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August Theme: A Guide to Crafting your Story in Court

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written by Mark Caldwell NITA’s Director of Resources

Remember how you saw the world before you went to law school? That view was far different from your view of the world today. Sometime in your first or second year of law school you began to think and speak as a lawyer. You ceased to see the world in multi-hues and it became black and white. This starkness allowed you to apply facts to the law and reach a legal conclusion. Think about your frame of mind when you first hear about a case – before you perform a legal analysis of the case and begin structuring your potential claims, defenses and motions. This is when you hear your client’s pure story of the events that occurred in a persuasive form. You are either persuaded to take up the client’s cause by that story, or you reject it because you are not persuaded.

Our training and experience in legal analysis is essential to building or defending a case. In getting ready for trial this process often hinders our ability to communicate persuasively and making a case memorable to judges, juries, and others we need to persuade. What we need to do as lawyers is to convert our legal analysis back to its purist form of story. It needs to have a clear beginning, middle, and ending. Parties and witnesses, including experts, need to be introduced as characters which illustrate a central conflict and offers a fair solution.

We sometime confuse case story with other advocacy concepts. Your case story is not just a theme – such as “A man’s word is his bond.” Too often we select a theme that resonates but fails to present the facts in a persuasive fashion. A case story is not the legal theory. For example, a child is neglected or dependent if: the child lacks proper care, through the actions or omissions of the parent. This may hint at a story, but it is not a very good one. Likewise, a case story is not just a tag line – “This is a story of a promise; a promise made and a promise broken.” Instead, think of your case story in the same way that historian Ian Toll describes writing about history as an “episodic narrative, picking key episodes to write about that, in their composite, provide an accurate portrait of what happened, without bogging down in too much minutiae….”

In crafting your own case story it may be helpful to think in the terms taught to fledgling authors. You can translate common components of good story writing to trial. Your case theme is akin to the Premise Line of a story. A Premise Line tells the listener, “What is your case about?” When properly conceived, your premise expresses your whole story in one or two neat sentences. Let me give you an example from the movies – A treasure-hunting archeologist races over the globe to find the legendary Lost Ark of the Covenant before Hitler’s minions can acquire and use it to supernaturally power the Nazi army. It is your “elevator speech” that defines your protagonist (your client), shows the antagonist (the opposing party), offers a sense of setting, conflict, and stakes, and hints how the action plays out. It is not what some think of as the “grabber” that starts your opening statement.

Next comes the Designing Principle or what lawyers may think of as the theme. This is what organizes your story as a whole and makes it hang together instead of a lose series of facts. Your Designing Principle suggests how and where you will begin your story – is it a chronology or a topic driven revelation of the facts that complete the legal elements.

Every story, including trial stories, has a Central Conflict that shows the harm done to your client. It also reveals the remedy or equitable solution that will make things fair and right.

Each case has parties and witnesses. These are the Characters who populate your case story. Some will be fully fleshed out individuals who you spend time accrediting while others will be flat characters who serve a purpose but do not need a full development to be credible. Here is a flat character example – the police officer who first arrived on the scene of a crime but did not conduct the full investigation. He is important to the story but not someone who defines the story.

Finally, you must understand and develop your Plot, or the factual theory of your case. These are the facts that fill in the elements to prove you have met the burden of the proof. Your organic plot must show that each event is causally connected; that each event must be essential (not facts that clutter with useless information); that is proportionate in its length and pacing; and has a sequence that has a unity and totality of effect. Your plot structure gives you the map on how you call witnesses, introduce exhibits, and have the story play out in a persuasive manner.

Changing your thinking from black and white legal theorist to storyteller brings color back to your cases, it makes the facts more memorable, provides a reason to feel good about the decision, and persuades in the way that maintains attention – just as story has done throughout history.

The Global Legal Post Series by Reuben Guttman – Part One

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For the month of August, NITA is featuring articles written by NITA  Faculty Reuben A. Guttman. Guttman is a founding member of Guttman, Buschner & Brooks PLLC. His practice involves complex litigation and class actions. He has been recognized as a Washingtonian Top Lawyer by Washingtonian Magazine. Likewise, the International Business Times has called Mr. Guttman “one of the world’s most prominent whistleblower attorneys.” He has taught at NITA public programs since 2008,  most recently, NITA’s Deposition Skills: Seattle program, August 2-4.

NITA’s series of articles by Guttman are featured on The Global Legal Post. The first article, “Litigation in the Age of the Internet” shows readers how the use of emails and social media postings can be used as evidence and how it can change the nature and outcome of many cases. Guttman dives into an example of a case in which the FBI comes up with a list of witnesses in just an hour by doing some internet surfing among various social media sites that a person may have, as well as the detailed information that emails can provide. To read the full article, please click here.

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.

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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