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, August 26, 2018

Juror Explains Voir Dire Do's and Dont's

During Voir Dire, jurors will be watching you like a hawk. photo © Ted Brooks

If you do jury trials, you're already familiar with the voir dire process and know how important it can be to your case. You can have a jury consultant assist with this process, or you might prefer to handle it on your own, but in either scenario it is the attorney who will be speaking with the jurors. While you might be chomping at the bit to get this trial started, the fact is that it has already begun. Don't ever take voir dire lightly - it is a critical piece in the litigation process. 

I will note here that although many prospective jurors will look for any way to get out of being selected (pre-paid, non-refundable vacations seems to work pretty well), once they've been nailed, they take pride in ownership and will do their best to make sure the right verdict is delivered. That's why our system works, and I am proud to be a part of it.

While I'm not going to offer any thoughts on how you should handle voir dire itself, I will share some other things you may want to consider. Now here are a few more do's and don'ts I've put together, based on my experience in hundreds of jury trials, and more importantly, my own recent experience and observations as a prospective juror. (It was a criminal case and I was dismissed by the Prosecutor. Although I stated in court and truly believe that I could be a fair and impartial juror, I can appreciate the concern of having someone with my experience and background sitting on the jury. I will admit that I had mixed feeling about serving, but would have gladly done so if selected.)

Do Dress Appropriately
Hey counselor, I'm guessing that at 40-50 years old, this must not be your first rodeo, but has anyone ever explained to you how to tie a damn tie? True story: 2 out of the 3 defense attorneys clearly bypassed the mirror when they got dressed. One of them actually had the wrong end of his tie longer than the top part you're supposed to see, so the thin part was around his belt line, the wider part up a few inches higher. It just looked weird. The other, who was tall, had a tie that was just too short (at 6'3" this is a potential problem I also have to watch out for). He could have retied it to make the main part longer so it didn't end about midway on his stomach. I mean seriously, folks. You are professionals -- please act and dress like it.

I think the key takeaway here is the old "first impression" thing, and this is that opportunity. Make sure everything is in place and that you have the look of the professional that you are.

Do Make Eye Contact
If you're speaking to the group, move along from juror to juror with your eyes, and try not to miss anyone. Also, try not to focus excessively on anyone. Everyone wants to feel as though they are a part of the process, and not being ignored. When you are addressing an individual juror, maintain eye contact when speaking, and when listening to their response. It can appear very offensive when counsel is moving on while the juror is still speaking. Oh, and please don't EVER wink.

Do Remember That This Is Not Their Profession
Most everyone in the courtroom besides jurors and the parties are paid to be there - this is your profession - not theirs. You chose to do this, your jurors did not. Most attorneys I've watched in voir dire, Opening Statements and Closing Arguments are very careful to note the fact that their service is appreciated, and how critical it is to our legal system. With that, their effort and time should be respected, and anything you can do to maintain an efficient process will  be appreciated. I will add that in post-verdict jury surveys I've been involved in, jurors have consistently stated their appreciation when we've used technology to present the evidence - especially when opposing did not. They can easily see how effective and efficient it is, compared to just using hard copy documents. 

Don't Ask Creepy Questions
I would suggest working from a scripted list of questions, rather than just "winging it" when speaking with your prospective jurors. I'm sure we can all think of things we've heard or asked that just aren't appropriate to discuss in front of a room full of strangers. I'm not going to offer any examples other than one defense attorney kept stating random hypothetical situations that might happen during trial or deliberations, and then asking everyone to raise their hands and promise they would do nor not do such and such. Seriously? I can't speak for anyone else, but that made me feel very uncomfortable. I am there, the entire pool were all sworn in since it was a criminal matter, and that should do it. Even if I do raise my hand to "promise," I do not see that as any sort of legitimate oath, and I'm not agreeing to be "on your side." I suspect others felt the same. If anyone had not "agreed," they would certainly risk being called out and asked why. So don't bother.

Don't Enter My Personal Space
Feel free to use the lectern or podium, and even to walk around a bit -- but please stay out of my face. Don't assume someone likes you just because they smile at you. They may or may not want to like you, but if you invade their space, they won't appreciate it. I will say that it's really all about the evidence, but that an offensive attorney certainly won't help their cause, and might even make a juror less receptive to your message.

Don't Waste My Time With Repetitive Questions
One thing I've seen far too often is asking every juror the same questions. Mix it up a bit, and try doing a group poll (ask to raise hands) for the "easy" ones, then focusing on the outliers. The Court will often instruct counsel to move it along if they see too much of this anyway, but don't think the jurors are not smart enough to notice.

Extra Credit:
What is the correct pronunciation of voir dire? Well, they are French words, literally meaning "To speak the truth," which could be considered reasonably influential. So maybe something along the lines of vwah (or vwar) deer. On the other hand, if we are to phonetically "sound it out" in plain English, we might end up with something close to vore dyer. Believe me - after many years and many trials, I have heard both of these and everything else in between. However, I have also learned the correct way to pronounce it, regardless of your geographical location -- although I can't recall exactly where I heard this explained. In any event, the correct way to pronounce voir dire in any courtroom anywhere, is to pronounce it the same way as the judge.

Summer is winding down, and I just felt like sharing a totally irrelevant and gratuitous photo. photo © Ted Brooks

Thursday, July 5, 2018

TrialDirector 360

TrialDirector 360

Although it hasn't yet been officially released yet, here are a few initial thoughts on the new TrialDirector 360, some of which are from my LinkedIn post. If you'd like to follow along, feel free to connect and follow my profile: 

You will need to set up an Ipro 360 account, which will manage your Ipro software and will eventually serve as another method of creating and working with your cases. Parts of this, along with some features in TD360 are still being finalized. This initial review is on a Beta website, and the locally installed version is

Once you're all registered, you can then download the software. This is the set for TrialDirector 360.

TrialDirector 360 is looking pretty good so far. Regardless of which software you're planning on using in the next few years, you're going to have to learn a few new tricks if you want to stay in business. While the Presentation mode is familiar, you'll want to spend some time learning to navigate the new database. There are still a number of features and things yet to be finalized, although what I've seen so far (in version looks solid. #trialdirector #ipro #TD360 #TrialDirector360

One major change/improvement is the way TD360 handles PDF files. In previous versions you could set document breaks only with TIFFs, and not PDFs. TD360 converts the PDFs to .png format, allowing you to add/remove/reorder/rename individual pages. The converted file size may be larger than the original, which is also imported to the file set. One example is a PDF of 109KB and the .png converted at 1.89MB. You will want to make sure to change your case data default location (see image) to somewhere with enough capacity, especially if you're running a small SSD for your applications. 

Default file path and convert MPEG-2 option (click to enlarge)

The Document Resequence dialog allows you to change Doc ID, Exhibit numbers, etc., addressing the need for an easier way to set up Bates numbering. For those familiar with scanning apps, this will totally make sense.

Video Clip Editing - remove lines and redact text (click to enlarge)

You can't import a batch of synced video files, at least not yet. They need to be imported one-at-a-time.

Here are a couple questions and answers that have already come up.

Q:  Any easier way to batch fill Bates #s?  It would be great if TD would  automatically populate bates numbers similar to the way it handles exhibit numbers.  Then the user could just clean up and correct any bates #s that are not sequential. 

A:  Depending on which field you want to use for your Bates numbers, you can now select groups of exhibits and rename Doc ID, or you can still work with the Exhibit fields as your Bates.

Q:  On clip export, did they change the export options?  Mainly, more detailed MPEG settings and better audio? 

A:  Actually, there are 3 video export flavors of MP4 on the clip export. Standard iPad is smallest file size (352x240), then MPEG 4 (352x240) and Hi-res iPad (1920x1080). Audio exports to MP3.

Saturday, February 17, 2018

Litigation Statistics: Settle or Fight?

Although the overall percentage of cases filed actually going to trial remains predictably low (around 2-3%, depending on where you’re getting your data, the period covered, and type of case), this year has started off (for us, anyway) with a trend we’ve seen before during times of economic growth. I’m not going to get all analytical here, but it is noteworthy to those involved in litigation and related services.

At just over halfway through February, we’ve had twenty cases on our 2018 trial calendar, and nine have settled. Some of these have not yet started trial, but that is a 45% settlement rate, or 55% of our cases have gone or appear to be going to trial.

Compared to recent years where we have seen a lower volume but higher “run” rate (around 80% in 2017), this seems to indicate that the use of technology-driven litigation support services (e.g., trial presentation) have become the desired or default method of presenting evidence. In other words, more trial teams are bringing in qualified assistance earlier in the litigation, and not waiting until the last minute, when all efforts at settlement or resolution have been completely exhausted. I see this as a win for everyone – the trial team gets some assistance and direction early on, the client gets the benefit of additional preparation, and of course, the service provider benefits as well. Trials are not won by intentionally limiting preparation.

Although this is certainly not a scientific study, I see our little sampling as very encouraging and beneficial for everyone involved in litigation – from the Plaintiff to the Expert Witness, attorneys and jurors. Even the Court benefits when technology is properly utilized in trial, shortening the length of a matter significantly.

I’ve heard many excuses over the years attempting to justify not using technology (see Why You Should NOT Use Technology in Your Trial), and we’ve all seen how technology can reshape an entire industry (e.g., Uber, Lyft and Taxi Cabs).

Whether you hope to settle or try your case, it is always advisable to plan for the best, and prepare for the worst.

Monday, January 1, 2018

2018 - Something Old, Something New

Y2K with Brobeck (scary times) 
Beginning with my time in-house at Brobeck (1998-2002), I have enjoyed writing about Legal Technology for many publications. Many reprints were available on earlier versions of the Litigation-Tech website. After some updates and upgrades over the years, these had become "orphaned," meaning they were still available online, but could only be found by running a specific web search. As a Holiday project, I decided to set them up in an archive, so they would be available once again. Although these articles are somewhat "dated," many of them are still surprisingly relevant. The archive is intended to preserve these older articles, which were written prior to the Court Technology and Trial Presentation blog, which I started writing in 2009. Things are different for writers now, in that you can click, and publish. Back in the day, you'd write, submit to the publication editor, get change-requests, edit and submit updated version(s), and then  wait for several weeks to finally see it arrive in print. I still have a big bunch of published print-media articles  in my bookcase. It's hard to say which is more enjoyable from the author's perspective, although quick edits or changes are easy online - not so much when you were limited to reading it on paper. With that introduction, here are links to the archive, with a few notes on what you can find at each one. I truly hope you appreciate it.

---Ted Brooks

But first, here is the most-popular article of 2017:

Ten PowerPoint Tips for the Courtroom

The Archive

Articles Archive Contents - This is sort of a directory, although not all-inclusive. Many links are here with brief descriptions.

Articles Archive 4 -

Articles Archive 5 -
Articles Archive 6 -