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.  

Law.com has an interesting blog post about a recent defense tactic in the case of an alleged “mouse in a can of soda,” you can find the article here. Basically, the defendant is taking a scientific stand regarding the presence of a mouse allegedly sealed in a can of soda. Essentially, they are saying that a whole mouse would not be present in a sealed can, because the acid in the drink would have turned it to jelly. The beverage giant  may need to start competing with jelly and jam companies.  The position may be technically viable but it appears be a public relations nightmare. Do you think this is an effective stance? Does it do more harm than good? Let us know your thoughts.

Jobby is an associate in the Oklahoma City firm of Hiltgen & Brewer, P.C.  

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/.

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.  

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.

When I was a child, my mother often said to me "It's not what you said, but how you said it." This statement typically followed my reasonable explanation for something I said to one of my siblings that on its face was innocent, but could be misconstrued through delivery. Successful trial attorneys master presenting evidence to ensure that their message is delivered effectively and as intended. Trial czars are deliberate in the order in which trial evidence is presented and how to present evidence, so that the appropriate response is received from the jury. Although I am not a trial czar yet, this article highlights some practices that I have learned and developed to present at trial successfully.

Preparation for trial begins when you first get the case. As a new associate, I thought that the partner for whom I worked was being dramatic when he first told me this. The reality is that one must develop a theme, strategy and plan when the case is assigned. These strategies and themes are not set in stone and may be modified as the case develops, but planning is necessary throughout the litigation process. It is important to visualize how the case will be presented, what evidence you will need at trial, how you will gather the evidence, how the evidence will be admitted, and how evidence will be excluded. I have seen some good cases become average because the attorney did not plan how to obtain good evidence and/or plan how to get the evidence admitted at trial. This planning must start from day one.

Case files must be organized and have a purpose. Trials have too many complications, surprises and fireworks to allow an unorganized file to add to the excitement. Disorganization is ineffective and will be exposed at trial. Disorganized attorneys are not being honest when they say "I know where everything is - it's organized in my mind." Organization must be apparent to all. Throughout litigation and the trial, there are several people who may come in contact with a case file and it is important that a system is in place to make sure that documents and evidence are preserved and easily obtainable. Also, during trial the judge may ask for a particular document on a moment's notice, and it will be necessary for the attorney to find the document quickly. If he/she is unable to locate it, not only will the judge be perturbed, but the jury will also notice the attorney's lack of preparation.

Trial presentations should be informative, logical and well planned. Effective trial attorneys understand that evidence must be presented in a way that someone actually wants to hear it. Witness testimony should be presented in a clear and precise manner with a purpose. Every witness called should offer value to the case and that witness' order should have been predetermined for some reason that assists in trial presentation. The witness is there to educate the jury on the circumstances surrounding the case. In a good trial, the jurors leave feeling that they have developed somewhat of an expertise in the subjects at issue. Not all jurors are waiting a lifetime to be called to jury duty. A good trial attorney does not waste jurors' time.

Demonstrative evidence must also be planned well before the actual trial of the case. An effective trial attorney considers what evidence will paint the picture for the jury and drive the point home. Evidence is presented effectively sometimes through a simple blow-up of a photograph and other times through animation. Regardless, both of these presentation methods require advance planning and likely the assistance of an outside source that may not be available on the eve on trial. Despite our egos, attorneys may also need to practice with the demonstrative evidence to make sure that they know how to use it so that the intended purpose of the evidence is not lost through the attorney's fumbling. Trial presentations that are polished and presented well are usually memorable for the right reasons.

Trial attorneys should attempt to understand every aspect of their case. An attorney who does not fully understand his/her case is at a disadvantage. The attorney will not only lack the confidence necessary for an effective trial presentation, the attorney risks being surprised by opposing counsel at trial. It is best to strive to know more about the case than anyone else. It is also wise to try to understand your opponent's case so that you can effectively challenge it. It is good practice to visualize the entire case before you present your case and be prepared for potential pitfalls well before they surface.

Throughout the trial, the attorney should always respect the court and the trial process. Jurors make a sacrifice so that our judicial system can work. Some trials require jurors to be away from work, family, friends and many other things for extended periods of time. Be mindful that jurors have better stuff to do. It is disrespectful to be cavalier to the court or the trial process regardless of how one feels about the current circumstances of the trial. Maintain professionalism at all costs and be civil to all with whom you come in contact. Jurors will appreciate your professionalism, and you will likely earn favor with the jurors as well.

The above practices are just a few that I have implemented in preparing and presenting for trial. Following these practices will not guarantee a win at every trial, but will make the case a lot easier to try and allow the attorney to walk away proudly, regardless of the outcome. The message delivered at trial will have its intended effect and, at the end of the day, the jurors should understand what you have said and appreciate how you said it.

Timothy J. Gardner
Carlock, Copeland & Stair, LLP
Atlanta, Georgia
tgardner@carlockcopeland.com