Tuesday, October 25, 2011

Trial Technology Lifecycle.

The use of trial technology has seen exponential growth over the past few years. Social media and the constant sharing of ideas certainly have assisted to close gaps which existed in the past. It is indeed rare to find the best in breed using last year’s tech in a high stakes trial. However it remains something litigators should be considering when preparing for trial. Certainly some dated technology is still useful but it is always wise to continue investigating proven and industry accepted current tech.

Often budget constraints, busy schedules or just plain ignorance of current tech is the culprit for many case teams. With that foundation in mind many smaller firms turn to a vendor. In theory in order for the vendor to remain competitive they must monitor the technology lifecycle very closely. Unfortunately that is not always the case when retaining a vendor. Very often what is being paid for is indeed dated or obsolete technology.  Therefore it is wise to ask questions, get references and compare the tech being used to the vendor’s competitors.

Years ago I was involved in a two week trial just when trial presentation software had started to take off. Both my case team and opposing counsel were still using document cameras as a crutch. We both retained a vendor to provide us with our own ELMO and projector. Unfortunately the vendor our team hired provided us with outdated tech. The difference between our opponent’s presentation and ours using our respective equipment was glaring. Our images were grainy, dark and just anemic by comparison. By the end of the second day we made an arrangement to split costs with opposing counsel and shared their equipment. Don’t be fooled by fancy sales pitches and slick advertising. Do the legwork and make sure you are getting the best equipment and software to assist with presenting your client’s case.

On the law firm side of things it remains imperative for the litigation support department to be familiar with new technologies and trends. Even if trial presentation remains something which is outsourced case teams often rely on Lit Support for advice on whom and what to use. If Lit Support is involved in trial presentation work then the correct budgetary allotments need to be allocated to insure the firm is not behind the proverbial eight ball. Many practices which settle most of their cases often fall victim to the trial technology lifecycle. When making it to the big stage there is nothing worse than snickering jurors because the tech is outdated, malfunctioning or inoperable. The bottom line is making sure the technology your team is relying on has not been superseded by something more reliable and visually compelling.  To quote McNealy, “Technology has the shelf life of a banana.”

Tuesday, October 4, 2011

Opening Statement Tips.

Over the years I have been both entertained and yawned to death by various opening statements. I have always thought the opening really sets the tempo for the rest of the case. Far too often they are exercises in complete boredom or just thirty minutes of chaos. There is an overused adage about first impressions which rings true when facing twelve decision makers. Below I have compiled some tips which I believe are helpful for both the veteran litigator and the greenhorn.
Opening Tips
  • Keep the cue cards and notes to a minimum. If you have to glance at your notes occasionally to make sure nothing important is glossed over that is fine. However holding your notes and reading from them makes you look like a newbie and unprepared.
  • Never make evidence promises to the jury during your opening that you cannot deliver on. Don’t think they will remember? Is that really a chance you are willing to take on your client’s behalf? They will remember and the credibility of your case will be tainted in the deliberation room. Additionally you may have opened a door that opposing counsel can drive a truck through in their closing.
  • Don’t fumble with exhibits. If you have planned to show the jury something then make sure you are prepared. Digging through a banker’s box, scouring digital images or trying to find some elusive page in a huge text all look bad. Have it ready or don’t use it.
  • Avoid PowerPoint as an Opening tool. Anyone who says otherwise is giving you advice from ten years ago. OK so now your notes are on a big screen and you are reading them. This is not how to engage the jury with technology. Use trial presentation software and stay dynamic rather than static. Get in and get out keeping the focus on the jury.
  • Don’t dress in outlandish garb with enough jewelry to open a store right in the courtroom. You may think those 10lb gold cuff links look good with all ten Liberace rings but the jury may have other perceptions. Keep it simple and professional. You want the jury concentrating on the theme of your case and not your attire.
  • Shy away from courtroom drama phrases like “the evidence will show” because they are simply overused and boring. Stick to your theme and just present the facts of the case. Be engaging and keep the jury interested with your presentation.
  • Think visually and use analogies whenever appropriate. Give the jurors anchor points for their memory and not just verbose blobs of fact. You may think you sound smart but you are putting them to sleep.
  • Don’t go over the top when describing injuries to the jurors. This is almost guaranteed to assault the senses and runs the risk of anger, disgust and other unsavory emotions. None of which you want directed at you or fed into an ambulance chaser moniker. Get in and get out and don’t desensitize your jury. Let the experts deliver the injury knockout punches.
  • Keep it short and crisp. Anything else potentially will have your jurors wondering when the madness will end. Remember the mind can only absorb as much as the seat can endure.
  • Look at the jurors – each of them. They will not pay attention if you are speaking to the wall, ceiling, your shoes or a pile of notes.