A Look at “Outside the Box” Trial Practices Endorsed by Courts, but Under-Utilized by Attorneys

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By Thomas M. O’Toole, Ph.D.

In 2007, the American Bar Association (ABA) released its updated Civil Trial Practice Standards. The ABA described the standards as an attempt to “to standardize and promote the use of these innovative trial techniques.” These standards contain recommendations for what many attorneys might describe as “cutting edge” trial procedures. Most important, these recommended trial procedures potentially provide attorneys with critical presentation opportunities to exert control over the trier-of-fact’s perception of the case and the key issues in dispute.

Yet, few attorneys are aware of the standards and express surprise at the suggestion that judges might allow any of the recommended trial procedures. I am not sure whether it is a product of the ABA’s failure to bring sufficient attention to them, attorneys’ general inattentiveness to trial issues not born out of case law, or a face-value rejection of anything that seems “outlandish.” Regardless of the reason, it is time for attorneys to start paying closer attention since the use of the recommended procedures may provide their clients a strategic advantage at trial.

Before I discuss specific recommendations, I want to address the common response that “there is no way a judge would allow us to do that” that I have often received when raising the issue with attorneys. First, I would argue that attorneys often have erroneous beliefs about what a judge will or will not allow at trial. Sometimes, they are the product of misinformation from a colleague who has tried a case in front of the judge (judges try different cases in different ways). Sometimes, they are a product of the attorney’s perception of the norm. Sometimes, they are a simply a product of the attorney’s discomfort with the idea of having to make the request to the judge. These beliefs unnecessarily close doors that need not be closed. In fact, the inspiration for this post stems from a conversation I had with a state court judge who was telling me about the 2007 standards and noting a desire to see the use of summary arguments following expert testimony. The problem, he said, was that no attorney had ever requested summary arguments in his court, so he had not had a chance to see them, even though he was very interested in the opportunity to allow them.

Setting aside the accuracy of attorneys’ beliefs, consider the source of the recommendations. A significant amount of time and energy by respected lawyers and judges went into the development of these standards. The ABA describes the process:

“Standards were drafted by a Task Force of the ABA Section of Litigation that included four past and present Chairs of the Section of Litigation; distinguished plaintiffs’ and defense counsel from around the country — from firms with as few as two lawyers to firms of several hundred; highly respected state and federal judges; and representatives of the Judicial Division of the ABA and the American College of Trial Lawyers. Before they were finalized, drafts of the Standards were distributed for public comment to every state and major local bar association; all sections of the ABA; other bar organizations; and hundreds of state and federal judges, and trial lawyers, across the country.”

This process description is important because it highlights the authority behind these trial practice recommendations and, consequently, arms attorneys to credibly argue for their use. While attorneys may not always be successful, it is hard to imagine a detrimental effect of requesting something that comes with such authority.

The Civil Trial Practice Standards are worth reviewing in their entirety, but I want to highlight a few that stood out to me as uniquely interesting.

The inclusion of chronologies or timelines in juror notebooks. Well-designed timelines can fundamentally change the way the jurors understand the issues in a case and can subtly reinforce key themes in the case while still appearing relatively neutral. The possibility of jurors having copies of such timelines in their notebooks presents an incredible opportunity for theme reinforcement or even just issue organization. In complex cases, jurors will use simple timelines back in deliberations to help them make sense of the case. Consequently, the inclusion of your timeline in jurors’ notebooks presents an opportunity to exert control over deliberations. Not every case requires a timeline, but when opportunities exist for persuasive timelines, attorneys should consider offering this request to the court.

Pre-recorded tutorials for judges and jurors. The ABA says, “in cases involving complex technology or other complex subject matter which may be especially difficult for nonspecialists to comprehend, the court may permit or require the use of tutorials to educate the court.” The subsections add that such tutorials may be pre-recorded. Another section of the recommendations suggests such tutorials may also be useful for juries.

The real battle at trial is often a battle for prominence. In other words, in order for your themes and case theory to be persuasive, they often need to first have greater prominence than those of the opposing party. Pre-recorded presentations not only provide attorneys the opportunity to present the court with tight, perfected presentations (because you can record over and over again until its absolutely perfect) on complex issues, but also open the creative door in terms of production value. For example, the perfected rhetorical presentation in the tutorial may correspond with a visually stimulating and persuasive animation. Aristotle said that persuasion, at its core, is entertainment, and pre-recorded presentations open the door for extremely entertaining and persuasive presentations to your judge and/or jurors.

Summary arguments following expert testimony. This recommendation strikes me as being particularly beneficial, from a strategy standpoint, to defendants because it potentially allows defendants to argue during the plaintiff’s case-in-chief. In my conversation with the state court judge about these, he said he envisioned allowing each side 5 minutes at the conclusion of an expert’s testimony to offer concluding arguments about the content of the testimony. Well-prepared summary arguments could synthesize the issues for the jurors, making them more understandable and persuasive and, consequently, increasing the overall impact that the expert’s testimony has at trial.

Summary graphics for the jury. The ABA Practice Standards recommend, when the matter is sufficiently complex enough to justify it, the court allowing demonstratives into evidence for illustrative purposes. In other words, the standards suggest the court allow the demonstratives to go back to the jury room. Similar to the earlier discussion about timelines in jurors’ notebooks, summary graphics in deliberations could become critical tools for attorneys. Based on my experience with mock juries, when jurors are given persuasive and visually-appealing graphics that simplify the issues, these graphics become centerpieces of deliberations and arm your client’s advocates on the jury to take control of the issues and drive a verdict in your client’s favor.

Mini-openings preceding voir dire. This is an interesting recommendation that requires discussion well beyond the limits of this blog post. My primary concern is that it opens a can of worms about selling case themes in voir dire and all sorts of other similar, counter-productive tactics. In my opinion, mini-openings could potentially allow for a more detailed and nuanced investigation of the adverse attitudes and life experiences that may influence the way a venire member decides the case, which would allow for a more informed use of cause challenges and peremptory strikes. When used in this manner, they offer an extremely valuable tool that gives attorneys an edge over opposing counsel who is most likely trying to use the time to sell his or her theme (see this article for an explanation of why this is a problem).

The ABA precedes these recommendations with commentary that the level of complexity in the case should largely determine the appropriateness of the use of the procedures. The state court judge I discussed these standards with also highlighted the length of the trial as a key factor, noting that some of the procedures are valuable for trials that exceed two weeks. Obviously, these also come with the recommendation that both parties should have to opportunity to use them.

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