Trial in the Digital Era

Is Trial Presentation Part of Your Case Strategy?

Lights, camera, all rise.  When it comes to trial, many lawyers over look or underestimate the significance of one of the most important aspects of their case, the presentation.  In today’s fast moving and overly informed society, it is crucial to capture and hold the jurors attention.   There are many varying approaches to trial presentation, exhibit boards, PowerPoint, Electronic Trial Presentation (ETP), jury books and the list goes on.  With so many options and so many different opinions, which is correct?  While every case is different, I will tell you that the answer is almost always the same, use a variety of presentation approaches to create your presentations. 

As an example of how to strategically select your presentation of  evidence at trial, lets discuss boards.  I was in trial about eight years ago and we were retained by the defense.  The plaintiff was examining a witness and the lawyer pulled out an exhibit board which was a photo of a faulty piece of equipment which had allegedly caused serious bodily injury.  So far nothing too strategic about the approach, except for size.  Remember, size matters.  In this case, the plaintiff’s attorney had enlarged this photo to a size of around 18”x18”.  My first thoughts were how cheap can a lawyer be.  I was convinced that this was another cost related issue.  My demeaning attitude was quickly turned to humility as the lawyer who had held that board in his hand while questioning the witness turned to show the jury, paused, turned and respectfully asked, “your honor, I think the jury is having difficulty seeing my board, do you mind if I move closer?”  The judge graciously granted the request and that lawyer walked up to the rail of the jury box, looked each one in the eyes as he showed them this photo.  While the photo was not overly impressive, nor did it possess any type of “ah ha” factors, what it did posses was a ticket to establish an advanced and more intimate relationship with the jury.  I feel that most if not all cases have these types of opportunities.  Often times it is getting more credibility for your expert by getting them off the stand and down in front of a jury to explain a board or draw a diagram.

Another like opportunity arose during a patent infringement case with an antitrust counter claim.  This trial was in US District Court and we were utilizing ETP.  Our lawyers wanted us to scan the cover of the patent to project to the jury in a larger than life way.   In this case, we had the approach that would put us in an advantageous position.  Rather than scanning the patent we did something I almost always advise against.  We handed information to the jury.  The first chair took the patent and handled it with kid gloves as if it was the Holy Grail itself.  Walking cautiously with the patent and gently supporting it with the palm of his hand, he slid it from his palm to the palms of the juror.  The jurors gazed upon the patent with its red ribbon and gold seal with awe and amazement.  Each one of them only holding the patent with an open hand below it.  Not one touched the face of the document or opened it.  This approach was not the most ingenious ever thought of, it was simply an opportunity to get intimate with the jury and allow them an experience that not one of them had ever had before, to hold an official United States Patent.  While the case did not hinge on this, I will tell you it had the  jurors really thinking.  The opposing trial team had made some traction with a very simple, straightforward and commonsensical narrative.  When these jurors held that patent, their demeanor changed.  They gave a lot of credibility to that patent and the defense’s notion that the patent was not valid for a variety of reasons was no longer a viable theme for them.  Their antitrust claim was also not valid because it was patent enforcement and not antitrust.  This reaction can be closely compared to the “halo effect” that is generally applied to people who have instant credibility because of who, or in this case, what they are.  There are many that will argue that the “halo effect” is the reason OJ Simpson was acquitted in the criminal trial.  Although you can not underestimate that infamous theme, “if it doesn’t fit, you must acquit!”

These are but a couple of the hundreds of strategies that can be applied to any given case.  Let’s shift from strategies to methodologies.  There are four primary methodologies starting with the most common and widely used, Physical and Static.  The primary example would be an exhibit board or document blowup.  This presentation methodology is in a physical form and there is no control to manipulate the document or image at all.  As with most things in life, there is a time and place.  One of which I cited earlier with the hand held board.  Exhibit boards give attorneys a certain comfort level, a form of paper if you will.  Many attorneys believe the use of trial or exhibit boards exclusively is a cost containment measure.  I will invite you to compare costs of board usage to alternative presentation methods, you may be surprised. 

A strategic aspect of using exhibit boards is duration, how long can that piece of information sit in front of the jurors.  Often times opposing counsel is scrambling to refute the brilliant line of questioning and totally forgets that board sitting in front of his jury.  This makes it possible to have some persuasive piece of information resonating in front of the jury.  If attorneys are honest with themselves, almost every trial attorney has allowed the opposition to get away with leaving a board up, or have left one up themselves.  I am sure he or she apologized and said it was a mistake, a smart one at that. 

Timelines should, in my opinion, always be on a board.  Even if you are creating some type of interactive timeline that allows for greater detail, a summary timeline board of your case should be created.  It allows you as an attorney to have a single presentation piece that is the anchor to your case.  It outlines the events that support your fact patterns and themes.  It also allows you to use other presentation approaches to provide support, such as using ETP to present documents and testimony that validates your timeline entries.

Moving along the continuum of methods we have Physical, Static and Progressive.  Examples of this type of presentation would be magnetic boards, flip charts or boards with acetate overlays.  The first example that many people think of is a magnetic crime scene board.  You know the one where the attorney instructs the timid witness to step down from the witness stand and show where they were when they saw the  defendant commit the crime.  While the example may be from some Perry Mason type movie or show, it does allow for a witness to become more involved with the jury as well as make the witness more dynamic.  Progressive exhibits are great tools to illustrate evolution, to help explain in the form of a tutorial and to help comprehend a, which came first issue, much like the chicken and the egg.  The main draw back with using any type of progressive aid is cost.  The creation time is expanded depending on its complexity, the actually production of the physical exhibits involves a large amount of materials as well as labor.  Let’s keep in mind, these are not dynamic exhibits and cannot be altered unless they are recreated.

Leaving the physical world of presentation and moving to Electronic and Static.   Interactive exhibits created in Flash™ or PowerPoint™ are electronic and static being the inability to alter or manipulate on the fly.  We will not delve into linear vs. non-linear, but please note, linear presentations are made to go 1,2,3…  and there are a few times in a trial when information [evidence] is presented in that fashion, opening statements and closing arguments, for example.  Even then, watch out for the sustained objection that may force you to go 1,3,5,6,7…  Often times, expert witnesses will come to the table with their own presentation.  There is nothing wrong with this approach and if implemented correctly can be an effective presentation strategy.  We have used many of these types of exhibits in complex patent cases that require an organization to the information, a predetermined flow or outcome if you will.  This type of presentation method is particularly successful when coupled with Electronic, Nonlinear and Dynamic, generally referred to as Electronic Trial Presentation (ETP).   The use of ETP allows the jury to see the supporting evidence that supports the experts’ presentation.

ETP as previously identified is most commonly known by the two main presentation programs, Sanction™ and Trial Director™.  As with any software, the power is in the hands of the end user.  When using such a presentation method all evidence, documents, photos, videos, synchronized videos, etc. are “loaded” into the software and made readily available.  Any particular page of any particular exhibit is at your finger tips.  Not only does such a method facilitate organization of information and make obsolete the often too common phrase, “a moment your honor while I locate that exhibit” it also allows attorneys to be more dynamic.  The same is true for all of your information that you will or may present at trial.  Moreover, you and your team will have complete control over how the information is published to the jury and what aspects are published.  When I speak on this topic I often like to demonstrate how something so simple can make such an impact.

I utilize a document from the movie The Rainmaker that is written from Great Benefit Insurance Company to a Ms. Dorothy Black.  The letter states that her claim “…has been denied on seven prior occasions…” and then I use the call out tool to have the words “We now deny your claim for the eighth and final time…” now this is where the words jumping off the screen or monitor becomes impactful, as I underline in red the words “…you must be stupid, stupid, stupid” [emphasis added].  I will often times hear people talking about this one sentence on their way out of my seminars.   If left to their own observations, jurors may not give that information the attention or weight it deserves.  In an effort to continually refine our understanding of juror behavior, we routinely conduct jury exit surveys.  One of the remarkable comments we often hear outside of organization or lack thereof, is, “that I did not believe this witness, or that attorney because I wasn’t shown any evidence.”  Another one that is remarkable is “we never saw it, the attorney only spoke about it and the judge said what the attorneys say is not evidence.”    It’s like the old saying goes, “believe none of what you hear and only half of what you see.”  The importance of presentation cannot be underestimated.

There are many other tools available to aid in your presentation.  The document camera or “Elmo” as it is regularly referred to is a good example of a useful tool at trial.  The more complex the case, the more scrutiny that must be given to how your case is presented.  Today’s jurors, young and old alike have been conditioned by the internet, cable news networks and the detectives of CSI.  How does your trial presentation measure up?

Using Trial Research to Create Animation and the Dos and Don'ts

In my last post I wrote about trial research and how to maximize the investment.  Let’s continue along the litigation timeline and build a strategy from the study for our demonstrative exhibits.  I mentioned a study where we learned that our case needed to be more demonstrative and educate the jurors on an assembly line process.  One key component of a study is the debriefing.  This aspect of the study is a free flowing discussion with the jurors.

The debriefing allows the study to dig deeper into the jurors thought process and provide additional information on the case.  We then have the opportunity to understand what types of information, evidence or demonstratives may be useful or may impede the case.  In the previous post I outlined a case where based on the jurors response we created some demonstratives to aid in their understanding, and in particular an animation and retested the case with a new jury pool.  What wasn’t covered was how the details were identified in our first study, it was from the debriefing.  These details came in the debriefing which we conducted after all three pools rendered their verdicts.  We reassembled all the jurors together and began the discussion with some probative questions.  As the conversation with the group progressed we learned that if we presented the assembly process as a story board which allowed us to explain the process in various components or stages the jurors could better understand and retain the process.  The final demonstrative that tied it all together was a three dimensional animation. 

We used this animation as a demonstrative and not as evidence.  The animation took the components from the story board and integrated them into a moving process.  Many attorneys are afraid to use animation.  Their fear is generally that they will spend a lot of money and not be able to use it at trial.  While there is legitimacy to this, more often than not animations are used at trial.  It generally boils down to how the animation will be used, demonstrative or evidentiary, and more importantly, the judge’s position on animation use.  I have been in this industry for almost 20 years and the one thing I have learned is that the courtroom is the judge’s kingdom and he or she has the final word. 

If you find the judge is open to the use of animation now the decision has to be made if the animation is important enough that it must be introduced as evidence.  I would say that evidentiary animation is rarely necessary.  The area we see most often requiring evidentiary animation are in accident reconstruction, intellectual property and criminal cases.  The key to using animation at trial is that it be accurate and representative of reality.  The issues that cause animations to be excluded are that they are not to scale; the perspective and angle may be prejudicial or may be incomplete.  The measure by which animation use is weighed is probative vs. prejudicial.  Most courts will allow animation if there is probative value for the jurors without prejudicing the opposition’s case.  The purpose of any demonstrative aid, static or animated is to assist the jury’s understanding.  We do a fair amount of animation in medical malpractice cases and they are very valuable and rarely introduced as evidence.  In all reality, the publishing of an animation is more often enough.  The need for jurors to review during deliberations is scarce primarily because either the animation was effective or it wasn’t. 

One issue that can arise with an animation is the detail that is put into it.  We did an animation for a plaintiff of him walking in a strip mall where he fell and was significantly injured.  We placed a lot of detail in the animation, but the details were of the strip mall.  We based the details on photographic evidence.  When it came to the details of the man we used minimal details.  No defined facial features, a general body type that was similar to the plaintiff and not much more.  We used details that could be supported by the photographic evidence such as striping of the parking lot, location of parking blocks and the alike; we did leave out the details of the man which could be deemed prejudicial. 

While often times using generic representations of individuals is a prudent choice, even generics can be prejudicial.  In one case we were working on the defense and the plaintiff wanted to publish an animation to the jury.  We viewed the animation outside of the jury and for the most part it was a good animation.  There was one thing that we felt was prejudicial to us.  The animation represented a man, the plaintiff, who was hurt on the job.  The plaintiff was a middle age man with a middle age waist band, not fat but certainly overweight by anyone’s judgment.  The issue arose from the figure they used to represent the plaintiff.  While it was a generic figure that can be easily purchased on line, the figure they selected was of a very fit and muscular man.  While often times this does not rise to the level of prejudice, but in this case we felt that it would make the impression with the jurors that the plaintiff was in this physical condition at the time of the injury.  We were successful in getting that animation excluded.

Details are obviously important in many instances but again they should be incorporated only when they can be supported with evidence.  We have done several accident reconstructions, some which were evidentiary.  When animations are going to be used often times the animator is deposed, in particular when the lawyers want to use the animation as evidence.  The best way to create this animation is by closely working with the expert witness and utilizing their data and files.  The experts we work with will generally visualize their data sets with CAD.  Our systems allow us to import the CAD files which will bring all of the data and measurements that the expert used.  From there our animators add skin and movement.  When we utilize this approach the opposing attorney learns very quickly that he or she is deposing the wrong individual.  The proper person to depose is the expert witness.  If the expert’s data is accurate and acceptable then the animation will be the same.

There is one final area of animation that is emerging and its use should be considered very carefully, biomechanics.  This science is the study of free body movement such as how a body reacts in a car accident.  This area of science is not widely accepted by the courts and often times the animations are excluded.

Use trial research to identify weakness in your case presentation and be sure to explore the details through debriefing.  This will provide valuable insight into how to present clear, understandable and persuasively arguments at trial.  Then vet the strategy against the judge’s preference and consider which details are important and which ones are not.  Be sure to produce the animation with plenty of time to make revisions if there are valid objections to the animation.  Most of all don’t be afraid to use animation.  Not all cases need animation but the ones that do present the opportunity to provide a little pizzazz to the trial.  Remember the top three juror complaints, boredom, lack of understanding and disorganization.  Animation will remove at least two of the three.

What is your Jury Research Telling You?

Trial research has many elements; the most common is the “Mock Trial”.  Other studies include focus groups, venue analysis, attitudinal surveys, and shadow juries.  There are also many other study types and please note that I did not include voir dire.  Consulting during voir dire is an application of the trial research and not a study itself.  The focus here will be on mock trials.   

Mock trials are generally one or two day studies that include attorney statements and arguments, proffer of evidence, live, video and surrogate witness testimony and presentation of graphics and evidence.  A well designed study will utilize observational and more importantly quantifiable data analysis.  While it is my opinion that quantifiable data is the most important, what is often times overlooked is the gathering mechanism.  I have been involved in trial research as a Presentation Consultant as well as having designed and conducted the studies myself.  The most glaring error I see is the use of close ended questions to gather quantifiable data or gathering no data at all.  One of the many objectives of a mock trial is to extract the motivations and thought process of the individual jurors and then one analyzes how that plays into the jury’s verdict.  By utilizing open ended questionnaires the study will provide valuable insight into jurors’ understanding or lack thereof, positive and negative influences in the case, insight into the thought process as well as the ability to adopt persuasive language from the jurors.

When looking at observational analysis it must be understood that an individual’s actions, advocacy and comments are tempered when deliberating in a group dynamic.  It is much like two friends having a conversation in an elevator and when someone new gets on, the conversation changes or stops all together.  Therefore if a mock trial is based on observations only the results cannot be relied upon.  It is for that reason the study must independently vet the individuals’ actions to understand their impact on the group.  This is not to say that there is no value in observational analysis, only that it is not wise to rely solely on that one aspect.    

The best way to illustrate the impact of allowing jurors to freely express their thoughts, impressions and motivations is to look at case studies. 

The first example is a complex product liability case involving the failure of a component in a piece of machinery.  This machinery was part of a production line and the plaintiff’s claim was for lost profits, damages to the product on the line and the physical damage to the production line itself.  After the plaintiff’s attorney made an opening statement we administered an open ended written questionnaire with several questions.  I have taken some excerpts from one of the questions and listed them below.

When surrogate jurors were asked to briefly explain what the plaintiff’s case was about we observed to following individual responses.

“I didn’t get the process that the plaintiff’s attorney was talking about.”

“I didn’t get it.”

“No clue what he was talking about.”

“Huh?”

What is observed is a critical number of responses indicating a lack of understanding.  Further analysis was done and we learned that the plaintiff was too complex and technical in outlining the claims in his case.  Moreover, he used limited visual aids and relied heavily on verbal communication.  The jurors did not understand the role that the single component played and how this one piece could cause tens of millions of dollars in damage.  The primary take away for the plaintiff was to better illustrate the production line, where the failed component was in the process and ultimately how the failure caused such sever damages.  In this case we designed several demonstrative aids and developed the theme of, “a chain is only as good as its weakest link”.  We then retested the case with a new jury pool and observed the following responses to the same question.

“That one piece caused a lot of problems, and damage.”

“That the faulty piece caused the plaintiff to lose millions and it also broke other parts of the line.”

“The plaintiff thought that the component would work right and it didn’t which caused the damages.”

“That every part needs to work correctly or the whole thing goes down.”

I use these excerpts from these studies to illustrate that the proper mechanism for obtaining information not only identified a weakness of the plaintiff’s case but also the remedy.  If we relied on close ended questionnaires or observation analysis only, we would have missed valuable insight and details.  When utilizing open ended questionnaires in a study the responses can tell a great deal with few words.  Listed below are some random experts from some of our studies.  Regardless of the question, the issues are essentially self evident.

“The plaintiff told a good story and I feel for him.”
[identification with plaintiff and sympathy]

“The plaintiff relied on the broker for advice and he misled him.”
[reliance and distrust of defendant]

 “There is something I don’t trust about him.”
[distrust and lack credibility]

“He doesn’t seem to really believe what he is saying.”
[distrust and transparency]

“He is lying.”
[distrust and anger]

The implementation of proper data gathering in studies can reveal the most obscure rationale as well as bias.  In one study we did, there was a wealthy individual who did not carry health insurance; rather she opted to pay for her medical services on an as need basis.  One issue in the case was that a neurological test was prescribed by what may appear to be an unusual practitioner, her OB/GYN.  While it may appear unusual, the reality it is that a women and her OB/GYN have the strongest patient/doctor relationship there is.  While many of the jurors understood and accepted that, one did not.  She responded to a question with the following response.

“I know why she when to her OB/GYN. Because she needed a referral because of her insurance!”

This raised a flag to us as to why she should we take such a position when it was presented to her that this had nothing to do with insurance.  When we further explored this juror, we learned that she has had a bad history of getting treatment under her health insurance plans.  Over time she had the need to see specialists and to get rather costly tests done.  She got caught up in the bureaucracy of health insurance and was running from doctor to doctor to get the proper authorization the insurance company required.  This woman had a bias towards health insurance companies to the point where it literally clouded her processing of information and ultimately her decision.  We identified a potentially lethal bias and suggested that issues with health insurance be part of the voir dire questioning.

This is a small sample of what proper data gathering mechanisms can yield.  Another way to look at it is in the absences of a proper approach or mechanism.  If these studies had relied solely on observations we may have identified issues.  But in all likelihood we would not have gotten the details of the issues, perhaps only that one was present.  Moreover, if we used yes/no or chose one of the five answer types of questionnaires, what would we have learned?  Only what we provided to the jurors as options.

This is the first part of a three part series that will focus on two areas of trial preparation; trial research and demonstratives aids and how these two play out in trial.  My goal is to take these two areas and bring them to culmination at trial and illustrate the need for integration of work product along the litigation timeline.  The choices made in these two areas will determine the strength and value of a case. 

Certification of Trial Consultants

There have been many discussions over the last several years about certifying litigation and trial consultants.  I do personally support a certification program primarily because the skills vary from company to company as well as individual to individual.  The various skill levels and knowledge provide an inconsistent service to the market place.  In our company the in court person who runs the presentation is known as a Trial Presentation Consultant.  We use consultant in the title because our people do provide consultative advice and solutions throughout trial.  I firmly believe that when a firm or attorney hires a consultant to be in trial they  should be able to do it all and not just bring up a document.

I have heard many titles for this position such as Trial Technology Consultant, Trial Technician, Trial Operator, Presentation Paralegal and many others.  The titles vary as much as the skills and knowledge.  As previously stated I do support certification but what are the criteria for it?

I would propose that a Trial Presentation Consultant be well versed in all aspects, applications and systems used for litigation support.  The ability to migrate information from the discovery systems into the courtroom can save thousands of dollars.  Moreover, the certification should require a good knowledge of law and in particular the rules of procedure.  A true consultant should also possess skills to work with various graphics programs such as Photoshop and Illustrator.  The trial presentation software should be a given as well as command of video and audio systems and software.  Audiovisual equipment and setup is a must.  If a consultant can’t setup the AV, how will they troubleshoot problems when they occur?  Any experienced consultant will tell you, problems will occur.

What I see far too often are individuals in the courtroom that really don’t belong.  Many have little or no understanding of law and rules of procedure.  I would venture a guess that over seventy percent of individuals in trial managing the presentation do not understand what a motion in limine is.  Moreover, they don’t understand the underlying argument and the legal issue of prejudicial versus probabitive.  If an individual is responsible for the management and presentation of evidence at trial I think these are fundamental areas of law that they should know.

Courtroom setup and trouble shooting is an area that I see time and time again a huge variation in skills.  I see some companies have a particular division setup the courtroom and the consultant has no idea on the configuration or technical aspects.  I and my colleagues are often asked by the opposing party’s consultant to aid in setup or the conduct problem resolution.  One of the reoccurring issues we see is in audio.  Too often we see that there will be a hum or buzz in audio.  The primary cause is power running to close or on top of audio cables.  Many times it is exacerbated by poor quality and thinly insulated cables.

Trial is dynamic and a consultant must be as well.  The ability to react to the day’s proceedings and make changes as needed is another essential criteria.  A consultant should be able to edit demonstrative graphics, create new graphics and do it timely.  The certification process should take a prospective consultant through a variety of situations with the real world pressure of limited time.  This would not only pertain to graphics but also video and audio edits, document pretreatment and the introduction of new evidence into the system.

The real question that has yet to be answered is who should govern and administer the certification.  The NCRA has been suggested and I would strongly disagree with this.  The certification processes should be aligned with an appropriate association and should allow for easy access to the program.  Prospective consultants shouldn’t have to travel cross country and pay large amounts of money.  The certification process shouldn’t take more than a day.  The focus is to certify the skills and not teach them.  From experience I will say that on any given day of trial a consultant will need to use all of their skills and expertise.

Trial Technology: Buying justice or going the extra mile for the jury?

In America today we are an overwhelmingly multimedia society and I don’t think there would be any disagreement.  That being the case, why are some lawyers still fearful that the jury will see trial technology as buying justice or creating the image that their client has money?  The reality of trial technology is that jurors appreciate it and often times, expect it.  There are many advantages of trial technology and I don’t suggest that it is the only presentation methodology that should be utilized in the courtroom.  Technology does however have distinct benefits that only come with its use.  Rather than going through a laundry list of the pros and cons of trial technology, let’s look at it from the perspective of what issues it solves or alleviate. 

From a jurors perspective what are the top three main complaints that seem to be a staple in most cases?  From our post verdict research the top complaint is boredom.  The use of trial technology has a component of entertainment.  Moreover, the delivery of information via a computer screen or projector is a familiar medium with today’s jurors, regardless of age.  Yet, often times I hear from our clients that a particular jurisdiction has a higher percentage of elderly and that technology is not the way to go.  I strongly disagree with that position.  Technology touches every segment of our society and is just as prevalent with seniors as it is with middle aged America.  Presentation software such as Trial Director and even PowerPoint have features that mimic television flash and effect.  Trial Director has a variety of document callout effects that are basically identical to Dateline and other television newsmagazines productions.  Another feature inData has incorporated into their product is video clip fade.  This features provides a more polished and professional presentation, again similar to television newsmagazines.  These features provide excitement to what is otherwise dry and boring information.  The key with any presentation is to mix it up.  Too much of anything is not good and will desensitize jurors.  Trial technology with all of its features and effects provide trial attorneys with the tools to make their case more interesting and fresh.  Keeping the jury engaged in any length trial can be difficult.  Proper use of technology in trial will keep the jurors focused on your case and not looking for distractions to ease their pain of boredom. 

The second main stay in juror complaints is the lack of understanding in the subject matter of a case.  Using technology to teach is prevalent in our class rooms and corporate training alike.  Trial attorneys who take the time and effort to educate jurors have a leg up on their opposing counsel.  How exactly does trial technology aid in education?  The key aspect is the ability to narrow down the information and direct jurors to the particular aspects of the evidence that are most relevant.  Many cases have thousands of pages of discovery documents but the reality is that only a small portion of the total will be used at trial.  Although attorneys and professionals in the legal industry may think it is a small portion, to jurors it is in all likelihood potentially overwhelming amounts of information.  The use of technology allows lawyers to present more information rather than less.  It is the details of particular documents, other evidence and demonstrative aides that weave the threads in any case.  Jurors can get lost in the information and be confused by focusing on irrelevant parts of the evidence.  The ability to focus on key parts of the evidence simplifies the case and facts for jurors.  One of the most effective uses of technology to educate the jury is a multimedia approach and in particular using a timeline on a large board.  The timeline gives the jury a comprehensive picture of the events and the sequence in which they occurred.  Combine this then with the use the technology to support and prove the timeline entries with evidence.  Whether it is from documents, testimony, admissions or omissions of a party, these elements tie into the timeline and take it from a demonstrative to a case blueprint. 

The third most frequent complaint is lack of organization.  Attorneys who are not organized or take excessive amounts of time to present evidence often anger jurors.  One such case in particular comes to mind.  A couple of years ago I was working for the defense on a medical malpractice case.  The plaintiff went down that all too familiar road of, “We are not some big company with lots of money to spend on technology.  We are here for justice for our client who doesn’t have the financial resources to put all of these fancy computers in here.”  This tactic did not help his case at all.  The attorney was constantly looking for documents and transcripts, fumbling through boards for the right one.   The plaintiff then had the need to play a video deposition for the jury.  His assistant carries in a chair and a CRT television with built in DVD player.  The assistant, a large man in a sports coat, proceeds to bend over stretching out his jacket to the sides with his back to the jury about two feet from the rail of the jury box.  After this unimpressive presentation the jurors began their deliberations.  Within one hour they returned with a defense verdict.  After the jury was released I surveyed the jurors about the case and remarkably all jurors commented on the plaintiff’s lack of organization and how smooth the defense was.  They further went on to express their utter disgust with the plaintiff’s counsel and in particular his assistant’s presentation of the video deposition.  Two of the six jurors stated that, “that man sticking his **** in our face was disgusting.”  While technology is not the only way to organize your case, it is without doubt the most seamless and effective.

These three common issues with jurors, boredom, lack of understand, disorganization and the use of technology to eliminate or avoid them is not a matter of law per se.  What this demonstrates is that often time’s jurors go outside the evidence and look towards tangential factors in rendering their verdicts.  Often, these tangential factors are not the reason for their position on the case, but add to the magnitude and fervor they have in their position in deliberations. 

Getting Personal with the Jury

After a jury has been sat, is there any benefit of researching these individuals online further?  Yes, there is.  As I mentioned in my previous blog, social networking sites, blogs, twitter and the plethora of information that individuals post is today’s modern diary.  Researching jurors online gives insight into how best to present your case.  Trial attorneys have to opportunity to draw on this personal information to better analogize, give examples and ultimately, effectively communicate to the jurors.  There was a recent news article about a family who went on vacation.  The husband was twittering about his vacation and giving daily updates as to their location, activities and impressions.  The end result in this instance was there home was robbed.   While this has nothing to do with trial, it does tell us that people are posting personal information and people are watching it. 

Let’s look at this example from a different perspective.  Let’s assume this man is a juror and not a robbery victim.  You research and you learn of his recent trip.  Perhaps you incorporate that into you opening or closing.  You tell the jurors that this case is like a road trip and you correlate your legal issue to the trip.  You now have a friend on the jury.

Another example is one of my colleagues in the office is in the process of buying his first home.  So I decided to check out his MySpace page.  Sure enough, he has documented his journey to home ownership.  Talking about the volume of paper work, the excitement of completing the paperwork, the frustration because something was missed, the joy of doing his final walk through and the anticipation of the closing.  Again, another example of a significant personal experience that is online and ten or fifteen years ago was not easily obtained.  I know in the past, some attorneys have hired private investigators to glean such information about jurors.

While the real down fall in all of this is that you are not going to be able to research and find a common thread for all jurors.  On the other hand, it is generally one or two jurors who really lead the charge in coming to the verdict.  Often times we see this in the mock trials and focus groups we conduct.  At trial, we are more often than not, able to figure out who will be the foreman, or forewomen of the jury. 

Insight into an individual’s personal life is extremely valuable.  When I was in my early twenty’s I had the opportunity to sell for Xerox and attended their sales training, which at the time was world class.  One of the fundamental concepts they taught was to relate to your prospective clients.  Ask questions about them and their lives and incorporate that into your meeting.  The purpose was to have that prospect identify with you and to formulate a more personal relationship.  To this day I continue with that.  I will research attorneys that I will be meeting with.  I find out where they went to school, their families and any other information I can get online.  I then use that to connect with him or her.  It may be something as simple as my sister went to the same college they did or perhaps they were born close to my home town.  This helps break the ice and make them feel comfortable with me.

This same fundamental principle applies in the courtroom.  A good trial lawyer sells his case to the jury, even if they don’t like to admit it.  I always encourage our clients to tailor their presentations to be appropriate for their jury and the location. 

I will give one final example of how impactful using personal information can be.  I have a colleague who is a huge Auburn football fan; actually huge fan is an understatement.  I have never seen someone warm up to a complete stranger as he does when he discovers someone went to Auburn or is a fan.  His demeanor changes, he opens up and listens and he identifies with that complete stranger.  His whole attitude changes and he will agree with his new friend on the same issues he disagreed with me on two days earlier. 

The internet is a gold mine of information if it is vetted and used properly.  The continuous monitoring of online information should be as common as getting a daily transcript when in trial.  This information should be part of sitting a jury, communicating with a jury and monitoring a jury, which will be in my next post.

Taking Voir Dire Online

Remember when personal information and secrets were kept in a diary?   What if you could look at a potential jurors’ personal diary?  In a way you can.  Aspects of online social networking sites are the modern day version of the diary.  Individuals document their daily experiences, moods, attitudes and a plethora of other valuable information, including biases.  This information can be crucial when picking a jury.  An article in Lawyers USA Online¹ cites a Pew research study that claims the number of adults using online social networking sites has quadrupled over the past four years.  The study also goes on to claim that as many as 35% of adults now have online profiles or diaries.  Now when I was young, my Mom would tell me to stay out of my sister’s diary.  Is my Mom right, should attorneys stay out of jurors’ online profiles or online information in general?   While Facebook and Myspace profiles are generally more intimate personal information, the internet in general, can provide insight into jurors’ minds that can win or lose a case.  Some claim that it is unethical to research jurors online, while others argue online information is public and should be used in whatever manner is useful.

Let’s look at it this way.  You’re a criminal defense attorney representing a white male for the murder of a minority.  You conduct what I will refer to as a conventional voir dire and you sit a jury.  After a day or two of trial you noticed one of the jurors seems very angry towards your client.  Her name is Erin and when you Google her you find that she is a blogger.  On her site you find a string of posts.  One such post, on September 28 is entitled, "I will eat your babies, ****!" In her post, she states that she is terrified of white people because, "I am pretty sure they all gang rapists."   She goes on to state, "I totally understand how innocent people that go to prison turn into hardened criminals.”  Then, on the 31st, another post, "I am a juror," and it is your trial.   Anne Reed a jury consultant gave this example in a May 2009 Legal Technology² article.  Neither Reeds example nor Erin’s blogged stated the type of case, but her blog did state, “i can't wait to decide the lives and deaths of men tomorrow³.”   As an attorney, when would you want to find out about Erin’s views? 

Now as with most things in life you can’t judge a book by its cover.  Often time online personas are not a true representation of an individual.  Many people are online for fantasy and the information you find online may be a pitfall.  As with all research, the information collected must be critically analyzed and put into the proper context.  When you are vetting prospective jurors the same rules apply, it is prudent to use all available resources and to properly analyze your data.  In my experience every avenue you look down will provide some good and bad information.  Without critical analysis you cannot confidently rely on information.  Online social networking sites are one such avenue.  Other avenues include blogs, editorial pieces, organizational memberships and support groups. 

Regardless of the research conducted, the main qualities that are most useful are biases, identifications, motivations and influencing experiences.  Biases are identified in many ways.  There is the obvious bias that states a persons’ position clearly.  Erin stated it very clearly in her distrust of white people.  Although her statement is offered as a phobia, her statement is clear.  Again, this must be critically analyzed.  If you visit her blog site, she has a picture and she appears to be a white woman.  This presents a potential contradiction of information which may be a pitfall. 

Individual identifications are generally revealed through memberships in organizations such as the Sierra Club or support groups.  What an individual identifies with may reveal crucial positions and additional biases.  If I was sitting a jury for an environmental defense case, I would not want members of the Sierra Club on that jury.  While traditional voir dire does provide an avenue to flush out this information, not all people are always honest.  Moreover, if an individual has a strong identity with a particular organization, they may have an agenda, therefore the motivation to be dishonest.  In this example, online searching provides a critical analysis for the voir dire information obtained.  The juror may explain in voir dire that they are not a member of any organizations or associations, but the web might tell a different story.

Motivation is generally difficult to discover.  If a person is a member of the Sierra Club, what is their motivation for being a member?  People align and identify with causes or movements for different reasons.  It may be that a person wants to help save the planet, or it may be they have an ax to grind against big business.  Perhaps there was an influencing experience that may reveal the motivation.  Maybe a family member died of cancer and there was contaminated drinking water in the home from a nearby plant.  Often times these experiences are documented in online profiles, just like my sister’s diary.

As the saying goes, knowledge is power.  In 2009 the knowledge gained from online social networking sites and the web in general provides an invaluable resource.  I would argue that if you are not researching potential jurors online as an avenue to help win your case, you are certainly stacking the cards against your client.  Odds are, the opposing counsel is looking to harness the power of online information about jurors.  Next time you are selecting a jury, take a look across the courtroom.

1-http://lawyersusaonline.com/blog/2009/03/03/what-jurors%e2%80%99-web-presence-says-about-them/
2-http://www.law.com/jsp/legaltechnology/PubArticleFriendlyLT.jsp?id=1202423725315
3-This blog post can be found at http://oakparkmastermind.blogspot.com/2007/10/i-am-juror.html