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Audio-Visual Nightmares at Trial: How to Avoid Losing Your Audience0

24 June 2014

Imagine a scenario in which you are a trial attorney and finally in front of a jury in a case that has consumed your life for a long time.  Your case is building to an important crescendo. You have planned this moment for years, spent countless hours of time and money preparing for it and just when you tell your AV technician to “hit play,” nothing happens. The screen goes black and the system completely shuts down. Not only has your system crashed, the person helping you is at a loss… what do you do? The moment is lost forever and you’ve lost the momentum, the jury’s attention and your credibility not only with the jury but with your client as well. Instead of hitting a home run, you and your team now look incompetent, unprepared, and the Judge and Jury begin to lose patience with you for wasting precious time - all of which could cost you your case.

Case in point:  In February 2014, I was hired as the technical specialist by a trial team representing the plaintiff on an insurance case in Houston, TX.  In an attempt to save money, instead of using an experienced trial technology specialist, the insurance company’s trial team decided their paralegal could display their evidence to the jury. During the third day of trial, just as opposing counsel was going to play the rebuttal video of one of their most important witnesses, the defense experienced a technical breakdown with their computer. During the next few extremely uncomfortable moments of scrambling, trying to resolve the problem at hand, and the paralegal attempting to “troubleshoot,” the problem, the Judge finally lost patience and asked me (the opposing technology specialist), if I could display their documents and video for them in order to keep from wasting the court’s and the jury’s time. As an experienced trial technician, I knew exactly what to do and was able to resolve the problem. The whole breakdown in technology only happened because the defense was using a paralegal instead of an experienced technician and it came across negatively to the Judge and Jury. It’s hard to imagine how defense counsel’s client felt, how defense counsel felt, the impact this breakdown had on the defense team’s morale and what they would have done if I hadn’t been there and been willing to assist.

Lesson learned… it takes more than “learning a program” to be able present evidence to a jury smoothly and seamlessly.  You need to have trial presentation experience, you need to be technically savvy and you must be able to anticipate potential problems, have redundancies in place and the knowledge to resolve technical issues quickly and imperceptibly while under pressure. After spending a lot of money preparing your case, it is a dangerous gamble to take short cuts when preparing the technological side of your case. Don’t let this happen to you.


Thinking About Your Case from a Juror Perspective

06 June 2014

Evaluating a case calls for a deep understanding of the law, access to appropriate archival data, financial and statistical analyses, and a heavy dose of real world experience and good judgment. But in any given matter there can be issues that are so unique that the case is simply not amenable to a rational analysis of archival data. In these circumstances there is no substitute for asking mock jurors to weigh in through some form of trial research, be it a mock trial, a cost-effective online study, an issues-targeted focus group, or simply an evaluation of a witness’s mock testimony. Many research designs and methods exist at multiple price points, any one of which is likely to be less costly than a wrong prediction. But what if there simply are not enough resources for any kind of research?  Our answer is that you can still enhance your case valuation by thinking about your case from a juror perspective.

 

Understanding how jurors think begins with acknowledging what jurors want.  Thousands of post-trial interviews have confirmed for us that jurors are principally motivated to make the “right” decision – a moral decision that creates a more just world.  But jurors don’t know the law, and they don’t trust the parties or their attorneys or expert witnesses, so how are they going to make the right decision?  They fall back on the methods they use to deal with uncertainty when making decisions in everyday life. They make moralistic, rather than legalistic, evaluations of individuals’ conduct in order to identify who to trust, who to support, and who “needs to be taught a lesson”.

 

Jurors go about evaluating the conduct of any given party by examining the choices made in light of the duties and obligations that were owed, and what was either known, or should have been known at the time. Were their choices reasonable, or at least understandable?  Or were those choices motivated by selfishness, or were they simply the result of carelessness? Jurors use these moralistic evaluations of conduct as a foundation upon which to construct their own story line, or narrative framework, within which the key “actors” in the story of the lawsuit play out their good or bad intentions. These narrative frameworks provide a context within which the evidence is interpreted and stored in their memory. As such, identifying and understanding what narratives a fact pattern is likely to inspire in the minds of jurors is central to evaluating a case from a juror perspective.2This goal is best achieved through research involving mock juror respondents; however, it can also be addressed and discussed by counsel and the claims professionals evaluating a case.  Remember that jurors are making moral evaluations of the motives and choices of the key actors in the story of the lawsuit. They feel their job is to find someone who needs to be taught a lesson.  If you cannot construct a reasonable story wherein your opponent is the one who needs to be taught the lesson, you may be the one who the jury “teaches”.  

 

2 For more on Narrative Theory see Routledge Encyclopedia of Narrative Theory by David Herman, Narratology: An Introduction to Narrative Theory by Mieke Bal, What Stories Are: Narrative Theory and Interpretation by Thomas M. Leitch.


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