The 13th juror

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 overcomplicated graph, animation, or demonstrative of some type. These examples are almost always supported by the tech/la...

"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...

"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 assau...

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 docto...

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 a...

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...

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...

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 ca...

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 di...