The vanishing jury trial is perhaps one of the most important issues facing the civil justice system today.  Civil trials have declined in federal courts from 12% in 1984 to less than 1% in 2010.  Statistics from state courts, though more difficult to obtain, generally show the same trends.  The issue has been widely studied, and while the fact of the vanishing trial is clear, the reasons for the decline are less obvious.  Several theories have been advanced, ranging from a dramatic rise in case filings and underfunded court systems to the ever increasing cost of litigation and the success of alternative dispute resolution.  

Jamie Oliver, a chef and a child advocate focused on ensuring kids receive proper nutrition through their school lunch programs as well as at home, has a television show, Jamie Oliver’s Food Revolution, showing how he changes eating habits in school districts (this season he is in Los Angeles).  In each episode, he creates a visual showing the terrible foods kids are putting in their bodies.  It’s one thing to tell kids (or their parents) that fast food and processed food is bad for them, it is quite another to create a visual showing how bad it is, and creating such a powerful visual that it convinces those kids, their parents and the audience watching the show (including myself) how bad those foods are.  In a recent episode, he filled a family’s house with all the fast food they consume in a year.  Every square inch of furniture and floor was covered.  In another episode, he filled a school bus with sugar to show how much sugar the school board permitted in the kids lunch meals over a year.  It was powerful images like those that made folks change their minds and change their behavior.

When preparing for trial, we can take a page out of Jamie’s book, and think about what visuals (whether a photograph, a diagram, an animation, or some other representation) that encapsulates our theme and does so in such a powerful manner that the image we create carries through the trial, into the deliberation room and turns the jurors’ hearts and minds toward our view-point and toward our position.  Keep a file folder in your office drawer where you include pictures, images and ideas you clip from magazines and newspapers.  These images may later serve you at trial.

Being that it is Monday, my partner Craig Salner has his weekly tip for young lawyers.  This week he discusses the importance of getting involved with social networking.  You can find his post at http://csalner.wordpress.com/.

Assume everything you write or e-mail an expert will be discoverable.  Even if you can somehow keep it from being discovered, you will probably spend your time and the client’s money to keep it confidential.  With that in mind, before you send anything to an expert ask yourself whether you would have a problem with the other side seeing it.  If so, think long and hard before sending it.  Also, folks have become too casual in what they include in e-mails, and I’ve found this true with experts, particularly their staff.  So try to avoid e-mailing experts and their offices whenever possible, sticking to phone calls and faxes when possible.  And ask them not to e-mail you.  Yes, it is less convenient, but it will help ensure that the experts don’t make errant comments that become part of their permanent file (which at some point will likely have to be produced to the other side).

In the movie, Super 8, JJ Abrams and Steven Spielberg do a great job in showing us, not simply telling us.  The opening scene is a mill worker removing the numbers 784 from a sign which reads “784 days since our last accident” and replacing it with the number “1.”  The audience knows an accident has occurred, likely a tragic one (since it is hard to believe that no one has suffered any scrapes or bruises or pulled muscles throughout the entire plant for over 2 years). ”Something happened,” you’re thinking to yourself, “and it was bad.”  The movie then cuts to a scene in a boy dressed in his Sunday’s best, sitting in the swing in his yard, ankle-deep in snow.  And then you’re like, “poor kid.  He lost someone.”  The makers of the film could have started with a narrative – “hey audience, there’s been a bad accident at the mill and it affects this boy.”   Yawn.  Instead, they show us, they don’t tell us.  And by showing us, their message is so much more effective.

When trying to persuade others, whether in a motion, at a hearing or at trial, try to paint pictures with your words.  Create images to show your audience your point. Don’t be satisfied by simply telling them.  Show them.  You could tell the jury that a witness was not at a good vantage point to see the accident.  Or you can create an image of how little he could see what was going on, showing the jury that he couldn’t have possibly seen what happened.  Think about how and when you can show more, versus simply telling, to make your advocacy more compelling, more dynamic and make yourself more of a storyteller.  

In “RULE OF EVIDENCE 703 — Problem Child of Article VII (Sept. 19, 2011),” I wrote about how Federal Rule of Evidence 703 is generally ignored and misunderstood in current federal practice.  The Supreme Court, in deciding Daubert, shifted the focus to Rule 702, as the primary tool to deploy in admitting, as well as limiting and excluding, expert witness opinion testimony.  The Court’s decision, however, did not erase the need for an additional, independent rule to control the quality of inadmissible materials upon which expert witnesses rely.  Indeed, Rule 702 as amended in 2000, incorporated much of the learning of the Daubert decision, and then some, but it does not address the starting place of any scientific opinion:  the data, the analyses (usually statistical) of data, and the reasonableness of relying upon those data and analyses.  Instead, Rule 702 asks whether the proffered testimony is based upon:

These days, many depositions are videotaped.  If a deposition is being videotaped, is there still a need for a court reporter?  Is a stenographic (“hard copy”) transcript necessary?  This issue is currently the subject of debate in Texas and across the country, with interest groups taking positions on both sides.

 On one hand, hard copy transcripts have practical advantages over video depositions.  First, hard copies allow attorneys to take part in their favorite pastime – copious amounts of highlighting and tabbing.  Additionally, most cases require careful attention to the facts, and hard copy transcripts make it easier to cite to the record.  In short, whether it is due to personal preference or the manner in which people learn, some people will probably always prefer working with hard copies.

At the same time, video depositions have unique advantages over hard copy transcripts.  In the era of C.S.I., jurors expect attorneys to use technology.  And video evidence is often more compelling and entertaining than a transcript.  Video depositions capture mannerisms, body language, and attitudes that would otherwise go unnoticed.  Because of this, adverse witnesses and opposing counsel are more likely to mind their manners when being videotaped.  Of course, there are exceptions to every rule, and video footage of a witness losing control can be pure gold.  For example, when the witness in the infamous Texas Style Deposition told the examining attorney that he had “a case of incipient verbal diarrhea,” a paper transcript would never have done it justice. 

As other commentators have noted, both video depositions and traditional hard copy transcripts have their place.  When used correctly, each form of “transcript” compliments the other.  Because of the limitations of videotape-only depositions, however, traditional hard copies (and court reporters) are here to stay . . .  for now.

The Wall Street Journal (“WSJ”) reported in the October 3, 2011 edition of the paper about the start-up of three brand new companies that were started with the purpose of entering what is considered the “fledging alternative litigation funding market.”  You can view the article here.  

On September 23, 2011 the MSPRC announced that it would be adding a Self Service Information Feature to its current Customer Service Line that will provide automated conditional payment information over the telephone. It is scheduled to go live on September 30, 2011. The announcement suggests the advantages of the new telephone feature would be:

We find that it raises more questions than it answers. For example:

More information was promised although none has been received to date. We will keep you up to date as we receive the information.

In October 2010, I wrote in DRI’s The Business Suit that the upcoming trial of Roger Clemens for allegedly lying to Congress about his non-use of performance-enhancing drugs was an enormous waste of time and taxpayer resources, and more than a little hypocritical. On Thursday, July 14, what already was a standard government fiasco morphed into a full-blown disaster. Federal prosecutors made a mistake that resulted in the judge declaring a mistrial, which hopefully means the end of this sorry affair.

The critical facts are these:

•  In early 2008, former Clemens teammate, Andy Pettitte, told Congress that Clemens had once admitted to Pettitte that Clemens had used human growth hormone. Mr. Pettitte also testified that he subsequently told his wife, Laura, about Clemens' admission. Laura confirmed that conversation during her own Congressional deposition.

•  On February 13, 2008, Clemens testified before Congress, during which Rep. Elijah Cummings' (D-MD) read that portion of Laura Pettitte’s deposition transcript confirming Andy's account of Clemens' alleged admission. In response, Clemens testified that Pettitte “misremembered” his conversation with Clemens.

•  In a July 7, 2011 pre-trial ruling, Judge Reggie B. Walton declared as inadmissible hearsay evidence of any conversations between Andy and Laura Pettitte about Clemens’ alleged use of performance-enhancing drugs. 

•  On July 14, 2011 despite Judge Walton's decision, prosecutors played a video excerpt from Clemens' February 2008 testimony, including that portion involving Rep. Cummings' description of Laura Pettittee confirming Andy Pettitte’s account of Clemens' alleged admission. Judge Walton declared a mistrial, stating “I think that a first-year law student would know that you can’t bolster the credibility of one witness with clearly inadmissible evidence,” particularly since Clemens has said that Pettitte’s recollection of their conversation was wrong. 

How could prosecutors make such a basic mistake? This is not an inexperienced group, although it arguably is overzealous and may be politically motivated. Although he was not in the courtroom during the ruling, Ronald C. Machen Jr., currently leads the Washington, D.C. branch of the U.S. Attorney's Office. A former partner at the law firm of Wilmer Cutler Pickering Hale and Dorr, Machen was recommended for the job by Eleanor Holmes Norton (D-D.C.), who submitted Machen’s name to President Obama. Machen reportedly called Obama a "legend" at Harvard and, in 2003, was one of the first people to donate to Obama's U.S. Senate campaign, long before Obama emerged on the national political stage. Steven Durham, a graduate of Northwestern University School of Law, joined the D.C. U.S. Attorney's Office in 1992 and has been in charge of its public corruption prosecutions since 2007. Daniel Butler, who joined the justice department in 1981, has been specializing in fraud and public corruption for the past seven years and led the successful prosecution of Deborah Jeane Palfrey, known as the "D.C. Madam", in 2008. All three men have received glowing support by friends and colleagues.

In their defense, Durham and Butler argued that they had turned over the videos to the defense in early May, and Clemens’ counsel had not objected when those videos were introduced into evidence on the morning of the July 14. Regardless, failing to redact the barred footage from the video was a clear violation of the court’s order, and Judge Walton does not appear convinced that this was an innocent mistake, stating "Government counsel [should] not do whatever they can get away with doing." Further, this is not the first exercise of questionable judgment by the prosecution since the case commenced. Clemens has no prior criminal record and has been accused of no violent crime. Yet, immediately after Clemens’ indictment, the prosecution moved that Clemens, allegedly a flight risk, surrender his passport. Thankfully, Judge Walton rejected the motion.

Judge Walton has set a date of September 2 for the parties to submit motions regarding whether Clemens should be retried. Legal scholars are split as to whether a retrial would violate Clemens constitutional protection against double jeopardy. Unfortunately, millions of dollars have already been lost in preparing for the first trial. Judge Walton will have done the country a favor by dismissing a case that reportedly would have taken four weeks of the court’s time and involved a minimum of 45 witnesses, including major league baseball players, employees of several teams, as well as officials of the House of Representatives. Hopefully sanity will prevail, and Machen’s office will not seek a retrial and will instead turn its attention to more pressing matters, like prosecuting murders, rapists, and terrorists.

There is a lesson to be learned here both for trial attorneys and their clients. A very basic mistake made by at least two experienced and well-respected prosecutors resulted in a catastrophe that ultimately may cost one or more of those attorneys their jobs. Assuming the “mistake” was just that, all the attorneys needed do was carefully review the videos that they intended to show jurors. Perhaps they were too busy to do so and assigned the job to an inexperienced lower-level staff member, secretary, or intern. Auditors who refuse to pay attorneys for reviewing videos of prior litigation-related events or who declare as non-billable “administrative” work those communications between attorneys and audio-video professionals about recordings to be presented as evidence at trial should strongly reconsider. As many of us already know, these tasks are often mundane, but critical to success in the courtroom.

Bill Staar is a partner in the Boston office of Morrison Mahoney LLP. He concentrates in the areas of product liability, construction disputes, toxic torts, and general business litigation. He is a member of DRI's Product Liability, Construction Law, and Commercial Litigation Committees, Chairman of DRI's Sports Law Specialized Litigation Group, and a member of the Sporting Goods Manufacturers Association Legal Task Force.

I know that many of us will be waiting to see how the Apple iPad takes off before getting our own, but it may be the new hot technology for trial. 9to5mac.com has a great example presentation of the PadNote app for the iPad and it does appear intriguing. PadNote actually allows for annotations to be made within PDFs. A user can highlight in numerous colors, draw directly onto the PDF and type notes into the PDF just as if the file was opened in Acrobat on a computer. All this except instead of using a mouse, you use the touchscreen of the iPad.
The iPad even has a VGA connector accessory which mirrors the iPad’s screen to a projector. This could be a much less expensive way for lawyers to open documents and records and using only their finger, highlight, draw and otherwise annotate the record/document. The highlights and annotations can be removed with a simple push of the button. A lawyer may not even need a paralegal’s help to run this program, it is truly a one man (or woman) show!