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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. Continue reading