X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
When your case “gets the green light” and is set for trial, it’s time to get the production started. A trial is not “just the facts, ma’am”; it’s a compelling story to be told, and the better you tell that story, the greater advantage you will have in the courtroom. Your production needs a title (a theme that strikes a chord), players (witnesses, both lead and supporting), story line (witness examinations), props (demonstrative exhibits as scenery), an intriguing opening statement (which captures the audience’s attention) and a compelling closing argument (which makes the audience want to give you a standing ovation). So, as Mickey Rooney used to say, “Let’s put on a play!” First, shine a light on everything you have � evidence that was once in a box must now be marshaled to take center stage. Second, get focused � decide through what lens you will show and tell your client’s story. Third, get ready for your close-up � it’s time for trial. You’re the writer, director, producer, cameraman, editor and sometimes star � the lights are on, the camera is rolling, and … action! SHINE A LIGHT ON YOUR CASE Storyboard your case. You can do it literally on a board, or on a piece of paper. Lay out your witnesses and evidence and match them up. This helps you focus on who and what you need to present your case fully. Make sure you have alerted everyone you’ll need to testify, identified what witness is responsible for what evidence, and that you have identified and begun to address all admissibility issues. The order of your witnesses is critical. Your case has to build in a sensible and persuasive way. Do not put your damages witness up before your liability witnesses (at least not without a darn good reason). Equally important in storyboarding is mapping out the other side’s case. Their presentation may have an effect on decisions you make about your own witness and evidence order. This will also help you estimate how long the trial could take. All of this plays a part in determining how you organize your case presentation. Your case must have a theme. From the simplest to the most complex case, it’s important to develop a theme and weave it throughout your case. It should be substantive, persuasive, dramatic, to the point, easy to remember and, OK, let’s just say it � it should be catchy without being corny (unless, of course, corny makes the point better than anything else you could say.) You want the judge or the jury to be “humming your tune.” GET FOCUSED � CHOOSE THE RIGHT CAMERA LENS The options for evidence presentation are almost limitless, but they generally fall into three categories � high tech, low tech and no tech. And those categories are no longer defined solely by cost; many presentation products are reasonably priced and easy to use, and many courtrooms are wired to handle such technology. You also don’t need your own arsenal � trial consultants can set you up with leased equipment, run the whole show, or provide anything in between. High tech: It’s not just for juries anymore. Multimedia presentations can be used for motions, court trials, mediations, arbitrations and, of course, jury trials. If the document is important enough to be discussed, it is important enough for everyone to see it. PowerPoint, Trial Director and Trial Pro are all programs which “bring to life” documents, maps, photographs and drawings. You can highlight, underline, pull out text and zoom in on photographs. You can also play digitized video in many different programs. Do not use a VCR or a DVD player in a courtroom. The machines are too difficult to manipulate and you’ll waste valuable presentation time. More importantly, you will risk losing the attention of your audience, something to avoid at all costs. So, get that raw footage into a program where you can play it through the computer. Use it sparingly and with the lights on � dimmed lights equal sleeping jurors. Computer animation is another great high-tech tool. It can demonstrate otherwise static evidence, such as drainage patterns, floods, landslides, the speed of a moving object if distance is an issue, or the phased development of unimproved land over time. Be alert to these presentation opportunities, but take heed � “ garbage in, garbage out.” “Garbage in” includes incomplete, poor quality, or inadmissible source material. It also refers to situations where the attorney does not have a clear vision of what to depict or the consultant simply doesn’t have the skill to deliver the product. This produces “garbage out,” which can result in your very expensive product being excluded from evidence, being ineffective, or worse, creating a negative image in the mind of the audience. Do not tread lightly or carelessly into this area. Computer animation is great when it works, but can be a terrible waste of the client’s money when it doesn’t. Low tech: Make your evidence part of the furniture. Use professionally produced evidence boards to show timelines, transaction charts and patent claims construction in a cohesive and graphically appealing way. Ideally, you’ll have one “bible” board that explains a major issue and is so helpful to everyone it may even be used by opposing counsel or the judge when asking questions or making their own points. This gives the board added credibility with the audience and allows you to keep it in view of the audience for longer durations, thus “making it part of the furniture.”
Don’t use surprise as a trial tactic when it comes to demonstrative, high-tech and professionally prepared exhibits � judges don’t like it, opposing counsel will object (and may prevail on the point), and it generally degrades your credibility with the audience.

Models of buildings or other structures are also useful and appealing. They give the judge and jury a chance to “kick the dirt” without a site visit and almost always spark an increased level of curiosity with the audience. Models provide a nice 3-dimensional change-up which can often be left “on display” during the case. And then there’s ELMO. No, not the “Sesame Street” character. It’s this century’s overhead projector and most courtrooms have them. They are great for “on the fly” moments when a document or picture you hadn’t planned on showing has to be added to your presentation. Photographs display most clearly on this technology, but some courtrooms now have ELMOs which allow you to superimpose treatment options (zooming, highlighting, etc.) the same way presentation software does, making this device especially useful for document presentation. Be sure to have the court staff show you how their particular ELMO works as different systems have different features. No tech: There’s always room for butcher paper. Give the jury or judge a break � not everything demands an MTV moment and too much tech dilutes its effect. So get witnesses � especially experts � out of the box and in front of the jury to draw a map, do some math or just pin the tail on the donkey. This can be especially great for nervous witnesses because standing up and writing something on a piece of butcher paper gets them out of the “hot seat,” tends to relax them and can give them a greater rapport with the audience. Also, it gives jurors a chance to look someplace besides the witness stand, which, for some, might mean relieving that crick in their neck. GET READY FOR YOUR CLOSE-UP ANDACTION! PreparationPreparation … and oh, yes � Preparation. You simply cannot use technology unless you have prepared for everything (and still remain prepared for anything). From opening statement to closing argument, know when and where you will use your props. The audience will stop paying attention and lose patience if you fiddle with electronics or search for your “bible” board. Know your courtroom, set it up, test-run everything and stage your demonstrative exhibits beforehand so that when you put them up during trial, everyone can see them and no one is blocked by them. Above all else, have a back-up plan! Things change constantly during trial � your computer crashes, you spill your water at counsel table, or your easel breaks so someone needs to hold up a board while you question your witness. Relax; these things happen to everyone and if you approach the situation with aplomb and a bit of humor, the audience will forgive the mishap. Always remember to give necessary notice to the other side � share video deposition excerpts, copies of computer animations or simulations, models and professionally prepared boards � so there is enough time for the other side to make appropriate objections and for you to make revisions, if the court orders you to do so. Don’t use surprise as a trial tactic when it comes to demonstrative, high-tech and professionally prepared exhibits � judges don’t like it, opposing counsel will object (and may prevail on the point), and it generally degrades your credibility with the audience. Remember: Practice makes perfect. You must, must, must practice with your witnesses before trial and run through major presentations with colleagues and consultants who promise to provide you with constructive criticism. Take in all the feedback and revamp your examinations or presentations where necessary � remember, almost no one nails it on the first take. Finally, when almost all is said and done and shown � show ‘em something different in closing argument! PowerPoint slides of witness testimony, court rulings, case holdings and jury instructions can remind the audience of the important points they heard, but may have forgotten, at the beginning of the trial and merge them with the points they most recently heard toward the end. Do not leave the audience with an unresolved plot line. It’s your job to tie all the plot points together for them in a resounding conclusion. Look for the nodding head and you’ll know you’ve made your point! Practice the art of trial presentation and litigate your client’s story to a happy ending. Heidi A. Timken is a real estate and business litigator and a founding partner of Timken Johnson Hwang ( www.timkenlawgroup.com) where she specializes in trial work, and eminent domain in particular. � Practice Center articles inform readers on developments in substantive law, practice issues or law firm management. Contact Sheela Kamath with submissions or questions at [email protected].

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.