate, it is a risk to some degree — and don't forget that your opponent may wish to have their story told as well.
5. ENJOY THE EXPOSURE, PREPARE FOR NEW BUSINESS — DON'T CHANGE WHO YOU ARE
Assuming a favorable outcome, you and your entire trial team can benefit greatly as a result of your involvement. This can lead to new business, other high-profile matters, and referrals.
Although you may need to make some adjustments to handle an increased flow of work, it is always best to remember your roots. The quality of work and reputation that landed that case should never be compromised or spread so thin as to have a negative impact on your existing or new clients.
Regardless of whether you ever have the chance to work on a high-profile matter (hey, there aren't enough for everyone to have them), you can apply each of these tips in some fashion to nearly every case. Again, some might say these are all "no-brainers," but let me remind you in closing that I have experienced and based each one on actual litigation experience.
Finally, if you think that a particular point above relates to a specific case you have in mind, you're wrong ...
Copyright 2007 Ted Brooks. All rights reserved.
ABOUT THE AUTHOR
Ted Brooks is the President of Litigation-Tech LLC , a trial technology consulting firm based in San Francisco. Ted won the Law Technology News Award for Most Innovative Use of Technology in a Trial, and is a frequent speaker and author.
This article covers three high-profile trials, one Civil case for the Plaintiff (Shropshire v. City of Walnut Creek), and two Criminal Defense cases (People v. Robert Blake and People v. Dr. Hootan Roozrokh). Here, we discuss several techniques and methods of getting exhibits into evidence, creating graphics on-the-fly, and visual communication.
Apparently, this (at least last time I heard) was the most popular article published on the ASTC website (www.astcweb.org). Please let me know if you'd like a PDF version of this article.
A comment from one reader:
I recently read an article that you had written, Jurors and Technology in Trial: What Were Once Vices Are Now Habits. It is an excellent piece and with my 10 years of trial experience I can truly say it was one of the best articles that I have read. Your insight is great and I always look forward to reading your work.
Litigation Technology Manager
McNees Wallace & Nurick LLC