The 13th juror

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...