Category Archives: Trial Tips and Techniques

Tech Tips for Document Review, Production, and Trial.

15 Tuesday Apr 2014

Posted by in Discovery, Document Review, Exhibits, Legal Technology, Requests for Production, Subpoena Duces Tecum, Technology, Trial Tips and Techniques

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5 Tech Tips for Document Review, Production and Use at Trial, by Michael Kelleher, Cogent Legal Blog

http://tinyurl.com/kv3jy3f

Mr. Kelleher not only shares the technology tips from his recent webinar, but is kind enough to offer his e-mail address and telephone number should you have any questions. Nice guy! -CCE

On Wednesday, April 9, I gave a webinar on technology tips for document review, production and use at trial for the Law Practice Management and Technology Section of the California State Bar. We’re going to be posting a few of the tips on the blog if you missed the webinar. You can also download a PDF of the slide deck with all 25 tech tips here. I hope that these tips save you some time. Email me (michael.kelleher@cogentlegal.com) or give me a call at 510-350-7616 if you have questions about this or any other aspect of litigation technology. . . .

Using Animation At Trial.

12 Saturday Apr 2014

Posted by in Evidence, Exhibits, Jury Persuasion, Legal Technology, Litigation, Presentations, Trial Tips and Techniques

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Animate: Give Your Jurors Three Dimensions, or More, by Dr. Ken Broda-Bahm, The Persasive Litigator

http://tinyurl.com/m75du78

[I]In trial, we know that demonstrative exhibits are often seen as playing a secondary role: second to evidence and second to the verbal explanation. The higher-end animations, however, are often an even more distant second (or third, or fourth) to exhibits that can be created more simply or more cheaply. Understanding that not all, or even most, cases will be able to afford or to merit the higher-end demonstrative animations, it is still worth it to pay attention to the state of the art and to think about how this technology can be brought to bear when it matters most. The good news is that creating sophisticated graphics is easier and cheaper than it has ever been before. Laptops now surpass what the best production workstations could have created in earlier times. A skilled computer animator can take an idea from design to execution in less time and expense than you might think. . . .

Apologizing Even When It’s Not Your Client’s Fault.

30 Sunday Mar 2014

Posted by in Closing Argument, Cross-Examination, Damages, Defense Counsel, Direct Examination, Jury Instructions, Jury Persuasion, Litigation, Making Objections, Opening Argument, Settlement, Trial Tips and Techniques

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Show You’re Sorry, Even When You’re Not at Fault, by Dr. Ken Broda-Bahm, Persuasive Litigator Blog

http://tinyurl.com/ntvjm5r

[A]s we’ve noted before, letting jurors, judges, and opposing parties hear an apology can be effective when you are responsible, or are likely to be found responsible, for at least part of the damage at issue in the case. But what about when you’re not? Does that second kind of “sorry,” meaning “I recognize your loss, but without accepting responsibility for it” create a persuasive advantage as well?

According to some new research, yes, it does. . . .

Learning E-Filing and E-Docketing the Hard Way.

27 Thursday Mar 2014

Posted by in Appellate Law, Courts, E-Docketing, E-Filing, Federal District Court Rules, Technology, U.S. Court of Appeals for the Federal Circuit

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A Painful Lesson in the Pitfalls of E-Filing and E-Docketing, by Scott P. Stolley and Richard B. Phillips, Jr., Texas Appellate Watch

http://tinyurl.com/ma6head

As mandatory e-filing (and the accompanying switch to e-service, e-dockets, and e-notices) spreads across Texas, we need to adopt new standard practices to ensure that we fulfill our duties to our clients. An appeal pending in the Federal Circuit provides a cautionary tale that should not be ignored. . . .

Jury Selection – How To Recognize A Bad Apple When You See One.

27 Thursday Mar 2014

Posted by in Appellate Law, Implied Bias, Indiana Supreme Court, Jury Selection, Peremptory Challenges, Trial Tips and Techniques

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One Bad Apple Can Spoil the Whole Bunch. When Should a Juror, Not Be a Juror? by Richard A. Cook, The Barrister’s Toolbox – A Resource for Trial Advocacy

http://tinyurl.com/mv92klj

Jury selection is often where your case is won or lost. One bad juror can spoil your whole case. That one juror could lead the other jurors to render an adverse verdict, a compromise verdict or lead to gridlock and a hung jury. In civil cases, you often have limited peremptory challenges, where you can eliminate a juror without showing actual bias or other grounds for disqualification. So what exactly is the law? When is a judge obligated to grant your motion to strike a juror for cause? . . . .

Jury Verdit in Synthetic Marijuana Case.

21 Friday Mar 2014

Posted by in Criminal Law, Drug Possession, Jury Persuasion, Trial Tips and Techniques

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Jury Returns Guilty Verdicts in Synthetic Marijuana Case. by Mary Drier, Tuscaloa Today, Forensic News Daily

“A year-long investigation by several law enforcement agencies and a five-day trial results in guilty verdicts against two Michigan residents from incidents involving the sale of synthetic cannabinoids.. . .”

Jury Nullification Secret Sneaking Out Of The Bag.

16 Sunday Mar 2014

Posted by in Jury Instructions, Jury Persuasion, Jury Selection, Litigation, Trial Tips and Techniques

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Treat Nullification as a Known Option, by Dr. Ken Broda-Bahm, Persuasive Litigator

http://perma.cc/HWG4-PKHK

Jury nullification is treated as a deep and dangerous secret. The idea that a jury can decide to follow its own moral guidance instead of following the law, is the legal doctrine that dare not speak its name, at least not anywhere near a courtroom. It’s been used as ammo in the war against the drug war, led to accusations of jury tampering, and even served as the basis for a criminal indictment of a retired professor who made it a practice to hand out pamphlets about nullification in front of courthouses. As stories like these become more well-known, the official secret of jury nullification might be turning into something more like an open secret. Based on the viral success of a recent video by CPG Grey — more than 1.5 million viewers in the first month it’s been up — the knowledge of nullification might be well on the way to becoming more common than ever. . . .

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. . . .

E-Discovery Federal Rule Amendments and More.

06 Thursday Mar 2014

Posted by in Bankruptcy Law, Case Law, Court Rules, Discovery, E-Discovery, Federal District Court Rules, Federal Law, Litigation, Mandatory Law, Metadata, Preservation, Primary Law, Regulations, Research, Sanctions, State Law, Statutes, Technology, The Sedona Conference, Trial Tips and Techniques

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Category Archives: FEDERAL RULES AMENDMENTS, by Electronic Discovery, K&L Gates

http://www.ediscoverylaw.com/articles/federal-rules-amendments/

 Notice and analysis of electronic discovery federal rule amendments. You can count on this website to be updated promptly and the information and analysis is accurate. Free subscription by RSS feed.

While you are there, it is worth your time to browse the variety of information published by K&L Gates. They are experts on e-discovery. You will find, among other things:

Just poke around. I do not think you will be disappointed. -CCE

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. . . .

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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. . . . 

Google Mistrials – A Continuing Problem.

02 Sunday Mar 2014

Posted by in Internet, Juror Impeachment, Jury Instructions, Mistrials, Research, Rule 606, Trial Tips and Techniques, Verdict

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Stealing the Verdict: Eastern District of North Carolina Allows Jury Impeachment Regarding Internet Research, by Colin Miller, EvidenceProg Blog

http://tinyurl.com/mkk48a8

“Google mistrials” have been a problem for some time. Here are two examples – one in 2014 and another in 2011 — in which a juror used Internet legal research during the trial and discussed it with fellow jurors, causing a mistrial. -CCE

An emerging problem in the American justice system is jurors conducting internet research about a case, leading to the Google mistrial. And, when such research is not discovered until after trial, as in United States v. LaRoque, 2014 WL 683729 (E.D.N.C. 2012), it leads to jury impeachment.

 Mistrial by Internet A Growing Concern, By Bob Kalinowski (Staff Writer), citizensvoice.com

 http://tinyurl.com/mge3nqk

Legal experts have coined them ‘Google mistrials.’

Curious jurors seeking to conduct their own research surf the Internet about facts presented in court, bringing a halt to important court cases and tainting the outcome.

Sometimes it’s done unwittingly. Other times it’s done against a judge’s specific directions.

Litigator’s Self-Assessment Legal Writing Test.

24 Monday Feb 2014

Posted by in Bad Legal Writing, Brief Writing, Legal Writing, Legalese, Litigation, Trial Tips and Techniques

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Are You A Crappy Litigator? A Self-Assessment Test! by Mark Herrmann, Above The Law Blog (with hat tip to Raymond Ward at the (new) legal writer blog!)

http://abovethelaw.com/2014/02/are-you-a-crappy-litigator-a-self-assessment-test/

Not exactly the words I would choose to make the point, but I agree that the emphasis on short, clear sentences and paragraphs is more persuasive. -CCE

It’s so hard to judge yourself.

Deep in your soul you know that people who criticize you are idiots, and people who praise you are wise and sagacious.

How can you possibly tell if you’re any good at what you do?

I have the answer for you! I’ve created a litigators’ self-assessment test! Now you’ll know if you’re any good!

Here’s how it works: Take out the last brief you filed.

Do it. Now. You won’t learn anything if you don’t follow the rules. . . .

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.

Interesting Theory of Jury Persuasion.

22 Saturday Feb 2014

Posted by in Jury Persuasion, Trial Tips and Techniques

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Simple Jury Persuasion: The “Tainted Altruism Effect,” posted by Douglas Keene, The Jury Room Blog

http://tinyurl.com/knnu6as

People will actually see you more positively when you raise no money for charity at all than they will when you raise $1,000,000 (but skim $100,000 for yourself). Even if you said you were going to keep 10% up front and the charity really did get the $900,000! When you benefit (in any way) from your charitable activities, your altruistic acts are likely to be seen as somehow tainted by your self-interest.

There is a really nice write-up of this article at Time Magazine and therefore, we won’t focus on what the researchers did, but rather on the reason they thought tainted altruism worth investigating. It’s all about access to counter-factual information!

Interested related posts at the end of this post by Mr. Keene. -CCE

Common Presentation Mistakes.

22 Saturday Feb 2014

Posted by in Legal Technology, Presentations, Technology, Trial Tips and Techniques

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OK, So Never Start A Sentence With These 10 Words . . ., by Laura Bergells, MANIACTIVE All About Presentation

http://maniactive.com/blog/ok-so-never-start-a-sentence-with-these-10-words/536

No offense, but I recently had to leave a lecture because the speaker began every other sentence with either ‘So…’ or ‘Alright, so…’

His information may have been spectacular, but after a half hour, I felt too distracted to listen anymore. When your audience starts playing a mental drinking game based on taking a sip every time you say “so” and downing the whole glass every time you begin a sentence with the word “so” — and they’re hammered in 5 minutes — you might want to face the problem.

Saying ’so’ is so over.

Use Requests for Admission For Authentication of Trial Exhibits.

17 Monday Feb 2014

Posted by in Discovery, Exhibits, Requests for Admissions, Trial Tips and Techniques

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Using Requests for Admission to Simplify Your Case, by Evan Schaeffer, The Trial Practice Tips Blog

http://tinyurl.com/m3y82eq

I have never understood why this is not used more frequently. It saves time and aggravation for the parties and the court, especially if you want an exhibit to be part of the record. – CCE

Intolerance Is A Door That Swings Both Ways When Presenting Your Case.

17 Monday Feb 2014

Posted by in Appellate Judges, Closing Argument, Cross-Examination, Direct Examination, Federal Judges, Judges, Jury Instructions, Jury Persuasion, Jury Selection, Making Objections, Opening Argument, Oral Argument, Plaintiff's Counsel, Trial Tips and Techniques, Voir Dire, Witness Preparation, Witnesses

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Account for Ideological Intolerance, by Dr. Ken Broda-Bahm, Persuasive Litigator™

http://tinyurl.com/kovy8wo

It’s Valentine’s time again. It’s a holiday of love, but in the political world, we’re moving out of yet another debt ceiling standoff and there is no love lost between the two sides of the spectrum. Liberals point to yet another, albeit failed, attempt to hold the country’s full faith and credit hostage, while conservatives point to yet another increase in an already staggering national debt. Neither side can understand the values, arguments, and priorities of the other. And that’s just the debt. Add in social welfare programs, marriage equality, and — as the actual sign from an Arizona gun shop above testifies — gun control, and you’ve got a pretty bitter divide. Polling shows that we are politically more ‘tribal’ than ever before. As we’ve noted in earlier posts, liberals and conservatives appear to use their brains differently when assessing risk, and are resistant to applying basic empathy across the political aisles. . . .

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).

A New Theory of Hearsay – Part 2.

11 Tuesday Feb 2014

Posted by in 1st Circuit Court of Appeals, Admissibility, Criminal Law, Evidence, Federal Rules of Evidence, Hearsay, Trial Tips and Techniques, Witnesses

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A New Theory of Hearsay, Take 2: Rule 609(a)(1)(B) & Statements Offered For a Nonhearsay Purpose, by Evidence ProfBlogger (Colin Miller, Editor), EvidenceProf Blog

http://tinyurl.com/m8pcyw8

Dan is on trial for aggravated battery. He has a prior conviction for aggravated battery. After Dan testifies, the prosecution seeks to impeach him through evidence of his five year-old conviction for armed robbery. To be admissible, the evidence cannot simply satisfy Federal Rule of Evidence 403; instead, pursuant to Federal Rule of Evidence 609(a)(1)(B), the prosecution must affirmatively prove that the probative value of the conviction outweighs its prejudicial effect.

A defendant calls an alibi witness at trial. After the alibi witness testifies on direct examination, the prosecution seeks to impeach him with evidence of a prior inconsistent statement that tends to incriminate the defendant. The prior statement is hearsay and only admissible to impeach that alibi witness, not to prove the truth of the matter asserted. My question today is: Should courts apply the same modified Rule 403 analysis that they would apply in the case above?

A New Theory of Hearsay – Part 1.

11 Tuesday Feb 2014

Posted by in Admissibility, Evidence, Federal Rules of Evidence, Hearsay, Trial Tips and Techniques, Witnesses

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A New Theory of Hearsay: Incorporating Rule 403 Into the Hearsay Analysis, by Evidence ProfBlogger (Colin Miller, Editor), EvidenceProf Blog

http://tinyurl.com/m6fchaq

Federal Rule of Evidence 803 provides exceptions to the rule against hearsay that apply regardless of the availability of the hearsay declarant. Federal Rule of Evidence 804 provides exceptions to the rule against hearsay that apply if the hearsay declarant is ‘unavailable.’ As exceptions to the rule against hearsay, these Rules merely place qualifying statements beyond the scope of Federal Rule of Evidence 802. And what this means is that, like all evidence, statements falling under a hearsay exception must be relevant under Federal Rule of Evidence 401 and have a probative value that is not substantially outweighed by dangers such as the danger of unfair prejudice under Federal Rule of Evidence 403. And yet, parties almost never make Rule 403 objections to evidence offered under a hearsay exception, and courts almost never sustain such objections. Why?

Jury Consultant’s Voir Dire Tips.

10 Monday Feb 2014

Posted by in Jury Instructions, Jury Persuasion, Jury Selection, Peremptory Challenges, Trial Tips and Techniques, Voir Dire

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Indirect Questions Reap Most Information in Oral Voir Dire, by Edward P. Schwartz, THE JURY BOX

http://tinyurl.com/lvbx2pz

In reviewing the traffic on my website recently, I was struck by how much more often one particular article was accessed than any other. I used to write a column on trial strategy for Lawyers USA (formerly Lawyers Weekly USA), and this particular article on voir dire strategy from 2006 seems to be very popular, even today. So, in the spirit of giving the public what it wants, here is that article in its entirety.

Oh Happy Day for Pennsylvania Personal Injury Plaintiffs.

10 Monday Feb 2014

Posted by in Appellate Law, Case of First Impression, Damages, Evidence, Jury Persuasion, Litigation, Pennsylvania Superior Court, Personal Injury, State Appellate Courts, Trial Tips and Techniques

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Appellate Case of First Impression – Future Medical Expenses Are To Be Included in Delay Damages Calculation, by Daniel E. Cummins, TORT TALK

http://www.torttalk.com/2014/02/appellate-case-of-first-impression.html

In a case of first impression, the Pennsylvania Superior Court recently ruled in Roth v. Ross and Erie Insurance Group, 977 MDA 2013, 2014 Pa. Super. 20 (Pa. Super. Feb. 7, 2014 Donohue, Ott, J.J., Platt, S.J.)(Opinion by Donohue, J.), that an award of future medical expenses in a personal injury case should be included in the calculation of delay damages due to the Plaintiff on a verdict. . . .

How Do Jurors In A Recession Really Feel About The Financial Industry?

09 Sunday Feb 2014

Posted by in Class Actions, Corporate Law, Finance and Banking Law, Jury Persuasion, Jury Selection, Litigation, Trial Tips and Techniques, Voir Dire, White Collar Crime

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Take This To The Bank: Jurors’ Evaluations Of Financial Industry Defendants During A Recession, by Jill Leibold Ph.D., Director, Jury Research, Elizabeth Babbitt, M.A., Consultant, and Louis A. Huber III, of Schlee, Huber, McMullen and Krause, LITIGATION INSIGHTS

http://tinyurl.com/nx84u56

[I]n the following article, published in DRI’s, For the Defense magazine, we wanted to evaluate biases in the way jurors would view banking or finance defendants. Given that almost all of Americans have felt they’ve been affected by the most recent recession, we conducted a study to gauge those positive or negative attitudes toward the financial industry as well as piece together how these issues could shape jurors’ perceptions toward banking and finance defendants come trial. . . .

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.