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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Friday, September 23, 2016

No Bull

If you happened to catch the premiere episode of "Bull” this past Tuesday night on CBS, you may have an opinion and understanding of modern jury consulting. Then again, you might have a somewhat inaccurate perception of what can actually be accomplished with technology, and how legal professionals interact with one another. As a trial consultant who spends a lot of time in trial, and with a bit of actual high-profile trial experience, including the Robert Blake murder trial, I formed a few of my own opinions after watching the show.
No B.S.

The graphic shown above might offer a foreshadowing, or perhaps even an executive summary of the remainder of this article – or at least my opinion of some parts of the show. If after reading, you (even partially) agree, then I’ve done my job. Coming up with fresh perspectives (just like jurors will) and communicating them is part of what I do. Although I am confident there is some attorney out there with the perfect case for this, I do not plan on ever using it as a demonstrative in court.

Jury Consultant Amy Singer brought the new series to the attention of the legal community by sharing on several LinkedIn groups: CBS Launches New Digital ‘Jury Analytics’ Experience in Anticipation of New Drama Series “BULL”.

Interestingly, Amy has actually worked with and helped develop some of the types of technology portrayed in the show. While you might not actually have a “jury panel” on a dozen large touch-screen monitors, and you might not focus exclusively on just one “controlling” juror to carry the rest to a desired verdict, looking into a potential (or seated) juror’s social media profiles is a very real possibility. It can, and has been done. Singer’s website states, “We were the first to use social media* to provide our clients with feedback of critical testimony and evidence to guide direct and cross examination. Our trained staff, using our patented Wizpor™ system, provides the intel to provide trial strategies that works.” This was in the Casey Anthony trial.

The show is loosely based on the jury consulting career of Phil “Dr. Phil” McGraw, with whom Jury Consultant Tara Trask worked in her early career. She offers her insight and thoughts on the show in a interview: Is TV’s ‘Bull’ Total Bull? A Trial Consultant Talks Fact v. Fiction. Trask notes the parallels of the real McGraw, as well as her thoughts on some of the shortcomings of the show – including illegal activity, where Bull has a “bugged” watch planted on lead counsel.

Jury Consultants Rich Matthews (Juryology) and Sonia Chopra (Chopra Koonan) have offered up perhaps the most entertaining “review” of the show in their podcast: Stepping in 'Bull' - trial consultants discuss/correct this ridiculous show. It’s only a half-hour, and worth the time to listen. Although they spiced it up with a bit of humor, they share how public perception of the jury trial system could be affected. It’s sort of like the “CSI Effect,” where jurors have come to expect some serious technology used in the courtroom to convict or acquit a defendant. I would expect many potential jurors now to be looking suspiciously at anyone at counsel table – especially if they’re the one not wearing a tie. For those not involved in “the system,” that’s intended as humor – every male trial team member wears a tie to court. At least every one I’ve seen.

I would argue that the show was a bit disappointing, and I was reminded why I don’t watch a lot of TV. Although some of the cool tools are indeed based on actual technology available today, I would say I was shocked at the arrogant manner in which Bull treated his clients. Let’s not forget that the attorney is generally the one who selects and hires jury (and trial presentation) consultants. The party (e.g., defendant or plaintiff) might foot the bill, but how on earth would they ever find such a consultant, were it not for the representing law firm? I (and I sincerely hope nobody else in our professions) would NEVER treat an attorney (client) this way -- at least not unless they were looking for a good excuse to make an immediate career change.

As a reality check, the parts where Bull tells the defendant that their conversation is protected by attorney-client privilege (when counsel is not present) and where counsel are testifying to the jury in trial aren't exactly accurate either. Note: It has been brought to my attention that an attorney was indeed present - I must have been nodding off a bit after my own long day in trial.

In conclusion, I believe that shows such as this can have some benefit, actually challenging trial teams to utilize every technological tool at their disposal. On the other hand, it can raise the bar to an unrealistic level of expectation. If nothing else, like CSI (yes, another CBS show), I suppose it helps legitimize some of the professionals working in the background before and during trial. 

About the author: Ted Brooks' noteworthy trial experience includes People v. Robert Blake (with M. Gerald Schwartzbach), Los Angeles Dodgers (McCourt) divorce trial (with David Boies), Western MacArthur v. USF&G ($3 Billion), May-Carmen v. Wal-Mart (Defense Verdict), PG&E v. U.S. (Power Crisis Litigation), and a recent matter involving 5 databases with over 1 million documents. Ted writes the Court Technology and Trial Presentation Blog, and frequently speaks on legal technology topics. Ted operates Litigation-Tech LLC, with offices in Los Angeles and San Francisco.

Thursday, September 15, 2016

Trial Technology in Silicon Valley

In preparing recently for a Silicon Valley trial, I had an opportunity to check out our courtroom. Well, I should say, I made an opportunity, as we typically want to know of any potential “surprises” before they become “emergencies,” and because I was informed that the technology here was new. What I didn’t realize, was that it was brand-spankin’ new, as in had never been used in a trial yet!

It’s a good thing we made time for this visit, since even the court staff was not yet up to speed with everything about the new setup. It’s probably also a good thing that someone like me was involved with the first “user” test, since while I know some very capable attorneys, most are not tech experts. And, we did have some problems.

A few notes on my observations:

First, I will say that this may be the first installation I’ve seen that seemed to get everything right. While part of the solution might just be current availability, all of the monitors were HD wide-screen – not a mixed system like I’ve seen so many times. Everything is set up to run a 16:9 display format, as opposed to 4:3, although you can always “letterbox” a 4:3 display into 16:9, showing a black border on each side. For more info on this, see HDMI v. VGA: Time to Upgrade?

Next, they actually installed enough monitors so everyone can see the evidence! Now this might seem silly, but I have seen many newer courtroom installations with only a couple of 50” displays, expecting that everyone can see it. If it’s in your living room, it might look fine for watching TV. If it’s in a courtroom, and you’re in a jury box sitting 20 or more feet away, it’s a postage stamp. In many “modern” courtrooms, it is still a good idea to bring in a projector and large screen, in order to make sure everyone can see it. In this particular courtroom, monitors were liberally distributed and easily viewed by the jury, judge, witness, counsel, and even the gallery.

The Court Deputy also has the ability to “kill” the signal feeding the jury and gallery, so exhibits may be previewed by a witness prior to being admitted or published to the jury. When we install our own systems in non-wired courtrooms, we generally do this by controlling the projector feed with a kill switch or remote. Now, this is handled by the court staff.

Now if there’s one big potential “gotcha” with all of this new technology, it’s probably the audio. HDMI cables carry an audio signal, whereas VGA requires a separate cable, generally connected to a headphone jack on your laptop. Fortunately, this new courtroom installation offers both. Unfortunately, only the HDMI cable is feeding the audio through the monitors, and the analog cable did not work. The vendor has been notified. It may simply be an issue of switching, but even the court IT person did not know. This alone could have been a disaster for an attorney hooking up via VGA and analog audio. A laptop's speakers aren't quite enough to fill a courtroom -- especially in a jury trial.

My preference for using HDMI video cables in court has always been (and will continue to be) to run your video into the system (HDMI or VGA), but to use a separate audio system for your depo videos. It is much easier to control, and in my opinion, sounds better than listening to several TV sets echoing in a courtroom. The catch here is that you will have to disable the HDMI audio output on your laptop. For more info on that, see: Connected With Court. It would probably be a good idea for new installations to utilize a separate audio system, which would address this issue.