Technology and the Chewbacca defense.

Over the years I have been asked by several case teams about the dangers of using tech in the courtroom. Most of these inquiries were founded in the belief that technology may be too slick. Or perhaps the jury may infer the client has a tremendous amount of resources to spend on the case. Of course ten years ago those were valid concerns but not in our current age of increasingly tech savvy jurors. However, there are also still many pockets of resistance amongst the general populace. Therefore, we must consider the ramifications of letting the technology overwhelm the audience.

Interestingly enough I am not referring to the technology you may use in your own presentation. Instead those tools which are employed by your adversary. In my experience there has been a very subtle increase in the use of technology to confuse the jury. The presentation could be an over complicated graph, animation or demonstrative of some type. These examples are almost always supported by the tech/lawyer speak of an expert witness.

A few years ago I was involved in a two week trial were this strategy was engaged. Plaintiff’s engineering expert used an electronic whiteboard and went on to create a mathematical nightmare. During various points of this presentation video clips of his tests were displayed to the jury via monitors. It was apparent to me that this entire exercise really amounted to nothing. Although the case team’s goal was to attempt to make the witness and his arguments seem more intelligent then they actually were. This went on for a good two hours to the crossed eyes of some jurors.

This is a classic example of the Chewbacca defense during a trial presentation. The Chewbacca defense is a fictional legal strategy used in episode 27 of South Park. Just for reference the Chewbacca defense is a strategy which seeks to overwhelm its audience with nonsensical arguments, as a way of confusing the audience and drowning out legitimate opposing arguments.

To combat this approach our team also used technology but had simplified the message. We already knew what to expect at trial just based off expert reports. The art of visual communication is to assist the audience with comprehending the information it is asked to absorb. We did not painstakingly show the jury all the equations used to come to a conclusion. That experience was akin to performing a self lobotomy with a spoon.

Instead we went back to basics and asked our expert to explain her conclusions from the witness stand. This testimony was bolstered by photographs, minimal graphics and documents which mirrored what she was saying. Everything was presented on a large screen so the court, counsel and jury could all see the evidence at the same time. The end result was a jury which was paying attention (half the battle) and nodding their heads which is always a partial acknowledgment that something is sinking in.

Be prepared to counter your opponent’s use of technology as a confusion factor. This can be completed in part with the less is more theory. However, enough intelligent sounding and compelling information presented with technology is a powerful weapon. The CSI effect is a specter in our courtrooms which has a very strong presence. Juror’s love technology and expect it during a trial presentation. Be sure to provide them the opportunity to see it used correctly through good visual communication. A clear message presented with technology as an aid is appreciated by the jury. So much that your adversary’s case my suddenly take on the aura of a babbling wookiee!

Reference

Chewbacca defense. (2010, November 12). In Wikipedia, The Free Encyclopedia. Retrieved November 17, 2010, from http://en.wikipedia.org/w/index.php?title=Chewbacca_defense&oldid=396930301

Wookiee. (2010, November 12). In Wikipedia, The Free Encyclopedia. Retrieved November 17, 2010, from http://en.wikipedia.org/w/index.php?title=Wookiee&oldid=396313538

Analogies and the courtroom.

"One good analogy is worth three hours discussion." - Dudley Field Malone

Over the years I have seen so many complicated concepts vanish into the nether void of the courtroom. Moreover uncomplicated concepts or facts which became bogged down in lawyer speak. One of my jobs as a trial consultant is to assist with breaking down these concepts and facts. The end result is to use visual communication as a tool to help a jury absorb and understand this information.  One of the biggest tools in assisting with this goal is a good analogy. An analogy is defined as non-identical comparisons between two things, with a resulting similar explanatory effect.

The best case teams I have worked with over the years have mastered the use of analogy in their presentations. This has been a constant tool and point of interest in my professional career. One of the first things I do when I join a trial team is read all the expert reports. This gives me an instant foundation of the case to work from. Then I begin thinking critically toward analogies both oral and visual which may assist a jury. Facts and comparisons are useless if the twelve most important people in the world do not understand them.

Teaching the jury with common sense comparisons is helpful to any presentation. I once worked on a case where the trial team had to explain a cystoscopy and stone extraction with stent placement. The stone removal and draining of the infected urine into the bladder was an important part of the case. The analogy of a champagne bottle being uncorked was used to explain to the jury the force of which the infected urine was released from the ureter. This is an example of a very simplistic analogy that everyone could relate too. We then used several demonstratives/animations with Trial Director to further bolster this analogy during our expert’s testimony.

Analogies can also assist with the theme of any case. This is especially true in product liability cases which are often ripe with analogous and comparable information. Even though there are distinct differences between consumer and professional products they are often begging for creative analogies. Juries love having something they can latch onto for their deliberations. The trial team must be prepared to create that “light bulb” moment so the jury has the sudden realization that they have encountered something similar before.

Having your presentation loaded with good visual communication and thought provoking analogies is the ultimate challenge in the modern courtroom. Getting a jury to always come back to the theme and REALLY absorb the relevant data of the case is the most difficult task for any trial team. Add the pressure of breaking down complicated information to twelve laymen, and believe me, it’s very true.

Anything less and the trial team will run the risk of falling on deaf ears. If you don’t believe me watch the jury. Those paying attention and nodding their heads if you are lucky are getting it.

All five of them.

Reference

Viewing Metaphor as Analogy, in Analogical Reasoning: Perspectives of Artificial Intelligence, Cognitive Science, and Philosophy (D.H. Helman, 1988).

Visual Communication: Less is more

"Less is more", a phrase from the 1855 poem "Andrea del Sarto" by Robert Browning. Andrea del Sarto was a Renaissance painter who was regarded highly by his contemporaries because of his technical skill. The phrase is commonly used in our modern age to suggest that simplicity is often a better teacher then something which is complicated. In my career I have often been presented with scenarios where this very phrase has been extremely useful. Not only in toning down a requested client exhibit but also in taking a step back for a wider glance at my own work.

I recently attended a mediation in a case which the plaintiff had very severe injuries from an accident. The case team which represented the plaintiff arrived with some enlargement boards to show the panel. The exhibits were crafted professionally and it was very apparent that a medical illustrator somewhere worked hard on them. However, they were riddled with information and a real assault on the optic nerves.

Now the argument could be made that the case team was watching costs, wanted to limit the amount of boards (use presentation software then!), or needed all those voluminous injury facts in one place. Those possible explanations aside a trial exhibit should always strive to use text sparingly.  An exhibit crowded with text and photos unless built upon, e.g. a slideshow will risk over loading your audience. In a trial it’s nearly impossible (especially after the lunch break) to focus the jury on graphics which are laden with information.

The internet is available to all our jurors and most certainly used by them in some fashion. It has become the information paradigm for cramming as much data into one place as possible. Just consider the home page of your favorite browser and how difficult it can be to sometimes navigate. I consider myself consumed by technology and still remain ticked off when my browser is “updated” and all the menu options change. The jurors do not have the benefit of repeatedly looking at all trial exhibits hours on end as I do a web homepage.

Trial graphics should be designed to convey key messages to the jury rather then every message. This way the jury is spending energy focusing on the important issues of the case. Less is more also applies to over saturation of presentation slides and graphics by the jury. The minimalist strategy will assist the jurors with learning about the case and make your exhibits meaningful and full of impact. Using pictures and graphics to more succinctly tell a story to your audience is the art of visual communication.

In closing use the less is more method to de-clutter your trial graphics. My approach is to make the most important area of the exhibit large and very easy to identify. Any supporting information should be a secondary focus for the jury as to not immediately divert their attention. The goal should be to provide the jury with visual tools to better understand the testimony they are hearing. Simplicity in design will help make your trial graphics much more compelling and accentuate the facts of your case.

References

Less is more. From Wikipedia, the free encyclopedia.
[Retrieved July 19, 2010]. Available from http://en.wikipedia.org/wiki/Less_is_more

Idiosyncrasies in the Court Room.

The jury is watching and never forgets quirky behavior or outlandish comments. Unfortunately, these etiquette mistakes happen time and time again and can be very damaging to any presentation. The court room is quite literally a stage and every trial is a show. So why does this matter so much? After all the jury is just a bunch of mindless dolts who don’t understand complicated concepts, correct? They have the attention span of a wet noodle and wont notice that much, eh?

Wrong! While I am on the subject I want to address the ultimate courtroom presentation mistake: Talking down to your jury. Years ago I experienced perhaps the worst example of this behavior by a seasoned trial lawyer. The case was semi complicated and involved lots of anatomy in the lower back. During direct examination the doctor read directly from his report (another mistake for a future blog entry) and was far from being a teaching witness. After the doctor had completed his reading our trial lawyer said, “Ok doctor you and I know what that means but can you please explain it to the jury.”

I was sitting in the back of the courtroom working on some last minute exhibits and just paused. What I heard (and the jury) was, “doctor you and I know what that means but can you please explain it to the 12 idiots over here”. This is a classic example of talking down to the jury. Explaining things in a manner that is more digestible for the layman is one thing. But suggesting in any fashion that you are more intelligent, superior or educated then your panel can be very detrimental to your case. Be mindful of language used and the reaction it will have on the jury when asking a witness questions.

Other idiosyncrasies which I see now and again deal with attire. For some reason at least once a year I encounter someone on a case team who wears the same suit every day. Well that is at least the perception the jury is left with. Obviously these individuals own multiple copies of the same suit. Perhaps this is done in an attempt to be neutral? Easily recognizable? Or perhaps it is just a favorite suit or some sort of voodoo good luck charm? What ever the reason I guarantee the jury is scratching their heads in curiosity. I’m not sure what the logic is behind this quirky behavior but suits should be rotated. In the very least a different blouse, shirt or tie be should be worn. Mix it up and keep them interested! Especially in a trial which is going to last several weeks.

Also when it comes to attire remember to shine your shoes. Nothing looks more unprofessional then an expensive suit with completely scuffed up shoes. That just screams a lack of attention to detail. Worse are the shoes which look like they were cleaned with a Hershey bar. As always I will continue to preach that the jury is watching you. They will make assumptions about you based solely on these very important observations.

The jury will become distracted by even more peculiar dress habits such as wearing suspenders AND a belt. In all my years in this industry I have never quite understood the reasoning behind that practice. Suspenders are a very dapper accessory that will never go out of style. Wearing them with a belt however will never be in style. Just some friendly advice…it looks ridiculous.

Finally, body language is very important and trial lawyers need to be very mindful of it. Jurors will be distracted by nervous or strange ongoing habits they are presented with. For example I once worked in a trial where one of the lawyers constantly re-adjusted his tie. At one point during a heated discussion I observed a member of the jury mimicking this individual. It was quite obvious at that very moment some of the jury was not paying attention to the testimony but rather the comedy show.

Drastic changes in body language are always picked up on by the jury. For example if during direct examination the trial lawyer acts one way and then changes during the cross. Making faces or reacting emotionally and outwardly to questions asked by opposing counsel is often a bad idea. The last thing the case team needs is the jury even considering professionalism has been compromised.

In closing I would just like to point out according to an oft cited study, “body language comprises 55% ( total communication), whereas verbal content only provides 7%,” the other 38% consists of intonation, tone, sighs etc. (Raudsepp 2002). The jury is watching, listening and latching on to idiosyncrasies in the courtroom. Avoid that at all costs and keep them concentrating on the testimony and facts of your case.

Video Deposition Tips.

The witness is a doctor who had surgery duties today and he or she is exhausted. Opposing counsel prepped them while you waited in the lobby with the court reporter for what seemed like an eternity. Finally, the videographer walks out to the lobby to verify the equipment is setup and the prep session is over. You sit patiently and wonder if the sound of your stomach rumbling with hunger pains will be captured by the microphone. What else could go wrong? Unfortunately, in a video deposition much more.

My big break in the litigation support industry was about 15 years ago. I took what I thought was a summer job as a legal videographer. Little did I know what was about to happen in terms of my career path. I only lay that foundation because even now so many years later little has changed with video depositions. OK, sure now we have better technology but the basic underlying mistakes made are the same. So I just thought I would share a few tips and observations here on my blog.

There are many legal videographers, different certifications and various levels of experience. Depending on who you use mileage will vary. This brings me to my next suggestion of researching who you retain. There is nothing worse then dusting off some DVD to use at trial two years later to learn the quality absolutely stinks. Now the video is in the can and you are stuck with what you have.

Many firms rely on their chosen court reporter to select a videographer which I have always considered a risk. Would you let your court reporter select the rest of your experts as well?  Even if the agency has its own in house video staff ask for examples of their work before you use them. Let us not forget our jury is full of visual learners who are assaulted by media on a daily basis. Low quality video is something they expect to see with old family movies and not trial presentations.

Once at the video deposition be sure to comply with your videographers’ request to turn off handheld devices. There is nothing worse then the constant buzz created by a Blackberry during a video deposition. Or worse an interruption with some ridiculous ring tone during an important question/answer. Take a break and check your email or text messages out in the hall. Again your jury will be unforgiving of these noises during playback at trial.

Another helpful tip is to be in control of your microphone. Many amateur videographers’ place it and never follow-up when it has shifted. The microphone should never be so low on your tie or blouse that it can be covered by flipping up a some papers or leaning forward on a table. Remember muffled questions, answers and audio in general lead to a ruined video deposition. Be mindful of where microphones are and don’t cover them up (or worse your mouth) in any way.

Your positioning during the video is important as well. This is especially true if the deponent is your witness. Seat yourself as close to the camera as possible so the witness is addressing the jury (camera) with their answers. Watching the side of someone’s head because the case team insisted on sitting right next to them at the conference table never looks good.

Finally, if you are just doing a straight video shoot and not using PIP (picture in picture) technology take your time with visual exhibits. Always provide your videographer with time to zoom in on any film or demonstrative being used. The best practice is to go off the video record and set everything up to avoid any confusion. This just makes for a cleaner video and much nicer presentation. The old adage of haste makes waste could not ring any more true!

Analyzing photo evidence.

It has been some time since I have blogged and with good reason.  I have been very busy the past few months working in back to back trials. All the cases were very interesting to say the least and they all had one common link, a plethora of photos. It has occurred to me over the years that there is tremendous value in studying photographic evidence with “fresh eyes”. All of my recent cases had a similar theme of the case team unearthing facts just with the photos. Facts that were either previously over-looked or perhaps just missed by prior counsel.

One particular case team I work with has made a habit of creating a “crime scene” review on the wall with photos. This allows for a chronology effect for ease of review and is very helpful. I have been able to recreate this effect with Cooliris and some careful numbering of photos in the digital environment. Reviewing photographic evidence with a logical progression is like telling a story and you would be amazed at what you may find.

As a trial consultant I may have only days to learn as much about a case as possible. Therefore, before review of key depositions and expert reports I am off to the photos (if any). I like to study visual aids to see what if anything jumps out at me or raises an eyebrow. A few years ago I was involved in a brutal rape case which was well photo documented by a large metropolitan police department. Amazingly the study of the photos by both me and the case team revealed potentially astonishing facts. Information which the investigating police officers had completely overlooked or just did not bother to report.

The case went on to settle but had it not the defense was armed with a battery of fantastic photo evidence questions. Questions which would have had any juror scratching their head and saying, “wow look at that…” Veteran case teams know common sense usually goes very far with jurors as opposed to combating expert mumbo jumbo.

Certainly the tampering of digital photos is an ongoing concern. However many of these suspicions can be relieved by the review of a competent forensics expert in any case. Not surprisingly I have seen recent juror questions inquiring about this very thing. After getting both counsel to agree to the authenticity of the photos the judge provided the jury with that instruction. The CSI effect strikes yet again!

In closing I would suggest to any case team that there may be fact patterns hidden in your photo or video evidence. Having a fresh set of eyes review this data whether a paralegal, consultant, associate or family member may reveal some surprising information. And this is information that your jurors may pick up on which in turn are potential questions which may go unanswered. Don’t leave them guessing in the deliberation room but rather arm them with all the visual tools they need to decide in your favor.

Dress code for the courtroom.

Last year I blogged on professional etiquette in the courtroom. I wanted to follow-up on that post and talk some about appearance in the courtroom. The old adage goes on to say that you never have a second chance to make a first impression. I would like to modify that by saying you never get a second chance to undo a continuing bad impression. Unfortunately, I have seen over the years some very questionable attire during a trial. I would like to preface this posting by saying I do not hold my self-out to be an image consultant. Rather just a silent observer who has been left scratching his head on occasion.

First, I would like to touch specifically on our most important visual aid, our witnesses. Their clothing not need be expensive, but it should not appear worn, stained, or the wrong size. Instead it should fit well and not have the appearance that it was slept in, e.g. wrinkled tremendously. Often the appearance of a witness can completely sabotage their credibility on the stand. It is very important that a case team manage the presentation of their witness from both a testimony standpoint and their attire. You may have the greatest expert in the world but it will do you no good if the jury is fixated on their outlandish attire.

Years ago, I was involved in a case where an expert showed up to testify dressed in a blazer and t-shirt. Not only was his chest hair showing but also was the Mr. T starter kit of gold chains. What possible good opinion was the jury to cultivate from this visual presentation? On the surface he looked like he was not taking his role to testify very seriously. Furthermore, his expensive fee was confirmed by all the jewelry he was proudly displaying. I find it hard to imagine that some of the jurors did not make the same assumptions that I did.

Another awkward appearance situation I have seen involves over dressing a witness. This is a judgment call and every case is obviously different. Others may have a better experience with this but I have never seen it work correctly in my fifteen years. For example, last year I was involved in a case where a truck driver was wearing a suit during his testimony. Not only did he seem obviously uncomfortable wearing the costume but also it did not fit him properly. Worse was another case where the plaintiff had on a blazer with the price tag still on the back of his sleeve. It was there all through the morning session and chuckled at on various occasions by jurors.

By far the worst was the witness who had his pant cuffs held up by staples. This was a clear indication that his suit and accompanying accouterments were purchased the morning of trial. Nothing helps credibility more then new designer staple slacks! Trust me when I say the jurors are very aware of all these attire oddities. They have nothing to do but sit in a box for hours to observe and listen. These are not first impressions but rather potentially ongoing and damaging impressions. Do you want your witness to be remembered as the person with staples in his pants during deliberations?

Another witness fashion fopaux is the use of large amounts of makeup. According to the makeup expert in my house (my wife) female witnesses should be using neutral lipstick and very basic foundations. Everything should blend and enhance their features and not stand out dramatically. I was once involved in a trial where our expert was using so much makeup I think a putty knife would have been required to remove it. She was wearing a white lab coat which just amplified the attention of the rainbow of colors decorating her face. I can only imagine the jurors wondering if this was a doctor or a circus clown on the stand to testify.

In addition, we need to be cognizant that our witnesses are not projecting an image that is enticing for the wrong reasons. There is nothing wrong with being attractive but flaunting it to the point where credibility is ruined is a bad thing. Cases are not won with a nice pair of biceps or the shapely legs of a witness. Dressing conservatively makes fewer distractions for the jurors who need to be concentrating on questions and answers.

Finally, all these basic attire rules apply to legal professionals working on the big stage called a jury trial. Being competent and well educated does not matter if you look ridiculous. The jury will have the potential to be an unforgiving audience if they want too. Therefore, do not give them anything negative to latch onto from day one. They WILL talk about you. Having a case team and witnesses in neutral, natural and professional attire is the beginning of a correct visual presentation.

Keep the jury vertical after lunch.

I felt compelled to blog on some potential strategies for the afternoon session. For the past fifteen years, I have watched the jury panel fight their carbohydrates after lunch. We all know how wonderful the food selections are in and around most courthouses. Repeatedly counsel elicits testimony or presents evidence, which lulls the jury to sleep. In some instances, trial teams have no choice because there is a long witnesses or perhaps scheduling issues. I do believe however that many times the sleepy jury problem can be avoided. Seasoned trial teams are so accustomed to the courtroom that they are often immune to the problem. Many do not eat lunch and have borderline embalmed themselves with caffeine.

The jury on the other hand is in no way accustomed to a trial setting. Even though many jurors may have sedentary jobs that do little to prepare them. A trial day can be likened to an eight-hour long movie you may not necessarily be very interested in subjecting yourself too. So what can a trial team do to prevent the jurors from falling asleep after lunch? I will attempt to offer a few examples, which I have seen, work in both the past and the present.

For starters, always try to avoid playing a videotaped deposition after the lunch break. If the video is around thirty minutes or less then it should not be a major issue. Anything longer and you will certainly run the risk of the jury zoning out and not absorbing the testimony. Some may suggest that a motion picture is longer than thirty minutes and people pay attention. My simple retort to that is there are very few (if any) video depositions more interesting than a popcorn-munching movie.

One way to break up the video is to make it interactive with picture in picture exhibits. This way the jury is seeing live annotations, evidence and is not fixated on a talking head. Not a perfect solution (live witness would be the first choice) but it will help keep the sleepy jury interested. If your case has complicated facts and voluminous evidence, an interactive video deposition is necessary rather than a luxury.

Recently I was in a trial where counsel decided to read deposition designations after lunch. This was akin to banging your head against the wall, slowly, until the numbness made the pain go away. In kindergarten, teachers usually read the children a story after lunch for naptime. Do you see where I am going with this? It has the same effect on the jurors who REALLY do not like the story I am guessing. As mentioned a trial team may indeed have scheduling issues and no choice. The reading of the depositions may have to be conducted after the lunch break. What can be done to make it more interesting and easy to absorb?

The very simple answer is trial presentation software. The designations should be made into clips, which can be shown to the jury on a large screen. Most people recall less of what they hear and much more of what they both see and hear. Using this method, everyone can follow along and there is no guessing as to what was potentially said. Furthermore, if you misspeak there is less chance opposing counsel will make an objection. Ok, maybe I am being too ambitious and there is still a chance there may be an objection. However, the jury is reading along so counsel cannot suggest you were trying to mislead them.

This strategy of using trial presentation software throughout the trial will assist the jury tremendously. I have never been involved in a case where the jury said, “You know that digital presentation really made it harder for me to learn”. If the trial team’s goal is not to place the jury into a sleep induced coma then trial technology is a necessary tool. Being stuck in a courtroom with no clock, shaded windows, uncomfortable chairs and a belly full of lunch is hard on the average person. Then add complicated (or boring) testimony to the mix and you may have an information absorbing disaster on your hands.

A trial team should make the presentation of evidence as interesting as possible. A jury that is paying attention is a jury that may be deciding the facts in your favor. Do not let lunch and poor visual communication become an obstacle in your case. Instead keep the jury involved with your visual aids and enthusiasm throughout the day. They really do want to pay attention during the afternoon session. Trial teams just need to give the jury ever tool possible to assist with that goal.

New Year’s resolution.

I have never been a fan of the whole New Year’s resolution idea. Recent research shows that while 52% of participants in a resolution study were confident of success with their goals, only 12% actually achieved their goals. Multiple times in the past, I have tried to latch onto the idea and failed miserably. Not from lack of conviction or willpower but perhaps just from poor choices for my resolution. Therefore, this year I was trying to think of something I could make a real effort to fulfill. Something litigation support related which would enrich my career.

Then it dawned on me an area that often is over-looked in our industry. The use of applications and maintaining our proficiency with them. Everyone who uses a computer to conduct work knows how fast a skill set can vanish when not used on a regular basis. Sure, it can be likened to the bicycle adage but often that is just wishful thinking. In just a few updates or patches, you can be staring at an application, which looks very different.

Therefore, my resolution will be to delve back into my old friend Concordance. When still working as a litigation support analyst at a large Philadelphia law firm that was my main tool. Every day I was loading collections and managing databases in that application. Now after two years of consulting work my skills have become a tad rusty with my old friend. So I remain optimistic some of the old issues with irritated me with the software have been resolved.

With that in mind, I encourage anyone reading this blog to visit an old application and warm it up. Been a while since you worked with layers in Photoshop? Maybe you have not edited a load file using TextPad in ages. Whatever the application may be just remember the old adage use it or lose it rings very true in our industry. Often the distractions of our work take us away from education. Re-learning is just as important as learning something completely new.

In fact, self-enrichment and learning are what will keep your edge in the pirate waters of this economy. Setting aside time to maintain proficiency levels in a multitude of applications is imperative in this ever-evolving environment. Clients and colleagues are relying on us to maintain the technical expertise we have and to learn more. Consistent reading, a skill losing traction everyday, will assist with maintaining skill levels and education.

Some would argue to look forward in terms of technical education only. Things are changing rapidly in the technology world so perhaps some old skills are better left untouched. However, in most instances those old skills hover on the periphery of new skills. Moreover, it is those older skills, which may set you apart from the competition.

Reference

New Year's resolution. (2010, January 4). In Wikipedia, The Free Encyclopedia.