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.
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.
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.
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.
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.
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