Thursday, December 17, 2009

'Twas the night before trial...

'Twas the night before trial, when all through the war-room,
The team reviewed a document, more high light and zoom;

The exhibits were marked and prepared with care,
In hopes they would be admitted; and the judge would be fair.

The jury was nestled all snug in their beds,
While visions of a settlement filled their heads;

And the client pacing nervously, notebook in my lap,
While I wished for a strong, intravenous frappe.

When out on the corridor there was such a clatter,
I sprang from my seat to see what was the matter.

What was that strange noise; way out in the hall,
A jolly laugh, perhaps it was nothing at all.

When, what to my curious eyes should appear,
But a senior partner, did he ever instill fear!

He was dressed all in red, from his head to his foot,
And his cuff links were massive; and covered with soot!

A bundle of discs, he had slung on his back,
And he looked like a vendor just opening his pack.

What was this extra data, at such a late hour?
The thought of loading it all just made me cower.

The stump of a Cuban he held tight in his teeth,
And the smoke it encircled his head like a wreath;

The senior partner laughed; and said the discs were all new,
He dumped them on the table; then mumbled rule 502.

Sixteen hours of work, for this jolly old elf,
And I laughed at the discs, in spite of myself;

A wink of his eye and a twist of his head,
Soon gave me to know I had nothing to dread;

He spoke not a word, and completely kept his composure,
He showed an index of data; oh my inadvertent disclosure,

Opposing counsel was in for a production surprise, privileged docs,
I could not wait to see their eyes!

So our new exhibits were not needed; we could call it a day,
Federal Rules of Civil Procedure all the way!,

The senior partner sprang from his seat, to his team gave a cheer,
And away they all flew to the tavern for a beer.

But I heard him exclaim, ere he walked out of sight,
"Happy Holidays to all, and to all a good-night."

With the holidays all around us I just felt compelled to create this parody. I also wanted to express thanks to all my colleagues, clients, and anyone else who happens upon my little piece of Internet real-estate. There was many interesting developments in our industry in 2009 and I remain optimistic for many more in 2010. The year end brings no greater pleasure then the opportunity to express season's greetings and good wishes. May your holidays and new year be filled with cheer!


Barry E. Pace

Sunday, December 13, 2009

Etiquette in the courtroom.

The chewing of bubblegum will not be allowed in this courtroom. I still chuckle every time I think about that old sign hanging on the door of a courtroom I just spent a few days in. Courtroom etiquette is something that we all have learned and adhere too as legal professionals. In fact, it is probably the most important thing any greenhorn should master before they even attempt to work in a trial setting. Knowing when and where to sit/stand can even change depending on the judge which you have been assigned.

This past week I witnessed (no pun intended) a member of the tipstaff repeatedly falling asleep. To make matters worse this individual was loudly snoring during the examination of an expert witness. Now mind you this was no isolated event as it occurred several times. Surprisingly our judge did not seem overly concerned about it. Unfortunately, our jurors had quizzical raised eyebrows at the snoring. All I could think about was the old adage, do as I say, not as I do.

For the most part my experiences over the years have been all positive in regards to decorum and etiquette during a trial. When the Phillies were working on their World Series title in 2008, I had a federal court judge give an interesting jury instruction. He actually required any Phillies fans to wear their hats for good luck! Obviously in a normal setting hats are usually off limits.

While this may not be the most compelling blog subject, I deemed it worth touching on. Often newer members of the litigation support community are at a disadvantage in situations like this. Sure, you can do what most of us did and just watch everyone else. So below I have constructed what I believe to be a helpful list for both newbie’s and veterans alike:

• Dress appropriately.
• Do not speak out of turn.
• Stand when the judge or jury enters.
• Do not make facial gestures or emotional expression during testimony.
• Write/pass notes to avoid any conversation.
• Wireless devices should be silenced or turned off.
• Cameras are generally not allowed in Federal courts.
• Food and beverage is dependant on the court and judge.
• Reading anything, non-case related is not advised.
• If you are coughing or seriously sneezing step out for a moment.
• Hat wearing is generally frowned upon.
• Playing computer games (solitaire) is not advised.
• Do not stare at the jury for prolonged periods.

I could continue for probably a few more bullet points but I think that is a good primer. Most basic manner skills will get you very far when dealing with a formal setting such as a courtroom. I remember a young lawyer being puzzled years ago when a judge would not acknowledge him. The lawyer stood there asking a question about a motion in limine with his hands in his pant pockets. Our judge was an old colonel who did a stint in the Marine Corps. He refused to speak to anyone wearing a hat (indoors) or with his or her hands in their pockets. Finally the red-faced young lawyer walked off puzzled and scratching his head. I pulled him aside and explained what the issue was and he quickly apologized to the judge.

Perhaps the best advice on learning courtroom etiquette can be summed up by a General George S. Patton quote, When in doubt, observe and ask questions. When certain, observe at length and ask many more questions.

Monday, November 30, 2009

Civil trials and the CSI effect.

The CSI effect refers to the forensic television drama, which currently enthralls throngs of people. The perceived problem with the CSI effect is that the viewing public considers these shows as fact. This is a particular problem when you are dealing with a criminal trial and your jury is composed of that viewing public. If you do a quick Google search, you will see the web is filled with articles, white papers and blogs touching on this very subject. In fact, it has become such a problem that potential jurors find themselves, during voir dire, questioned whether they are viewers of shows such as CSI.

I have been following the concepts behind the CSI effect for quite some time now. Not scientifically but rather from a mundane perspective. I must admit before I go any further that I personally only have ever seen CSI perhaps once. This could be related to the old adage of not bringing your work home with you. It could also have something to do with the two toddlers running around in my house. Unfortunately, I still have to deal with Elmo and I do not mean a visual presenter.

This phenomenon of questioning forensic evidence during a real trial is fascinating to me. Just to illustrate how popular a show like CSI is to date there is over 500 episodes. These have been shown in 200 countries with a combined audience of 2 billion people. Crime TV is popular and audiences love the whiz-bang technology that is used. This I believe completely makes the transition to civil matters, which are the bulk of any trial consultant’s time. Jurors expect technology to be present in trial no matter what the case background.

Still to this day I speak with case teams who are concerned with being to flashy or overwhelming the jury with images on a screen. I could understand this concern back in 1990s when things were still relatively new. However looking ahead at 2010 our jurors are very different. Young and old they are using social media, wireless devices and a good percentage of them are under the influence of the CSI effect. Our society is inundated with visual learners who retain more when they both see and hear it. Nothing bolsters the ability to reach that goal more then convincing presentation technology.

Just think jurors are actually questioning forensic evidence techniques during criminal trials. This could be the collection of evidence to the technology used to interpret it. All based on a fictional television show, a visual media source. Now imagine a civil matter where a presentation includes no technology. You have a case team using flip charts, reading documents the jury cannot see, or worse a foam blowup of some complicated issue. Sure all those tactile demonstratives have their uses and can be very powerful. Nevertheless, I would argue they are slowly becoming very limited as our tech savvy jury rolls their eyes at them.

It is very hard to focus attention on what many younger jurors consider archaic presentation techniques. I once was involved in a trial where at completion the judge allowed counsel to interview willing jurors. One of the panel was a schoolteacher for a third grade class. Opposing counsel used no technology during the trial whatsoever. The teacher explained to counsel that she thought his presentation was very difficult to follow. However, most compelling of all was her comment that she uses PowerPoint to help teach her third graders. To flashy? Overwhelming? Not according to a class of eight year olds. Those third graders in the blink of an eye will be our jurors of tomorrow.


CSI effect. (2009, October 21). In Wikipedia, The Free Encyclopedia. Retrieved from

CSI (franchise). (2009, November 30). In Wikipedia, The Free Encyclopedia. Retrieved from

Friday, November 13, 2009

Boredom, trials and social media.

Recently there was an interesting discussion in the LinkedIn Trial Technology forums. It involved the use of social media websites by jurors during the course of trial. The thrust of the conversation questioned ethical issues in researching these websites for juror content. I have been doing a great deal of thinking about this over the past few weeks. As user of social media I base some of my opinions in this blog off what I see from my own friends and family. Still to this day I remain amazed at what is often posted on sites such as Facebook or MySpace.

As I delve further into this subject please be aware I do not hold myself out to have any background (other than dealing with my kids) in psychology. Rather a firm grasp of common sense and what happens in a courtroom. So what makes our jury panel turn to social media to talk about a case? BOREDOM. Sure our judge has warned the jury that using social media (or email) to discuss the case is not allowed. And further they could be found in contempt of court if they disregard these rules. But let us snap back into reality and remember that most jurors have their privacy setting set.

Since we have no idea what is going on behind the scene we need to really focus the jury on the case. In years past the danger of outside influence could be considered minimal compared to now. Sure a juror could have spoke about a case in casual social conversation. Maybe they even spoke with one person on the phone. Or maybe they adhered to the standard of behavior asked and spoke to no one. Now we have a problem case teams need to consider. A juror can potentially post about the case with total privacy and have dozens of people weigh in on it. All of this with the click of a mouse or the enter button on a wireless device.

I suggest the biggest catalyst of this problem is boredom second only to asking “experts” among family and friends questions. This usually occurs when a trial lawyer combined with his or her witness is talking over the jury. Sure you might have college educated people on your jury panel. But they don’t know what a retroflex fasciculus, dacryoblennorrhea or radiculopathy is. Imagine a case where you have a hand injury and the subsequent treatment is alleged to not meet the standard of care. The trial lawyer and his or her experts have a direct or cross which is just not decipherable by the jury. One of the jurors bored out of his mind posts about it later that night as in the example to the left.

Where does this get a juror who does not understand the case? Will they continue to post and discuss the case with their cyber jury. We really cannot rely on other jurors to explain complicated concepts to their peers during deliberation. So herein lays the danger I think with boredom, trials and social media. Case teams really need to have their experts explain their testimony to the jury like a 5th grader and not a colleague. Overly technical discussions are usually lost on a jury, especially after lunch when their bellies are full of food. Moreover trial lawyers need to remember they may be familiar with these terms and concepts but the jury is not. The jury needs to learn the evidence from the testimony and not a review of Wikipedia because they don’t understand something.

Certainly focusing the jury on the evidence and what happens in the courtroom is not the complete solution. It is however something to consider when preparing testimony, demonstratives and exhibits for a case. Keep it interesting and maybe they will not give into boredom and use social media to complain about it. Surely there are other reasons a juror may potentially turn to the internet for guidance but boredom certainly is a primary factor. All the curative instructions in the world cannot stop a wandering mind…

Monday, November 9, 2009

Trial Technology: Be Prepared

The tip staff opens the door and announces that the jury is entering the court room. Everyone stands, some hastily others regrettably. And then there is always that one person attending the proceeding that looks nervously around not sure what to do. The jury marches past the assembled parties like toy soldiers forced to play a game they have little interest in. Then one by one they take their preassigned place upon the weathered wooden chairs in the jury box. Those chairs have seen hundreds if not thousands of trials. And unfortunately they are just as uncomfortable now as they were forty years ago. Then as if almost on cue the judge enters the room after everyone is seated so they can rise again to acknowledge his or her attendance. The jury is sworn and the judge begins to explain some preliminary instructions to the panel. Depending on the charisma of the judge this is akin to a lobotomy or an enjoyable experience for the jurors.

In the background unknown to the jury is a paralegal frantically working on some last minute exhibit. The request came in literally the morning of trial to create a PowerPoint for the opening. The judge has little patience already because of other delays and administrative issues. The case team looks nervously at their paralegal for any sign the PowerPoint is ready and are met with a blank stare. The judge asks counsel to start their opening and they have no choice but to proceed without the PowerPoint. Fifteen minutes later the paralegal has made the requested PowerPoint. But our trial attorney knows it has not been quality checked and cannot take the risk so her exhibit is basically useless. Maybe they could use some of it for closing…

Has this ever happened to you? I know my example may be outlandish in the realm of trial presentation applications. That said I just wanted to point out how technology can be neutered by lack of preparation. While this exact scenario has not actually happened to me similar circumstances have. I have personally seen a shift in recent years of unwillingness by case teams to prepare themselves with technology. Just recently I was in a trial which was scheduled to last two months. The sheer volume of my database on the defense side was astounding. Plaintiff’s counsel had just as many documents since most of the collection was their production data. They retained a trial technologist for their case presentation and it was obvious it was a last minute decision. Not only were they not in synch but their presentation was not seamless by any stretch. Was the consultant to blame for this or lack of preparation? In my view this was the case team who dropped the presentation ball.

Regardless of how a database is numbered or indexed complete lack of familiarity is a presentation killer. Sure we all have war stories of shooting from the hip for an entire trial - it just goes with the territory. That may have been exhilarating and even downright epic if you pulled it off without a hitch. However it is absolutely not the way to use technology in trial where a slip could potentially cause mistrial issues. Therefore it is important that you educate your case team about the importance of preparation.

A trial consultant should be included in some of the trial prep meetings the week before trial at the minimum. This is a chance to learn personalities, quirks, iron out database issues, identify hot docs, etc. In addition, the trial consultant should be present if possible for any expert meetings. If a case team’s experts are not comfortable with the technology it will be very apparent to the jury. That said the twenty something’s on the jury panel who use technology for EVERYTHING will be very unforgiving. Remember they expect to see media used in the courtroom and for it to flow and work correctly.

In closing the lack of consultants in trial prep meetings has direct correlation to the bottom line. In this economy I can completely understand the idea of staying in budget or watching all potential costs. However not including your experts, which also are your retained IT professionals in trial preparation meetings, is very risky. If those twelve people in the jury box are paying attention lack of preparation whether technology or not will spell a case team’s undoing. Credibility in the courtroom is nigh impossible to recover once it has been lost. Seriously folks, watching a seasoned trial lawyer fumble with a laser pointer is just embarrassing. All the “I don’t use technology much” cliches are so 1990…don’t let your case team use them. The jury is not laughing with you they are laughing at you!