Ryan H. Flax, (Former) Managing Director, Litigation Consulting
A2 Consulting is proud to release its largest e-book to date – the BIG Litigation E-Book for Litigators and Litigation Support. With more than 75 pages of specific, litigation-focused content drawn from actual trials, this book contains a wealth of valuable information for any litigator. While the book is geared toward litigators trying big cases – those with $10 million or more at stake – there is something here for all litigators. We think it’s invaluable for anyone who is conducting a trial before a jury or judge, in federal or state court. In more than 25 articles, the courtroom experts at A2L cover such topics as storytelling for litigators, mock testing of litigation graphics and arguments, making great opening statements, researching your judge, preparing timelines, and working with the difficult expert witness.
I want our readers to be among the first to hear some good news and download a free copy of a useful guidebook. A2L Consulting was voted a Best Demonstrative Evidence Provider by the readers of the National Law Journal. We are very proud. It's the second time in less than a year we have been honored with a similar distinction. At the end of 2011, the readers of LegalTimes also voted and named A2L the Best Demonstrative Evidence provider. I believe that this guide just published by the National Law Journal is a valuable one to keep. We all know one thing about litigation: you only get one shot to get it right, and thus it is critical to hire the right support team. The NLJ's best of guide is a good guidebook for anyone looking to hire a litigation support firm or other legal services firm. Frankly, it's a credible reader-driven survey that's been missing for a long time. I think the NLJ's work is especially reliable and useful since over 450 companies were nominated and votes were only tallied for known members of the legal industry. Below is a link to download the guidebook. I hope you'll take a moment to leave a comment below or ask a question. Thank you for your support of A2L Consulting and The Litigation Consulting Report.
Whenever a litigation team presents a document in a graphic way to the jury or other fact-finder at trial, there is an occasion for a document call-out. A “document call-out” is a term of art that means taking a document that is in evidence at trial and highlighting some key portion of it for easy reading and to draw the viewer's attention to the key language.
Indata's Trial Director has become the dominant trial presentation specialty software, second only to PowerPoint in courtroom use. It is a powerful tool that is available to trial lawyers and to litigation consultants and represents the state of the art.
The old-fashioned deposition, with the court reporter recording every word and producing a written transcript, is giving way to the video deposition, which permits a jury and judge to actually see the witness and get a feeling for his or her style and credibility that can’t be obtained by looking at a printed page. In addition, the witness’s body language, which was completely opaque in a written deposition, is now available to the jury.
A recent study about the best use of litigation graphics during trial reveals some new insights. This study was conducted by Persuasion Strategies, a litigation consulting firm that is part of Holland & Hart, a law firm. The study team was led by Ken Broda-Bahm, a leader in the art of visual presentation in the courtroom. With a doctorate in speech communication that emphasizes rhetoric and legal communication, Dr. Broda-Bahm is a genuine expert in jury consulting.
We often hear from clients or prospective clients that it won’t help them if they look like a big company that is attempting to overwhelm or dazzle its opponents with technology. Jurors won’t buy that sort of stuff, we are told, even from a litigant that is actually a large company.
TrialDirector, a trial presentation software package produced by InData, is an indispensable aid to the presentation of electronic and other evidence at trial. There is a reason why this product has claimed the majority of the market share for trial presentation software for more than 10 years: It can actually make it interesting for a jury or other fact-finder to listen to a witness testify about corporate balance sheets, long-ago emails, and other documents that can be fatally boring and lose the attention of the fact-finder.
by Ken Lopez As litigation consultants, jury consultants, trial technology consultants and litigation graphics consultants, we have the opportunity to share our decades of experience in over 10,000 cases, working with litigators from all major law firms, with our litigation clients every day. Clearly, this is a valuable service, and I believe great litigators become better litigators for having worked with our firm.
by Daniel Carey, Senior Trial Technician, A2L Consulting I'm in Chicago and halfway through a one-month arbitration. Seated across from me is opposing counsel. Steve Jobs would have been proud. In the conference room where the arbitration is being held, four out of five attorneys are using iPads, propped in both landscape and portrait, all with Bluetooth keyboards. A Bluetooth keyboard is a wireless keyboard, either similar to a normal wireless keyboard or a pocket-size device that projects a full-size keyboard through infrared technology onto any flat surface. In my last case, in Fairfax, Va., our counsel placed his iPad upon the ELMO (a device normally used to digitally project hard copy documents). The judge asked on the record, "Do you have an app for that?" There is an app for nearly everything these days. The world has changed, and so has my work as a trial technician. As you probably know, a trial technician (sometimes called trial consultant, trial tech or hot-seat operator) goes from trial to trial (or arbitration or hearing) providing litigation support services to the trial team. Specifically, I am normally responsible for: building the exhibit and document database prior to trial; cutting deposition clips and syncing them with a transcript; working with counsel to prep witnesses to work with an electronic presentation; setting up the war room and courtroom with electronics; working to finalize the documentary and demonstrative presentations; running the electronics in the courtroom so that any piece of evidence is accessible instantly; making on-the-fly demonstratives to be used with a witness on cross; running the demonstrative and documentary evidence presentation; All of these tasks ordinarily need to be done on little sleep, and in the trial technician profession, we are not allowed to show stress – ever. In fact, our jobs as trial technicians are to absorb stress. The same is true for technological change in our business. It is inevitable, and it is something that we must absorb. The iPad is bringing rapid change just as PowerPoint once did. It will not be long before jurors are given iPads to use throughout trial (Facebook-disabled, of course). As Peter Summerill, a Utah attorney and author of the MacLitigator blog, has written, “At trial, the iPad really shines. Trial technology should be transparent. This means that it should not appear to the jury as (1) overly flashy; or, (2) a complete headache and a distraction to the attorney. Apple has created a product which facilitates presentation of evidence without getting in the way and does so in a completely unassuming fashion.” Over the last year our technology team has pioneered ways to publish ebriefs on an iPad and to view all case documents and proposed demonstrative exhibits via an iPad app. Now I am seeing iPads spread quickly into courtrooms and arbitration rooms around the country. It is an exciting time, and it is a great time to be a trial technician and a great time to try cases.
As the Washington Business Journal recently wrote, the International Trade Commission (ITC), once an obscure federal agency, has become the epicenter of high-end international patent law in recent years. Its docket is rapidly growing, and its cases can be worth sums in the hundreds of millions or billions of dollars.
In our 16 years in the trial presentation business, and after consulting on more than 10,000 cases, we still hear litigators concerned that their trial presentation/litigation graphics might somehow look “too slick” and will distract the jurors, or will somehow focus attention on the relative wealth of our client who is able to afford “fancy graphics.” In the early 1990s, this was a valid question. No one had used PowerPoint, no one had a cell phone – let alone a smart phone -- few people had personal computers, and most of those had black screens with green text. That is no longer the case. Technology has penetrated into every part of the United States and indeed into most of the world. A 2011 report from the Pew Research Center’s Internet and American Life Project indicates that 85 percent of U.S. adults own a cellphone, 52 percent own a laptop computer, four percent own a tablet, and only nine percent do not own any of these or other devices covered in the study. Those numbers will only increase. According to Robert Gaskins, the creator of PowerPoint, more than 500 million people worldwide use PowerPoint, with over 30 million PowerPoint presentations being made every day. Trial consultant Robb Helt, at the end of a trial in rural Arkansas, was able to talk with the jurors about the use of trial presentation technology/trial techncians in their just-completed trial. Helt found that the theory that jurors are uncomfortable with technology had been “blown away” by this “down home” jury. These jurors were not only comfortable with trial presentation technology – they expected to see it.
Electronic briefs (e-Briefs) made their first appearance on the legal stage in the 1990s, but today’s e-briefs are far ahead of their predecessors in terms of technology and usability. E-briefs are electronic versions of ordinary paper-based court filings. But instead of providing lengthy, thick and repetitive appendices and materials at the end of the brief, a lawyer filing an e-brief simply inserts hyperlinks to attachments from the main document. This has many advantages, and surely at least one of these advantages changes everything you ever knew about ebriefs.
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