Category Archives: Trial Tips and Techniques

iPhone J.D.’s Latest.

01 Saturday Feb 2014

Posted by in Apple, Apps, iPad, iPhones, Legal Technology, Mac, Microsoft Office, Trial Tips and Techniques

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In the news, by Jeff Richardson, iPhone J.D. Blog

http://www.iphonejd.com/iphone_jd/2014/01/in-the-news230.html

As always, Jeff Richardson serves up a great collection for iPhone and iPad users:

  1. Outstanding article by John Gruber on the 30th anniversary of the Mac;
  2. An explanation by Morgan Smith on iPhone Personal Hotspot function to create a private WiFi zone in a courtroom;
  3. iPad tips from Joseph Hada;
  4. Options for reading Microsoft Word files from Randy Singer;
  5. A new app, CourtDial, created by Mary Der-Parseghian;
  6. Best options for gloves that work with a touchscreen from Clifford Agocs;
  7. Shane Cole’s report of Starwood’s new way to use the iPhone as a hotel room key;
  8. How to schedule recurring events on iPhones and iPads from Dan Moren; and
  9. An iPhone case with a hidden wallet compartment called the Push from Dapperbox.                                                                                    -CCE

Free App to Access PACER on iPhones and iPads.

30 Thursday Jan 2014

Posted by in Appellate Law, Apps, Bankruptcy Law, Cell Phones, Dockets, E-Filing, Federal District Court Rules, Federal Law, iPad, iPhones, Legal Technology, PACER, Trial Tips and Techniques, U.S. Courts of Appeal

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Review: DkT — access PACER on the iPad and iPhone, by Jeff Richardson, iPhone J.D. Blog

http://www.iphonejd.com/iphone_jd/2014/01/review-dkt-pacer.html

Jeff reviews a free app created by Matthew Zorn called “DkT.” In this post, Jeff leads you through the various steps to use this app. Because this is the first version, no doubt Matthew will tweak it as time goes by. Regardless of its minor flaws, if you practice in federal court, this is an incredibly useful tool for your iPad or iPhone. -CCE

If you ever practice in federal court, then using PACER is a part of your job.  PACER websites typically let you select a mobile option so that you can access PACER on an iPad or an iPhone, but the experience isn’t ideal.  You cannot save your username or password, it is difficult to manually enter case numbers, and every time you access a docket sheet or a document you have to pay to do so.  Matthew Zorn, an attorney at a large New York law firm, decided to do something about that, so he spent nine months writing a useful and beautifully designed app that he calls DkT.  The DkT app is free and can access PACER for federal appellate, district and bankruptcy courts.

Do You Know Whether Your Judge Uses an iPad or Tablet? Find Out Before You Submit Your Next Brief.

28 Tuesday Jan 2014

Posted by in 5th Circuit Court of Appeals, Apple, Brief Writing, Footnotes, iPad, Judges, Legal Technology, Legal Writing, Trial Tips and Techniques

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Writing a Brief for the iPad Judge, by Daniel Sockwell, Columbia Business Law Review

http://cblr.columbia.edu/archives/12940

‘Know your audience’ is a fundamental rule of skillful writing. For lawyers writing briefs in the 21st century, a key part of knowing your judicial audience is knowing what device will display your brief. While some judges print briefs and read the hard copy, a quiet revolution is occurring: more and more judges are reading briefs primarily on iPads or other tablets. According to experts on legal writing, this change in reading should trigger a similarly significant change in writing.

Texas Federal Court Holds That Intrastate Truck Drivers Are Eligible for Overtime.

27 Monday Jan 2014

Posted by in Employment Law, Fair Labor Standards Act, Litigation, Trial Tips and Techniques

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Federal Court Finds Intrastate Truck Drivers Eligible For Overtime Pay, by Andrew Iwata, Lawyer Up Blog

http://tinyurl.com/mkem29j

In Butcher v. TSWS d/b/a Pot-O-Gold, (S.D. Tex. August 25, 2011), the Southern District of Texas denied an employer’s motion for summary judgment in a case involving FLSA overtime claims brought by truck drivers.  The employer argued that the plaintiffs were subject to the FLSA’s motor carrier exemption (which would mean that the drivers were not entitled to overtime pay) because the plaintiffs work affected the safety of interstate transportation.  Although the plaintiffs never crossed state lines in driving their trucks for the defendant, the company claimed that the employees could have been called upon to drive interstate at any time.  The court acknowledged that under Songer v. Dillon Resources, 618 F.3d 467 (5th Cir. 2010), an intrastate driver may be exempt during periods when the driver ‘could have been called upon’ to drive interstate at any time.  The court acknowledged that under Songer v. Dillon Resources, 618 F.3d 467 (5th Cir. 2010), an intrastate driver may be exempt during periods when the driver “could have been called upon” to drive interstate.

 

Court Splits on Negligent Infliction of Emotional Distress.

27 Monday Jan 2014

Posted by in Damages, Health Law, Litigation, Massachusetts Supreme Court, Medical Malpractice, Torts, Trial Tips and Techniques

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Pennsylvania Supreme Court Splits On Extension of Tort of Negligent Infliction of Emotional Distress, by Daniel E. Cummins, TORT TALK Blog

http://tinyurl.com/mr4matq

The recent December 22, 2011 split decision by the Pennsylvania Supreme Court in the long-anticipated Opinion in the case of Toney v. Chester County Hospital, 2011 WL 6413948 (Pa. Dec. 22, 2011)(Baer, Todd, and McCaffery, JJ. join in support of affirmance)(Castille, Saylor, Eakin, JJ. join in support of reversal)(Orie Melvin, J. not participating) serves to fuel an argument in favor of the extension of the tort of negligent infliction of emotional distress (NIED).

Excellent Case on Document Retention Policies and Litigation Holds.

26 Sunday Jan 2014

Posted by in E-Discovery, Hearsay, Judges, Legal Technology, Litigation, Litigation Hold, Preservation, Sanctions, Trial Tips and Techniques

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No Sanctions for Following Records Retention Policy, by Joshua Gilliland, Esq., Bow Tie’s Law Blog

http://tinyurl.com/opq4t3t

It is not every day you see lawsuits about insurance policies from 1986 to 1987.

Add Judge Paul Grimm’s powerhouse footnotes and you get a great lesson in document retention policies and litigation holds (plus a great footnote on the state of mind exception to hearsay for all the evidence fans).

Rethink Calling Your Clients “Toothless Cooties.”

25 Saturday Jan 2014

Posted by in Legal Ethics, Litigation, Trial Tips and Techniques

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Criticize Clients Carefully, by Dr. Ken Broda-Bahm, Persuasive Litigator Blog

http://tinyurl.com/mg4bbue

Please note additional articles on client communication and relations at the end of the article. – CCE

There is no doubt that it’s a litigator’s job to realistically assess the case and, when the situation demands it, to deliver bad news to the client. How that assessment is crafted and communicated, however, is where the care comes in.

Moral Outrage and Jury Persuasion.

15 Wednesday Jan 2014

Posted by in Closing Argument, Jury Persuasion, Trial Tips and Techniques

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Simple Jury Persuasion: Anger + Disgust = Moral Outrage, by Douglas Keene, The Jury Room

 http://tinyurl.com/mmuh8fq

[N]ew research shines a light on why moral outrage reactions occur and (just maybe) how one might try to elicit them (if one were wanting to do that sort of thing).

The Importance of a Jury’s First Impression.

11 Saturday Jan 2014

Posted by in Trial Tips and Techniques, Witness Preparation

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The Power Of First Impressions, by Douglas Keene, The Jury Room

http://keenetrial.com/blog/2011/04/18/the-power-of-first-impressions/

[W]e’ve written about many aspects of witness preparation before and have come to the belief that people come to firm conclusions about most witnesses very quickly. Now, as is so often handy, we have new research that shows us (again) why first impressions of witnesses are so very important.

Authenticating Electronic Evidence Not Always As Straightforward As It Seems.

11 Saturday Jan 2014

Posted by in Admissibility, Emails, Evidence, Legal Technology, Texas Supreme Court, Trial Tips and Techniques

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You’ve Got Mail: Court of Appeals of Texas Finds Alleged E-Mail From Victim’s Mother Improperly Authenticated, by Colin Miller, EvidenceProf Blog

http://tinyurl.com/q8avp97

There are many ways to authenticate electronic evidence. But this, says the Texas Court of Appeals, is not one of them. -CCE

Framing Your Legal Arguments To Persuade.

11 Saturday Jan 2014

Posted by in Closing Argument, Cross-Examination, Direct Examination, First Amendment, Jury Instructions, Legal Writing, Making Objections, Opening Argument, Trial Tips and Techniques, Voir Dire

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Frame It As “Freedom with Consequences,” by Dr. Ken Broda-Bahm, Persuasive Litigator

http://tinyurl.com/mvb6qjy

Ducks and Vikings have been prominent recently on the free expression front of the culture wars. The ‘Duck’ would be Duck Dynasty’s reality star Phil Robertson, who’s recent comments on homosexuality and race caused his network, A & E, to briefly suspend him from the show. The ‘Viking’ would be former Minnesota Vikings punter Chris Kluwe, who was released by the team after controversy following an editorial he wrote in favor of marriage equality. While Kluwe lost his job and Robertson kept his, the similarity in the cases is that both were framed in the public sphere as a question of free expression. But it is less the question of whether Robertson and Kluwe have free speech, but whether they have freedom from the employment consequences of that speech.

Texas Supreme Court Embraces Email and Amends Civil Procedure Rules.

08 Wednesday Jan 2014

Posted by in Court Orders, Court Rules, Emails, Legal Technology, Texas Supreme Court, Trial Tips and Techniques

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Texas Supreme Court Decides Email is Here to Stay, Amends Rules of Civil Procedure Accordingly, by Frank O. Carroll III, TexAppBlog

http://tinyurl.com/jwrwy7u

When it comes to civil courts in Texas, the theme for 2013 was “fast-tracking.” The Texas Rules of Civil Procedure saw a number of changes related to triaging and expediting low-dollar controversies and eliminating “frivolous” cases early in the litigation process. While limiting requests for production and depositions in cases under $100,000 is all well and good, civil courts in Texas face much greater problems on a day-to-day basis.

One such problem is the underutilization of technology. Before 2014, email didn’t exist as far as the Texas Rules of Civil Procedure were concerned, electronic filing by fax was the equivalent of placing an envelope in the mail, and FedEx was a great way to send birthday gifts, but an unacceptable way to send discovery requests. But a new day has dawned, and 2014 is upon us…

Everyone Knows You Never Question Your Own Witness At A Deposition, Right?

06 Monday Jan 2014

Posted by in Depositions, Direct Examination, Discovery, Evidence, Trial Tips and Techniques, Witness Preparation

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The Need For Direct Exams Of Your Own Witnesses At Depositions, by Mark Herrmann, Above The Law Blog (with hat tip to Evan Schaeffer, The Trial Tips Practice Weblog)

http://tinyurl.com/meqbmh4

Changes Expected This Year in Pennsylvania Civil Litigation.

05 Sunday Jan 2014

Posted by in Construction, Expert Witness, Legal Technology, Litigation, Medical Malpractice, Motor Vehicle, Product Liability, Technology, Trial Tips and Techniques

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Changes Anticipated for Pa. Civil Litigation Jurisprudence in 2014, by Daniel E. Cummins, TORT TALK, republished from Pennsylvania Law Weekly

http://www.torttalk.com/2014/01/article-changes-anticipated-for-pa.html

Currently, there are a number of important civil litigation issues pending before the Pennsylvania appellate courts, the results of which could significantly impact the way litigators practice in the years ahead. Moreover, notable changes over the past year in Pennsylvania statutory law, as well as the Rules of Professional Responsibility, are expected to have a significant impact.

Trial Tech Costs Will Be Easier to Recover In 2014.

04 Saturday Jan 2014

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

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Good News for 2014: Trial Tech Costs Can Be Easier to Recover, by Morgan Smith, Cogent Legal Blog

http://tinyurl.com/kpqnkld

For those of you who rely heavily on trial technicians and courtroom technology, a 2013 case on CCP Section 1033.5 is important to know about because it enhances your ability to recover trial tech costs.

Every year, technology becomes an increasingly important part of case presentations. In a piecemeal fashion, courts are steadily catching up to this 21st-century reality and beginning to recognize that tech-related trial costs are legitimately recoverable.

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.

Better Trial Messages to the Jury.

02 Thursday Jan 2014

Posted by in Closing Argument, Jury Instructions, Opening Argument, Trial Tips and Techniques, Voir Dire

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Chunk Your Trial Message, by Dr. Ken Broda-Bahm, Persuasive Litigator

http://tinyurl.com/jvum7kj

Dr. Broda-Bahm provides excellent ideas for litigators on how to “chunk” their trial messages. -CCE

 Give me the bite-sized version, break it down into pieces, and tell it to me step-by-step. The brain loves to segment, and the process known as “chunking” seems to be a central part of how we recognize patterns, manage information, and form new insights. A recent perspective on the process is articulated by Cambridge neuroscientist Daniel Bor in his book, The Ravenous Brain (2012).

[I]t is one thing for the attorney to get that structure, and it is another thing for her listeners to get it just as well. Litigators and other communicators often believe that they’re breaking things down based on a clear, explicit, and meaningful structure, but their audience instead simply experiences a continuous and unbroken flow of information or arguments. Here are a few rules of thumb for making sure you’re actually chunking when you think you’re chunking:

  • It has to be simple (which usually means flat, without substructure, and limited to a manageable number of main points).

  • It has to be explicit (which usually means actually saying something like, “First point,” “Second point,” and “Third point”).

  • It usually should be previewed (“Tell them before you tell them,” unless you having a strategic reason for preserving a surprise).

Sharpen Trial Advocacy Skills.

28 Saturday Dec 2013

Posted by in Closing Argument, Cross-Examination, Direct Examination, Jury Selection, Making Objections, Opening Argument, Trial Tips and Techniques, Witness Preparation

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The Trial Lawyers Library, trialtheater blog

http://www.trialtheater.com/wordpress/the-trial-lawyers-library/

A trial lawyer’s list of recommended books to develop trial advocacy skills. Although some of the titles may surprise you, each has an intended purpose directly tied to trial advocacy. – CCE

 

 

What’s A Luddite? Jim Calloway Knows The Answer.

27 Friday Dec 2013

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

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Can Lawyers Be Luddites?, by Jim Calloway, Jim Calloway Law Practice Tips Blog

http://tinyurl.com/pgpb3aq

Regardless of whether you are tech savvy, this article is a must read. -CCE

Can Lawyers Be Luddites? it is sort of a trick question. If you don’t know what Luddite means, there is a far greater chance that you are one. I’ll give you more information about the origination of the term later in this post, but suffice to say that today Luddite means that you are anti-technology.

There has been a lot of discussion about how well lawyers need to understand technology since the ABA House of Delegates amended Comment 8 to Model Rule of Professional Conduct 1.1 on Competence. . . . .

 

Tips for Presentations at Trial.

22 Sunday Dec 2013

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

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Preparing Websites for Litigation Databases, by  Michael Skrzypek, The Trial War Room Handbook Blog

http://www.thetrialwarroomhandbook.com/?p=916

This post provides several excellent suggestions for website presentation in court. Regardless of the method, the last paragraph gives great advice – always have an offline back up! -CCE

Related articles

 

Counsel Scalded by Federal District Court’s E-Discovery Opinion.

21 Saturday Dec 2013

Posted by in Cell Phones, E-Discovery, Evidence, Federal District Court Rules, Legal Technology, Litigation Hold, Requests for Production, Sanctions, Sanctions, Trial Tips and Techniques

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Perils of E-Discovery Reflected in Sanctions Opinion, by Gareth Evans, a litigation partner at Gibson Dunn, Law Technology News

http://tinyurl.com/kcksw5v

Lest anyone think that hair-raising e-discovery sanctions opinions are a thing of the past, U.S. District Judge David Herndon of the Southern District of Illinois issued a blistering 51-page opinion (PDF) imposing nearly $1 million in punitive sanctions on the defendants in In re Pradaxa Products Liability Litigation on Dec. 9, 2013, and indicated that more sanctions are almost certainly on the way.

The case is an example of how electronic data discovery generally, and implementing legal holds in particular, can be fraught with peril.

Jury Selection – Pick The Person. Forget About Gender.

20 Friday Dec 2013

Posted by in Jury Selection, Trial Tips and Techniques

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Speak to the Person, Not the Gender, by Dr. Ken Broda-Bahm, Persuasive Litigator

http://tinyurl.com/nys9zy4

Dr. Broda-Bahm nails it in this post about focusing on the attitudes and experiences of each person on the jury rather than gender. -CCE

We have already, in several posts (here, here, and here) developed the recommendation to not conduct jury selection based on gender or other demographic elements, so I won’t repeat that recommendation here. Instead, I want to focus on the ways advocates should adapt without overcompensating for perceived gender differences. So here are a few suggestions for increasing your odds of speaking and seeing beyond the demographic.

No Whining in Opening Argument.

13 Friday Dec 2013

Posted by in Evidence, Making Objections, Opening Argument, Trial Tips and Techniques

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Don’t Whine About ‘Argumentative’ Demonstratives (and Argue Back Against Whiners), by Dr. Ken Broda-Bahm, Persuasive Litigator

http://tinyurl.com/kb35ho4

Court Questions Party’s Unexplained Lack Of Cooperation In E- Discovery Production.

13 Friday Dec 2013

Posted by in Discovery, E-Discovery, Intellectual Property, Requests for Production, Trial Tips and Techniques

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Court Declines to Compel Identification of Seed Set, Encourages Cooperation, published by K&L Gates

http://tinyurl.com/leagmr6

In re: Biomet M2a Magnum Hip Implant Prods. Liab. Litig., NO. 3:12-MD-2391, 2013 WL 6405156 (N.D. Ind. Aug, 21, 2013).

Previously in this case, the court ruled that Biomet need not start again on its document production for which it utilized both keyword searching and predictive coding.  (See summary here.)  In this opinion, the court addressed the Steering Committee’s request that the discoverable documents used in Biomet’s seed set be identified and declined to compel such identification.  Despite this, the court noted Biomet’s ‘unexplained lack of cooperation’and urged Biomet to ‘re-think its refusal.’

Pinstriped – A New Presentations App for Mac With A Tutorial.

13 Friday Dec 2013

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

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How to Make Your Case Presentation More Professional with Pinstriped, by Morgan Smith, Cogent Legal Blog

http://tinyurl.com/lwcuoaj

Morgan Smith explains how to use Pinstriped, this post also includes an one-minute tutorial on how to use it. If you love Mac and use presentations at trial, this is definitely worth a look. – CCE

I discovered a new app that has some exciting possibilities for use in trial or mediation, allowing attorneys to launch and deliver their presentations in a more professional manner.