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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Sunday, November 20, 2011

Ten Qualities of Top Trial Presentation Professionals

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

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, November 15, 2011

A Day in Trial

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

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

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

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

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

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

Monday, November 7, 2011

Ten Questions to Ask Your “Hot Seat” Provider

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

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

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

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

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

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

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

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

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

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

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