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.

Related Articles:

The Stress of Trial

Trial Presentation in Large and Complex Cases

Effective Use of Exhibits in Closing Argument Helps Win $12.2 Million Verdict

Is it worth the risk not hiring a Trial Presentation Consultant?

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.

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 Lawyers.com (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.

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. 

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