The Legal Advocate

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Monthly Archives: July 2017

Why You Should Start Thinking About Your Trial Technology Well Before Trial

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written my guest blogger and NITA faculty Wayne Stacey

Courtroom technology is not about slick presentations and overdone graphics. Courtroom technology is about helping jurors follow your story and remember the supporting exhibits. It is also about engaging each juror’s individual learning methods.

While we often focus on the usage of technology as we approach trial, the focus should begin much earlier. In today’s civil trials, key witnesses are often outside the trial-subpoena power of the court. That means the only way to present those witnesses’ testimony to the jury is through deposition playback.

Anyone who has sat through video playback knows that it can be brutally boring and difficult to follow, which means that the jury will likely miss the point and overlook important evidence. The jury sees witnesses questioned in the open-ended style common to depositions rather than the leading, cross-examination style common to trials. As a result, the jury is left with a meandering series of questions and long answers rather than a crisp cross-style trial presentation. And most damaging, the jury is left with no easy way to link the video testimony with the trial exhibits.

To solve this presentation problem, focus on creating the material for engaging video clips during the depositions. Consider yourself the director in a short movie. The witness is your actor, and the exhibits are your props.

Trial technicians bring your vision as director to life. They can sync video playback and exhibits in a split-screen view to create a visually engaging video. But more importantly, they can draw the jurors’ eyes to the key material through annotations. The example below shows how a good trial technician can link witness, exhibits, and annotations. The video playback in this example looks more like a live-witness presentation than typical video playback. The witness is shown in the upper left corner. The exhibit is shown simultaneously on the right side of the screen. The trial technician creates a callout over the exhibit—helping the jury understand the origins of the callout. And finally, the trial technician can annotate, in real time, the exact material corresponding to the witness’ testimony. This arrangement makes the story and the evidence easy for jurors to follow. Jurors are not required to flip through paper exhibit copies or search a screen for the relevant material.

This type of engaging video playback does not happen by accident. Trial technicians need guidance when selecting exhibit clips and annotating the clips. The deposing attorney must provide that guidance through carefully-crafted deposition questions. Rarely will courts allow a technician to clip or highlight exhibit material not clearly called out by the deposing attorney or the witness. Think about these questioning techniques as controlling the eyes of the witness, the trial technician, and the jurors. All of this must be set up in the deposition.

Three steps will guide trial technicians and the jury through typical exhibits. These techniques must be rolled out during the deposition to make them useful.

  1. Introduce the exhibit properly: Often exhibits are introduced mechanically in a deposition, such as by introducing the document as Exhibit 1 and then explaining that Exhibit 1 is marked with Bates No. 743,231. The mechanical introduction is useful for record clarity, but it is not useful for the jury. For example, the exhibit number used in deposition frequently does not match the exhibit number used in trial. Jurors are unlikely to do any conversion between deposition exhibit number and trial exhibit number. And few jurors will connect with an exhibit’s bates number. This type of mechanical approach would rarely be used at trial.
    If the exhibit is one that the jury should see, remember, and understand, introduce it with the video playback in mind. Guide the witness in the deposition to the key identifying features of the document such as title, date, signature, etc. The trial technician can follow this guidance and highlight those identifying features for the jury during the video playback.
    In the example above, you would want to direct the witness to the company name, “Data Dynamics Corporation;” the document title, “Quarterly Income Statement;” and the time period, “For the Period July 17, 1987.”
  2. Guide the witness to the correct section of the exhibit: Once you have introduced the document to the deposition witness (and the jury), guide the witness to the correct section. Try to set the stage for the section that the witness (and eventually the jury) is seeing. Call out identifying material such as chapter headings, section titles, paragraphs, etc. The trial technician can highlight this material based on the deposing attorney’s questions.
    In the example above, you would guide the witness to the totals section that includes the “net sales” and “costs of sales” information.
  3. Guide the witness to the exact material that you want the jury to see: If you have done steps 1 and 2, the jury should be following your questions about the exhibit. They know what document you are asking questions about. They know the section you are focused on and how it fits into the whole exhibit. They are following the testimony and the visual presentation because the trial technician is guiding their eyes by highlighting material corresponding to your deposition questions. And with a final question, you guide the witness (and trial technician) to the exact material that you want the jurors to remember.
    In the example above, you would direct the deposition questions to the specific “gross profit” entries. The jury could forget everything else about the exhibit, but they should remember the approximately $400K in profits. They saw the number with their own eyes—because the trial technician highlighted it for them. They know where the number came from because you guided the witness (and the jurors) through the exhibit.

Courtroom technology does not make your story better. Technology’s role is to help you visually tell the story and help your jurors remember the evidence. The next time you are drafting your deposition outline for a deposition that could be played at trial, ask yourself what type of video are you creating. Are you creating something that the jurors can follow? Are you introducing evidence in a way that the jurors will visually follow? Or are you creating something destined to put everyone to sleep? Whatever you create, it starts with the questions you ask in the deposition. The conventional wisdom of asking open-ended deposition questions is not always the best solution.

The Evolving Deposition

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NITA Faculty and Attorney Reuben Guttman co-wrote an article for Law 360, The Evolving Deposition. Guttman mentions NITA’s Deposition Skills: Seattle program in which he states, “practicing lawyers are trained in the skills of taking and defending the modern day deposition. Students are therefore counseled against making speaking objections, and an entire session is held on coping with obstreperous counsel.” To read the full article and learn about how depositions have evolved over the years, click here. Congratulations Reuben and thank you for being a proponent of NITA!

*Please note – when clicking the link you may have to register to read the entire article. However, if you do a Google search: The Evolving Deposition Law 360 and click the first link, you can view the article in its entirety without registering.

Association of Prosecuting Attorneys NITA Public Service Program

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Attendees of the APA Atlanta Trial Skills program

This year, NITA joined forces with The Association of Prosecuting Attorneys (APA) on three public service programs. These programs took place throughout the country in Milwaukee, Atlanta, and Spokane. Two of the three programs focused on enhancing trial skills for the prosecutors, while the third program focused on supervisory skills. Across all three programs, 79 prosecutors received training in the NITA method.

President of the APA, David LaBahn and Deputy General Counsel of the APA, Marlene Botros were integral in working with NITA faculty to put the programs together. “Our partnership with NITA has been an invaluable tool for prosecutors across the country,” said Mr. LaBahn. “It was a tremendous opportunity for all to both network and learn from other professionals from around the United States. These public service programs were extremely beneficial, and we look forward to continuing this successful alliance for years to come.”

Likewise, Attorney James Gailey who served as Program Director for the trial skills program in Atlanta stated, “The NITA public service trial program for prosecutors who handle domestic violence cases was a pure example of the importance of this type of training for lawyers involved in very important work but who might not have the resources to avail themselves of it. The prosecutors that we worked with were highly motivated and prepared and it was very gratifying to see their skills improve in a short period of time.”

Not only did Gailey understand the importance of the programs and how motivated the prosecutors were, but Professor at UALR School of Law, Michael Johnson, who served as faculty at the Spokane program, also recognized the dedication of the prosecutors. “The prosecutors who attended this program were very engaged and dedicated. They face a daunting task in the prosecution of domestic violence cases and the unique issues frequently encountered in trial. It was very rewarding to work with them and along with the APA attorneys that participated as faculty,” said Johnson.

Along with the positive feedback from the APA and NITA faculty, the prosecutors who attended the programs also shared their experiences. One attendee of the Atlanta trial program said, “The training was one of the most helpful I’ve been to… I really feel like I learned a lot and because I was able to practice and get feedback, the learning really stuck.”

With the success of all three programs this year, NITA hopes to continue our efforts to train prosecutors as part of our public service mission.

2017 SWBDA Awards Recognizes The Articulate Advocate: Persuasive Skills for Lawyers in Trial, Appeals, Arbitrations, and Motions

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This year at the 2017 Southwest Book Design and Production Competition (SWBDA) through the New Mexico Book Association, NITA Program Directors, Communication Specialists, and Authors Marsha Hunter and Brian K. Johnson, were recognized at the ceremony. Their book, The Articulate Advocate: Persuasive Skills for Lawyers in Trial, Appeals, Arbitrations, and Motions received a Special Recognition Award.

According to the New Mexico Book Association, they are the only statewide nonprofit serving all book professionals. They honor excellence in authorship, editorial preparation, design, and production.

NITA would like to extend a congratulations to both Marsha and Brian for this achievement. Both have worked together as Program Directors for NITA’s Articulate Advocate programs which teach communication skills to attorneys, focusing on linguistic, cognitive, and vocal skills required for oral advocacy.

To read more about the New Mexico Book Association and the 2017 SWBDA, please visit their website.

July’s Monthly Theme On Technology: Same, Same But Different

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written by NITA guest blogger, Shannon Bales

In Thailand there is an expression – “Same, same but different” it has a wide variety of meanings but is basically used when tourists are shopping for souvenirs at booths that often written have the same goods. That elephant statue…It’s the same as the other one but “different”. In trial technology we encounter the same struggle with a nearly complete lack of differentiation. The exhibits placed on screen are uniformly presented in the same manner, using the same techniques, and the same yellow highlighting and provide little chance for the judge and jury to differentiate between who (visually) the plaintiff is and who the defendant is –, “same, same but different”.

A risk is decision maker confusion as judge and jury view a long list of documents that are so visually similar to previous, subsequent and opposing counsel’s exhibits that they can’t be distinguished from one another. The exhibits are a singular wall of yellow highlights that carry no weight or impact. Legal teams that don’t create interesting visuals of their exhibits are missing out on an opportunity to show some creativity, visually impress the jury, keep things interesting, and provide unique visual ques that decision makers can remember and give a common reference point to. We like to say, “If you highlight everything, you highlight nothing” and a good example of this is the document highlighted below which is very typical of most trial presentations. Typically, the lawyer starts by showing the “to and from”, and then “date and subject,” and then reading the body of the message. Put this document in line with all of the other exhibits being presented in the exact same way by both parties and you really have something that is not memorable at all – just a continuous wall of yellow highlighted documents.

There are many great trial presentation software tools available but there is a lack of variety in the tools and presentation options available. Nearly all of the software tools have highlighters, a circle, square and arrows. Yet even with these limited annotation options one can creaate a memorable and unique display of every exhibit that is shown, really anything but a wall of yellow. Wouldn’t it be great to see some “60 minutes” style document presentation options made right out of the box?

More often than not though, it is often the legal team that decides to not venture beyond the yellow wall. This is often due to the lawyer’s lack of comfort with the technology and uneasiness with handing over some potentially on-the-fly decisions about document annotation to a trial tech. This keeps many teams from releasing the complete creative range of visual options at trial. If you are working with a trial tech don’t be afraid to let them be a bit creative in working with exhibits. Lawyers with some level of discomfort with the technology or releasing a trial tech’s creative side could practice the night before and even pre-annotate documents so they know exactly what they are getting.

Contrast the previously shown yellow wall of highlighting with the sample below. To be sure, I’m not saying you should use all the colors of the rainbow but there are options to make your exhibit presentation more memorable. The use of color and colored shapes in the below example provide lawyers a method to focus the decision maker’s attention where they want it. For example: “the text in the blue box”, “the recipient is in the green highlight”, “the sender is circled in purple at the bottom of the page” all help the lawyer focus judge and jury attention where they want it to be.

Additionally, legal teams should consider how they can vary their presentation from time to time to keep viewers interested by not stacking endless slides or electronic exhibits in a row. Perhaps a board, document camera or other presentation method could be incorporated into your presentation strategy to break up the presentation and keep it interesting. For example, the document camera can be an impactful presentation tool if you make it appealing by incorporating hand movement, thick colored markers and emphasis on what you are trying to feature (i.e. scribble, underline, etc.).

In summary, don’t be the “same, same” as opposing counsel’s presentation – be different. Using color and varied annotations will help you keep viewer interest and provide a reference point for focus and recall. Familiarize yourself with the visual capabilities of your trial presentation software and add impact to every exhibit viewed in the courtroom. Get over your discomfort in working with trial presentation tools by pretreating the annotations (do them in advance) or practicing the night before.

The views expressed herein are those of the author’s and not necessarily the views of FTI Consulting, Inc., its management, its subsidiaries, its affiliates, or its other professionals.

FTI Consulting, Inc., including its subsidiaries and affiliates, is a consulting firm and is not a certified public accounting firm or a law firm.

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This article was written by:
Shannon Lex Bales
Managing Director, Trial Technology Consulting FTI
UCLA Paralegal Trial Technology Program Instructor
Trial Technology Author
UN War Crimes Tribunal Legal Technology Advisor
Legaltech Award: Most Innovative Use of Technology During a Trial 2009
Email Shannon at: Shannon.Bales@FTIConsulting.com

NITA’s team of practicing lawyers, professors and judges from around the nation dedicates its efforts to the training and development of skilled and ethical legal advocates to improve the adversarial justice system. NITA's Goals are to:
  • Promote justice through effective and ethical advocacy.
  • Train and mentor lawyers to be competent and ethical advocates in pursuit of justice.
  • Develop and teach trial advocacy skills to support and promote the effective and fair administration of justice.
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