Category Archives: Experts

Observations On Gerry Spence’s Witness Examination Technique.

30 Wednesday Dec 2015

Posted by in Cross-Examination, Direct Examination, Experts, Litigation, Storytelling, Trial Tips and Techniques

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Gerry Spence Witness Examination Excerpts, by Paul Luvera, Plaintiff Trial Lawyer Tips

http://plaintifftriallawyertips.com/gerry-spence-witness-examination-excerpts

In 1985, a man was shot dead on a rural road in Lincoln County, Ore. A teenage boy and his mother were indicted for the crime. Gerry Spence took on both cases for the defense pro bono and faced off against a young prosecutor named Joshua Marquis in the juvenile’s trial; the attorneys did not take a shine to each other. So contentious was the trial that they both ended up before the Oregon State Bar. A special report in the bar matter described their relationship as ‘reveal[ing] a degree of hostility and vituperation unique in our experience.’ The bar charges were dismissed, but the animosity remained. Spence wrote a book about the Oregon trials The Smoking Gun.

I was at the courthouse in Portland during a day or two of this trial. I was able to spend some time with Gerry and his partner during recess. He did an amazing job of obtaining an acquittal for his client. I have part of the transcript of that trial. I recently re-read Gerry’s examination of the polygraph operator from that trial. Gerry’s position was the accuser, wife of the deceased, was actually the one who accidentally shot her own husband and then blamed his client who was a neighbor.  He called the polygraph operator to show the accuser had failed the polygraph test. I’m setting out a few illustrations from that transcript for your consideration.

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Top Witness Preparation Tips for Litigators.

24 Wednesday Dec 2014

Posted by in Experts, Litigation, Trial Tips and Techniques, Witnesses

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The Top 14 Testimony Tips for Litigators and Expert Witnesses, posted by Ryan Flax, The Litigation Consulting Report

http://tinyurl.com/me7elwo

Litigators and their witnesses are confronted with difficult situations during testimony, and it’s nice to have reliable ways out of those sticky situations.

Expert witnesses are engaged to provide their expert insight and opinions supporting their client’s case during testimony and are there to tell the truth to the best of their knowledge when questioned at trial or deposition.

Litigators get paid to ask good and, at times, tough questions to get desired answers from the opposition’s witnesses and to help their own witnesses do their best.

During both courtroom testimony and in depositions there are common situations where an attorney tries to make things difficult for the witness. Below, I identify 14 of these common situations and provide some good strategies, both from my own experience as a litigator and from tips collected from attorneys and expert witnesses. Consider the points below when advising and preparing your witnesses for trial and depositions. . . .

Using Location And Time To Exonerate Or Implicate.

26 Wednesday Nov 2014

Posted by in Android Phones, Blackberry Phones, Cell Phones, Criminal Law, Evidence, Experts, Forensic Expert Witness, iPad, iPhones, Legal Technology, Trial Tips and Techniques

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Location. Location. Location., by Craig Ball, Ball In Your Court Blog

http://tinyurl.com/mq2u5zv

Okay, you have to admit that it’s pretty cool when a judge calls to pick your brain! – CCE 

I’m peripatetic. My stuff lives in Austin; but, I’m in a different city every few days. Lately looking for a new place for my stuff to await my return, I’m reminded of the first three rules of real estate investing: 1. Location; 2. Location and 3. Location.

Location has long been crucial in trial, too: ‘So, you claim you were at home alone on the night of November 25, 2014 when this heinous crime was committed! Is that what you expect this jury to believe?’ If you can pinpoint people’s locations at particular times, you can solve crimes. If you have precise geolocation data, you can calculate speed, turn up trysts, prove impairment and even show who had the green light. Location and time are powerful tools to implicate and exonerate.

A judge called today to inquire about ways in which cell phones track and store geolocation data. He wanted to know what information is recoverable from a seized phone.  I answered that, depending upon the model and its usage, a great deal of geolocation data may emerge, most of it not tied to making phone calls. Tons of geolocation data persist both within and without phones.

Cell phones have always been trackable by virtue of their essential communication with cell tower sites. . . .

Dueling Experts – Which One Will The Jury Believe?

25 Saturday Oct 2014

Posted by in Experts, Jury Persuasion, Trial Tips and Techniques

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What Happens When A Juror Agrees [Or Disagrees] With Your Expert Witness?, by Douglas Keene, The Jury Room Blog

http://tinyurl.com/nl3tpto

Mock jurors love to hate dueling experts who give them conflicting information regarding causation, liability, reasonableness, damages, etc. They also don’t appreciate expert witnesses who use jargon or speak so simply that jurors feel ‘talked down to’—but you already know that. What jurors want is to learn what is reliable and useful to resolve the dispute. And attorneys watching mock jurors deliberate often indignantly retort, ‘That is not what the witness said!’—as though the juror simply needed to have the testimony repeated. The research we’re about to describe explains why jurors hear what they hear instead of hearing what the expert actually said. . . .

Government Can Access Individual’s Gmail Account In Money Laundering Probe.

27 Sunday Jul 2014

Posted by in Android Phones, Appellate Law, Apple, Blackberry Phones, Cell Phones, Computer Forensics, Crime Scene Investigation, Criminal Law, Cybersecurity, Discovery, E-Discovery, Emails, Evidence, Experts, Forensic Evidence, Forensic Evidence, Forensic Expert Witness, Fourth Amendment - Search & Seizure, Google, Internet, iPad, iPhones, Legal Technology, Mac, PC Computers, Privacy, Search Warrants, Tablets, Trial Tips and Techniques, U.S. District Court for the District of Columbia, U.S. District Court for the Southern District of New York

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Federal Judge Rules Gmail Account Can Be Accessed For Investigation, by evanino in Evanino Blog

http://www.evanino.com/federal-judge-rules-gmail-account-can-accessed-investigation/

In a landmark ruling that might fuel a nationwide debate, the New York Court issued a warrant against Google, giving access to user emails.

A New York Court issued a warrant against Google Inc ruling that the government can access all mails of a Gmail account of an individual under a money laundering probe. The judge said that courts have long been waiting for law enforcement to take the required documents in the custody if it is within the purview of the warrant.

Contrary to previous rulings

This decision is not in line with the previous court rulings including courts in the Districts of Columbia and Kansas, Magistrate Judge Gabriel W. Gorenstein of the U.S. District Court for the Southern District of New York noted on Friday. Also, this latest ruling will spark a debate over the privacy, in the country, according to Computer World.

A District of Columbia judge denied from revealing the entire content of the email as this will seize a large amount of emails for which the authorities have not given any reason.

The Court in Kansas, also, did not rule in favor of a similar warrant, stating that it failed to ‘limit the universe of electronic communications and information to be turned over to the government to the specific crimes being investigated.’

However, the New York Court ruled in favor of such warrant, allowing authorities to take into account the emails and other information from a Google inc’s Gmail account, including the address book and draft mails, and also the authority to search the emails for certain specific categories of evidence.

Experts must scan emails, not Google employee

Judge Gorenstein argued that it is not possible to search the hard-disk drives of computers and other storage devices on the spot due to the complexities of electronic searches. Thus, the authorities can seize such storage.

‘We perceive no constitutionally significant difference between the searches of hard drives just discussed and searches of email accounts,’ the judge wrote. He added that in most of the cases data in an email account will be less ‘expansive’ compared to the information contained in the hard drive.

Judge Gorenstein stated that Google employees are not expert enough to know the importance of particular emails without having been given proper training in the substance of the investigation. Judge said this in response to an opinion by the District of Columbia court that gave the government the option of getting the email scanned by the host itself.

He said that an agent, who is completely absorbed in the investigation, will be able to understand the importance of a particular language in emails contrary to the employee.

Direct and Cross-Examination – Links, Tips, and Resources.

13 Sunday Jul 2014

Posted by in Child Witnesses, Cross-Examination, Direct Examination, Experts, Making Objections, Trial Tips and Techniques, Witnesses

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Examination and Cross-Examination: Getting the Facts, Trial Practice Skills, Pace Law Library

http://libraryguides.law.pace.edu/content.php?pid=149008&sid=1265851

Links on Direct Examination, Cross-Examination, Examining Expert Witnesses, Child Witnesses, and other related links. -CCE

Powerful PowerPoint Courtroom Presentations.

27 Sunday Apr 2014

Posted by in Closing Argument, Experts, Jury Persuasion, Legal Technology, Opening Argument, PowerPoint, Presentations, Technology, Trial Tips and Techniques

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Adding Power to Courtroom Presentations, posted by Elliott Wilcox, TrialTheater Blog

http://tinyurl.com/lddsa49

I ran across this blog today, and I like what I see. PowerPoint is a powerful tool. Like you, I have seen far too many poor presentations.

A good power PointPresentation is an art. It doesn’t just happen. If you have never bothered to find out whether there are guidelines or rules for a good PowerPoint presentation, then you may be guilty, regardless of how witty, entertaining, or persuasive you think you are.

Take some time to read all you can about what makes a good presentation. Do not read your slides. Instead, let them compliment what you say or let them be the “punchline” to your idea. Pay attention to font size. Resist the temptation to fade in, face out, and use dancing graphics that scamper across the screen in every slide.

This post from TrialTheater will tell you how.  Please also note that there are additional posts listed at the end that are also interesting. This is a blog I plan to watch more closely. –CCE

The lights dim, and the first slide appears. You think to yourself, “Oh no, another boring PowerPoint presentation.” The first line of text soars in from the left, each character twirling and dancing across the screen. You count eleven bullet points on the first screen (the shortest of which is sixteen words long). The second slide is even more confusing. The third is a picture of his kids. Fortunately, the room is dark, so no one notices as you start to fall asleep…

Why are most PowerPoint presentations so dreadful? When was the last time you saw a presentation that was actually enhanced by PowerPoint? The reason PowerPoint decimates the effectiveness of most presentations is because the presenters don’t understand how or why to use it. But, when you need to illustrate a point in the courtroom, PowerPoint can be a tremendous addition to your trial skills toolbox. This article will give you tips for improving your presentations, both inside and outside the courtroom. . . . .

Why Isn’t The Judge Listening?

16 Wednesday Apr 2014

Posted by in Closing Argument, Experts, Jury Persuasion, Legal Analysis, Legal Argument, Opening Argument, Trial Tips and Techniques

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Experts: Keep It Comparative, by Dr. Ken Broda-Bahm, Persuasive Litigator Blog

http://tinyurl.com/n3hovpy

The expert has prepared thoroughly for her testimony before the judge. She knows each opinion and every foundation. The outline that counsel developed is all but memorized. But then, as she is about an hour into describing the detailed methods and conclusions, the judge’s eyes are drifting down to the table and the nods of understanding have stopped: He isn’t getting it. In itself, there is nothing in the testimony that is impossible to understand – on the contrary, it is organized and clear. But the judge seems to have disengaged. Instead of tracking with the testimony at each step, he is just hearing detail after detail and letting it wash over him.  And if there were a jury in the room, the problem would be even worse.

What went wrong?  . . . .

Like Us, Judges and Juries Get the “Munchies.”

08 Saturday Mar 2014

Posted by in Appellate Judges, Closing Argument, Cross-Examination, Defense Counsel, Direct Examination, Exhibits, Experts, Federal Judges, Judges, Jury Persuasion, Law Clerks, Litigation, Making Objections, Opening Argument, Oral Argument, Plaintiff's Counsel, Trial Tips and Techniques, Voir Dire, Witnesses

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Time Your Arguments to the Judge’s Lunch Breaks (and Adapt to All Decision Makers’ “Cognitive Load”), by  Dr. Ken Broda-Bahm, Persuasive Litigator  Blog

http://tinyurl.com/lebleml

It comes as no surprise that a hungry person, be it the judge or members of a jury, find it difficult to concentrate and focus on your client’s case. Long stretches of testimony and argument are hard enough to follow, especially if the case is complex with numerous exhibits and witnesses. Regardless how comfortable the chair, sitting for long periods trying to listen carefully to a case is hard work.

There is more than one way to consider your audience at a trial or hearing. Persuasive argument is one. Excellent trial preparation using technology is another. Considerate and well-timed rest and meal breaks are another tool that can be used to your advantage.

The Rocket Science Blog mentioned in this post can be found at http://tinyurl.com/3dg5e8n. – CCE

Anyone who argues in front of judges knows that human factors can weigh as heavily as the law in determining your judge’s decisions.  But it is still possible at times to be surprised at the degree of influence, as well as the banality of those human factors.  Case in point: lunch and snack breaks.  Recent research discussed in the excellent Not Exactly Rocket Science blog appears to show that judges’ decisions vary as a direct effect of the proximity of their morning snack or lunch break.  In case you are using your morning break or lunch hour to read this post, I’d like to make it worth your while by applying the study findings to the more general issue of your decision-makers’ mental work load and offering some recommendations for anyone who needs to make arguments to a potentially fatigued audience. . . .

Craig Ball On Being A Digital Forensic Witness.

03 Monday Mar 2014

Posted by in Affidavits, Cross-Examination, Depositions, Direct Examination, Discovery, E-Discovery, Evidence, Exhibits, Expert Witness Report, Expert Witnesses, Experts, Forensic Expert Witness, Hearsay, Legal Technology, Legal Writing, Trial Tips and Techniques

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Becoming a Better Digital Forensics Witness, by Craig Ball, Ball In Your Court Blog

 http://tinyurl.com/kgm8epj

I love to testify—in court, at deposition, in declarations and affidavits—and I even like writing reports about my findings in forensic exams.

I love the challenge—the chance to mix it up with skilled interrogators, defend my opinions and help the decision makers hear what the electronic evidence tells us.  There is a compelling human drama being played out in those bits and bytes, and computer forensic examiners are the fortunate few who get to tell the story.  It’s our privilege to help the finders of fact understand the digital evidence.[1]

This post is written for computer forensic examiners and outlines ways to become a more effective witness and common pitfalls you can avoid.  But the advice offered applies as well to almost anyone who takes the stand. . . .

. . .

Lawyers — First Impressions Stick!

02 Sunday Mar 2014

Posted by in Closing Argument, Cross-Examination, Direct Examination, Exhibits, Experts, Jury Persuasion, Jury Selection, Litigation, Making Objections, Mock Trials, Opening Argument, Plaintiff's Counsel, Trial Tips and Techniques, Voir Dire, Witnesses

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Expect First Impressions to be Carved in Stone, by Dr. Ken Broda-Bahm, Persuasive Litigator Blog

http://tinyurl.com/org7why

Please note additional links on first impressions, overcoming bad impressions, and using visual images to create a first impression at the bottom of this post at the Persuasive Litigator website. -CCE

We’ve all heard the old saying: You never get a second chance to make a first impression. It is true that when meeting someone new, our brain is quickly putting them into a number of categories. Their background, intelligence, friendliness, attitudes, trustworthiness, and a myriad of other aspects of character are all on their way to being locked into some pretty durable assumptions. In a legal setting, where a juror is reacting to a witness on the stand for example, we might want those credibility determinations to be made over time, informed by the full scope of the testimony. But don’t count on it. . . . 

More On Why Lawsuits Are So Expensive.

22 Saturday Feb 2014

Posted by in Cross-Examination, Damages, Exhibits, Experts, Litigation, Motor Vehicle, Personal Injury, Plaintiff's Counsel, Product Liability, Trial Tips and Techniques, Video Deposition, Witnesses

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Why Lawsuits Are So Expensive, Pt. II, by Gregory H. Haubrich, Foshee & Yafee, Butter’s Blog

http://greghaubrich.com/2014/02/13/why-lawsuits-are-so-expensive-pt-ii/

In my previous edition of Butter’s Blog, Part I explored why lawsuits are so expensive. In Part II, we are going to break down the costs of getting your case to trial. To get a rough estimate of what your law firm may spend handling the case,  we must first look at what kind of case it is.

Latest Ninth Circuit Decision on Rule 26 Discovery From Testifying Experts.

16 Sunday Feb 2014

Posted by in Appellate Law, Attorney Work Product, Court Rules, Court Rules, Discovery, Evidence, Expert Witness, Experts, Federal District Court Rules, Federal Rules of Evidence, Requests for Production, Rule 26, Trial Tips and Techniques

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Ninth Circuit Rules on Scope of Discovery from Testifying Experts, by Michael Kelleher, Cogent Legal Blog

http://tinyurl.com/knvhgv2

[A] new Ninth Circuit decision about the scope of expert discovery in federal court caught our attention. The decision in Republic of Ecuador v. Mackay, No. 12-15572 (9th Cir. Jan. 31, 2014) poses the question: where the expert has served both as a confidential advisor to counsel and as a testifying expert, may counsel withhold documents shared with the expert by asserting an opinion work product objection? The short answer is no—documents from testifying experts must be produced unless protected by Federal Rule of Civil Procedure 26(b)(4).

Experienced Trial Attorney Shares The Risks and Rewards Of Personal Injury Lawsuits.

03 Monday Feb 2014

Posted by in Depositions, Discovery, Expert Witness, Experts, Health Law, Law Office Management, Litigation, Medical Malpractice, Personal Injury, Trial Tips and Techniques

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Why Lawsuits Are So Expensive, Pt. I, by Gregory H. Haubrich, Foshee & Yaffe, Butter’s Blog

http://tinyurl.com/mgq7pnl

You’d be surprised at how careful good personal injury lawyers are about what cases they take. In general the public thinks that we can take any person with any complaint and get them some of what our governor calls “jackpot justice.” In truth, the economics of our practice and the ethics of our profession require that we only take cases of serious injury that are objectively provable. We as plaintiff’s lawyers most often fund the expenses of our clients’ cases; otherwise they would not have access to the courts because court cases are expensive. However, if we invest in unsuccessful cases, the time and money we put into those cases will be lost.

Courtroom Body Language – How to Read It and Use It In Court.

04 Saturday Jan 2014

Posted by in Closing Argument, Cross-Examination, Direct Examination, Experts, Judges, Jury Selection, Opening Argument, Trial Tips and Techniques, Voir Dire, Witness Preparation

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Tips For Reading And Managing Courtroom Body Language, by Legal Skills Prof, Legal Skills Prof Blog

http://tinyurl.com/k7uxpr7

The most brilliant trial attorneys seem to have a natural instinct for reading people, knowing intuitively what a nod from a juror or glance from a judge implies. For the rest of us, there’s this handy cheat sheet that breaks down some of the most common body language exhibited in the courtroom. You can use it to modulate your own behavior, train your client, or gain additional insight into opposing counsel, judge and jury.

Handwriting Expert’s Report and Testimony Are Inadmissible Under Daubert/Rule 702 Test.

17 Sunday Nov 2013

Posted by in Admissibility, Court Rules, Evidence, Experts, Trial Tips and Techniques

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Hand of One: Western District of Wisconsin Finds Handwriting Expert Testimony/Report Inadmissible, by Evidence ProfBlogger, EvidenceProf Blog

http://tinyurl.com/pmkmalc

 

American Jury System – The Optimal Jury Trial Videos

01 Friday Nov 2013

Posted by in Experts, Jury Instructions, Jury Selection, Trial Tips and Techniques, Voir Dire

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Favorite Thing: American Jury System – The Optimal Jury Trial Videos, submitted by Susie Macpherson of NJP Litigation Consulting, ASTC Member Trial Consultants from The Jury Expert
http://perma.cc/0Z3TkwVQy6Z

Impressive collection of resources for judges and attorneys. CCE

These videos are a great resource for attorneys and judges who want to investigate any of these topics, or for those who need ‘hands on’ examples to encourage other judges and attorneys to implement new procedures.”

Trial Technique Courtroom Tips

25 Friday Oct 2013

Posted by in Direct Examination, Experts, Jury Selection, Legal Technology, Trial Tips and Techniques, Witness Preparation

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TRIAL TECHNIQUES: What lawyers should (and shouldn’t) worry about in the courtroom, by Alexandra Rudolph, WisLawJournal.com
http://bit.ly/uDFH17