The Court Technology and Trial Presentation Blawg features articles, reviews and news of interest to lawyers and other legal professionals. This blog is published by Ted Brooks, a Trial Presentation and Legal Technology Consultant, Author and Speaker. Ted's trial experience includes the Los Angeles Dodgers divorce trial, People v. Robert Blake murder trial, and a hundreds of high profile, high value and complex civil matters.

All materials © Ted Brooks, unless otherwise indicated.

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Thursday, December 29, 2011

Ted’s Top Ten from 2011

Here are a few of my most popular and favorite articles from the past year. Thanks for reading and sharing this blog!

JANUARY 12, 2011 – This article offered the first head-to-head comparison of the first two trial presentation apps for iPad, and quickly found itself at the top position for all-time most popular articles, where it remains today. There are now others, including Exhibit A and ExhibitView for iPad, which I will be reviewing very soon.

JANUARY 24, 2011 – What is it about those iPad app reviews? Readership on this blog increased exponentially in 2011, largely attributed to the many iPad app reviews I’ve written. This article explores several apps for jury selection and monitoring, and is comfortably in the second position for all-time most popular articles.

MAY 3, 2011 – Often, litigators make certain assumptions about the Judge and jury, which are not always on the mark. One such assumption is that Judges don’t care for the use of technology in court. Here are a few noteworthy quotes for the doubters.

MAY 18, 2011 – I’ve never really used a device just because it’s the cool thing to do. I do love my iPad, but I don’t believe it is a true laptop replacement – regardless of what others might say. Same goes for my phone. I did my homework, and found that the Google phone would be a better tool than the iPhone, and on a better network (Sprint) that still features an unlimited data plan. This particular article was also very popular in the non-legal tech channels.

JULY 5, 2011 – It’s hard to believe this happen this past year – it already seems so long ago. Our justice system was put to the test, as was our perception of trial coverage by the media. Whether you agree or not, the verdict stands.  This article was very popular in both the legal and non-legal audience.

SEPTEMBER 6, 2011 – Written for CAOC Forum Magazine, this article was mentioned as one of the most-read posts on LinkedIn. While the basics of trial preparation are similar, you’d better have everything ready to go in an abbreviated trial.

SEPTEMBER 21, 2011 – This was perhaps the saddest article I’ve ever written. Regardless of your position on capital punishment, we must not allow our judicial system to be manipulated in the interest of convenience or to satisfy public rage.

NOVEMBER 7, 2011 – Due diligence should go beyond the storefront. Make sure the person who will actually be working with you is qualified. Don’t just accept the sales pitch.

NOVEMBER 20, 2011 – Hmm, looks like I was on a roll here. If you are considering bringing in an outside vendor to assist with your next trial, this article offers another check-list of qualifications you should be looking for.

DECEMBER 4, 2011 – You can’t accuse me of tooting my own horn with this one. In fact, I’ve listed several of my favorite sources of legal and technology information. In less than a month, it has found a home on my all-time most popular articles, at number 3. Readers have added several of their own suggestions. Feel free to add yours.

Monday, December 12, 2011

Mobile Living: Life on the Road

No, I’m not talking about hitting the road in an RV. I’m talking about the out-of-town trial, and a few things you might not otherwise think about until you need them – which would then be too late. I’ll offer a few thoughts here, and feel free to add yours at the end of the article.

Internet Connection – Honestly, I can’t imagine being without a decent connection these days, when only a few years ago, it was a pure luxury. In most courthouses in major cities, you can get a decent cell-phone signal. If you can do that, and if you have a smart phone that doubles as a Wi-Fi Hotspot, you’re set for providing access to several laptops, iPads, or other devices. There are also services such as Courtroom Connect in many courtrooms, in addition to a free public service in some (usually intended for jurors). All due cautions apply to each.

Printing, Scanning, Copying – These common, simple daily functions must not be overlooked, and ideally, you will be able to do a decent job of each in both the war room and the court room. While the war room should have equipment available to handle the expected volume, you should also be able to scan or print something in the courtroom, if necessary. There are a number of portable scanners and printers on the market, and mine fit into my carry-on bag which I take to court with me each day. I’d rather not print 10 copies of 12 different exhibits in a big hurry, but I can handle the occasional (or frequent) emergency.
With that, you might also consider using 3-hole pre-drilled paper if you’re putting everything into binders, so you don’t have to worry about punching the pages. One more tip is to bring along a high-capacity stapler, since many exhibits are too thick for a standard staple (over about 20 pages). You should also check out local resources for vendors.

Redundancy – You should always have a current backup of your trial database available. When you’re at home, this may be simple, but when you’re on the road, although dealing with the “blue screen of death” is no longer a routine issue, problems still occur. I recommend have a second laptop of the same make, model and configuration, in addition to a full copy on an external hard drive, which may be used to transfer from one to the other (leaving a third copy on the drive itself). I’m not a big fan of data sync software either, and I have seen it fail. There’s nothing quite like the feeling you get when you realize something has gone wrong. At least if you’re handling it manually, you will know what you did, and likely have a quick recovery available. Also, over-writing database files doesn’t always go as expected, so I will first delete the old set, and then copy over the updated set. Thumb drives and cloud services such as Dropbox can also be helpful.

Other Devices – iPads, Tablets and other devices can also help to make your life a bit more comfortable. If you have one, you know what I mean. If you don’t, you probably won’t understand until you get one. Although there are even apps for trial presentation which I’ve reviewed here, such as TrialPad, Exhibit A, Evidence, and now ExhibitView (currently on sale for $29.99, which I’ll be reviewing soon), most of the cases I handle are far too complex for the capabilities of the iPad. On smaller matters, however, using the iPad in trial could be fun. I have successfully used mine in several CLE presentations.

Use Caution With Room Services – If you’re looking for an easy way of upsetting an otherwise happy client, go ahead and turn in your expense report with a long list of top movies, fine dining, cocktails, and sending out all of your suits you’ve been meaning to get dry-cleaned. Just because you’re living in a hotel doesn’t mean you’re on vacation. Although your extravagant indulgences may be strategically distributed throughout the duration of your stay, think of how it’s going to look on paper – one right after another.

Okay, off to court. Have a great day!

Sunday, December 4, 2011

12 Top Legal Sites You Should Check Out

Many of us have our own short-list of web sites we check frequently to keep current on topics of interest. Whether you found your way to this site through a web search, clicked on a Twitter, Facebook or LinkedIn link, I appreciate that you’re reading the Court Technology and Trial Presentation Blawg. Of course, I also greatly appreciate those who share this site with others. Web traffic and readership are pure motivation to bloggers, as are comments and compliments.

I am going to share a few of my favorite blogs which I enjoy reading regularly. I hope you’ll enjoy my list, which will focus on legal technology, jury selection, graphics and trial presentation. Feel free to add some of your favorites in the comments area.

1.    Law Technology News -- The mother of all legal technology sites, this site is a publication, headed up by Monica Bay, a household name in legal technology. Articles are original, fresh and timely, and they also have a print publication available. Authors include a staff of excellent writers, and LTN features many familiar names in the profession.

2.     The Red Well -- This site features a directory and preview links to current articles provided by a select group of bloggers. Topics include Jury Selection, Litigation Graphics, Trial Presentation, and Communication for Lawyers.

3.      The Jury Expert -- This site is not actually a blog, but rather a very highly-regarded monthly collection of articles, provided by members of the American Society of Trial Consultants. Authors vary monthly.

4.     LinkedIn Trial Technology -- With nearly 2000 members, this is the largest online group focusing on the intersection of law, technology, and visual communication.

5.      Lawyer Tech Review -- This site features a bi-lingual (English and Spanish) collection of articles covering all the latest tech-toys a lawyer could want. A favorite is the App Friday series, where legal luminaries are asked about the apps they use. Attorney Geri Dreiling is the Editor, with Enrique Serrano providing the Spanish version of the site.

6.       Bow Tie Law -- Attorney Josh Gilland explores legal technology and its application in case law, and covers e-discovery frequently.

7.    Deliberations -- The “official” blog of the American Society of Trial Consultants features articles by Jury Consultant Matt McCusker.

8.    Cogent Legal Blog -- Morgan Smith and company offer a great deal of insight on how to communicate visually, using graphics and animations. Smith, an attorney, is the primary author, with contributions from others.

9.    The Litigation Consulting Report -- Ken Lopez features helpful topics focusing on using graphics to speak to jurors. Some great ideas.

10. Information Graphics & Litigation -- Jason Barnes offers great insight on visual communication techniques based on his years of experience in the profession.

11. Litigation PostScript -- Dr. Ken Broda-Bahm provides perspectives of a Jury Consultant. Lots of great “how-to” info on jury selection and analysis.

12.   Litigation Support Technology & News -- Joseph Bartolo and Frank Canterino scour the net for you to offer a collection of summaries of current articles found on many popular blogs.

I’d gladly recommend any or all of these sites to those who are interested in the modern practice of law. Of course, there are many more, and feel free to add your own in the comments section, and use the Twitter, Facebook, Google+ and other social media buttons to share this collection. As a disclaimer, I will mention that I have contributed to numbers 1, 2, 3, 4, 5 and 12 listed above.

Sunday, November 20, 2011

Ten Qualities of Top Trial Presentation Professionals

Dr. Conrad Murray, Michael Jackson Trial (see video below)

Back in the day, when I was the firm-wide in-house Trial Consultant for Brobeck, trial presentation software and technology were actually quite similar to what we use today – at least with respect to the way the exhibits are organized and presented in trial. Sure, computers and software have come a long way, but the biggest difference is the fact that more lawyers are using it. So, what are a few of the key qualities that seem to be a common thread among the nation’s leaders in trial presentation? I think you’ll find that many of these are also the traits shared by successful litigators.

1.       Trial Experience
There is a reason this profession is often referred to as the “hot-seat.” There is nowhere to turn, or nobody else to blame when (not if) something goes wrong, and only experience can help develop the knowledge of how to immediately correct most any issue, and in such a manner than nobody else even realizes there was a problem.

2.       Confidence
This comes naturally with actual trial experience, as noted in #1 above. If there is a lack of experience, there will also be a lack of confidence. Typically, a lack of confidence is easy to spot, and often, the reasons for this shortcoming become apparent in trial. A truly confident trial presentation professional will appear cool and calm, even when they’re under a great deal of pressure.

3.       Obsessiveness
In addition to trial experience, there is nothing like preparation to bring peace of mind to the trial team. During trial prep and the trial itself, there are no adequate excuses for not getting something ready in time. If this means working 16+ hour days, and not going to sleep until everything is ready for the next day, then so be it.

4.       Makes it Look Easy
Maybe you’ve seen an attorney working with a trial professional, and noted how it appeared as if every step was rehearsed – almost as if they both knew exactly what to do, and when. On the other hand, perhaps you’ve witnessed (or been part of) of a trial presentation meltdown, where exhibits weren’t presented in a timely manner, and frustration was apparent on the part of the attorney and trial presenter – not to mention the Judge and jury. The best trial presentation professionals are able to anticipate where the next callout or highlight should be, and will just make it happen.

5.       Above-average Work Ethic
One thing I have learned in my years working with some truly great attorneys is that you must be willing to work harder than opposing counsel. While hard work won’t turn a bad case into a good one and win, laziness can make you lose. Great attorneys are relentless. So are their trial teams. Gerry Schwartzbach once told me quite simply, “We will out-work them.” David Boies once asked his weary trial team, “Do you want to sleep, or do you want to win?”

6.       Data Management Expert
One problem with those who find that trial presentation software is actually pretty easy to learn (at least the basics), is that it doesn’t make you a file management expert. Unless you are capable of organizing tens of thousands of pages, you shouldn’t attempt to do so. One of the most common causes for problems in trial presentation is poor data management.

7.       Computer and Software Expert
While nobody can know everything, an experienced trial presentation professional will be familiar with most programs used by law firms, including litigation support applications. They will also be able to assist with computer problems, spreadsheets, and graphics. They will certainly be intimately familiar with their trial presentation software, and will know how to make the most of all features. Paralegal skills and experience can also be a plus.

8.       Resources
One life-lesson I learned many years ago was that the smartest people are not necessarily those who have all of the answers – but rather, those who know where to find the answers. Whether that means knowing where and how to search the Internet, or having a list of fellow professionals handy, there should rarely be a situation that cannot be resolved. It can also mean finding a way to get 3 copies of 20 exhibits scanned and printed at 2:00 AM.

9.       IT Expert
One quality that is often overlooked is the ability to simply “make things work.” This can mean installing and wiring an entire courtroom, setting up the remote war room, or getting everyone connected to the network. When working out of town in a remote war room, chances are you didn’t bring along your IT department with you. There is far more to this business than putting exhibits up on a screen.

10.   Top Firms and Cases
Never hesitate to check the background of your provider. If you’ve never heard of them, and/or if they don’t have an impressive list of clients and cases, chance are they don’t have the experience necessary to support your trial. Unless you’re willing to provide training wheels, don’t waste your time with someone who is just getting into this business.

Here’s an example of a total FAIL in the recent Michael Jackson trial of Dr. Conrad Murray, as described in #4 above, courtesy of Chris Ballard, of Video and the Law.

Tuesday, November 15, 2011

A Day in Trial

There is an increasing interest in using trial presentation software to help persuade jurors in litigation of all types. Once considered the domain of the mega-firms with their billion-dollar clients, trial presentation technology has now trickled down to the point that it can be used in most any matter. The decision is no longer whether or not to use it, but how to get the most out of it, while staying within the budget. There are a few common options.

You may want to have an attorney handle it. At first glance, this appears to be a perfect match. Another attorney billing on the case, and they are already familiar with the exhibits and the case. From a client’s perspective, however, the billing rate is likely quite a bit higher than that of a trial technician, but even more importantly, it takes a great deal of time to manage the database, prepare exhibits and deposition clips, and present the evidence. If the assigned attorney has little else to do, it could work. If there are other “normal” trial responsibilities, adding a menu of tasks that require constant attention and maintenance may not be a good fit.

Another way to staff your trial presentation is to pull a paralegal and have them do it. However, as in the example above, chances are you’ve already assigned a full day’s workload on your paralegals, and unless you’re able to relieve them of all of their other chores during trial, burnout may be on the near horizon. It is not realistic to expect anyone to work two full-time jobs, and that is about what it amounts to.

Other considerations are familiarity with the software, protocols, and the case itself. Trial presentation software is not unlike many other specialized programs that unless you use them regularly, you are not really comfortable or familiar with the features. In trial, you don’t have time to search the Help Menu for solutions, or call for support when you have a problem. It’s all on you, and if you cannot make it work in a matter of seconds, you may find yourself using the hard copy exhibits.

Whether in-house or outsourced, a full-time trial presentation technician or consultant is generally going to be the best option available. Someone whose sole function is to ensure that every exhibit is accessible, and presented to the jury as needed. The more experience they have in this role, the better things will flow, and the trial presentation database should be their primary function. All other tasks should take secondary roles, as it often requires 14-16 hours per day or more during trial to keep everything rolling smoothly. Once counsel is finished preparing for the next day’s witnesses and retires for the evening, the trial tech goes to work, getting all exhibits and testimony ready to go, backing up the database, and adding new documents. They will also be familiar with the courtroom presentation equipment, and how to deal with the Court staff.

Although it may seem counter-intuitive to bring in someone who isn’t already familiar with your case, this can actually be one of the greatest assets of a consultant. It is true that they don’t know the case, or how you view things. Neither will your jurors, and if you have someone willing to share an objective “outsider’s” perspective, that’s the closest you can get to the mind of your jurors. Don’t expect (or ask) them to see it your way, and don’t attempt to convince them. You don’t need another pat on the back or a “yes-man.” Just ask for their feedback, and take advantage of any insight they have to offer.

Monday, November 7, 2011

Ten Questions to Ask Your “Hot Seat” Provider

First, I’ll define the term “Hot Seat.” In litigation, this is used to describe the role of the trial presentation technician or consultant – the one responsible for managing and presenting the evidence to Judge and Jury. Any delay in presenting the requested exhibit can seem like an eternity. One miscue on their part, such as bringing up the wrong exhibit, can immediately result in a mistrial – hence the term, “hot seat.”

1.       How much will it cost?
Make sure to get the “real numbers” in any estimates you receive, and see if there are hidden extras, such as overtime, travel, equipment, weekend or holiday charges, project management fees, etc.

2.       How much do you personally make?
Cost does not always equal value, and hourly rates do not necessarily indicate the level of competency of the individual actually providing the services. This may be a very personal question, but if the hourly rate is $250, and your hot-seat tech is making $25 of that, there’s a problem.

3.       How many actual court trials have you personally handled the “hot seat” in?
This should be a realistic number, and is not the same question as, “How many cases have you worked on in any capacity?”

4.       Have you ever been involved in a trial similar to this?
Your “hot seat” person will be comfortable, and thus more effective, in familiar surroundings. Although it would be unrealistic to expect experience with the exact case type, things like the size and value of the matter, venue type, data formats, and general type of litigation are all helpful qualities.

5.       What extra value do you have to offer the trial team?
In some cases, the answer may be zero, and that is fine. In others, similar case experience, case feedback, jury monitoring, or other extras may help make the decision whether or not to hire.

6.       May I see your bio?
Don’t expect to see a résumé, as you’re not hiring an employee. However, you have every right to request a bio of the person(s) who will be assigned to your case. Make sure you’re getting what you pay for.

7.       How long have you been doing this type of work?
A few years can be a reasonable amount of time to master most of this. Unless you’re knowingly hiring a trainee (can you spell m-a-l-p-r-a-c-t-i-c-e?), make sure they’re not learning on your dime, and at the expense of your case.

8.       Can you assist with Opening Statement and Closing Arguments?
Depending on the case, it can often be helpful to have another set of eyes looking at things, and offering ideas on how to tell the story visually. This may or may not be something you need or are willing to pay for in your case.

9.       Are you capable of producing on-site graphics?
Any hot-seat technician should be able to make at least minor changes on the fly as needed. There’s simply not always time to engage the “graphics team,” regardless of wherever they may be located.

10.   What sets you apart from your competitors?
This can apply both to the company, and the individual(s) assigned. However, hiring a well-known company does not necessarily mean that the person they will assign is the best for you. Make sure it’s a good fit from top to bottom.

Monday, October 31, 2011

Trial Presentation: Greatest Hits Volume 3

As I have explained in the past, this blog is my passion and hobby, but not my profession. As a result, you will periodically see uneven posting schedules at times, when professional demands require more time. Even so, although the level of traffic during the longer gaps decreases somewhat, it still remains strong. The best compliment I can get on my blog is that people read, enjoy, and share. Thanks for your ongoing support! 

Here are few of the most popular articles recently on Court Technology and Trial Presentation. If you're interested in a topic you don't see here, try the Search feature. If it has to do with trial presentation and technology, chances are you'll find something on your topic.

Courtroom Projectors, Screens, and Monitors A few tips on what works in the courtroom, and what doesn’t. Should you rent or buy? Do courtrooms already have everything you need? 

Presenting Evidence in Trial - The Belli Seminar This article features the importance of visual evidence presentation. The best in the profession seem to share a common thread. Comments like “It looks too flashy,” or “I want the jury to focus on me” just don’t make much sense these days. 

iPad Apps for Lawyers: iJuror, JuryTracker, Jury Duty A few top apps for voir dire and jury monitoring are covered here. There is a great deal of interest in bringing the iPad to trial, and it weighs less than a box of books and legal pads. 

Can't See the Forest For the Trees During preparation for trial, a team learns the fine details and strengths of a case. What is often overlooked during trial is that jurors may not understand even the most basic elements of the case. To make assumptions in this regard may lead to disaster. 

Comparison of TrialDirector, Sanction, and Visionary I am often asked which is better, or which do I prefer. Although my personal preference is TrialDirector, I am always happy to use whatever the client needs. Trial presentation software is a tool, and is only as good as the person working with it.

Monday, October 17, 2011

Presenting Evidence in Trial - The Belli Seminar

I had the honor last week of speaking at the Belli Seminar, an event organized by the Santa Clara Trial Lawyers Association, held at the Lincoln Law School, in San Jose. A day-long collection of non-stop 10-minute presentations, the seminar was moderated by none other than Melvin Belli Jr., and featured many well-known speakers, including Mark Geragos, Jury Consultants Amy Singer and Tammy Metzger, Tommy (Prince of Torts) Malone, Gerry Spence Trial Lawyers College President Jude Basile, and several top Plaintiff’s attorneys from California, Washington, Texas and New York. I can honestly say that this was one of the best and most educational events I’ve ever attended.

While any of the faculty could have easily covered the entire day on their own, the unique part of this program was that it truly forced each presenter to give the “best of their best,” since we all had only 10 minutes for each presentation, followed by five minutes for questions. My notes and “take-homes” are likely nearly identical to what they’d have been, had each speaker covered an hour or more.

What was interesting to me was that many of the presentations covered similar topics, but each showed a unique approach to the same end goal. Some used no technology at all, while others did. One interesting point brought out by one of the speakers was the desire to put an “image” into your jurors’ minds. I helped to demonstrate how to do that, and how to make sure it’s the right image, and that they all have the same image in mind. Carefully-crafted words often cannot replace a visual display of the evidence.

Image by LegalVision, San Francisco

Jury Consultant Tammy Metzger covered the Reptilian Brain and reading micro-expressions. This was fascinating stuff that you may not even notice – even though you can “feel” the emotions of others around you.

Jury Consultant Amy Singer discussed the Casey Anthony trial, and how she directed the analysis of over 40,000 social media followers. She also shared a demonstration on how to do it even on smaller or low profile cases.

The program wrapped up with a brief Voir Dire of 8 jurors. This was a great learning experience, as was the discussion afterward.

I’ve never seen this type of program presented before, but leave it to Silicon Valley to drive the innovation. For the record, I was the only one presenting from my iPad (using TrialPad). When I asked, well over half of the attendees raised their hands, claiming to own an iPad. The Silicon Valley Plaintiffs Bar is certainly ahead of some other groups I've presented to. Thanks to Ed Vasquez for putting this together and inviting me. After a long week in trial, it was time well spent.

Just received a nice thank-you note John Shepardson, Belli Seminar Chairman:

Thank you so much for presenting at the seminar.  The visuals are huge in what we do, and Mel Belli was a pioneer in Demonstrative Evidence.  Please keep in touch.  The feedback from our members has been hugely positive.

Monday, October 3, 2011

Courtroom Projectors, Screens, and Monitors

Many courtrooms today are set up with nearly everything you’ll need to simply plug in to the system and present your evidence. Judges generally encourage and appreciate the use of technology, since it tends to speed up the trial process, and has the added benefit of making the evidence easier to follow and understand for the jury. Although it is sometimes assumed that jurors will think electronic trial presentation looks too flashy, or that your client has spent a lot of money, post-trial surveys prove that this is not the case.

A popular article I’ve written covers one simple item: Best Projectors for Courtroom Presentations. I discussed there that you would need a minimum of 3000 lumens in a well-lit courtroom, and that you should avoid anything with DLP technology, since it will turn your nice yellow document highlighting to a pea-soup green color. There is no point in using inferior equipment when the exhibits cannot be clearly viewed by the entire jury.

Another issue today would be whether to purchase a wide-screen or standard projector. Although it would appear that the wide-screen, or 16:9 format already dominates the television market, it’s not quite there when it comes to available screens. Most screens you’ll find are standard (or 4:3) format, meaning you’ll end up with a blank band on top of and below your exhibits. Fortunately, there are some models that will accommodate either. I would recommend considering one of those.

Also, you might want to consider a short-throw lens. Some projectors come with them, and some have optional extra lenses which may be used. The benefit here is that the projector may be placed only a few feet from the screen, making it less likely that you will continually be walking between the screen and projector. Although you probably won’t notice when part of the image is on your suit, others will, and it is very distracting.

Many courtrooms have a screen installed. Some are large enough, and some were apparently installed by the lowest bidder, regardless of size. Generally, you’ll want at least a 7 or 8 foot screen in a courtroom. One model I like is the InstaTheater, by DaLite. It stores in a tube, and does not require a tripod, so it fits well in a congested courtroom. It may also be placed on top of a table, if necessary.

Large Plasma or LCD Monitors
Another option you will find installed in some courtrooms is a large monitor, instead of a projector and screen. While they may be adequate for watching the news, sports, or movies at home, when you consider that they are only about half as large as a standard screen, you will likely find that they’re not really the ideal solution for trial presentation to a large audience. You can use more than one, but you also lose the effect of having one common focal point for all to view, and you can forget about using a laser pointer on it. Some cases require the color and clarity that only this type of monitor can provide.

Individual Monitors
You may want to install separate monitors for the Judge, witness, and each counsel table. This will allow everyone to view an exhibit right in front of them, which is necessary in some courtrooms, where not everyone will have a clear view of the screen. The added benefit is that this system may be used to preview evidence before it has been admitted into evidence, leaving the projector off. Once an exhibit has been admitted, the projector is then turned on for the jury.

Audio System
Don’t forget this critical detail if you have anything that you want others to hear. One example that is frequently overlooked is the videotaped deposition. Unless you have a decent speaker set connected, nobody will hear the audio from your laptop.

In order to control which party has access to the courtroom system, some sort of switching device must be installed. A matrix switch or switchable distribution amplifier may be used for this purpose. Some judges will also want their own “kill switch,” in order that the might disable the projector if necessary, although this was more common several years ago, when the use of technology was new and untested.

Gaffer’s Tape
Don’t even dream about using anything but professional gaffer’s tape to secure all of your electrical, video, and audio cables. Gaffer’s tape is designed to not leave any residue, nor to pull the fabric from the court’s carpeting. Duct tape will certainly hold the cables in place, but you might find yourself replacing the carpeting if you try using it.

Equipment Rental or Purchase
Most Trial Presentation Consulting firms have all of this available, which means that you don’t have to ship the equipment, install the system in the courtroom, tape cables, and make sure that everything is in good working order. You can also purchase and handle of this yourself, if you’re so-inclined. No matter whether you rent or purchase, make sure you install and test it before trial. You and your client do not want the Judge to tell you that if you can’t make it work, you’ll not be able to use it.

Related Articles

Monday, September 26, 2011

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 the process takes them deeper into the fine details of the matter. Mock Trials, Focus Groups, Settlement Conferences, Mediation, and other forms of Alternative Dispute Resolution can all be helpful in further sharpening the level of understanding 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 with its technical aspects, events which may be plotted onto a timeline, and which witnesses will be most helpful to your case. You should also have a good idea which witnesses are good candidates to be set up for impeachment, and will have their depo testimony excerpts ready to attack their credibility.

You might also have a series of demonstrative graphics, and maybe even an animation to help convince your jurors that yours is the "right" side in this case. All of this preparation and review can make you so familiar and knowledgeable about the case that you may even understand it better than your client. One thing is certain -- you will view it differently than your client, since you also understand how everything fits into the litigation process, and what is permissible in court. As part of a trial 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, you will have the advantage of working with someone who is extremely familiar and comfortable with stress, the trial process, and handling many different tasks at once. Unlike many attorneys or other in-house legal professionals who are in trial only once or twice a year, a professional Trial Presentation Consultant is involved in many trials each year. The high stress of trial is something they deal with on a daily basis, and this too can be valuable to the team. So is it worth spending the extra money on a consultant who bills as much as some attorneys? Do they bring so much knowledge to the case that they are critical to the efficient presentation of the evidence?

While I would love to try and convince you that I am so smart and know so much that I can guarantee you will win your case if you hire me, the truth is, one of my greatest assets to your client and trial team is not what I know. Rather, it is what I don't know. I bring no assumptions of the basic facts, no knowledge of what is important in the case, and no biased perspectives. A good Trial Presentation Consultant brings a fresh pair of eyes -- not yet tainted by months or even years of preparation. They can be the closest thing you have to a juror, and in fact, will generally offer daily feedback during trial, from the perspective of a shadow juror.

If you do bring in an outside consultant, you should provide them with a set of trial briefs -- but not only from your side. In order to help identify issues which might be overlooked, or to help spot holes in the case, it is helpful for an objective observer to see what the other side has to say, as well. A good consultant comes in with a fresh perspective, and their opinion should not be taken lightly.

In addition to trial preparation, graphics, war room support, and trial presentation in the courtroom, a good Trial Presentation Consultant can act as a thirteenth juror. Even with all that, the real value-added service is often not as a result of what they know -- it's what they don't know.

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Wednesday, September 21, 2011

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 will briefly share that he is a man who has just received a reprieve from execution in 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 and convicted of killing a white police officer, and without any physical evidence. 

An email form which appeared on Death Penalty Focus provides a summary:

To the Board of Pardons and Paroles and District Attorney Larry Chisolm:

I am writing you today to ask you to reconsider the decision to deny clemency for Troy Davis. There is a severe lack of physical evidence. Seven of nine witnesses have recanted or changed their testimony. Multiple jurors who originally voted in favor of the death penalty have asked that Troy not be executed.

The execution of a man despite serious doubts about his guilt undermines the credibility of the Georgia justice system, and is a risk that should not be tolerated.

Please do the right thing and stop the execution of Troy Davis.

Larry Chisolm, the District Attorney, washed his own hands by 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 not innocent." This struck me as absolutely contrary to our judicial system – the fact that one had to prove innocence, rather than being presumed innocent.

Amnesty International offers further insight:

The high court set a tough standard for Davis to exonerate himself, ruling that his attorneys must "clearly establish" Davis' innocence — a higher bar to meet than prosecutors having to prove guilt.

The case against him consisted entirely of witness testimony which contained inconsistencies even at the time of the trial. Since then, all but two of the state's non-police witnesses from the trial have recanted or contradicted their testimony.

Many of these witnesses have stated in sworn affidavits that they were pressured or coerced by police into testifying or signing statements against Troy Davis.

One of the two witnesses who has not recanted his testimony is Sylvester "Red" Coles — the principle alternative suspect, according to the defense, against whom there is new evidence implicating him as the gunman. Nine individuals have signed affidavits implicating Sylvester Coles.

For me, I was riveted to the Twitter feed, as that seemed to be the best source for live coverage. I then discovered Democracy Now! as a result of reading everything I could, and Amy Goodman tirelessly provided the only live feed that I could find.

CNN seemed to be a bit slow with their updates (at least compared to Twitter), and Fox News correspondent John Roberts reportedly claimed to be “inside,” awaiting the death announcement, and then apparently reported the execution at 7:11 EST. White Supremacist James Byrd was executed in Texas at 7:21, so maybe he just got confused?

Regardless of your position on the Death Penalty, all would agree that no innocent person should ever be executed. If there is even a slim chance that an error has taken place with the prosecution and conviction of Troy Davis, it must be explored.

In any event, this story does not end here. Apparently Justice 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 know who Troy Davis is, and perhaps more importantly, that something needs to be done with the judicial system in Georgia.

Monday, September 19, 2011

He Who Is His Own Lawyer Has a Fool for a Client

"He Who Is His Own Lawyer Has a Fool for a Client"

This proverb is based on the opinion that self-representation in court is likely to end badly. As with many proverbs, it is difficult to determine a precise origin, but this expression first began appearing in print in the early 1900’s. An early example appears in 1814, in The flowers of wit, or a choice collection of bon mots, by Henry Kett, wherein the eminent lawyer states, "I hesitate not to pronounce, that every man who is his own lawyer, has a fool for a client.”

This phrase remains relevant today, as it was nearly 200 years ago, successfully standing against the test of time. It makes a clear and simple statement to one who might think they are smart enough and know the facts of their case well enough that they might save several thousand dollars by handling their own legal affairs. While handling your case Pro Se might actually work in some instances, the odds are against it.

In a recent article on (Going Pro Se: Handling Legal Problems on Your Own), David Baarlaer explains that you can indeed win a Pro Se case, but also shares that statistics seem to indicate that those who “lawyer up” stand a better chance at achieving a favorable outcome. Even though you might be able to represent yourself, you would, in effect, be knowingly and intentionally taking unnecessary risks in the litigation of your case.

Sharpen Your Focus
Does this old saying apply to lawyers too? Today’s economic climate 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 that legal fees are a hot topic. Larry Bodine 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 start walking and talking to other firms to take on their work. Corporate counsel and other clients are all under pressure to reduce costs, and legal fees are at the top of their list. Just because you have the ability to purchase some software or other new toy, spend time to learn it, and then do something with it does not mean that you should. If you insist on doing everything yourself, in the short term, you might make more money per client. In the long term, you’re likely to end up with fewer clients.

Experts are Experts
Most clients won’t appreciate that special talent you bring to the table which allows you to personally do things that others can do cheaper, faster, or even better. If you’re trying a case, you shouldn’t be concerned with how the technology works (or doesn’t work). If your case and client are valuable to you (not to mention your reputation), there are not many good reasons left to do everything by yourself. You might be retained to “get it done,” but that doesn’t necessarily mean you were retained to do it yourself.

I have seen a growing trend of cases coming in that are economically driven, in that lawyers are hired to try the case, while my firm is hired by counsel to assist with trial preparation and presentation. No, the law firms are not marking our services up for a profit, but the clients are happy with the lower costs, and the fact that these services are being handled by experts. While there are certainly exceptions, the lawyer who insists on doing everything, in addition to practicing law, may not be too far removed from the client who represents himself.

Please feel free to add your thoughts and comments on this topic.

Wednesday, September 14, 2011

Blawgs: Quality or Quantity?

First, I would like to thank everyone who has ever read any of my articles. Many of you have also offered words of gratitude and helpful comments. You have no idea how motivational it is to receive an email, comment on a post, or a tweet, commenting how something was helpful or appreciated. I just happened to be checking my stats this morning (something us bloggers do in order to make sure we’re serving up the right stuff), and I noticed a link from the LinkedIn Blog (the actual Blog written and published by LinkedIn), meaning that there was a link leading to my blog from there. I was (very pleasantly) surprised to find my blog listed as one of the top blogs on all of LinkedIn, according to LinkedIn traffic and reads.

While I wasn’t actually up there with Mashable or TechCrunch (two major commercially-produced web sites), this blog was listed in the “Other top-shared stories you may have missed” category as the lone representative for the legal community. Appearing second in a list of three, along with a design professionals article, and a Wall Street Journal article which was popular among Recruiters and IT professionals this blog was mentioned:

Lawyers took to “Trying Your Case in 3 Hours: California’s Expedited Civil Jury Trials Act” (The Court Technology and Trial Presentation Blawg), which discussed how to wage a fast-paced trial in a new method being proposed in California.

For that, I must again say, “Thank you.”

We all have a finite amount of time each day in which we have a chance to go online to catch up on news, articles, social media, or other items of interest. Given that we do have limits on how much time we have for this, we must often make choices on what we’re going to read. Whether it’s the latest local or world news, recreational reading or professional articles, we’ve all found our preferred sources that we tend to go back and visit regularly. Why? Often, it is because we know what to expect when we get there. We’ve enjoyed it in the past, and expect more of the same. It is often unique, original content, rather than a re-post of someone else’s articles (although there are a few decent sites that offer a summary along with an article of interest, which was written by someone esle). That is a good definition of quality content.

I wish I had enough time to write a new article every day, but that’s simply not the case. Sometimes, I barely have enough time to sleep, during trial. I’ve opted for quality, rather than quantity. I don’t really want to just slap something up there to keep some fresh content to drive more traffic. I’d rather spend the time it takes to do it right. Apparently, you who read this must appreciate this – at least you’re reading it. And, your comments are always welcome. Again, thank you. 

Tuesday, September 6, 2011

Trying Your Case in 3 Hours: California’s Expedited Civil Jury Trials Act

Note: This article was mentioned by LinkedIn as one of its most-shared for the first week of September. That (at least in my opinion), is a huge distinction. Thanks for reading and sharing! See Blawgs: Quality or Quantity? 

This article was originally published in Forum, a publication of the Consumer Attorneys of California.

AB 2284, California’s new Expedited Civil Jury Trials Act, is gaining momentum -- as is the U.S. District Court's version, under General Order No. 64. With only 3 hours to present and argue your case, 8 or fewer jurors with only 3 peremptory challenges, and no right to appeal, you’d better be prepared to move quickly through the evidence when you appear for trial. This new law might be a great opportunity for those desiring to gain trial experience, or possibly enabling the veteran trial lawyer to offer a greater number of clients their “day in court.” It appears poised to be an effective alternative to other forms of ADR (alternative dispute resolution) as well. One thing is certain – both plaintiff and defense firms have a great deal of interest in this, and the “slam-dunk” settlement in many cases may soon become a thing of the past. 

The ideal case for AB 2284 may be a smaller or less complex matter (although there is no maximum case value limit), and an optional over-under verdict agreement might ensure that a plaintiff gets something, but also sets a cap on that amount. This is, in effect, a form of settlement in itself. The Expedited Civil Jury Trials Act should dramatically reduce the cost of going to trial – at least that’s the intent.

So, what is the best way to make sure you are able to get your story to the jury within the 3-hour time limit? In addition to a good set of motions and stipulations to help prevent unnecessary delays during the trial, you’ll benefit by preparing in the same manner as you would for a scripted and rehearsed opening statement or closing argument. Most witnesses should be presented via tightly-edited portions of videotaped deposition testimony. One or two expert witnesses on the stand could easily drain a lot of precious trial time. Trying an expedited case will require nearly the same level of preparation (if not more) as a standard trial, and a method of quickly getting the evidence before the jury is essential. Stipulations should address the time-consuming evidence-authentication process, similar to a bench trial. You won’t have the luxury of time to allow digging through binders to locate an exhibit, passing hard-copy exhibits to the jurors for review, or frantically searching a transcript for that critical piece of deposition testimony. With all that in mind, here are a few ideas to help you prepare and present the expedited trial. These suggestions could also be applied to mediations, settlement conferences, and other forms of ADR.

Get Digitized
In order to have immediate access to all of your exhibits, photographs, demonstratives, and other evidence, you will need to have an electronic version of everything. This includes all of your discovery, deposition exhibits, transcripts, and demonstratives.

The PDF (portable document format) document is one of the most common formats used in law offices today. A PDF can be created by scanning exhibits, photographs, or other hard-copy exhibits. It will handle color, as well as black & white images. If you have ESI (electronically stored information) native files (i.e., e-mail messages, Word documents, PowerPoint, etc.), these may also be converted directly to PDF format. It may also be necessary to have the native files available for display in court.

Depositions should all be videotaped and synchronized with the transcripts. Witnesses should be presented to the jury via carefully selected designations. Objections should be avoided by meeting and conferring with opposing counsel regarding these designations, so a witness testifies with both parties’ designations at the same time, rather than confusing the jury with each party attempting to present only their own side of the case. This is the same format that is used in “normal” trials, and is usually what the court requires. A stipulation may be helpful here, stating that the length of each party’s designation shall be charged against its trial time, rather than charging it to one party or dividing it equally. Trial presentation software, such as TrialDirector, enables calculating the designations and charging them to the proper party.

Get Organized
Exhibits should be assigned a unique identifier, such as a Bates number, at the time of scanning. This will enable the organization of many exhibits. A numbering system might include a two or three letter prefix, followed by a series of numbers, padded with enough digits to prevent computer-sorting (i.e., 1, 10, 11, etc.). If this is all too geeky for you, speak with someone who can assist, rather than handing over a mess that can take longer to fix than to do over.

Trial exhibits should normally be pre-marked, rather than wasting time in court. While this is the trend of most courts today anyway, it should be agreed upon that this is necessary, in order to maintain the “expedited” aspect of the trial. There is no need (nor time) to wait for the clerk to mark an exhibit as “next in order.” Trial presentation software allows you to apply an electronic exhibit sticker, which may be displayed or printed. Bear in mind that even though the evidence will be displayed on screen, a hard copy set will still be required for the court and jury. There may come a time where we submit a CD or DVD with all of the admitted evidence for deliberations, but we’re not there yet.

Get Prepared
A trial presentation database will be your evidence storage, management, retrieval, and presentation system. Several applications are available, including TrialDirector, Sanction, and Visionary (the top 3 in market share). There are even a few iPad apps which are very cool (TrialPad, Evidence, Exhibit A) for trial presentation, but they’re not ready for prime-time, in my opinion. I’ve reviewed them all on my Court Technology and Trial Presentation blog. Unless looking “cool” while using your iPad for trial presentation is more important to you than connecting with your jury and getting the most out of your evidence, you may want to avoid bringing a spork to a gunfight. When handled properly, one of the best parts of incorporating technology into trial is that it can be an invisible transition for you. You can handle your evidence in any manner you wish, and someone else can worry about the database.

As mentioned above, videotaped deposition designations should be made, countered, and ruled upon prior to trial. Trial presentation software will enable you to designate a section of the transcript, and identify whose designation it is. A report can then be generated from the database, showing the total time, and breaking it down by designating party. Needless to say, hours of testimony must be refined to only a few minutes.
Demonstrative exhibits should be prepared, in two versions – one for opening statement and possible use with a witness, and another with an argumentative title added for closing argument. One simple, but effective demonstrative can include an image of each videotaped deponent, thus “introducing” them to the jury.

Don’t forget about the courtroom presentation equipment. It would be a simple, but tragic, error to show up in court, ready for trial, only to realize that the court didn’t have any presentation equipment, or that you had no idea how to use it. Again, a good trial presentation consultant can just “make it happen” for you.

Get Rehearsed
You should not enter the trial courtroom without having a plan, and having rehearsed that plan to check timing and flow of everything. It would be a bit of a disappointment to realize you hadn’t yet covered damages, with only 3 minutes remaining. I’m guessing that the courts are going to be pretty strict on timing for this type of trial. You will probably want a very brief opening, followed by your case, and then concluding with your closing argument. You should decide how much time to allow for each, and closely monitor your progress. You may want to rehearse the entire trial, giving you a good idea of how much time you’ll actually need to spend on each issue. This won’t be the forum for slow, condescending explanations. You’re going to have to trust your jury to put it all together for you – making the shortened voir dire process even more important.

Get a Jury
Parties are encouraged to file a Joint Form Questionnaire, to help expedite the voir dire process. You may want to have a jury consultant prepare this for you, in addition to getting some assistance during your selection process. Reviewing the questionnaires, in addition to checking social media profiles can be very helpful. You have a total of one hour for voir dire, with 15 minutes specifically allotted to the judge, and 15 minutes for each party. There are only 3 peremptory challenges allowed to select a jury of 8 or fewer jurors, with a verdict requiring 75% of the panel. You won’t have time to spend asking each prospective juror questions like, “Can you be fair?”

Get a Verdict
With no appeal allowed, you get only one bite at this apple. If you’ve done all of the prep correctly, and are ready to try your entire case in 3 hours, you’ve done your best. If you’ve taken shortcuts, or attempted to work with too many live witnesses or hard-copy exhibits, you might walk away wondering why you only covered half of your material.

It is crucial to keep your jury engaged, and the best way to do that is the keep their minds active. Simply narrating or reading from bullet-point slides won’t cut it. You will need to use trial presentation software, specifically designed for presenting randomly-accessed evidence to the fact finders. Since you will be dealing with documents and deposition video excerpts, you will want keep the flow moving along quickly enough to tell your entire story, yet not so fast as to make it impossible for the jury to piece together. Every document page or deposition excerpt should be clearly identified for the record, and quickly zooming on a key paragraph, highlighting the critical text within the paragraph. This is the stuff note-takers are following. General descriptions and too much information can tend to become “noise” to jurors. You may be able to stipulate that highlighted versions of the exhibits be admitted into evidence. Although this is often considered demonstrative evidence, I have seen it happen. It could be extremely helpful for the jury during deliberations, especially in this setting. This is easily done with the trial presentation software. Note that while time limits are set for the trial, there are none for the jury to reach their verdict.

If you’ve seen a trial presentation that looked easy, it’s because the attorney and trial presentation consultant both knew what they were doing. While you may feel that you might save yourself and your client some money by handling the trial presentation yourself (never recommended), or even having someone in your firm do it, unless this individual does trial presentation regularly, a one-day trial does not justify the risk – especially under the rigid time constraints. Not that a longer trial of greater value really does either, but that’s another topic. Trial is no time for training.

Ted Brooks is a Trial Presentation Consultant, with offices in Los Angeles and San Francisco.

Related Articles:

Five Steps to Creating a Compelling Mediation Presentation DVD

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

AB 2284, The Expedited Civil Jury Trials Act

ADR and the Art of High-Speed Trial Presentation