George Carlin once complained that after putting a dollar in a change machine, “nothing changed.” Alas, the same cannot be said of courtrooms. Each year, the country’s courtrooms are home to a variety of trends. Some of these trends you’ll want to follow; others you’ll want to avoid. But all are developments of which you need to be aware in order to continue to be effective and successful in the courtroom.
Judges Routinely Shorten Trials
Lawyers used to set the pace and length of trial. But several years ago, judges began imposing stricter time limitations on cases. We first noticed this trend in federal cases, where judges have lifetime appointments and so are less afraid of alienating lawyers. Now this trend is
The days of hours-long openings are gone. In fact, most openings are now an hour or less. Lawyers are being forced to confront the fact that repetitive testimony (whether it comes from a single witness or from many) often does more harm than good. This may not feel comfortable, but it’s actually good news for lawyers. It forces us to organize, craft, and edit our cases to make them more pointed and powerful.
Most lawyers wait too long to determine what is important about their case. To test your own understanding of your case, apply the Cocktail Party Rule. That is, imagine yourself at a cocktail party or some other place where you routinely make small talk with nonlawyers. Could you describe your case in two or three minutes—in a way that does not send people inching toward the door? If not, you need to go back and refine your story line. A two-minute description obviously won’t cover your entire argument, but it should serve as the core around which you then build your case, including your opening statement.
Start practicing your opening early on. If it takes more than an hour to deliver, rethink it and reorganize it. If you can’t state your case in an hour, you probably aren’t stating it as efficiently as possible. In fact, you may not have as much clarity about your case’s central themes as you should. As Thoreau used to say, “simplify, simplify!”
More Judges Are Requesting Tutorials
Intellectual property cases are inherently complex and often deal with subject matter with which judges have no experience. In such cases, judges routinely request that each party provide them with a tutorial—a basic introduction to the underlying technical issues in the case.
For some judges, this has become so beneficial they schedule such tutorials as part of the overall case calendar. Sometimes these tutorials involve live presentation by each side’s experts. Other times, each party will leave basic material (often displayed in a graphic form) for the judge to study.
You’ll likely see these tutorials being increasingly used outside of intellectual property cases—and with good reason. If you were a judge charged with the important task of deciding a complex issue with which you weren’t familiar, you’d probably appreciate an informal tutorial, too.
If you don’t try intellectual property cases, find someone who does and take the time to discuss the use and benefit of tutorials. And, as you organize your case, think about how you’ll present a tutorial if one is requested. What information would help a judge understand your case better? What sort of graphics might make your points more clear? If appropriate (for example, you’re trying a case that involves complicated technology or other kinds of complex facts), consider approaching the judge about the opportunity for each side to provide such information.
Such material needs to be made available relatively early on—perhaps prior to motions in limine—and both sides should avoid being too adversarial. Ideally, the tutorials would be purely factual and without advocacy.
Judges Are Broadening the Use of Graphics in Court
Remember the clear line that used to exist between exhibits, on the one hand, and graphics offered “only for illustrative purposes,” on the other? Exhibits had to be authenticated and go through a formal introduction process, and then they were sent back into the jury room as part of the official trial record. “Illustrative material” had to meet basic requirements, but it was used merely to clarify testimony. Such material rarely went back into deliberations.
Judges are increasingly blurring this line. Years ago, the timeline you developed to help witnesses and jurors visualize the relative order of events in a case would never make it back to the jury room. Similarly, that checklist you used in closing argument would have to be packed up, because the judge would not let that go back, either.
Now we have to change our tune. An increasing number of judges are letting jurors consult this material during deliberations. I recently worked on a case where the judge formally allowed each side to pick 25 of its most important illustrative graphics to send to the jury room. The judge’s reasoning seemed to be, “If I let you use it in the trial, why shouldn’t the jury use it in deliberations?”
No formal legal citations seem to explain this increased flexibility. Perhaps judges justify this change as a proper exercise of their general discretion and their inherent right to oversee the effective running of the trial. Will this trend continue? Probably. Be aware of it. Ask around to see if your judge has such a propensity. If so, design your graphics accordingly. In fact, if you display your illustrative material on large boards or electronically, consider having smaller hard copies available, too—just in case.
Trial Lawyers Are Less Afraid of Looking “Too Slick” in the Courtroom
In the past, some lawyers were reluctant to use electronic display technology in the courtroom because they were afraid that the jurors might perceive them and their clients as being “too slick.” Those days are over. Electronics may still seem exotic to some lawyers (usually older ones like us, who hit the cutting edge when we used electric typewriters in law school). But these days, most jurors (and clients) don’t see such tools a suspiciously fancy. Instead, they accept and expect computer graphics.
Does this mean you should automatically and indiscriminately use electronic media to convey your message? No. Just don’t be afraid that computer graphics will make you look like a big city, tassel-shoed lawyer out to pull the wool over the jurors’ eyes.
Attorneys Are Going Retro
That said, another important trend on the other end of the spectrum is attorneys going retro. That is, some attorneys are once again using blackboards, flip charts, and graphics printed on foam boards to illustrate their points.
For a while, it seemed people were reluctant to use these tools, for fear they were old-fashioned. That was a shame, because these are often the most powerful tools in the courtroom. When you see someone writing at the blackboard, whom do you think of? A teacher. As that person writes or draws, you pay attention, often more so than you would with a prepreparerd graphic, because the blackboard presentation seems spontaneous. The appearance of spontaneity is often an illusion, since considerable thought (and practice) goes into the sketch. But the primary point is that the viewer pays greater attention when a presentation is live.
The use of low-tech tools, combined with your role as teacher, allows you to increase your rapport with the jury. Indeed, by taking the time to teach your jurors about the case, you demonstrate that you respect them and their time. And that, in turn, will help you gain the jurors’ trust.
In some cases, using electronic media is appropriate. In others, using low-tech tools is appropriate. Don’t let the media drive the message. Determine what you want to say before you determine how to say it. If, after developing the message, you realize you can convey it using something as simple as a piece of chalk and a blackboard—go for it! Use the media that allows you (or your expert witness) to take a teacherly role. And this is often your most effective adversarial technique.
This article appeared in the San Francisco Daily Journal on February 8, 2008.
Appeared in The San Francisco Daily Journal
February 08, 2008