The 13th juror

It has been quite some time since I posted anything here. Apparently all it took to drag me back was a term that has annoyed me for years: trial tech. I despise it, not because there is anything wrong with the technology side of this business, but because of what the term says about how the role has changed. When I first started doing this work, the person sitting in the hot seat was more often called a trial consultant, litigation consultant or presentation consultant. That was not just marketing fluff. There was an expectation that you knew the case, understood the evidence and contributed something beyond knowing how to operate the software. You worked with the case team, helped organize the presentation, gave opinions and used your courtroom experience to help make the case easier to understand. As more people entered the field, the market became increasingly competitive. In my experience, some companies competed by lowering the cost of the person in the courtroom. Along with that ...

The above quote from Aristotle (384-322 B.C.) is the Tao of visual communication. It has been a while since I posted here. Returning to law firm life has kept me very busy the last eight months. Additionally, my self-imposed writer’s block prevents me from publishing unless the content is substantive. I abhor bloggers who post one paragraph or a random thought. That just adds to my impending carpal tunnel generated by gratuitous clicking through rubbish. Anyway, I just completed a trial in Philadelphia and witnessed (no pun intended) a stunning example of visual communication at play. It inspired me to return to this blog and write a tad about my experience. For background, our case had a voluminous amount of data, to the sum of several hundred thousand pages. There were many parties involved, and it was a bench trial, much to the dismay of plaintiff’s counsel. Our judge was an elderly but scholarly man who was interested in the facts and not a sideshow. Therefore, we had the task of ...

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 in closing gaps that 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 are the culprits 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,...

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 that rings true when facing twelve decision makers. Below, I have compiled some tips that 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 w...

I finally had an opportunity to sit down and blog! Over the holiday break, I tried very hard to unplug for a few days, and it did me a world of good. During that time, I thought back to the evolution of technology I have used in the courtroom over the past fifteen years. It seems like just yesterday I was lugging a desktop tower and full sized computer monitor to the courtroom. I recall very clearly the loud and obnoxious sound the fan made when I was trying to playback a video file so big it needed its own zip code. The USB flash drive on my current keychain has more storage space than that old desktop! As fun as recalling the war stories of old tech may be, what the future potentially holds is much more interesting. Our jury pool is very quickly changing with the addition of younger people and the exit of technology curmudgeons.  Our new jurors are addicted to social media, smart phones, and invigorated by technology which is interactive. Appealing to these jurors will soo...

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...

'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 al...

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...

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...

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 ...