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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Wednesday, February 22, 2017

One Exhibit No Attorney Wants to See

One Exhibit You NEVER Want to See

(click to zoom in)

Can you recall watching some case where an exhibit like this might be appropriate? This is one trial exhibit you never want to see – at least as the Defendant in your own trial. I can tell you that I’ve seen plenty of cases where a client might have had a decent chance of prevailing, had they decided to try filing something like this.

With Florida recently joining, over half of the States have now adopted the revised version of Rule 1.1 in the ABA Model Rules of Professional Conduct. The original Rule 1.1 states: “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” Fair enough.

The bonus comes in the “new” added language, which includes:

To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.

The exhibit shown here is not part of an actual Complaint. It was created specifically for this article. However, the risk is very real, given the significant advances and advantages of technology, coupled with the relatively slow adoption of state-of-the-art legal technology. That risk applies to its use in “competent representation.” Whether it would be something like dismissing the capabilities of e-Discovery, failure to search social media accounts, or suffering a devastating loss in trial because you didn’t have enough time to present your entire case (without using technology), this is not where any attorney wants to be – in the Defendant’s chair.

Note that Rule 1.1 doesn’t state that the attorney must know everything, but it does imply that counsel should at least know about everything. You don’t have to be an expert, but you may need to call one. There are readily-available experts in nearly every facet of legal technology.

Some language included in many complaints filed states the following at some point: “…knew, or should have known.” It can be pretty hard to get around that – especially when it is so clearly stated by the ABA.

Now, if you’re still looking for some good excuses, you might want to check out ten of the best I could come up with: “Why You Should NOT Use Technology in Your Trial.” Otherwise, please don’t be THAT attorney!

Friday, February 10, 2017

The Cost of Trial Experience

The Vanishing Civil Jury Trial - In case you’re the only one who hasn’t noticed, there seems to be a trend toward keeping litigation matters away from the eyes of a jury. This means fewer trials in the courts, followed by fewer attorneys with trial experience. Attorney Gary Gwilliam wrote about this in Plaintiff Magazine a few years ago.
The "Hot Seat"
Although many cases are settling or going to arbitration, there are times when an agreement simply cannot be reached. It’s not always a clear argument of right and wrong. If it were, there would be no need to litigate. If you have a good case, the fear of going to trial is not a good reason to surrender.

In the ongoing Oracle v. Google matter, U.S. District Judge William Alsup recently addressed the need for “the next generation of practitioners” to gain courtroom experience, stating, “The court will particularly welcome any lawyer with four or fewer years of experience to argue the upcoming motions.” See:

Experience is Everything - Even with fewer trials to go around, Trial Presentation Consultants and Trial Techs still find themselves in trial frequently – as it is their core business. Like other professions faced with a shrinking market, this has caused a refinement. While it might appear to be an attractive and lucrative business, it is often difficult for the newcomer to get actual trial experience. As with a good Trial Attorney, experience is everything. This results in the best rising to the top, and getting the most work.

In-house or Outsource - Although you might be comfortable handling your own technology or having your paralegal take care of it in some cases, there are those clients with trials that don’t justify using anyone without many years of courtroom technology experience. Since it becomes a full-time job, many in-house litigation support teams bring in help for complex and time-consuming matters.

Over the last 20 years, I’ve seen the whole in-house vs. outsource idea come full circle. Once a luxury reserved for only the largest firms, trial technology is now readily available to all. Although there are options, only those firms with an unusually high amount of trial work should need to hire full-time trial-support employees.

Costs and Vetting - If you do decide to go outside the walls of your firm, a typical trial day can run as much as $1500-$2000 or more, depending on the venue and who you’re working with. This might come to around $10k per trial week. For a rough idea on a two-week trial, adding some time for trial prep, you may be near $25k or so

That is a lot of money, and I would suggest performing a bit of due diligence, beyond just clicking the first paid ad link you find on Google. I’ve written a few articles intended to help in your vetting process:

The Greatest Asset - One of the most important benefits of working together with someone who (especially in these days of fewer trials) spends a great deal of time in the courtroom can be their level of familiarity and confidence in the whole process. I have heard many times that the “calm” nature of a good Trial Presentation Consultant was a greatly appreciated benefit. Please don’t hesitate to see how your provider measures up, or ask us for an estimate on your trial.

Ted Brooks 
Litigation-Tech LLC 
Los Angeles, San Francisco
888-907-4434 Toll-free
2016 Best Courtroom Presentation Providers Award