Thursday, January 14, 2010

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.

Monday, January 4, 2010

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.


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