COURT TECHNOLOGY AND TRIAL PRESENTATION

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 McCourt divorce trial (with David Boies), People v. Robert Blake murder trial (with M. Gerald Schwartzbach), and a large number of high profile, high value and complex civil matters.

All materials © 2014 Ted Brooks, unless otherwise indicated.

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Thursday, July 28, 2011

Greatest Hits Vol 2: Top Five Technology Articles for Lawyers, Litigation Paralegals and Legal Professionals



It has been a great year so far for this blawg, with readership tripling over the past few months. I try to follow one simple rule here: Publish original, unique, and informative content, as opposed to running an online advertisement campaign, copying other material, or posting just for the sake of posting.

I posted a similar list a few months ago. You’ll see some familiar titles, and some new ones.

So, what has everyone been reading? I am going to share a list of the most-read topics on this blawg, along with a brief background note about the article. It’s kind of a cheat sheet to what everyone else has enjoyed and shared the most. You will find some duplication, since some of the older articles are relevant enough keep getting views. Of course, the newer articles haven’t all been around long enough to get enough traffic to bring them up to the long-term lists. I hope you’ll enjoy this list, and that you’ll consider tweeting, sharing, liking, +1, and whatever else you can to help get the word out. You may also subscribe, with a few options on the right side of this page (no, I don’t collect your email address and then start a spam attack).

NOTE: Any time you wish to return to the home page, simply click on the banner on the top of any page. It really works. Pretty cool? Also, if there is a topic you don’t see in the lists below, you might try the Search on the right side of the page. You just might find what you’re looking for.

Top 5 Most-Tweeted Posts (Stats Collected for only the past few weeks)
How to Prepare for Shortened Litigation: Mediation, Settlement Conferences, and Expedited Trials – Explores AB 2284, General Order No. 64, and how to prepare for the one-day expedited trial or ADR

Top 12 Reasons Attorneys Should Be Using Technology in Trial – A jury was surveyed after reaching a verdict in a rural Arkansas town. Would you expect them to be comfortable with technology? How about the opinions of several Judges?


Casey Anthony Verdict: Was it Wrong? – Plenty of comments came in on this piece. I think most of agree (at least those of us with trial experience) that the jury delivered the correct verdict under the circumstances, even though it was certainly not a popular one.

Trial Presentation in Large and Complex Cases – Let’s face it – if the budget is there and the case is big, there’s really no excuse not to go with every possible technological advantage.


The Stress of Trial – I’ve seen and felt the intense level of stress endured daily by a trial team. Rather than deny it, one should accept it and try to keep it in check.


Top 5 Posts This Week


Pros Make it Look Easy – This began with my viewing a concert video of Eric Clapton and John Mayer, playing the song, “Crossroads.” I was so impressed at how easy they made it look that I immediately pulled out my air-guitar and began jamming with them (okay, not really). But I did want to share that when someone really knows what they’re doing, they can make something difficult look simple.


Roger Clemens Mistrial: Top Ten Tips for Vetting Your Trial Presentation Consultant – Good lessons from this case on knowing when you’re in too deep for your own good? Interesting parallel with the Casey Anthony trial as well.

Top 12 Reasons Attorneys Should Be Using Technology in Trial – A jury was surveyed after reaching a verdict in a rural Arkansas town. Would you expect them to be comfortable with technology? How about the opinions of several Judges?


Jury Box: Voir Dire Application for Mac, PC, and Linux - Joining the ranks of sticky-note replacement ideas comes this software for your computer. A link in this piece lead to The Jury Expert, where the developer responds by stating that version 3.0 will be incorporating virtually every suggestion offered. This is a decent application now, but it's about to get a whole lot better. I just wonder why all of the voir dire apps came out on the iPad first?

How to Prepare for Shortened Litigation: Mediation, Settlement Conferences, and Expedited Trials – Explores AB 2284, General Order No. 64, and how to prepare for the one-day expedited trial or ADR


Top 5 Posts This Month


Casey Anthony Verdict: Was it Wrong? – Plenty of comments came in on this piece. I think most of agree (at least those of us with trial experience) that the jury delivered the correct verdict under the circumstances, even though it was certainly not a popular one.

How to Prepare for Shortened Litigation: Mediation, Settlement Conferences, and Expedited Trials – Explores AB 2284, General Order No. 64, and how to prepare for the one-day expedited trial or ADR

Top 12 Reasons Attorneys Should Be Using Technology in Trial – A jury was surveyed after reaching a verdict in a rural Arkansas town. Would you expect them to be comfortable with technology? How about the opinions of several Judges?


Great Backyard Grilling iPad App – A departure from my typical subject matter, but I got the app, and the timing was perfect for the July 4th weekend.


iPad Apps for Lawyers: TrialPad 2.0 Reviewed – TrialPad had such a major list of improvements that it warranted a completely updated review. This is one impressive iPad app for trial presentation.


ALL TIME Top 5 Posts

Apples to Apples: Two iPad Apps for Trial Presentation – Things don’t get to the #1 position for no reason. This piece compared two iPad apps head-to-head: TrialPad and Evidence. Exhibit A came out a bit later. All of the apps have seen improvements.


iPad Apps for Lawyers: iJuror, JuryTracker, Jury Duty – Part of the iPad apps for lawyers revolution, these apps for voir dire can help replace the dreaded sticky-notes.

Samsung Nexus S: BlackBerry Replacement or iPhone Substitute? – For a variety of reasons, I decided against the iPhone. Yes, I love my iPad, but there were some important features that the iPhone didn’t offer, and now, with the limits on data from the most popular iPhone carriers, I’m still happy with my decision. This phone is also known as the “Google Phone,” as it was designed for developers and others who don’t want a load of proprietary pre-installed apps.

iPad Apps for Trial Presentation – This is the article that made history – at least for this blog. I had no idea that the topic could be so incredibly popular among attorneys and legal techies. Actually, this was really more “teaser” than article at the time, but it worked.

Top 12 Reasons Attorneys Should Be Using Technology in Trial – A jury was surveyed after reaching a verdict in a rural Arkansas town. Would you expect them to be comfortable with technology? How about the opinions of several Judges?


I hope you’ve enjoyed the articles on this list, and that you’ll consider tweeting, sharing, liking, +1, and whatever else you can to help get the word out. Blawg subscription options are on the upper right side of this page. Thanks for reading!

---Ted

Monday, July 25, 2011

Pros Make it Look Easy



As I watched this video of Eric Clapton and John Mayer enjoying themselves in a little friendly dueling guitars session, I watched how easy they make it look to rip the guitar solos in the classic Cream song, Crossroads. I play(ed) guitar, and I know from personal experience – it isn’t easy. As I rocked out, I considered how this might also apply to a Trial Lawyer presenting the perfect Opening Statement, or perhaps her Trial Presentation Consultant helping to “argue” the exhibits, by bringing up the correct exhibit on cue, highlighting the key text, underlining a word, or perhaps drawing an arrow pointing to the smoking gun on a demonstrative – all without direction. It just flows – it looks easy. Once again, I know from personal experience – it isn’t. It takes a great deal of training and experience to make it happen.


Perhaps two recent high profile cases turned at least partially upon the fact that the government didn’t seem to think it was necessary to retain assistance for trial presentation consulting.

In the Casey Anthony trial (see Casey Anthony Verdict: Was it Wrong?), it appears the Prosecution may have believed and bought into their own story, and that they didn’t have a good reality check in place. A good Trial Consultant can provide just that. As a thirteenth juror, listening, observing, and offering an objective opinion on the case, before and during the trial. I’m not describing a Trial Technician here, but rather someone who has dozens, or even hundreds of trials under their belt. It is not uncommon for a trial team who has been working for months or years on a case, to begin assuming that the basics are understood and clear to anyone. That is not the case. The jury knows little or nothing about your case. Getting some feedback from the jury would be ideal, but getting a similar perspective from someone on the “outside” is as close as you can get.

In the Roger Clemens trial (see Roger Clemens Mistrial: Top Ten Tips for Vetting Your Trial Presentation Consultant), it appears that whoever was presenting the evidence may have committed an error as well. If so, it could be that the offending testimony was played, when it should never have been available in the database, having previously been ruled as inadmissible. Perhaps it was also an error on the part of the trial presenter to leave the hearsay testimony up on the screen for the jury to read, during the sidebar. This is a good example of what not to do, and also a good example of what can happen when it’s done by someone who lacks the actual trial experience of someone who makes it look easy – just like Eric Clapton and John Mayer.

With that, I close with one final question: Is it worth the risk not hiring a Trial Presentation Consultant?

Thursday, July 21, 2011

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.


Monday, July 18, 2011

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. 


Thursday, July 14, 2011

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. 




Monday, July 11, 2011

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.”


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."


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


RELATED ARTICLES






Friday, July 8, 2011

Casey Anthony Trial Compared to Robert Blake (part 1)

With the recent trial of Casey Anthony coming to a surprising conclusion for many, the case has been compared to other high profile trials, including those of O.J. Simpson and Robert Blake. Defense attorney Jose Baez and his team prevailed, due to insufficient evidence to support the charges. Different charges certainly might have delivered a guilty verdict. 

I served on the defense team of Robert Blake, led by M. Gerald Schwartzbach, one of the truly great attorneys of our time. If you or anyone you know needs a great criminal defense attorney, give him a call. He may even bring me along (if you mention you read this article). For another professional reference, here’s a Celebrity endorsement:


I wrote an article for Technolawyer back in 2005, which I will share here now, with a few minor updates. Shortly after publication, I received this note:


Your article was one of the best we’ve ever published! Thank you! 
Neil J. Squillante, Publisher TechnoLawyer/PeerViews Inc.

I hope you’ll enjoy the article. I will post this in two parts. Don’t miss the extra bonus material at the end of part two.

---Ted
Gerry Schwartzbach, Robert Blake, Ted Brooks

Synopsis

During the Robert Blake murder trial, M. Gerald Schwartzbach and his defense team called upon trial and technology consultant Ted Brooks to assist with the trial presentation. In this article, Ted shares his perspective, and provides a behind-the-scenes look at this widely-followed celebrity trial. In particular, he contrasts the trial presentation methods used by the defense and prosecution.


TechnoFeature: Inside Robert Blake's High-Tech Defense
By Ted Brooks
(This article is a TechnoLawyer Exclusive.)




INTRODUCTION

The Robert Blake murder trial captivated the nation. This article discusses the technology used by the defense team and how it compared with that used by the prosecution.

Robert Blake's jury consultant, Lois Heaney (National Jury Project), initially contacted me to meet with attorney M. Gerald (Gerry) Schwartzbach several months prior to the trial date to discuss trial presentation and technology. Lois and I had worked together in the past, and Gerry had never before used technology in trial.

It helps, particularly in larger matters, to involve a trial technology consultant early in the process. Doing so can greatly reduce the amount of duplicative and/or wasted efforts.

THE DATABASES

The defense team had chosen Summation software as the document database, and had created a second database for photos. Summation made it easy for the team to efficiently search and review nearly 40,000 documents and 5,000 photos. The Summation database also included many transcripts of LAPD interviews, preliminary hearings, and the like.

THE CONVERSION

First, we sent our Summation guru, Reggie Pool, to clean up the database, identify and correct any technical "issues," and then copy the database. Reggie worked on several document coding and numbering issues, and then gathered a full copy. This copy would be used during trial, and also converted to TrialDirector for presentation in court.

Normally, a very simple conversion link exists between the two programs. In this case, there were simply too many inconsistencies to enable a smooth conversion. To avoid this problem, make sure that all coding fields (i.e., Author, Date, etc.) are set up correctly, document numbering formats remain consistent, and the database itself is designed, developed, and maintained properly. A database does not know how to forgive human input error -- it simply takes all information and then attempts to organize it.

Because of these issues, we used LoadFile Pro by Image Capture Engineering to generate the proper files to populate a new TrialDirector database, which would include all contents of both Summation databases. By the end of the trial, the new database held over 73,000 combined document and photo images (pages), plus all of the transcripts.

THE DISCOVERY

Once we gathered all the data and created a new TrialDirector database, the defense team could search all the document images and photos simultaneously. All transcripts were included as well, and many were "digitized" to enable searching of the transcripts and playback of the corresponding video or audio. Perhaps the most notable use of this technology during the trial was an edited portion of Robert's 20-20 interview with Barbara Walters, played during the opening argument, during the trial as an exhibit, and during the closing argument.


We then conducted a thorough search and review of the photos, using the capabilities of TrialDirector to quickly review and zoom in on desired items, annotating and identifying them for quick retrieval. During this process, we made many important discoveries, including one photo of an LAPD Detective who didn't even realize he was in the picture -- until we zoomed in on him in front of the jury.



Every document page was reviewed, and rotated if necessary for proper display. Having the two databases combined enables you to search everything at once.

COURTROOM TECHNOLOGY

Nothing will happen with all of this preparation if the court is not consulted prior to coming in and setting up your equipment. In this case, as with most others, we visited the courtroom, and met with the court staff and Judge Darlene Schempp to learn about previous trials, especially the positive and negative experiences.

This "scouting" quickly alerted us to a problem that needed attention in that particular courtroom: the placement of a projector and screen -- typically a small screen and a projector, placed in between counsel and the jurors, provided by the Los Angeles District Attorney's Office.

The Court decided that we would provide the equipment for both sides of this trial (this is typical, as only one set of equipment will normally fit and be allowed by the Judge), so we had to come up with a solution -- with the added conditions that alternate jurors would sit beyond the end of the jury box, over 25 feet away from the screen, and the courtroom would fill with media eager to see the evidence.

To ensure visibility, we installed an eight-foot screen against the rear wall and a 3500 lumen projector with a wide-angle lens, providing space for us to place the projector very close to the screen. As a result, the projector stood far enough forward so as not to interfere with counsel as they addressed the jury, and also gave plenty of screen visibility to the entire courtroom. Some of the journalists even complimented the setup.




Tuesday, July 5, 2011

Casey Anthony Verdict: Was it Wrong?


I will begin by stating that I have worked on a number of high profile criminal and civil trials in my career, including the Robert Blake murder defense, so I know what it looks like on the inside. I hope to work on several more, so there are some things I cannot share here.

I will admit that I didn’t follow this trial closely, even though it was deemed the “Trial of the Century” by HLN. Ratings reportedly doubled for the trial on HLN, as they focused almost exclusively on the trial. It is important to note that media carriers are not just a public service – they are a business. Other than a few inside tidbits here and there, my source of information on this trial was the same as most everyone else’s – the various forms of mass media coverage.

While Nancy Grace and the HLN team seemed to imply this was a done deal, as I watched the verdict being published, I can’t say that I was shocked. I may have been leaning slightly toward a guilty verdict, but I know that the jury has information that I do not, and that I have information that they do not. Although the waves of comments on Twitter seemed disappointed with our legal system and the outcome of this trial, I can say that a case is not decided on the opinions of observers and commentators. It is decided by the evidence presented by each side, and in Criminal Law, it must be convincing beyond a “reasonable doubt.” In other words, what the jury sees and hears is used to determine the outcome of the case, and nothing else. Although this jury was sequestered (isolated), a “normal” jury will simply be instructed to avoid any contact or exposure to media coverage of a trial, and not to discuss it with anyone.

During deliberations, the jury has only their notes and admitted evidence to work with. Although we were given an opportunity to see most of the evidence presented to the jury, they were not viewing it along with a picture of little Caylee in one corner, and “Tot-Mom” in another. Visual presentation can be very persuasive. In fact, that’s what I do for a living. It’s not always just the information that matters, but also the way it is presented.

So, do I agree with the verdict? Absolutely. You cannot convict someone if you don’t have the evidence to do so. That’s why our justice system works. It may not be perfect, but it’s the best there is. The jury agreed that Casey Anthony had lied to Law Enforcement Officers, and convicted her, based on the evidence. They found her not guilty of murder, due to the lack of evidence.

For additional info:

What a quick verdict can tell us about a jury by Doug Keene for CNN, about the Casey Anthony trial

The Red Well: Blog Aggregator for Views on Litigation Persuasion by members of the ASTC (American Society of Trial Consultants) 

Jurors and Technology in Trial: What Were Once Vices Are Now Habits By Ted Brooks, about the Robert Blake trial, and others

Video of Robert Blake Verdict


Video of Robert Blake Jury Foreman explaining why they acquitted him.



iPad App for eDiscovery: idocument REVIEW


Reprinted with permission from the July 1, 2011 issue of Law Technology News, ©2011 ALM Media Properties, LLC.


idocument REVIEW, a new iPad App was recently introduced in a brief article by John Cleaves for Law Technology News. The new application sells for $29.99 and claims to tag, highlight, and redact documents. Those features, without more, made it worthy to investigate. There are, however, more key features:

No internet access required to review your documents.

Files are loaded through iTunes in a custom load file format (three files). To load a 20,000 page case takes about 2 and a half minutes.

You can load up to 20,000 pages per case load

You can load multiple cases.

You can Keyword search or search by document ID.

You can tag documents (like in Concordance, Summation, etc.) with up to 16 tags all of which can be customized to whatever the user needs (by the user and on the fly).

You can highlight and redact (black or white).


From iTunes:

idocument REVIEW has been developed to aid the on-the-go litigator! Unlike other document review tools available, idocument REVIEW is not dependent on an internet connection for access to your documents. Maintaining folder structure and OCR, idocument REVIEW provides an essential tool for you to review your documents right on your iPad.

The app allows users to tag, highlight and redact documents -- all at their fingertips. The app is also capable of sorting by tags and searching by keywords and image keys. Reviewing up to 20,000 pages per case load, exporting your changes after review is made possible by Discovery Document Technologies.

The app manages the content of a case on the iPad in three files: a DDT load file, an image file containing the document images, and an OCR file containing extracted text from the images. As advertised, idocument Review allowed me to tag, highlight, and redact documents -- all at my fingertips. I sorted content by tags and searched it using keywords and image IDs.

So what's the process?

1. Provide the data to Discovery Document Technologies for conversion to an iPad load file.

2. Save the iPad load file to the computer you synchronize your iPad with.

3. Synchronize the files with your iPad using iTunes. On your iPad....

4. Review your documents.

5. Export a .DDT file and send via e-mail to Discovery Document Technologies for processing against the original files.

6. Discovery will then send you a revised edition of the original images of your data.
So, this all sounds pretty good. It even comes with a sample data set, which is one of my pet peeves for iPad apps which need some material to learn with. The set is from the Enron matter, which is actually something I worked on several years ago.



There are some great training tutorials on the web site, which will get you quickly up to speed. This is not a complex app – at least from the user’s perspective. It is fairly simple to use, and easy to learn. It seems to run searches very quickly. The only downside of the search results that I can see is that it doesn’t highlight the text. Since you are viewing the image, and not the underlying OCR text file, you will have to visually look for your search hits on the returned pages, if you wish to verify your results.

One little “gotcha,” is the fact that once you’ve completed your review, you’ll need to send a file to Discovery Document Technologies in order to get your reviewed/redacted production set. The app, while useful, won’t be of much value if you can’t get your work product out of it. That’s not necessarily a bad thing, since DDT does have a very good reputation, but just know that you’re going to be married to them throughout the case.

I also did not find any complex search-building options. Typing a simple string of “Enron AND email” rendered no hits, so you’ll be restricted to using this as sort of a first round review. Again, not that that’s a bad thing, but this clearly isn’t going to replace Summation or Concordance.

I wasn’t feeling so warm about spending $29.99 on an app that, while it does appear to be a great value (especially in comparison to applications like Summation or Concordance), requires you to send everything to DDT for processing. However, I found that if you are loading at least 3GB of data, they will give you a voucher for the app, making this more of a “value-added” approach. With that, it becomes a very nice alternative to using a PC, especially if you’re traveling. In the right scenario, it may even be possible to have an entire review team working on iPads. Happy reviewers (with iPads) are good reviewers.

Conclusion

If you’d like to work with some of the coolest stuff available, idocument REVIEW for the iPad is for you. It really is a kick to use, and it works well. Although it has limitations, if you’re able to fit it into your workflow, you’ll have fun doing it. Another way to look at it might be that if you have a set of data to process anyway (3 GB or more gets the app included free), and the processing pricing is acceptable, try it out.
idocument REVIEW $29.99 (or free with 3 GB data order)