Roger Clemens Mistrial: Top Ten Tips for Vetting Your Trial Presentation Consultant

While I have yet to hear directly from someone who was present in the courtroom, I have heard quite a bit about what happened, and the result. Some have speculated that the DOJ did it intentionally, in an attempt to push the envelope of admissible evidence. Others say it was a mistake, and that the defense team “tricked” them into showing it by not objecting prior to trial, and then further by not objecting or asking them to immediately remove it, once it began to play. This was probably identified on the record before they began to play it. Regardless, Judge Reggie Walton called the third strike, and the DOJ was out.

At issue is a video excerpt of testimony deemed inadmissible as hearsay by the Judge. This means that that it is a case of something like Laura Pettitte telling an investigator that her husband, Andy Pettitte told her that Roger Clemens had told him he was doping. The problem is that nobody is directly making the statement.

In my experience, and similarly shared by others on the Trial Technology LinkedIn group, the DOJ has a tendency to be penny-wise and pound foolish when it comes to trial presentation. Several of us have seen inexperienced paralegals or junior attorneys sitting in the “hot seat” at trial, barely capable of bringing up the correct exhibit (at the correct time).

Although the trial tech in the government’s “hot seat” may not have erred in playing the testimony (that may be entirely on the attorneys, although if it were inadmissible and the tech left it in the database, that’s a problem, as well), it appears as though the text was left on screen for the jury to view during the sidebar (when the Judge called counsel to the bench over this issue). At that point, the screen should have been immediately blanked. This part does indeed to be a result of an inexperienced trial tech.

Borrowed from an article which I originally wrote for Law Technology News, here are the Top Ten Tips to vetting your Trial Presentation Consultant:

1. Choose and retain your trial consultant as early as possible. There are many resources available to help you locate a good consultant, including web searches, referrals, litigation support groups and directories. Good consultants are busy consultants, so you hire them early. If you do a lot of trial work, you might consider retaining a consultant on an ongoing basis.

2. Check for conflicts. As with law firms, trial consultants generally only work on one side of a case, although there are circumstances where they serve as a "neutral" for both parties. Clarify this before you sign the contract. Also, run a conflicts check to protect your existing client relationships.

3. Get an estimate, with options. To avoid unhappy surprises, discuss in detail the expected litigation workload, and request a written estimate of what you can expect to spend on trial support. Most trial consulting services are billed hourly. Rates typically start at $150 to $200, but can go higher, depending on the case and consultant. It's not uncommon for a one-month, full-service trial to generate a consulting tab in excess of $50,000. Not all cases warrant those expenditures, so be candid with your consultant, and discuss alternatives.

4. Try to identify specifically what you need and will expect your consultant to provide. Although your consultant should be able to assist you in defining these goals, the more information you can provide up front, the better your chances of success. Unclear communication and assumptions are a proven recipe for disaster.

5. Make sure all interested parties are on the same page. A consultant, working with staff, may head down one path, only to find that the lead attorney has another plan - and was not aware of what was going on. Try to get all communications onto a "paper (or e-mail) trail," and include anyone who should be in the loop. Many potential issues can be identified before they become problems. Try to avoid giving too much information over the telephone, as this makes it impossible to verify and track the communication.

6. Research your consultant. Thoroughly check out his or her website, "Google" them, ask for referrals and references - and actually check them! Listen carefully to those who have worked with the consultant - do you sense any hesitancy or reservations? Identify the primary business focus of your consultant. (This is generally apparent by reviewing the website.) If you are looking for a trial consultant, don't contact a videographer or scanning vendor, and vice versa (unless for a recommendation). Don't be your consultant's first "real trial" experience.

7. Make sure you know who will actually be working on your matter - don't just buy into a smooth sales pitch. Meet the trial team face to face. Get, in writing, the name of the team leader and the consultancy's commitment that the team will remain assigned to you for the duration of the litigation.

8. Don't change horses mid-stream. Be sure your consultant is absolutely fluent in all the litigation support software you are already using. This includes Concordance (Dataflight Software Inc.); Summation (Summation Legal Technologies Inc.); TrialDirector (inData Corp.); Sanction II (Verdict Systems); etc. Do not assume that every consultant knows every software application. Many can work with several, but others may not. Do not duplicate work product simply because your consultant does not use your software.

9. Avoid proprietary systems. Should there come a time when you are no longer in love with your consultant, you may want to get out of the marriage. If they are using their own software systems, it may be difficult for someone else to take over the database.

10. Listen to your consultant's opinion. You are paying good money to have a consultant on your team. Realizing that trial work is what they do most of the time, ask questions, get advice, and check in with them often.

There is no excuse for trying to save a few dollars on the lowest bidder, or to keep all the billable hours in-house, when it results in less than the best possible representation of a client. But, I see it all the time. I wonder who will be the lucky owner of a mistrial and resulting malpractice lawsuit in a nice big civil case. It’s only a matter of time.

Jury Box: Voir Dire Application for Mac, PC, and Linux

7/26/2011 Update: The complete review has now been published and is available on The Jury Expert.


You may have read my iPad app reviews on iJuror, JuryTracker, and Jury Duty, and if not, there are the links. Jury Box has recently been released, becoming the first commercially available Voir Dire (Jury Selection) software designed for the computer. It works on Mac, PC and Linux operating systems. 

Setting up the courtroom seating chart

I’m only going to offer a brief overview here at this point, as an in-depth review will be published very soon in The Jury Expert.

Developed by San Diego Deputy District Attorney Adam Gordon, Jury Box seems to do a decent job at managing the voir dire process, and allows for quick and easy juror data input. There is a detailed PDF tutorial available on their website.

Entering individual juror information

Jury Box appears to be a decent computer-based alternative to the iPad apps for replacing sticky-notes. Jury Box is sold via an annual subscription, running $199. 

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

UPDATE: U.S. Federal Court offers Expedited Trial option. Announcement (web page) and News Release (PDF) from United States District Court, Northern District of California. It appears this whole idea just got a major jump-start!

SAN FRANCISCO ─ The United States District Court for the Northern District of California is pleased to announce the adoption of an expedited trial program. Newly-adopted General Order No. 64 (“Expedited TrialProcedures”) offers parties the option of consenting to a binding one-day trial to occur six months after the parties agree to the process. Its purpose is to offer litigants access to justice in a more efficient and economical fashion. General Order No. 64 may be viewed on the court’s website at http://www.cand.uscourts.gov/generalorders. 

Now, back to our regularly-scheduled programming:

You may enjoy litigating but your clients don't. You see a chess game. They see bills. Expedited litigation offers a happy medium. Mediation and private trials conducted by retired judges have existed for a long time, but they're not always ideal. Led by California, states have begun exploring expedited one-day jury trials. According to complex litigation and class action trial support consultant Ted Brooks, the less time you have in court, the more time you need to prepare. In this TechnoFeature, Ted explains how to lay the necessary groundwork, technology and otherwise, for all forms of shortened litigation. Trial presentation aficionados take note. This article contains 1,075 words.

Introduction

In today's economic climate, law firms and their clients are looking for ways to litigate more cost-effectively. Saving money on litigation doesn't have to mean compromising on representation, but it requires a bit of creativity. Alternative fee arrangements are now common, as are various forms of alternative dispute resolution. In addition to mediation and various forms of settlement conferences, some states are even adding the option of an expedited civil jury trial. In this article, I'll share some thoughts on how to approach these techniques with tips for both sides of the bar.

High-Speed Trials Off to a Slow Start

One obvious way to reduce litigation costs is to eliminate, or at least shorten the trial itself, as a trial team can bill upwards of 12 hours per day per team member.

Several options exist other than just giving up the fight or settling for an undesirable figure. In addition to treating settlement conferences and mediations like a trial as opportunities for demonstrating that you're actually prepared to go the distance, many states are enacting legislation, such as California's Expedited Civil Jury Trial Act (AB 2284).

While there has been a great deal of interest in this new form of "high-speed litigation" from both sides of the bar, there also seems to be a healthy respect for the unknown so it's getting off to a slow start. With just one day for the entire trial — opening statements, presentation of evidence, and closing arguments — you'd better show up fully prepared and ready to go.

Tips for Both Parties

For Plaintiffs, in addition to thoroughly reviewing and organizing any relevant discovery, preparation may require having videotaped deposition clips ready to play, a rough cut of a Day-in-the-Life video prepared, a series of demonstratives, and perhaps even an animation.

Many of these projects can be tackled in such as a manner so that you can use them as the building blocks for full-blown trial exhibits if necessary, but without taking all of the final (and costly) steps to create a "finished" trial-ready product. If you are preparing a mediation or settlement presentation, you'll also have a bit more freedom with respect to the Rules of Evidence, so you don't necessarily need to have everything perfect.

For example, you might create a dozen or so demonstrative slides. Should the case proceed to trial, this original work might be the launch pad for upwards of a hundred or more slides, but there's no reason to create the whole batch too early. Of course, there's no excuse for thinking about it too late either. Any decent vendor will understand this concept. If yours does not, find another vendor.

Defendants should also gear up earlier to be prepared to refuse the "quick and easy" settlement offer. Because trial (or ADR) costs can be reduced to just 10% of a full trial (and they can), insurance carriers often insist on exploring expedited litigation in many cases. An over-under verdict agreement can also help limit the maximum damages.

One Bite at the Apple

So what about preparation? Shortening the length of a trial, or reaching a favorable settlement, will still require a considerable amount of prep work. In fact, if you're preparing for an expedited trial, you might actually have a bit more work on the prep side because of tight scripting and rehearsal. Did I just say "rehearsal"?

When you're on a strict time clock, you'd better know how much time to allocate for each phase of your presentation. The only way to stay within your time limit is to rehearse your entire presentation.

Litigators rehearse opening statements and closing arguments — particularly in complex matters. For an expedited trial, you need to conduct an entire mock trial beforehand from beginning to end to nail your timing. A malpractice claim could arise if you find yourself out of time, but you haven't yet covered the damages. Did I mention that there is no appeal in the California Expedited Trial?

Expect the Unexpected

Now that I've scared you, those of you who have tried cases using technology shouldn't have much difficulty in an expedited setting. The key is to make sure everything is loaded and ready to go, with the entire trial being presented as one three-part presentation.

You're going to want to limit live testimony to only a few minutes. You sure won't have the luxury of time to get an opposing expert on the stand for a grilling. A few slow answers, and you're out of time. Instead, you'll want to be very thorough in your videotaped depositions, making sure to cover every possible scenario and issue. Mama always said, "It's better to have, and not need than to need, and not have."

The same goes for your exhibits. Even though you'll want to have everything in order, you still must be flexible enough to quickly locate and present any exhibits or testimony that you didn't expect to use. It's still a trial, and if one thing is certain, it's that not everything is predictable. This also means that you're probably going to want someone there operating your trial presentation database who really knows what they're doing, as opposed to fumbling with the laptop when you should be wrapping up your closing argument, focusing on and speaking to the jury.

No More Excuses

Some might suggest that all of this preparation isn't really necessary, and that the jurors might penalize you for going over the top with high-tech wizardry. Well, take a moment to watch the video, Top 12 Reasons Attorneys Should Be Using Technology in Trial, and just know that it was filmed in rural Arkansas after a medical malpractice case. If ever there were a jury you'd expect to be "unsophisticated," this would be it. They were not, and in fact stated that they "expected" the use of technology and visual trial presentation. Jurors and the courts expect sophisticated trial presentations nowadays.

Conclusion

Many litigators lack of actual trial experience because litigation is so expensive. But being an effective trial lawyer requires practice and polish. Well folks, here's your golden opportunity to get more trial experience, while at the same time offering less expensive representation for your clients. Welcome to a new era in litigation.

Click here if you liked this issue of TechnoFeature.

Ted Brooks, the founder of Litigation-Tech, is a well-known trial consultant. He's also an author and speaker who publishes the blog Court Technology and Trial Presentation. He often works on high-profile cases, including the Los Angeles Dodgers divorce trial (with David Boies), People v. Robert Blake (with M. Gerald Schwartzbach), Western MacArthur v. USF&G ($3 Billion), May-Carmen v. Wal-Mart (Defense Verdict), PG&E v. U.S., People v. Dr Hootan Roozrokh, Shropshire v. City of Walnut Creek ($27.5M), Liou v. Caltrans ($12.5M). Ted invites you to connect with him on LinkedIn, Facebook, and Twitter.

Contact Ted:
tbrooks@litigationtech.com
(888) 907-4434


About TechnoFeature
Published on Tuesdays, TechnoFeature is a weekly newsletter containing in-depth articles written by leading legal technology and practice management experts, many of whom have become "household names" in the legal profession. Most of these articles are TechnoLawyer exclusives, but we also scour regional legal publications for superb articles that you probably missed the first time around. Your friends and colleagues can subscribe here. 

Casey Anthony Trial Compared to Robert Blake (part 2)

Last Friday, I posted the first part of this article. If you haven't read it yet, here's the link: LINK TO PART 1 HERE

This article was originally published by Technolawyer in 2005. I've included a few minor updates and extras. The following note was received by the publisher:

Your article was one of the best we’ve ever published! Thank you! 

Neil J. Squillante, Publisher TechnoLawyer/PeerViews Inc.

One common thread you'll find here when comparing the Casey Anthony and Robert Blake trials is that it takes evidence to get a conviction. The evidence must support the charges, or the jury will find for the defendant. That's the duty of the jury, and the law. Speculation and feelings are not part of the deliberations process, even if you really dislike the defendant.

"I just swear to God," the man, identified only as Juror No. 2, tells the St. Petersburg Times, "I wish we had more evidence to put her away. I truly do. ... But it wasn't there. "In the end, he adds, "We just wanted to go on the evidence that was presented to us."

Troubling as it may seem, I believe that based on the evidence presented, the jury was required to acquit. They did the right thing, and are to be commended for not caving in to their emotions. I hope you’ll enjoy the article. Don’t miss the extra bonus material at the end of part two.

---Ted

OPENING STATEMENT

Although Mr. Schwartzbach had never before used technology in trial, he caught on quickly, greatly enhancing his ability to instantly call up exhibits and keep the jurors engaged. A fair amount of extra preparation and rehearsal was required, especially for the opening argument. After practicing law quite successfully for 37 years without technology, he at first found it a bit uncomfortable to rehearse and go through the added steps to share his outline and plans, but we quickly established a communication protocol, which would allow him to speak to the jurors just as he had always done, but now with the added benefit of visual support.

For those who viewed the opening statements on Court TV, you know that it lasted about five hours. This was the longest opening statement I've ever witnessed, but it was very compelling, and I never once noticed any fading jurors as the story unfolded before them.

The prosecution (Shellie Samuels) chose to run PowerPoint, and had a few (predictable and common, in my opinion) glitches. The main problem in using PowerPoint in litigation is its linear format -- one slide follows another until the end. Should you decide to jump to another topic, no easy way exists to do so. The defense ran with a combination of TrialDirector and PowerPoint, facilitating immediate random access of anything in the database, from documents to photos and demonstrative graphics to video.

THE TRIAL

Technology-wise, the trial seemed fairly uneventful. This is not a bad thing at all -- technology is generally only noticeable when it fails. We had plenty of 16+ hour days, however, getting it all ready for prime-time, and we did have some problems. Actually, I have never participated in a trial that didn't have technology problems -- the key lies in dealing with those problems quickly and quietly, so that nobody else even knows.

Small safeguards like having more than one trial presentation computer in court, having a portable scanner and printer, and making frequent backups of the database are worth their weight in gold. When it comes to using technology in trial, the question is not if an issue will arise, but rather when, and how quickly it can be resolved.

When comparing our (defense) exhibit presentation with that of the prosecution, we could zoom in on photographs, highlight exhibits on-the-fly, and point out items to the jury in ways the prosecution could not, as it relied on hard-copy documents and photos, displayed on an ELMO (document camera). On several occasions, they searched for several minutes to find an exhibit, and at times could not find what they needed.

It is also very helpful and valuable to include the daily transcripts in the database, making the entire set of trial transcripts fully searchable.

We could instantly display exhibits (accessing the database by exhibit number, barcode, or Bates number), rather than digging through piles of documents for the right page. There were just over 100 prosecution exhibits admitted, and well over 300 defense exhibits. It is common, in my experience, thanks to the sheer efficiency of trial technology, to easily outpace the quantity of exhibits identified by opposing counsel (not using technology) by 3 to 5 times.

When considering costs, the length of a trial can be significantly shortened -- one reason the courts (and informed clients) encourage its use. Juror comprehension and retention seem to dramatically improve with visually supported communication techniques as well -- another key reason to consider using technology in trial.

CLOSING ARGUMENT

Again lasting several hours, many critics and journalists thought that the jury could not have paid attention to the entire closing argument. I can tell you, having sat in the courtroom for the entire trial observing the jury, that they intently listened to every detail and viewed every piece of evidence.

Once again the prosecution ran PowerPoint slides, and once again it experienced problems in navigating to the correct slides, which caused a recess at one point.

The rehearsal for the closing argument flowed very naturally, as did the argument itself, now having a great deal of trial experience working together with technology. Often, by the end of the first technology-enhanced trial, a lawyer will become quite familiar and comfortable with its use.

Also helpful was the fact that during the trial all of the exhibits were numbered (as exhibits), making it much easier to call them up using only a few digits, as opposed to typing in a long Bates number or looking for the correct barcode (which themselves are much faster than digging for hard-copy documents).

THE VERDICT

I recall being asked by Gerry how I thought we did, and what did I expect to see as a verdict. My only statement was, “I just can’t put the gun in his hand.” Without that, there should be no conviction. As I watched the jurors being interviewed during the press conference, a chill ran up my spine, as the Jury Foreman was asked why they had voted to acquit, and he then simply stated, “We couldn’t put the gun in his hand.”

Why was Robert Blake aquitted of murder? (brief video clip)

The jury has spoken. Regardless of all the "armchair quarterbacking" and plentiful opinions on how the case should or should not have been tried, Robert Blake walked out of the Van Nuys courthouse a free man.

CONCLUSION

M. Gerald Schwartzbach and Robert Blake both commented on the use of technology during this trial, with Robert stating, "This small band of warriors saved my life."

Robert Blake Murder Trial - Not Guilty (brief video clip)

There’s my Celebrity endorsement. I work on civil and criminal cases. Call me – I need to work for a living too.

Participating in this case resulted in a truly great and very educational experience. Mr. Schwartzbach has completely converted to trial technology. Despite the fact that L.A. District Attorney Steve Cooley publicly stated that the jurors were "incredibly stupid" for their verdict of acquittal, I do believe that justice has prevailed, thanks to the diligent efforts of Gerry Schwartzbach and his "small band of warriors." Hmm, does this sound familiar, as in the Casey Anthony case? I guess jurors haven’t gotten any smarter?

Copyright 2005, ©2011 Ted Brooks. All rights reserved.

ABOUT THE AUTHOR

Ted Brooks is the President of Litigation-Tech LLC , a trial presentation and technology consulting firm with offices in Los Angeles and 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.

BONUS EXTRA MATERIAL

Larry King Live: Robert Blake, on M. Gerald Schwartzbach (brief video clip)

RELATED ARTICLES

Casey Anthony Verdict: Was it Wrong?

Jurors and Technology in Trial: What Were Once Vices Are Now Habits

Top Five High-Profile Trial Blunders and How to Avoid Them in Your Own Practice

Trial Presentation in Large and Complex Cases